Justices reverse convictions for man denied Pirtle rights, but concurrence suggests revisiting Pirtle

A Cass County man convicted of multiple felonies after police responded to a report of a possible robbery at his home has secured a reversal from the Indiana Supreme Court after convincing the justices his Pirtle rights were violated during a police search. However, one justice, while concurring, suggested the high court take another look at Pirtle in the future.

In August 2020, Officer Cody Scott was on patrol for the Logansport Police Department when he received a tip about a robbery in progress. The tip described the suspect and identified the victim’s residence, adding that the victim himself, James McCoy, had an outstanding warrant for his arrest.

In a footnote, the court wrote, “The transcript reveals that the arrest warrant may have been related to unpaid fines and court costs McCoy had incurred.”

Upon arriving at the house, Scott observed McCoy, confirmed his identity and “immediately” detained him for the active warrant.

McCoy, once in handcuffs, said that several items from his residence had been stolen and that the robber had driven away just as the officer had arrived. The suspected robber, an acquaintance of McCoy’s, eventually returned to the residence, having been located in the vicinity by other officers.

At this point, a woman named Jalyn Parkevich approached Scott and claimed the incident was little more than a domestic dispute. Parkevich said she had been at McCoy’s house the night before, where she “observed methamphetamine” and where McCoy “had offered her” the drug in exchange for sex.

Evidently angered by the illicit proposition, the alleged robber sought retaliation by stealing some of McCoy’s possessions, Parkevich said.

Immediately following this exchange, and upon Scott’s request, McCoy identified several items belonging to him still inside the suspected robber’s vehicle. McCoy, still handcuffed, then agreed to escort Scott inside the house to document any other missing items.

Once inside the house, Scott detected the odor of burnt synthetic marijuana emanating from upstairs. When they arrived at McCoy’s bedroom on the second floor, the officer observed several plastic baggies strewn about the room.

Based on these observations, and with knowledge of “possible narcotics inside the residence,” Scott suspended the investigation and contacted the prosecutor to apply for a search warrant. The subsequent execution of that warrant revealed various drug paraphernalia including a glass pipe with residue that later tested positive for meth, a vape cartridge containing THC oil, an opened pack of syringes and a plastic baggie containing a substance that also tested positive for meth.

After Scott advised McCoy of his Miranda rights, McCoy admitted that most of the items belonged to him, with the glass pipe apparently used “for smoking crack cocaine.”

The state charged McCoy with Level 6 felony possession of meth, Level 6 felony unlawful possession of a syringe, Class A misdemeanor possession of marijuana and Class C misdemeanor possession of paraphernalia.

At trial, McCoy moved to suppress the state’s evidence, arguing the search was unlawful because, despite his detention, the arresting officer failed to give the necessary Pirtle warning.

The Cass Superior Court denied the motion.

Acknowledging that McCoy “was in custody” when the officer asked to search the house, the trial court reasoned that McCoy’s detention rested on a “[w]arrant unrelated to the charges that [are] subject to this case.” Also, the court said it didn’t see it as a search but rather “as an attempt to identify stolen property” from the alleged robbery, of which McCoy was the “apparent victim.” Finally, the court found nothing to suggest the officer “was looking for evidence other than the stolen property,” adding that when the officer came across incriminating evidence, he stopped and left the premises to secure a proper search warrant.

A jury found McCoy guilty on all counts except the unlawful possession of a syringe charge. After entering judgment of conviction on all counts except the marijuana charge, for which it had entered a directed verdict of not guilty, the trial court sentenced McCoy to an aggregate term of nearly 2½ years.

The Court of Appeals of Indiana affirmed in a memorandum decision, holding that the trial court did not abuse its discretion by admitting evidence obtained during the search.

McCoy then sought transfer, and the high court in June heard oral argument on petition to transfer during Justice Steven David’s final oral arguments before his retirement this month.

The court then granted transfer and reversed for McCoy on Monday in James E. McCoy v. State of Indiana, 22S-CR-294.

The justices concluded McCoy’s rights under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), were, in fact, violated, so the evidence obtained during the search shouldn’t have been admitted.

“Because there’s no dispute over his custodial status when Officer Scott asked to search his home, and because there’s no dispute that the officer failed to advise him of his right to counsel before requesting that consent, this case, McCoy contends, amounts to a clear-cut violation of Pirtle’s ‘core holding,’” Justice Christopher Goff wrote.

“… Pirtle applies when a person (1) is in custody and (2) is asked by police to consent to a home or vehicle search,” Goff wrote. “And because no one here — not the State, not the trial court, not the Court of Appeals, and certainly not McCoy — disputes these elements have been met, we need not inquire into the arresting officer’s subjective views of whether McCoy was a victim or a suspect.”

Thus, justices remanded for a new trial.

“In so holding, we emphasize that our decision should not be viewed as an extension of the Pirtle doctrine to cases where an officer asks the victim of a crime for permission to enter the home for investigative purposes, so long as that victim has not been detained,” Goff wrote. “Nor should our decision be viewed as a constraint on our highly valued police officers.

“To the contrary, our opinion today preserves the status quo by requiring a Pirtle warning when a person (1) has been detained and (2) is asked to consent to a home or vehicle search.”

In a concurring opinion, Justice Mark Massa wrote he was “hard-pressed to dissent” from the majority but suggested reconsidering Pirtle in the future.

“… (M)echanically applying this unique precedent to these rare facts leads to a result that borders on the absurd and leaves me open to reconsidering Pirtle in a future case,” Massa wrote. “As the trial court and Court of Appeals implicitly recognized below, there ought to be a difference between asking a suspect, ‘Can I search your home?’ and asking a victim, ‘You want to show me what’s missing?’

“Pirtle birthed a precedent unnecessary to its result and largely ignored in sister states,” Massa continued. “… The Court today nonetheless elevates it rhetorically to the pantheon of state-constitutional jurisprudence as if it were on par with, say, Litchfield v. State, 824 N.E.2d 356 (Ind. 2005) … and Brady v. State, 575 N.E.2d 981 (Ind. 1991). … Yet if a lawyer today tracked Pirtle’s reasoning in a brief to support an independent state constitutional basis for its result, we would find waiver for lack of cogent argument.

“… Pirtle is an Indiana case grounded in federal constitutional law … that other states have declined to adopt,” Massa concluded. “And today, despite the Court’s disclaimer to the contrary, we have expanded it to a situation where no police officer in Indiana would have thought a warning was necessary. A precedent of questionable foundation and doubtful force compels my concurring in the judgment and invites further scrutiny. Ultimately, Pirtle is what it is — ‘good law’ until overruled.”