Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 1 of 18

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

R. Patrick Magrath

Alcorn Sage Schwartz & 

Magrath, LLP

Madison, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Plaintiff,

v.

Benjamin Bracewell,

Appellee-Defendant.

August 14, 2017

Court of Appeals Case No.

36A05-1702-CR-356

Appeal from the Jackson Circuit 

Court

The Honorable William E. Vance, 

Senior Judge

Trial Court Cause No.

36C01-1607-F2-18

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 2 of 18

Case Summary and Issues

[1] In July 2016, Benjamin Bracewell was arrested and the State charged him with 

dealing in methamphetamine, a Level 2 felony; unlawful possession of a 

firearm by a serious violent felon, a Level 4 felony; carrying a handgun without 

a license, a Level 5 felony; and possession of marijuana, a Class B 

misdemeanor. Prior to trial, Bracewell filed motions to suppress the cash, key 

cards, marijuana, handgun, methamphetamine, and scales found during his 

encounter with police as well as statements he made to police. The trial court 

granted Bracewell’s motions. The State raises three issues for our review, 

which we consolidate and restate as: whether the trial court erred in suppressing 

the evidence. Concluding the trial court properly suppressed the cash, key 

cards, marijuana, and Bracewell’s statements but erred in suppressing the 

handgun, methamphetamine, and scales, we affirm in part, reverse in part, and 

remand for further proceedings.

Facts and Procedural History

[2] On the evening of July 9, 2016, Officer James Handley of the Seymour Police 

Department parked his unmarked patrol car in the parking lot of a Seymour

hotel. The Seymour Police Department considered the area a “high crime 

area.” Transcript, Volume II at 11. Ten minutes later, Bracewell walked from 

the hotel towards Officer Handley’s vehicle. Bracewell walked to within a 

couple car lengths of Officer Handley’s vehicle before turning around and 
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 3 of 18

walking back toward the hotel. Officer Handley then exited his vehicle and 

followed Bracewell. 

[3] Officer Handley caught up with Bracewell near the top of the two-story hotel’s 

exterior stairwell. Officer Handley asked Bracewell why he turned and walked

away from the police vehicle. Bracewell replied he thought the car belonged to 

a friend who was supposed to give him a ride and he turned around after 

realizing his mistake. Officer Handley spoke into his police radio, informing 

dispatch he was with Bracewell. Bracewell reacted by raising both hands into 

the air, showing he had nothing in them. Officer Handley continued speaking 

to Bracewell for more than five minutes. Officer Handley asked Bracewell 

whether he had “something on you you shouldn’t have,” accused him of 

“moving stuff,” and told him “you’re gonna get caught.” State’s Exhibit 1, Clip 

1 at 1:05-1:15, 4:40-5:00. 

[4] Six minutes after Officer Handley began conversing with Bracewell, Officer 

Devlin McMindes of the Seymour Police Department arrived. Officer Handley 

again asked Bracewell if he had anything illegal on his person and Bracewell 

responded he did not. Bracewell then consented to a pat-down search. Officer 

Handley conducted a pat-down search and found nothing illegal.

[5] Officer Handley then turned to walk downstairs to retrace and search 

Bracewell’s route, telling Bracewell, “I’m gonna have [Officer McMindes] stand 

with you and I’m gonna walk your route real quick, okay?” Id. at 7:00-7:10. 

As Officer Handley began retracing Bracewell’s route, a third officer, Officer
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 4 of 18

Benjamin Miller of the Seymour Police Department, arrived and also stood 

with Bracewell. When Officer Handley reached the bottom of the stairwell, 

Bracewell dropped his driver’s license from the top of the stairwell. Officer 

Handley retrieved the card from the ground and noticed what he believed was a 

marijuana cigarette a few inches from the card. Officer Handley instructed 

Officer McMindes to place Bracewell in custody. Officer McMindes placed 

Bracewell in handcuffs, read him his Miranda warnings, and searched him.

Officer McMindes found cash and two key cards in Bracewell’s pocket.1

[6] Officer Handley continued retracing Bracewell’s route before eventually 

searching more around the stairwell. Officer Handley first found a red bag

lying on the ground on the opposite side of the stairwell from where he and 

Bracewell stood and talked. Officer Handley opened the bag, discovered a gun, 

and brought it to Bracewell. Bracewell denied possessing the bag or gun. 

Officer Handley searched the stairwell again and found a black case sitting on a 

small ledge near where he found the red bag. He opened the black case and 

found methamphetamine and scales. Bracewell denied possessing the case or 

its contents.

[7] Officer McMindes transported Bracewell to the police station. Officer 

McMindes later testified Bracewell admitted during his transport he dropped 

the marijuana cigarette. The next day, while Bracewell was still in custody, 

 

1 The key cards led officers to a nearby hotel where they found $4,000 in cash in a room Bracewell was 

staying in.
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 5 of 18

Officer Handley read him his Miranda warnings again and questioned him.

Bracewell told Officer Handley that he had him “dead in rights.” Tr., Vol. II at 

36. 

[8] The State charged Bracewell with dealing in methamphetamine, a Level 2 

felony; unlawful possession of a firearm by a serious violent felon, a Level 4 

felony; carrying a handgun without a license, a Level 5 felony; and possession 

of marijuana, a Class B misdemeanor.

[9] On August 17, 2016, Bracewell filed a motion to suppress. Bracewell alleged 

his detainment was unlawful under the Fourth Amendment to the United States 

Constitution and Article 1, Section 11 of the Indiana Constitution. As a result, 

he argued physical evidence discovered during his unlawful detainment should 

be suppressed. On December 12, 2016, Bracewell filed another motion to 

suppress, seeking to suppress some of his statements. After hearing evidence 

and receiving briefing from both parties, the trial court granted Bracewell’s 

motions. This appeal followed.

Discussion and Decision

I. Standard of Review

[10] On appeal from the grant of a motion to suppress, the State appeals from a 

negative judgment and must show the trial court’s ruling on the suppression 

motion was contrary to law. State v. Estep, 753 N.E.2d 22, 24-25 (Ind. Ct. App. 

2001). This court neither reweighs the evidence nor judges the credibility of the 
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 6 of 18

witnesses; rather, we consider only the evidence most favorable to the 

judgment. Id. at 25. This court will reverse a negative judgment only when the 

evidence is without conflict and all reasonable inferences lead to a conclusion 

opposite that of the trial court. Id.

II. Items in Stairwell

A. Marijuana Cigarette 

[11] The State argues the trial court erred in suppressing the marijuana cigarette 

Officer Handley found near Bracewell’s driver’s license. Specifically, the State 

contends Bracewell abandoned the marijuana cigarette while walking away 

from Officer Handley, before any seizure of Bracewell occurred. As a result, 

the State alleges no Fourth Amendment violation arose from its collection. 

Alternatively, the State contends Bracewell abandoned the marijuana cigarette 

during his encounter with Officer Handley at the top of the stairs, which 

constituted either a consensual encounter or a valid Terry stop. Either way, the 

State argues no Fourth Amendment violation occurred. We disagree.

[12] The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the persons 

or things to be seized.
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 7 of 18

The Fourth Amendment requires that an arrest or detention for more than a 

short period be justified by probable cause. Woods v. State, 547 N.E.2d 772, 778 

(Ind. 1989), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32 (Ind. 

1999). Probable cause to arrest exists where the facts and circumstances within 

the knowledge of the officers are sufficient to warrant a belief by a person of 

reasonable caution that an offense has been committed and that the person to 

be arrested has committed it. Brinegar v. United States, 338 U.S. 160, 175-76 

(1949). 

[13] Not every confrontation between a police officer and a citizen amounts to a 

Fourth Amendment seizure of a citizen. Hayes v. State, 794 N.E.2d 492, 496

(Ind. Ct. App. 2003), trans. denied. A seizure occurs when, taking into account

all the circumstances surrounding an encounter, the police conduct would 

communicate to a reasonable person that he was not free to ignore the police 

presence and go about his business. Id. Police actions that a reasonable person 

might interpret as an intrusion on freedom of movement include the threatening 

presence of several officers, the display of a weapon by an officer, some physical 

touching of the citizen, or use of language or tone of voice indicating that 

compliance with the officer’s request might be compelled. United States v. 

Mendenhall, 446 U.S. 544, 554 (1980). 

[14] Even if police actions exhibit an intrusion on freedom of movement, a seizure 

does not occur until the person submits to the show of authority. California v. 

Hodari D., 499 U.S. 621, 626 (1991). Further, abandoned property is not subject 

to Fourth Amendment protection. Campbell v. State, 841 N.E.2d 624, 627 (Ind. 
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 8 of 18

Ct. App. 2006). However, if property is abandoned after a citizen is improperly 

detained, the evidence is not admissible. Id. The question of abandonment is 

primarily a question of intent and rests upon whether the defendant retained a 

reasonable expectation of privacy in the property at the time of the search or 

seizure. State v. Machlah, 505 N.E.2d 873, 879 (Ind. Ct. App. 1987) trans. 

denied. 

[15] In addition to seizures, another form of confrontation between officers and 

citizens with Fourth Amendment implications is a Terry stop. A Terry stop 

occurs when an officer, without a warrant or probable cause, briefly detains an 

individual for investigatory purposes. Overstreet v. State, 724 N.E.2d 661, 663 

(Ind. Ct. App. 2000), trans. denied. The officer must have reasonable suspicion, 

based on specific and articulable facts, that criminal activity may be afoot. Id.

“[R]easonable suspicion must be comprised of more than hunches or 

unparticularized suspicions.” State v. Murray, 837 N.E.2d 223, 225-26 (Ind. Ct. 

App. 2005), trans. denied. In contrast to seizures and Terry stops, consensual

encounters have no Fourth Amendment implications. Overstreet, 724 N.E.2d at 

663. During consensual encounters, officers make a casual and brief inquiry of 

a citizen who is free to leave at any time. Id. 

[16] Officer Handley’s interaction with Bracewell was not a consensual encounter. 

Officer Handley quickly followed Bracewell after Bracewell turned and walked 

away from Officer Handley’s vehicle. Officer Handley caught up to Bracewell 

at the top of the stairwell and began questioning Bracewell and accusing him of 

illegal activity. Bracewell raised both hands to show his empty palms when he 
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 9 of 18

heard Officer Handley state his name while speaking to dispatch and Officer 

Handley physically patted-down Bracewell. After Officer McMindes arrived, 

also in full uniform, Officer Handley told Bracewell that Officer McMindes 

would stand with him while Officer Handley retraced Bracewell’s route. As 

Officer Handley began retracing Bracewell’s route, Officer Miller, also in full 

uniform, arrived at the scene and stood with Bracewell. By this point the 

interaction had moved well beyond a casual and brief encounter.

[17] The interaction also was not a valid Terry stop. In support of the encounter 

being a valid Terry stop, the State contends Bracewell walked away from Officer 

Handley in a “high-crime area.” Brief of Appellant at 23. The State also 

contends Seymour police officers received information Bracewell was involved 

in drug activity at the hotel. These facts do not provide reasonable suspicion to 

conduct a Terry stop.

[18] The State provided no evidence at the suppression hearing supporting its 

contention that the area in which Officer Handley found Bracewell was a highcrime area. Regardless, a person’s presence in a high-crime area combined with 

walking away from an officer are not sufficient to provide reasonable suspicion. 

Jacobs v. State, 76 N.E.3d 846, 850 (Ind. 2017). The information Seymour 

police officers received concerning Bracewell’s alleged drug activity was from 

“[p]rior to this night.” Br. of Appellant at 23. On the night in question, Officer 

Handley simply observed Bracewell walk through a hotel parking lot towards 

Officer Handley’s vehicle and then turn around. Officer Handley observed

nothing illegal and had received no reports of illegal activity at that time. In 
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 10 of 18

light of these facts, we cannot say Officer Handley held more than an 

unparticularized suspicion. As a result, Officer Handley lacked reasonable 

suspicion to conduct a valid Terry stop. 

[19] The correct characterization of the officers’ interaction with Bracewell is a 

seizure. Officer Handley questioned and accused Bracewell and then 

conducted a physical pat-down of him while two more officers arrived at the 

scene. Additionally, once three fully-uniformed officers were there, Officer 

Handley told Bracewell that Officer McMindes would stand with him while 

Officer Handley retraced his route. In light of these facts, we cannot say a

reasonable person in Bracewell’s position would feel free to leave. Further, 

Bracewell submitted to the officers’ show of authority when he raised his hands

to show they were empty. Because Officer Handley lacked reasonable 

suspicion, he also lacked the probable cause necessary to lawfully seize 

Bracewell. Therefore, Bracewell was unlawfully seized at the top of the 

stairwell before Officer Handley found the marijuana cigarette.

[20] The State’s contention that Bracewell might have abandoned the marijuana 

cigarette while walking up the stairs, and therefore before being seized, is an 

invitation to reweigh the evidence and judge the credibility of the witnesses, 

which we cannot do. See Estep, 753 N.E.2d at 25. Officer Handley found the 

marijuana cigarette just inches away from Bracewell’s driver’s license. The trial 

court could have reasonably concluded Bracewell dropped the marijuana 

cigarette at the same time he dropped his driver’s license, after being unlawfully

seized. Therefore, even if the marijuana cigarette is considered abandoned, it 
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 11 of 18

would not be admissible because property abandoned after an unlawful seizure 

is not admissible. See Campbell, 841 N.E.2d at 627. As a result, the trial court

did not err in suppressing the marijuana cigarette.

B. Gun, Methamphetamine, and Scales 

[21] The State similarly argues the trial court erred in suppressing the gun,

methamphetamine, and scales. The State contends Bracewell abandoned the 

bag and case containing those items before any seizure occurred because Officer 

Handley found the bag and case in a location consistent with Bracewell 

dropping them while walking away from Officer Handley. The State contends 

the bag and case remained in a public area for at least ten minutes where 

anyone could have found them. As a result, Bracewell lost any expectation of 

privacy in them. We agree with the State’s argument this evidence was 

abandoned property.

[22] Bracewell contends he dropped the bag and case in response to the officers’ 

illegal conduct.2 However, Officer Handley never saw Bracewell holding the 

bag or case while talking to him at the top of the stairwell. Further, Officer 

Handley found the bag on the ground on the opposite side of the stairwell and

the case balanced on a small ledge nearby. Based on their location, and 

because Officer Handley never saw Bracewell holding these large items, it is 

 

2

For the purpose only of suppression and this appeal, Bracewell concedes the evidence supports the inference 

he is the owner of the bag and case.
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 12 of 18

highly unlikely Bracewell dropped the bag and case from the top of the 

stairwell. Therefore, unlike the marijuana and driver’s license, Bracewell must 

have dropped the bag and case before being seized at the top of the stairwell. 

[23] The question then becomes whether Bracewell abandoned the bag and case or 

retained a reasonable expectation of privacy in them at the time of the search. 

Machlah, 505 N.E.2d at 879. Bracewell argues he placed the bag and case in a 

location where he intended them to be hidden from law enforcement. 

However, Bracewell placed the bags in plain view next to the exterior stairwell 

of a hotel where the police, or anyone else, could find them. Regardless of 

Bracewell’s intent, there was nothing stopping the police from finding the bag 

and case in that location and Bracewell did not retain an expectation of privacy 

in them. See United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989) 

(holding a defendant who left his gym bag on the floor of a public hallway in an 

apartment building and walked down the stairs surrendered his expectation of 

privacy). As a result, the bag and case are appropriately considered abandoned 

property. Since Bracewell abandoned the bag and case before his unlawful 

seizure, the trial court erred in suppressing the gun, methamphetamine, and 

scales found therein.

III. Items on Bracewell’s Person

[24] The State also contends the trial court erred in suppressing the cash and key 

cards Officer McMindes found on Bracewell’s person. The State argues Officer 

McMindes found the money and key cards during a search incident to a lawful
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 13 of 18

arrest because Officer Handley’s discovery of the marijuana cigarette provided 

probable cause for Bracewell’s arrest. We disagree.

[25] Officers may conduct a search without a warrant if it is incidental to a lawful 

arrest. Townsend v. State, 460 N.E.2d 139, 141 (Ind. 1984). The “fruit of the 

poisonous tree” doctrine bars the admission of evidence “directly obtained by 

[an] illegal search or seizure as well as evidence derivatively gained as a result 

of information learned or leads obtained during that same search or seizure.” 

Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013). To invoke the doctrine, a 

defendant must first prove a Fourth Amendment violation and then must show 

the evidence was a “fruit” of the illegal search. Id. But the exclusion of 

evidence is not the result of a simple “but for” test. Jackson v. State, 996 N.E.2d 

378, 384 (Ind. Ct. App. 2013), trans. denied. The doctrine has no application 

where (1) “evidence [is] initially discovered during, or as a consequence of, an 

unlawful search, but [is] later obtained independently from activities untainted 

by the initial illegality,” Murray v. United States, 487 U.S. 533, 537 (1988)

(independent source); (2) “the information ultimately or inevitably would have 

been discovered by lawful means,” Nix v. Williams, 467 U.S. 431, 444 (1984)

(inevitable discovery); or (3) “the connection between the lawless conduct of the 

police and the discovery of the challenged evidence has ‘become so attenuated 

as to dissipate the taint,’” Wong Sun v. United States, 371 U.S. 471, 487 (1963) 

(citation omitted) (attenuation). The burden is on the State to prove one of 

these exceptions applies. Clark, 994 N.E.2d at 266, 272.
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 14 of 18

[26] As discussed above, Bracewell was unlawfully seized at the top of the stairwell

and has shown a Fourth Amendment violation occurred. As a result of that 

violation, Officer Handley found the marijuana cigarette. Officer Handley then 

used the marijuana cigarette as the basis for probable cause to arrest Bracewell. 

Officer Handley only had probable cause for Bracewell’s arrest because of an 

unlawful seizure. The State does not argue the evidence found on Bracewell’s 

person fits into one of the exceptions, instead insisting Bracewell’s arrest was 

lawful. However, Bracewell demonstrated a Fourth Amendment violation 

occurred and the evidence found on his person were fruits of that violation. 

The State had the burden of showing the evidence fits into one of the 

exceptions. Given the police did not have probable cause until after the 

unlawful seizure, coupled with the State’s failure to meet its burden of showing 

one of the exceptions applies, we conclude the trial court properly suppressed

the cash and key cards found on Bracewell’s person. 

IV. Bracewell’s Statements

[27] Lastly, the State contends the trial court erred in suppressing Bracewell’s 

statements. Bracewell’s first statement at issue occurred at the top of the 

stairwell, when he denied possession of the marijuana cigarette, bag, and case. 

The next statement at issue occurred while Officer McMindes transported 

Bracewell to the police station, when Bracewell admitted dropping the 

marijuana cigarette. Bracewell’s last statement at issue came the following day 

at the police station, when Bracewell told Officer Handley that he had him 

“dead in rights.” 
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 15 of 18

[28] The State argues Bracewell made all his statements voluntarily after a lawful 

arrest. Alternatively, the State argues if Bracewell’s arrest was unlawful, the 

taint of unlawful conduct dissipated before Bracewell’s statements. If that is 

true, then the evidence is admissible under the attenuation exception to the fruit 

of the poisonous tree doctrine. The State contends there were intervening 

circumstances between the unlawful conduct and Bracewell’s statements 

because Officers Handley and McMindes read Bracewell his Miranda warnings 

before Bracewell voluntarily spoke. Further, the State contends no officers 

committed additional flagrant misconduct to exploit the unlawful seizure. As a 

result, the State alleges the taint of unlawful conduct dissipated before 

Bracewell’s statements and they are therefore admissible. We disagree.

[29] As discussed above, Bracewell’s seizure was unlawful and all of his statements 

at issue followed his unlawful seizure. Therefore, the State must rely on its 

argument that the fruit of the poisonous tree doctrine does not apply to 

Bracewell’s statements because they fall under the attenuation exception. In 

determining whether the connection has become attenuated, courts generally

consider “(1) the time elapsed between the illegality and the acquisition of the 

evidence; (2) the presence of intervening circumstances; and (3) the purpose and 

flagrancy of the official misconduct.” Sanchez v. State, 803 N.E.2d 215, 221 

(Ind. Ct. App. 2004) (quoting United States v. Green, 111 F.3d 515, 521 (7th Cir. 

1997)), trans. denied. The important consideration in the third factor is whether 

the evidence came from the “‘exploitation of that illegality or instead by means 

sufficiently distinguishable to be purged of the primary taint.’” Quinn v. State, 
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 16 of 18

792 N.E.2d 597, 600 (Ind. Ct. App. 2003) (quoting Wong Sun, 371 U.S. at 488), 

trans. denied. 

[30] The State concedes very little time elapsed between the unlawful conduct and 

Bracewell’s statements. Br. of Appellant at 34. The first two statements came 

immediately after Bracewell’s unlawful arrest, and the last came the next day 

while Bracewell was still in custody. Bracewell made all the statements at issue 

within twenty-four hours of his unlawful seizure.

[31] As to the presence of intervening circumstances, the State also concedes

Miranda warnings alone are not sufficient to purge the taint of an illegal arrest. 

Id. at 33. The fact that Bracewell’s statements were voluntary also does not 

purge the taint of the unlawful seizure. In Turner v. State, 862 N.E.2d 695 (Ind. 

Ct. App. 2007), a detective carried out an unlawful traffic stop on Dennis 

Turner. After speaking with the detective at the scene, Turner agreed to talk 

more at the sheriff’s department. Turner rode to the sheriff’s department in the 

detective’s vehicle but was never handcuffed. After receiving Miranda

warnings, Turner voluntarily made a recorded statement. Still, this court 

suppressed Turner’s statement, emphasizing the “near-constant interaction 

between Turner and police.” Id. at 702. Likewise, in this case, Bracewell 

remained in near-constant interaction with the police from the time of his 

unlawful seizure to the time he made the final statement at issue. Additionally, 

Officer McMindes actually arrested and handcuffed Bracewell before Bracewell 

made any of the statements. Therefore, as in Turner, the Miranda warnings and 
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 17 of 18

voluntariness of Bracewell’s statements are insufficient to purge the taint of the 

unlawful seizure.3

[32] In regard to the purpose and flagrancy of the official misconduct, the State 

argues misconduct requires more than “the mere absence of proper cause for 

the seizure.” Utah v. Strieff, 136 S.Ct. 2056, 2064 (2016). In Strieff, an officer 

conducting a “bona fide investigation of a suspected drug house” observed 

Edward Strieff leaving the house. Id. at 2063. The officer previously received 

an anonymous tip regarding the house and corroborated the tip with personal 

observation. The officer unlawfully seized Strieff in order to uncover more 

information about the house. The officer committed no further unlawful 

activity, but found methamphetamine and paraphernalia on Strieff’s person. 

The Utah Supreme Court suppressed the methamphetamine and paraphernalia.

The United States Supreme Court reversed, noting “neither the officer’s alleged 

purpose nor the flagrancy of the violation rise to a level of misconduct to 

warrant suppression,” as well as the presence of other intervening 

circumstances. Id. at 2064.

[33] As in Strieff, the police officers here did not commit further unlawful conduct 

after the unlawful seizure. However, unlike the officer in Strieff, Officer 

Handley unlawfully seized Bracewell for the purpose of questioning and 

 

3 The State does not contend the discovery of the meth, scales, and the gun constitute intervening 

circumstances giving the officers probable cause to arrest Bracewell and we decline to develop that argument 

on its behalf. Baniaga v. State, 891 N.E.2d 615, 620 n.9 (Ind. Ct. App. 2008). While we may affirm on any 

ground, we may only reverse on arguments presented by a party.
Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017 Page 18 of 18

accusing Bracewell of illegal activity, not to further some other bona fide 

investigation. The State emphasizes the lack of further misconduct by the 

officers in this case, but ignores the purpose of the unlawful seizure. In light of 

the purpose of Bracewell’s seizure, the third factor considered in the attenuation 

analysis is less favorable to the State than in Strieff. Meanwhile, the other two 

factors weigh in Bracewell’s favor. 

[34] In sum, considering the short time that elapsed between Bracewell’s unlawful 

arrest and his statements, his near-constant interaction with officers, and the 

purpose of the seizure, we cannot say the trial court erred in suppressing 

Bracewell’s statements.

Conclusion

[35] Concluding the trial court properly suppressed the marijuana cigarette found on 

the ground, the cash and key cards found on Bracewell’s person, and

Bracewell’s statements, but erred in suppressing the gun, methamphetamine, 

and scales found in the stairwell, we affirm in part, reverse in part, and remand 

for further proceedings.

[36] Affirmed in part, reversed in part, and remanded for further proceedings.

Vaidik, C.J., and Bailey, J., concur.