Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 1 of 7

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.

ATTORNEY FOR APPELLANT

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kimberley M. Couch,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 19, 2017

Court of Appeals Case No.

32A01-1704-CR-878

Appeal from the Hendricks

Superior Court

The Honorable Rhett M. Stuard, 

Judge

Trial Court Cause No.

32D02-1607-CM-1089

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 2 of 7

Case Summary

[1] Kimberley M. Couch (“Couch”) appeals her conviction of Possession of 

Paraphernalia, as a Class C misdemeanor.

1

 She challenges the admission of 

evidence obtained during a warrantless search of her residence.

[2] We reverse.

Facts and Procedural History

[3] On July 9, 2016, Couch answered a knock at her front door. At the door was 

Hendricks County Sheriff’s Department Deputy Robert Lenover (“Deputy 

Lenover”) responding to a complaint that an odor of marijuana had emanated

from the residence. Deputy Lenover asked if Couch was the homeowner and 

Couch replied that she was renting the property. Couch then stepped outside.

[4] Deputy Lenover told Couch that he smelled marijuana, at which point Couch 

admitted to smoking marijuana before he arrived. Deputy Lenover read Couch 

her Miranda rights and then told Couch that he could either apply for a search 

warrant or she could let him inside and give him the contraband. Couch agreed 

to let Deputy Lenover enter the residence.

[5] Once inside, Couch gave Deputy Lenover a hollowed-out book containing

rolling papers and a smoking pipe. Shortly thereafter, a houseguest retrieved a 

 

1

Ind. Code § 35-48-4-8.3(b)(1).
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bag containing a plant material that resembled marijuana. Deputy Lenover

then advised Couch that he would apply for a criminal summons.

[6] Couch was charged with Possession of Marijuana, as a Class B Misdemeanor,2

and Possession of Paraphernalia, as a Class C misdemeanor, and a bench trial 

was conducted on February 10, 2017. The trial court found Couch not guilty of 

Possession of Marijuana and guilty of Possession of Paraphernalia, and 

imposed a suspended jail sentence of sixty days and 180 days of probation.

[7] Couch now appeals.

Discussion and Decision

[8] Couch argues, as she did at trial, that the evidence procured during the 

warrantless search was inadmissible because it was obtained in violation of her 

constitutional rights under the Fourth Amendment to the United States 

Constitution and Article 1, section 11 of the Indiana Constitution. A trial court 

has broad discretion in ruling on the admissibility of evidence but where a 

constitutional violation is alleged, our standard of review is de novo. Leonard v. 

State, 73 N.E.3d 155, 168 (Ind. 2017). Moreover, where our constitutional 

evaluation depends on disputed historical facts, we “consider conflicting 

evidence most favorably to the trial court’s ruling.” Campos v. State, 885 N.E.2d 

 

2

I.C. § 35-48-4-11(a)(1).
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 4 of 7

590, 596 (Ind. 2008). Thus, we do not reweigh the evidence but we decide de 

novo whether the evidence established the constitutionality of a search.3 See id.

[9] Here, Deputy Lenover conducted a warrantless search of the residence. 

Warrantless searches are “per se unreasonable under the Fourth Amendment—

subject only to a few specifically established and well-delineated exceptions.” 

Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted). “One wellrecognized exception to the warrant requirement is a voluntary and knowing 

consent to search.” Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). Moreover, 

Article 1, section 11 of the Indiana Constitution “requires that a person in 

custody explicitly waive the right to counsel before giving a valid consent to a 

search.’” Clarke v. State, 868 N.E.2d 1114, 1119 (Ind. 2007) (citing Pirtle v. State, 

263 Ind. 16, 323 N.E.2d 634, 640 (1975)). Accordingly, for a person in custody 

to validly consent to a search, the person must be informed of the right to 

consult with counsel. Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995) (noting the 

requirement of a Pirtle advisement and that a Miranda warning is insufficient).

[10] Couch argues that she was in custody when she agreed to the search and that 

because she was not informed of her right to consult with counsel, she did not 

tender valid consent. In distinguishing between custodial encounters and noncustodial encounters, we consider the circumstances of the encounter and 

 

3 Couch argues that, at one point, the trial court applied the incorrect standard in reviewing her constitutional 

claim. However, because we are conducting de novo review of this question of law, we need not address 

Couch’s contention.
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“appl[y] an objective test asking whether a reasonable person under the same 

circumstances would believe that she was under arrest or not free to resist the 

entreaties of the police.” Jones, 655 N.E.2d at 55. Indeed, the aim of Pirtle and 

its progeny is to “police the line between ordinary investigative detentions and 

full-blown custodial interrogations by examining the circumstances for 

objectively overpowering, coercive, or restraining police behavior, such that the 

facts demonstrate a degree associated with a formal arrest.” Meredith v. State, 

906 N.E.2d 867, 873-74 (Ind. 2009) (quotation marks omitted). Several 

circumstances are relevant to this inquiry, including but not limited to

whether the defendant was read his Miranda rights, handcuffed, 

restrained in any way, or told that he was a suspect in a crime, 

e.g., Torres v. State, 673 N.E.2d 472, 474 (Ind. 1996); how 

vigorous was the law enforcement interrogation, e.g., Sellmer v. 

State, 842 N.E.2d 358, 363-65 (Ind. 2006); whether police 

suggested the defendant should cooperate, implied adverse 

consequences for noncooperation, or suggested that the 

defendant was not free to go about his business, e.g., id.; Clarke, 

868 N.E.2d at 1120-21; and the length of the detention, e.g., 

Cooley v. State, 682 N.E.2d 1277, 1279 (Ind. 1997).

Id. at 874.

[11] Here, Deputy Lenover initiated contact with Couch and confirmed that she 

occupied the residence. When Couch stepped outside, Deputy Lenover stated 

that he smelled marijuana—a point when any reasonable person would feel 

under suspicion. Couch then made an incriminating admission and, 

immediately thereafter, Deputy Lenover gave a Miranda advisement and sought 
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 6 of 7

consent to search the residence. When viewed objectively, we conclude that 

these circumstances were sufficiently coercive to require the constitutional 

protection of a Pirtle advisement. That is, “a reasonable person under the same 

circumstances would believe that she was under arrest or not free to resist the 

entreaties of the police.” Jones, 655 N.E.2d at 55; see Peel v. State, 868 N.E.2d 

569 (Ind. Ct. App. 2007) (identifying a prior incriminating admission as a key 

factor when concluding that a police encounter had become custodial); State v. 

Linck, 708 N.E.2d 60, 63 (Ind. Ct. App. 1999), trans. vacated (determining that 

the defendant was in custody after admitting to smoking marijuana “because a 

reasonable person would not have felt free to leave following that admission”).

[12] Because Couch did not receive a Pirtle advisement, Deputy Lenover did not 

obtain valid consent to search the residence. Moreover, the State has not 

identified any other exception to justify the warrantless search. Thus, the 

warrantless search offended the Indiana Constitution and the trial court erred in 

admitting evidence procured during the search. Disregarding that evidence, 

there is insufficient evidence to support Couch’s conviction of Possession of 

Paraphernalia. We therefore reverse and order the trial court to vacate the

conviction.

Conclusion

[13] The trial court erred in admitting evidence obtained during an unconstitutional

search of Couch’s residence.
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[14] Reversed.

Baker, J., and Altice, J., concur.