ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ELLEN F. HURLEY GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana

KARL M. SCHARNBERG

Deputy Attorney General

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

M.M., )

)

Appellant-Respondent, )

)

vs. ) No. 49A05-1203-JV-102

)

STATE OF INDIANA, )

)

Appellee-Petitioner. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Marilyn A. Moores, Judge

The Honorable Scott B. Stowers, Magistrate

Cause No. 49D09-1110-JD-2763

September 25, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

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.
2

Appellant-Respondent M.M. appeals from the finding that she committed what 

would have been Class A misdemeanor marijuana possession1if committed by an adult. 

M.M. contends that the juvenile court abused its discretion in admitting certain evidence 

at her delinquency hearing. We affirm. 

FACTS AND PROCEDURAL HISTORY

At approximately 3:15 p.m. on October 18, 2011, Indianapolis Metropolitan Police 

Officer Christopher Mills was dispatched to the area of 700 North Grant Avenue on a 

report of several persons in a vehicle possibly smoking narcotics. Officer Mills located 

the vehicle described in the dispatch, which was parked on the curb facing South, and

parked in front of the vehicle but “offset” to the East, facing North. Tr. p. 32. Officer 

Edward Fiscus also arrived in his car, also parking in front of, but offset to, the vehicle. 

Neither Officer Mills nor Officer Fiscus had activated his lights or siren, and their cars 

were not blocking the vehicle’s path. 

Officers Mills and Fiscus approached the vehicle on foot, Officer Mills on the 

driver’s side and Officer Fiscus on the passenger’s. Officer Mills had not drawn his 

weapon, and there is no indication that Officer Fiscus had, either. Five individuals were 

seated in the vehicle, two black males in the front, and, in the back, A.D. behind the 

driver, M.M. in the middle, and T.L. behind the front passenger. Officer Mills detected 

the odor of burnt marijuana as he approached the vehicle. Officer Mills “asked if there 

was any marijuana inside the vehicle.” Tr. p. 11. T.L. responded that he had marijuana, 

so Officer Mills walked around the vehicle, removed T.L., obtained the marijuana that 

 

1

 Ind. Code § 35-48-4-11 (2011). 
3

T.L. produced, handcuffed him, and sat him on the curb. A.D. then said that she too had 

marijuana, reached under the seat, and handed some marijuana to officer Mills. As A.D. 

did so, M.M. stated that the marijuana was hers also and that she and A.D. had purchased 

it together. A.D. and M.M. were asked to step from the vehicle and were then 

handcuffed and arrested for marijuana possession. A female police officer was 

summoned to search A.D. and M.M. and found a small bag of marijuana in M.M.’s 

brassiere. 

On October 18, 2011, M.M. was alleged to be a delinquent child for committing 

what would be Class A misdemeanor marijuana possession if committed by an adult. On 

January 12, 2012, after a hearing, the juvenile court entered a true finding. On February 

8, 2012, the juvenile court placed M.M. on probation until August 8, 2012, and ordered 

her to complete thirty hours of community service. 

DISCUSSION AND DECISION

Whether the Juvenile Court Abused its Discretion in Admitting Certain Evidence

M.M. frames her appeal as a challenge to the denial of motions to suppress 

evidence. As M.M. herself notes, however, because a hearing has been held, the issue is 

more appropriately addressed as a challenge to the admission of evidence. We will 

reverse a juvenile court’s ruling on the admissibility of evidence only when it abused its 

discretion. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). An abuse of 

discretion may occur if a decision is clearly against the logic and effect of the facts and 

circumstances before the court. Id. Regarding the “abuse of discretion” standard 

generally, the Indiana Supreme Court has observed, “to the extent a ruling is based on an 
4

error of law or is not supported by the evidence it is reversible, and the [juvenile] court 

has no discretion to reach the wrong result.” Pruitt v. State, 834 N.E.2d 90, 104 (Ind.

2005). 

M.M. contends that that her statements to Officer Mills should not have been 

admitted because police had not advised her of her rights, provided her with an 

opportunity for meaningful consultation, or obtained a waiver of rights. M.M. 

additionally contends that the marijuana found in her brassiere should not have been 

admitted because it was only found because of her statements. 

Indiana Code section 31-32-5-1 provides that 

Any rights guaranteed to a child under the Constitution of the United 

States, the Constitution of the State of Indiana, or any other law may be 

waived only:

(1) by counsel retained or appointed to represent the child if the child 

knowingly and voluntarily joins with the waiver;

(2) by the child’s custodial parent, guardian, custodian, or guardian ad 

litem if:

(A) that person knowingly and voluntarily waives the right;

(B) that person has no interest adverse to the child;

(C) meaningful consultation has occurred between that person and 

the child; and

(D) the child knowingly and voluntarily joins with the waiver; or

(3) by the child, without the presence of a custodial parent, guardian, or 

guardian ad litem, if:

(A) the child knowingly and voluntarily consents to the waiver; and

(B) the child has been emancipated under IC 31-34-20-6 or IC 31-

37-19-27, by virtue of having married, or in accordance with the 

laws of another state or jurisdiction.

“However, as a general rule, when a juvenile who is not in custody gives a 

statement to police, neither the safeguards of Miranda warnings nor the juvenile waiver 

statute is implicated.” S.D. v. State, 937 N.E.2d 425, 430 (Ind. Ct. App. 2010), trans. 
5

denied. Consequently, if M.M. was not in custody when she made her incriminating 

statements, her arguments regarding the juvenile waiver statute are fatally undercut. 

For an interrogation to be custodial in nature, one does not 

necessarily have to be under arrest. C.L.M. v. State, 874 N.E.2d 386, 390 

(Ind. Ct. App. 2007). To be custodial in the non-arrest context, the 

interrogation must commence after the person’s freedom of action has been 

deprived in any significant way. Id.; see also Luna v. State, 788 N.E.2d 

832, 833 (Ind. 2003) (“When determining whether a person was in custody 

or deprived of his freedom, the ultimate inquiry is simply whether there is a 

formal arrest or restraint on freedom of movement of the degree associated 

with a formal arrest.” (quotations omitted)). This is determined by 

examining whether a reasonable person in similar circumstances would 

believe he is not free to leave. Luna, 788 N.E.2d at 833.

Id. 

M.M. has failed to establish that she was in custody when Officer Mills asked if 

there was any marijuana in the vehicle. At a little after three in the afternoon, two 

officers, neither of whom had driven to the scene with lights or siren on, approached the 

vehicle in which M.M. sat. The vehicle was not blocked in and neither officer apparently 

had drawn a weapon. Upon detecting the odor of burnt marijuana, Officer Mills asked if 

there was any marijuana in the car. There is no indication that at any point either officer 

said or otherwise indicated that response to the question was mandatory or that the 

vehicle’s occupants were not free to go about their business. The Indiana Supreme Court 

has held that “a police officer who neither explicitly nor implicitly communicates that a 

person is not free to go about his or her business may ask questions of the person to 

investigate allegations of criminal activity without implicating the Fourth Amendment[.]” 

Clarke v. State, 868 N.E.2d 1114, 1116 (Ind. 2007). 

Clarke, in fact, is a case in which what can only be described as more coercive 
6

police behavior was nonetheless held not to result in custody. In Clarke, an Indianapolis 

police officer responded to a report of drugs being sold out of a car, arriving at the scene 

with her lights activated and her spotlight trained upon the two individuals inside the car

in question. Id. The officer obtained information from Clarke and the passenger, 

checked both occupants for warrants, and returned the information. Id. at 1117. The 

officer asked if there was anything illegal in the car, and Clarke replied that there was 

not. Id. The officer asked Clarke ‘if he cared if [she] searched his car,’ and Clarke 

responded, ‘I don’t have anything in the car.’” Id. “According to [the officer], she then 

asked Clarke ‘Do you mind if I search it?’ and Clarke responded, ‘No,’ and ‘voluntarily 

opened his door and got out of the car on his own.’” Id. As the search was conducted, 

Clarke and the passenger were watched by another police officer on the sidewalk. Id. 

The Indiana Supreme Court held that Clarke and the passenger were not in 

custody for purposes of the Fourth Amendment or Article I, section 11 of the Indiana 

Constitution. Id. at 1119, 1120-21. In so doing, the Clarke Court noted that “[t]here is 

no evidence that [the officer] conveyed [the] message [that compliance with her requests 

was required]” and that “[h]er mere presence as a uniformed law enforcement officer 

does not convert her questions into commands.” Id. at 1119 (citing Fla. v. Bostick, 501 

U.S. 429, 434-35 (1991)). Here, in addition to neither officer indicating that responding 

to Officer Hill’s question was mandatory, the question was only asked once and neither 

officer had activated his lights or spotlight. As in Clarke, the mere presence of Officers 

Hill and Fiscus as uniformed officers did not convert Officer Hill’s question into a 

command. M.M. has failed to establish that she was in custody, and the juvenile waiver 
7

statute is therefore not implicated. Consequently, M.M. has failed to establish that the 

trial court abused its discretion in admitting her statements and the marijuana found on 

her person. 

We affirm the judgment of the juvenile court. 

ROBB, C.J., and BAKER, J., concur.