David, J.
Indiana’s Constitution affords its citizens certain rights, including the right to counsel through all stages of a prosecution. That right entitles an accused to consult with counsel while in police custody. In Pirtle v. State, our Court relied on our State Constitution to require an advisement of rights prior to police obtaining consent to a search from a person in custody. So far, that requirement has been understood to apply only to searches of homes and vehicles. Field sobriety tests, chemical breath tests, blood draws, and cheek swabs have all been found to be searches not requiring an additional advisement of rights prior to consent. Here, we address whether our Pirtle requirement extends to Drug Recognition Exams (“DRE”); in other words, whether an advisement is necessary before police can obtain a person’s valid consent to a DRE.
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On January 8, 2016, Indianapolis Metropolitan Police Department (“IMPD”) officers responded to a 911 call about a dispute on the road. …
When IMPD Officer Christopher Cooper (“Officer Cooper”) arrived on the scene, he saw the two vehicles stopped at a red light. had one foot out of her vehicle and was observed yelling at the car in front of her. Officer Cooper approached M.D. and asked for identification. … While speaking with M.D., Officer Cooper noticed an odor of marijuana coming from M.D.’s breath. Officer Cooper called for back up from Officer Christopher Winter (“Officer Winter”), an IMPD officer who was certified to conduct DREs. Officer Cooper continued to question M.D. as they waited for Officer Winter’s arrival. In the course of that questioning, M.D. admitted to Officer Cooper that she had smoked marijuana with her mother “about an hour” prior to the encounter.
When Officer Winter arrived, M.D. was asked to submit to various field sobriety tests. … Based on the field sobriety test results, Officer Winter believed that M.D. was intoxicated. He offered to administer a certified breath test, which would test for the presence of alcohol. M.D. consented.
Officers transported M.D. to an IMPD office located approximately four miles from the initial stop to conduct the test. The results came back negative for the presence of alcohol in M.D.’s system. However, while conducting the test, Officer Winter noticed a green, leafy substance in M.D.’s mouth and “a green streak going down her tongue.” These signs were indicative of marijuana consumption.
Officer Winter then offered M.D. a DRE. … M.D. again consented. … After entering all observations and results of M.D.’s DRE into the “drug symptom matrix,” Officer Winter determined that M.D. was under the influence of marijuana.
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The State charged M.D. with Count I, Class A misdemeanor Operating a Vehicle While Intoxicated. Later, the State added Count II, Class C misdemeanor Operating a Vehicle with a Schedule I or II Controlled Substance or its Metabolite in the Body. At trial, M.D. objected to the admission of evidence regarding the DRE, arguing that she should have been given a Pirtle advisement before being asked if she consented to the exam. … M.D. was found guilty as charged. At sentencing, the trial court vacated Count II. M.D. was then sentenced to 365 days for the remaining count, with 361 days suspended to probation.
M.D. appealed, making the same arguments she made at trial: (1) that the officer’s testimony regarding the DRE was inadmissible because she should have been given a Pirtle advisement prior to being asked to consent to the exam, and (2) that the admission of chain custody forms for toxicology documents violated her right to confrontation under the United States Constitution. The Court of Appeals found that there was no confrontation clause violation, but reversed M.D.’s conviction because a Pirtle advisement had not been given prior to the DRE consent. M.D. v. State, 90 N.E.3d 1215, 1220-26 (Ind. Ct. App. 2017).
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Today, we are asked to decide whether, prior to obtaining consent to a DRE, police must advise a person in custody of her right to consult with counsel—a question that is grounded in protections offered by our State Constitution.
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Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634, is the seminal case for Indiana’s law on consent to searches. In that case, the defendant, Robert E. Pirtle, was taken into custody for possession of a stolen vehicle. Police read Pirtle his Miranda rights twice—once in the squad car and another time at the police station. Pirtle asked for an attorney upon the second reading of his rights. Later, officers learned that Pirtle may have been involved in an unrelated homicide. Approximately twelve hours after Pirtle initially invoked his right to counsel, two other officers questioned him about the unrelated homicide. The officers, who were not aware that Pirtle had already invoked his right to counsel, asked Pirtle to consent to a search of his home. Pirtle agreed and signed a search waiver. When officers searched Pirtle’s apartment, they found evidence linking him to the homicide. Id. at 22-23, 323 N.E.2d at 637.
Pirtle challenged the admission of evidence recovered as a result of the search. Our Court held that a person in police custody is entitled to the presence and advice of counsel prior to consenting to a search, and that the right, if waived, must be explicitly waived. Id. at 29, 323 N.E.2d at 640. …
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Since Pirtle, we’ve addressed the advisement requirement only a handful of times. In Larkin v. State, (1979) 271 Ind. 469, 393 N.E.2d 180— an appeal by Pirtle’s accomplice following a separate trial on the same charges—we expressly reaffirmed the Pirtle requirement. In Sims v. State, (1980) 274 Ind. 495, 413 N.E.2d 556, overruled in part on unrelated grounds by Wright v. State, 658 N.E.2d 563, 570 (Ind. 1995), decided five years after Pirtle, we cleared up some ambiguity left by our earlier jurisprudence. We declared that our intention in Pirtle was to “recognize[] the right of those in custody to have the advice of counsel at the point where a consent to search is requested . . . .” Later, in Sellmer v. State, 842 N.E.2d 358 (Ind. 2006), we addressed Pirtle’s requirements in the context of a vehicle search. We found that the defendant was in custody when she was asked to consent to a search of her vehicle and, as a result, “she was entitled to a Pirtle advisement . . . .” Id. at 365.
However, Pirtle, Larkin, Sims, and Sellmer all dealt with searches of homes or vehicles. In Garcia-Torres v. State, 949 N.E.2d 1229 (Ind. 2011), for the first time, we addressed consent requirements for a different type of search: a cheek swab for DNA. …
… Taking the range of analytical treatment in prior cases as a whole, we determined that although cheek swabs for DNA have more in common with fingerprints than they do with chemical breath tests, we could not overlook that penis swabs for DNA testing had been deemed searches requiring their own separate probable cause proceedings. Garcia-Torres, 949 N.E.2d at 1237-38. Accordingly, we found that a DNA cheek swab was also a search. Id.
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In deciding whether Pirtle advisements are necessary for a particular search, such as a DRE, we need not contemplate whether a person has a legitimate expectation of privacy, nor whether the State’s intrusion was unreasonable. After all, those questions go to whether police must obtain a warrant—a question not at issue here. Moreover, a person may freely consent to even the most unreasonable of intrusions; where such consent is valid, no warrant is required. Rather, our concern in Pirtle, and in the ensuing cases, was that consent to certain weighty intrusions carries a great risk of involuntariness. …
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We find that a DRE is not the type of search that requires a Pirtle advisement. The exam consists of various field sobriety tests as well as a check of a person’s blood pressure and body temperature. Officers also examine the person’s arms and look into the person’s mouth and nose. Parts of the procedure take place in a dark room, but the entire procedure lasts only about thirty minutes. Once the measurements are taken from the various components of the exam, the results are put into a “drug symptom matrix” which helps the officer determine whether the suspect is under the influence of a drug.
None of the components of a DRE, either individually or cumulatively, have a strong likelihood of uncovering inculpatory evidence of something other than what caused officers to conduct the DRE in the first place. Each component of the exam—the use of the oral thermometer, the examination of the mouth and nasal cavity, the check for the person’s blood pressure— is narrow in scope. We do not have concerns that a person in custody will fail to appreciate the magnitude of the rights they forgo when consenting to a DRE. By conducting the DRE, officers were only going to find evidence of M.D.’s intoxication—nothing more. We find that a DRE is specific enough to eliminate the risk of involuntary consent. No additional advisement is needed before a person in custody consents to a DRE.
Conclusion
For the aforementioned reasons, we find that consent to a DRE does not require an advisement of rights under Pirtle. The trial court correctly determined that the evidence obtained as a result of the exam was admissible. Accordingly, we affirm M.D.’s conviction.
Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.