Indiana Law Review Indiana Constitutional Developments: Incremental Change Jon Laramore* During the survey period, there were few truly significant developments in state constitutional law in Indiana. Instead, during the survey period, as has been true in recent years, decisions relating to individual rights under the Indiana Constitution displayed incremental adjustments rather than groundbreaking action. 1 And in one area—free expression—an Indiana Supreme Court decision may be seen as backtracking on Indiana constitutional rights first set forth more than a decade ago. During the past several years, Indiana's courts have made several important decisions interpreting the structural portions ofIndiana' s Constitution—the areas governing government power, authority, and responsibility and the relationship between the branches. 2 During the survey period, however, there were no such significant decisions. I. Decisions Relating to Individual Rights A. Free Expression The Indiana Supreme Court's decision in J.D. v. State3 may indicate that the court is moving in a new direction regarding the free expression protections in article I, section 9 of the Indiana Constitution. 4 The Indiana Supreme Court previously developed Indiana constitutional law on free expression in Price v. State, 5 perhaps the decision with the most thorough rationale and deepest philosophical grounding in the modern era of state constitutional interpretation. 6 J.D., a unanimous decision written by Price dissenter Justice Dickson, may indicate that the court is backing away from the wide berth Price gave to certain * Partner, Baker & Daniels LLP, Indianapolis. Former chief counsel to Governor Frank O'Bannon and Governor Joseph Kernan. Adjunct professor, Indiana University School of Law—Indianapolis, 2002-2007. 1. This Article generally analyzes decisions under the Indiana Constitution in two categories: those dealing with individual rights (the "rights constitution") and those dealing with the structure of government (the "structural constitution"). This concept is elaborated in Jon Laramore, Indiana Constitutional Developments, 37 IND. L. Rev. 929, 929 (2004). 2. See, e.g. , Nagy ex rel. Nagy v. Evansville-Vanderburgh Sch. Corp., 844 N.E.2d 48 1 , 493 (Ind. 2006) (free public education); D & M Healthcare, Inc. v. Kernan, 800 N.E.2d 898, 900 (Ind. 2003) (governor's veto power); Mun. City of South Bend v. Kimsey, 781 N.E.2d 683, 697 (Ind. 2003) (special laws). 3. 859 N.E.2d 341 (Ind. 2007). 4. Id. at 342. 5. 622 N.E.2d 954 (Ind. 1993). The modern era in Indiana Constitutional interpretation began with the publication of Chief Justice Shepard's article, Second Windfor the Indiana Bill of Rights, 22 Ind. L. Rev. 575 (1989). 6. Price, 622 N.E.2d at 963-64. 924 INDIANA LAW REVIEW [Vol. 41 :923 types of expression. 7 Price addressed the disorderly conduct conviction of Colleen Price, who was arrested for her loud and profane shouting at police as they arrested her friend while breaking up a New Year's Eve party. 8 The court concluded that Price's speech was political in nature because it criticized police action, and the decision characterized political speech as a "core value" under the Indiana Constitution. 9 It held that the State could not punish or, in the court's formulation, "materially burden" political speech unless the speech was found to result in harm "analogous to that which would sustain tort liability" to an identifiable victim. 10 Price contains a meticulous discussion of the natural rights philosophy behind article I of the Indiana Constitution, and its holding rests on balancing the natural right of the speaker to discourse (however roughly) on political topics against the natural right of an identifiable listener not to be subjected to harm. 11 J.D. has several elements in common with Price, but its result is different. J.D., a juvenile, resided at the Marion County Guardian Home. 12 J.D. was in a "discussion" with a Marion County deputy sheriff, who worked at the Guardian Home to maintain order. 13 The discussion concerned J.D.'s difficulties with a house parent. 14 The court wrote, however, that the discussion degenerated into shouting by J.D. , who would not allow the deputy to speak to her. 15 J.D.'s version, in contrast, was that she did not raise her voice but instead only tried to explain to the deputy the problems she had with the house parent. 16 (The Indiana Court of Appeals' s opinion in the case stressed that some of J.D.'s comments were related to the conditions at the Guardian Home, including the fact that she had to keep her room door open because the room was too hot, but facility rules required the door to be closed at all times; the court of appeals concluded that J.D.'s comments were political in nature and therefore protected 7. /.D.,859N.E.2dat342. 8. Price, 622 N.E.2d at 956-57. 9. Id. at 960-63. 10. Id. at 963-64. The court's analysis in Price, indicating that each portion of the Indiana Constitution is animated by a "core value," has been carried forward in only a few other decisions. The Indiana Supreme Court found a "core value" of group or corporate worship in article I in City Chapel Evangelical Free Inc. v. City of South Bend ex rel. Department of Redevelopment, 744 N.E.2d 443, 450 (Ind. 2001). No other "core values" have been identified, and the active, natural rights-based ethos of Price has shown up in few cases since. 1 1 . Price, 622 N.E.2d at 958-64. 12. J.D., 859 N.E.2d at 343. The Guardian Home is not a correctional facility. "The Children's Guardian Home has served the Indianapolis, Marion County areas for more than a century. Founded in 1898, the Guardian Home has traditionally offered shelter care for more than 150,000 dependent, neglected, battered and abused youngsters." Marion County Children's Guardian Home, http://www.guardianhome.org/about.htm (last visited Feb. 22, 2008). 13. J.D., 859 N.E.2d at 343. 14. Id. 15. Id. 16. Id. 2008] CONSTITUTIONAL LAW 925 speech under Price)} 1 Ultimately, the deputy told J.D. that she would be arrested if she did not quiet down, but J.D. did not do so. 18 J.D. was arrested and became the subject of a delinquency proceeding; the juvenile court adjudicated her delinquent for conduct that would constitute the crime of disorderly conduct, a class B misdemeanor if committed by an adult. 19 On appeal, J.D. claimed that there was insufficient evidence to support her conviction because, under Price, her comments were protected political speech that could not support a disorderly conduct conviction. 20 The Indiana Supreme Court directly addressed the relationship between J.D.'s claim and Price, noting that Price's "noisy protest about the police officer's conduct toward another person constituted political speech, that any harm suffered by others did not rise 'above the level of a fleeting annoyance,' and that . . . 'the link between her expression and any harm that was suffered' was not established." 21 The court concluded that J.D.'s case "is distinguishable from Price, where the defendant's speech did not obstruct or interfere with the police." 22 In J.D., in contrast, the speech "obstructed and interfered with" the deputy, and J.D.'s speech "clearly amounted to an abuse of the right to free speech and thus subjected her to accountability under Section 9." 23 The court concluded that J.D.'s speech was "not analogous to the relatively harmless speech in Price" and affirmed the juvenile adjudication. 24 The court's analysis apparently turns solely on the degree of disruption caused by the speech, whatever may be its political content. The key to Price appeared to be the balancing of the speaker' s right to discourse on political topics against a specific listener' s right to be undisturbed. 25 Price's outcome depended, at least in part, on the fact that Price' s loud and profane epithets could not be said to have harmed any specific listener in the general commotion surrounding the breakup of the party and various arrests. In J.D., in contrast, the identity of the listener was clear, and it was also clear that the speech had a direct and negative effect on the listener. But J.D. did not analyze the content of the speech at issue. The court went directly to the conclusion that J.D.'s speech was "abuse," without reference to the content of the expression. 26 While section 9 protects expression "on any subject whatever," it also states that "for the abuse of that right, every person 17. J.D. v. State, 841 N.E.2d 204, 209 (Ind. Ct. App. 2006), vacated, 859 N.E.2d 341 (Ind. 2007). 18. J.D., 859 N.E.2d at 343. 19. Id. 20. Id. at 344. 21. Id. (quoting Price v. State, 622 N.E.2d 954, 964 (Ind. 1993)). 22. Id. 23. Id. 24. Id. 25. See, e.g., Price, 622 N.E.2d at 963-64. 26. 7.D.,859N.E.2dat344. 926 INDIANA LAW REVIEW [Vol. 41 :923 shall be responsible." 27 In Price, Justice Dickson's dissent also concluded that the speech at issue was "abuse," and he rejected Price's elevated protection of political speech. Absent some determination whether the speech is political and of other protected character, the section 9 right cannot be balanced against the disruption the listener experiences. The unanimous holding of J.D. appears to be that if the impact on the listener is sufficiently severe, the political content of the speech does not matter at all. No such analysis is explicit in J.D., but it may be derived from the holding and the lack of any determination whether the speech was political or otherwise protected. One judge of the Indiana Court of Appeals concluded that J.D. was inconsistent with Price. In Blackman v. State, 28 Judge James Kirsch concluded, in a separate concurrence, that "7.D. tacitly overrules Price" creating "a fundamental shift in Indiana' s constitutionaljurisprudence." 29 He concluded that J.D. adopted the rationale of Justice Dickson's Price dissent, that certain loud and vulgar speech is "an abuse of the right" that may be punished by the State.30 Judge Kirsch wrote that "[t]here is no discussion in J.D. of core values or material burdens, only the conclusion that J.D. had abused the right of free expression." 31 In Blackman, the court of appeals also analyzed a claim that conduct supporting a disorderly conduct conviction constituted protected political speech. 32 Blackman was sitting in a car when police arrested her brother, who was sitting next to her, on drug charges. 33 When police became suspicious of Blackman and asked her to get out of the car, she became "belligerent" and "loud," repeatedly shouting profanities at the police and stating "this [is] unconstitutional." 34 When police asked Blackman to leave, she "refused, shouting that 'she had every right to be there, that she did not have to leave the scene.'" 35 She was sufficiently loud that she drew a crowd, luring people from their homes nearby.36 She eventually stepped close to an officer and wagged her finger in the officer's face. 37 Ultimately, Blackman was arrested for disorderly conduct. 38 The Indiana Court of Appeals concluded that Blackman' s speech was not 27. Ind. Const, art. I, § 9. 28. 868 N.E.2d 579 (Ind. Ct. App.) (Kirsch, J., concurring), trans, denied, 878 N.E.2d 21 1 (Ind. 2007). 29. Id. at 588. 30. Id. at 588-89. 31. Id. at 589. 32. Id. at 584 (majority decision). 33. Id. at 582. 34. Id. at 582-83. 35. Mat 583. 36. Id. 37. Id. 38. Id. 2008] CONSTITUTIONAL LAW 927 protected under the Price standard. 39 Blackman, the court concluded, "made unreasonable noise and continued to do so after being repeatedly asked to stop." 40 It concluded that the situation did not entitle her to raise her voice beyond reasonable levels when doing so "disrupted the officers' investigation and attracted unwanted attention." 41 The court concluded that Blackman met the first prong of Price's analysis because the State restricted her expressive activity. 42 She could not meet the second prong, however, because her speech constituted an "abuse" that the State may restrict under section 9.43 The court adopted the analysis in an earlier decision, U.M. v. State that expression "is political if its aim is to comment on government action," but "where the individual's expression focuses on the conduct of a private party, including the speaker himself, it is not political" and is therefore subject to rational review. 44 In this case, the court determined that some of Blackman' s speech was political ("this [is] unconstitutional"), but some was not ("she had every right to be there, that she did not have to leave the scene"). 45 The court concluded that her speech was disruptive and, even if it began as political, it was not political by the time she was arrested. 46 "Blackman' s speech was ultimately ambiguous as to whether she was commenting on her own conduct or that of the officers. Accordingly, we find that Blackman' s expression was not political and is therefore subject to rational review." 47 The fact that Blackman' s conduct interfered with a police investigation clearly influenced the court's view. 48 "Police officers conducting a legitimate investigation must be able to perform their duties without unreasonable interruption." 49 In another post-/.D. case, however, the Indiana Court of Appeals required a trial court to instruct a jury on the state constitutional right to free expression as described in Price. In Snell v. State, 50 the defendant was convicted of disorderly conduct and resisting law enforcement. 51 Snell was at a friend's home when police came to arrest the friend for stealing a wallet.52 Snell "began to call out to the officers to stop hurting" her friend. 53 She "continued screaming" as he was 39. Mat 588. 40. Id. at 584. 41. Id. 42. Mat 585. 43. Mat 584, 586. 44. Id. at 585 (citing U.M. v. State, 827 N.E.2d 1 190, 1 192 (Ind. Ct. App. 2005)). 45. Id. at 585-86. 46. Id. at 586. 47. Id. The court discussed J.D. at length in its opinion. 48. Mat 587. 49. Id. at 588. 50. 866 N.E.2d 392 (Ind. Ct. App. 2007). 51. Id. at 394. 52. Id. at 394-95. 53. Id. at 395. 928 INDIANA LAW REVIEW [Vol. 4 1 :923 put under arrest and did not stop when police told her to do so.54 "When Snell did not comply with the police officer's order to be quiet and sit down, another officer placed Snell under arrest." 55 Snell was convicted in a jury trial at which the trial judge declined her proffered instructions on speech protected by the Indiana Constitution. 56 One instruction included the constitutional text and the two-step analysis in Price, requiring the jury to determine (1) whether the State restricted Snell' s expressive activity and (2) whether her activity was an abuse of the right. 57 The other instruction defined expressive activity, using language from the constitution and Price, and defined restriction on expressive activity, also drawing on Price. 5* The trial court declined the instruction, at least in part because the trial court concluded that the expressive activity likely constituted an abuse under section 9. 59 Taking much of its approach from Price, the Indiana Court of Appeals decided that the trial court should have given the instructions because they correctly stated the law and there was evidence in the record that supported giving the instructions. 60 The court stated that "Snell' s restricted expressive activity was political in nature, as her speech was an expression of her disagreement regarding the police actions" toward her friend. 61 The comments were "directed to the legality and appropriateness of police conduct. Thus, she was engaged in political expression."62 The court declined the State's invitation to conclude that Snell would have been convicted even if the instructions had been given. 63 A case currently under consideration by the Indiana Supreme Court may shed additional light on its view of what expression is protected by section 9. In A.B. v. Stated a trial court adjudicated a juvenile to be delinquent because of statements she posted about her middle school principal on a web page at myspace.com. 65 The postings included statements criticizing the principal's policy prohibiting body piercings, but it also included considerable profanity and 54. Id. 55. Id. 56. Id. 57. Id. at 396. 58. Id. at 397. 59. Id. 60. Id. at 397-99. The court also decided that an Allen County local rule requiring that instructions be tendered before the first day of trial impermissibly conflicted with Trial Rule 51, which allows instructions to be tendered after the close of evidence. Id. at 399-401 . Thus, the local rule was no impediment to Snell' s proffered instructions, which were tendered after the time allowed by the local rule. Id. 61. Mat 398. 62. Id. 63. Id. at 399. 64. 863 N.E.2d 1212 (Ind. Ct. App.), vacated, 878 N.E.2d 212 (Ind. 2007). 65. Id. at 1214. 2008] CONSTITUTIONAL LAW 929 the statement "die . . . gobert . . . die" directed at the principal. 66 The court of appeals' s opinion indicated that access to at least some portions of the web page was limited to those allowed by the web page's owner, and the principal had to obtain assistance to get access. 67 The Indiana Court of Appeals vacated the juvenile adjudication, finding that the State restricted A.B.'s expressive rights and that her expression was not an "abuse" because "her overall message constitutes political speech. Addressing a state actor, the thrust of A.B.'s expression focuses on explicitly opposing [the principal's] action in enforcing a certain school policy." 68 By granting transfer, the Indiana Supreme Court vacated the court of appeals' s decision described in the preceding paragraphs. 69 The supreme court' s eventual opinion might shed further light on its view of section 9. B. Education The Indiana Court of Appeals examined the right to public education in Indiana State Board ofEducation v. Brownsburg Community School Corp. 10 A family that homeschooled its children sought to place their children in a small number ofclasses in the Brownsburg schools. 71 The school corporation declined, citing its rule that students (other than special education students) could not enroll in fewer than six courses. 72 The family appealed to the State Board of Education, which ordered Brownsburg to accept the students for the small number of classes they wanted.73 On judicial review of the State Board of Education's decision, the Indiana Court ofAppeals determined that the school's policy declining to enroll students who were homeschooled or enrolled in private schools in fewer than six classes did not violate article VIII of the Indiana Constitution. 74 The court relied in part on the "Home Rule" statute for schools, which creates a presumption in favor of a school board's authority. 75 Moreover, the court found, the school's policy did not violate the putative students' right to a public education under article VIII. 76 The students could have availed themselves of a public education had they taken 66. Id. at 1214-15. 67. Id. at 1214. 68. Id. at 1218. 69. 878N.E.2d212;s«?lND.AFP.R. 58. 70. 865 N.E.2d 660 (Ind. Ct. App. 2007). 71. Id. at 662. 72. Id. 13. Id. 74. Id. at 669. The provision of article VIII at issue in the case was the portion of section 1 commanding the General Assembly to set up a uniform system ofcommon schools, "wherein tuition shall be without charge, and equally open to all." IND. CONST, art. VIII, § 1 . 75. Brownsburg Cmty. Sch. Corp., 865 N.E.2d at 666 (citing IND. CODE § 20-5-1.5-1 (1989) (amended and recodified IND. CODE § 20-26-3-1 (2007)). 76. Mat 668. 930 INDIANA LAW REVIEW [Vol. 4 1 :923 77 additional courses at Brownsburg in compliance with the school's policy. C. Jury Trial Indiana's appellate courts examined the right to jury trial in three cases during the survey period. In Fuller v. State™ the court of appeals affirmed a conviction that raised constitutional issues relating to the jury rules adopted by the Indiana Supreme Court in 2005. 79 The jury rules allow jurors to discuss a case among themselves before all evidence is in, so long as they do so as a group and reserve judgment about the outcome of the case until all the evidence is in. 80 The rules also allow jurors to ask questions, although the questions are first vetted by the trial court. 81 The defendant argued that these rules denied him an impartial jury under article I, section 13 and deprived him of due process.82 The Indiana Court of Appeals rejected these arguments. 83 Fuller failed to convince the court that allowing the jurors to discuss the case before the trial was completed interfered with his right to an impartial jury. 84 In Jackson v. State, the Indiana Supreme Court looked at the consequences of a defendant's absence at trial. 85 Jackson appeared at pretrial proceedings both with a lawyer and after he discharged the lawyer. 86 He received in open court a court order stating his trial date. 87 He was convicted in absentia when neither he nor any lawyer appeared on that date. 88 He then moved for a new trial, indicating that his lawyer "led him to believe" there was no trial date.89 Although the trial court denied his motion, the court of appeals vacated his conviction because it found there was no showing that Jackson knowingly waived his right to counsel. 90 The supreme court disagreed, holding that Jackson waived his right to be present at trial. 91 Because he had been informed of his trial date, the court concluded that his waiver of the right to be present was knowing and voluntary, even though Jackson had made clear to the trial court at a pretrial conference that 77. Id. 78. 852 N.E.2d 22 (Ind. Ct. App.), trans, denied, 860 N.E.2d 594 (Ind. 2006). 79. Mat 26. 80. Id. at 24 (citing Ind. Jury R. 20). 81. Id. 82. Id. at 24-25. 83. Id. at 25. 84. Id. 85. 868 N.E.2d 494 (Ind. 2007). 86. Id. at 496. 87. Id. 88. Id. at 497. 89. Id. 90. Id. 91. Mat 498. 2008] CONSTITUTIONAL LAW 931 he was having difficulty securing counsel. 92 Although Jackson had been informed of his right to appointed counsel if he was indigent, Jackson never invoked that right. 93 Although Jackson was not specifically warned of the dangers of self-representation, the court found such warnings irrelevant because Jackson never indicated that he intended to represent himself at trial. 94 The Indiana Supreme Court therefore affirmed the conviction. 95 Justice Rucker dissented in Jackson because he believed Jackson should have been warned of the dangers of proceeding without counsel. 96 Jackson told the court he wanted to discharge counsel, and he indicated that he would hire new counsel, so he was not warned regarding self-representation. 97 Under those circumstances, Justice Rucker concluded, Jackson's waiver of his right to be present at trial could not have been knowing and voluntary. 98 The Indiana Court of Appeals also upheld an in absentia conviction in Holtz v. State," where Holtz did not appear for trial even after he was informed of his trial date in open court. 100 Although the trial court told Holtz that his trial could go forward even if he did not appear, he failed to appear and he offered no explanation of his absence. 101 Holtz' s counsel did appear at trial, yet Holtz alleged ineffective assistance as a basis for reversing his conviction. 102 The court found that any failure of counsel to object to evidence (the ineffectiveness that was alleged) was harmless, as the evidence that could have been objected to was cumulative. 103 The court therefore affirmed the in absentia conviction. 104 D. Sentencing During the survey period, Indiana's appellate courts continued to exercise their authority under article VII, section 4 to review and revise criminal sentences. 105 The survey article on developments in criminal law discusses these 92. id. 93. Mat 499. 94. Id. at 500. 95. Id. at 501. 96. Id. at 501-02. 97. Id. at 502. 98. Id. 99. 858 N.E.2d 1059 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d 452 (Ind. 2007). 100. Id. at 1060-61. 101. Id. at 1062. 102. Mat 1063. 103. Id. at 1064. 104. Id. 105. Ind. Const, art. VII, § 4 states, in relevant part, "The Supreme Court shall have, in all appeals of criminal cases, the power to review all questions of law and to review and revise the sentence imposed." The Indiana Court of Appeals has the power to review and revise sentences under Indiana Appellate Rule 7. 932 INDIANA LAW REVIEW [Vol. 41 :923 cases at length. 106 This Article describes only one, the Indiana Supreme Court's opinion in Anglemyer v. State} 01 Anglemyer arose in the aftermath of Indiana's 2005 legislative change in sentencing procedures. 108 Before the legislative change, Indiana's statutes required judges to sentence within a statutory range and created a presumptive sentence for each class of crime. 109 A sentencing judge could issue a sentence within the range, but had to provide reasons for departing from the presumptive sentence. 110 After the statutory change, the statutory ranges remained in effect but the presumptive terms were abolished in favor of "advisory sentences," which are the same length as the former presumptive sentences. 111 These changes responded to U.S. Supreme Court rulings indicating that presumptive-sentencing arrangements, such as Indiana's former statute, violated the Sixth Amendment because they required judges (rather than juries) to find facts that could enhance penalties. 112 The Indiana legislature amended the statute again in 2007, but the change was not substantive, and that amendment was not at issue in Anglemyer.m In Anglemyer, the Indiana Supreme Court ruled that trial judges still were required to issue sentencing statements, even after presumptive sentences were abolished, to allow appellate courts to effectively exercise their responsibility to review sentences on appeal. 114 Sentencing statements, the court said, guard against "arbitrary and capricious sentencing" and provide a "basis for appellate review" of sentences. 115 They also assist the "defendant and the public [to] understand why a particular sentence was imposed." 116 The court also ruled that if a sentencing statement identifies any mitigating or aggravating circumstances, it must fully identify and explain all such circumstances and explain why each is either mitigating or aggravating. 117 E. Proportionality Clause The survey period saw an increase in reported decisions applying the proportionality clause in article I, section 16 of the Indiana Constitution. Providing rights beyond those in the U.S. Constitution, section 16 states that in 106. JoelM. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 41 IND. L. Rev. 955, 960-73 (2008). 107. 868 N.E.2d 482 (Ind.), aff'd on reh'g, 875 N.E.2d 218 (Ind. 2007). 108. Id. at 484. 109. Id. at 485-86 (citing Ind. CODE § 35-50-2-3 to -7 (West Supp. 1977)). 110. Id. at 486. 111. Id. at 487-88 (citing IND. CODE § 35-50-2-3 to -7 (Supp. 2007)). 112. See Smylie v. State, 823 N.E.2d 679, 682-90 (Ind. 2005) (applying Blakely v. Washington, 542 U.S. 296 (2004)). 113. Ind. Code § 35-50-2-3 (Supp. 2007). 114. Anglemyer, 868 N.E.2d at 490. 115. Id. at 489. 116. Id. 117. Id. at 491. 2008] CONSTITUTIONAL LAW 933 criminal matters "[a] 11 penalties shall be proportioned to the nature of the offense." 1 18 In Foreman v. State, 119 the defendant claimed that the penalty for the crime with which he was charged, disclosure of confidential information related to the lottery, violated the proportionality clause. 120 The lottery-related crime is a Class A felony and thus in the highest class of felonies, along with homicides and violent crimes. 121 Foreman claimed that this classification was disproportionate and that his crime should be commensurate with other fraud crimes. 122 The Indiana Court of Appeals noted that classification of crimes is primarily a legislative responsibility. 123 The court rejected the proportionality challenge, reasoning that the legislature could reasonably categorize the lottery-related crime as a Class A felony because it had multiple victims. 124 The crime with which Foreman was charged, disclosing secret lottery information to give a lottery player an advantage over others, undermines confidence in the lottery. 125 Revenue from the lottery goes to the teachers' retirement fund, police and firefighter pensions, tuition support, school technology, and local construction projects. 126 All these ventures would suffer if confidence in the lottery were undermined, justifying the harsher treatment of the lottery-related fraud. 127 The court of appeals also applied the clause in Poling v. State™ in which the defendant was convicted of three counts of neglect of a dependent for severe mistreatment of her children. 129 The defendant argued that the statute was unconstitutionally vague. 130 The court determined that the provision enhancing the crime from a D to a C felony for "unusual" confinement of a child permitted a defendant to be convicted ofeither class of felony for the same conduct because it was impossible to determine what confinement was "unusual." 131 This problem, the court concluded, violated the proportionality clause because a defendant could be convicted of a C felony (with its longer sentence) for the same conduct that supported conviction of a D felony. 132 The court required Poling to be resentenced for the D felony, and its opinion effectively found the 118. Ind. Const, art. I, § 16. 1 19. 865 N.E.2d 652 (Ind. Ct. App.), trans, denied, 878 N.E.2d 209 (Ind. 2007). 120. Id. at 653. 121. Id. at 655 (citing IND. CODE ANN. § 4-30-14-4 (West 2002)). 122. Id. at 656. 123. Id. at 655. 124. Id. at 657. 125. Id. at 658. 126. Id. at 657. 127. Id. at 658-59. 128. 853 N.E.2d 1270 (Ind. Ct. App. 2006). 129. Id. at 1272-74. 130. Id. at 1274. 131. Id. at 1276. 132. Id. sit 1211. 934 INDIANA LAW REVIEW [Vol. 41 :923 C felony provision facially unconstitutional. 133 F. Search and Seizure 134 During the survey period, Indiana's appellate courts continued to adjudicate search and seizure claims under article I, section 11, which, although it contains language almost identical to the Fourth Amendment, has been interpreted to convey greater protections than the Fourth Amendment. There were no groundbreaking section 1 1 cases during the survey period, but the contours of section 1 1 continued to develop through case law. The Indiana Supreme Court produced two noteworthy section 11 cases during the survey period. In Grier v. Stated 5 the defendant sought to suppress evidence in the form of cocaine, which the police had preserved by applying a choke-hold on Grier when he tried to swallow it. 136 The court, in a unanimous opinion by Justice Dickson, indicated that section 11 analysis involves a balancing between individuals' privacy interests and society ' s interest in "safety, security, and protection." 137 The court previously explained this balancing in Litchfield v. State™ which directed lower courts applying section 1 1 to balance the likelihood that a violation of law had occurred against the degree of intrusion the search would impose on a citizen's ordinary activities and law enforcement's needs. 139 In this case, the court formulated a general rule that "the application of force to a detainee's throat to prevent swallowing of suspected contraband violates the 133. Id. 134. The Indiana appellate courts produced dozens of opinions analyzing search and seizure issues under the Indiana Constitution during the survey period, and deciding which to include in this survey is an exercise in judgment. Among those not featured in the text of this Article are State v. Lucas, 859 N.E.2d 1244, 1246 (Ind. Ct. App.) (affirming suppression of contents of locked box found in inventory search ofautomobile, under Indiana Constitution; officers should have obtained warrant to open box), trans, denied, 878 N.E.2d 204 (Ind. 2007); Davis v. State, 858 N.E.2d 168, 173 (Ind. Ct. App. 2006) (officer's investigatory stop of vehicle was unreasonable where only "suspicious" activity was that vehicle parked for several minutes at gas station that was known locus of criminal activity); Jones v. State, 856 N.E.2d 758, 763 (Ind. Ct. App. 2006) (inventory search in connection with impoundment of vehicle was reasonable under Indiana Constitution where leaving car on busy highway shoulder was dangerous), trans, denied, 869 N.E.2d 446 (Ind. 2007); and Baird v. State, 854 N.E.2d 398, 405 (Ind. Ct. App.) (officers' entry onto private property was reasonable under Indiana Constitution when they were investigating visible indications of an explosion and fire, and evidence of methamphetamine lab found on property did not have to be suppressed), trans, denied, 860 N.E.2d 597 (Ind. 2006). 135. 868 N.E.2d 443 (Ind. 2007). 136. Id. at 444. 137. Id. 1 38. 824 N.E.2d 356 (Ind. 2005). 139. Id. at 364. 2008] CONSTITUTIONAL LAW 935 constitutional prohibitions against unreasonable search and seizure." 140 In such situations, police could detain the individual until the drugs passed through his system or were absorbed into his blood stream so that the evidence could be obtained in a less harmful or violent manner. 141 The court concluded that the evidence should have been suppressed. 142 The Indiana Supreme Court's other section 1 1 case was Clarke v. State, 143 in which the court held that a police officer who stops an individual to ask questions, and who neither implicitly nor explicitly communicates that the individual is free to go, is not required to provide advisement of rights under section 1 1 or the Fourth Amendment before questioning the person the officer has stopped. 144 In Clarke, an officer investigating a report of drug sales talked with Clarke, who was in a car, asking him if there was anything illegal in the car and asking for (and obtaining) his permission to search it. 145 The officer found marijuana and large quantities of cash during the search. 146 A drug-sniffing dog found cocaine in the car. 147 Clarke challenged the search on state and federal constitutional grounds, seeking pretrial suppression. 148 The Indiana Supreme Court found no Fourth Amendment violation because Clarke consented to a search and the officer neither implicitly nor explicitly indicated that Clarke was required to consent. 149 On the state constitutional claim, the court determined that Clarke was not in custody when he was asked for consent to search (again because the officer did not indicate to Clarke that he was required to consent). 150 "Clarke's encounter with [the officer] involved neither suggestions that he should cooperate, nor the implication of adverse consequences for noncooperation, nor any suggestion that he was not free to go about his business." 151 Clarke (and other cases during the survey period, discussed below) implicate Pirtle v. State, 152 the 1975 case establishing that section 1 1 requires a person in custody to explicitly waive the right to counsel before consent to search is valid. 153 Pirtle is another example of rights under the Indiana Constitution more extensive than those under the U.S. Constitution. The Indiana Supreme Court found no Pirtle violation in Clarke because Clarke had not been seized and was 140. Grier, 868 N.E.2d at 445. 141. Id. 142. Id. 143. 868 N.E.2d 1114 (Ind. 2007) 144. Id. at 1116. 145. Id. at 1116-17. 146. Id. at 1117. 147. Id. 148. Id. 149. Mat 1119. 150. Id. at 1120. 151. Id. 152. 323 N.E.2d 634 (Ind. 1975). 153. Id. at 638. 936 INDIANA LAW REVIEW [Vol. 41 :923 not in custody when he was asked for consent to search the car. 154 Justice Rucker dissented in Clarke. 155 He concluded that Clarke was in fact seized by the officer so that Clarke had to explicitly waive the right to counsel, as Pirtle requires, before he could validly consent to a search. 156 After initially questioning Clarke, the officer did not inform him he was free to leave, and she repeated her request to search the car. 157 "At this point," Justice Rucker wrote, "I am convinced that no Hoosier could reasonably assume that he or she could simply walk away." 158 Justice Rucker indicated that the Pirtle analysis should be: "whether the person is entitled to disregard police questioning and walk away. If not, then the person must be informed of the right to consult with counsel about the possibility of consenting to a search. Otherwise no valid consent can be given." 159 The Indiana Court of Appeals also looked at rights under Pirtle in two cases. In Peel v. State, m the court examined a situation in which police were called to a hotel because an odor of marijuana was emanating from a room. 161 Police required the occupants of the room to go into a hallway; they were not arrested, but the police admitted they were not "free to wander off." 162 The occupants gave police permission to search the room, and the police found marijuana. 163 The court found the search unconstitutional and suppressed the results because police did not explicitly warn the occupants of their right to counsel before asking their permission to search. 164 The occupants were entitled to this warning under Pirtle because they were in custody. 165 Although neither handcuffed nor formally placed under arrest, they had admitted wrongdoing and were not free to go. 166 In such circumstances, the occupants were in custody and had to receive Pirtle warnings before being asked to consent to a search. 167 Similarly, in Friend v. State? 6 * the court of appeals concluded that amphetamine found in an automobile search had to be suppressed for lack of Pirtle warnings. 169 Friend was stopped for speeding, and the officer found he had 154. Clarke, 868 N.E.2d at 1 120. 155. Id. at 1121 (Rucker, J., dissenting). 156. Id. at 1122. 157. Id. at 1121-22. 158. Id. at 1122. 159. Id. at 1123. 160. 868 N.E.2d 569 (Ind. Ct. App. 2007). 161. Id. at 572. 162. Id. at 573. 163. Id. 164. Id. at 577. The court also addressed an issue of which occupants had authority to consent to search. Id. at 575-79. That issue is not relevant to the constitutional analysis. 165. Id. at 577-78. 166. Id. 2X511. 167. Id. at 577-78. 168. 858 N.E.2d 646 (Ind. Ct. App. 2006). 169. Id. at 651. 2008] CONSTITUTIONAL LAW 937 no valid driver's license. 170 Friend was "nervous [and] agitated," so the officer handcuffed him, although the officer stated he was not under arrest. 171 The officer asked Friend for permission to search his car, and after Friend consented the officer found the contraband. 172 Because Friend was in custody, he had to be given the Pirtle advisement before he could validly consent to the search. 173 The Indiana Court of Appeals revisited the topic of trash searches in two cases during the survey period. The court approved trash searches in both Washburn v. State 114 and Eshelman v. State. 115 Trash searches have been litigated frequently under section 1 1 in the last several years and were the subject of Litchfield v. State, the Indiana Supreme Court case refining the standard for evaluating the reasonableness of law enforcement conduct under section ll. 176 In Litchfield, the Indiana Supreme Court ruled that trash searches ordinarily did not intrude significantly into the privacy of the person searched, usually because the person searched had already abandoned the trash to be picked up by public or private haulers. 177 The key issue in applying the Litchfield test in trash searches is therefore the degree of suspicion law enforcement officials possess that a crime has been committed and that the person at whom the search is directed was involved in the crime. 178 In Washburn, the question revolved around the reliability of a tip. 179 The tipster' s reliability was confirmed by one officer, and another officer interviewed the tipster extensively about his background (which included several arrests and convictions) and motives. 180 The court of appeals ruled that the informant was sufficiently reliable to support a trash search because police had investigated his reliability and partially corroborated his statements. 181 Similarly, in Eshelman the court of appeals found informants reliable enough to support the trash search. 182 Two different informants reported that Eshelman was manufacturing methamphetamine, and officers personally interviewed one and determined that he had no reason to fabricate his report. 183 The mutually corroborating reports 170. Id. at 649. 171. Id. 172. Id. 173. Mat 651. 174. Washburn v. State, 868 N.E.2d 594, 596 (Ind. Ct. App.), trans, denied, 878 N.E.2d 219 (Ind. 2007). 175. Eshelman v. State, 859 N.E.2d 744, 745 (Ind. Ct. App.), trans, denied, 869 N.E.2d 450 (Ind. 2007). 176. 824 N.E.2d 356 (Ind. 2005). 177. Id. at 363. 178. Mat 364. 179. Washburn, 868 N.E.2d at 598. 180. Mat 599-600. 181. Mat 600. 182. Eshelman v. State, 859 N.E.2d 744, 748-49 (Ind. Ct. App.), trans, denied, 869 N.E.2d 450 (Ind. 2007). 183. Id. 938 INDIANA LAW REVIEW [Vol. 41 :923 were sufficient to support the search. 184 An otherwise unremarkable decision, Meister v. State, contains a particularly detailed application of the Litchfield analysis. 185 In Meister, an individual was stopped for driving without a license, and the search incident to arrest turned up a white powdery substance in a hollowed-out pen in his pocket. 186 This evidence led officers to search the passenger compartment of the vehicle, which turned up a pill bottle containing what later was found to be methamphetamine. 187 The legality of the vehicle search was litigated in the forfeiture case brought against the arrestee's mother, who owned the vehicle. 188 The Indiana Court of Appeals ruled that the search of the passenger compartment was reasonable under section ll. 189 Applying the first Litchfield factor, the court concluded that searching the passenger compartment was justified because police found evidence of unlawful drugs on the person of the driver when they searched him, and police therefore could associate a high likelihood of crime with the vehicle. 190 As to the second factor, the search was not intrusive on the owner (who was contesting the search) because she was not even present. 191 On the third Litchfield factor, '"extent of law enforcement needs,'" 192 the court stated that because the stop occurred in the evening "prompt access to a magistrate to consider issuance of a warrant may have posed some difficulty." 193 The court balanced these factors to conclude that the search was reasonable. 194 In T.S. v. State? 95 the Indiana Court of Appeals applied section 11 to a seizure of a student in high school. 196 A school police officer received an anonymous report that T.S. had marijuana in his pants pocket. 197 The officer removed T.S. from his gym class and required him to put on his street clothes. 198 When the officer asked T.S. if he had anything he should not have, T.S. removed a bag of marijuana from his pocket; the officer then reached into the pocket and found more marijuana. 199 In a lengthy opinion by Judge Robb, the court of 184. Id. at 749. 185. 864 N.E.2d 1 137 (Ind. Ct. App.), trans, denied, 878 N.E.2d 214 (Ind. 2007). 186. Id. at 1139-40. 187. Id. at 1140. 188. Mat 1140-41. 189. Mat 1146. 190. Id. at 1145. 191. Id. 192. Id. (quoting Lichfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)). 193. Id. 194. Mat 1146. 195. 863 N.E.2d 362 (Ind. Ct. App.), trans, denied, 869 N.E.2d 461 (Ind. 2007). 196. Mat 365. 197. Id. at 366. 198. Id. 199. Id. T.S.'s somewhat different account was that the officer removed his pants from his gym locker and went through the pockets, finding the marijuana. Id. This factual difference 2008] CONSTITUTIONAL LAW 939 appeals first ruled that the seizure of the student was reasonable under the Fourth Amendment, primarily because of the student's reduced expectation of privacy in the school setting and the officer's expressed intent only to take the student to the dean's office (although the officer in fact took the student to the police station). 200 The court's brief Indiana constitutional analysis also concluded that the officer's actions were reasonable. The court stated that there was no indication that the tip on which the officer acted was reliable and that the officer made no effort to corroborate it. 201 But "what makes [the officer's] actions reasonable is not the reliability of the information that caused him to act, but the school setting in which he acted." 202 The court indicated that the student's lowered privacy interest in the school setting, balanced against "'the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds,'" justified the seizure and search. 203 In contrast, the court of appeals invalidated a pretextual traffic stop search and excluded evidence because police went too far in Turner v. State. 204 Police suspected Turner in some burglaries, and an officer followed him one day in hopes of being able to stop him for a violation.205 The officer stopped him for speeding, but did not ticket him. 206 The officer then told Turner he was free to leave, but also asked Turner if he would talk about the burglaries. 207 During that conversation, Turner denied knowledge of the burglaries. 208 The officer then questioned Turner's passenger, who said that Turner kept two guns in his apartment (apparently illegally because of Turner's prior record). 209 This exchange caused Turner to change his mind, and Turner confessed to some of the burglaries. 210 The court of appeals, however, found that the traffic stop violated Turner's rights because the officer who stopped Turner for speeding could not testify to Turner's exact speed or to the speed limit in the area where Turner was stopped. 211 "[T]he stop was not reasonable in light of that and the other circumstances." 212 The other circumstances included the admittedly pretextual nature of the stop and the fact that an officer was following Turner, waiting for probably leads to no different legal conclusion. 200. Id. at 377-78. 201. Mat 378. 202. Id. 203. Id. at 379 (quoting Myers v. State, 839 N.E.2d 1 154, 1 159 (Ind. 2005)). 204. 862 N.E.2d 695, 697 (Ind. Ct. App. 2007). 205. Mat 698. 206. Id. 207. Id. 208. Id. 209. Id. 210. Id. 211. Mat 700. 212. Id. 940 INDIANA LAW REVIEW [Vol. 41 :923 him to violate a traffic law. 213 The court ruled that the evidence arising from the traffic stop, including Turner's confession, had to be suppressed. 214 G. Double Jeopardy Decisions during the survey period continued to apply Indiana's different standard for evaluating one type of double jeopardy — "multiple punishments" double jeopardy arising from a single incident. Indiana's standard, based on article I, section 14, is that two convictions violate this aspect of the guarantee against double jeopardy if there is a reasonable possibility that the facts used by the jury to establish the essential elements of one offense were also used to establish the essential elements of a second offense. 215 The Indiana Supreme Court reaffirmed this analysis in Bradley v. State, in which the court of appeals had misapplied the standard. 216 Bradley was charged with several crimes. He was charged with criminal confinement as a Class B felony for confining an individual by use of a hammer that he used to inflict injury on his victim; he also was charged with aggravated battery as a Class B felony for inflicting serious injury on his victim with the hammer and a knife.217 He was convicted of both charges.218 After examining the charges and jury instructions, the Indiana Supreme Court concluded that it was reasonably possible that the jury used the same evidence—the victim's hammer-inflicted head wound—to convict Bradley ofboth offenses.219 This reasonable possibility leads to the conclusion that the two convictions violate the double jeopardy clause because the jury might have used the same evidence to convict the defendant of two different crimes, and the result is that the battery conviction must be decreased to a D felony, the elements of which were supported without the duplicative evidence. 220 The Indiana Supreme Court and Indiana Court of Appeals applied this analysis in several other cases during the survey year. 221 During the survey 213. Id. 214. Id. at 701-02. 215. See Richardson v. State, 717 N.E.2d 32, 49-50 (Ind. 1999). 2 1 6. 867 N.E.2d 1 282 (Ind. 2007). The court of appeals misapplied the standard by focusing on whether there was a reasonable possibility that the jury focused on different evidentiary facts to convict the defendant of each crime; the proper focus is whether there is a reasonable possibility that the jury used the same evidentiary facts to convict the defendant of each crime. 217. Id. at 1284. 218. Id. at 1283. 219. Id. at 1285. 220. Id. at 1285-86. 22 1 . See, e.g. , Strong v. State, 870 N.E.2d 442, 443 (Ind. 2007) (vacating enhancement to one conviction because enhancement was based on the same conduct that was the subject of a separate conviction); Scott v. State, 859 N.E.2d 749, 753-54 (Ind. Ct. App. 2007) (rejecting doublejeopardy claim because conviction for resisting law enforcement was based on defendant's flight while conviction for attempted battery by use of a deadly weapon was based on separate conduct after 2008] CONSTITUTIONAL LAW 941 period, the court of appeals also found a double jeopardy violation sufficient to support vacating a conviction on application for post-conviction relief.222 To do so, not only must the court find that the constitutional violation existed, but also that it was sufficiently obvious that trial counsel and appellate counsel were ineffective in failing to raise it. In other words, "the doublejeopardy issue [was] significant and obvious from the face of the record and [was] clearly stronger than the issues raised by [the defendant]' s appellate counsel." 223 That Indiana's unique double jeopardy law may support post-conviction relief indicates the appellate courts' view that Indiana double jeopardy analysis is settled law that should be familiar to and used by all criminal defense counsel. In another example, the court of appeals rejected a doublejeopardy challenge in McElroy v. State, 124, in which the defendant was convicted of operating a vehicle with a 0. 10 blood alcohol content causing death and also of failure to stop after an accident causing death. 225 The court concluded that these convictions were based on two separate acts (and therefore were not proved by the same evidence) because operating the vehicle to cause death was a different act than fleeing the scene after causing death. 226 While the same evidence (the victim's death) was used to enhance each conviction, the court did not remove the enhancement from either conviction because the enhancement for the failure to stop offense was not based on the defendant's conduct. 227 Rather, it was based on the circumstance of the prior accident and "represented] a policy decision by our legislature that failing to stop after an accident resulting in death is itself a very serious crime completely separate from whether the defendant caused the victim's death." 228 This approach appears to be in tension with Justice Sullivan' s statement in Richardson v. State, which indicated that Indiana's double jeopardy principles are violated when a person is convicted and punished "for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished." 229 Justice Sullivan's taxonomy of double jeopardy categories has been widely accepted and applied, defendant reached his home); Richardson v. State, 856 N.E.2d 1222, 1230 (Ind. Ct. App. 2006) (vacating conviction for possessing methamphetamine because it was a lesser included offense of dealing in methamphetamine, of which defendant also was convicted), trans, denied, 869 N.E.2d 448 (Ind. 2007); Scott v. State, 855 N.E.2d 1068, 1074 (Ind. Ct. App. 2006) (vacating enhancement of one conviction because it was based on the same conduct that was used to enhance another conviction). 222. McCann v. State, 854 N.E.2d 905, 915 (Ind. Ct. App. 2006), habeas corpus dismissed, McLann v. Buss, No. l:07-cv-175-SEB-TAB, 2007 WL 1724905 (S.D. Ind. June 12, 2007). 223. Id. 224. 864 N.E.2d 392 (Ind. Ct. App.), trans, denied, 878 N.E.2d 204 (Ind. 2007). 225. Id. at 394. 226. /