Appellate court adopts new-crime exception, partially reverses for motorist who wasn’t read Miranda rights

A motorist who denied hitting a police officer’s car but who offered the officer money to pay for the damages won a partial reversal after the Court of Appeals of Indiana found he was subject to custodial interrogation without being given Miranda warnings. But the COA did not allow the suppression of the alleged bribery based on the federal new-crime exception.

While sitting in an undercover cop car in Indianapolis, Detective De’Joure Mercer of the Indianapolis Metropolitan Police Department allegedly witnessed a motorcyclist strike his vehicle with a fist, “breaking [his] side view mirror.”

Mercer followed the motorist, who kept driving, to Interstate 74 East near Shelbyville. Mercer radioed for assistance and IMPD Officer Joseph Doucleff responded, pulling over motorist Dylan Theobald, who was driving at least 100 miles per hour.

Doucleff’s body camera footage showed him approaching Theobald and asking if he knew why he was being pulled over, to which Theobald said “yes.” Mercer, who arrived “seconds” after Doucleff, also walked up and said Theobald had hit his vehicle and that he had been following Theobald since the incident, but it wasn’t “a big deal.”

According to the bodycam footage, Theobald said he didn’t know what Mercer was talking about and that “it wasn’t [him].” Theobald was then handcuffed for a “hit and run.”

Theobald continued to maintain he didn’t hit Mercer’s side mirror, and Mercer repeated that he just wanted Theobald to “admit” that he had so the officer could fill out an accident report, at which point Theobald would be “on his way.”

When Theobald repeated that he didn’t hit the mirror and asked if he was “free to go,” Mercer said no. The officer also said he couldn’t believe Theobald would choose to go to jail when he could instead admit to hitting his side mirror, which was “not a big deal.”

While still continuing to deny hitting the mirror, Theobald said something unintelligible on the footage followed by, “I’d pay, I’d give you a hundred dollars in my pocket right now.”

Theobald, who was never given his Miranda warnings, was later charged with Level 5 felony bribery, Class B misdemeanor criminal mischief, Class C misdemeanor reckless driving and Class C misdemeanor violation of driving conditions.

He moved to suppress two statements he made at the scene of the stop because he was subject to custodial interrogation without being given Miranda warnings: his explanation of where he was driving and his offer to pay Mercer $100

The Marion Superior Court denied his motion, but the Court of Appeals of Indiana in an interlocutory appeal partially reversed in Dylan Noel Theobald v. State of Indiana, 21A-CR-2746.

The COA disagreed with the state, concluding that Theobald was in custody — handcuffed on the side of the interstate for roughly 45 minutes and told he was not free to leave — and that he was subject to interrogation.

“Detective Mercer gave Theobald two options: admit to hitting his side mirror or go to jail,” Judge Nancy Vaidik wrote. “In other words, Theobald could admit to a crime or go to jail. Under these circumstances, Detective Mercer’s statements and actions were reasonably likely to elicit an incriminating response.”

The appellate court then explicitly adopted the federal new-crime exception to the Miranda exclusionary rule and held that “a statement made by a person who is subject to custodial interrogation but not given Miranda warnings is still admissible if the statement itself is evidence of a new crime (such as bribery or a threat.)”

“… While Theobald might have a convincing argument that he was offering to pay for the damage to Detective Mercer’s car rather than bribing him (especially depending on what Theobald said during the unintelligible part of the footage), the State can present evidence of Theobald’s statement in prosecuting him for bribery,” Vaidik wrote. “Whether the trier of fact finds Theobald guilty of bribery is another matter.”

As such, the COA reversed the trial court’s denial of Theobald’s motion to suppress his statement about where he was driving but affirmed the motion to suppress his offer to pay $100 under the new-crime exception.

The case was remanded.

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