text:
    The CHICAGO TRANSIT AUTHORITY, Plaintiff-Appellant, v. AMALGAMATED TRANSIT UNION LOCAL 308, Defendant-Appellee.
    Nos. 1-17-0702 & 1-17-1851 (consolidated)
    Appellate Court of Illinois, First District, Fifth Division.
    Opinion filed June 15, 2018
    Jackson Lewis P.C., of Chicago (James P. Daley, David M. Novak, and James D. Thomas, of counsel), for appellant.
    Anita Tanay and Brandon Anderson, of Jacobs, Burns, Orlove & Hernandez, of Chicago, for appellee.
   JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 Two arbitration awards issued in 2016 found that the Chicago Transit Authority (CTA) had violated its collective bargaining agreement with the Amalgamated Transit Union Local 308 (ATU) when the CTA unilaterally implemented rules that directly affected certain rights of the workers concerning their schedule choices and work hours. Thereafter, the circuit court denied the CTA's petitions to vacate the arbitration awards.

¶ 2 On appeal, the CTA argues that the arbitration awards should be vacated because (1) they are contrary to the well-established Illinois public policy requiring the CTA to provide safe mass transportation to the riding public or (2) the arbitrators usurped the CTA's nondelegable statutory right and duty to provide safe mass transportation to the riding public.

¶ 3 For the reasons that follow, we affirm the judgments of the circuit court that affirmed the arbitration awards.

¶ 4 I. BACKGROUND

¶ 5 This appeal arises from a dispute between the CTA and the ATU over the CTA's unilateral implementation of several new rules following the 2014 derailment of a CTA train at the end of the Blue Line at the station at O'Hare International Airport. Specifically, the train, which was operated by an employee represented by the ATU, overran the bumper at the O'Hare station and partially ascended the escalator leading to the airport. Approximately 30 people claimed injuries. The CTA concluded that operator fatigue caused the derailment and implemented several operational changes to enhance the overall safety of the CTA's customers and employees. However, the ATU argued that these unilateral operational changes violated the parties' collective bargaining agreement, and it filed grievances and an unfair labor practice charge against the CTA. Two separate arbitration proceedings addressed the unilateral changes imposed by the CTA.

¶ 6 In the first arbitration proceeding, the arbitrator heard the grievances concerning whether the CTA had violated the collective bargaining agreement by, inter alia , (1) requiring a minimum of 10 hours of rest time between shifts for both "picked" and "extra board" work, (2) requiring full-time temporary flaggers (FTTFs) who were qualified to operate trains to pick 32 hours of motor runs per week, and (3) limiting FTTFs and rapid transit operators (RTOs) in their first 12 months of employment to a maximum of 32 hours per week of train operation.

¶ 7 The arbitrator issued an award in June 2016 sustaining the grievances in part and denying the grievances in part. The arbitrator found that, despite the CTA's compelling interest in enhancing operational safety, the CTA had violated specific obligations contained in the plain terms of the collective bargaining agreement. Specifically, when the CTA unilaterally increased the minimum time off between shifts from 8 to 10 hours, this change had a major impact on employees' substantive rights to pick any shift or shifts as long as they had 8 hours between work days. Furthermore, by requiring the FTTFs qualified to operate trains to pick 32 hours of motor runs per week, the CTA had infringed on a contractually protected right that "picking" was to be done by seniority. Finally, by limiting first-year RTOs to 32 hours of train operation per week, the CTA had infringed on their right to exercise their seniority and pick their work assignments and schedules. The arbitrator ordered the CTA to cease and desist enforcement of the rules found to be in violation of the collective bargaining agreement.

¶ 8 The CTA filed a petition to vacate this arbitration award, and the ATU filed a cross-petition to affirm the award. In March 2017, the circuit court confirmed the arbitration award and entered judgment in favor of the ATU.

¶ 9 Meanwhile, in the second arbitration proceeding, another arbitrator heard grievances concerning whether the CTA violated the collective bargaining agreement by (1) limiting rail operations employees to 12 hours of work a day in any 14-hour period and (2) requiring that all rail operations employees work no more than six days within any consecutive seven-day period.

¶ 10 The arbitrator issued an award in October 2016 sustaining the grievances in part and denying the grievances in part. The arbitrator found that the CTA's rule limiting rail operations employees to 12 hours of work a day in any 14-hour period was a clear breach of the collective bargaining agreement. The arbitrator recognized that the CTA had a compelling interest to enhance safety and that the rule was a reasonable attempt to advance this interest; however, the arbitrator concluded that the rule violated the plain language of the collective bargaining agreement. The arbitrator found that the CTA was required to negotiate this change and ordered the CTA to rescind the rule and make all affected employees whole. The matter was remanded to the parties to determine the appropriate remedy.

¶ 11 The CTA filed a petition to vacate this arbitration award, and the ATU filed a cross-petition to affirm the award. In July 2017, the circuit court confirmed the award and entered judgment in favor of the ATU.

¶ 12 The CTA timely appealed the denials of its petitions to vacate, and this court consolidated the appeals on review.

¶ 13 II. ANALYSIS

¶ 14 On appeal, the CTA contends that the arbitration awards should be vacated because they are contrary to a well-established Illinois public policy that requires the CTA to provide safe mass transportation to the riding public. Alternatively, the CTA contends that this dispute was not arbitrable because the CTA has a nondelegable statutory right and duty to provide safe mass transportation to the riding public.

¶ 15 A. The Public Policy Exception

¶ 16 A court's review of an arbitration award is extremely limited, and courts must construe arbitration awards, if possible, as valid. American Federation of State, County & Municipal Employees, AFL-CIO v. State , 124 Ill. 2d 246, 254, 124 Ill.Dec. 553, 529 N.E.2d 534 (1988). Where, as here, the arbitration involved a collective bargaining agreement, a court, consistent with section 12(e) of the Uniform Arbitration Act ( 710 ILCS 5/12(e) (West 2016) ), will disturb the arbitration award only on the common-law grounds that existed prior to the enactment of the Uniform Arbitration Act, i.e. , "instances of fraud, corruption, partiality, misconduct, mistake, or failure to submit the question to arbitration." American Federation of State, County & Municipal Employees, AFL-CIO v. Department of Central Management Services , 173 Ill. 2d 299, 304, 219 Ill.Dec. 501, 671 N.E.2d 668 (1996) ( AFSCME 1996 ).

"The rationale for the limited review of an award interpreting a collective bargaining agreement is that the parties have contracted to have their disputes settled by an arbitrator, rather than by a judge. [Citation.] A labor arbitration award must be enforced if the arbitrator acts within his scope of authority and the award draws its essence from the parties' collective bargaining agreement. [Citation.]
However, a court will vacate the award if it is repugnant to the established norms of public policy. [Citation.] The public policy exception is narrow and its successful invocation requires a clear showing that the award violates some explicit public policy. [Citation.] The contract as interpreted by the arbitrator must violate some explicit public policy that is well-defined and dominant and ascertainable by reference to the laws and legal precedents and not from generalized considerations of supposed public interest. [Citation.] Accordingly, the public policy of a state must be determined by its constitution, laws, and judicial decisions. [Citation.] * * *
To vacate an award under the public policy exception, this court is required to undertake a two-step analysis. The threshold question is whether a well-defined and dominant public policy can be identified. [Citation.] If so, the court must determine whether the arbitrator's award, as reflected in his interpretation of the agreement, violated public policy. [Citation.] As our supreme court has cautioned, although a rote recitation of the exception's two-prong test can be easily made, the exception's ultimate applicability to a case is necessarily fact dependent. [Citation.]" (Internal quotation marks omitted.) Chicago Transit Authority v. Amalgamated Transit Union, Local 241 , 399 Ill. App. 3d 689, 695-96, 339 Ill.Dec. 444, 926 N.E.2d 919 (2010) ( ATU Local 241 ).

The question of whether an award violated public policy is one of law, which we review de novo . City of Des Plaines v. Metropolitan Alliance of Police, Chapter No. 240 , 2015 IL App (1st) 140957, ¶ 20, 391 Ill.Dec. 328, 30 N.E.3d 598.

¶ 17 The CTA does not contend that the arbitrators exceeded their authority or that the awards failed to draw their essence from the collective bargaining agreement. Instead, the CTA argues that this court should vacate the arbitration awards because the awards violate the well-defined and dominant Illinois public policy requiring the CTA to provide safe mass transportation to the public.

¶ 18 The arbitration awards at issue here held that the CTA could not bypass the collective bargaining process and unilaterally impose rules that directly affected certain rights of the workers concerning their schedule choices and work hours. These awards cannot be vacated under the public policy exception unless the CTA

clearly shows that the awards violate an explicit, well-defined, and dominant public policy that is ascertainable by reference to our laws and legal precedents.

¶ 19 The CTA cites the Illinois Constitution and refers to four provisions of its enabling statute, the Metropolitan Transit Authority Act (Transit Act) ( 70 ILCS 3605/1 et seq. (West 2016) ), to show that the awards violate an explicit, well-defined and dominant public policy favoring safe public transit. Specifically, article XIII, section 7, of the Illinois Constitution provides that "[p]ublic transportation is an essential public purpose" and the General Assembly "may provide for, aid, and assist public transportation." Ill. Const. 1970, art. XIII, § 7. Furthermore, section 6 of the Transit Act grants the CTA the "power to acquire, construct, own, operate and maintain for public service a transportation system." 70 ILCS 3605/6 (West 2016). Section 9a(f) of the Transit Act empowers the CTA to cooperate with the Regional Transportation Authority to protect public transit facilities, employees, and users of public transportation facilities from crime and unsafe conditions, and this cooperation could include agreements to coordinate or merge police or security forces. Id. § 9a(f). Section 31 of the Transit Act grants the Chicago Transit Board the power to pass ordinances and make rules and regulations to regulate the use, operation, and maintenance of its property and to assess fines to enforce this power. Id. § 31. Finally, section 53 of the Transit Act requires the Chicago Transit Board to "develop written protocols to respond to medical and sanitation emergencies and to other safety hazards." Id. § 53.

¶ 20 The cited provisions of the Illinois Constitution and Transit Act do not show a well-defined public policy regarding the safety of transit workers' scheduling options or work hours. Rather, these provisions show merely a broad and general interest in safe public transit, which is not sufficient to successfully invoke the public policy exception to vacate the arbitration awards as repugnant to an explicit, well-defined, and dominant public policy. There is no law or legal precedent specifically directing that a transit authority must control the schedules and work hours of transit employees to provide safe public transit, and the CTA cannot show a well-defined and dominant public policy that prevents collective bargaining of the type of scheduling and work hour matters at issue here. To the contrary, an explicit, well-defined, and dominant public policy supports the collective bargaining process between transit authorities and transit workers. This public policy favoring collective bargaining is ascertainable by provisions of the Transit Act and the Illinois Public Labor Relations Act ( 5 ILCS 315/1 et seq. (West 2012) ) that expressly allow or require employers and employees to collectively bargain over matters directly affecting wages, hours, and terms and conditions of employment. 70 ILCS 3605/28a (West 2016) ; 5 ILCS 315/4 (West 2012).

¶ 21 Furthermore, our judicial decisions have recognized an " 'underlying public policy in favor of resolving collective bargaining disputes by arbitration.' " Department of Central Management Services v. American Federation of State, County, and Municipal Employees (AFSCME), AFL-CIO , 222 Ill. App. 3d 678, 686, 165 Ill.Dec. 138, 584 N.E.2d 317 (1991) (quoting Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600, AFT, AFL/CIO , 74 Ill. 2d 412, 424, 24 Ill.Dec. 843, 386 N.E.2d 47 (1979) ( College Teachers Union Local 1600 ) ); see also California Brewers Ass'n v. Bryant , 444 U.S. 598, 608, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980) (referring to "this Nation's longstanding labor policy of leaving to the chosen representatives of employers and employees the freedom through collective bargaining to establish conditions of employment").

¶ 22 The CTA cites Carlson v. Chicago Transit Authority , 2014 IL App (1st) 122463, 381 Ill.Dec. 341, 10 N.E.3d 426, and ATU Local 241 , 399 Ill. App. 3d 689, 339 Ill.Dec. 444, 926 N.E.2d 919, to support its argument that the awards violated a well-defined public policy. The CTA's reliance on these cases, however, is unavailing. In Carlson , a bus passenger sustained injuries when the bus driver stopped suddenly to avoid a collision with a vehicle that cut into the traffic lane in front of the bus. This court addressed, in the context of a personal injury action, the duty of care a common carrier owes its passengers to exercise the highest degree of care consistent with the practical operations of its conveyances. Carlson , 2014 IL App (1st) 122463, ¶ 24, 381 Ill.Dec. 341, 10 N.E.3d 426. Carlson , which made no reference to collective bargaining or public employee labor law, simply referred to a general public policy favoring safe public mass transit.

¶ 23 In ATU Local 241 , the CTA discharged a bus driver after the CTA discovered that he had been convicted of aggravated criminal sexual abuse of a minor who was a family member. ATU Local 241 , 399 Ill. App. 3d at 690, 339 Ill.Dec. 444, 926 N.E.2d 919. The union filed a grievance on the driver's behalf, and an arbitrator ordered that the driver be reinstated. Id. at 695, 339 Ill.Dec. 444, 926 N.E.2d 919. The evidence at the arbitration hearing showed that the driver told his therapist he had engaged in sexual acts with the victim on countless occasions, failed to complete the sex offender treatment program, and failed several polygraphs concerning his sexual behavior before finally passing a polygraph several years after he left the treatment program. Id. at 690-95, 339 Ill.Dec. 444, 926 N.E.2d 919. In addition, the driver failed to advise the CTA that he was serving a four-year probation term and was a registered sex offender, and this court believed that he inevitably violated the terms of his probation during his employment with the CTA by being alone with an unaccompanied minor. Id. at 699, 339 Ill.Dec. 444, 926 N.E.2d 919. On review, this court vacated the arbitration award because it violated well-defined and dominant public policies derived from specific statutes, including the criminal code, about protecting children from potential sexual predators on public transportation and protecting the public from convicted sex offenders. Id. at 697-98, 339 Ill.Dec. 444, 926 N.E.2d 919. Unlike the situation in ATU Local 241 , there are no specific statutory provisions in the instant case to support the existence of a public policy favoring a public employer's unilateral control over matters of work conditions and hours to increase the safety of public mass transit. As discussed above, the CTA's references to the Illinois Constitution and the Transit Act show merely a general public policy favoring safe public transit. Furthermore, whereas the dispute in ATU Local 241 concerned the reinstatement of a worker discharged by the CTA for misconduct, the instant case presents a dispute of an entirely different nature, i.e. , the CTA's unilateral implementation of rules that restrict the bargained-for rights of many workers. In addition, the work hour and schedule choice conduct at issue here does not remotely approach the heinous conduct at issue in ATU Local 241 .

¶ 24 Even assuming the CTA met the first prong of the public policy exception to clearly show an explicit, well-defined, and dominant public policy favoring the implementation of rules limiting the work hours and schedule choices of transit workers to promote safe public transportation, the CTA must also satisfy the second prong of the exception-that the arbitration awards themselves, not the underlying actions leading to the grievances, violate such a policy. See Eastern Associated Coal Corp. v. United Mine Workers of America, District 17 , 531 U.S. 57, 63, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000) ; AFSCME 1996 , 173 Ill. 2d at 308, 219 Ill.Dec. 501, 671 N.E.2d 668. Specifically, the CTA must show that the arbitration awards, by requiring the CTA to engage in collective bargaining and refrain from unilaterally imposing rules that directly affect the workers' rights concerning schedule choices and work hours, run contrary to an explicit, well-defined, and dominant public policy favoring safe public transit.

¶ 25 The CTA asserts that there "can be no doubt" that the arbitration awards violated the public policy favoring safe public mass transit by the CTA because (1) common sense and the expert testimony presented by the CTA-about the safety standards adopted by public agencies in industries similar to mass transit-establish that the risk of employee fatigue will increase if the CTA is forced to reinstate the methods of operation that were in effect prior to the CTA's unilateral rule changes and (2) subjecting the CTA's unilateral rule changes to the collective bargaining process prevents the CTA "from taking effective and practicable action to fulfill its duty to provide safe public mass transportation." The CTA complains that its collective bargaining agreement is a "shackle that strangles [its] efforts to introduce effective safety measures" and "emasculate[s] out of existence" the CTA's management right "to operate its property according to its best judgment and the orders of competent authority."

¶ 26 The CTA's arguments lack merit. In rendering the awards, the arbitrators did not dispute that the CTA was attempting to improve the safety of its operation when it imposed the new restrictions on the workers' schedules and hours. The arbitrators simply interpreted the collective bargaining agreement to require the CTA to engage in the collective bargaining process and refrain from implementing the new restrictions unilaterally. As discussed above, the statutory provisions of the Transit Act and Illinois Public Labor Relations Act clearly show a well-defined public policy favoring collective bargaining for matters that directly affect wages, hours, and the terms and conditions of employment. We conclude that the arbitration awards requiring the parties to negotiate the proposed rule changes do not violate a public policy favoring safe public transportation. Accordingly we deny the CTA's request to vacate the awards under the public policy exception.

¶ 27 B. Whether the Dispute Involved a Nondelegable Power

¶ 28 In the alternative, the CTA argues that the arbitration awards should be vacated based on the legal principle of nondelegability of public authority, which provides that a dispute "is not arbitrable if it would constitute an impermissible delegation of discretionary public responsibility specifically reposed by law in" a public body such as the CTA. College Teachers Union Local 1600 , 74 Ill. 2d at 420, 24 Ill.Dec. 843, 386 N.E.2d 47 ; see also Parisi v. Jenkins , 236 Ill. App. 3d 42, 52, 177 Ill.Dec. 496, 603 N.E.2d 566 (1992) (the police board's statutory power to determine cause for dismissal and terminate employees was an integral duty and function of the board and could not be abrogated by a collective bargaining agreement); Board of Trustees of Junior College District No. 508 v. Cook County College Teachers Union, Local 1600 , 87 Ill. App. 3d 246, 250-51, 42 Ill.Dec. 317, 408 N.E.2d 1026 (1980) (where the pertinent statute vested the school board with all powers proper for the maintenance, operation, and development of any college and the collective bargaining agreement reserved to the school board the duty to determine the qualifications and assignments of the faculty members, that duty, which required educational expertise, could not be delegated to an arbitrator and thus was not subject to arbitration).

¶ 29 The CTA contends that the arbitrators did not have jurisdiction to limit its nondelegable power to provide safe mass transit, this power includes the authority to limit the hours train operators can work, and the CTA could not bargain this duty away to the ATU regardless of any collective bargaining agreement. The CTA asserts that safety is integral to public mass transit and this responsibility should not be turned over to or shared with arbitrators or labor unions because they have no expertise in safety matters.

¶ 30 The parties here do not challenge the arbitrators' interpretations of the collective bargaining agreement, which found that the workers had certain rights concerning their schedule choices and work hours that were directly affected by the CTA's unilaterally implemented rules. Consequently, we do not review contract interpretation issues as part of our review of the CTA's nondelegable duty claim. The question of whether a dispute is arbitrable is a question of law, which this court reviews de novo . International Brotherhood of Electrical Workers, Local 193 v. City of Springfield , 2011 IL App (4th) 100905, ¶ 14, 355 Ill.Dec. 273, 959 N.E.2d 687.

¶ 31 The CTA's references to provisions of the Illinois Constitution and Transit Act, which were discussed above, do not indicate that the law specifically reposed in the CTA the nondelegable power to regulate general transit safety or safety limitations of the workers' schedule options and work hours. To the contrary, the Illinois Public Labor Relations Act and the Transit Act expressly require the CTA to bargain over matters directly affecting hours and conditions of employment. 5 ILCS 315/4 (West 2012) ; 70 ILCS 3605/28a (West 2016).

¶ 32 We conclude that the CTA does not have a nondelegable duty that allows it to unilaterally determine, in the name of transit safety, restrictions on the employees' collectively bargained-for schedule options and work hours.

¶ 33 III. CONCLUSION

¶ 34 For the foregoing reasons, we find that the arbitration awards did not violate an explicit, well-defined, and dominant public policy or a nondelegable statutory power belonging to the CTA. Therefore, we affirm the judgments of the circuit court, which rejected the CTA's public policy and nondelegable duty claims.

¶ 35 Circuit court judgments affirmed.

¶ 36 Arbitration awards affirmed.

Presiding Justice Reyes and Justice Rochford concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    U.S. BANK, N.A., as Legal Title Trustee FOR TRUMAN 2012 SC2 TITLE TRUST, Plaintiff and Counterdefendant-Appellee, v. QUADRANGLE HOUSE CONDOMINIUM ASSOCIATION, Defendant and Counterplaintiff-Appellant.
    No. 1-17-1711
    Appellate Court of Illinois, First District, SECOND DIVISION.
    June 26, 2018
    Jeffrey S. Youngerman, Terry A. Fox, and Timothy P. Mahoney, of Flaherty & Youngerman, P.C., of Chicago, for appellant.
    Plunkett Cooney, P.C., of Chicago (Timothy P. Collins, of counsel), for appellee.
   JUSTICE PUCINSKI delivered the judgment of the court, with opinion

¶ 1 Defendant Quadrangle House Condominium Association (Association) appeals from an order of the circuit court of Cook County granting plaintiff U.S. Bank's motion for summary judgment on its complaint for a declaratory judgment and denying the Association's cross-motion for summary judgment on its counterclaim for unpaid assessments. The sole question of law presented for consideration is whether U.S. Bank's payment of postforeclosure sale assessments, several months after purchasing a condominium unit at a judicial foreclosure sale, extinguished the Association's lien for preforeclosure sale assessments, pursuant to section 9(g)(3) of the Condominium Property Act (Act) ( 765 ILCS 605/9(g)(3) (West 2016) ), and as interpreted by 1010 Lake Shore Ass'n v. Deutsche Bank National Trust Co. , 2015 IL 118372, 398 Ill.Dec. 95, 43 N.E.3d 1005. We affirm the judgment of the circuit court for the reasons that follow.

¶ 2 BACKGROUND

¶ 3 The subject property, unit 5B, is located at 6700 South Shore Drive, in Chicago, Illinois, and was previously owned by Betty Colvin. In 2011, U.S. Bank's predecessor in interest, Wells Fargo Bank, commenced an action to foreclose a mortgage lien interest encumbering unit 5B. The matter was filed in the Chancery Division and captioned Wells Fargo Bank v. Colvin, No. 11 CH 19139 (Cir. Ct. Cook County).

¶ 4 On July 29, 2015, the circuit court entered an order confirming the sale and granting possession of unit 5B to U.S. Bank as the successful bidder at a judicial sale held on June 24, 2015. The circuit court's order was captioned U.S. Bank N.A. v. Colvin , No. 11 CH 19139 (Cir. Ct. Cook County, July 29, 2015). A judicial deed granting U.S. Bank title to unit 5B was issued pursuant to the order approving the sale and was recorded by the Cook County Recorder of Deeds on August 28, 2015. Shortly thereafter, U.S. Bank retained Parkvue Realty to recover possession of and market unit 5B. U.S. Bank asked Parkvue to contact the Association for information about the payment of postforeclosure sale assessments. Early in September 2015, Parkvue provided the Association with a copy of the judicial deed and informed the Association that any correspondence and assessment invoices were to be sent to U.S. Bank at P.O. Box 830, Armonk, New York 10504.

¶ 5 On September 24, after receiving no response from the Association, U.S. Bank asked the Association for an invoice reflecting the postforeclosure sale assessments due for unit 5B. However, the Association sent U.S. Bank a resident ledger for Gloria Carter, who possessed no interest in unit 5B.

¶ 6 In October, U.S. Bank received the invoice it had requested along with a resident ledger for unit 5B, both showing the amount due from U.S. Bank was $3079.62 for its proportionate share of common expenses beginning July 1, 2015. U.S. Bank also received a resident ledger addressed to Mrs. Colvin, which showed a $62,579.35 amount due for preforeclosure sale assessments.

¶ 7 According to U.S. Bank, it immediately sent the Association a $3919.34 check, dated October 6, 2015, comprising the $3079.62 amount due and $839.72 in assessments for the upcoming month of November. The Association initially claimed that it was never received but then acknowledged having received the check in November, when U.S. Bank placed a stop payment order on the check. On November 6, U.S. Bank issued another $3919.34 check, which the Association received and credited to U.S. Bank. From December 2015 to February 2017, the Association sent invoices that U.S. Bank paid in full.

¶ 8 In 2016, U.S. Bank requested a paid assessment letter from the Association, and the Association issued a letter on January 25 stating that a $63,464.07 lien in favor of the Association existed under section 9(g)(1) of the Act ( 765 ILCS 605/9(g)(1) (West 2016) ) for the period from May 1, 2009, to January 25, 2016. The letter stated that U.S. Bank had not extinguished the lien by payment of assessments under section 9(g)(3) of the Act (id. § 9(g)(3) ). The letter stated that the amount due from U.S. Bank under section 9(g)(4) of the Act (id. § 9(g)(4) ) was the $63,464.07, "due to failure of purchaser at judicial sale to confirm extinguishment of lien, the extinguishment of lien by lender will render the amount owed by the subsequent purchaser to be $0."

¶ 9 In March, the Association sent U.S. Bank a notice and demand for possession of unit 5B as a condition precedent to an action for forcible entry and detainer. In April, U.S. Bank filed the underlying complaint for declaratory judgment in case number 16 CH 04811, asking for a determination that the Association's lien had been extinguished. In June, the Association filed a counterclaim for unpaid assessments totaling $63,464.07, "inclusive of the Colvin Balance." In July, U.S. Bank filed an amended complaint for declaratory judgment.

¶ 10 In 2017, the parties filed cross-motions for summary judgment, and the circuit court entered an order granting summary judgment in favor of U.S. Bank on June 28. The Association filed a timely notice of appeal from the June 28 order, which declared that U.S. Bank had paid all postforeclosure sale assessments required under section 9(g)(3) of the Act and extinguished the Association's lien on the Colvin balance for the period before July 1, 2015.

¶ 11 We take judicial notice that, after the Association filed its notice of appeal, U.S. Bank sold unit 5B to a nonparty on July 31 and the special warranty deed conveying unit 5B was recorded on August 3 as document number 1721557092. See generally City of Chicago v. Soludczyk , 2017 IL App (1st) 162449, ¶ 3 n.1, --- Ill.Dec. ----, --- N.E.3d ----. On November 13, this court denied U.S. Bank's motion to dismiss the appeal as moot by application of Illinois Supreme Court Rule 305(k) (eff. July 1, 2017).

¶ 12 ANALYSIS

¶ 13 We initially reject U.S. Bank's contention that this appeal is moot because the Association failed to file an appeal bond. See, e.g. , Jack Spring, Inc. v. Little , 50 Ill.2d 351, 280 N.E.2d 208, 355-56 (1972) (the right to appeal may not be conditioned upon posting an appeal bond); Downstate National Bank v. Elmore , 224 Ill.App.3d 1075, 1083, 167 Ill.Dec. 208, 587 N.E.2d 90 (1992) (finding that controversy existed as to plaintiff's lien rights against property and question not mooted by foreclosure action that excluded nonparty); O'Brien v. Cacciatore , 227 Ill.App.3d 836, 842, 169 Ill.Dec. 506, 591 N.E.2d 1384 (1992) (failure to obtain a stay does not, alone, render an issue moot). Moreover, an order granting summary judgment in a declaratory judgment action is final, and a notice of appeal must be filed within 30 days of the entry of the order, as occurred in this case. Universal Underwriters Insurance Co. v. Judge & James, Ltd. , 372 Ill.App.3d 372, 379-80, 310 Ill.Dec. 207, 865 N.E.2d 531 (2007).

¶ 14 On the merits, the Association solely contends that U.S. Bank's payment of postforeclosure sale assessments several months after purchasing unit 5B at a judicial foreclosure sale did not extinguish the Association's lien for preforeclosure sale assessments, pursuant to section 9(g)(3) of the Act and as construed by our supreme court in 1010 Lake Shore Ass'n , 2015 IL 118372, 398 Ill.Dec. 95, 43 N.E.3d 1005.

¶ 15 Because this case was disposed of by the circuit court pursuant to cross-motions for summary judgment, our review is de novo . Quadrangle House Condominium Ass'n v. U.S. Bank, N.A. , 2018 IL App (1st) 171713, ¶ 8, 423 Ill.Dec. 540, 105 N.E.3d 948. On cross-motions for summary judgment, the parties concede that only a question of law is presented and invite the court to decide the issue on the record. Id. "Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Virginia Surety Co. v. Northern Insurance Co. of New York , 224 Ill.2d 550, 556, 310 Ill.Dec. 338, 866 N.E.2d 149 (2007) ; 735 ILCS 5/2-1005(c) (West 2016).

¶ 16 The Association argues that it is difficult to read our supreme court's construction of section 9(g)(3) in 1010 Lake Shore Ass'n as anything other than requiring U.S. Bank to begin paying postforeclosure sale assessments the month after the foreclosure sale in order to confirm the extinguishment of the Association's lien for preforeclosure sale assessments. Because U.S. Bank failed to begin paying postforeclosure sale assessments for unit 5B the month after the foreclosure sale, the Association argues that U.S. Bank's tardy payments did not confirm the extinguishment of the Association's lien.

¶ 17 Section 9(g)(3) states:

"(3) The purchaser of a condominium unit at a judicial foreclosure sale, or a mortgagee who receives title to a unit by deed in lieu of foreclosure or judgment by common law strict foreclosure or otherwise takes possession pursuant to court order under the Illinois Mortgage Foreclosure Law, shall have the duty to pay the unit's proportionate share of the common expenses for the unit assessed from and after the first day of the month after the date of the judicial foreclosure sale, delivery of the deed in lieu of foreclosure, entry of a judgment in common law strict foreclosure, or taking of possession pursuant to such court order. Such payment confirms the extinguishment of any lien created pursuant to paragraph (1) or (2) of this subsection (g) by virtue of the failure or refusal of a prior unit owner to make payment of common expenses, where the judicial foreclosure sale has been confirmed by order of the court, a deed in lieu thereof has been accepted by the lender, or a consent judgment has been entered by the court." 765 ILCS 605/9(g)(3) (West 2016).

¶ 18 In 1010 Lake Shore Ass'n , 2015 IL 118372, ¶ 24, 398 Ill.Dec. 95, 43 N.E.3d 1005, our supreme court stated that the first sentence of section 9(g)(3) "plainly requires a foreclosure sale purchaser to pay common expense assessments beginning in the month following the foreclosure sale." The supreme court stated that the second sentence of section 9(g)(3) "provides an incentive for prompt payment of those postforeclosure sale assessments." Id. The supreme court concluded that pursuant to the plain language of section 9(g)(3), "the payment of postforeclosure sale assessments formally approves and makes certain the cancellation of the condominium association's lien." Id.

¶ 19 In Country Club Estates Condominium Ass'n v. Bayview Loan Servicing, LLC , 2017 IL App (1st) 162459, ¶ 12, 416 Ill.Dec. 663, 84 N.E.3d 1140, pet. for leave to appeal denied , No. 122687, 419 Ill.Dec. 640, 93 N.E.3d 1057 (Ill. Nov. 22, 2017), we considered the argument that there is no promptness requirement under the plain language of section 9(g)(3). We noted that, although the plain language of this section clearly provides that a foreclosure buyer's duty to pay monthly assessments begins on "the first day of the month after the date of the judicial foreclosure sale," this section does not expressly include a deadline for confirming the extinguishment of an association's lien. Id. ¶ 14. We found no legislative debate about the "extinguishment clause" but noted occasions where our legislature expressed concern about the difficulties met by condominium associations when a unit owner fails to pay common expenses and the unit goes into foreclosure. Id. ¶ 15. Although that concern was expressed during discussions about the 2006 amendment to the Act, we stated it was still pertinent to the interpretation of section 9(g)(3). Id. ¶ 16. We then stated that our supreme court's construction of section 9(g)(3) in 1010 Lake Shore Ass'n "acknowledges that a time requirement is implicit in section 9(g)(3), insofar as that section gives foreclosure buyers an 'incentive for prompt payment.' If as Bayview argues, a foreclosure sale buyer could withhold payment of postforeclosure sale assessments indefinitely and still obtain the benefit of section 9(g)(3), the statute would not provide any such incentive." Id. ¶ 18. Based on the statements of our supreme court in 1010 Lake Shore Ass'n and our legislature regarding the policies "animating" this section, we held "that in order to extinguish an association's lien for preforeclosure sale assessments, a foreclosure buyer must make 'prompt' payment of current assessments." Id. ¶ 21. We stated that " 1010 Lake Shore [Ass'n ] did not create a requirement of promptness; it merely articulated the requirement that was already implicit in the purpose underlying section 9(g)(3)." (Emphasis in original.) Id. ¶ 30.

¶ 20 Eight months after we filed our opinion in Country Club Estates Condominium Ass'n , the Sixth Division of this court filed its opinion in Quadrangle House Condominium Ass'n , 2018 IL App (1st) 171713, ¶ 11, 423 Ill.Dec. 540, 105 N.E.3d 948 (2018), rejecting the condominium association's argument that U.S. Bank was required to begin paying postforeclosure sale assessments in the month following the sale in order to extinguish the association's lien for unpaid preforeclosure sale assessments. The Sixth Division stated, "[c]ontrary to our colleagues in [ Country Club Estates Condominium Ass'n ], we do not believe that the cited sentence in 1010 Lake Shore [Ass'n ] means that payment of post-purchase assessments must be prompt in order to constitute a confirmation of the extinguishment of any lien created under subsection 9(g)(1) for any unpaid pre-sale assessments." Id. ¶ 13. However, about one month later, the Sixth Division filed V & T Investment Corp. v. West Columbia Place Condominium Ass'n , 2018 IL App (1st) 170436, ¶ 30, 423 Ill.Dec. 481, 105N.E.3d 889 (2018), citing our opinion in Country Club Estates Condominium Ass'n , as guidance on determining when a foreclosure buyer's payment of assessments is prompt. We see no reason to depart from our holding in Country Club Estates Condominium Ass'n and proceed with our analysis to determine whether U.S. Bank made prompt payment of postforeclosure sale assessments.

¶ 21 The circuit court in this case entered an order on July 20, 2015, confirming the sale and granting U.S. Bank possession of unit 5B. U.S. Bank provided the Association with a copy of the judicial deed and an address where assessment invoices were to be sent in early September 2015. U.S. Bank then commenced paying postforeclosure sale assessments on October 6, 2015, about two months after its liability for postforeclosure sale assessments began, but the Association claimed that it was never received and then acknowledged having received the check in November. Under these circumstances, we conclude that U.S. Bank made prompt payment of postforeclosure sale assessments and extinguished the Association's lien for preforeclosure sale assessments. Cf. Country Club Estates Condominium Ass'n , 2017 IL App (1st) 162459, ¶ 31, 416 Ill.Dec. 663, 84 N.E.3d 1140 ("We cannot discern from the record what reasons, if any, existed for Bayview's delay in payment. And the Association did not file a cross-motion for summary judgment, so we are not in a position to say that Bayview's tender was not prompt as a matter of law."); see generally V & T Investment Corp. , 2018 IL App (1st) 170436, ¶ 30, 423 Ill.Dec. 481, 105 N.E.3d 889.

¶ 22 CONCLUSION

¶ 23 For the reasons stated, we affirm the judgment of the circuit court of Cook County granting U.S. Bank's motion for summary judgment on its complaint for a declaratory judgment and denying the Association's cross-motion for summary judgment on its counterclaim for unpaid assessments.

¶ 24 Affirmed.

Presiding Justice Mason and Justice Hyman concurred in the judgment and opinion.


author: David, Justice.

text:
    Monica DYCUS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    Supreme Court Case No. 18S-CR-488
    Supreme Court of Indiana.
    Argued: April 24, 2018 FILED October 3, 2018
    ATTORNEYS FOR APPELLANT: Rory Gallagher, Ruth Johnson, Marion County Public Defender, Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, George P. Sherman, Andrew Kobe, Deputy Attorneys General, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-1705-CR-978
   David, Justice.

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. We find that no advisement is required. A DRE is not the type of search that calls for a Pirtle advisement.

Facts and Procedural History

On January 8, 2016, Indianapolis Metropolitan Police Department ("IMPD") officers responded to a 911 call about a dispute on the road. Monica Dycus had allegedly been following her ex-boyfriend, El-hadj Barry, who was picking up a female friend at her school. Barry's friend called 911 because Dycus was tailgating Barry's vehicle, swerving between lanes, and pulling up next to them at stoplights to shout obscenities.

When IMPD Officer Christopher Cooper ("Officer Cooper") arrived on the scene, he saw the two vehicles stopped at a red light. Dycus had one foot out of her vehicle and was observed yelling at the car in front of her. Officer Cooper approached Dycus and asked for identification. He also spoke with Barry to find out what had happened.

After checking Barry and Dycus's identification, Officer Cooper told Barry that he could leave. Officer Cooper continued to detain Dycus because he suspected that she was driving with a suspended license. While speaking with Dycus, Officer Cooper noticed an odor of marijuana coming from Dycus'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 Dycus as they waited for Officer Winter's arrival. In the course of that questioning, Dycus admitted to Officer Cooper that she had smoked marijuana with her mother "about an hour" prior to the encounter.

When Officer Winter arrived, Dycus was asked to submit to various field sobriety tests. She passed the horizontal gaze nystagmus test, which indicated that she was not under the influence of alcohol. However, Dycus failed the walk-and-turn and the one-legged stand tests. Based on the field sobriety test results, Officer Winter believed that Dycus was intoxicated. He offered to administer a certified breath test, which would test for the presence of alcohol. Dycus consented.

Officers transported Dycus 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 Dycus's system. However, while conducting the test, Officer Winter noticed a green, leafy substance in Dycus's mouth and "a green streak going down her tongue." (Tr. Vol. 2, p. 130). These signs were indicative of marijuana consumption.

Officer Winter then offered Dycus a DRE. He explained that he wanted her to submit to a DRE because her signs of impairment were not consistent with negative alcohol results. Dycus again consented. The exam took approximately thirty minutes to complete and involved a variety of measurements and observations that were assessed in a seven-category evaluation matrix, known as a "drug symptom matrix." After entering all observations and results of Dycus's DRE into the "drug symptom matrix," Officer Winter determined that Dycus was under the influence of marijuana.

Dycus consented to a blood draw, to be administered at Eskenazi Hospital. At the hospital, two vials of blood were obtained from Dycus, which were eventually sent for testing to National Medical Services, an accredited laboratory located in Pennsylvania. The lab results revealed that Dycus's blood tested positive for Delta-9 THC, an active metabolite of marijuana with psychoactive effects.

The State charged Dycus 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, Dycus 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. Dycus also argued that the admission of the chain of custody forms and shipping documents for her blood samples violated her constitutional right to confrontation. The trial court rejected both objections and Dycus was found guilty as charged. At sentencing, the trial court vacated Count II. Dycus was then sentenced to 365 days for the remaining count, with 361 days suspended to probation.

Dycus 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 Dycus's conviction because a Pirtle advisement had not been given prior to the DRE consent. Dycus v. State , 90 N.E.3d 1215, 1220-26 (Ind. Ct. App. 2017).

The State sought transfer, which we now grant, thereby vacating the Court of Appeals' opinion. Ind. App. Rule 58(A).

Standard of Review

A trial court has broad discretion in ruling on admissibility of evidence. Turner v. State , 953 N.E.2d 1039, 1045 (Ind. 2011). We will ordinarily disturb a trial court's admissibility rulings only where it has abused its discretion. Id. A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court or if it misapplies the law.

Heaton v. State , 984 N.E.2d 614, 616 (Ind. 2013). However, where, as here, a constitutional violation is alleged, the proper standard of appellate review is de novo. Speers v. State , 999 N.E.2d 850, 852 (Ind. 2013), cert. denied , --- U.S. ----, 134 S.Ct. 2299, 189 L.Ed.2d 183 (2014).

Discussion and Decision

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.

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects" from unreasonable searches and seizures. U.S. Const. amend. IV. It requires police to obtain a search warrant from a neutral, detached magistrate prior to undertaking a search of either a person or private property. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, that requirement is subject to "certain carefully drawn and well-delineated exceptions." Id. One such exception occurs when a person consents to a search; in other words, a person's valid consent eliminates the need for a search warrant. Our State Constitution offers citizens parallel protections against unreasonable searches and seizures. For instance, Article 1, Section 11 provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated ...."

Although the wording of Section 11 is almost identical to that of the Fourth Amendment, our State Constitution's search and seizure clause is given an independent interpretation and application. Myers v. State , 839 N.E.2d 1146, 1153 (Ind. 2005). In fact, Indiana's Constitution sometimes offers broader protections than those offered by the U.S. Constitution. Conley v. State , 972 N.E.2d 864, 879 (Ind. 2012). Amongst those broader protections offered by our State Constitution is the requirement that, prior to obtaining consent to a search, police must explicitly advise a person in custody of her right to consult with counsel. It is unique to Indiana and has no federal counterpart. See United States v. LaGrone , 43 F.3d 332, 337 (7th Cir. 1994) ("A person in custody has no federal constitutional right to consult with an attorney before consenting to a search of his property. However, the Indiana [C]onstitution does afford such a right.").

Whether our advisement requirement extends to a DRE-in other words, whether police are required to advise a person in custody of her right to consult with counsel before obtaining consent to perform the exam-is at issue in this case. The State asks us to affirm the trial court's determination that police need not specifically advise a person in custody of her right to consult with counsel before obtaining consent to a DRE. Dycus, on the other hand, argues that the Court of Appeals correctly held that without such advisement, evidence obtained through a DRE is inadmissible. We agree with the State and find that a Pirtle warning, as such advisement has come to be known, is not required to obtain valid consent to a DRE from a person in custody.

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. Id. at 22, 323 N.E.2d at 637. Police read Pirtle his Miranda rights twice-once in the squad car and another time at the police station. Id. Pirtle asked for an attorney upon the second reading of his rights. Id. Later, officers learned that Pirtle may have been involved in an unrelated homicide. Id. Approximately twelve hours after Pirtle initially invoked his right to counsel, two other officers questioned him about the unrelated homicide. Id. 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. Id. Pirtle agreed and signed a search waiver. Id. 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. Although our holding in Pirtle is the foundation for requiring that persons in custody be advised of their right to consult with counsel prior to consent, Pirtle, on its own, does not resolve our inquiry. After all, Pirtle involved only the search of an apartment; searches can range widely in breadth and scope.

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 ...." Id. at 500, 413 N.E.2d at 559. 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. It is worth noting that, at the time of Garcia-Torres , our Court of Appeals had already addressed consent to searches other than those of a home or a vehicle. In fact, our Court relied on some of those cases in its Garcia-Torres majority. But we had yet to weigh in on the extent of Pirtle 's reach beyond searches of homes and vehicles.

A threshold question in Garcia-Torres was whether a DNA cheek swab should be deemed a search for purposes of the Fourth Amendment and our State Constitution. Id. at 1232. We had already held that fingerprints were not searches, and that blood tests to check alcohol content were. See Palmer v. State , 679 N.E.2d 887, 892 (Ind. 1997) ; see also Schmerber v. California , 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). 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.

As for the central question-whether a Pirtle warning was required prior to consent-we noted that " Pirtle and the ensuing cases ... applied this rule only to the weightiest intrusions." Id. at 1238. Since the various interests at stake on occasions when a Pirtle advisement had been required were not present, we found that we would not extend Pirtle's holding to cheek swabs; no advisement was required prior to consent. Id. at 1239.

As mentioned above, our Court of Appeals had already considered Pirtle 's extent several times before we decided in Garcia-Torres that Pirtle did not apply to cheek swabs. As a general matter, those cases stand for the proposition that Pirtle does not apply to what the court has described as minimally intrusive searches. For example, in Wilkerson v. State , 933 N.E.2d 891, 894 (Ind. Ct. App. 2010), the Court of Appeals held that Pirtle was not applicable to pat downs for weapons. The Court of Appeals also held that the purpose of Pirtle would not be served by extending the doctrine to field sobriety tests, chemical breath tests, or blood draws. See Ackerman v. State , 774 N.E.2d 970, 979-82 (Ind. Ct. App. 2002) (finding that Pirtle does not apply to field sobriety tests); Schmidt v. State , 816 N.E.2d 925, 942-44 (Ind. Ct. App. 2004) (finding that Pirtle does not apply to chemical breath tests); and Datzek v. State , 838 N.E.2d 1149, 1158-60 (Ind. Ct. App. 2005) (finding that Pirtle does not apply to blood draws for blood alcohol content testing). These searches, according to the court, were much narrower, and in some cases much less intrusive, than the home and vehicle searches that require an advisement prior to consent. To the extent that Court of Appeals treats the issue with a focus on intrusiveness, we disagree. The intrusiveness of a search does not inform the need for a Pirtle advisement. However, we find that examining the scope and breadth of the searches helps us distinguish between the searches that require a Pirtle advisement and those that do not.

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. This is especially true, as described by the Court of Appeals in Ackerman , 774 N.E.2d at 981, for unlimited and general searches where police are given carte blanche to search for unspecified evidence. Searches of a home or a vehicle ordinarily require officers to specify what they are looking for and their reasons for believing that the suspect had those items in their home or in their vehicle. A person who consents to a search gives up those protections and subjects herself to a general search without probable cause. Because a person in custody may not fully appreciate the magnitude of what is at stake when authorizing police to freely search a home or a vehicle, we require police to explicitly inform persons in custody of their rights under our Constitution. Those concerns are not as strong when a search is narrowly focused.

We need not look further than Pirtle to find a situation where a person failed to appreciate the extent of rights he was waiving when consenting to a search. The defendant in Pirtle was arrested for possession of a stolen vehicle. Nothing in his initial arrest necessitated the search of his home. It wasn't until later, when police began to suspect that he had been involved in a murder, that a search of the defendant's home became of interest to police. But as our Court noted in Pirtle , had Pirtle refused consent to the search, officers would have had to make a showing of probable cause to a neutral, detached magistrate. Pirtle , 263 Ind. at 26-28, 323 N.E.2d at 639-40. Pirtle's consent to a search of his apartment exposed him to criminal liability for an unrelated murder when his arrest was for possession of a stolen vehicle-a minor crime compared to murder. We require an advisement because persons in Pirtle's circumstances rarely consent freely to an unlimited search unless fully informed of their rights and the magnitude of what they waive by consenting. Perhaps in some cases, consent is of their own free will, but, to be sure, we require an additional advisement in those circumstances that carry great risk of involuntary consent. Such an advisement serves as a guarantee that consent is always fully informed. For other more specific searches that do not carry such risk-where the likelihood that police will come across inculpatory evidence beyond what they specifically seek is low-a Pirtle advisement is not necessary.

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 Dycus'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 Dycus's conviction.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.


author: Goff, Justice.

text:
    David WRIGHT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    Supreme Court Case No. 18S-CR-00166
    Supreme Court of Indiana.
    Argued: May 17, 2018 Filed October 4, 2018
    ATTORNEY FOR APPELLANT: Chris M. Teagle, Muncie, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana
    Chief Justice Rush and Justices David, Massa, and Slaughter concur.
    On Petition to Transfer from the Indiana Court of Appeals, No. 05A02-1610-CR-02397
   Goff, Justice.

Nearly a century ago, this Court adopted and applied the exclusionary rule to Indiana's jurisprudence. The rule provides: When, in violation of Article 1, Section 11 of the Indiana Constitution, the State gains evidence by illegal means (i.e., an unreasonable search or seizure), it may not then use that evidence against the defendant. Through the fruit of the poisonous tree doctrine, we've extended the exclusionary rule to exclude evidence directly or derivatively obtained from the illegal conduct. This present case tests that rule's limits. Specifically, this case asks, as a matter of Indiana constitutional law, does an illegal seizure and search irreparably stain all derivative evidence the police gain afterwards, making it inadmissible under the exclusionary rule, or can the evidence be sufficiently separated from that primary taint to be admissible? In simpler terms, does the attenuation doctrine apply in Indiana constitutional law?

While the Court of Appeals previously confronted these questions-and split over the answers-they are novel questions for us that we answer today. We hold the attenuation doctrine can apply under the Indiana Constitution. Evidence found after an unreasonable search or seizure can become attenuated from that illegality, meaning the evidence itself or the circumstances in which the evidence was discovered were sufficiently distinguishable or separated from the search or seizure. In this particular case, we find the challenged evidence-the defendant's statements to law enforcement-were amply attenuated from the illegal search. We, therefore, affirm the defendant's child-molestation convictions.

Factual and Procedural History

Defendant David Wright lived with his best friend's young family in an apartment located at 220 East Water Street in Hartford City, Indiana. Wright and the family were home on the afternoon of Friday, January 22, 2016, when the FBI and Indiana State Police SWAT, in the course of a federal child pornography investigation, knocked on the door.

Based upon information that an IP address located and billed to 220 ½ East Water Street, Hartford City, Indiana, accessed known child pornography websites, FBI Special Agent Jeffrey Robertson secured a federal search warrant for the home. Upon arriving, Robertson realized the large home housed two smaller apartments, upstairs and downstairs units. The upstairs apartment's street address being 220 ½ East Water Street and the downstairs apartment's address being 220 East Water Street-Wright's residence.

While searching the upstairs apartment and seizing the computer equipment therein, Agent Robertson learned both apartments shared the same internet connection, all occupants knew the password, and all occupants used the connection. Rather than securing a second search warrant for 220 East Water Street and instead of having 220's occupants sign written consent forms he kept in his vehicle, Robertson gave 220's occupants (including Wright) two options: (1) verbally consent to a search of their computer equipment, surrender those devices that day, and receive them back quickly; or (2) leave the residence and stay away until he secured and executed another federal search warrant. 220's occupants (including Wright) verbally consented to the search, handed over their computers, and provided Agent Robertson with their usernames and passwords.

Agent Robertson seized the equipment and searched them over the weekend. The search-done by running software called OS Triage on the seized devices-revealed Wright's computer contained hash values matched to known child pornography images. Equipped with this information, Agent Robertson returned to the East Water Street apartments on Monday, January 25th, and released all the seized computer equipment, except Wright's.

When Wright inquired about his devices, Agent Robertson asked to speak with him privately, giving him the option of talking inside or outside the house. Wright chose to talk outside. Agent Robertson and Wright went to the former's car parked in front of the house. Agent Robertson sat in the driver's seat, Wright sat in the front passenger seat, and another officer sat in the backseat. Before beginning a conversation, Robertson told Wright the car was unlocked, and he could leave at any point. Agent Robertson informed Wright he was not under arrest.

After Wright indicated he understood those warnings, Agent Robertson confronted him with the search results. He asked Wright if he used the TOR network to search for child pornography and Wright answered affirmatively. Agent Robertson informed Wright that standard protocol required him to conduct a forensic interview with any children living in the home "just to make sure that no [sexual] contact has occurred." Wright then admitted having sexual contact with two children living in the home.

With this disclosure, Agent Robertson immediately stopped the interview, exited the vehicle, and phoned Hartford City Police to report what Wright just told him. The police asked Robertson to place Wright under arrest and take him to the station. Robertson returned to the car, informed Wright he was now under arrest, and handcuffed him. After transporting Wright to the Hartford City Police Department, Robertson handed Wright over to Detective Cody Crouse, but he stuck around to sit through the interview.

Detective Crouse read Wright the standard Miranda warnings. Wright signed a waiver form and agreed to talk to Crouse. During that interview, Wright admitted to repeatedly molesting two children, W.S. (age 11) and F.S. (age 4) over a year's span, with the most recent sexual contact occurring within the last two weeks.

The State charged Wright with four counts of Level 1 felony child molesting: two counts for the sexual contact with W.S. and two counts for the sexual contact with F.S.

Wright moved to suppress all evidence obtained from the FBI search and subsequent police interviews. Invoking the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution, Wright alleged he'd been illegally detained and searched. Specifically, he argued he did not give valid consent to search his computers because Agent Robertson failed to inform him that he had the right to refuse consent. Following a hearing on Wright's motion, the trial court granted in part, and denied in part. Finding that Wright's consent to the search proved invalid under both the federal and state constitutions, the trial court suppressed evidence obtained from searching Wright's computer and electronic equipment. But the court denied suppression of Wright's statements to Agent Robertson and Detective Crouse, concluding they were sufficiently independent and attenuated from the illegal search.

Wright's incriminating statements were admitted during the subsequent bench trial. The court found Wright guilty as charged, and, after identifying aggravators and mitigators, imposed an aggregate sixty-year sentence. The court deemed Wright a sexually violent predator and a credit restricted felon.

Wright appealed, arguing the trial court erred by only partially granting his suppression motion and by admitting his statements to law enforcement. He also argued his sixty-year sentence proved inappropriate since he had no criminal history, he admitted his crimes, he appreciated the wrongfulness of his conduct, and he had been victimized as a child.

The Court of Appeals reversed Wright's convictions, holding the trial court improperly admitted Wright's confessions to Agent Robertson and Detective Crouse. Wright v. State , 92 N.E.3d 1127 (Ind. Ct. App. 2018). The court focused its analysis on Article 1, Section 11, particularly whether Indiana's jurisprudence recognized the attenuation doctrine as an exception to the exclusionary rule. Id. at 1131-33. It ultimately rejected the attenuation doctrine for Indiana. Id. at 1132-33.

Upon removing attenuation from its legal calculus, the court concluded: "[T]here is no dispute that Wright's incriminating statements to the officers on January 25, 2016, about touching the children directly resulted from or derived from the unconstitutional search and seizure of Wright's computers." Id. at 1133. The court deemed Wright's statements fruit of the poisonous tree and, therefore, inadmissible evidence. Id. Because the Court of Appeals reversed Wright's convictions, it did not address the parties' arguments about the appropriateness of Wright's sentence. Id.

The State sought transfer, arguing the Court of Appeals had divided over this issue. In order to resolve the split in authority, we granted transfer, thereby vacating this Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

The primary issue before us is whether Wright's statements to law enforcement constitute admissible evidence against him. The trial court answered that query in the affirmative and admitted the statements. Since decisions to admit or exclude evidence fall within the trial court's sound discretion, we afford those decisions deference and review them for an abuse of discretion. Guilmette v. State , 14 N.E.3d 38, 40 (Ind. 2014). We will reverse a trial court's decision to admit evidence only if the decision was "clearly against the logic and effect of the facts and circumstances and the error affects [the defendant's] substantial rights." Id.

However, to the extent the issue of admissibility turns upon a constitutional query, we review the issue de novo, paying no deference to the lower court's constitutional determinations. Id. at 40-41.

Discussion and Decision

Rooted deeply within Indiana constitutional law lies the principle that when police obtain evidence by way of an unreasonable search or seizure the evidence is excluded at the defendant's trial. Callender v. State , 193 Ind. 91, 96, 98, 138 N.E. 817, 818-19 (1923). The exclusionary rule is not required by the Indiana Constitution's text-meaning, Article 1, Section 11 itself does not expressly mandate that courts suppress evidence got by illegal means. Rather, the exclusionary rule represents a judicially-created remedy aimed first at deterring police misconduct and second at securing Hoosiers' rights. See Membres v. State , 889 N.E.2d 265, 273-74 (Ind. 2008) (identifying "deterrence as the primary objective of [Indiana's] exclusionary rule," but recognizing our exclusionary rule also protects citizens' privacy). Our exclusionary rule dates back ninety-five years, nearly forty years before the United States Supreme Court made the federal exclusionary rule applicable to the states through the Fourteenth Amendment. Membres , 889 N.E.2d at 274 (citing Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ). See also Callender , 138 N.E. 817.

One branch of Indiana's exclusionary rule-universally known as the fruit of the poisonous tree doctrine-operates to omit from trial evidence directly or derivatively obtained from an illegal search or seizure. Gyamfi v. State , 15 N.E.3d 1131, 1136 (Ind. Ct. App. 2014). Once a defendant establishes that a search or seizure was unreasonable, he can invoke the fruit of the poisonous tree doctrine by moving to suppress direct and derivative evidence. Id.

Over the years, Indiana courts have occasionally cultivated the rule to achieve the purpose of deterring police misconduct. For example, Indiana law recognizes two exceptions to the exclusionary rule and fruit of the poisonous tree doctrine. One being the good-faith exception, where illegally obtained evidence is not excluded if law enforcement acted in "objectively reasonable reliance" on what they thought was a valid warrant. Mers v. State , 482 N.E.2d 778, 782-83 (Ind. Ct. App. 1985) (quoting United States v. Leon , 468 U.S. 897, 927, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (Blackmun, J., concurring) ). See also Hopkins v. State , 582 N.E.2d 345, 351 (Ind. 1991) (recognizing Mers held the federal good-faith exception applicable to Article 1, Section 11 claims); Ind. Code § 35-37-4-5 (2014 Repl.) (codifying the good-faith exception). The other being the new-crime exception, which allows for the admission of "evidence that defendants committed new and distinct crimes in response to illegal searches or seizures by law enforcement." C.P. v. State , 39 N.E.3d 1174, 1183 (Ind. Ct. App. 2015). With these exceptions, we note that Indiana's exclusionary rule does not countenance but-for exclusion where any and all evidence obtained after an illegal search or seizure is automatically excluded, no matter what. Indeed, such a broad application would choke out the rule's narrow purposes.

Today we must decide whether to further prune our exclusionary rule to include the attenuation doctrine. This concept, accepted within federal Fourth Amendment jurisprudence, holds that "not ... all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police[;]"

Wong Sun v. United States , 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), rather, the objected-to evidence will be excluded as fruit of the poisonous tree if police obtained it by exploiting the primary illegality, id. at 488, 83 S.Ct. 407. Alternatively, evidence will be admitted if it is attenuated from the illegality-if it is obtained by "means sufficiently distinguishable to be purged of the primary taint." Id. (citation omitted). See also Clark v. State , 994 N.E.2d 252, 266-73 (Ind. 2013) (considering whether federal attenuation doctrine applied to a search and seizure that violated the Fourth Amendment).

But just because federal Fourth Amendment jurisprudence accepts and applies the attenuation doctrine does not necessarily mean Indiana's Article I, Section 11 jurisprudence will follow suit. The Indiana Constitution demands from this Court independent analysis considering that charter's uniqueness. Holder v. State , 847 N.E.2d 930, 940 (Ind. 2006). And so, before we can resolve whether Indiana constitutional law embraces attenuation, we must first reflect upon Indiana's distinctive approach to securing Hoosiers' rights against unreasonable searches or seizures.

I. Reasonableness provides the animating principle for all Article 1, Section 11 inquiries and must guide the decision on attenuation.

This Court has said many times that although Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment to the United States Constitution share vocabulary, they part company in application. When developing Indiana's Article 1, Section 11 test for evaluating a challenged search or seizure, this Court eschewed the federal reasonable-expectation-of-privacy test, Litchfield v. State , 824 N.E.2d 356, 359-60 (Ind. 2005), opting instead for a test "focused on whether the actions of the government were 'reasonable' under the 'totality of the circumstances,' " Shotts v. State , 925 N.E.2d 719, 726 (Ind. 2010) (quoting Litchfield , 824 N.E.2d at 359 ). Consequently, Indiana courts evaluate a search or seizure on a case-by-case basis, asking whether the police behaved reasonably considering the totality of the circumstances. Brown v. State , 653 N.E.2d 77, 79 (Ind. 1995). See also Litchfield , 824 N.E.2d at 359-61. And this Court often emphasizes how reasonableness is the touchstone for Article 1, Section 11 inquiries. See, e.g., id ; Shotts , 925 N.E.2d at 726 ; Holder , 847 N.E.2d at 940. Likewise, "[t]he focus of the exclusionary rule under the Indiana Constitution is the reasonableness of police conduct." C.P. , 39 N.E.3d at 1182.

Reasonableness, therefore, should shape our answer to the attenuation question. Is it reasonable to admit evidence obtained after an illegal search or seizure if the State shows that evidence was sufficiently attenuated from the initial police misconduct? We answer yes, for two important, intertwining reasons-the exclusionary rule's purpose and the attenuation doctrine's function as the natural limit to exclusion.

A. Adopting the attenuation doctrine into Indiana constitutional law would not thwart the exclusionary rule's purpose.

Article 1, Section 11's purpose "is to protect from unreasonable police activity, those areas of life that Hoosiers regard as private." Mitchell v. State , 745 N.E.2d 775, 786 (Ind. 2001) (quoting Brown v. State , 653 N.E.2d at 79 ). The exclusionary rule, especially the fruit of the poisonous tree doctrine, furthers this purpose through discouraging unreasonable police activity by excluding illegally obtained evidence. Indeed, "[t]he exclusionary rule is designed to deter police misconduct." State v. Spillers , 847 N.E.2d 949, 957 (Ind. 2006) (quoting Hensley v. State , 778 N.E.2d 484, 489 (Ind. Ct. App. 2002) ). The deterrence objective, though, is a binary concept. The necessary complement to deterrence is protecting citizens from constitutional violations. By deterring police intrusions on Hoosiers' privacy, the exclusionary rule also helps secure citizens' constitutional rights. See Membres , 889 N.E.2d at 273 ("We ... exclude [evidence] because we consider it necessary to protect the privacy of all citizens from excessive intrusion by law enforcement."); id. at 277 ("[T]he exclusionary rule was adopted not only to deter police misconduct but also to protect the integrity of the judicial process and to protect the rights of criminal defendants.") (Sullivan, J., dissenting).

But deterrence-based exclusion is not a one-size-fits-all remedy that merits but-for application in every situation. There could be some situations where excluding evidence would not fulfill the rule's purpose of deterring future constitutional violations. Sometimes the police realize their mistake and correct the behavior before securing new evidence. In some cases, derivative evidence becomes so remote in time, place, or agency from the original taint that excluding it would not deter future police misconduct.

No matter how principled the purpose behind exclusion, it exacts a heavy societal cost, which cautions against applying it as a but-for rule. We've acknowledged that excluding evidence impairs "the truth-finding objective of trials" because excluded evidence is often relevant, reliable, and probative. Membres , 889 N.E.2d at 272. Omitting this evidence from trial can result in a guilty person going free-which undoubtedly undercuts society's interest that criminals be punished. And so we've cautioned that "[b]ecause there is this cost to enforcing the exclusionary rule, it should be done only where appropriate to advance its [deterrent] purpose." Id. at 274 (emphasis added).

This tension between deterring police misconduct and punishing guilty criminals only strengthens our view that the attenuation doctrine strikes the right balance between these competing interests.

B. By evaluating the totality of the circumstances surrounding an illegal search or seizure, the attenuation doctrine acts as a reasonable check on the exclusionary rule's fruit of the poisonous tree doctrine.

The United States Supreme Court recently explained "[t]he attenuation doctrine evaluates the causal link between the government's unlawful act and the discovery of evidence." Utah v. Strieff , 579 U.S. ----, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). The federal attenuation doctrine distills that causation evaluation to a three-factor test: (1) "[T]he temporal proximity between the unconstitutional conduct and the discovery of evidence," in other words, "how closely the discovery of evidence followed the unconstitutional search[;]" (2) "[T]he presence of intervening circumstances[;]" and, most importantly, (3) "[T]he purpose and flagrancy of the official misconduct." Id. at 2062 (internal quotation marks omitted) (quoting Brown v. Illinois , 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) ). In application, the federal attenuation doctrine essentially considers the totality of the circumstances surrounding the illegality and the discovered evidence.

By parsing the causal chain between the illegal search or seizure and the derivative evidence, the attenuation doctrine necessarily poses important questions like when, what, where, why, how the police obtained the objected-to evidence. Asking these questions helps courts examine the means by which police gained evidence following the initial illegality. When did police find the evidence? How much time passed between the illegality and securing the evidence? What intervening events occurred in that time frame? Did the police discover the evidence where the illegality occurred? How did the evidence present itself, through police action or through the defendant or through a third party? If answering these questions reveals the means of discovering the evidence were sufficiently separated from the illegal search or seizure by time, circumstances, location, and agency, then the link between the initial unreasonable search or seizure and the derivative evidence becomes sufficiently attenuated that the evidence is admissible.

As we see it, by examining the causal chain between the illegality and the discovered evidence or looking at the totality of the circumstances, attenuation is the natural, reasonable limit to the exclusionary rule's fruit of the poisonous tree doctrine. See State v. Eserjose , 171 Wash.2d 907, 259 P.3d 172, 179-80 (2011) (reasoning "the attenuation doctrine defines the parameters of the 'fruit of the poisonous tree' doctrine" since the two "stem from the same source"); Commonwealth v. Damiano , 444 Mass. 444, 828 N.E.2d 510, 518 (2005) (citation omitted) (explaining that since the attenuation doctrine asks whether the police exploited the illegality to gain evidence, "the attenuation rule is 'not an exception to the exclusionary rule but a test of its limits' "); Wong Sun , 371 U.S. at 487-88, 83 S.Ct. 407 (announcing the first iteration of the attenuation doctrine).

C. Indiana constitutional law embraces the attenuation doctrine.

Considering Indiana's unique constitution and our emphasis on reasonableness in the totality of the circumstances, we think the attenuation concept fits nicely within our jurisprudence. Indiana law has not endorsed a but-for exclusionary rule that automatically excludes all derivative evidence acquired from an illegal search or seizure. And the attenuation doctrine sets the outer limits for exclusion by tailoring the rule to its purpose-deterring police misconduct and defending Hoosiers' privacy rights. Today we hold the attenuation doctrine applies to claims challenging the reasonableness of a search or seizure under Article 1, Section 11.

II. Indiana's attenuation doctrine parallels the federal doctrine to the extent it considers the totality of the circumstances.

Having decided the attenuation doctrine applies to claims brought under Article 1, Section 11 of the Indiana Constitution, we must determine how to evaluate if evidence is sufficiently distinguishable or attenuated from the illegal search or seizure to become admissible at trial. In other words, what should Indiana's attenuation doctrine look like?

Thus far, Indiana's exclusionary rule parallels the federal rule in three areas. First, the two rules share similar origins and histories. Mers , 482 N.E.2d at 782 n.6. Early iterations of the federal rule cited the Fifth Amendment right against self-incrimination and Fourth Amendment right to be free from unreasonable searches and seizures as bases for excluding illegally obtained evidence. Id. Likewise, Indiana's nascent exclusionary rule relied upon the Indiana Constitution's counterparts: Article 1, Section 14 (self-incrimination) and Article 1, Section 11 (unreasonable searches and seizures). Id. Second, the rules already share two familiar exceptions. Like federal jurisprudence, Indiana law adopted the good-faith and new-crime exceptions. Third, the federal and state exclusionary rules share the same prime purpose-deterring police from illegal conduct. Membres , 889 N.E.2d at 273 (citing Spillers , 847 N.E.2d at 957 ) ("Indiana search and seizure jurisprudence, like federal Fourth Amendment doctrine, identifies deterrence as the primary objective of the exclusionary rule.").

Since Indiana's exclusionary rule compares to the federal rule, it reasons that our attenuation doctrine parallel (but not parrot) the federal exception. The theoretical and practical differences between Article 1, Section 11 and the Fourth Amendment prevent us from simply copying the federal rule. As we have said, the two provisions differ in both application and scope. Because Article 1, Section 11 hinges upon reasonableness considering the totality of the circumstances, this "Indiana provision in some cases confers greater protections to individual rights than the Fourth Amendment affords." Shotts , 925 N.E.2d at 726. These differences, however, do not demand a different attenuation test for Indiana.

Precisely because Indiana places as paramount what is reasonable in light of the totality of the circumstances and because the Indiana Constitution can offer more protection, it follows that Indiana's attenuation exception begin with the federal three-part test but not necessarily end there. An attenuation inquiry under Article 1, Section 11 will begin by considering three elements: (1) the timeline-particularly, the time elapsed between the illegality and the acquisition of the evidence; (2) the intervening circumstances-what, if any, intervening circumstances occurred in that time; and (3) the police misconduct. This third element, like the federal test, scrutinizes the purpose and egregiousness behind the official misconduct. It examines whether the police exploited the initial illegality to gain more evidence against the defendant and then whether "the evidence came from the 'exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " Turner v. State , 862 N.E.2d 695, 701 (Ind. Ct. App. 2007) (citation omitted). See also Wong Sun , 371 U.S. at 488, 83 S.Ct. 407 ; Brown , 422 U.S. at 603, 95 S.Ct. 2254.

We anticipate that most of the facts and circumstances in any given case will fall into one of these three categories. We, therefore, see this three-part test as a good starting point for considering attenuation because it essentially looks at the totality of the circumstances. To be sure, the above test considers the entire timeline, what happens during that timeline, and scrutinizes the police's misconduct-which comports with Indiana's Article 1, Section 11 precedent. See Brown v. State , 653 N.E.2d at 79 (focusing on the police activity). But even so, we will not rigidly limit ourselves to only these three factors. Every case must be considered on the totality of the circumstances. If other factors present themselves, they will be considered.

III. Wright's confessions were admissible evidence.

Turning to these particular facts and applying the above totality-of-the-circumstances test, we find Wright's statements to Agent Robertson and Detective Crouse sufficiently attenuated from the illegal search that we will not exclude them. Specifically, the timing of Wright's statements, the intervening circumstances between the search and the statements, and the non-flagrant, non-exploitative police misconduct, amply attenuate the evidence from the illegal search and seizure. Wright's incriminating statements, therefore, constituted admissible evidence at his trial.

A. The timeline

A weekend passed between the illegal search and seizure. Agent Robertson took possession of Wright's computers on a Friday afternoon and Wright's incriminating statements came on the following Monday. He had two full days, free from police presence, to mull his options or decide what to say when Robertson returned. Yet he did not seek counsel from friends, family, or an attorney. Wright did not have to make a split-second decision on whether to speak with police; he had the benefit of time. His confessions cannot be attributed to mid-search nervous ramblings. Wright's statements were temporally detached from the illegality.

B. The intervening circumstances

Much happened between the search and Wright's confessions. Wright initiated a conversation with law enforcement by inquiring into when he would get back his computer equipment. Though not under arrest, he voluntarily spoke with Agent Robertson. And, without being asked, Wright admitted that he had sexual contact with W.S. and F.S.

Only after this disclosure did Agent Robertson formally arrest Wright and take him to the Hartford City Police Department. There Wright received Miranda warnings (both written and oral) and waived Miranda . Then he participated in a voluntary discussion with Detective Crouse where he admitted to the molestations. These are compelling intervening circumstances supporting attenuation.

C. The police misconduct

The police did not commit flagrant misconduct here or exploit the illegal search. Based on his testimony at the suppression hearing, Agent Robertson believed he presented Wright with two constitutional options: give verbal consent or wait for a federal search warrant. In fact, he testified that FBI procedure allowed him to get either written or verbal consent to a warrantless search. Although he thoroughly discussed the two options with 220's occupants, Agent Robertson failed to inform them (and Wright) that they could refuse consent. That omission prompted the trial court to suppress the evidence from the search. While we certainly don't condone Robertson's oversight, especially when he had consent forms in his vehicle, his failure to tell Wright he could refuse consent does not strike us as flagrant misconduct.

What's more, this record does not suggest the police manipulated Wright's invalid consent to search his computers in order to coerce him into confessing to child molestation. Agent Robertson arrived at Wright's home in the course of a federal child-pornography investigation. He did not suspect Wright to be a child molester.

When Agent Robertson spoke with Wright on the Monday following the search and seizure, he took pains to make sure Wright understood he was not under arrest and not required to talk to him. He allowed Wright to choose where they spoke. Once in the car, he reminded Wright the car doors were unlocked, and Wright could stop the conversation and leave at any time.

Only after Wright admitted to having child pornography on his computers did Agent Robertson say that FBI protocol required him to speak to any children living in the home. He did not ask Wright if he had any sexual contact with the children, but Wright voluntarily confessed to the molestations. Robertson immediately ended the interview and sought direction from local police because his federal investigation just gained a state layer.

Upon taking custody of Wright, the Hartford City Police behaved reasonably. The record does not suggest Detective Crouse exploited the illegal search. Detective Crouse Mirandized Wright and obtained a written waiver from him before interviewing him.

Considering the totality of the circumstances-the timeline, the intervening circumstances, and the police misconduct-we conclude that Wright's confessions were sufficiently attenuated from the unreasonable search so as to be purged of the primary taint. There was a meaningful time gap between the search and Wright's confessions during which he had no further contact with law enforcement. Once he did encounter law enforcement again, Wright voluntarily spoke with Agent Robertson and Detective Crouse and disclosed he molested two children. And scrutinizing the police conduct here shows that law enforcement did not flagrantly flout Wright's constitutional right against unreasonable searches and the police did not exploit that illegal search to secure his confessions. Accordingly, Wright's statements amounted to admissible evidence, and the trial court rightly admitted them.

IV. Wright's 60-year sentence is not inappropriate.

Since it reversed the convictions, the Court of Appeals did not address Wright's argument that his sixty-year sentence proved inappropriate considering his crime and character. Wright requested we revise his sentence downward to thirty years and the State countered by asking us to revise the sentence upward to 120 years. Having granted transfer and taking jurisdiction over this matter, we are duty-bound to address these arguments now. Ind. Const. art. 7, § 6 (guaranteeing the right to one appeal); Ind. Crim. Rule 11 ; Clark v. State , 506 N.E.2d 819, 821 (Ind. 1987).

The Indiana Constitution gives this Court the power to review and revise criminal sentences. art. 7, § 4. "We may revise a sentence authorized by statute, if, after due consideration of the trial court's decision, we find the sentence inappropriate in light of the nature of the offense and the character of the offender." Gibson v. State , 51 N.E.3d 204, 215 (Ind. 2016) (citing App. R. 7(B) ). The defendant "bears the burden of persuading us that his sentence is inappropriate." Id.

We find that Wright did not meet his burden here. He argued his character alone merited a lesser sentence; specifically, Wright noted he had no criminal history, he admitted his crimes, he appreciated the wrongfulness of his conduct, and he had been victimized as a child. We find these reasons unconvincing, especially in light of the crimes he committed. Over the course of a year, Wright repeatedly molested two of his best friend's young children. He occasionally filmed himself abusing four-year-old F.S. and showed it to eleven-year-old W.S. During this time Wright also viewed and downloaded child pornography. No positive character traits, no matter how admirable or sympathetic, can redeem these crimes.

The State rightly points out that our constitutional authority to review and revise criminal sentences under Article 7, Section 4 also includes the power to increase a defendant's sentence. See Kimbrough v. State , 979 N.E.2d 625, 630 (Ind. 2012) ; Carpenter v. State , 950 N.E.2d 719, 721 (Ind. 2011) ; Akard v. State , 937 N.E.2d 811, 813 (Ind. 2010) ; McCullough v. State , 900 N.E.2d 745, 750 (Ind. 2009). But we decline to exercise that power here. Wright's sixty-year sentence essentially amounts to a life-sentence for this thirty-three-year-old credit restricted felon. Even though Wright committed unspeakable crimes against children, we think his sixty-year sentence not inappropriate.

Conclusion

Today we hold that the Indiana Constitution embraces the attenuation doctrine. In our view, the attenuation concept settles well into Indiana's distinctive constitutional landscape since it essentially considers what is reasonable given the totality of the circumstances. By grafting the attenuation doctrine onto our Article 1, Section 11 jurisprudence we fix it as the reasonable, natural limit to the exclusionary rule. In application, our attenuation test will begin by examining the timeline between the illegality and finding the derivative evidence, the intervening circumstances occurring over that timeline, and the initial police misconduct. But if other circumstances arise strengthening or weakening attenuation, then they must also be considered. Applying this test here, we conclude Wright's statements to law enforcement were sufficiently attenuated from the illegal search so as to be purged of the original taint and these were admissible at trial. We, therefore, affirm Wright's convictions.

Rush, C.J., and David, Massa, and Slaughter, JJ., concur.

      Agent Robertson testified that "TOR" stands for The Onion Router. Tr. 16. He likened TOR to the "dark web" where websites are theoretically "completely anonymous and completely unidentifiable." Id. at 17. He explained that when a person accesses a website via the TOR network the site's identifying information "will bounce between hundreds of servers across the world," making it nearly impossible for law enforcement to track and subpoena every server. Id.

      Whether Indiana's exclusionary rule includes the attenuation doctrine is a matter of first impression for this Court, although the Court of Appeals splintered when considering the question. Compare Trotter v. State , 933 N.E.2d 572, 583 (Ind. Ct. App. 2010) ("[W]e hold that the attenuation doctrine has no application under the Indiana Constitution."), and Gyamfi , 15 N.E.3d at 1137 ("[T]he attenuation doctrine has no place in the jurisprudence of Article 1, Section 11 of the Indiana Constitution."), with Turner v. State , 862 N.E.2d 695, 700-02 (Ind. Ct. App. 2007) (applying the attenuation doctrine, but suppressing evidence obtained from an illegal search because the evidence was not sufficiently attenuated from the original taint), and State v. Foster , 950 N.E.2d 760, 763 n.2 (Ind. Ct. App. 2011) (finding attenuation applicable to an Article 1, Section 11 challenge, but also acknowledging the Trotter court rejected the attenuation doctrine).