Edmond v. State

• Citation: 951 N.E.2d 585
• Decision Date: 14 July 2011
• Docket Number: No. 49A04–1012–CR–756.,49A04–1012–CR–756.
• Parties: Shon L. EDMOND, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

951 N.E.2d 585

Shon L. EDMOND, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A04–1012–CR–756.

Court of Appeals of Indiana.

July 14, 2011.

Suzy St. John, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

While conducting a traffic stop, an officer discovered that Shon L. Edmond was driving with only a learner's permit and without anyone accompanying him. Because the officer was going to tow Edmond's vehicle and because the officer smelled burnt marijuana coming from the vehicle and from Edmond's breath, the officer asked Edmond to get out of the vehicle. The officer conducted a pat-down search and removed a bag of marijuana from Edmond's pocket. Edmond was charged with possession of marijuana. At his bench trial, Edmond moved to suppress the marijuana, contending that the search violated his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The trial court denied his motion, and Edmond was convicted of possessing marijuana. Because the officer had probable cause to arrest Edmond, the search was a valid search incident to arrest, and Edmond's constitutional rights were not violated. Therefore, we affirm.

Facts and Procedural History

On March 23, 2010, Indianapolis Metropolitan Police Department Officer David Drennan initiated a traffic stop because he saw Edmond disregard a stop sign. Edmond pulled over immediately. When Officer Drennan approached Edmond's vehicle, he smelled a strong odor of burnt marijuana coming from Edmond's vehicle and breath. Officer Drennan checked Edmond's identification and learned that he had only a learner's permit. Edmond was not accompanied by licensed driver, so Officer Drennan issued a citation.¹

Officer Drennan planned to have the vehicle towed, so he asked Edmond to get out of the vehicle. Edmond was polite and cooperative and did not make any furtive movements or threats. Officer Drennan conducted a pat-down search and felt a bulge in Edmond's pocket, which he believed to be marijuana. Officer Drennan removed a baggie containing material that was later confirmed to be marijuana.

Edmond was charged with possession of marijuana as a class A misdemeanor. Edmond's case was tried to the bench. During the trial, Edmond moved to suppress the evidence obtained from the pat-down. Officer Drennan testified that for officer safety, he conducts a search for weapons on any person who gets out of a car during a traffic stop. Officer Drennan stated that he also conducted a pat-down of Edmond due to the smell of marijuana. Officer Drennan asserted that, based on his training and experience, he believed that the bulge in Edmond's pocket was marijuana, but he acknowledged that he “couldn't be positive.” Tr. at 17–18. The trial court denied Edmond's motion to suppress and found him guilty as charged. Edmond now appeals.

Discussion and Decision

Edmond contends that the warrantless search of his person violated his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution and that the marijuana removed from his pocket should have been excluded. Our standard of review is well settled:

Our standard of review of a trial court's determination as to the admissibility of evidence is for an abuse of discretion. Smith v. State, 754 N.E.2d 502, 504 (Ind.2001). We will reverse only if a trial court's decision is clearly against the logic and effect of the facts and circumstances. Id. We will not reweigh the evidence, and we consider any conflicting evidence in favor of the trial court's ruling.

[ Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied ]

. However, we must also consider the uncontested evidence favorable to the defendant. Id. Although a trial court's determination of historical facts is entitled to deferential review, we employ a de novo standard when reviewing the trial court's ultimate determinations of reasonable suspicion and probable cause. Myers v. State, 839 N.E.2d 1146, 1150 (Ind.2005) (citing Ornelas v. United States, 517 U.S. 690, 695–99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

Lindsey v. State, 916 N.E.2d 230, 238 (Ind.Ct.App.2009) (footnote omitted), trans. denied.

I. Fourth Amendment

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures.² Burkes v. State, 842 N.E.2d 426, 429 (Ind.Ct.App.2006), trans. denied. “Generally, the Fourth Amendment prohibits warrantless searches and seizures. When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search.” Ratliff v. State, 770 N.E.2d 807, 809 (Ind.2002) (citation omitted). There are two levels of police investigation that implicate the Fourth Amendment:

First, the Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause. Probable cause to arrest exists where the facts and circumstances within the knowledge of the officers are sufficient to warrant a belief by a person of reasonable caution that an offense has been committed and that the person to be arrested has committed it. Brinegar v. United States, 338 U.S. 160, 175–76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Second, it is well-settled Fourth Amendment jurisprudence that police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Accordingly, limited investigatory stops and seizures on the street involving a brief question or two and a possible frisk for weapons can be justified by mere reasonable suspicion.Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000) (some citations omitted).

Edmond concedes that he was validly stopped for a traffic violation, nor does he dispute that Officer Drennan had a valid basis for commanding him to exit his vehicle. See Reinhart v. State, 930 N.E.2d 42, 45 (Ind.Ct.App.2010) ( “It is well settled that police officers may stop a vehicle when they observe minor traffic violations.”). He also concedes that the smell of marijuana coming from his vehicle would have established probable cause to search the vehicle.³ See State v. Hawkins, 766 N.E.2d 749, 752 (Ind.Ct.App.2002) (“[W]e have no hesitation in deciding that when a trained and experienced police officer detects the strong and distinctive odor of burnt marijuana coming from a vehicle, the officer has probable cause to search the vehicle. That is true under both the Fourth Amendment of our federal constitution and under Article 1, Section 11 of the Indiana Constitution.”), trans. denied. However, he argues that probable cause to search his vehicle does not extend to his person. See United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed. 210 (1948) (after seeing one passenger holding counterfeit gasoline ration coupons, police arrested and searched all occupants of the car and found that Di Re also had counterfeit coupons in his pockets; the Supreme Court reversed his conviction stating, “We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.”); Wyoming v. Houghton, 526 U.S. 295, 303, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (explaining that Di Re “turned on the unique, significantly heightened protection afforded against searches of one's person”).

Edmond further argues that the pat-down search was not justified as part of the Terry stop. Because he was cooperative and made no furtive movements, Edmond argues the pat-down search was not justified by concern for officer safety. He also notes Officer Drennan's testimony that he normally pats down anyone who exits a vehicle during a traffic stop and argues that the officer's “[s]tandard practice is not a permissible reason to conduct a pat down.” Swanson v. State, 730 N.E.2d 205, 211 (Ind.Ct.App.2000). In the alternative, Edmond argues that even if the pat-down was permissible, seizure of the marijuana was not justified by the “plain feel” doctrine because it was not immediately apparent that the bulge in his pocket was contraband.⁴ Thus, Edmond argues that the search of his person was not supported by probable cause or reasonable suspicion.

The State argues that when Officer Drennan smelled marijuana on Edmond's breath, he had probable cause to arrest Edmond for possession of marijuana, and therefore, the search was permissible as a search incident to arrest. Probable cause to arrest exists when the officer has knowledge of facts and circumstances that would warrant a person of reasonable caution to believe that a suspect has committed or is in the process of committing a criminal act. Jackson v. State, 597 N.E.2d 950, 956–57 (Ind.1992), cert. denied. “The United States Supreme Court has held that once a lawful arrest has been made, authorities may conduct a ‘full search’ of the arrestee for weapons or concealed evidence.” Edwards v. State, 759 N.E.2d 626, 629 (Ind.2001) (quoting United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)).

The State relies on Sebastian v. State, 726 N.E.2d 827 (Ind.Ct.App.2000), trans. denied. In that case, officers observed Sebastian swerving in and out of his lane. Believing that Sebastian was intoxicated, the officers initiated a traffic stop. After smelling burnt marijuana emanating from the vehicle, the officers asked Sebastian to step out of his vehicle. Because it was cold outside, the officers intended to allow Sebastian to sit in the patrol car during...