I.G. v. State
| Decision Date | 10 September 2021 |
| Docket Number | Court of Appeals Case No. 21A-JV-479 |
| Citation | 177 N.E.3d 75 |
| Parties | I.G., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner |
| Court | Indiana Appellate Court |
Attorney for Appellant: Susan D. Rayl, Hand Ponist Smith & Rayl, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana
[1] While conducting a traffic stop of a car with three occupants, a police officer smelled burnt and raw marijuana. The officer searched I.G., finding a handgun on his person. The State alleged I.G. was a delinquent child for committing what would be Class A misdemeanor carrying a handgun without a license if committed by an adult. At the fact-finding hearing, I.G. objected to the admission of the handgun, arguing the search violated his rights under the Fourth Amendment of the United States Constitution. The juvenile court overruled his objection, admitted the handgun, and entered a true finding.
[2] I.G. now appeals. The State asks us to affirm the juvenile court because the officer had probable cause to arrest I.G. for possession of marijuana based on the odor of marijuana in the car (although no evidence was presented that marijuana was found) and therefore properly conducted a search incident to arrest. We, however, find that the odor of marijuana, by itself, was not enough to establish probable cause to arrest I.G. for possessing marijuana. The search of I.G. was not a valid search incident to arrest, and the court erred in admitting the handgun into evidence. We therefore reverse I.G.’s true finding.
[3] On the afternoon of December 29, 2020, Officer De'marquies Harvey with the Indianapolis Metropolitan Police Department pulled over a car for failing to signal. A second officer arrived on the scene shortly after Officer Harvey. The car had three occupants, including fifteen-year-old I.G. sitting in the front-passenger seat. When Officer Harvey approached the car, he smelled burnt and raw marijuana; however, it was "hard to distinguish the two." Tr. p. 12. Officer Harvey asked the occupants for their identifications and went back to his patrol car to check BMV records. Upon running the check, Officer Harvey learned that the driver had a warrant for his arrest for a "traffic offense." Id. at 13. Officer Harvey returned to the car and had the occupants get out. The occupants were "calm" and "[a]bsolutely cooperative," and they didn't make any furtive movements or give Officer Harvey "any cause or concern" for his safety. Id. at 15, 16, 17. Nonetheless, after handcuffing the driver of the car for the outstanding warrant, Officer Harvey conducted a pat down of I.G. for officer "safety," finding a handgun and "an extra magazine" on his person. Id. at 32. I.G. was arrested for having the gun.
[4] The State filed a petition alleging I.G. was a delinquent child for committing what would be Class A misdemeanor carrying a handgun without a license if committed by an adult. At the fact-finding hearing, Officer Harvey testified he smelled burnt and raw marijuana in the car; however, the State presented no evidence that marijuana was found either in the car or on the occupants. Officer Harvey also testified it was his practice to do "a safety check on absolutely every person [he] pull[s] out of the vehicle." Id. at 25. When Officer Harvey testified about the pat-down search he conducted on I.G., defense counsel objected to the admission of the handgun on the ground the search violated I.G.’s Fourth Amendment rights. Specifically, defense counsel argued there were no "articulable facts to support a reasonable belief by [Officer Harvey] that [I.G. was] armed and dangerous." Id. at 19. The juvenile court overruled the objection, admitted the handgun, and entered a true finding.
[5] I.G. now appeals.
[6] I.G. contends the juvenile court erred in admitting the handgun because the pat-down search violated his Fourth Amendment rights.1 The trial court has broad discretion in ruling on the admissibility of evidence. Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017). However, when a challenge to the admissibility of evidence is predicated on the constitutionality of a search, our review is de novo. Id.
[7] The Fourth Amendment protects against unreasonable searches and seizures. Combs v. State , 168 N.E.3d 985, 991 (Ind. 2021). A warrantless search or seizure is per se unreasonable, and the State must prove that one of the well-delineated exceptions to the warrant requirement applies. Id. The exception that Officer Harvey relied on, and that the State argued at the fact-finding hearing, was a pat down for officer safety. "After making a Terry stop, an officer may, if he has reasonable fear that a suspect is armed and dangerous, frisk the outer clothing of that suspect to try to find weapons." Johnson v. State , 157 N.E.3d 1199, 1205 (Ind. 2020) (citing Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ), cert. denied. "The purpose of this protective search ‘is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.’ " Id. (quoting Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ). "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry , 392 U.S. at 27, 88 S.Ct. 1868. Here, Officer Harvey testified the occupants did not give him any reason to fear for his safety; however, he patted down I.G. anyway because he pats everyone down. Appropriately, the State has abandoned this theory on appeal.
[8] Instead, the State contends a different exception applies: search incident to arrest. Specifically, the State argues Officer Harvey had probable cause to arrest I.G. for possessing marijuana based on the odor of marijuana in the car and therefore "the pat-down search of [I.G.’s] outer clothing was a valid search incident to arrest." Appellee's Br. p. 8. "[O]nce 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). "[A]s long as probable cause exists to make an arrest, the fact that a suspect was not formally placed under arrest at the time of the search incident thereto will not invalidate the search." State v. Parrott , 69 N.E.3d 535, 543 (Ind. Ct. App. 2017) (quotation omitted), reh'g denied , trans. denied. Probable cause to arrest arises when, at the time of the arrest, the arresting officer knows of facts and circumstances that would warrant a person of reasonable caution to believe that the defendant committed the criminal act in question. Thomas , 81 N.E.3d at 626. The amount of evidence necessary to satisfy the probable-cause requirement is evaluated on a case-by-case basis. Id.
[9] In support of its argument that Officer Harvey had probable cause to arrest I.G. for possessing marijuana and therefore properly conducted a search incident to arrest, the State relies on two cases, Maryland v. Pringle , 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), and Richard v. State , 7 N.E.3d 347 (Ind. Ct. App. 2014), trans. denied. In Pringle , a car with three occupants was stopped in the early-morning hours for speeding. Joseph Pringle was sitting in the front-passenger seat. During the stop, the officer received consent to search the car and found a large sum of rolled-up cash in the glove compartment "directly in front of Pringle" and five baggies of cocaine behind the backseat armrest and "accessible to all three men." Pringle , 540 U.S. at 372, 124 S.Ct. 795. "[A]ll three men denied ownership of the cocaine and money" and were arrested. Id. at 368, 124 S.Ct. 795. Pringle later confessed that the cocaine belonged to him. Pringle moved to suppress his confession on the ground it was the product of an illegal arrest. The trial court denied Pringle's motion, finding the officer had probable cause to arrest him.
[10] The sole question addressed by the United States Supreme Court was whether the officer had probable cause to believe Pringle had committed a crime. The Court concluded:
We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.
Id. at 372, 124 S.Ct. 795. The Court noted the result might have been different had one man admitted owning the money and cocaine. See id. at 374, 124 S.Ct. 795 ().
[11] Pringle doesn't support the proposition that the odor of marijuana, by itself, provides probable cause to arrest the occupants of a car for possessing marijuana. Unlike Pringle , where money and cocaine were found in a car before the front-seat passenger was arrested, here no evidence was admitted that marijuana was found.
[12] In the second case, Richard , a police officer pulled over a car for crossing the center line. The car had two occupants, the driver and Charla Richard. The officer arrested the driver on an outstanding warrant and then had his trained canine walk around the car. When the canine alerted, the officer asked Richard to step out of the car. In searching Richard, the officer noticed she appeared to favor one side. When the officer asked Richard to raise her arm, a tin containing methamphetamine fell to the ground. Richard was arrested for possessing methamphetamine.
[13] On appeal, Richard argued "her mere presence as a passenger in the suspected...
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