K.K. v. State
| Decision Date | 22 June 2015 |
| Docket Number | No. 49A02–1410–JV–687.,49A02–1410–JV–687. |
| Citation | 40 N.E.3d 488 |
| Parties | K.K., Appellant–Respondent, v. STATE of Indiana, Appellee–Petitioner. |
| Court | Indiana Appellate Court |
Ruth Johnson, Marion County Public Defender Agency, Timothy J. O'Connor, O'Connor & Auersch, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
KIRSCH
, Judge.
[1] K.K., a juvenile, brings this appeal after he was adjudicated a delinquent child for having committed the offense of dangerous possession of a firearm,1 a Class A misdemeanor. He raises one issue that we restate as: whether the odor of burnt marijuana emanating from a vehicle in which K.K. was a passenger provided probable cause for officers to arrest the car's three occupants, such that the loaded handgun found during the subsequent search of K.K. was properly admitted into evidence.
[2] We affirm.
[3] While on patrol in the early morning hours of April 12, 2014, Officer Vincent Stewart of the Indianapolis Metropolitan Police Department observed a two-toned Ford Crown Victoria that appeared similar to those used by law enforcement. It caught his attention because “we have a lot of impersonators and they are still driving these former police vehicles.” Tr. at 6
. He also observed that the windows were tinted “very dark.” Id. Officer Stewart ran a search of the plates and learned that it was previously registered to a sheriff's office or police department and that the current registered owner's driver's license was suspended. Officer Stewart then initiated a traffic stop of the vehicle.
[4] As is his custom, Officer Stewart approached the car from the passenger's side, and he saw that, in addition to the adult male driver, there were two additional occupants, not previously observable because of the tinted windows.2 The driver's son was the front seat passenger, and his friend, K.K., age seventeen, was seated in the backseat. As Officer Stewart was speaking with and obtaining identification from the three occupants, he noticed a strong odor of burnt marijuana coming from inside the vehicle. This concerned him, and he radioed for assistance. Rather than returning to his patrol car, Officer Stewart remained at the stopped vehicle and continued to speak with the three individuals inside it, including asking the occupants if there were “any guns, knives, or weapons of mass destruction in the vehicle,” which he always asks during traffic stops for officer safety, and the response he received was that there were none. Id. at 12. Another officer arrived at the scene, at which time Officer Stewart directed the three occupants to step out of the vehicle.
[5] One or both of the officers conducted a “quick pat down” of the three occupants, from which nothing was found, and they were placed in handcuffs and told to sit on the curb. Id. at 13. A third officer, Officer Michael Leepper, arrived at the scene about that time. While Officer Stewart stepped away, Officer Leepper positioned himself to supervise the three who were handcuffed. Officer Leepper observed K.K. make a furtive movement by “blading” or turning his body to his left side. Id. at 29–30. Officer Leepper also noticed that K.K. looked “very nervous,” in contrast to the other two individuals. Id. at 31. Suspecting that K.K. was attempting to conceal something or trying to retrieve something, Officer Leepper directed K.K. to stand, at which time Officer Leepper patted down K.K. and discovered a loaded Glock handgun in the pocket of his basketball shorts.3 The serial number of the firearm had been scratched out.
[6] The State filed a petition alleging that K.K., then-seventeen years old, was a delinquent child for having committed the offenses of dangerous possession of a firearm, a Class A misdemeanor, and carrying a handgun without a license, a Class A misdemeanor if committed by an adult.
[7] At the fact-finding hearing, counsel for K.K. moved to suppress the handgun and objected to its admission several times during the testimonies of Officer Stewart and Officer Leepper. Id. at 9, 13, 34–36. The trial court denied the motions, admitted the handgun into evidence, and ultimately adjudicated K.K. a delinquent child, entering a true finding for the offense of dangerous possession of a firearm and dismissing the other charge. At the subsequent dispositional hearing, the trial court placed K.K. on probation with a suspended commitment to the Indiana Department of Correction and ordered K.K. to participate in two specified programs. K.K. now appeals.
[8] K.K. claims he was unlawfully seized in violation of the Fourth Amendment, and the evidence obtained from that seizure, the handgun, was “fruit of the poisonous tree” and should have been suppressed. Appellant's Br. at 1, 6, 10. Because K.K.'s case proceeded to a fact-finding hearing, where he renewed the motion to suppress and objected to the admission of that evidence, his appeal is properly framed as a request to review the trial court's ruling on the admissibility of the evidence. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind.2014)
(). The trial court has broad discretion to rule on the admissibility of evidence. Meek v. State, 950 N.E.2d 816, 819 (Ind.Ct.App.2011), trans. denied;
Fentress v. State, 863 N.E.2d 420, 422–23 (Ind.Ct.App.2007). We will reverse a trial court's rulings on the admissibility of evidence only when the trial court abused its discretion. Bell v. State, 13 N.E.3d 543, 544–45 (Ind.Ct.App.2014), trans. denied. An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights. Guilmette, 14 N.E.3d at 40. “But when an appellant's challenge to such a ruling is predicated on an argument that impugns the constitutionality of the search or seizure of the evidence, it raises a question of law, and we consider that question de novo.” Id. at 40–41
(citing Kelly v. State, 997 N.E.2d 1045, 1050 (Ind.2013) ).
[9] K.K. contends that his arrest violated his protections under the Fourth Amendment, which states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. K.K. maintains that, under Indiana law, the smell of burnt marijuana coming from the car gave officers probable cause to conduct a warrantless search of the vehicle, but it did not give them probable cause to seize him by placing him in handcuffs and ordering him to sit on the curb. See Appellant's Br. at 9 (citing State v. Hawkins, 766 N.E.2d 749, 752 (Ind.Ct.App.2002)
, trans. denied ). He asserts that there “was no legitimate concern for officer safety,” and further, no marijuana was found during Officer Stewart's search of the car, such that the officer's claim that he smelled marijuana was pretextual and the officers were on a “fishing expedition.”4
Id. at 3. Therefore, K.K. claims that the arrest was unlawful and anything stemming from it was fruit of the poisonous tree.
[10] A search incident to lawful arrest is an exception to the warrant requirement under the Fourth Amendment. Bell, 13 N.E.3d at 545
(citing Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ). An arrest is lawful if it is supported by probable cause. Fentress, 863 N.E.2d at 423. Probable cause for an arrest exists if at the time of the arrest the officer has knowledge of facts and circumstances that would warrant a person of reasonable caution to believe that the suspect has committed the criminal act in question. Kelly, 997 N.E.2d at 1051 ; Bell, 13 N.E.3d at 545. A police officer's subjective belief concerning whether he had probable cause to arrest a defendant has no legal effect. Bell, 13 N.E.3d at 545. The ultimate determination of probable cause is reviewed de novo. Id. Here, K.K. argues that “[t]he smell of burnt marijuana coming from inside of the car in which K.K. was a back seat passenger did not constitute probable cause for officers to arrest him and conduct a search of his person.” Appellant's Br. at 6. After careful consideration, we disagree.5
[11] In reaching this decision, we observe our court's analyses in recent decisions involving similar fact patterns, including Bell and Meek. In Meek, an officer conducted a traffic stop of a vehicle that he believed was driving away from an accident scene; the car had very dark window tint so that he could not see inside it. Upon stopping the vehicle, the officer learned that there were three occupants, two adults and a minor, and Meek was the driver. The officer smelled raw marijuana emanating from the car. 950 N.E.2d at 818
. The officer called for back-up assistance. Upon inquiry, the occupants responded that there were no weapons or contraband in the car. The officers on the scene asked the two adults to step out of the car, and one officer read Miranda rights to the men, at which time Meek told the officer he had a weapon. The officers conducted a pat-down search of both men and found cash and Meek's gun, as well as his permit for it. The officers did not find marijuana on either suspect and found none in the car. When questioned about the odor of marijuana coming from the car, Meek stated that he had previously smoked marijuana that day. However, because the officers had smelled raw, not burnt, marijuana, they conducted a more thorough pat-down search, and a baggie fell from Meek's leg containing what officers suspected was marijuana and also white pills. Meek's motion to suppress was denied. Id....
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