Kenner v. State

• Decision Date: 06 January 1999
• Docket Number: No. 49A04-9802-CR-89,49A04-9802-CR-89
• Parties: Paul KENNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1122

703 N.E.2d 1122

Paul KENNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-9802-CR-89.

Court of Appeals of Indiana.

Jan. 6, 1999.

John (Jack) F. Crawford, Crawford & Rader, Indianapolis, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Kimberly MacDonald, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

RUCKER, Judge.

In this interlocutory appeal Paul Kenner challenges the trial court's denial of his motion to suppress evidence. Kenner phrases the issues as follows: (1) is the "plain smell" test valid under Article One, Section Eleven of the Constitution of Indiana, and (2) did the trial court err in finding that under the totality of the circumstances the detention of Kenner for one hour was reasonable. We affirm.

At approximately 7:50 p.m. on September 16, 1996, Officer Paul McDonald of the Indianapolis Police Department stopped a red Camaro on Interstate 70 in the city of Indianapolis. The car was traveling sixty miles per hour in a fifty mile per hour speed zone. Officer McDonald had just been informed by another officer that a red Camaro and a tan Chevrolet Celebrity appeared to have been traveling together and passing each other at excessive rates of speed. The driver of the Celebrity was ultimately stopped by another officer and identified as Piere Riley. In the meantime Officer McDonald approached the driver of the Camaro and requested identification and registration. The driver complied and produced a driver's license in the name of Paul Kenner. The car was registered in the name of Piere Riley. At the officer's request Kenner exited his car. When he did so Officer McDonald smelled what he believed to be raw marijuana. The parties proceeded to the patrol car and once inside Officer McDonald informed Kenner that he was going to give Kenner a break. The officer wrote Kenner a warning ticket, returned Kenner's driver's license and registration, and then told Kenner the traffic stop was over. The time was 8:01 p.m. Officer McDonald then asked Kenner if he would mind answering a few questions. Kenner agreed and McDonald proceeded to ask Kenner a number of questions including where he was going, with whom was he traveling, and where he had been. He also asked Kenner if there were any illegal drugs in the car and Kenner answered not to his knowledge. His suspicions aroused, Officer McDonald then requested permission to search the car. Kenner responded that because the car did not belong to him, he did not want to give his consent to search. Officer McDonald then radioed for a canine unit. It was now 8:16 p.m. The officer informed Kenner that he was free to leave however the car had to remain. Kenner stayed. Approximately half an hour later the canine unit arrived. Walking the perimeter of the Camaro a drug sniffing dog alerted to the presence of illegal drugs. Officer McDonald searched the Camaro and discovered a white trash bag containing twelve pounds of a substance later identified as marijuana. Kenner was arrested and subsequently charged with possession of marijuana as a Class D felony and dealing in marijuana as a Class C felony. He thereafter filed a motion to suppress evidence which was denied after a hearing. This interlocutory appeal followed.

I.

Referring to Officer McDonald's testimony that while Kenner was exiting the Camaro the officer smelled raw marijuana, Kenner contends that Article one, Section Eleven of the Indiana Constitution prohibits the adoption of what he characterizes as the "plain smell" test. Kenner argues that odor alone cannot provide the basis for probable cause to search a vehicle. Continuing the argument, Kenner maintains that the test for determining whether a police search violates Article One, Section Eleven of the Indiana Constitution is different from that applied in federal jurisprudence.

We have no quarrel with Kenner's argument on this latter point. See Brown v. State, 653 N.E.2d 77 (Ind.1995) (distinguishing between Article One, Section Eleven and the Fourth Amendment on question of warrantless search of automobile). However, Kenner appears to misconstrue the distinction between probable cause justifying a search on the one hand and reasonable suspicion justifying an investigatory stop on the other. Facts necessary to demonstrate the existence of probable cause for a warrantless search are not materially different from those which would authorize the issuance of a warrant if presented to a magistrate. Young v. State, 564 N.E.2d 968, 970 (Ind.Ct.App.1991), trans. denied. "Probable cause" to issue a search warrant exists where the facts and circumstances would lead a reasonably prudent person to conclude that a search of those premises will uncover evidence of a crime. Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind.1994). As we discuss more fully below, Officer McDonald's search of Kenner's automobile occurred after a drug sniffing dog alerted to the presence of illegal drugs. The alert of the dog provided the probable cause necessary to obtain a search warrant. See U.S. v. Brown, 24 F.3d 1223, 1226 (10th Cir.1994) ("[W]hen the canine alerted to Brown's Lincoln, the authorities had 'probable cause' to impound the vehicle, ... and thereafter obtain a search warrant."). That the officer here did not attempt to obtain a warrant has not been raised as an issue on appeal. We note, however, that where there is probable cause to believe an automobile contains the fruit or instrumentality of a crime, the inherent mobility of the automobile justifies a warrantless search. Green v. State, 647 N.E.2d 694, 696 (Ind.Ct.App.1995). We also note that smell testing by a trained dog is not a search within the meaning of the Fourth Amendment. State v. Watkins, 515 N.E.2d 1152, 1154-55 (Ind.Ct.App.1987) (citing United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). Also, the Fourth Amendment does not prohibit law enforcement authorities from detaining personal property for a sniff test by a trained narcotics detection dog if there is reasonable suspicion to believe the property contains narcotics. Watkins, 515 N.E.2d at 1155.

In any event the proper focus of Kenner's "plain smell" argument is not upon the search of Kenner's automobile for which the officer had probable cause after the alert of the dog. Rather the proper focus is upon the investigatory stop that ultimately culminated into a search. This jurisdiction has adopted the Terry rationale in determining the legality of investigatory stops under Indiana's constitution. Taylor v. State, 639 N.E.2d 1052, 1054 (Ind.Ct.App.1994). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court established the rule that a police officer can briefly detain a person for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion of criminal activity. This is so even if the officer lacks probable cause under the Fourth Amendment. Terry, 392 U.S. at 27, 88 S.Ct. 1868. The requirement of reasonable suspicion is satisfied when the facts known to the officer, together with the reasonable inferences arising therefrom, would permit an ordinary prudent person to believe that criminal activity has or was about to occur. Taylor, 639 N.E.2d at 1054.

Here Officer McDonald stopped Kenner because he was speeding. Kenner does not contend the stop was pretextual. ¹ Once stopped, Kenner was given a warning ticket and questioned about his activities. ² Thereafter Kenner was detained for further investigation in part because Officer McDonald detected the smell of marijuana coming from Kenner's automobile. ³ Although there are no Indiana cases on point, ⁴ we note that in a number of jurisdictions the odor of marijuana alone can provide the basis for probable cause to search a vehicle. See, e.g., State v. Harrison, 111 Ariz. 508, 533 P.2d 1143 (Ariz.1975) (odor of marijuana emanating from vehicle stopped for traffic or equipment violations alone provided probable cause for search); State v. Sandoval, 92 N.M. 476, 590 P.2d 175 (1979); People v. Gremp, 20 Ill.App.3d 78, 312 N.E.2d 716 (1974) (probable cause to conduct warrantless search existed where officer detected the odor of marijuana after opening door of stopped car in attempt to view vehicle identification number); State v. Cross, 23 Or.App. 536, 543 P.2d 48 (1975) (where trained police officer, during investigation of accident at which defendant was present but not involved, smelled odor of marijuana emanating from clothing and person of defendant, officer had probable cause to conduct warrantless search of jacket that he observed defendant take off); U.S. v. Gorthy, 550 F.2d 1051 (5th Cir.1977), cert. denied (probable cause found where border patrol agent who detected strong smell of marijuana when opening the side door of motor home stopped at border checkpoint).

In affirming convictions involving marijuana this court has taken into consideration testimony concerning the drug's smell. In Corrao v. State, 154 Ind.App. 525, 290 N.E.2d 484 (1972) we held that the defendant's knowledge of the presence of marijuana could be inferred by its smell. In Bay v. State, 489 N.E.2d 1220, 1224 (Ind.Ct.App.1986) we observed that a police officer's testimony that the house "reeked of marijuana" supported the defendant's conviction. Implicit in the foregoing cases is the conclusion that the odor of marijuana is distinctive and capable of being detected by trained or experienced law enforcement personnel. See, e.g., U.S. v. Dallas, 672 F.Supp. 362, 365 (S.D.Ind.1987) (observing that raw marijuana has a distinctive odor that can be readily detected with experience and training).

Here, Officer McDonald testified that he had been a police officer for fifteen years, had made hundreds of arrests involving marijuana and other drugs, received specific training through drug interdiction schools, including a 40 hour course with a...