Kimble v. State
| Decision Date | 22 October 2013 |
| Docket Number | No. 49A02-1303-CR-268,49A02-1303-CR-268 |
| Parties | TONY KIMBLE, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
BARBARA J. SIMMONS
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven J. Rubick, Magistrate
On September 29, 2012, while working as an off-duty police officer at the Keystone North Apartments, Marion County Sheriffs Deputy James Ellis observed Appellant-Defendant Tony Kimble entering the driver's seat of a parked vehicle after displaying signs of intoxication. Believing that Kimble was intoxicated, Deputy Ellis approached the vehicle and asked Kimble for identification. While reviewing Kimble's identification, Deputy Ellis saw Kimble reach into his left front pocket. Kimble did not remove his hand from his pocket when Deputy Ellis requested that he do so. In light of Kimble's failure to comply with his request and out of concerns for officer safety, Deputy Ellis asked Kimble to exit the vehicle. When Kimble opened the door to the vehicle, Deputy Ellis saw two small bags containing marijuana in plain view on the floorboard of the driver's area of the vehicle.
Kimble was subsequently charged with one count of Class A misdemeanor possession of marijuana. At trial, Kimble moved to suppress all evidence recovered during the course of his encounter with Deputy Ellis. This motion was denied. Kimble did not, however, make a separate objection to the admission of the marijuana. Following a bench trial, Kimble was found guilty of Class A misdemeanor possession of marijuana and sentenced to time served. On appeal, Kimble contends that the trial court abused its discretion in denying his motion to suppress. We affirm.
On September 29, 2012, Deputy Ellis was working security at the Keystone NorthApartments1 ("apartment complex"). The apartment complex is government housing. There are signs posted throughout the apartment complex that indicate that any resident or visitor to the apartment complex must carry proper government identification at all times.
While completing a routine foot patrol of the apartment complex, Deputy Ellis observed Kimble exit an apartment and approach a parked vehicle. Deputy Ellis observed that Kimble displayed poor balance, swayed from side to side, and almost fell over several times. Deputy Ellis's training and experience led him to believe that Kimble was "possibly in the state of intoxication." Tr. p. 8.
Deputy Ellis approached Kimble after Kimble entered the driver's seat of the parked vehicle. Deputy Ellis asked Kimble for identification. Kimble complied with Deputy Ellis's request. While Deputy Ellis was reviewing Kimble's identification, Deputy Ellis saw Kimble reach into his left front pocket. Deputy Ellis asked Kimble to remove his hand from his pocket. Kimble, however, did not comply with Deputy Ellis's request and continued "fumbling around" in his pocket. Tr. p. 11. Citing concerns for officer safety, Deputy Ellis then asked Kimble to exit the vehicle. When Kimble opened the door to the vehicle, Deputy Ellis saw two small bags of a green leafy substance in plain view on the floorboard of the driver's area of the vehicle. Though his training and experience, Deputy Ellis knew that the green leafy substance was marijuana. Combined, the two bags contained 2.62 grams of marijuana.
Kimble was subsequently charged with one count of Class A misdemeanor possessionof marijuana. On February 25, 2013, the trial court conducted a bench trial during which Kimble moved to suppress all evidence recovered during the course of his encounter with Deputy Ellis. Specifically, Kimble argued that his encounter with Deputy Ellis violated his constitutional rights because Deputy Ellis did not have any reason to stop him. The trial court denied Kimble's motion to suppress. Kimble did not make a separate objection to the admission of the marijuana. Following trial, the trial court found Kimble guilty of Class A misdemeanor possession of marijuana and sentenced him to time served.
Kimble contends that the trial court erred in denying his motion to suppress the evidence obtained during his encounter with Deputy Ellis. Although Kimble originally challenged the admission of the evidence through a motion to suppress, he appeals following a completed trial and thus challenges the admission of the evidence at trial. "Accordingly, 'the issue is more appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial.'" Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007) (quoting Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003)).
A trial court has broad discretion in ruling on the admissibility of evidence. Washington, 784 N.E.2d at 587 (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind. Ct. App. 2001)). Accordingly, we will reverse a trial court's ruling on the admissibility of evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093, 1095 (Ind. Ct. App. 2000)). In the instant matter, Kimble argues that the trial court abused its discretion in admitting the marijuana discovered during his encounter with Deputy Ellis because the marijuana was discovered in violation of his constitutional rights under both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution.
As an initial matter, we note that while Kimble moved to suppress all evidence discovered during his encounter with Deputy Ellis, Kimble did not make a contemporaneous objection to the admission of the marijuana at trial. Failure to make a contemporaneous objection to the admission of evidence at trial generally results in waiver of the error upon appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010); Lewis v. State, 755 N.E.2d 1116, 1122 (Ind. Ct. App. 2001). However, waiver notwithstanding, we will address the merits of Kimble's claims.
Kimble argues that the trial court abused its discretion in admitting the marijuanafound in his vehicle during his encounter with Deputy Ellis into evidence because Deputy Ellis lacked the reasonable suspicion that a crime had occurred or was about to occur when he initiated the warrantless stop during which the marijuana was discovered.
The Fourth Amendment to the United States Constitution provides all citizens with "[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures U.S. CONST, amend. IV; see also Black v. State, 810 N.E.2d 713, 715 (Ind. 2004). The Fourth Amendment's protection against unreasonable search and seizure has been extended to the states through the Fourteenth Amendment. See Berry v. State, 704 N.E.2d 462, 464-65 (Ind. 1998). The protection against unreasonable seizures includes seizure of the person. Californiav. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d690 (1991) (citationomitted). However,not all police-citizen encounters implicate the Fourth Amendment. See, e.g., Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (); see also Molino v. State, 546 N.E.2d 1216, 1218 (Ind. 1989). A seizure does not occur, for example, simply because a police officer approaches a person, asks questions, or requests identification. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also Sellmerv. State, 842N.E.2d 358, 360 (Ind. 2006) ().
Instead, a person is seized for Fourth Amendment purposes when, considering all the surrounding circumstances, the police conduct "would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Royer, 460 U.S. 491,497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion); see also INS v. Delgado, 466 U.S. 210, 216-17, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) ().
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