Myers v. State

• Decision Date: 20 July 2004
• Docket Number: No. 20A03-0310-CR-398.,20A03-0310-CR-398.
• Citation: 812 N.E.2d 146
• Parties: James Thomas MYERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

812 N.E.2d 146

James Thomas MYERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 20A03-0310-CR-398.

Court of Appeals of Indiana.

July 20, 2004.

Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Joby Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

James Myers' ("Myers") Motion to Suppress was denied in Elkhart Circuit Court. Myers appeals, presenting the following restated issue for review: Whether the search of Myers' vehicle was constitutionally permissible. Concluding the search of Myers' vehicle was constitutionally permissible, we affirm.

Facts and Procedural History

On March 14, 2002, Goshen Police Officer Shaun Turner ("Officer Turner") saw a vehicle driven by Myers turn without signaling and run a stop sign. Officer Turner activated his emergency lights and followed Myers until Myers pulled into his driveway. Officer Turner parked behind Myers' vehicle and exited his cruiser at 1:19 a.m.

Myers exited his vehicle and began to walk toward his house until Officer Turner ordered him back to his vehicle. When Myers returned to his vehicle, Officer Turner approached Myers and noticed a very strong odor of cologne, the visible presence of cologne mist in Myers' vehicle, and Myers' nervousness. Officer Turner was also aware of reports indicating that Myers was involved in drug trafficking.

Accordingly, Officer Turner requested assistance from a K-9 unit. While Officer Turner waited for the K-9 unit, he filled out a warning ticket for Myers' traffic violation and began a check of Myers' license and registration. At 1:32 a.m. and before Officer Turner had completed his usual duties associated with a traffic violation, a deputy sheriff arrived with a police dog, and the police dog sniffed the exterior of Myers' vehicle.

After less than a minute, the police dog indicated that it smelled something. Officers then searched the inside of Myers' vehicle without a warrant and discovered 56.3 grams of methamphetamine, 323.77 grams of marijuana, a drug ledger, scales, and packaging items.

Myers was charged with Class A felony possession of methamphetamine in excess of three grams with intent to deliver. Myers moved to suppress the evidence obtained from the search of his vehicle. Myers' motion was denied, and Myers was convicted. Myers was sentenced to thirty-two-years executed in the Department of Correction and to three-years suspended. Myers now appeals.

Discussion and Decision

Our review of the denial of a motion to suppress is similar to other sufficiency matters. Edwards v. State, 759 N.E.2d 626, 630 (Ind.2001). The record must disclose substantial evidence of probative value that supports the trial court's denial. Id. Though we consider unrefuted substantial evidence contrary to the trial court's ruling, we may not reweigh the evidence, and we consider conflicting evidence most favorably to the trial court's ruling. Griffith v. State, 788 N.E.2d 835, 839 (Ind.2003).

A. Fourth Amendment

The Fourth Amendment protects the right of the people to be free from unreasonable searches and seizures. California v. Acevedo, 500 U.S. 565, 570, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The Fourth Amendment protections against unreasonable searches and seizures have been extended to the States through the Fourteenth Amendment. Gibson v. State, 733 N.E.2d 945, 951 (Ind.Ct.App.2000) (citing Berry v. State, 704 N.E.2d 462, 464-65 (Ind.1998)).

Pursuant to the Fourth Amendment, the police must have probable cause before searching a vehicle. Id. at 952 (citing Young v. State, 564 N.E.2d 968, 970 (Ind.Ct.App.1991)). "Probable cause to search exists where the facts and circumstances within the knowledge of the officer making the search, based on reasonably trustworthy information, are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed." Myers v. State, 806 N.E.2d 350, 351 (Ind.Ct.App.2004), trans. granted (citing State v. Hawkins, 766 N.E.2d 749, 751 (Ind.Ct.App.2002), trans. denied).

Myers contends that the only evidence in the record supporting the conclusion that Officer Turner had probable cause to search his vehicle was his nervousness, the scent of cologne, and the police report and that this evidence is insufficient to establish probable cause. However, these factors were not what led Officer Turner to believe he had probable cause; rather, it was the scent identification of the police dog. See id. (a trained dog's alert to the scent of narcotics gives rise to probable cause to search a vehicle) (citing Cannon v. State, 722 N.E.2d 881, 884 (Ind.Ct.App.2000), trans. denied).

Myers challenges the use of the smell test to establish probable cause on the basis that his traffic stop had been completed by the time of the test. A smell test is not a search within the meaning of the Fourth Amendment. Id. (citing Kenner v. State, 703 N.E.2d 1122, 1125 (Ind.Ct.App.1999), trans. denied). However, detaining a person while such a test is performed raises Fourth Amendment concerns. D.K. v. State, 736 N.E.2d 758, 761 (Ind.Ct.App.2000) (once the purpose of the initial traffic stop has been completed, an officer cannot further detain the vehicle unless something that occurred during the stop generated the necessary reasonable suspicion to justify further detention).

Here, the record supports the trial court's determination that Myers' traffic stop was not completed by the time of the smell test. Myers was pulled over at 1:19 a.m., and the test — which lasted less than a minute — was conducted at 1:32 a.m. Officer Turner was still processing Myers' ticket during the test. A traffic stop lasting less than fifteen minutes is not excessive. Accordingly, Myers was not detained for longer than necessary.¹

Myers also challenges the absence of a warrant supporting the search of his vehicle. Searches conducted without judicial approval are per se unreasonable under the Fourth Amendment, subject to a few specifically established and well-delineated exceptions. Green v. State, 647 N.E.2d 694, 695 (Ind.Ct.App.1995), trans. denied. The State has the burden of proving that an exception to this requirement exists. Id.

A panel of this court recently concluded that, because a vehicle was surrounded by officers in a school parking lot, the vehicle was not mobile and a warrant was required before searching the vehicle. Scott v. State, 775 N.E.2d 1207, 1210-11 (Ind.Ct.App.2002), trans. denied. However, a subsequent panel of this court, considering almost identical circumstances, concluded that a warrant was not required. Myers, 806 N.E.2d at 352 n. 5 (disapproving of Scott).²

Myers urges this court to follow Scott and invalidate the warrantless search of his vehicle based upon the inherent immobility of a vehicle that is seized by the police. However, a review of precedent in this area reveals not only that the subsequent immobility of a vehicle is irrelevant to Fourth Amendment analysis but that the concern that evidence may be lost as a result of vehicular mobility is little more than a façade, as the mobility of a vehicle pulled over by an officer with probable cause is reduced almost to the point of elimination. See U.S. v. Ross, 456 U.S. 798, 830, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (Marshall, J. Dissenting)

(the mobility rationale is somewhat of a misnomer, since the police ordinarily can remove the vehicle's occupants and secure the vehicle on the spot).

Rather, the more persuasive rationale for the vehicular exception to the warrant requirement is the limited protection provided by the warrant requirement³ balanced against the costs associated with obtaining a warrant in the repetitive circumstances of traffic stops. Scott's holding was based upon the premise that officers surrounded the vehicle in question while additional officers detained the suspect and the police could have maintained the vehicle's immobile status while obtaining a warrant.⁴775 N.E.2d at 1210-11. Indeed, Scott's facts and holding demonstrate the cost of obtaining a warrant: several officers' time spent detaining the suspect and the vehicle while a warrant was obtained.⁵

Accordingly, we are of the belief that the vehicular exception to the Fourth Amendment warrant requirement is no longer substantially grounded upon the concern that the suspected evidence in question may be driven away and lost forever. Rather, a close examination of recent Fourth Amendment jurisprudence reveals that the vehicular exception is based upon a balancing of the exclusionary rule, the civil remedies available to suspects searched for improper motives, the reduced privacy expectation associated with regulated highways, and the fact that the warrant requirement merely exchanges an unwanted search for an unwanted seizure against the costs necessary to provide for the warrant requirement. See Bd. of Educ. v. Earls, 536 U.S. 822, 830, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)

(Fourth Amendment protections balance the effect upon individual rights against legitimate government interests).

For all of these reasons, we are persuaded by the holding of Myers rather than that of Scott. The Myers' court relied upon mandatory United States Supreme Court precedent to the effect that a vehicle may be searched without a warrant if (1) the vehicle is readily mobile or capable of being driven when the police first seized it and (2) there is probable cause that the vehicle contained contraband or evidence of a crime. See California v. Carney, 471 U.S. 386, 392-93, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985)

(emphasis added).

In the case before us, the police had probable cause to search Myers' vehicle, and Myers' vehicle was capable of mobility when the police seized it.⁶ Mandatory United States Supreme Court authority dictates that the evidence obtained from such a search is not excludable under the ...