State v. Parrott

• Decision Date: 06 February 2017
• Docket Number: Court of Appeals Case No. 49A02-1606-CR-1271
• Citation: 69 N.E.3d 535
• Parties: STATE of Indiana, Appellant-Plaintiff, v. James PARROTT, Appellee-Defendant
• Court: Indiana Appellate Court

69 N.E.3d 535

STATE of Indiana, Appellant-Plaintiff,

v.James PARROTT, Appellee-Defendant

Court of Appeals Case No. 49A02-1606-CR-1271

Court of Appeals of Indiana.

February 6, 2017

Rehearing Denied April 13, 2017

Attorneys for Appellant: Curtis T. Hill, Jr., Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, Indiana.

Attorney for Appellee: Brooke N. Russell, Indianapolis, Indiana.

Crone, Judge.

Case Summary

[1] A police officer detected a strong odor of raw marijuana emanating from James Parrott's vehicle during a traffic stop. The officer had Parrott exit the vehicle, handcuffed him, searched him, and found raw marijuana and other contraband in his pockets. The State charged Parrot with marijuana possession and other crimes. Parrott filed a motion to suppress the evidence seized during the search, arguing that the officer did not have probable cause to conduct a warrantless search because the officer did not smell marijuana on him after he exited the vehicle. The trial court granted Parrott's motion. The State did not dismiss the charges and appealed the ruling.

[2] Parrott filed a motion to dismiss the State's appeal, arguing that the State was required to dismiss the charges before it could appeal the suppression order. Because the ultimate effect of the order is to preclude further prosecution of the drug-related charges, at a minimum, we deny Parrott's motion to dismiss.

[3] The State argues that the trial court erred in granting Parrott's motion to dismiss, asserting that the officer had probable cause to arrest Parrott based on the strong odor of raw marijuana emanating from his vehicle and conduct a warrantless search incident to that arrest. We agree and therefore reverse and remand for further proceedings.

Facts and Procedural History

[4] The relevant facts are undisputed. On November 13, 2015, Indianapolis Metropolitan Police Department Officer Andrew Clark was in his patrol car and saw a vehicle run a stop sign. Officer Clark stopped the vehicle and approached the driver's side. Parrott was the vehicle's only occupant. The officer asked Parrott for his registration and ID. As the officer spoke with Parrott, he detected an "odor of raw marijuana coming from the vehicle" that was "pretty strong." Tr. at 10, 11. According to Officer Clark, raw marijuana has "no burnt or singed smell" and smells "[k]ind of almost like a plant[,]" whereas the smell of burnt marijuana is "similar to like a cigarette smell where it's something more burned. It's a more of a singed-in-the-air kind of smell at least for me." Id . at 8. The officer did not see any marijuana in plain view.

[5] Officer Clark had Parrott step out of the vehicle, at which point "there was not a distinguishable odor [of marijuana] from him." Id . at 19. In Officer Clark's experience, "a passenger compartment is confined space. It's an enclosed area. So if it's not exposed to any outside sources, [...] that smell is going to linger." Id . at 23-24. Also, "the smell from a passenger compartment is obviously stronger than it would be a smell coming from an actual individual person." Id . at 24. Officer Clark handcuffed Parrott and searched him "because of the odor of marijuana coming from the car.... [w]hen he was in it." Id . at 19. The officer found "a half burnt marijuana cigarette and a yellow baggie" with crack cocaine in Parrott's right pants pocket and a "small baggie of a green leafy substance that [the officer] knew to be marijuana" and two Percocet

pills in his left pants pocket. Id . at 12-13. The officer put the contraband in an envelope and put Parrott in his patrol car. Two backup officers arrived, and Officer Clark went to search Parrot's vehicle. Parrott ran away from the backup officers, who apprehended him. Officer Clark found no contraband in Parrott's vehicle.

[6] The State charged Parrott with six counts: level 6 felony cocaine possession, level 6 felony narcotic drug possession, class B misdemeanor marijuana possession, and two counts of class A misdemeanor resisting law enforcement. Parrott filed a motion to suppress the evidence seized during the search. At a hearing on the motion, Parrott argued that Officer Clark did not have probable cause to conduct a warrantless search of his person because the officer did not smell marijuana on his person after he exited the vehicle.¹ The trial court took the matter under advisement. At a subsequent hearing, the court granted Parrott's motion to suppress, stating, "The nuance is that if there's probable cause—if [Parrott] was in the car, you could search him. But by stepping out of the car, you know, they lose that probable cause to [Parrott]." Id . at 46. The court also stated, "Based on the facts that I saw, the search of the vehicle was 100 appropriate and legal [sic]." Id . at 48. The court told the State, "[I]f you want to do an interlocutory [appeal], I'll be happy to grant that." Id . at 48. Defense counsel advised the court, "We do have misdemeanor Resistings that will remain even with the Court's ruling." Id . at 50. The court then set a pretrial hearing. The State filed a motion to correct error. The trial court issued a written order in which it granted Parrott's motion to suppress and incorporated its oral findings of fact and ruling and also denied the State's motion to correct error.

[7] Indiana Code Section 35-38-4-2 provides that the State may take appeals to this Court in certain cases, including

(5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution of one (1) or more counts of an information or indictment.

(6) From any interlocutory order if the trial court certifies and the court on appeal or a judge thereof finds on petition that:

(A) the appellant will suffer substantial expense, damage, or injury if the order is erroneous and the determination thereof is withheld until after judgment;

(B) the order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case; or(C) the remedy by appeal after judgment is otherwise inadequate.

[8] Indiana Appellate Rule 5 provides that this Court has jurisdiction in appeals from final judgments and from interlocutory orders. After the denial of its motion to correct error, the State filed a motion to stay proceedings and certify order for interlocutory appeal pursuant to Indiana Code Section 35-48-4-2(5), asserting that it "cannot proceed on one or more of the charges" as a result of the suppression ruling. Appellant's App. at 71. Parrott filed an objection and argued,

2. IC 35-38-4-2(6) references appeals from interlocutory orders while IC 35-38-4-2(5) is the specific appeal authority for an appeal from an order granting suppression. The specific controls the general.

3. The controlling code section requires that the order effectively preclude further prosecution on the affected counts which implies a dismissal. The proper procedure is to dismiss the affected counts then take a direct appeal and stay the remaining counts.

Id . at 73. Before the court ruled on its motion to stay, the State filed a notice of appeal indicating that it was appealing from a final judgment. Indiana Appellate Rule 2(H)(5) provides that a judgment is a final judgment if "it is otherwise deemed final by law."

[9] After the State filed its appellant's brief, Parrott filed a motion to dismiss the appeal, arguing that this Court lacks jurisdiction to consider the appeal because the State did not dismiss any charges.² The State filed a response, asserting that the suppression order is a judgment deemed final by Indiana Code Section 35-38-4-2(5). The appeal was fully briefed in due course.

Discussion and Decision

Section 1—The State was not required to dismiss the charges against Parrott before filing a notice of appeal.

[10] We first address Parrott's motion to dismiss this appeal. "The State's right to appeal in a criminal matter is statutory, and the State cannot appeal unless given that statutory authorization by the legislature. The State's statutory right of appeal is in contravention of common law principles and is therefore strictly construed." State v. Coleman , 971 N.E.2d 209, 211 (Ind. Ct. App. 2012) (citation omitted). That said, we may not read into a statute a restriction that the legislature did not include. Williams v. State , 952 N.E.2d 317, 319 (Ind. Ct. App. 2011).

[11] Parrott has not cited any statute, rule, or caselaw that unequivocally requires the State to dismiss charges before it may appeal from an unfavorable suppression order. Indeed, Indiana Code Section 35-38-4-2(5) itself does not require dismissal as a precondition to appeal. In State v. Pease , 531 N.E.2d 1207 (Ind. Ct. App. 1988), another panel of this Court noted that since the enactment of Indiana Code Section 35-38-4-2(5),

this court has construed I.C. 35-38-4-2(5) as permitting appeals in those cases where the suppression order has the effect of precluding further prosecution by the State. Such suppression orders, when interlocutory, are "tantamount to a dismissal of the action and therefore appealable as a final judgment under subsection (5) of the statute." State v. Williams (1983), Ind. App., 445 N.E.2d 582, 584. See, e.g. State v. Watkins (1987), Ind. App., 515 N.E.2d 1152, n.1 ; State v. Blake (1984), Ind. App., 468 N.E.2d 548, 550.

The State charged Pease with class D felony possession of a schedule II controlled substance (amphetamine). The State acquired its evidence of this offense as a consequence of the illegal search alleged in Pease's motion to suppress. When the trial court ordered that the fruits of the search of Pease's person were to be excluded, the State lost its ability to prosecute and dismissed the information the same day.

The order granting Pease's motion to suppress has become a final order by virtue of the action's dismissal. I.C. 35-38-4-2(5) authorizes appeals from orders suppressing evidence when the

...