Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Mar 25 2013, 8:22 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. O’CONNOR GREGORY F. ZOELLER O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
AARON BROWN, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1207-CR-546 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jose D. Salinas, Judge The Honorable John S. Alt, Master Commissioner Cause No. 49G14-1011-FD-88835
March 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Aaron Brown appeals his convictions of Class D felony possession of marijuana1 and
Class A misdemeanor driving with a suspended license.2 He argues the trial court abused its
discretion when it admitted evidence obtained in violation of his rights under the Fourth
Amendment to the United States Constitution and Article 1, Section 11 of the Indiana
Constitution. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 24, 2010, at approximately 5:00 p.m., Officer Dennis Lowe of the
Indianapolis Metropolitan Police Department saw a vehicle with front end damage pull into a
parking lot. There was another damaged vehicle in a nearby intersection. As Officer Lowe
approached the vehicle in the intersection, he saw Brown exit the driver’s side of the vehicle
in the parking lot. After determining no one was hurt, Officer Lowe asked Brown and the
driver of the vehicle in the intersection for identification.
Brown told Officer Lowe he left his driver’s license at home, but he had the
registration for his vehicle. Officer Lowe ran a check on Brown’s name and date of birth,
and discovered Brown’s license was suspended. Officer Lowe arrested Brown for driving
with a suspended license. After he placed Brown under arrest, Brown told Officer Lowe he
had marijuana in his pocket, and Officer Lowe retreived it.
The State charged Brown with Class A misdemeanor driving while suspended, Class
A misdemeanor possession of marijuana, and Class D felony possession of marijuana based
1 Ind. Code § 9-24-19-2. 2 Ind. Code § 35-48-4-11.
2 on Brown’s prior conviction of Class A misdemeanor possession of marijuana. On
November 18, 2011, Brown filed a motion to suppress the evidence against him. After a
hearing on January 10, 2012, the trial court denied Brown’s motion to suppress. On June 18,
the court held a bench trial and convicted Brown of all counts.
DISCUSSION AND DECISION
Brown did not seek interlocutory review of the denial of his motion to suppress but
instead appeals following trial. This issue is therefore “appropriately framed as whether the
trial court abused its discretion by admitting the evidence at trial.” Lundquist v. State, 834
N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Our review of rulings on the admissibility of
evidence is essentially the same whether the challenge is made by a pre-trial motion to
suppress or by trial objection. Id. We do not reweigh the evidence, and we consider
conflicting evidence most favorable to the trial court’s ruling. Id. However, we must also
consider the uncontested evidence favorable to the defendant. Id.
Brown argues the search incident to his arrest violated the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the Indiana Constitution. Although
the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution contain textually
similar language, each must be separately analyzed. State v. Washington, 898 N.E.2d 1200,
1205-06 (Ind. 2008), reh’g denied.
1. Fourth Amendment
Brown argues Officer Lowe did not have probable cause to arrest him, and therefore
the trial court abused its discretion when it admitted his driving record, statement, and the
3 marijuana found in his car. We disagree.
The Fourth Amendment to the United States Constitution provides:
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.
As an exception to the warrant requirement of the Fourth Amendment, “a police officer may
conduct a warrantless search if the search is incident to a lawful arrest.” Edwards v. State,
759 N.E.2d 626, 629 (Ind. 2001). An arrest is lawful without a warrant when an officer has
probable cause to support the arrest. Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003).
Probable cause exists when the officer has knowledge of facts and circumstances that would
warrant a person of reasonable caution to believe the suspect committed a criminal act. Id.
When Officer Lowe arrived on the scene of the accident, he saw Brown driving his
vehicle out of the intersection and into a nearby parking lot. Officer Lowe testified he saw
Brown exit the driver’s side of the car, and asked for Brown’s driver’s license. Brown
indicated he did not have his driver’s license with him, and Officer Lowe used Brown’s name
and date of birth to determine the status of Brown’s driver’s license. Officer Lowe
discovered Brown’s driver’s license was suspended, and placed Brown under arrest.
Brown contends he was not driving the car, and thus Officer Lowe did not have
probable cause to ask for his license. Brown’s argument there was no probable cause to
arrest him is essentially an invitation for us to reweigh the evidence. We cannot. See
Lundquist, 834 N.E.2d at 1067 (appellate court does not reweigh the evidence or judge the
4 credibility of witnesses). Therefore, the trial court did not abuse its discretion when it
admitted the evidence Brown’s license was suspended.
Brown also argues the marijuana found in his pocket was improperly admitted. He
concedes the marijuana found in his pocket was found incident to his arrest. As his arrest
was lawful, the marijuana seized pursuant to that arrest was properly admitted. See
Culpepper v. State, 662 N.E.2d 670, 675 (Ind. Ct. App. 1996) (“Incident to a lawful arrest, an
arresting officer may conduct a warrantless search of the arrestee’s person and the area
within his or her immediate control.”), reh’g denied, trans. denied.
2. Article 1, Section 11
The language of Article 1, Section 11is virtually identical to its Fourth Amendment
counterpart. Section 11 provides:
Free access — add to your briefcase to read the full text and ask questions with AI
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Mar 25 2013, 8:22 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. O’CONNOR GREGORY F. ZOELLER O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
AARON BROWN, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1207-CR-546 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jose D. Salinas, Judge The Honorable John S. Alt, Master Commissioner Cause No. 49G14-1011-FD-88835
March 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Aaron Brown appeals his convictions of Class D felony possession of marijuana1 and
Class A misdemeanor driving with a suspended license.2 He argues the trial court abused its
discretion when it admitted evidence obtained in violation of his rights under the Fourth
Amendment to the United States Constitution and Article 1, Section 11 of the Indiana
Constitution. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 24, 2010, at approximately 5:00 p.m., Officer Dennis Lowe of the
Indianapolis Metropolitan Police Department saw a vehicle with front end damage pull into a
parking lot. There was another damaged vehicle in a nearby intersection. As Officer Lowe
approached the vehicle in the intersection, he saw Brown exit the driver’s side of the vehicle
in the parking lot. After determining no one was hurt, Officer Lowe asked Brown and the
driver of the vehicle in the intersection for identification.
Brown told Officer Lowe he left his driver’s license at home, but he had the
registration for his vehicle. Officer Lowe ran a check on Brown’s name and date of birth,
and discovered Brown’s license was suspended. Officer Lowe arrested Brown for driving
with a suspended license. After he placed Brown under arrest, Brown told Officer Lowe he
had marijuana in his pocket, and Officer Lowe retreived it.
The State charged Brown with Class A misdemeanor driving while suspended, Class
A misdemeanor possession of marijuana, and Class D felony possession of marijuana based
1 Ind. Code § 9-24-19-2. 2 Ind. Code § 35-48-4-11.
2 on Brown’s prior conviction of Class A misdemeanor possession of marijuana. On
November 18, 2011, Brown filed a motion to suppress the evidence against him. After a
hearing on January 10, 2012, the trial court denied Brown’s motion to suppress. On June 18,
the court held a bench trial and convicted Brown of all counts.
DISCUSSION AND DECISION
Brown did not seek interlocutory review of the denial of his motion to suppress but
instead appeals following trial. This issue is therefore “appropriately framed as whether the
trial court abused its discretion by admitting the evidence at trial.” Lundquist v. State, 834
N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Our review of rulings on the admissibility of
evidence is essentially the same whether the challenge is made by a pre-trial motion to
suppress or by trial objection. Id. We do not reweigh the evidence, and we consider
conflicting evidence most favorable to the trial court’s ruling. Id. However, we must also
consider the uncontested evidence favorable to the defendant. Id.
Brown argues the search incident to his arrest violated the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the Indiana Constitution. Although
the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution contain textually
similar language, each must be separately analyzed. State v. Washington, 898 N.E.2d 1200,
1205-06 (Ind. 2008), reh’g denied.
1. Fourth Amendment
Brown argues Officer Lowe did not have probable cause to arrest him, and therefore
the trial court abused its discretion when it admitted his driving record, statement, and the
3 marijuana found in his car. We disagree.
The Fourth Amendment to the United States Constitution provides:
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.
As an exception to the warrant requirement of the Fourth Amendment, “a police officer may
conduct a warrantless search if the search is incident to a lawful arrest.” Edwards v. State,
759 N.E.2d 626, 629 (Ind. 2001). An arrest is lawful without a warrant when an officer has
probable cause to support the arrest. Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003).
Probable cause exists when the officer has knowledge of facts and circumstances that would
warrant a person of reasonable caution to believe the suspect committed a criminal act. Id.
When Officer Lowe arrived on the scene of the accident, he saw Brown driving his
vehicle out of the intersection and into a nearby parking lot. Officer Lowe testified he saw
Brown exit the driver’s side of the car, and asked for Brown’s driver’s license. Brown
indicated he did not have his driver’s license with him, and Officer Lowe used Brown’s name
and date of birth to determine the status of Brown’s driver’s license. Officer Lowe
discovered Brown’s driver’s license was suspended, and placed Brown under arrest.
Brown contends he was not driving the car, and thus Officer Lowe did not have
probable cause to ask for his license. Brown’s argument there was no probable cause to
arrest him is essentially an invitation for us to reweigh the evidence. We cannot. See
Lundquist, 834 N.E.2d at 1067 (appellate court does not reweigh the evidence or judge the
4 credibility of witnesses). Therefore, the trial court did not abuse its discretion when it
admitted the evidence Brown’s license was suspended.
Brown also argues the marijuana found in his pocket was improperly admitted. He
concedes the marijuana found in his pocket was found incident to his arrest. As his arrest
was lawful, the marijuana seized pursuant to that arrest was properly admitted. See
Culpepper v. State, 662 N.E.2d 670, 675 (Ind. Ct. App. 1996) (“Incident to a lawful arrest, an
arresting officer may conduct a warrantless search of the arrestee’s person and the area
within his or her immediate control.”), reh’g denied, trans. denied.
2. Article 1, Section 11
The language of Article 1, Section 11is virtually identical to its Fourth Amendment
counterpart. Section 11 provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
In resolving challenges involving this section, we consider the circumstances
presented in each case to determine whether the police behavior was reasonable. Saffold v.
State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010). The State has the burden of showing the
intrusion was reasonable under the totality of the circumstances. Id. In determining
reasonableness under Section 11, we recognize Indiana citizens are concerned not only with
personal privacy but also with safety, security, and protection from crime. Id. When
government intrusion is challenged under Section 11, therefore, the determination of
5 reasonableness under the totality of circumstances may include consideration of police
officer safety. Id.
As stated above, Officer Lowe testified Brown was driving one of the vehicles
involved in an automobile accident. Brown did not have his driver’s license, but he
voluntarily gave Officer Lowe his name and date of birth. Upon learning Brown’s license
was suspended, Officer Lowe arrested Brown. During the search incident to that arrest,
Officer Lowe retreived marijuana from Brown’s pocket. Based on the totality of the
circumstances, Officer Lowe had probable cause to arrest Brown based on the Officer’s
belief that Brown committed a crime by driving with a suspended license. Brown’s argument
to the contrary is an invitation to reweigh the evidence, which we cannot do. See Lundquist
v. State, 834 N.E.2d at 1067 (appellate court does not reweigh the evidence or judge the
credibility of witnesses).3
CONCLUSION
Because Officer Lowe had probable cause to believe Brown was driving on a
suspended license, Officer Lowe’s arrest of Brown was lawful, and the trial court did not
abuse its discretion when it admitted the evidence obtained incident to that arrest.
Accordingly, we affirm.
Affirmed.
ROBB, C.J., and PYLE, J., concur.
3 Brown’s trial was a bench trial. In bench trials, we assume the judge “is aware of and knows the law, and considers only evidence property before the judge in reaching a decision.” Dumas v. State, 803 N.E.2d 1113, 1121 (Ind. 2004). 6