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: ATTORNEYS FOR APPELLEE:
DONALD E. HAMILTON GREGORY F. ZOELLER New Castle, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
FILED Feb 18 2013, 9:20 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
DENNIS L. LLOYD, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 30A04-1207-CR-431 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK SUPERIOR COURT The Honorable Terry K. Snow, Judge Cause No. 30D01-1110-FD-1884
February 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Dennis L. Lloyd, Jr. (“Lloyd”) was convicted after a jury trial of possession of
cocaine1 as a Class D felony and resisting law enforcement2 as a Class A misdemeanor.
He appeals his convictions and raises the following consolidated and restated issues on
appeal:
I. Whether the trial court abused its discretion when it admitted evidence obtained by the police as a result of a stop of Lloyd’s vehicle and a search of his person; and
II. Whether systematic racial discrimination in the Hancock County jury system constituted a denial of Lloyd’s right to a jury trial under the Sixth Amendment to the United States Constitution and Article I, section 13 of the Indiana Constitution.
We affirm.
FACTS AND PROCEDURAL HISTORY
On the afternoon of October 24, 2011, Hancock County Deputy Sheriff Gary
Stanley (“Deputy Stanley”) was patrolling a rural area of Hancock County when he drove
past a residence at 6229 West County Road 300 North and observed two vehicles, a green
minivan and a black Ford Explorer, backed up to the residence. Deputy Stanley also saw
a large male on the front porch of the residence pacing back and forth and possibly
looking into the windows. Deputy Stanley found this behavior to be odd because of his
knowledge of the occupant of the home. The residence was occupied by a severely
handicapped twenty-year-old woman, who was paralyzed from the jaw down and
confined to an air mattress on the front living room floor, and who must be cared for by
1 See Ind. Code § 35-48-4-6. 2 See Ind. Code § 35-44-3-3. We note that this section was repealed by Public Law 126-2012, section 53, effective July 1, 2012, and it can now be found at Indiana Code section 35-44.1-3-1.
2 others. He also knew that the front door was not utilized by the occupant due to her need
of a wheelchair ramp. Additionally, Deputy Stanley knew that the residence was in a
high burglary and theft area. Because Deputy Stanley was suspicious of the two vehicles
backed up to the house, he radioed Hancock County Sheriff’s Deputy Jarrod Bradbury
(“Deputy Bradbury”)3 to have him accompany Deputy Stanley to the residence. They
met up a short distance away from the residence and drove their patrol cars to the home
to investigate.
When the deputies arrived at the residence, the Ford Explorer appeared to be
attempting to leave. Deputy Stanley pulled into the driveway behind the Ford Explorer,
and Deputy Bradbury pulled in behind Deputy Stanley. Deputy Stanley approached the
driver’s side of the Ford Explorer, and Deputy Bradbury approached the passenger side.
The driver, who was later identified as Lloyd, was the sole occupant of the vehicle.
Deputy Stanley also identified Lloyd as the large male he had observed pacing back and
forth in front when he initially drove by the residence.4
Lloyd’s window was rolled down an inch or two, and Deputy Stanley asked that
Lloyd roll the window down so the deputy could speak with him. Lloyd did not comply
until after Deputy Stanley had requested him to do so three times. Deputy Stanley
requested identification from Lloyd, but Lloyd did not provide any. Lloyd refused to 3 We note that subsequent to the events in this case, Deputy Bradbury was promoted and now has the title of Deputy Sergeant. Tr. at 102. 4 The driver of the green minivan attempted to approach Deputy Stanley, but the deputy told him to return to his vehicle, so that Deputy Stanley could deal with one individual at a time for officer safety. Later, the driver of the green minivan re-approached Deputy Stanley and told the deputy he worked for a home healthcare agency and was at the residence to retrieve home medical supplies. Tr. at 104. The man produced a clipboard with the letterhead of the agency and documentation substantiating his explanation for being at the residence. Id.
3 look at the deputy and was moving around in the vehicle. After Lloyd complied with the
request to roll down his window, Deputy Stanley smelled the odor of burnt marijuana
coming from the vehicle. Deputy Stanley then requested that Lloyd exit the vehicle, but
Lloyd did not comply. Deputy Stanley repeated his request several times, and Deputy
Bradbury came over to the driver’s side to assist Deputy Stanley in removing Lloyd from
the vehicle. When Deputy Bradbury opened up the driver’s side door and attempted to
remove Lloyd, Lloyd forcibly resisted by pushing away from and trying to strike the
deputy. Deputy Stanley then threatened to use his taser on Lloyd if he did not allow the
deputies to remove him from the vehicle.
Once Lloyd finally agreed to exit the vehicle, Deputy Bradbury handcuffed him,
and Deputy Stanley conducted a patdown search of Lloyd’s person. During this search, a
baggie was found in Lloyd’s pants pocket that contained a powdered rock-like substance
that field tested positive for cocaine. After being read his Miranda rights, Lloyd admitted
that the substance recovered from his pocket was, in fact, cocaine. A knife was also
recovered from Lloyd’s person.
The State charged Lloyd with Class D felony possession of cocaine and Class A
misdemeanor resisting law enforcement. Prior to trial, Lloyd filed a motion to suppress
the evidence obtained by the deputies. A hearing was held, and the trial court denied the
motion. A jury trial was held on June 4, 2012, at the conclusion of which the jury found
Lloyd guilty as charged. He was sentenced to two years with one year suspended and
one year of probation for his possession of cocaine conviction and to a concurrent
sentence of one year for his resisting law enforcement conviction. Lloyd now appeals.
4 DISCUSSION AND DECISION
I. Admission of Evidence
Lloyd argues that the trial court abused its discretion when it admitted evidence at
trial because it was obtained in violation of the Fourth Amendment to the United States
Constitution and Article I, section 11 of the Indiana Constitution.5 Although Lloyd
originally challenged the admission of the evidence through a pre-trial motion to
suppress, he appeals following a completed jury trial and thus challenges the admission
of such evidence at trial. The admission or exclusion of evidence is entrusted to the
discretion of the trial court. Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012)
(citing Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App. 2004), trans. denied). We will
reverse a trial court’s decision only for an abuse of discretion. Id. We will consider the
conflicting evidence most favorable to the trial court’s ruling and any uncontested
evidence favorable to the defendant. Id. (citing Taylor v. State, 891 N.E.2d 155, 158
(Ind. Ct. App. 2008), trans. denied, cert. denied 555 U.S. 1142 (2009)). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before the court or it misinterprets the law. Id. In
determining whether an error in the introduction of evidence affected an appellant’s
substantial rights, we assess the probable impact of the evidence on the jury. Id. (citing
Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct. App. 2002), trans. denied).
The Fourth Amendment to the United States Constitution protects an individual’s 5 Although Lloyd makes several references to Article I, section 11 of the Indiana Constitution, he makes no actual analysis or cogent argument under the reasonableness standard of the Indiana Constitution. Therefore, he has waived any appeal based on Article I, section 11 of the Indiana Constitution. See Micheau v. State, 893 N.E.2d 1053, 1059 n.8 (Ind. Ct. App. 2008), trans. denied.
5 privacy and possessory interests by prohibiting unreasonable searches and seizures.
Washington v. State, 922 N.E.2d 109, 111 (Ind. Ct. App. 2010) (citing Howard v. State,
862 N.E.2d 1208, 1210 (Ind. Ct. App. 2007)). Generally, a search warrant is a
prerequisite to a constitutionally proper search and seizure. Id. (citing Halsema v. State,
823 N.E.2d 668, 676 (Ind. 2005)). When a search is conducted without a warrant, the
State has the burden of proving that an exception to the warrant requirement existed at
the time of the search. Malone v. State, 882 N.E.2d 784, 786 (Ind. Ct. App. 2008)).
A. Investigatory Stop
One such exception to the warrant requirement is that a police officer may briefly
detain a person for investigatory purposes without a warrant or probable cause if, based
upon specific and articulable facts together with rational inferences from those facts, the
official intrusion is reasonably warranted, and the officer has reasonable suspicion that
criminal activity “may be afoot.” Washington, 922 N.E.2d at 111-12 (citing Moultry v.
State, 808 N.E.2d 168, 170-71 (Ind. Ct. App. 2004) (citing Terry v. Ohio, 392 U.S. 1, 21-
22 (1968))). Thus, reasonable suspicion to justify an investigative stop must be based on
specific and articulable facts known to the officer at the time of the stop that led the
officer to believe that criminal activity may be afoot. Potter v. State, 912 N.E.2d 905,
907 (Ind. Ct. App. 2009). Reasonable suspicion requires more than mere hunches or
unparticularized suspicions. Id. “In reviewing the question of reasonable suspicion,
courts look to the ‘totality of the circumstances of each case to see whether the detaining
officer has a particularized and objective basis for suspecting legal wrongdoing.’” Segar
v. State, 937 N.E.2d 917, 921 (Ind. Ct. App. 2010) (quoting United States v. Arvizu, 534
6 U.S. 266, 273 (2002) (quotations omitted)). The State has the burden of proving that an
investigatory stop, as an exception to the general warrant requirement of the Fourth
Amendment, is supported by reasonable suspicion. Id.
Lloyd argues that the deputies did not have reasonable suspicion that criminal
activity may be afoot at the time they approached his vehicle to speak with him. He
contends that, although Deputy Stanley clearly had reasonable suspicion when he
observed a male at the front door of the residence looking in the windows, by the time the
deputy approached Lloyd, such reasonable suspicion “was severely reduced.”
Appellant’s Br. at 8. Lloyd asserts that the deliveryman’s explanation for his presence at
the residence should have lessened any reasonable suspicion that the deputies had that
criminal activity was afoot and that the deputies no longer needed to demand information
from him. We disagree.
While patrolling a rural area of Hancock County, Deputy Stanley saw two
vehicles, a green minivan and a black Ford Explorer, backed up to the residence as he
drove past. He observed a large male pacing back and forth on the front porch of a
residence and possibly looking in the windows of the residence. Deputy Stanley found
this to be suspicious because he was aware that the resident at that address was severely
handicapped, confined to her bed, and was cared for by caretakers. He knew that the
resident and her caretakers did not regularly use the front porch entrance. The deputy
was also aware that the residence was in a high burglary and theft area. These facts
supported a finding that reasonable suspicion existed that criminal activity may be afoot.
7 We do not believe that any explanation by the deliveryman as to why he was
present at the residence diminished the reasonable suspicion of the deputies. Although
Lloyd argues that the deliveryman explained his presence at the residence before Deputy
Stanley approached Lloyd’s vehicle, the deputy actually testified that the deliveryman
initially approached him, but the deputy told him to return to his vehicle, so that Deputy
Stanley could deal with one individual at a time for officer safety. Tr. at 104. Later the
driver of the green minivan re-approached Deputy Stanley and told the deputy he worked
for a home healthcare agency and was at the residence to retrieve home medical supplies.
Id. Further, Deputy Stanley stated that Lloyd was the individual he observed on the
porch because Lloyd was much larger in stature than the deliveryman and more closely
resembled the description of the man the deputy observed. Id. at 103. Even if Lloyd’s
assertion that Deputy Stanley was already aware of the deliveryman’s reason for being at
the residence before he spoke with Lloyd was true, it does not diminish the deputy’s
reasonable suspicion. Deputy Stanley observed a man who resembled Lloyd pacing back
and forth on the front porch of a residence in a high burglary area, where the deputy was
aware of circumstances of the resident that made Lloyd’s presence suspicious. The
reasonable suspicions of the deputy were not abated merely because one of the men
present may have given an explanation for his presence. We therefore conclude that
reasonable suspicion existed to support the investigatory stop of Lloyd.
“‘[A]n investigative detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop” and “the investigative methods employed
should be the least intrusive means reasonably available to verify or dispel the officer’s
8 suspicion in a short period of time.’” Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct.
App. 2003) (quoting Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001)). Our Supreme
Court has recognized that the Fourth Amendment permits an officer to request a motorist
to exit a car as part of an investigatory stop. Id. (citing Lockett, 747 N.E.2d at 542).
Therefore, as part of the investigatory stop of Lloyd, Deputy Stanley was permitted to
request that Lloyd roll down his window so that the deputy could speak with him and
determine Lloyd’s identity and reason for being at the residence.
B. Search
A police officer may search a defendant pursuant to a lawful arrest. Williams v.
State, 898 N.E.2d 400, 402 (Ind. Ct. App. 2008) (citing Hollowell v. State, 753 N.E.2d
612, 615 (Ind. 2001)), trans. denied. Searches incident to arrest are permissible without a
warrant and include search of the arrested person and the area within his immediate
control. Id. In order for such a search to be lawful, the initial arrest must be lawful. Id.
Probable cause adequate to support a warrantless arrest exists when, at the time of the
arrest, the officer has knowledge of facts and circumstances that would warrant a person
of reasonable caution to believe that the suspect committed a criminal act. Merchant v.
State, 926 N.E.2d 1058, 1064 (Ind. Ct. App. 2010), trans. denied.
Lloyd contends that the trial court should not have admitted the evidence obtained
by the deputies because there was not probable cause to conduct a search because the
deputies’ testimony regarding the odor of burnt marijuana emanating from his vehicle
was conflicting. Because of the conflicting nature of this testimony, Lloyd alleges the
State did not carry its burden of proving that the search fell within one of the exceptions
9 to the warrant requirement. Therefore, he asserts that any evidence obtained as a result of
this unlawful search should not have been admitted at trial.
The evidence presented at trial showed that, when Lloyd rolled down the driver’s
side window, Deputy Stanley smelled the odor of burnt marijuana coming from inside of
Lloyd’s vehicle and requested that Lloyd exit the vehicle. Pursuant to both the Fourth
Amendment and Article I, section 11 of the Indiana Constitution, when a trained and
experienced police officer detects the strong and distinctive odor of burnt marijuana
coming from a vehicle, the officer has probable cause to search the vehicle. State v.
Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. denied. Because Deputy
Stanley had probable cause at that point to search the vehicle, he was also justified in
asking Lloyd to exit the vehicle. Further, contrary to Lloyd’s contention that the
deputies’ testimony was conflicting regarding the smell of burnt marijuana, both Deputy
Stanley and Deputy Bradbury testified that they smelled the odor of burnt marijuana
coming from Lloyd’s vehicle. Deputy Stanley smelled it as soon as Lloyd rolled down
the driver’s side window, and although Deputy Bradbury could not smell it when he was
positioned on the passenger side of the vehicle, he testified that he did smell the odor of
burnt marijuana later. Tr. at 130.
When Deputy Stanley requested that Lloyd exit the vehicle, Lloyd refused to do
so. In fact, he forcibly resisted the deputy’s request. Deputy Stanley repeated his request
several times, and Deputy Bradbury came over to the driver’s side to assist Deputy
Stanley in removing Lloyd from the vehicle. When Deputy Bradbury opened up the
driver’s side door and attempted to remove Lloyd, Lloyd forcibly resisted by pushing
10 away from and trying to strike the deputy. Therefore, after the deputies were able to get
Lloyd to exit the vehicle, they had probable cause to arrest him for resisting law
enforcement. Because the deputies had probable cause to arrest Lloyd, the search
conducted that resulted in the discovery of cocaine in Lloyd’s pocket did not violate the
Fourth Amendment because it was a search incident to arrest. We therefore conclude that
Lloyd’s Fourth Amendment rights were not violated, and the trial court did not abuse its
discretion in admitting the testimony and evidence obtained by the deputies.
II. Systematic Racial Discrimination
Lloyd contends that the jury panel failed to reflect a fair cross-section of the
Hancock County community. The selection of a petit jury from a representative cross-
section of the community is an essential component of the Sixth Amendment right to a
jury trial. Williams v. State, 877 N.E.2d 845, 846 (Ind. Ct. App. 2007) (citing Wilder v.
State, 813 N.E.2d 788, 791 (Ind. Ct. App. 2004), trans. denied (citing Taylor v.
Louisiana, 419 U.S. 522, 528 (1975))), trans. denied. There is no requirement, however,
that jury panels be a microcosm of a county or a court district. Id. at 846-47. Jurors need
not be mathematically proportioned to the character of the community. Id. at 847. The
primary concern is that juror selection not be arbitrary. Id.
In order to succeed on a challenge to a county’s petit jury selection process, a
defendant must first make a prima facie showing of a violation of the fair cross-section
requirement. Id. To make such a showing, the defendant has the burden of establishing:
(1) that the group alleged to be excluded is a “distinctive” group in the community; (2)
that the representation of this group in venires from which juries are selected is not fair
11 and reasonable in relation to the number of such persons in the community; and (3) that
this underrepresentation is due to systematic exclusion of the group in the jury-selection
process. Id. If a defendant has made a prima facie showing of a fair cross-section
violation, the State may still justify the juror selection process by showing that attainment
of a fair cross-section is incompatible with a significant state interest. Id.
Here, Lloyd did not raise this argument at trial. He, therefore, presented no
evidence to the trial court of any systematic racial discrimination in the Hancock County
petit jury selection process, and nothing in the record before us indicates a problem.
Lloyd also does not present any evidence or make any cogent argument regarding his
contention in his appellate brief. He has therefore failed to demonstrate that the jury
selection process in Hancock County systematically excludes any cognizable racial
group. Because Lloyd did not raise this issue at trial and has failed to make a cogent
argument on his contention here on appeal, we conclude that the issue has been waived.
See Mallory v. State, 954 N.E.2d 933, 936 (Ind. Ct. App. 2011) (“A party waives an issue
where the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record.”).
Affirmed.
MATHIAS, J., and CRONE, J., concur.