Donald Dowdell v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 17, 2013
• Docket: 49A02-1209-CR-765
• Status: Unpublished

Opinion

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 Apr 17 2013, 10:15 am judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER GREGORY F. ZOELLER Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana KATHERINE M. COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DONALD DOWDELL, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1209-CR-765 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jose Salinas, Judge Cause No. 49G14-1101-FD-2206

April 17, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

Donald Dowdell appeals his convictions for Class D felony dealing in marijuana

and Class D felony possession of marijuana. We affirm.

Issues

Dowdell raises two issues, which we restate as:

I. whether the trial court properly admitted into evidence marijuana found on Dowdell’s person; and

II. whether the trial court properly admitted into evidence marijuana found in Dowdell’s vehicle.

Facts

On January 10, 2011, Officer Jonathan Lawlis of the Indianapolis Metropolitan

Police Department was patrolling in the 3500 block of North Hawthorne in Indianapolis,

which is a high crime area, when he saw a vehicle driven by Dowdell run a stop sign.

Officer Lawlis turned his police car around and saw Dowdell’s vehicle “quickly pull over

to the right hand side of the road without signaling.” Tr. p. 46. Dowdell parked in the

driveway of a residence, left his vehicle running, “promptly jumped out of the vehicle[,]

and started walking towards the house.” Id. Officer Lawlis activated his overhead lights,

“chirped” his siren, and stopped behind Dowdell’s vehicle. Id.

Dowdell, who was on or near the front porch of the residence, turned around and

started walking back to Officer Lawlis. As Officer Lawlis approached Dowdell, he could

smell a “very strong” odor of burnt marijuana “coming from [Dowdell’s] person.” Id. at

50. Officer Lawlis patted down Dowdell and found a baggie of marijuana in Dowdell’s

pocket. Officer Lawlis placed Dowdell under arrest, prepared to impound Dowdell’s

2 vehicle, and started performing an inventory search. When Officer Lawlis approached

Dowdell’s vehicle, he smelled marijuana. During the inventory search, Officer Lawlis

found a red shopping bag in the trunk that contained 141 grams of marijuana.

The State charged Dowdell with Class D felony dealing in marijuana and Class D

felony possession of marijuana. Dowdell filed a motion to suppress evidence obtained as

a result of the patdown search and the search of his vehicle under the United States

Constitution and the Indiana Constitution, but the trial court denied the motion. At the

bench trial, Dowdell objected to the admission of evidence found as a result of the

patdown search and the search of his vehicle and renewed his motion to suppress. The

trial court overruled the objections and again denied the motion to suppress. The trial

court found Dowdell guilty as charged and sentenced him to concurrent, 365-day

sentences to be executed on community corrections home detention. Dowdell now

appeals.

Analysis

Both of Dowdell’s arguments concern the admission of evidence found during

searches. We review the trial court’s ruling on the admission or exclusion of evidence for

an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997). We reverse

only where the decision is clearly against the logic and effect of the facts and

circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). We examine the

evidence favorable to the trial court’s ruling along with any uncontradicted evidence.

Peters v. State, 888 N.E.2d 274, 277 (Ind. Ct. App. 2008), trans. denied. We neither

reweigh evidence nor judge witness credibility. Id. In reviewing such a claim, we will

3 consider foundational evidence submitted at the trial as well as evidence from the motion

to suppress hearing that is not in direct conflict with the trial testimony. Id.

I. Patdown Search

A. Fourth Amendment

Dowdell does not challenge the initial traffic stop. Rather, Dowdell challenges the

validity of Officer Lawlis’s patdown search. Dowdell argues that Officer Lawlis did not

have reasonable suspicion to believe that he was armed and dangerous.

The Fourth Amendment to the United States Constitution prohibits unreasonable

searches and seizures by the government. Patterson v. State, 958 N.E.2d 478, 482 (Ind.

Ct. App. 2011). “Searches performed by government officials without warrants are per

se unreasonable under the Fourth Amendment, subject to a ‘few specifically established

and well-delineated exceptions.’” Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)

(quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)). A search

without a warrant requires the State to prove an exception to the warrant requirement

applicable at the time of the search. Id.

One exception was established in Terry v. Ohio, in which “the United States

Supreme Court held that a police officer may briefly detain a person for investigatory

purposes if, based on specific and articulable facts together with reasonable inferences

drawn therefrom, an ordinarily prudent person would reasonably suspect that criminal

activity was afoot.” Patterson, 958 N.E.2d at 482 (citing Terry v. Ohio, 392 U.S. 1, 30,

88 S. Ct. 1868, 1884 (1968)). Reasonable suspicion is determined on a case-by-case

basis by examining the totality of the circumstances. Id.

4 “In addition to detainment, Terry permits a police officer to conduct a limited

search of the individual’s outer clothing for weapons if the officer reasonably believes

that the individual is armed and dangerous.” Id. at 482-83. “An officer’s authority to

perform such a pat-down search of a detained individual during a Terry stop is dependent

upon the nature and extent of the officer’s particularized concern for his or her safety.”

Id. at 483 (citing Rybolt v. State, 770 N.E.2d 935, 938 (Ind. Ct. App. 2002), trans.

denied). The officer only needs reasonable suspicion that the individual is armed to

justify a limited patdown search of the individual’s outer clothing. Id. at 485. “[T]here

must exist articulable facts to support an officer’s reasonable belief that the particular

individual is armed and dangerous.” Id. at 486. “In determining whether an officer acted

reasonably under the circumstances, we consider the specific, reasonable inferences that

the officer is entitled to draw from the facts in light of his or her experience.” Id.

The State argues that the patdown was proper pursuant to Patterson. There, we

concluded that a patdown search was proper where the search was performed during a

traffic stop late at night in a high crime area and there was an odor of burnt marijuana

coming from the vehicle. We determined that, under those circumstances, the officer had

“a reasonable belief that Patterson was armed” and the patdown search was “justified by

a reasonable concern for officer safety.” Id. at 487.

Similarly, here, Officer Lawlis saw Dowdell run a stop sign in a high crime area.

When Dowdell stopped at a nearby residence, he left his car running and “promptly

jumped out of the vehicle.” Tr. p. 46. When Officer Lawlis approached Dowdell, a

strong odor of marijuana was emanating from Dowdell. Given Dowdell’s behavior in

5 leaving his car running and quickly getting out of his car, the high crime location, and the

odor of marijuana, Officer Lawlis had a justifiable officer safety concern. As in

Patterson, we conclude that Officer Lawlis had a reasonable belief that Dowdell was

armed and dangerous.1

B. Indiana Constitution

Dowdell also argues that the patdown search violated Article 1, Section 11 of the

Indiana Constitution, which 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.

“Although this language tracks the Fourth Amendment verbatim, we proceed somewhat

differently when analyzing the language under the Indiana Constitution than when

considering the same language under the Federal Constitution.” Trimble v. State, 842

N.E.2d 798, 803, adhered to on reh’g, 848 N.E.2d 278 (Ind. 2006). “Instead of focusing

on the defendant’s reasonable expectation of privacy, we focus on the actions of the

police officer, concluding that the search is legitimate where it is reasonable given the

totality of the circumstances.” Id. “We will consider the following factors in assessing

reasonableness: ‘1) the degree of concern, suspicion, or knowledge that a violation has

occurred, 2) the degree of intrusion the method of the search or seizure imposes on the

1 Further, we held in Edmond v. State, 951 N.E.2d 585, 591 (Ind. Ct. App. 2011), that the smell of marijuana on a person provides probable cause to arrest and a lawful basis to search the person. However, the State does not argue that Officer Lawlis’s search of Dowdell was proper under this basis.

6 citizen’s ordinary activities, and 3) the extent of law enforcement needs.’” Id. (quoting

Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).

We begin by considering “the degree of concern, suspicion, or knowledge that a

violation has occurred.” Litchfield, 824 N.E.2d at 361. Officer Lawlis conducted the

patdown search out of concern that Dowdell was armed. The traffic stop took place in a

high crime area, Dowdell left his car running and promptly walked up to the residence,

and Dowdell smelled of marijuana. We conclude that the degree or concern, suspicion,

or knowledge that a violation has occurred is high.

Further, the degree of intrusion, a quick patdown search during a traffic stop, was

small. Finally, the extent of law enforcement needs is strong given the high crime area,

Dowdell’s actions, and the smell of marijuana on Dowdell. Under the totality of the

circumstances, we conclude that the patdown search of Dowdell was reasonable and did

not violate his rights under Article 1, Section 11 of the Indiana Constitution.

II. Search of Vehicle

Dowdell next argues that the search of his vehicle violated the Fourth Amendment

to the United States Constitution. A valid inventory search is a well-recognized

exception to the warrant requirement. Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006)

(citing South Dakota v. Opperman, 428 U.S. 364, 372, 96 S. Ct. 3092, 3098 (1976)). The

underlying rationale for the inventory exception is three-fold: (1) protection of private

property in police custody; (2) protection of police against claims of lost or stolen

property; and (3) protection of police from possible danger. Id. at 330-31.

7 In determining the propriety of an inventory search, the threshold question is

whether the impoundment itself was proper. Id. at 331 (citing Woodford v. State, 752

N.E.2d 1278, 1281 (Ind. 2001), cert. denied). An impoundment is warranted when it is

part of routine administrative caretaking functions of the police or when it is authorized

by statute. Id. To prove a valid inventory search under the community caretaking

function, the State must demonstrate the following: (1) the belief that the vehicle posed

some threat or harm to the community or was itself imperiled was consistent with

objective standards of sound policing; and (2) the decision to combat that threat by

impoundment was in keeping with established departmental routine or regulation. Id.

Dowdell does not dispute that the impoundment was in keeping with established

departmental routine. Rather, Dowdell argues that the inventory search was improper

because there was no evidence the vehicle posed a threat or was imperiled. Dowdell

points to Officer Lawlis’s testimony that someone from the residence asked if the car

could stay in the driveway. However, Officer Lawlis also testified that he had already

smelled marijuana in the car when the person from the residence approached him.

Officer Lawlis pointed out during his testimony that he could not turn a vehicle that

smelled of marijuana over to someone else. Officer Lawlis also testified that Dowdell’s

vehicle was parked in the residence’s driveway, and it was blocking other vehicles from

exiting the driveway. Dowdell was being arrested, and Officer Lawlis could not

guarantee the safety of Dowdell’s vehicle in the high crime area.

We need not address Dowdell’s inventory search argument because, even if we

were to conclude that the search was improper under the inventory search exception, we

8 note that “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.

When Officer Lawlis smelled marijuana coming from Dowdell’s vehicle, he had probable

cause to search the vehicle, and the shopping bag of marijuana found in the trunk was

properly admitted.

Dowdell also argues that the search of his vehicle was improper under Article 1,

Section 11. Under the Litchfield analysis, we consider the following factors in assessing

reasonableness: “ʻ1) the degree of concern, suspicion, or knowledge that a violation has

occurred, 2) the degree of intrusion the method of the search or seizure imposes on the

citizen’s ordinary activities, and 3) the extent of law enforcement needs.’” Trimble, 842

N.E.2d at 803 (quoting Litchfield, 824 N.E.2d at 361).

The degree of concern, suspicion, or knowledge that a violation has occurred was

high here due to the smell of marijuana emanating from the vehicle and Dowdell’s arrest

for the marijuana in his pocket.2 We noted in Hawkins, 766 N.E.2d at 752, that, under

Article 1, Section 11 of the Indiana Constitution, a police officer has probable cause to

search a vehicle when he or she smells marijuana coming from the vehicle. The degree

of intrusion by the search of Dowdell’s vehicle and trunk was high. The third prong of

the test considers the needs of law enforcement, and it is often recognized that police

2 In a typical inventory search, this factor would be inapplicable because the inventory search would be performed pursuant to common police practice rather than based on suspicion or knowledge of a crime. 9 officers need to perform inventory searches of vehicles they plan to impound in order to

protect themselves from liability for claims of lost or stolen goods that may arise out of

impoundment of a vehicle. See Rabadi v. State, 541 N.E.2d 271, 275 (Ind. 1989).

Despite the high intrusion, given the high degree of suspicion that a violation had

occurred and the high degree of law enforcement needs, we conclude that Officer

Lawlis’s search of Dowdell’s vehicle was reasonable and did not violate Article 1,

Section 11 of the Indiana Constitution.

Conclusion

The patdown search and search of Dowdell’s vehicle did not violate the Fourth

Amendment to the United States Constitution or Article 1, Section 11 of the Indiana

Constitution. Consequently, the trial court did not abuse its discretion when it admitted

the marijuana found in Dowdell’s pocket or the marijuana found in his trunk. We affirm.

Affirmed.

NAJAM, J., and BAILEY, J., concur.