Eric Powell v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 5, 2013
• Docket: 49A02-1303-CR-226
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), Nov 05 2013, 5:49 am 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:

DEBORAH MARKISOHN GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ERIC POWELL, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1303-CR-226 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Rebekah F. Pierson-Treacy, Judge The Honorable Shatrese Flowers, Commissioner Cause No. 49F19-1211-CM-77305

November 5, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge Case Summary

Eric Powell appeals his conviction for Class A misdemeanor possession of

marijuana. Powell was stopped for a City of Indianapolis ordinance violation—

jaywalking. He was asked his name and the officer performed a warrant search, which

disclosed that Powell had an outstanding warrant. A search of Powell incident to his arrest

found six small bags of marijuana. He argues that the police officer’s request for

identification and search for outstanding arrest warrants exceeded the stated purpose of the

stop and was not reasonable under Article 1, Section 11 of the Indiana Constitution. We

disagree and affirm.

Facts and Procedural History

During the day on November 12, 2012, Indianapolis Metropolitan Police

Department Officer John Walters was patrolling near the 4100 block of Brentwood Drive.

He saw two men, Powell and an acquaintance, crossing the street. The two men did not

use a crosswalk and there were “no designations for a crossing for pedestrian traffic in that

area.” Tr. p. 8.

Officer Walters pulled up next to them, activated his siren, and stopped Powell and

his acquaintance for violating the city’s jaywalking ordinance, which states that

“[p]edestrians shall cross streets only at intersections or at other places that may be

designated therefor pursuant to this chapter.” See Indianapolis-Marion Cnty, Ind., Code §

441-108, available at http://library.municode.com/HTML/12016/level3/TITIIPUORSA

_CH441TR_ARTIINGE.html#TITIIPUORSA_CH441TR_ARTIINGE_S441-108DUPE.

Officer Walters then asked the men to provide identification.

2 The officer checked whether the men had any outstanding warrants. A search

revealed that Powell had an outstanding warrant for Class C felony battery in Marion

County.

Officer Walters arrested Powell pursuant to the open warrant. A search incident to

the arrest revealed marijuana in his jacket pocket. The marijuana was in six small plastic

bags inside a larger bag and weighed an aggregate of 8.04 grams. Ex. 2.

The State charged Powell with Class A misdemeanor possession of marijuana and

Class A misdemeanor dealing in marijuana. Appellant’s App. p. 14-15.

A bench trial was held. At trial, defense counsel moved to suppress any evidence

related to the stop on the basis of Article 1, Section 11 of the Indiana Constitution and the

Fourth Amendment of the United States Constitution, arguing that Powell did not violate

the city ordinance. Tr. p. 12-13. The trial court denied the motion to suppress. Id. at 18.

At the conclusion of the trial, the court found Powell not guilty of Class A

misdemeanor dealing in marijuana but guilty of Class A misdemeanor possession of

marijuana. Id. at 28-29. The trial court sentenced him to sixty days executed in the Marion

County Jail. Id. at 33.

Powell now appeals.

Discussion and Decision

Powell argues that Officer Walters’s request for his identification and search for

outstanding warrants was not reasonable under Article 1, Section 11 of the Indiana

Constitution.1 The State argues that Powell waived this argument on appeal because he is

1 Powell does not make an argument under the Fourth Amendment of the U.S. Constitution.

3 appealing on a different basis than he objected at trial. In particular, the State contends that

at trial Powell argued that he did not violate the City of Indianapolis’s ordinance, but now

argues that the officer unreasonably prolonged his detention by asking for

his identification and checking his warrant status. The State is correct that Powell waived

the issue on this basis. Abran v. State, 825 N.E.2d 384, 389 (Ind. Ct. App. 2005), trans.

denied. 2 Because this Court has a long-established preference for deciding cases on the

merits, we address the merits of this case. See, e.g., Butler v. State, 933 N.E.2d 33, 36 (Ind.

Ct. App. 2010).

The admissibility of evidence is within the sound discretion of the trial court, whose

decision is afforded great deference on appeal. Bacher v. State, 686 N.E.2d 791, 793 (Ind.

1997). We do not reweigh the evidence, and we consider conflicting evidence most

favorable to the judgment. Gunn v. State, 956 N.E.2d 136, 138 (Ind. Ct. App. 2011).

However, this Court reviews de novo the trial court’s determination that reasonable

suspicion exists. Sanders v. State, 989 N.E.2d 332, 334 (Ind. 2013), reh’g denied.

Article 1, Section 11 of the Indiana Constitution focuses on the reasonableness of

police conduct as judged by the totality of the circumstances. Litchfield v. State, 824

N.E.2d 356, 359 (Ind. 2005). We determine reasonableness under the Indiana Constitution

by balancing “1) the degree of concern, suspicion, or knowledge that a violation has

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

2 The State also argues that Powell waived the issue because he did not object when Officer Walters testified to finding marijuana on him. However, Powell did not waive the issue by failing to object. When a witness testifies immediately after the trial court rules on a mid-trial motion, the opposing party need not object again, and the issue is preserved for appeal. Wilkes v. State, 917 N.E.2d 675, 685 (Ind. 2009).

4 ordinary activities, and 3) the extent of law enforcement needs.” Id. at 361. The seizure

of a person is included within the protections guaranteed by Article 1, Section 11. State v.

Atkins, 834 N.E.2d 1028, 1034 (Ind. Ct. App. 2005), trans. denied. The State must prove

that the search was reasonable under the totality of the circumstances. Clark v. State, 994

N.E.2d 252, 260 (Ind. 2013).

Here, Officer Walters’s decision to detain Powell and search for an outstanding

arrest warrant was reasonable. It is well settled that a police officer may briefly detain

someone whom the officer believes has committed an infraction or ordinance violation.

State v. Harris, 702 N.E.2d 722, 726 (Ind. Ct. App. 1998).

Officer Walters stated that he saw Powell and his acquaintance crossing the street

without using a crosswalk and not at an intersection. Tr. p. 8. Powell’s conduct violated

the Indianapolis-Marion County Municipal Code against jaywalking. Indianapolis-Marion

Cnty., Ind., Code § 441-108(a). Because Powell and his acquaintance did not cross the

street at an intersection or at other places that may be designated for crossing the street,

Officer Walters concluded that the individuals violated the ordinance and stopped them.

Indiana Code section 34-28-5-3 states that “[w]henever a law enforcement officer

believes in good faith that a person has committed an infraction or ordinance violation, the

law enforcement officer may detain that person for a time sufficient to . . . obtain the

person’s name, address, and date of birth . . . .” Ind. Code § 34-28-5-3. Refusal to provide

one’s name, address, and date of birth to a law-enforcement officer results in a Class C

misdemeanor. Id. § 34-28-5-3.5(1). Asking for Powell’s name, address, and date of birth

was reasonable. In fact, Powell’s refusal to furnish such information would be a crime.

5 Moreover, Officer Walters’s decision to briefly detain Powell to search for

outstanding warrants was valid under Article 1, Section 11. First, Officer Walters saw

Powell commit an ordinance violation. Second, the degree of intrusion of briefly detaining

Powell to determine whether he had an arrest warrant was negligible. To issue the citation,

Officer Walters was required to ask Powell his name, address, and date of birth. The time

to search for an outstanding warrant is minimal. Powell presented no evidence that the

warrant search prolonged his detention or changed the nature of his detention. Third, the

extent of the needs of law-enforcement officers is high. A police officer’s ability to search

for outstanding warrants is important for officers to ensure the safety of the public.

Once Officer Walters validly determined that Powell had an outstanding warrant,

he arrested Powell. It is well settled that “a police officer may conduct a warrantless search

of a person if the search is incident to a lawful arrest.” Edwards v. State, 759 N.E.2d 626,

629 (Ind. 2001). Officer Walters’s search of Powell was a validly executed search incident

to a valid arrest.

Nevertheless, Powell relies on State v. Quirk, arguing that Officer Walters detained

Powell beyond the period necessary to issue a citation for not properly using a crosswalk.

However, the facts in Quirk are quite different from this case. In Quirk, an officer stopped

Quirk, a truck driver, because his headlight was not working. State v. Quirk, 842 N.E.2d

334, 338 (Ind. 2006). While writing the warning ticket, the officer performed a criminal

history check. Id. After the first officer handed Quirk a warning ticket and told him he

was free to leave, a second officer, who had meanwhile arrived, received the results of the

criminal history check and asked Quirk more questions. Id. at 338-39. Quirk consented to

6 a search of the cargo area of his tractor-trailer, but not the cabin area. Id. at 339. The

officers again allowed him to leave. Id. They followed him to a rest area and told him that

he was free to leave, but the truck had to stay. Id. Quirk waited over twenty minutes for a

drug-sniffing dog to arrive. Id. It alerted, and a search revealed cocaine in the cabin area

of the tractor-trailer. Id.

In Quirk, the Indiana Supreme Court only found that that detaining a suspect’s

vehicle until a drug dog arrived impermissibly prolonged a stop for a civil infraction. Id.

at 343. However, the Supreme Court did state that “a request for the driver’s license and

vehicle registration, a license plate check, a request to search the driver’s vehicle and an

inquiry regarding whether the driver has a weapon in the vehicle are within the scope of

reasonable detention.” Id. at 340. A search for outstanding warrants is no more intrusive

than performing a license-plate check. Indeed, in Quirk, the officers searched the database

for outstanding warrants, and nothing in the Supreme Court’s opinion suggests that the

warrant check deprived Quirk of his state constitutional rights. See id. at 338-43. Officer

Walters’s request for Powell’s identification and search for outstanding warrants was

reasonable under Article 1, Section 11.

Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.