MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 13 2016, 9:06 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Tyler E. Burgauer Gregory F. Zoeller Certified Legal Intern Attorney General of Indiana Joel M. Schumm Monika Prekopa Talbot Appellate Clinic Deputy Attorney General Indiana University Indianapolis, Indiana Robert H. McKinney School of Law Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Sanders, December 13, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1605-CR-971 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda Brown, Appellee-Plaintiff. Judge Trial Court Cause No. 49G10-1601-CM-1539
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 1 of 7 Case Summary [1] Following a bench trial, Marcus Sanders (“Sanders”) was convicted of
Possession of Marijuana as a Class A misdemeanor. 1 Sanders now appeals,
raising the sole restated issue of whether the trial court improperly admitted
evidence observed in plain view during an investigatory stop. We affirm.
Facts and Procedural History [2] On December 3, 2015, Marion County Sheriff’s Deputy Brandon Stewart
(“Deputy Stewart”), in full police uniform, was working as a courtesy officer for
an apartment complex in Indianapolis. Around 9:00 p.m., Deputy Stewart saw
a vehicle strike a curb twice while moving from one parking spot to another.
Deputy Stewart was concerned that the driver was intoxicated and decided to
check on the driver. As Deputy Stewart approached the vehicle, Sanders began
to exit, and Deputy Stewart told Sanders to stay in the vehicle. Sanders
complied and left the door open. Deputy Stewart noticed a clear “baggie” near
the doorframe that contained a green leafy substance. Deputy Stewart seized
the suspected contraband. Later testing concluded that the substance was
marijuana.
1 Ind. Code § 35-48-4-11(b).
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 2 of 7 [3] On January 13, 2016, the State charged Sanders with Possession of Marijuana.
During a bench trial, Sanders moved to suppress the marijuana evidence. The
trial court denied Sanders’s motion and found Sanders guilty.
[4] Sanders now appeals.
Discussion and Decision [5] Sanders argues that Deputy Stewart’s warrantless stop violated his rights under
the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the
Indiana Constitution. He contends that the marijuana evidence procured
during the stop should not have been admitted.
[6] The trial court has broad discretion to rule on the admissibility of evidence at
trial. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We review the trial
court’s ruling for abuse of that discretion and reverse only when admission is
clearly against the logic and effect of the facts and circumstances before the
court and the error affects a party’s substantial rights. Id. The constitutionality
of a search or seizure is a question of law, which we review de novo. Kelly v.
State, 997 N.E.2d 1045, 1050 (Ind. 2013). In reviewing the constitutionality of
a search or seizure, we do not reweigh the evidence, but consider conflicting
evidence most favorably to the trial court’s ruling. Belvedere v. State, 889 N.E.2d
286, 288 (Ind. 2008).
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 3 of 7 Fourth Amendment [7] The Fourth Amendment provides protection against unreasonable searches and
seizures by generally prohibiting such acts without a warrant supported by
probable cause. U.S. Const. amend. IV. The State has the burden of showing
that an exception to the warrant requirement applies. Osborne v. State, No.
29S02-1608-CR-433, slip op. at 4 (Ind. Nov. 29, 2016). One exception is the
Terry stop, which permits an officer to “stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.
Ohio, 392 U.S. 1, 30 (1968)). Such a stop “must be justified by some objective
manifestation that the person stopped is, or is about to be, engaged in criminal
activity.” United States v. Cortez, 449 U.S. 411, 417 (1981).
[8] Here, Deputy Stewart saw Sanders twice strike a parking lot curb. Suspecting
that Sanders was intoxicated, Deputy Stewart initiated a Terry stop. Sanders
contends that “[i]t is not unusual for drivers to bump curbs while positioning
their vehicles in parking lots,” (Appellant’s Br. at 10), characterizing the curb
strikes as innocuous parking maneuvers. The evidence favorable to the ruling,
however, indicated that Sanders struck the curb as he was moving between two
parking spots.
[9] In Robinson v. State, 5 N.E.3d 362 (Ind. 2014), our supreme court found
reasonable suspicion to justify a Terry stop when an officer observed a vehicle
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 4 of 7 cross over the fog line twice. The Robinson Court acknowledged that “such
movement could have been attributable to driver distraction or some other
more innocuous case,” but observed that “Terry does not require absolute
certainty of illegal activity, but rather reasonable suspicion.” Robinson, 5
N.E.3d at 368.
[10] Just as there was reasonable suspicion in Robinson when the vehicle twice
crossed the fog line, we find that under these facts there was reasonable
suspicion when Sanders twice struck the curb while driving in a parking lot.
Accordingly, Deputy Stewart did not violate Sanders’s Fourth Amendment
rights when Deputy Stewart carried out an investigatory stop.
Article I, Section 11 [11] The text of Article 1, Section 11 of the Indiana Constitution is similar to that of
the Fourth Amendment. However, we conduct a separate, independent inquiry
focusing on whether the police conduct was “reasonable under the totality of
the circumstances.” State v. Washington, 898 N.E.2d 1200, 1205-06 (Ind. 2008).
In evaluating reasonableness, we consider three factors: “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 citizen’s ordinary
activities, and 3) the extent of law enforcement needs.” Litchfield v. State, 824
N.E.2d 356, 361 (Ind. 2005).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 13 2016, 9:06 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Tyler E. Burgauer Gregory F. Zoeller Certified Legal Intern Attorney General of Indiana Joel M. Schumm Monika Prekopa Talbot Appellate Clinic Deputy Attorney General Indiana University Indianapolis, Indiana Robert H. McKinney School of Law Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Sanders, December 13, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1605-CR-971 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda Brown, Appellee-Plaintiff. Judge Trial Court Cause No. 49G10-1601-CM-1539
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 1 of 7 Case Summary [1] Following a bench trial, Marcus Sanders (“Sanders”) was convicted of
Possession of Marijuana as a Class A misdemeanor. 1 Sanders now appeals,
raising the sole restated issue of whether the trial court improperly admitted
evidence observed in plain view during an investigatory stop. We affirm.
Facts and Procedural History [2] On December 3, 2015, Marion County Sheriff’s Deputy Brandon Stewart
(“Deputy Stewart”), in full police uniform, was working as a courtesy officer for
an apartment complex in Indianapolis. Around 9:00 p.m., Deputy Stewart saw
a vehicle strike a curb twice while moving from one parking spot to another.
Deputy Stewart was concerned that the driver was intoxicated and decided to
check on the driver. As Deputy Stewart approached the vehicle, Sanders began
to exit, and Deputy Stewart told Sanders to stay in the vehicle. Sanders
complied and left the door open. Deputy Stewart noticed a clear “baggie” near
the doorframe that contained a green leafy substance. Deputy Stewart seized
the suspected contraband. Later testing concluded that the substance was
marijuana.
1 Ind. Code § 35-48-4-11(b).
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 2 of 7 [3] On January 13, 2016, the State charged Sanders with Possession of Marijuana.
During a bench trial, Sanders moved to suppress the marijuana evidence. The
trial court denied Sanders’s motion and found Sanders guilty.
[4] Sanders now appeals.
Discussion and Decision [5] Sanders argues that Deputy Stewart’s warrantless stop violated his rights under
the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the
Indiana Constitution. He contends that the marijuana evidence procured
during the stop should not have been admitted.
[6] The trial court has broad discretion to rule on the admissibility of evidence at
trial. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We review the trial
court’s ruling for abuse of that discretion and reverse only when admission is
clearly against the logic and effect of the facts and circumstances before the
court and the error affects a party’s substantial rights. Id. The constitutionality
of a search or seizure is a question of law, which we review de novo. Kelly v.
State, 997 N.E.2d 1045, 1050 (Ind. 2013). In reviewing the constitutionality of
a search or seizure, we do not reweigh the evidence, but consider conflicting
evidence most favorably to the trial court’s ruling. Belvedere v. State, 889 N.E.2d
286, 288 (Ind. 2008).
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 3 of 7 Fourth Amendment [7] The Fourth Amendment provides protection against unreasonable searches and
seizures by generally prohibiting such acts without a warrant supported by
probable cause. U.S. Const. amend. IV. The State has the burden of showing
that an exception to the warrant requirement applies. Osborne v. State, No.
29S02-1608-CR-433, slip op. at 4 (Ind. Nov. 29, 2016). One exception is the
Terry stop, which permits an officer to “stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.
Ohio, 392 U.S. 1, 30 (1968)). Such a stop “must be justified by some objective
manifestation that the person stopped is, or is about to be, engaged in criminal
activity.” United States v. Cortez, 449 U.S. 411, 417 (1981).
[8] Here, Deputy Stewart saw Sanders twice strike a parking lot curb. Suspecting
that Sanders was intoxicated, Deputy Stewart initiated a Terry stop. Sanders
contends that “[i]t is not unusual for drivers to bump curbs while positioning
their vehicles in parking lots,” (Appellant’s Br. at 10), characterizing the curb
strikes as innocuous parking maneuvers. The evidence favorable to the ruling,
however, indicated that Sanders struck the curb as he was moving between two
parking spots.
[9] In Robinson v. State, 5 N.E.3d 362 (Ind. 2014), our supreme court found
reasonable suspicion to justify a Terry stop when an officer observed a vehicle
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 4 of 7 cross over the fog line twice. The Robinson Court acknowledged that “such
movement could have been attributable to driver distraction or some other
more innocuous case,” but observed that “Terry does not require absolute
certainty of illegal activity, but rather reasonable suspicion.” Robinson, 5
N.E.3d at 368.
[10] Just as there was reasonable suspicion in Robinson when the vehicle twice
crossed the fog line, we find that under these facts there was reasonable
suspicion when Sanders twice struck the curb while driving in a parking lot.
Accordingly, Deputy Stewart did not violate Sanders’s Fourth Amendment
rights when Deputy Stewart carried out an investigatory stop.
Article I, Section 11 [11] The text of Article 1, Section 11 of the Indiana Constitution is similar to that of
the Fourth Amendment. However, we conduct a separate, independent inquiry
focusing on whether the police conduct was “reasonable under the totality of
the circumstances.” State v. Washington, 898 N.E.2d 1200, 1205-06 (Ind. 2008).
In evaluating reasonableness, we consider three factors: “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 citizen’s ordinary
activities, and 3) the extent of law enforcement needs.” Litchfield v. State, 824
N.E.2d 356, 361 (Ind. 2005).
[12] Here, the degree of concern was high because Deputy Stewart witnessed
Sanders twice strike a curb while driving between parking spots, indicating that
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 5 of 7 Sanders may have been impaired. The degree of intrusion was low, which
Sanders concedes, because Deputy Stewart was carrying out a brief
investigatory stop. The extent of law enforcement needs was high because an
intoxicated driver could have returned to the road and endangered the public if
Deputy Stewart had not intervened.
[13] Sanders argues that law enforcement needs were nonexistent because Deputy
Stewart was working in an off-duty capacity. Sanders relies on C.P. v. State, 39
N.E.3d 1174 (Ind. Ct. App. 2015), trans. denied, where this Court found law
enforcement needs nonexistent when an officer working a church event stopped
someone who was wearing sagging pants and using obscenities, which violated
church policies. Here, however, Deputy Stewart stopped Sanders on suspicion
that Sanders was violating Indiana law.
[14] We find that the investigatory stop was reasonable under the totality of the
circumstances and, therefore, not in violation of Article I, Section 11.
[15] Finally, we note that Sanders makes a cursory argument concerning plain view.
The plain view doctrine provides that “police do not need a warrant to seize
incriminating evidence . . . if the following conditions are met: (1) police have a
legal right to be at the place from which the evidence can be plainly viewed; (2)
the incriminating character of the evidence is immediately apparent; and (3)
police have a lawful right of access to the object itself. Houser v. State, 678
N.E.2d 95, 101 (Ind. 1997) (citing Horton v. California, 496 U.S. 128, 136-37
(1990)). Here, Sanders contends that Deputy Stewart did not have a legal right
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 6 of 7 to be in plain view of the marijuana evidence because the investigatory stop was
unconstitutional. Having found no constitutional defect with the investigatory
stop, we find that the plain view doctrine justified seizure of the marijuana
evidence.
Conclusion [16] Because Deputy Stewart constitutionally stopped Sanders, the trial court did
not abuse its discretion in admitting evidence in plain view during the stop.
[17] Affirmed.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 7 of 7