Michael White v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 16, 2015
• Docket: 49A05-1406-CR-243
• Status: Published

Opinion

FOR PUBLICATION Jan 16 2015, 9:46 am

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

HILARY BOWE RICKS GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

J. T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

MICHAEL WHITE, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1406-CR-243 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Daniel Pflum, Judge Cause No. 49G20-1305-FC-29580

January 16, 2015

OPINION - FOR PUBLICATION

RILEY, Judge STATEMENT OF THE CASE

Appellant-Defendant, Michael White (White), appeals his conviction for Count I,

possession of cocaine, a Class C felony, Ind. Code § 35-48-4-6; Count II, possession of

marijuana, a Class A misdemeanor, I.C. § 35-48-4-11; and his adjudication as an habitual

substance offender, I.C. § 35-34-1-5.

We affirm.

ISSUE

White raises one issue on appeal, which we restate as: Whether the trial court

properly admitted the evidence discovered following White’s stop and arrest.

FACTS AND PROCEDURAL HISTORY

On May 5, 2013, Indianapolis Metropolitan Police Officer Jana Goode (Officer

Goode) was driving home in her personal vehicle on Keystone Avenue in Indianapolis,

Indiana, after her shift had ended. At the intersection of Keystone Avenue and 25th

Street, Officer Goode observed a tan car exit a fast-food restaurant parking lot directly in

front of her car. The tan car drove forward into traffic, hitting a red car in the left lane.

Without stopping or exiting his car, the driver of the tan car, later identified as White,

backed up, and then pulled forward in between Officer Goode’s car and the red car,

driving away north-bound on Keystone Avenue. Officer Goode reported the incident,

turned her car around, and started following White. When White turned north onto

Ralston Avenue, Officer Goode lost sight of him.

2 Officers Adam Mengerink (Officer Mengerink) and Dustin Keedy (Officer Keedy)

responded to Officer Goode’s radio report of the accident and stopped White’s car at the

intersection of Fall Creek and 30th Street. Officer Goode arrived at the stop and informed

the Officers what she had observed. All three officers noticed front-end damage to

White’s car, as well as red paint markings on the front bumper.

During the stop, both Officer Mengerink and Officer Keedy smelled a strong odor

of raw marijuana on White’s person when he exited the car, as well as an odor of burnt

marijuana inside White’s vehicle. The officers arrested White for leaving the scene of an

accident. Following White’s arrest, Officer Keedy searched White but found no

marijuana on his person. The officers searched the car and did not locate any marijuana

inside the vehicle. Meanwhile, Officer Goode returned to the location of the accident,

but the red car was no longer there.

After being placed in custody, White was transported to the Arrestee Processing

Center (APC). At the APC, Marion County Sheriff’s Deputy Brent Doughty (Deputy

Doughty) performed a pat-down search of White. Because of the strong smell of

marijuana emanating from White, Deputy Doughty also subjected White to a strip search.

The strip search was done in private, with two deputies present. During this search,

Deputy Doughty discovered two baggies near White’s buttocks inside his underpants.

The baggies contained raw marijuana, as well as 3.1992 grams of cocaine.

On May 7, 2013, the State filed an Information, charging White with Count I,

possession of cocaine, a Class C felony, I.C. § 35-48-4-6; Count II, possession of

marijuana, a Class A misdemeanor, I.C. § 35-48-4-11; Count III, failure to stop after an

3 accident with an unattended vehicle, a Class B misdemeanor, I.C. §§ 9-26-1-3, -8(b); and

Count IV, trafficking with an inmate, a Class A misdemeanor, I.C. § 35-44.1-3-5. On

April 2, 2014, the State amended the Information, adding Count V, alleging White to be

an habitual substance offender, I.C. § 35-34-1-5.

On August 26, 2013, White moved to suppress the evidence discovered following

his arrest. On November 6, 2013, White amended his motion to suppress, asserting that

he was arrested under the wrong Indiana Code section and without probable cause. On

May 16, 2014, after a combined suppression hearing and bench trial, the trial court

denied White’s motion to suppress, found that probable cause to arrest him existed, and

that the subsequent search was legal. The trial court declared White guilty of Count I,

possession of cocaine, a Class C felony, and Count II, possession of marijuana, a Class A

misdemeanor. After White stipulated to the charge, the trial court adjudicated him an

habitual substance offender. That same day, the trial court sentenced White to six years

executed on Count I, enhanced by six years for the habitual offender adjudication, and a

one year concurrent sentence on Count II, for an aggregate sentence of twelve years

executed.

White now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

White contends that the trial court abused its discretion when it admitted the

evidence resulting from White’s arrest and strip search. Our standard of review for the

admissibility of evidence is well settled. The admission or exclusion of evidence lies

within the trial court’s sound discretion and is afforded great deference on appeal.

4 Whiteside v. State, 853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006). We will reverse a trial

court’s ruling on the admissibility of evidence only for an abuse of discretion. Id. An

abuse of discretion occurs where the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before it. Id. In reviewing the admissibility of

evidence, we consider only the evidence in favor of the trial court’s ruling and any

unrefuted evidence in the defendant’s favor. Id.

In essence, White makes two assertions: first, he disputes the legality of the arrest

pursuant to I.C. § 35-33-1-1(a)(3), and second, White argues that he was subjected to a

strip search at the APC in violation of his Fourth Amendment rights and his rights

pursuant to the Indiana Constitution.

A. Probable Cause

Pursuant to I.C. § 35-33-1-1(a)(3), a law enforcement officer may arrest a person

when the officer has probable cause to believe the person failed to stop after a property

damage accident under I.C. § 9-26-1-2.

Probable cause to arrest exists when, at the time of the arrest, the officer has

knowledge of facts and circumstances that would warrant a reasonable person to believe

that the suspect has committed the criminal act in question. Clark v. State, 808 N.E.2d

1183, 1192 (Ind. 2004) (citing Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 18

L.Ed.2d 1040 (1967)). The amount of evidence necessary to meet the probable cause

requirement is determined on a case-by-case basis. Ortiz v. State, 716 N.E.2d 345, 348

(Ind. 1999). It is grounded in notions of common sense, not mathematical precisions.

Ogle v. State, 698 N.E.2d 1146, 1148 (Ind. 1998). As such, the probable cause standard

5 is a “practical, nontechnical conception that deals with the factual and practical

considerations of everyday life on which reasonable and prudent men, not legal

technicians, act. Maryland v. Pringle, 540 U.S. 366, 370-71 (2003) (quoting Illinois v.

Gates, 462 U.S. 213, 231-32 (1983)). Because it deals with probabilities and depends on

the totality of the circumstances, the probable cause standard is incapable of precise

definition or quantification into percentages. Pringle, 540 U.S. at 371. However, the

substance of the definition of probable cause is a reasonable ground for belief of guilt and

this belief of guilt must be particularized with respect of the person to be searched or

seized. Id. (quoting Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238

(1979)).

Contesting the existence of probable cause, White claims that the amount of

evidence available to stop and arrest him for failure to stop after a property damage

accident only rose to the less demanding standard of reasonable suspicion. “Reasonable

suspicion . . . is satisfied where the facts known to the officer at the moment of the stop,

together with the reasonable inferences arising from such facts, would cause an ordinarily

prudent person to believe that criminal activity has occurred or is about to occur.”

Billingsly v. State, 980 N.E.2d 402, 408 (Ind. Ct. App. 2012). We disagree.

Officer Goode observed White strike a red car while exiting from a parking lot

into Keystone Avenue, and fleeing the scene. She reported the incident and followed

White. Even though other officers stopped White, Officer Goode caught up with him and

informed the other officers of her observations. All three officers noticed the front-end

damage on White’s car, including the “red paint from the other car [which] had

6 transferred over to the bumper” of White’s car. (Transcript p. 12). Although there was

“old” damage to White’s front bumper, the “red paint transfer” looked “fresh.” (Tr. p.

38). Officer Goode testified that the area with the red paint was “consistent with the area

of [White’s] vehicle that [she] previously saw strike the red vehicle.” (Tr. p. 21). Based

on the evidence, we conclude that the officers had a reasonable belief that White had

failed to stop after a property damage accident and therefore his arrest was supported by

probable cause.1 See Pringle, 540 U.S. at 371.

B. Strip Search

Next, White contends that the strip search at APC violated his Fourth Amendment

rights. The Fourth Amendment to the United States Constitution provides, in pertinent

part: “[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated . . .” As a general rule,

the Fourth Amendment prohibits warrantless searches. Meister v. State, 933 N.E.2d 875,

878 (Ind. 2010). When a search is conducted without a warrant, the State has the burden

of proving that the search falls into one of the exceptions to the warrant requirement; a

search incident to arrest is one such exception. Id.

Thus, 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). In such

situations, the search and the arrest must be “substantially contemporaneous,” and the

1 Because we find that the officers had probable cause to stop White, we will not address White’s alternative argument that in case no probable cause to arrest White for leaving the scene of a property damage accident existed, the “smell of marijuana on his person” did not justify the arrest. (Appellant’s Br. p. 11).

7 search must be confined to the immediate vicinity of the arrest. Townsend v. State, 460

N.E.2d 139, 141 (Ind. 1984). The requirement of a contemporaneous search has been

interpreted liberally, however, and Indiana courts have validated searches that do not

occur until the arrestee arrives at a law enforcement facility, as long as the items searched

are “found on the person of an arrestee” or are “immediately associated with this person.”

Edwards, 759 N.E.2d at 629. Therefore, here, because White’s arrest was supported by

probable cause, the contested strip search can be evaluated as a search incident to a

lawful arrest.

Nevertheless, both Indiana case law and federal precedents place limits on

searches incident to an arrest. The United States Supreme Court has held that once a

lawful arrest has been made, authorities may conduct a “full search” of the arrestee for

weapons or concealed evidence. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct.

467, 38 L.Ed.2d 428 (1973). No additional probable cause for the search is required, and

the search incident to arrest may “involve a relatively extensive exploration of the

person.” Id. at 227 (quoting Terry v. Ohio, 392 U.S. 1, 25, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968)). However, such a search would be unreasonable, and therefore a violation of the

Fourth Amendment standard, if it were “extreme or patently abusive.” Id. at 236. In

Edwards, 759 N.E.2d at 629, our supreme court rejected the “general proposition that a

routine, warrantless strip search incident to a lawful misdemeanor arrest is reasonable.”

Rather, carefully delineating the parameters, the Edwards court concluded that “[t]o the

extent a search is conducted on the basis of jail security, the indignity and personal

invasion necessarily accompanying a strip search is simply not reasonable without the

8 reasonable suspicion that weapons or contraband may be introduced into the jail.” Id. at

630. The circumstances surrounding the arrest, rather than the offense itself, may give

rise to a reasonable suspicion, and if so the search is justified. Id.

During the stop both officers noticed a strong odor of raw marijuana on White’s

person when he exited the car, as well as an odor of burnt marijuana inside White’s

vehicle. Despite patting down White and searching his car, the officers did not locate any

marijuana. Upon his arrest, White was transported to the APC. At the APC, Deputy

Doughty conducted a strip search of White because of “the strong odor of what appeared

to be maybe marijuana.” (Tr. p. 55). He reiterated that the odor raised a concern of

contraband trafficking in the jail, possibly resulting in “violence within the jail.” (Tr. p.

56). Deputy Doughty conducted the search in private and located two baggies in White’s

underwear. We conclude that although the underlying arrest constituted a misdemeanor,

the strip search incident to White’s arrest was justified because of the officers’ reasonable

suspicion that weapons or contraband would be introduced into the jail due to the

lingering odor of marijuana which engulfed White even after having been transported to

the APC. See Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014), trans. denied

(noting that the odor of raw marijuana indicates that it has not been smoked and therefore

still may be in the defendant’s possession). The strip search did not violate White’s

Fourth Amendment rights.2

CONCLUSION

2 Because we affirm the trial court based on the Fourth Amendment, we will not address White’s Indiana Constitution argument.

9 Based on the foregoing, we conclude that the trial court properly admitted

evidence following White’s arrest and search.

Affirmed.

VAIDIK, C.J. and BAKER, J. concur