John L. Solomon v. State of Indiana , 119 N.E.3d 173 ( 2019 )

FILED
Jan 31 2019, 7:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel M. Schumm Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John L. Solomon, January 31, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2041
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jose D. Salinas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G14-1704-CM-13921
Brown, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019 Page 1 of 11
[1] John Solomon appeals his conviction for possession of marijuana as a class B
misdemeanor. Solomon raises one issue which we revise and restate as
whether his conviction violates his right to liberty and pursuit of happiness
under Article 1, Section 1, of the Indiana Constitution. We affirm.
Facts and Procedural History
[2] On April 15, 2017, Indianapolis Metropolitan Police Officer Mitchel Farnsley
initiated a traffic stop of a silver Buick near 30th Street and Capitol Avenue in
Marion County. There were five occupants in the vehicle, and Solomon was
seated in a rear seat. Officer Farnsley discovered that the license plate on the
vehicle was for a green Ford Explorer, called for backup, and Officer Haley
arrived on the scene. The police observed one of the vehicle’s occupants
destroying a syringe, and they immediately had the occupants exit the vehicle.
The police discovered numerous syringes and some aluminum foil, along with a
“marijuana blunt, located directly smooshed between the seat and the back seat
. . . where John Solomon’s butt would have been sitting.” Transcript Volume II
at 11. Officer Farnsley read Solomon his Miranda rights. Solomon “stated that
nothing in the car was his except for the marijuana blunt.” Id. at 12. Solomon
also told the police that he was in the vehicle because he was getting a ride to
the liquor store.
[3] On April 16, 2017, the State charged Solomon with possession of marijuana as
a class B misdemeanor. On August 1, 2018, the court held a bench trial at
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which Solomon testified that he did not know there was a marijuana blunt
beneath him, that the marijuana blunt did not belong to him, and that he told
Officer Haley that it did not belong to him. The court found Solomon guilty of
possession of marijuana as a class B misdemeanor and sentenced him to twenty
days with fourteen days suspended.
Discussion
[4] Solomon claims that criminalizing the mere possession of a single marijuana
blunt by an adult who is not driving or otherwise impacting others violates
Article 1, Section 1, of the Indiana Constitution and that his conviction should
be vacated. He argues that Ind. Code § 35-48-4-11 may be constitutional in
many circumstances and that the challenge here is not a facial one but as
applied to the facts of this case.
[5] Ind. Code § 35-48-4-11 provides that a person who knowingly or intentionally
possesses marijuana commits possession of marijuana as a class B
misdemeanor.
[6] Article 1, Section 1, of the Indiana Constitution (“Section 1”) provides:
WE DECLARE, That all men are created equal; that they are
endowed by their CREATOR with certain unalienable rights;
that among these are life, liberty and the pursuit of happiness;
that all power is inherent in the PEOPLE; and that all free
governments are, and of right ought to be, founded on their
authority, and instituted for their peace, safety, and well-being.
For the advancement of these ends, the People have, at all times,
an indefeasible right to alter and reform their government.
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[7] “A challenge to the constitutionality of a statute is a ‘pure question of law,’
which we review de novo.” State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017)
(citation omitted). “Such review is highly restrained and very deferential,
beginning with a presumption of constitutional validity, and therefore the party
challenging the statute labors under a heavy burden to show that the statute is
unconstitutional.” Conley v. State, 972 N.E.2d 864, 877 (Ind. 2012) (citation and
internal quotation marks and brackets omitted), reh’g denied. “All statutes are
presumptively constitutional, and the court must resolve all reasonable doubts
concerning a statute in favor of constitutionality.” Thakar, 82 N.E.3d at 259
(citations and internal quotation marks and brackets omitted). “That being
said, unlike the higher burden faced by those making a facial constitutional
challenge, those challenging the statute as applied ‘need only show the statute is
unconstitutional on the facts of the particular case.’” Id. (citing State v. Zerbe, 50
N.E.3d 368, 369 (Ind. 2016)).
[8] Solomon asserts that the possession of a single blunt of marijuana by an adult
who is not driving or otherwise impacting others falls well within the
protections afforded by Section 1 and that marijuana brings happiness to some
people, whether helping to alleviate a medical condition or for recreational
purposes. He argues that thirty-two states have legalized the use of marijuana
for medicinal and/or recreational use and that his possession of a small amount
of marijuana as a passenger of a vehicle does not adversely affect anyone else.
He argues that marijuana use was legal in 1851 when the Indiana Constitution
was drafted and ratified, that George Washington reportedly cultivated
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marijuana, and that in the mid-1800s marijuana was legal in the United States
and used for medicinal purposes on a small scale. He also states that “[w]hen
immigrants from Mexico and the West Indies began the practice of smoking
marijuana around 1900, states began to criminalize the possession or sale of
marijuana in statutes that ‘stemmed largely from racism and concern that use
would spread,’” Appellant’s Brief at 10 (citing Scott W. Howe, Constitutional
Clause Aggregation and the Marijuana Crimes, 75 WASH. & LEE L. REV. 779, 793
(2018)), and that the possession of marijuana appears to have been criminalized
in Indiana in the 1930s.
[9] Solomon further argues that the Indiana Supreme Court, in Herman v. State, 8
Ind. 545 (1855), found the liquor act of 1855 unconstitutional under Section 1.
Appellant’s Brief at 8-9 (citing Herman, 8 Ind. at 558-564 (“[T]he right of liberty
and pursuing happiness secured by the constitution, embraces the right, in each
compos mentis individual, of selecting what he will eat and drink, in short, his
beverages, so far as he may be capable of producing them, or they may be
within his reach, and that the legislature cannot take away that right by direct
enactment. If the constitution does not secure this right to the people, it secures
nothing of value. . . . The happiness enjoyed in the exercise of general,
reasonably regulated liberty by all, overbalances the evil of occasional
individual excess.”)). He also asserts: “Our supreme court has found several
statutes to violate Section 1. See Dep’t of Fin. Insts. v. Holt, 231 Ind. 293, 309,
108 N.E.2d 629, 637 (1952) (invalidating a statute limiting the amount that
purchasers of retail installment contracts could agree to pay retail dealers);
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Kirtley v. State, 227 Ind. 175, 179-180, 84 N.E.2d 712, 714 (1949) (striking down
statute prohibiting ‘scalping’ of tickets to sports events); Dep’t of Ins. v.
Schoonover, 225 Ind. 187, 192-194, 72 N.E.2d 747, 749-150 (1947) (invalidating
regulation requiring commissions to be paid on insurance sales); State Bd. of
Barber Exam’rs v. Cloud, 220 Ind. 552, 572-573, 44 N.E.2d 972, 980 (1942) (‘The
individual’s right to engage in a lawful business, to determine the price of his
labor and to fix the hours when his place of business shall be kept open, except
as they conflict with the police power, are personal privileges and liberties
within the protection of [Article I, Sections 1 and 23 of] the Indiana Bill of
Rights.’); Street v. Varney Elec. Supply Co., 160 Ind. 338, 342, 66 N.E. 895, 896-
897 (1903) (invalidating minimum wage legislation for public works projects).”
Id. at 10-11 (footnote omitted).
[10] The State responds that Solomon’s constitutional claim is waived because he
did not raise it before the trial court and that, because Solomon did not provide
the trial court with an opportunity to consider a challenge to the
constitutionality of the marijuana possession statute or the State with the
opportunity to offer evidence in support of the constitutionality of the statute,
this Court should find his claim waived and decline to address it. Further, the
State maintains that Article 1, Section 1, of the Indiana Constitution contains
no judicially enforceable rights and that “[t]he Indiana Supreme Court has cast
serious doubt that Article 1, Section 1 is a self-executing provision capable of
judicial enforcement rather than an unenforceable expression of the general
principles that animate our Constitution.” Appellee’s Brief at 11 (citing Doe v.
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O’Connor, 790 N.E.2d 985, 989-991 (Ind. 2003)). 1 The State argues that
Solomon does not cite a single case from the last sixty-five years that has found
a statute unconstitutional based solely on Section 1 and that the cases he does
cite from the early to mid-1900’s do not consider the validity of criminal
statutes but rather address the authority of the State or a political subdivision to
regulate a lawful trade, profession, or business.
[11] The State asserts that, at one time, the Indiana Supreme Court found “a right to
possess alcohol as a species of property right,” id. at 14 (citing Beebe v. State, 6
Ind. 501 (1855); Herman, 8 Ind. 545), 2 but that “the Court ultimately rejected
this right and effectively overruled Beebe (and by implication Herman). See
Schmitt v. F.W. Cook Brewing Co., 187 Ind. 623, 120 N.E. 19, 21 (1918)
(upholding prohibitions on liquor sales and saying of Beebe, ‘[i]t cannot be
determined . . . on what principle the court was acting’).” 3 Id. The State argues
1
In Doe, the Court stated that “[o]ther states also have construed constitutional provisions similar in wording
to Art. I, § 1, of the Indiana Constitution not to provide a sole basis for challenging legislation since the
language is not so complete as to provide courts with a standard that could be routinely and uniformly
applied” and “[w]e need not decide whether Art. I, § 1, presents any justiciable issues here because Doe does
not press a substantive claim.” 790 N.E.2d at 991. This Court later stated in Morrison v. Sadler: “It might be
presumed, however, that even if the language in Doe was dicta, it is a good indicator of the court’s current
thinking regarding Article 1, § 1 and that it is inclined to hold that particular constitutional provision not to
be judicially enforceable.” 821 N.E.2d 15, 31 (Ind. Ct. App. 2005).
2
In Beebe and Herman, the Court found the liquor act of 1855 to be void. See Herman, 8 Ind. at 567; Beebe, 6
Ind. at 522.
3
This Court has observed that the Indiana Supreme Court in Beebe found a right to possess alcohol and that
“[t]his case and others following it were later overruled during the Prohibition Era.” Morrison, 821 N.E.2d at
32 (citing Schmitt, 187 Ind. 623, 120 N.E. 19). In Schmitt, the Court stated “[t]he whole trend of the decisions
in this state on the remonstance laws, license laws, and the local option laws shows that no such thing ever
entered the mind of this court from the time of the Beebe Case and the cases immediately following it to the
present time,” “[b]ut, on the contrary, this court has repeatedly said the subject of the control of intoxicating
liquor is entirely within the power of the people through the Legislature to do anything that they deem
necessary, not only to prohibit the sale, but in order to effectuate that purpose to even prohibit the
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“[t]hat Section 1 has provided meaningful protection only for economic
interests (and then only sporadically) is important because economic rights
doctrine has been discredited,” and that “Indiana’s Section 1 economic rights
cases are the product of an old model of judicial supremacy over public policy
that was discredited long ago.” Id. The State contends that “the United States
Supreme Court’s analogous economic rights era is most closely associated with
Lochner v. New York, 198 U.S. 45 (1905), where the Court invalidated a New
York State law that limited the hours employees in bakeries could work based
on notions of the ‘right of contract between the employer and employees,’” and
that “[t]he entire Lochner era, of course, has long been discredited, disavowed
and overruled by the United States Supreme Court.” Id. at 14-15 (citing Lincoln
Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949)). It argues
that, while the Indiana Supreme Court invalidated certain public works wage
legislation and other price and hour regulations in the early- and mid-1900’s,
“this era of judicial activism and supremacy in the arena of public policy—
economic or otherwise—is now over in Indiana. See McIntosh v. Melroe Co., 729
N.E.2d 972, 975 (Ind. 2000) (describing Lochner and other property rights cases
as ‘now discredited’).” Id. at 16.
manufacture of intoxicating liquor within the state,” and “[t]he power of the states, under their Constitutions
and under the federal Constitution, to prohibit the manufacture and sale of intoxicating liquor and to provide
such means for the enforcement of prohibition as seems expedient to the Legislature, is now so well settled
that it is no longer an open question.” 187 Ind. 623, 120 N.E. at 22.
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[12] The State further argues that, “[e]ven if Section 1 were to provide some level of
judicially enforceable protection for some asserted ‘natural rights,’ there is no
textual or historical basis for concluding that it protects any right to possess
marijuana,” that statutes are clothed with the presumption of constitutionality,
that Solomon offered no evidence that marijuana brings him happiness, that
Solomon’s argument refers to items outside the record, and that, if this matter
had been litigated in the trial court, the State would have been able to offer a
number of studies which support the legislature’s conclusion that marijuana
should be illegal. Id. at 17. It argues that, while some states have legalized
marijuana, the Food and Drug Administration and Drug Enforcement
Administration have concluded that marijuana has no federally-approved
medical use for treatment and remains a Schedule I controlled substance under
federal law. Id. at 19 (citing United States Department of Justice, Drug
Enforcement Administration, Drugs of Abuse, A DEA Resource Guide 75
(2017)). It also argues that, unlike in Herman, there is no evidence in the record
that there was a large-scale marijuana industry in Indiana when its constitution
was adopted and Solomon fails to cite a long-standing universal use of
marijuana that the framers of the Indiana Constitution would have had in mind
when adopting Section 1.
[13] In his reply brief, Solomon argues that this appeal is about the liberty that
Section 1 promises adult Hoosiers. He argues Section 1 provides judicially
enforceable rights and that the Indiana Supreme Court addressed a substantive
Section 1 claim in 2011. Appellant’s Reply Brief at 10 (citing Moore v. State, 949
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N.E.2d 343, 345 (Ind. 2011)). 4 He contends that Herman remains sound
precedent, that his liberty has plainly and deeply been affected by the statute,
and that Herman did not suggest a violation of Section 1 required a long-
standing widespread or large-scale operation.
[14] Solomon did not argue before the trial court that Ind. Code § 35-48-4-11violates Article 1, Section 1 of the Indiana Constitution as applied to him. The
parties did not present arguments or evidence regarding the extent to which
Solomon’s marijuana possession was protected by Section 1. Even if Solomon
did not waive his claim and his claim is justiciable, we conclude that reversal is
not warranted. While the Indiana Supreme Court may have found in Herman
and Beebe that the liquor act of 1855 violated Section 1, we note that the Indiana
Supreme Court subsequently held in Schmitt that the control of liquor was
“entirely within the power of the people through the Legislature.” 187 Ind.
623, 120 N.E. at 22. See also Morrison, 821 N.E.2d at 32 (observing that Beebe
and “others following it were later overruled during the Prohibition Era”).
Some states may have elected to permit the use of, and de-criminalize the
possession of, marijuana under certain circumstances. Other states have not
elected to do so. The Indiana legislature has not repealed Ind. Code § 35-48-4-
4
In Moore, the defendant appealed her conviction of public intoxication as a class B misdemeanor. 949
N.E.2d at 344. On appeal, the defendant argued in part that her conviction was a result of her exercising her
freedom of choice over which beverages to consume and cited Herman. Id. at 345. The Court held: “The
defendant here, however, suffered no impingement of any alleged constitutional right to select which
beverages to consume. She was subject to the public intoxication statute because of her conduct after
consumption, not due to her beverage selection. The defendant’s accountability under the public intoxication
statute does not violate her personal liberty rights under the Indiana Constitution.” Id.
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11. The extent to which Solomon’s possession of marijuana under these
circumstances constituted a criminal offense is a legislative determination and
not a judicial one. Solomon has not established that he had a constitutional
right to possess marijuana or that Ind. Code § 35-48-4-11 violates Article 1,
Section 1, of the Indiana Constitution as applied to him.
[15] For the foregoing reasons, we affirm Solomon’s conviction.
[16] Affirmed.
Bailey, J., and Bradford, J., concur.
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