K.K. v. State of Indiana , 2015 Ind. App. LEXIS 473 ( 2015 )

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
George P. Sherman
Timothy J. O’Connor Deputy Attorney General
O’Connor & Auersch Indianapolis, Indiana
Indianapolis, Indiana
Jun 22 2015, 8:55 am
IN THE
COURT OF APPEALS OF INDIANA
K.K., June 22, 2015
Appellant-Respondent, Court of Appeals Case No.
49A02-1410-JV-687
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable Marilyn A. Moores,
Judge
Appellee-Petitioner. The Honorable Geoffrey A. Gaither,
Magistrate
Cause No. 49D09-1406-JD-1558
Kirsch, Judge.
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[1] K.K., a juvenile, brings this appeal after he was adjudicated a delinquent child
for having committed the offense of dangerous possession of a firearm, 1 a Class
A misdemeanor. He raises one issue that we restate as: whether the odor of
burnt marijuana emanating from a vehicle in which K.K. was a passenger
provided probable cause for officers to arrest the car’s three occupants, such that
the loaded handgun found during the subsequent search of K.K. was properly
admitted into evidence.
[2] We affirm.
Facts and Procedural History
[3] While on patrol in the early morning hours of April 12, 2014, Officer Vincent
Stewart of the Indianapolis Metropolitan Police Department observed a two-
toned Ford Crown Victoria that appeared similar to those used by law
enforcement. It caught his attention because “we have a lot of impersonators
and they are still driving these former police vehicles.” Tr. at 6. He also
observed that the windows were tinted “very dark.” Id. Officer Stewart ran a
search of the plates and learned that it was previously registered to a sheriff’s
office or police department and that the current registered owner’s driver’s
1
See Ind. Code §35-47-10-5 (providing, in part, that a child who knowingly, intentionally, or recklessly
possesses firearm for any other purpose other than described in section 1 of the chapter, which exempts
certain uses of firearms such as attending a hunter safety course, commits Class A misdemeanor dangerous
possession of firearm). We note that an amendment to this statute became effective on July 1, 2014. We will
apply the statute in effect at the time that the offense occurred in April 2014.
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license was suspended. Officer Stewart then initiated a traffic stop of the
vehicle.
[4] As is his custom, Officer Stewart approached the car from the passenger’s side,
and he saw that, in addition to the adult male driver, there were two additional
occupants, not previously observable because of the tinted windows.2 The
driver’s son was the front seat passenger, and his friend, K.K., age seventeen,
was seated in the backseat. As Officer Stewart was speaking with and obtaining
identification from the three occupants, he noticed a strong odor of burnt
marijuana coming from inside the vehicle. This concerned him, and he radioed
for assistance. Rather than returning to his patrol car, Officer Stewart remained
at the stopped vehicle and continued to speak with the three individuals inside
it, including asking the occupants if there were “any guns, knives, or weapons
of mass destruction in the vehicle,” which he always asks during traffic stops for
officer safety, and the response he received was that there were none. Id. at 12.
Another officer arrived at the scene, at which time Officer Stewart directed the
three occupants to step out of the vehicle.
[5] One or both of the officers conducted a “quick pat down” of the three
occupants, from which nothing was found, and they were placed in handcuffs
and told to sit on the curb. Id. at 13. A third officer, Officer Michael Leepper,
2
Under Indiana Code section 9-19-19-4(c), a person may not drive a motor vehicle that has a windshield,
side window that is part of a front door, or a rear back window that is tinted to the extent that the occupants
cannot be easily identified or recognized through the window from the outside of the vehicle. See Meek v.
State, 950 N.E.2d 816, 819 (Ind. Ct. App. 2011), trans. denied.
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arrived at the scene about that time. While Officer Stewart stepped away,
Officer Leepper positioned himself to supervise the three who were handcuffed.
Officer Leepper observed K.K. make a furtive movement by “blading” or
turning his body to his left side. Id. at 29-30. Officer Leepper also noticed that
K.K. looked “very nervous,” in contrast to the other two individuals. Id. at 31.
Suspecting that K.K. was attempting to conceal something or trying to retrieve
something, Officer Leepper directed K.K. to stand, at which time Officer
Leepper patted down K.K. and discovered a loaded Glock handgun in the
pocket of his basketball shorts.3 The serial number of the firearm had been
scratched out.
[6] The State filed a petition alleging that K.K., then-seventeen years old, was a
delinquent child for having committed the offenses of dangerous possession of a
firearm, a Class A misdemeanor, and carrying a handgun without a license, a
Class A misdemeanor if committed by an adult.
[7] At the fact-finding hearing, counsel for K.K. moved to suppress the handgun
and objected to its admission several times during the testimonies of Officer
Stewart and Officer Leepper. Id. at 9, 13, 34-36. The trial court denied the
motions, admitted the handgun into evidence, and ultimately adjudicated K.K.
a delinquent child, entering a true finding for the offense of dangerous
possession of a firearm and dismissing the other charge. At the subsequent
3
The probable cause affidavit indicates that K.K. was wearing jeans over the basketball shorts. Appellant’s
App. at 15.
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dispositional hearing, the trial court placed K.K. on probation with a suspended
commitment to the Indiana Department of Correction and ordered K.K. to
participate in two specified programs. K.K. now appeals.
Discussion and Decision
[8] K.K. claims he was unlawfully seized in violation of the Fourth Amendment,
and the evidence obtained from that seizure, the handgun, was “fruit of the
poisonous tree” and should have been suppressed. Appellant’s Br. at 1, 6, 10.
Because K.K.’s case proceeded to a fact-finding hearing, where he renewed the
motion to suppress and objected to the admission of that evidence, his appeal is
properly framed as a request to review the trial court’s ruling on the
admissibility of the evidence. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind.
2014) (recognizing direct review of denial of motion to suppress is only proper
where defendant files an interlocutory appeal). The trial court has broad
discretion to rule on the admissibility of evidence. Meek v. State, 950 N.E.2d
816, 819 (Ind. Ct. App. 2011), trans. denied; Fentress v. State, 863 N.E.2d 420,
422-23 (Ind. Ct. App. 2007). We will reverse a trial court’s rulings on the
admissibility of evidence only when the trial court abused its discretion. Bell v.
State, 13 N.E.3d 543, 544-45 (Ind. Ct. App. 2014), trans. denied. An abuse of
discretion involves a decision that is clearly against the logic and effect of the
facts and circumstances and the error affects a party’s substantial rights.
Guilmette, 14 N.E.3d at 40. “But when an appellant’s challenge to such a ruling
is predicated on an argument that impugns the constitutionality of the search or
seizure of the evidence, it raises a question of law, and we consider that
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question de novo.” Id. at 40-41 (citing Kelly v. State, 997 N.E.2d 1045, 1050
(Ind. 2013)).
[9] K.K. contends that his arrest violated his protections under the Fourth
Amendment, which states:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. K.K. maintains that, under Indiana law, the smell of
burnt marijuana coming from the car gave officers probable cause to conduct a
warrantless search of the vehicle, but it did not give them probable cause to
seize him by placing him in handcuffs and ordering him to sit on the curb. See
Appellant’s Br. at 9 (citing Hawkins v. State, 766 N.E.2d 749, 752 (Ind. Ct. App.
2002), trans. denied). He asserts that there “was no legitimate concern for officer
safety,” and further, no marijuana was found during Officer Stewart’s search of
the car, such that the officer’s claim that he smelled marijuana was pretextual
and the officers were on a “fishing expedition.” 4 Id. at 3. Therefore, K.K.
4
Indiana has recognized that, even if a traffic stop was pretextual in nature, which we do not concede was
the case here, such does not convert a valid traffic stop into an unconstitutional stop and search. See Lark v.
State, 755 N.E.2d 1153, 1155 n.5 (Ind. Ct. App. 2001) (citing Kenner v. State, 703 N.E.2d 1122, 1129 n.1 (Ind.
Ct. App. 1999), trans. denied and State v. Voit, 679 N.E.2d 1360, 1363 (Ind. Ct. App. 1997)), aff’d on reh’g, 759
N.E.2d 275 (Ind. Ct. App. 2001)).
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claims that the arrest was unlawful and anything stemming from it was fruit of
the poisonous tree.
[10] A search incident to lawful arrest is an exception to the warrant requirement
under the Fourth Amendment. Bell, 13 N.E.3d at 545 (citing Arizona v. Gant,
556 U.S. 332, 338 (2009)). An arrest is lawful if it is supported by probable
cause. Fentress, 863 N.E.2d at 423. Probable cause for an arrest exists if at the
time of the arrest the officer has knowledge of facts and circumstances that
would warrant a person of reasonable caution to believe that the suspect has
committed the criminal act in question. Kelly, 997 N.E.2d at 1051; Bell, 13
N.E.3d at 545. A police officer’s subjective belief concerning whether he had
probable cause to arrest a defendant has no legal effect. Bell, 13 N.E.3d at 545.
The ultimate determination of probable cause is reviewed de novo. Id. Here,
K.K. argues that “[t]he smell of burnt marijuana coming from inside of the car
in which K.K. was a back seat passenger did not constitute probable cause for
officers to arrest him and conduct a search of his person.” Appellant’s Br. at 6.
After careful consideration, we disagree.5
5
As our Supreme Court has observed, “The line between a Terry stop and a full-blown custodial arrest is
blurred by the tension and uncertainty inherent in such encounters.” Kelly v. State, 997 N.E.2d 1045, 1051
(Ind. 2013). The typical Terry stop is a relatively brief encounter, whereas an arrest occurs when a police
officer interrupts the freedom of the accused and restricts the person’s liberty of movement. Id.; Fentress v.
State, 863 N.E.2d 420, 423 (Ind. Ct. App. 2007) (citing Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996)). Here,
K.K.’s position is that he was arrested when he was handcuffed with hands behind his back and instructed to
sit on the curb and that the arrest was unlawful; the State’s position is that the search that revealed the
handgun was a lawful search incident to arrest. Thus, both parties’ baseline premise is that an arrest
occurred, and we likewise proceed with our analysis on this basis.
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[11] In reaching this decision, we observe our court’s analyses in recent decisions
involving similar fact patterns, including Bell and Meek. In Meek, an officer
conducted a traffic stop of a vehicle that he believed was driving away from an
accident scene; the car had very dark window tint so that he could not see
inside it. Upon stopping the vehicle, the officer learned that there were three
occupants, two adults and a minor, and Meek was the driver. The officer
smelled raw marijuana emanating from the car. 950 N.E.2d at 818. The officer
called for back-up assistance. Upon inquiry, the occupants responded that there
were no weapons or contraband in the car. The officers on the scene asked the
two adults to step out of the car, and one officer read Miranda rights to the men,
at which time Meek told the officer he had a weapon. The officers conducted a
pat-down search of both men and found cash and Meek’s gun, as well as his
permit for it. The officers did not find marijuana on either suspect and found
none in the car. When questioned about the odor of marijuana coming from
the car, Meek stated that he had previously smoked marijuana that day.
However, because the officers had smelled raw, not burnt, marijuana, they
conducted a more thorough pat-down search, and a baggie fell from Meek’s leg
containing what officers suspected was marijuana and also white pills. Meek’s
motion to suppress was denied. Id. at 819.
[12] In Meek’s interlocutory appeal, he asserted that the trial court erred when it
denied his motion to suppress the evidence because officers lacked probable
cause to search his person based solely upon the smell of raw marijuana
emanating from the vehicle he was driving. Id. Meek argued that the search
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violated Article 1, Section 11 of the Indiana Constitution. Id. at 820. A panel
of this court determined that the search was reasonable in light of the totality of
the circumstances, and we affirmed the denial of the motion to suppress. 6 Id.[13] That same month, a panel of this court decided Edmond v. State, 951 N.E.2d 585(Ind. Ct. App. 2011). In that case, an officer conducted a traffic stop and
discovered the driver, the only person in the car, possessed a learner’s permit
rather than a driver’s license. The officer smelled a strong odor of burnt
marijuana coming from the vehicle and on Edmond’s breath. Id. at 587. Upon
request, Edmond got out of the car, and the officer conducted a pat-down
search and removed marijuana from Edmond’s pocket. Edmond’s motion to
suppress was denied, and he was found guilty of possession of marijuana. Id.[14] On appeal, Edmond argued that the search and seizure violated his Fourth
Amendment protections, as well as those under Article 1, Section 11 of the
Indiana Constitution. Like K.K., Edmond conceded that the smell of
marijuana coming from his vehicle could have established probable cause to
search the vehicle. Id. at 588. Also like K.K., Edmond asserted that probable
cause to search his vehicle did not extend to his person and that the pat-down
6
We recognize that the Article 1 Section 11 analysis is separate and distinct from Fourth Amendment
analysis, which we are called to apply in K.K.’s case, and that in some cases Article 1, Section 11 confers
greater protections to individual rights than the Fourth Amendment, but we nevertheless find that Meek is
relevant and worthy of inclusion in our discussion, particularly given its factual similarities to the case before
us. See e.g., Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (in addressing Bell’s Fourth Amendment
challenges to officer’s pat-down, court included discussion of Meek, which presented Article 1, Section 11
claim).
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was not justified by a concern for officer safety. Id. at 589. In its Fourth
Amendment analysis, the Edmond court observed, “[W]e have never
determined whether the smell of burnt marijuana alone may constitute probable
cause to support an arrest and search incident to arrest.” Id. at 591. The
Edmond court concluded that under certain circumstances the odor of marijuana
may constitute probable cause to support an arrest and search incident to arrest,
reasoning:
Because the odor of burnt marijuana might linger in a vehicle for a
period of time, that odor does not necessarily indicate illegal activity
by a current occupant; however, we note that [the officer] specifically
smelled marijuana on [the defendant]’s breath in addition to the odor
coming from his vehicle. Furthermore, [the defendant] was alone in
the vehicle.
Id. The court determined that, under those circumstances, a person of
reasonable caution would be warranted in the belief that Edmond possessed
marijuana, and, thus, the officer had probable cause to arrest him and a lawful
basis to search him. Id.[15] About one year later, this court decided Bell. There, Bell was a passenger in a
vehicle that was stopped by an officer because of an illegally displayed
temporary license plate. The officer learned that the driver did not have a valid
driver’s license and ordered the occupants to exit the car. As Bell got out, the
officer smelled raw marijuana coming from the car and from Bell’s person. Bell,
13 N.E.3d at 544. The officer handcuffed Bell and conducted a pat-down
search which revealed marijuana. Following her conviction for possession of
marijuana, Bell appealed and argued that the pat-down search during the traffic
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stop violated her Fourth Amendment rights and that the marijuana should not
have been admitted at trial. Bell asserted, and this court agreed, that the officer
had no reason to believe that Bell was armed and dangerous and thus the pat-
down was not justified by officer safety concerns. Id. at 545. Instead, the Bell
court assessed whether the pat-down was permissible on the basis that the
officer had probable cause to arrest Bell. Id.
[16] Although the facts in Bell involved the odor of raw marijuana, the Bell court’s
analysis recognized prior Indiana decisions involving the smell of burnt
marijuana in a vehicle:
In Shinault [v. State], we noted the possibility that the detection of a
strong marijuana odor coming from the defendant driver could have
given the officer probable cause to arrest and further search the
defendant. 668 N.E.2d [274, 278 n.5 (Ind. Ct. App. 1996).] And we
have previously held that the odor of burnt marijuana from a person’s
vehicle and breath yields probable cause to believe that she possesses
marijuana. Edmond v. State, 951 N.E.2d 585, 591 (Ind. Ct. App. 2011).
Id. at 546. Ultimately, the Bell court determined, “[L]ike the smell of burnt
marijuana, the smell of raw marijuana on a person is sufficient to provide
probable cause that the person possesses marijuana.” Id. The court concluded
that the officer had probable cause to arrest Bell and conduct a search incident
to arrest, and the trial court did not abuse its discretion in admitting the
evidence seized during the search. Id.
[17] K.K. suggests that the Edmond decision requires that, for probable cause to
exist, the officer must not only smell marijuana emanating from the vehicle,
but, in addition, the defendant driver must be alone in the vehicle when the
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smell is detected, and the officer must detect it on the individual’s person or
breath. Appellant’s Br. at 9-10. To the extent that Edmond could be interpreted
to require the presence of all of these factors, we respectfully decline to follow
it. In our view, whether the defendant is alone and whether the odor of
marijuana – burnt or raw – is also present on an individual or his breath are
factors to be considered in the analysis, not bright-line prerequisites necessary
for probable cause to exist. As this court has recently observed:
The amount of evidence necessary to meet the probable cause
requirement is determined on a case-by-case basis. It is grounded in
notions of common sense, not mathematical precisions. As such, the
probable cause standard 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.”
White v. State, 24 N.E.3d 535, 539 (Ind. Ct. App. 2015), trans. denied (internal
citations omitted). Taking into consideration the decisions discussed above, we
conclude that, at the time of the arrest in this case, Officer Stewart had
knowledge of facts and circumstances that would warrant a person of
reasonable caution to believe that a criminal act had been or was being
committed, and we find that probable cause existed to arrest the occupants of
the vehicle, including K.K.
[18] Our decision today is in line with a determination reached by our federal
colleagues in Lessley v. City of Madison, Indiana, 654 F.Supp.2d 877 (S.D. Ind.
2009). In Lessley, police conducted a traffic stop of a vehicle that had a broken
license plate light. Several police cars were involved in the traffic stop, two
parked in front of and one parked behind the stopped car. One officer
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approached the car and smelled marijuana7 and saw rolling papers. The
women were directed to exit the car, and they were seated in police vehicles.
One officer searched the car, but found “either nothing or a trace amount of
marijuana.” Id. at 889. Another officer searched the pockets of the car’s three
occupants and/or they were told to pull them out to view, but no marijuana
was found. Officers called for a female officer to conduct a more thorough
search, and when that officer arrived, the occupants were taken to a fire station
and strip-searched, and marijuana was discovered on Lessley, at which time she
was handcuffed and arrested. Lessley was charged with possession of
marijuana, but those charges were later dismissed. All three occupants filed a
complaint, alleging various state tort claims and federal civil rights claims, and
it “became the subject of elaborate and expensive litigation” involving a
“lengthy tour through wide tracts of Fourth Amendment law[.]” Id.[19] In the course of the Lessley Court’s discussion of the Fourth Amendment issues,
it stated that probable cause existed to arrest Lessley because the officer smelled
marijuana on her. 654 F.Supp.2d at 894. It continued, “Though it is a closer
question, the officers also had probable cause to arrest [the other two
occupants] because of the smell of marijuana emanating from [the] vehicle.”
Id. (citing Maryland v. Pringle, 540 U.S. 366, 327 (2003) (finding it was
7
While the case does not state whether the officer smelled burnt or raw marijuana, the facts of the case reveal
that, while in the car, each of the three occupants smoked from a marijuana cigarette, and then once they
realized a police car was following them, one of the women placed two baggies of raw marijuana in her
underwear. Lessley v. City of Madison, Ind., 654 F.Supp.2d 877, 890 (S.D. Ind. 2009). So according to the
facts, it was possible that the odor of burnt or raw marijuana, or both, was present.
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reasonable for officer to infer that any or all of occupants had knowledge of and
exercised dominion and control over contraband)). The Lessley Court observed
that, in the case before it, the three women were traveling in a private passenger
car, “which suggested that at least one of the occupants had been smoking
marijuana in the presence of others.” Id. at 894-95. “[T]he smell of marijuana
indicated that there was marijuana in the vehicle and that all the occupants
knew it,” and given that Indiana criminalizes the constructive possession of
marijuana, the Lessley Court held that the officers had probable cause to arrest
each of the three occupants. Id. at 895.
[20] In the present case, after executing a valid traffic stop of a two-toned police-type
vehicle with very dark tinted windows at 1:30 a.m., Officer Stewart
encountered a strong odor of burnt marijuana emanating from the vehicle in
which K.K. was a backseat passenger. Officer Stewart asked the three
occupants whether drugs or weapons were present, and he was told there were
none. The officer called for back-up assistance. Once another officer arrived,
Officer Stewart ordered the three occupants out of the vehicle, and a brief pat-
down of each of them was conducted, after which they were handcuffed and
instructed to sit on the curb. A third officer who had arrived on the scene
noticed K.K. making furtive movements, repeatedly leaning to his left, and
appearing nervous. The officer patted down K.K. and found a loaded Glock
handgun in his pocket. K.K. concedes, “If [he] had been lawfully under arrest
during the search, then the handgun might have been admissible as the product
of a lawful search incident to the arrest.” Appellant’s Br. at 10. Finding as we do
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that the arrest was supported by probable cause, the trial court did not abuse its
discretion by allowing the firearm to be admitted into evidence because it was
discovered pursuant to a lawful search incident to K.K.’s arrest.8
[21] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
8
As did our colleagues in Edmond, we “caution police officers against routinely searching people stopped for
traffic violations; it is not inevitable that there will always be a valid basis for doing so.” Edmond v. State, 951
N.E.2d 585, 592 n.7 (Ind. Ct. App. 2011).
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