Marcus Blackmon v. State of Indiana (mem. dec.) ( 2015 )


Menu:
  •       MEMORANDUM DECISION
    Sep 04 2015, 8:28 am
    Pursuant to Ind. Appellate Rule 65(D), 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
    Kevin Wild                                                Gregory F. Zoeller
    Indianapolis, Indiana                                     Attorney General of Indiana
    Monika Prekopa Talbot
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Marcus Blackmon,                                         September 4, 2015
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A02-1412-CR-890
    v.                                               Appeal from the Marion Superior
    Court.
    The Honorable Steven R. Eichholtz,
    State of Indiana,                                        Judge.
    Appellee-Plaintiff.                                      Cause No. 49G20-1210-FA-68486
    Barteau, Senior Judge
    Statement of the Case
    [1]   Marcus Blackmon appeals his convictions of dealing in a narcotic drug, a Class
    A felony, Indiana Code section 35-48-4-1 (2006); possession of a controlled
    substance, a Class D felony, Indiana Code section 35-48-4-7 (2011); two counts
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 1 of 9
    of resisting law enforcement, as Class A misdemeanors, Indiana Code section
    35-44.1-3-1 (2012); and escape, a Class C felony, Indiana Code section 35-44.1-
    3-4 (2012). We affirm.
    Issue
    [2]   Blackmon presents a single issue for our review, which we restate as: whether
    the trial court abused its discretion by admitting certain evidence at trial that
    was obtained following a warrantless traffic stop.
    Facts and Procedural History
    [3]   In October 2012, Detective Wolfe of the Indianapolis police force was
    observing a Buick vehicle and its occupants in relation to an ongoing
    investigation. The Buick was parked in a parking lot next to another vehicle,
    and Detective Wolfe observed what he believed to be a possible hand-to-hand
    drug transaction between the occupants of the two vehicles. When the Buick
    left the parking lot, Detective Wolfe observed that the Buick’s driver failed to
    signal when turning and traveled eastbound in the westbound lane of travel. At
    that time, Detective Wolfe relayed this information over his radio and called for
    assistance.
    [4]   Sergeant McDonald, who was assisting Detective Wolfe, heard the request to
    stop the Buick. Although Sergeant McDonald did not witness the initial traffic
    violations, he did note a third violation upon locating the vehicle — the tinting
    on the Buick’s windows was too dark. Sergeant McDonald initiated a traffic
    stop of the Buick, and the driver of the Buick pulled into a parking space at a
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 2 of 9
    gas station. As Sergeant McDonald walked up to the Buick, the driver opened
    the door. Sergeant McDonald saw pieces of marijuana in the hand rest of the
    driver’s door and smelled a strong odor of marijuana coming from the car. The
    driver of the vehicle then informed Sergeant McDonald that he did not have a
    license. Sergeant McDonald called for back-up.
    [5]   Officer Reetz arrived to assist Sergeant McDonald. Officer Reetz asked
    Blackmon, who was the passenger in the Buick, to exit the vehicle, turn around
    and put his hands on his shoulders. Blackmon exited the vehicle, put his hands
    up, and then began to run from the scene. Both officers pursued Blackmon.
    Officer Reetz grabbed Blackmon’s sweatshirt and wrestled him to the ground.
    As Blackmon struggled, he continued to reach for his pants pocket. Eventually,
    Blackmon pulled a pill bottle from his pocket and tossed it away from the
    immediate area. When the pill bottle hit the ground, it burst open and sixty-five
    small foil packets fell out. The officers tried to handcuff Blackmon, but they
    were unable to do so because he continued to struggle. Sergeant McDonald
    administered dry stuns with a Taser to the middle of Blackmon’s back, and the
    officers eventually got him handcuffed. Once handcuffed, Blackmon was
    searched and three pills were located in his jeans pocket in addition to a “wad
    of cash.” Tr. p. 101. At that time, Blackmon was placed in the back of a police
    car. Blackmon was able to get out of the police car, and he again ran from the
    scene. By then, Detective Wolfe had arrived at the scene, and he chased
    Blackmon and eventually apprehended him.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 3 of 9
    [6]   Based on this incident, Blackmon was charged with dealing in a narcotic drug,
    1
    a Class A felony; possession of a narcotic drug, a Class C felony ; possession of
    a controlled substance, a Class D felony; two counts of resisting law
    enforcement, as Class A misdemeanors; and escape, a Class C felony. A bench
    trial was held on these charges at which Blackmon objected to the admission of
    any evidence obtained as a result of the traffic stop. The evidence was admitted
    over objection, and the State presented testimony that the foil packets contained
    heroin. The three pills from Blackmon’s pants pocket were also tested and
    determined to be Oxycodone. Blackmon was found guilty of all charges. His
    conviction of possession of a narcotic drug was merged into his conviction of
    dealing in a narcotic drug, and Blackmon was sentenced to an aggregate
    sentence of thirty years with ten years suspended.
    Discussion and Decision
    [7]   Blackmon contends that the trial court erred when it denied his motion to
    suppress the evidence prior to trial and when it admitted the evidence over his
    objection at trial. Because Blackmon appeals following a completed trial, the
    issue is simply whether the trial court abused its discretion by admitting the
    evidence at trial. See Collins v. State, 
    822 N.E.2d 214
    , 218 (Ind. Ct. App. 2005),
    trans. denied. The discretion afforded the trial court is broad, and an abuse of
    this discretion occurs when a decision is clearly against the logic and effect of
    1
    Ind. Code § 35-48-4-6 (2006).
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 4 of 9
    the facts and circumstances before the court. Paul v. State, 
    971 N.E.2d 172
    , 175
    (Ind. Ct. App. 2012).
    [8]    In reviewing a trial court’s ruling on the admissibility of evidence from an
    allegedly illegal search, we do not reweigh the evidence. Reinhart v. State, 
    930 N.E.2d 42
    , 45 (Ind. Ct. App. 2010). Rather, we defer to the trial court’s factual
    determinations, unless clearly erroneous, and we consider conflicting evidence
    most favorable to the trial court’s ruling. 
    Id. Further, we
    consider anew any
    legal question of the constitutionality of a search or seizure. 
    Id. [9] Here,
    Blackmon asserts that his convictions arose from a pretextual stop and
    subsequent search of his person that violated his rights under both the federal
    and Indiana constitutions. He argues that he was stopped merely so the officers
    could further their ongoing investigation and that Detective Wolfe called for
    assistance and then “sought some sort of reason to make the stop.” Appellant’s
    Br. p. 15. The Fourth Amendment to the United States Constitution protects
    against unreasonable searches and seizures. Likewise, article I, section 11 of
    the Indiana Constitution protects citizens from unreasonable searches and
    seizures. Despite the similarity of the two provisions, Indiana courts interpret
    and apply article I, section 11 independently from the Fourth Amendment.
    Mitchell v. State, 
    745 N.E.2d 775
    , 786 (Ind. 2001).
    Fourth Amendment
    [10]   The safeguards of the Fourth Amendment extend to brief investigatory stops of
    persons or vehicles that fall short of traditional arrest. Porter v. State, 985
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 5 of 
    9 N.E.2d 348
    , 353 (Ind. Ct. App. 2013). The burden is on the State to
    demonstrate that the measures it used to seize evidence were constitutional. 
    Id. A traffic
    stop is a seizure under the Fourth Amendment, and, accordingly, the
    police must possess at least a reasonable suspicion that a traffic law has been
    violated or that other criminal activity is taking place. Meredith v. State, 
    906 N.E.2d 867
    , 869 (Ind. 2009). Such reasonable suspicion must encompass more
    than hunches or unparticularized suspicions; that is, an officer must be able to
    point to specific facts giving rise to a reasonable suspicion of criminal activity.
    Denton v. State, 
    805 N.E.2d 852
    , 855 (Ind. Ct. App. 2004), trans. denied. Further,
    the subjective intentions of the officer do not factor into the determination of
    the reasonableness of the stop under the Fourth Amendment. Osborne v. State,
    
    805 N.E.2d 435
    , 439 (Ind. Ct. App. 2004), trans. denied.
    [11]   At both the hearing on the motion to suppress and at trial, the State conceded
    that the stop was pretextual but argued that it was also legal. Tr. pp. 15, 95. At
    the hearing on Blackmon’s motion to suppress, Sergeant McDonald testified as
    follows:
    McDonald: They were conducting surveillance of this particular
    vehicle and the individuals in it and that they believed that they
    were involved in drug trafficking.
    Defense Counsel: Okay. Was there any discussion of a traffic
    pull over or traffic infractions if you recall?
    McDonald: They — yeah. The intent was to stop this vehicle.
    Defense Counsel: To stop it for a traffic infraction?
    McDonald: Yes.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 6 of 9
    Defense Counsel: Okay. Was there — were you given any basis
    for an infraction before you pulled them over?
    McDonald: Yes.
    Defense Counsel: Okay. What was that basis?
    McDonald: They were driving the wrong way on the — 21st
    Street and didn’t use a turn signal.
    
    Id. at 37-38.
    And later:
    Defense Counsel: Sergeant McDonald, Detective Wolfe asked
    you to stop this vehicle before he relayed any information about
    the traffic violations, right?
    McDonald: I think the goal was to get the vehicle stopped, yes.
    But no, he didn’t say, “Stop his car.”
    Defense Counsel: The goal of this investigation was to stop the
    car. You knew he wanted the car stopped before he had relayed
    to you that there were traffic violations?
    McDonald: Yeah. If we did observe some violations and had
    enough reasonable suspicion to stop this vehicle, yes. He wanted
    the car stopped. But it wasn’t until traffic violations were
    observed that I did stop the car.
    
    Id. at 40-41.
    [12]   Likewise at trial, Sergeant McDonald testified that he received a request on his
    police radio to stop the Buick that had been observed by Detective Wolfe failing
    to signal and driving on the wrong side of the road. Both of these actions
    constitute traffic violations. See Ind. Code §§ 9-21-8-25 (1991), 9-21-8-2 (1991).
    Moreover, upon locating the Buick, Sergeant McDonald noticed that its
    window tinting appeared to be too dark in violation of Indiana Code section 9-
    19-19-4(c) (2003). These circumstances indicate that when Sergeant McDonald
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 7 of 9
    conducted a traffic stop on the Buick, he possessed more than a reasonable
    suspicion that three traffic laws had been violated.
    Article I, Section 11
    [13]   Concluding that the traffic stop did not violate Blackmon’s Fourth Amendment
    rights, we now turn to the separate argument under the Indiana Constitution.
    Under Indiana constitutional analysis, we examine the circumstances of each
    case to determine whether police behavior was reasonable. 
    Mitchell, 745 N.E.2d at 786
    . The State bears the burden of showing that the intrusion was
    reasonable in light of the totality of the circumstances. 
    Id. “A police
    stop and
    brief detention of a motorist is reasonable and permitted under Section 11 if the
    officer reasonably suspects that the motorist is engaged in, or about to engage
    in, illegal activity.” 
    Id. “Reasonable suspicion
    exists if the facts known to the
    officer, together with the reasonable inferences arising therefrom, would cause
    an ordinarily prudent person to believe that criminal activity has or is about to
    occur.” 
    Id. [14] Moreover,
    the courts of our state have determined that pretextual stops are not
    unreasonable under the Indiana Constitution provided the officer has probable
    cause to believe there has been a traffic violation. 
    Osborne, 805 N.E.2d at 439
    .
    Our supreme court explained that:
    We find nothing unreasonable in permitting an officer, who may
    have knowledge or suspicion of unrelated criminal activity by the
    motorist, to nevertheless respond to an observed traffic violation.
    It is likewise not unreasonable for a motorist who commits a
    traffic law violation to be subject to accountability for said
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 8 of 9
    violation even if the officer may have an ulterior motive of
    furthering an unrelated criminal investigation.
    
    Mitchell, 745 N.E.2d at 787
    .
    [15]   Here, Sergeant McDonald received information from Detective Wolfe that the
    occupants of the Buick had been involved in a possible hand-to-hand
    transaction. Detective Wolfe asked the officers, including Sergeant McDonald,
    to stop the Buick, and told them that he had observed two different traffic
    violations — failure to signal and driving on the wrong side of the road. Upon
    stopping the Buick, Sergeant McDonald identified a third violation regarding
    the window tint. All three of these violations are completely independent of
    any possible drug transaction, and all three constitute traffic violations. Thus,
    while the stop may have been pretextual, we conclude that Sergeant McDonald
    had reasonable suspicion of traffic violations to conduct a traffic stop of the
    Buick.
    Conclusion
    [16]   For the reasons stated, we conclude that the traffic stop of the Buick did not
    violate Blackmon’s constitutional rights. Accordingly, the trial court did not
    abuse its discretion in admitting at trial the evidence seized as a result of the
    stop.
    [17]   Affirmed.
    [18]   Baker, J., and May, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 9 of 9
    

Document Info

Docket Number: 49A02-1412-CR-890

Filed Date: 9/4/2015

Precedential Status: Precedential

Modified Date: 9/4/2015