James E. Britt, Jr. v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
Dec 27 2013, 7:10 am
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:
ELIZABETH A. BELLIN GREGORY F. ZOELLER
Elkhart, Indiana Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES E. BRITT, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1304-CR-152
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Olga H. Stickel, Judge
Cause No. 20D04-1204-FD-484
December 27, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
James E. Britt, Jr. appeals his convictions of class D felony Possession of Marijuana1
and class A misdemeanor Carrying a Handgun Without a License.2 On appeal, Britt argues
that the trial court abused its discretion in admitting evidence seized as a result of an illegal
search.
We affirm.
Around midnight on April 20, 2012, Elkhart City Police Corporal Andy Rucker was
on duty and sitting in his parked police cruiser in a school parking lot waiting to meet with
another police officer. Corporal Rucker’s window was rolled down, and he heard loud music
coming from a large SUV from over one hundred feet away, in violation of a city noise
ordinance. Corporal Rucker activated his emergency lights and initiated a traffic stop.
Corporal Rucker then made contact with the driver, who identified himself as Britt
and produced a Michigan driver’s license. Corporal Rucker informed Britt of the noise
ordinance, and Britt responded that he was from Detroit and unaware of the city ordinance.
Corporal Rucker then returned to his squad car to check Britt’s license and vehicle
information and fill out a citation. Corporal Rucker also radioed for backup and requested a
nearby canine unit to conduct a free-air sniff of the exterior of the vehicle. Officer Newland3
arrived within a couple of minutes, followed a couple of minutes later by Officer Lee Brooks
and his canine partner. Officer Brooks approached the SUV to ask Britt to step out of the
vehicle while he and his canine partner performed an exterior sweep. Upon making contact
1 Ind. Code Ann. § 35-48-4-11 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Technical Sess.).
2 Ind. Code Ann. § 35-47-2-1 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Technical Sess.); I.C. §
35-47-2-23 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Technical Sess.).
3 Officer Newland’s first name does not appear in the record.
2
with Britt, Officer Brooks opened the driver-side door and asked Britt if he had any weapons.
Britt responded that he had a handgun in the center console of his vehicle. Officer Brooks
asked Britt to exit the vehicle, and Britt complied. With Britt’s consent, Officer Brooks
performed a pat-down search of Britt and found no weapons or contraband. Officer Brooks
then escorted Britt, who was not handcuffed or otherwise restrained, to the area between the
SUV and Corporal Rucker’s cruiser, approximately fifteen feet away from the SUV.
Officer Brooks opened the center console of the SUV and removed the handgun,
which was loaded and had a bullet in the chamber. Officer Brooks then unloaded the gun
and checked its serial number with dispatch, confirming that it was not stolen. At about the
same time, Officer Newland radioed Corporal Rucker, who was still in his police cruiser, and
asked him to determine whether Britt had a valid license to carry a handgun. Corporal
Rucker contacted dispatch and inquired as to whether Britt was licensed to carry a handgun
in Michigan, and Officer Brooks placed the unloaded handgun in Corporal Rucker’s vehicle
before performing the canine sweep, which did not reveal the presence of any contraband.
Meanwhile, dispatch informed Corporal Rucker that Britt had been denied a handgun permit
in Michigan due to a felony conviction. Britt was then placed under arrest for carrying a
handgun without a license, and Officer Newland transported him to the police station for
booking. Corporal Rucker and Officer Brooks stayed behind and performed an inventory
search of the SUV in preparation for its impoundment. During the search, the officers
discovered a bag containing 432.04 grams of marijuana behind a rear side panel in the back
of the SUV.
3
As a result of these events, the State charged Britt with class D felony possession of
marijuana and class A misdemeanor carrying a handgun without a license. Britt filed a
motion to suppress, which the trial court denied after a hearing. The matter proceeded to a
bench trial on February 19, 2013. At the conclusion of the evidence, the trial court found
Britt guilty of possession of marijuana and took the carrying a handgun without a license
charge under advisement. By order dated February 21, 2013, the trial court found Britt guilty
of carrying a handgun without a license. On March 25, 2013, Britt was sentenced to an
aggregate term of eighteen months suspended to probation. Britt now appeals.
On appeal, Britt argues that all evidence relating to the handgun and the marijuana
should have been excluded as the products of an illegal search. Britt initially challenged the
admission of evidence through a motion to suppress, and is now appealing its admission after
a completed bench trial. Decisions concerning the admission or exclusion of evidence fall
within the sound discretion of the trial court and will be reversed only for an abuse of
discretion. Palilonis v. State, 970 N.E.2d 713 (Ind. Ct. App. 2012), trans. denied. An abuse
of discretion occurs when the trial court’s ruling is clearly against the logic and effect of the
facts and circumstances before it. Id. The ultimate determination of the constitutionality of a
search or seizure, however, is reviewed de novo. Woodson v. State, 966 N.E.2d 135 (Ind. Ct.
App. 2012), trans. denied.
As an initial matter, we note that Britt does not challenge the propriety of the original
traffic stop based on an alleged violation of the city noise ordinance. See Goens v. State, 943
N.E.2d 829, 832 (Ind. Ct. App. 2011) (noting that “[i]t is well-settled that a police officer
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may briefly detain a person whom the officer believes has committed an infraction or an
ordinance violation” (quoting Datzek v. State, 838 N.E.2d 1149, 1154 (Ind. Ct. App. 2005),
trans. denied). Nor does he allege that his rights were violated when Officer Brooks asked
him whether he had any weapons, instructed him to step out of the vehicle, patted him down
for weapons, or conducted a canine sweep of the exterior of his vehicle. Instead, he argues
that his rights under the Fourth Amendment to the U.S. Constitution were violated when
Officer Brooks, after being informed of the handgun’s location, opened the center console
and removed it. According to Britt, at that moment, the officers lacked reasonable suspicion
or probable cause to believe that Britt was committing the crime of carrying a handgun
without a license because they had not yet been informed that he had been denied a license to
carry a handgun in Michigan. Moreover, Britt argues that all threats to officer safety
attributable to the presence of the handgun had been neutralized because Britt had been
removed from the vehicle and patted down and was cooperative with the officers. Finally,
Britt argues that the marijuana discovered during the inventory search was inadmissible as
fruit of the poisonous tree.4
We need not address Britt’s argument in this regard. Even if we assume that Officer
Brooks’s act of securing the handgun upon being informed of its location was somehow
improper, the inevitable discovery exception to the exclusionary rule “permits the
introduction of evidence that eventually would have been located had there been no error, for
[in] that instance ‘there is no nexus sufficient to provide a taint.’” Schultz v. State, 742
4
Britt makes no independent argument concerning the legality of the inventory search of his vehicle.
5
N.E.2d 961, 965 (Ind. Ct. App. 2001) (quoting Banks v. State, 681 N.E.2d 235, 239 (Ind. Ct.
App. 1997)). Here, although the officers were not yet aware that Britt had been denied a
license to carry a handgun in Michigan at the time Officer Brooks removed the handgun from
the center console, Corporal Rucker independently obtained that information from dispatch
minutes later, while the stop was still in progress. As a result, the officers had probable cause
to believe that Britt was committing the crime of carrying a handgun without a license and
therefore to seize the handgun. See State v. Hobbs, 933 N.E.2d 1281 (Ind. 2010) (noting that
the automobile exception to the warrant requirement allows police to conduct a warrantless
search of a vehicle if they have probable cause to believe evidence of a crime will be found
therein). Put another way, the handgun would have been located and seized minutes later
even if Officer Brooks had not retrieved the gun immediately after being informed of its
location, and Britt’s arrest and the inventory search of his vehicle would have followed.
Accordingly, the evidence in this case falls within the inevitable discovery exception to the
exclusionary rule and need not be suppressed under the Fourth Amendment.
Britt also argues that his rights under article 1, section 11 of the Indiana Constitution
were violated when Officer Brooks retrieved the handgun from the center console.5 The
cases Britt cites in his analysis of the state constitutional issue, however, address claims
under the Fourth Amendment only. See Holly v. State, 918 N.E.2d 323, 325 n.2 (Ind. 2009)
(finding it “unnecessary to resolve” the defendant’s article 1, section 11 claim in light of the
5
The inevitable discovery exception to the exclusionary rule has not been adopted as a matter of Indiana
constitutional law. Ammons v. State, 770 N.E.2d 927 (Ind. Ct. App. 2002), trans. denied.
6
Court’s conclusion that the search violated the defendant’s Fourth Amendment rights);
Woodson v. State, 960 N.E.2d 224 (Ind. Ct. App. 2012) (mentioning both the federal and
state constitutions, but resolving the case based solely on a Fourth Amendment analysis).
Britt also briefly cites Litchfield v. State, 824 N.E.2d 356 (Ind. 2005) for the general
proposition that the article 1, section 11 inquiry focuses on the reasonableness of the search
under the totality of the circumstances. Britt does not, however, cite the three-factor
balancing test enunciated in that case or make any attempt to apply it. See Litchfield v. State,
824 N.E.2d 356. Instead, Britt cites the Fourth Amendment reasonable suspicion standard
applicable to investigative stops. See Terry v. Ohio, 392 U.S. 1 (1968). Because Britt has
not developed any argument supporting a separate analysis under article 1, section 11, he has
waived his state constitutional claim. See Patterson v. State, 958 N.E.2d 478 (Ind. Ct. App.
2011).
Waiver notwithstanding, we find no violation of article 1, section 11 here. As set
forth above, the validity of a search under article 1, section 11 of the Indiana Constitution
turns on an evaluation of the reasonableness of the officer’s conduct under the totality of the
circumstances. Temperly v. State, 933 N.E.2d 558 (Ind. Ct. App. 2010), trans. denied, cert.
denied, 132 S. Ct. 496 (2011). In evaluating the reasonableness of a search, we must
balance: “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.’” Id. at 564 (quoting Litchfield v.
State, 824 N.E.2d at 361).
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In this case, even if we assume the degree of concern or suspicion that a violation had
occurred was low, the remaining two factors tip strongly in favor of upholding the search.
The degree of intrusion here was low. Officer Brooks did not conduct a full search of the
vehicle; instead, he merely opened the center console to retrieve the handgun after Britt
informed him of its location. Moreover, law enforcement needs were great. At the time
Officer Brooks seized the handgun, Britt was located fifteen feet away from the vehicle and
he was not handcuffed or in any way restrained. It was therefore necessary for Officer
Brooks to secure the weapon to ensure officer safety. Under these facts and circumstances,
we can readily conclude that Officer Brooks’s actions were reasonable for purposes of article
1, section 11 of the Indiana Constitution.
Judgment affirmed.
KIRSCH, J., and BAILEY, J., concur.
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