Charla P. Richard v. State of Indiana , 2014 Ind. App. LEXIS 171 ( 2014 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JUNE E. BULES GREGORY F. ZOELLER
Plymouth, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
Apr 23 2014, 10:06 am
IN THE
COURT OF APPEALS OF INDIANA
CHARLA P. RICHARD, )
)
Appellant-Defendant, )
)
vs. ) No. 50A03-1307-CR-297
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARSHALL SUPERIOR COURT
The Honorable Robert O. Bowen, Judge
Cause No. 50D01-1201-FD-43
April 23, 2014
OPINION - FOR PUBLICATION
SHEPARD, Senior Judge
When a police dog alerts to the presence of narcotics in a vehicle, does an officer
have probable cause to arrest and thus search the vehicle’s passenger? On the facts of
this case, we answer yes and therefore affirm.
FACTS AND PROCEDURAL HISTORY
On January 24, 2012, Officer John Weir of the Plymouth Police Department was
on duty in his squad car with his canine partner Rex, who was trained in narcotics
detection. When a vehicle in front of them repeatedly crossed the center line, Officer
Weir initiated a traffic stop. Christopher Fields was in the driver’s seat, and appellant
Charla Richard was in the front passenger seat. Officer Weir recognized both from
previous interactions and knew that a warrant had been issued for Fields just the day
before.
On the basis of the warrant, Officer Weir arrested Fields and placed him in his
squad car. He then retrieved Rex and walked him counterclockwise from the front
bumper of the vehicle. Rex alerted at the driver’s door.
Officer Weir asked Richard to step out of the vehicle and then called Officer
Bridget Hite to the scene so that she could search Richard. In conducting the search,
Officer Hite noticed that Richard appeared to favor one side, so she asked her to raise her
arm on that side. When Richard did so, a small tin fell out of her shirt onto the ground.
The tin held two small plastic baggies containing a white powdery substance later
determined to be meth.
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The State charged Richard with class D felony possession of methamphetamine. 1
Richard moved to suppress the evidence obtained from the search on both federal and
state constitutional grounds. The trial court denied the motion.
In her subsequent bench trial, Richard objected to the meth evidence on the same
grounds as in her motion to suppress. The court overruled her objections and found her
guilty. She was later sentenced to the advisory term of one and a half years.
ISSUES
Richard contends the methamphetamine evidence was inadmissible because the
search of her person based on the police dog’s positive alert violated both the Fourth
Amendment to the United States Constitution and Article 1, Section 11 of the Indiana
Constitution.
DISCUSSION AND DECISION
I. FOURTH AMENDMENT
The Fourth Amendment protects people from unreasonable searches and seizures.
Warrantless searches are per se unreasonable under the Fourth Amendment, subject to a
few well-delineated exceptions. Kelly v. State, 997 N.E.2d 1045, 1050-51 (Ind. 2013).
One such exception is for searches incident to a lawful arrest. Ward v. State, 903 N.E.2d
946, 957 (Ind. 2009), adhered to on reh’g, 908 N.E.2d 595 (2009).
The facts here show that Richard was searched incident to a lawful arrest.
Specifically, Rex’s positive alert at the driver’s door provided probable cause to believe
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The State also charged her with possession of paraphernalia as a class A infraction, but that charge was
dismissed at trial on the State’s motion.
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the vehicle contained illegal drugs. See State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind.
2010) (“The subsequent dog sniff provided probable cause that the vehicle contained
illicit drugs.”). And because there was probable cause to believe the vehicle contained
drugs, there was probable cause to believe any of its passengers had at least constructive
possession of the drugs.
Richard nonetheless argues that her mere presence as a passenger in the suspected
vehicle was not enough to establish probable cause as to her. The U.S. Supreme Court
has indicated otherwise. In Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L.
Ed. 2d 769 (2003), a car occupied by Pringle and two other men was stopped for
speeding. In the course of the stop, the officers received consent to search the car and
found a large sum of money in the glove compartment and cocaine behind the backseat
armrest. When questioned, the men offered no information about who owned the drugs
or money. They were arrested.
The sole question addressed by the Supreme Court was whether there was
probable cause to believe that Pringle had committed a crime. The unanimous Court
concluded: “We think it an entirely reasonable inference from these facts that any or all
three of the occupants had knowledge of, and exercised dominion and control over, the
cocaine. Thus, a reasonable officer could conclude that there was probable cause to
believe Pringle committed the crime of possession of cocaine, either solely or jointly.”
Id. at 372.
In reaching this conclusion, the Court distinguished Pringle’s case with a case in
which a person was singled out as the guilty party. See United States v. Di Re, 332 U.S.
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581, 68 S. Ct. 222, 92 L. Ed. 210 (1948). In Di Re, an informant told an investigator that
he was to buy counterfeit gasoline ration coupons from Buttitta at a particular place. The
investigator went to the place and saw the informant, holding gasoline ration coupons, in
a car with Buttitta and Di Re. Upon questioning, the informant said Buttitta had given
him the counterfeit coupons. All three men were arrested. The Supreme Court
concluded that there was no probable cause to believe Di Re was involved in the crime:
“Any inference that everyone on the scene of a crime is a party to it must disappear if the
Government informer singles out the guilty person.” Id. at 594. Pringle distinguished Di
Re on this basis, saying: “No such singling out occurred in this case; none of the three
men provided information with respect to the ownership of the cocaine or money.”
Pringle, 540 U.S. at 374.
Here, Rex’s positive alert provided probable cause to believe there were drugs in
the vehicle. And there was no indication that Fields, and only Fields, was involved in
narcotics activity. It was thus an entirely reasonable inference that any of the vehicle’s
occupants had at least constructive possession of drugs. Richard’s arrest and the
subsequent search did not violate the Fourth Amendment.
II. ARTICLE 1, SECTION 11
Although the language of Article 1, Section 11 of the Indiana Constitution tracks
the Fourth Amendment almost verbatim, the state constitutional analysis is different.
Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). Under the Indiana Constitution, the
legality of a governmental search turns on an evaluation of the reasonableness of the
police conduct under the totality of the circumstances. Id. Although there may be other
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relevant considerations, the reasonableness of a search or seizure under the Indiana
Constitution generally turns on a balance of: (1) the degree of concern, suspicion, or
knowledge that a violation has occurred, (2) the degree of intrusion that the method of the
search or seizure imposes on the citizen’s ordinary activities, and (3) the extent of law
enforcement needs. Id. at 361.
Rex gave a positive alert on the vehicle in which Richard was riding. There was
thus a high degree of suspicion that Richard actually or constructively possessed illegal
drugs. And although any search of a person necessarily intrudes on that person’s
ordinary activities, there is no evidence or claim that the one here was in any way
extensive. When Officer Hite noticed Richard did not want to raise one arm, she ordered
her to raise it. When Richard did so, the methamphetamine tin fell out of her shirt onto
the ground. Given the minimal nature of the search, the degree of intrusion was slight.
Finally, the extent of law enforcement needs was significant. Rex’s positive alert for
narcotics turned the traffic stop into a narcotics investigation and gave rise to a
reasonable belief that Richard had illegal drugs on her person. Based on the totality of
the circumstances, the search of Richard was reasonable under the Indiana Constitution.
Because the search did not violate the Fourth Amendment or Article 1, Section 11,
there was no error in the admission of the meth evidence at Richard’s trial.
CONCLUSION
We therefore affirm her conviction.
NAJAM, J., and RILEY, J., concur.
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