Marcus K. Baxter v. State of Indiana ( 2018 )

FILED
Jun 26 2018, 6:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen Gerald Gray Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marcus K. Baxter, June 26, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1707-CR-1608
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jose D. Salinas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G14-1607-F6-27648
Brown, Judge.
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[1] In this interlocutory appeal, Marcus K. Baxter appeals the trial court’s order
denying his motion to suppress evidence. Baxter raises two issues which we
consolidate as whether the court erred in denying his motion to suppress. We
affirm.1
Facts and Procedural History
[2] On July 17, 2016, the car wash owner or manager of Mike’s Carwash on East
Washington Street called 911 and stated that two suspicious males 2 were on the
property, they were not using the business’s services, they looked to be evading
the security cameras to the business, and that he wanted the police to “check
them out.” Transcript Volume 2 at 36. At about 12:54 p.m., Sergeant Frank
Wooten of the Indianapolis Metropolitan Police Department (“IMPD”)
responded to the dispatch and arrived on the scene, followed next by two State
troopers. When he arrived, Sergeant Wooten encountered two Hispanic males
that had been on his right and one black male that walked from his left to his
1
We heard oral argument at Jasper High School on May 16, 2018. We thank the school’s administration,
faculty, and students, and the Dubois County Bar Association, for their gracious hospitality. We also thank
counsel for their informative and engaging oral advocacy and subsequent discussion with the students.
2
When asked to describe how the incident began, IMPD Sergeant Frank Wooten testified that the “dispatch
put out a run for suspicious persons.” Transcript Volume 2 at 9. During cross-examination, Sergeant
Wooten indicated that the caller told the dispatch that “two Hispanic males” and “a black male” were behind
the property and it “looked like they had been avoiding the cameras.” Id. at 16. IMPD Officer Thomas
Figura testified that the “dispatch radio run was the manager of the business had called 911 and stated that
there were two suspicious black males on the property.” Id. at 36. During cross-examination, Officer Figura
testified that he recalled indicating in his probable cause affidavit that there were “two suspicious black
males” and there was nothing “from the dispatcher about Hispanic males,” and stated “[t]hat would be
inaccurate” when asked if he “heard Sergeant Wooten’s testimony and he indicated he thought the dispatch
had something in it about Hispanic males as well, but that’s not true, is it?” Id. at 45.
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right. Sergeant Wooten obtained information from each of the three
individuals and ran the information for warrants.
[3] When IMPD Officer Thomas Figura arrived on the scene, Sergeant Wooten
and the two State troopers were speaking with the three individuals. When
Sergeant Wooten released the three individuals because the warrant checks had
come back negative, the two Hispanic males entered an “SUV that had been
parked on the east end of the parking lot and they left” and “the black male had
walked away.” Id. at 11. Sergeant Wooten advised Officer Figura that the
black male had come from the vicinity of a black Chevrolet with heavy tinting
which had its engine on and was parked in the last spot in the northwest corner
of the business. Officer Figura approached the parked Chevrolet from the rear
and then from the driver’s side, where he could see the side window was open
to an extent. Before looking inside, Officer Figura could smell the odor of burnt
marijuana coming from the inside of the car. When he ordered Baxter, the
occupant he saw in the driver’s seat, to exit the car, he received no response.
Officer Figura commanded Baxter to open the door. When the door was
opened, Officer Figura could see what appeared to be marijuana in plastic
baggies and what appeared to be a number of white pills in the location where
one would “stick [their] hand in to push the door open on the interior of the
vehicle.” Id. at 40.
[4] On July 19, 2016, the State charged Baxter with possession of a narcotic drug as
a level 6 felony and possession of marijuana as a class A misdemeanor. On
January 25, 2017, Baxter filed a motion to suppress evidence which argued that
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“the stop and or detention of the vehicle in which [he] was a passenger occurred
without probable cause or reasonable suspicion” and violated the Fourth
Amendment of the United States Constitution and the Indiana Constitution.
Appellant’s Appendix Volume 2 at 17.
[5] At the suppression hearing, Sergeant Wooten testified the dispatch “put out a
run for suspicious persons,” he saw three individuals on the car wash’s “west
end on the north side of the exit” when he arrived, and he pulled into the “west
end of the car wash” on the exit side “just past the exit.” Transcript Volume 2
at 9-10, 17. He indicated that his vehicle did not block the exit of the car wash,
would have been parallel to the vending machines on the building wall shown
in a photographic exhibit, and would be “up in front of the exit right there
angled in from right to left.” Id. at 27. He stated, “[w]hen I first started talking
to the Hispanic males, the black male started walking towards us” from the
direction of Baxter’s car and “I didn’t have to call him to me.” Id. at 24. He
testified he obtained the information of the three individuals, the warrant
checks “came back negative,” and he “then . . . released them at the scene.” Id.
at 11. When asked what he did after releasing the three individuals, he stated:
I advised Officer Figura where the black male had walked from,
the vehicle that was backed in. Officer Figura walked over to
that vehicle. And I walked over to the front of that vehicle,
probably within three to four feet of the front of that vehicle, and
could immediately smell what I believe through my training and
experience to be the odor of marijuana coming from that vicinity.
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Id. at 11-12. He stated that the vehicle was “backed into the last spot next to the
fence” and he could not see inside the vehicle but was able to detect the odor of
marijuana because the “window was down a little bit,” or approximately “six
inches,” and “[t]here was a crack.” Id. at 12. He testified that the vehicle was
“so dark and so tinted” and “we couldn’t tell how many were actually in the
vehicle at the time.” Id. at 13.
[6] During cross-examination, Sergeant Wooten testified that, when he arrived, he
was “looking for suspicious people behind the building not knowing how many
were there,” that the three individuals were not interacting or taking part in
illegal activity that he could observe, and that he saw them “on the west end of
the north side of the exit” of the car wash. Id. at 17. When Sergeant Wooten
was shown a number of photographic exhibits depicting the scene at the car
wash, he indicated the “Hispanic males were behind the building” and the
“black male was coming from the left side . . . which is where the black vehicle
was parked backed in” and marked the locations where he “encountered the
two Hispanics” and where he “encountered the one black male,” the location of
Baxter’s car, and the location of his vehicle. Id. at 18, 21.
[7] Officer Figura testified that, from the time of his arrival, the encounter with the
first three individuals lasted five minutes and answered, “[t]hat is correct,”
when asked “[y]ou didn’t know [Baxter] was even on the scene when you
pulled your car up.” Id. at 52. When asked “[a]fter releasing [the three
individuals], what did you do next,” he answered that Sergeant Wooten had
indicated one of the individuals who was released “had come from” a “vehicle
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which was parked in the last spot in the northwest corner” and that he could
“hear that the vehicle was running,” the “engine was running,” and it “was in
operation.” Id. at 37. He indicated that he approached Baxter’s car from the
rear, that he could not see if there was anybody in the vehicle at that time
because the vehicle window tinting was heavy, and that he did not see anything
in the vehicle. He testified he could see that the driver’s side window was
slightly cracked open when he approached, he could “smell the odor of
marijuana coming from inside of the vehicle outside towards me” before he
looked inside, and his face was “pretty much pressed up against the window”
when he smelled the marijuana. Id. at 37, 40. He also indicated that, when he
received no response from the occupant that he saw in the driver’s seat, he
forcibly commanded the individual to exit the vehicle, was “concerned for
officer safety,” and his gun was taken out of its holster and placed at the side of
his right leg. Id. at 39. He stated that, as the door came open and Baxter began
to exit the vehicle, he could see in “plain view . . . what appeared to be
marijuana in plastic baggies and what appeared to be a number of white pills.”
Id. at 40. After being asked about how close approximately he was to the door
handle, Officer Figura stated, “[w]ell, I gave some distance because I didn’t
know what [Baxter’s] intentions were when he exited the vehicle for safety
reasons. But I would say between seven to eight feet from that door.” Id.
[8] Officer Figura identified State’s Exhibits 1, 2, and 3 as photographs taken the
day of the incident depicting Baxter’s parked car and the driver’s interior door
handle. During cross-examination, he answered affirmatively when asked if he
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remembered indicating in his probable cause affidavit that the 911 dispatcher
had specified that there “were two suspicious black males . . . walking on the
property and talking on their cell phones.” Id. at 45. He stated that he could
not testify as to how many police cars were there and was only certain that his
and Sergeant Wooten’s patrol cars were present. He testified that, prior to
walking over to the car, he “didn’t know [Baxter] was there,” and that the
distance between the front of his vehicle and the rear of Baxter’s car was
approximately ten feet and agreed that, when he said approximate, “it’s plus or
minus.” Id. at 49, 51. He answered affirmatively when asked about whether he
testified previously in his deposition that he parked his car “somewhat behind”
Baxter’s car, whether he said that he “pulled up behind” Baxter’s car, and
whether he recalled his testimony that he believed he was “about ten feet from”
Baxter’s car. Id. at 47-48. Officer Figura was shown Defendant’s Exhibit D, a
photographic depiction of the car wash and the spot where Baxter’s car had
been parked, and drew an oval to indicate the location of his police vehicle.
[9] Baxter testified that he was familiar with Defendant’s Exhibit D, answered
affirmatively when asked if he saw where Officer Figura depicted the general
location of where he was parked next to the red fence, and stated “I’d say that I
can’t really recall. I just know that he [sic] was shorter than the car length.
Like if – I couldn’t back up if I wanted to.” Id. at 55. After being asked if he
would have been able to “cut [his] wheel” and have the “truck [sic] of [the] car
moved to the left” or would have had to “come straight back before [he] could
move,” he testified that he would have had to “come straight back” to “get out
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of this position.” Id. at 56. He testified that he would not have been able to
come straight back when asked about his “ability to do that based on where
Officer Figura had parked his car.” Id. Baxter also testified Sergeant Wooten’s
vehicle protruded beyond the north edge of the building, that he believed that
the “protrusion of his building (verbatim) was obstructing anybody who wanted
to drive back behind the car wash at the time,” and that state trooper vehicles
were “on the other side,” or north side, of the building and would have blocked
anybody that wanted to exit that direction. Id. at 57-58. He testified he had a
driver’s license since he was eighteen, was familiar with parallel parking, was
aware of how to “cut [his] wheel to get out from a parallel parking situation,”
and stated “[y]es, I could,” when asked if “there’s approximately ten feet
between you and another car, you could maneuver in a parallel parking
situation.” Id. at 61. The following exchange occurred between the prosecutor
and Baxter:
[Baxter:] But I couldn’t – he was right up on me. I couldn’t –
[Prosecutor:] I understand that.
[Baxter’s Counsel:] Wait. Let him answer the question. I didn’t
hear the answer. Answer the question, please.
[Baxter:] He said – he asked me was there somebody behind me,
was I – basically, he’s asking me could I just have backed out and
exited. I said, No, because there was an officer right here behind
me. I couldn’t back out.
[Prosecutor:] I understand that there was an officer’s vehicle
here behind you.
[Baxter:] Uh–huh.
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[Prosecutor:] But in this open area, there’s an entrance or an exit
and there were no law enforcement officers [sic] vehicle blocking
that entrance or exit?
[Baxter:] No, not that entrance.
Id. at 61-62. At the end of the hearing, the court asked the prosecutor to
characterize the police “tools,” or “[i]n other words, their cars,” and the
prosecutor answered:
Well, the vehicles are – there’s three vehicles on the north corner
of the lot that have little to do with [Baxter’s] car. There is . . .
Officer Figura’s car which is ten feet back behind [Baxter’s] car
but at the time that he parks the car and for the next few minutes,
he has no idea that that car is an issue or that there’s anyone
inside or that [Baxter] has any reason to be a person of suspicion.
So you can’t accidentally detain someone that you’re not aware
of.
So the vehicle’s placement, certainly Officer Figura’s car, does
not raise to the level of detention of Mr. Baxter at that time.
Id. at 67. Later, the court and Baxter’s counsel also discussed the placement of
the police vehicles, and the following exchange occurred:
[The Court:] . . . we’re not talking about a Walmart parking lot
here. Okay. We’re talking about a parking lot that is equipped
to handle as many vehicles as they have business to do at any
given time. All right.
And I don’t want to interject information that isn’t into evidence,
but I’ve been to a Crew – a Mike’s Carwash. I know how big
they are. Okay. They’re not big in nature. They have enough
parking spaces for only – you know, whatever vehicles that are
being serviced at that time.
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So if you think the police did the wrong – approached it the
wrong way, approached that scene the way wrong, where should
they have parked their vehicles when in responding to the
dispatch?
[Baxter’s Counsel:] I don’t have a problem with where the state
troopers [sic] cars were parked or where Sergeant Wooten parked
his car.
*****
[The Court:] If the police didn’t park the right way, then what
should they have done with their vehicles?
[Baxter’s Counsel:] Well, I do not believe that Officer Figura
should have pulled up as close as he did to Mr. Baxter’s car –
[The Court:] That’s the objection?
[Baxter’s Counsel:] – because there’s plenty of space there that he
could have parked way back.
[The Court:] So that’s the objection?
[Baxter’s Counsel:] That’s the objection.
Id. at 73-74. In its order of final judgment on motion to suppress and
certification for interlocutory appeal, the court denied Baxter’s motion, finding
that “whether the police ‘seized’ [Baxter] within the meaning of the 4th
Amendment and whether there was a reasonable suspicion of criminal activity
are appropriate issues to be raised on appeal.” Appellant’s Appendix Volume 2
at 10.
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Discussion
[10] The issue is whether the trial court erred in denying Baxter’s motion to
suppress. The admission of evidence is entrusted to the trial court’s sound
discretion. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). ‘‘We review a trial
court’s denial of a defendant’s motion to suppress deferentially, construing
conflicting evidence in the light most favorable to the ruling, but we will also
consider any substantial and uncontested evidence favorable to the defendant.”
Id. “We defer to the trial court’s findings of fact unless they are clearly
erroneous, and we will not reweigh the evidence.” Id. “When the trial court’s
denial of a defendant’s motion to suppress concerns the constitutionality of a
search or seizure, however, it presents a question of law, and we address that
question de novo.” Id.
[11] Baxter argues that a reasonable person in his position, with his vehicle blocked
in and his passenger3 detained for warrant checks, would not feel free to leave
and that the police detained him and his passenger in violation of his rights
under the Fourth Amendment of the United States Constitution and Article 1,
Section 11 of the Indiana Constitution.
A. Fourth Amendment
[12] The Fourth Amendment provides:
3
Baxter does not point to the record and the record does not support that he had a passenger. The record
reflects that the black male, who had walked from the “vicinity of [Baxter’s car]”, “had walked away” when
the warrant checks “came back negative.” Transcript Volume 2 at 11, 32.
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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.
[13] There are three levels of police investigation, two of which implicate the Fourth
Amendment and one of which does not. Powell v. State, 912 N.E.2d 853, 859
(Ind. Ct. App. 2009) (citing State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App.
2008) (citing Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), reh’g
denied, trans. denied)). First, the Fourth Amendment requires that an arrest or
detention that lasts for more than a short period of time must be justified by
probable cause. Id. Second, pursuant to Fourth Amendment jurisprudence, the
police may, without a warrant or probable cause, briefly detain an individual
for investigatory purposes if, based upon specific and articulable facts, the
officer has a reasonable suspicion that criminal activity has or is about to occur.
Id. The third level of investigation occurs when a police officer makes a casual
and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id.
This is a consensual encounter in which the Fourth Amendment is not
implicated. Id. “The Fourth Amendment is not triggered unless an encounter
between a law enforcement officer and a citizen ‘loses its consensual nature.’”
Clarke v. State, 868 N.E.2d 1114, 1118 (Ind. 2007) (quoting Florida v. Bostick, 501
U.S. 429, 434, 111 S. Ct. 2382 (1991)).
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[14] In other words, ‘‘[n]ot every encounter between a police officer and a citizen
amounts to a seizure requiring objective justification.’’ Powell, 912 N.E.2d at
859 (citing Overstreet, 724 N.E.2d at 663). A person is ‘‘seized’’ only when, by
means of physical force or a show of authority, his or her freedom of movement
is restrained. Id. (citing State v. Lefevers, 844 N.E.2d 508, 513 (Ind. Ct. App.
2006) (citing United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870,
1877 (1980), reh’g denied), trans. denied). The test for whether there has been a
seizure is two prong: (1) there must be a show of authority, and (2) a
submission to that authority or a touching by the seizing officer or a submission
by the individual the officer intends to seize. California v. Hodari D., 499 U.S.
621, 628-629 (1991). “[T]he test for existence of a ‘show of authority’ is an
objective one: not whether the citizen perceived that he was being ordered to
restrict his movement, but whether the officer’s words and actions would have
conveyed that to a reasonable person.” Id. at 628. Factors that might lead a
reasonable person to conclude that he or she was not free to leave include: (1)
the threatening presence of several officers; (2) the display of a weapon by an
officer; (3) some physical touching of the person of the citizen; (4) the use of
language or tone of voice that implies compulsion; and (5) accusation of
criminal activity. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013) (quoting
Overstreet, 724 N.E.2d at 664 (citing Mendenhall, 446 U.S. at 554)). What
constitutes a restraint on liberty prompting a person to conclude that he is not
free to ‘‘leave’’ will vary depending upon the particular police conduct at issue
and the setting in which the conduct occurs. Powell v. State, 912 N.E.2d at 860
(citing Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 1979 (1988)).
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In the absence of some such evidence, otherwise inoffensive contact between a
member of the public and the police cannot, as a matter of law, amount to a
seizure of that person. Id. (citing Mendenhall, 466 U.S. at 555, 100 S. Ct. at
1877). It is not the purpose of the Fourth Amendment to eliminate all contact
between police and the citizenry. Mendenhall, 446 U.S. at 553, 100 S. Ct. at
1877.
[15] Baxter argues that he was detained in the absence of any criminal activity afoot.
He likens his case to State v. Stickle, 792 N.E.2d 51 (Ind. Ct. App. 2003), trans.
denied, and contends that a reasonable suspicion of criminal activity was
“completely absent” and the “only thing observed was one black male walking
and two Hispanic males off by themselves.” Appellant’s Brief at 12. He asserts
that his unequivocal testimony that he could not back his vehicle out from the
parking space was unrebutted by the police officers. He contends that the
“totality of the circumstances” consists of “much more than Baxter’s vehicle
blocked from leaving by Figura’s police vehicle,” including the “presence of 4
police officers, the fact that the two State Trooper vehicles blocked any egress
by way of the driveway behind the car wash,” and, finally, the illegal detention
of three individuals while warrant checks were performed. Id. at 10-11.
[16] The State responds by arguing that the officers did not stop, detain, or seize
Baxter until after specific and articulable facts led them to reach the reasonable
suspicion that a crime was occurring, contending that “he was not detained
when he claims to have been detained” and that reasonable suspicion existed
when “[n]ot one but two different police officers, within a few feet of a running
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car with a window cracked open, could smell what each perceived as the smell
of burnt marijuana.” Appellee’s Brief at 13, 17. The State contends that the
action of approaching a running car with tinted windows and a window
cracked open that was parked along a fence-line by Officer Figura and Sergeant
Wooten was not a stop until Sergeant Wooten was within three or four feet of
the Chevrolet and he could smell what he believed was the overpowering odor
of marijuana. The State also asserts that, at that time, the officers had no idea if
anyone was even in the vehicle and had only the belief that it had been
abandoned by one of the three individuals that had been reported, and that they
encountered, at the business.
[17] The record reveals that law enforcement officers responded to a suspicious
persons dispatch and, when he arrived at the scene, Sergeant Wooten first
started talking to two Hispanic males and a third black male walked toward
him from the direction of Baxter’s parked and running car. When Sergeant
Wooten obtained information from and ran warrant checks on the three
individuals, none of the law enforcement officers present had encountered
Baxter. After the checks came back negative, the two Hispanic males entered
an “SUV that had been parked on the east end of the parking lot and left” and
“[t]he black male had walked away.” Transcript Volume 2 at 11. Because
Sergeant Wooten had advised him that the black male had originally walked
from the vicinity of the parked car, Officer Figura approached the parked car.
[18] At the moment when he could smell burnt marijuana, Officer Figura had a
particularized and objective basis for suspecting legal wrongdoing. See Clark,
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994 N.E.2d at 260. To the extent that Baxter argues that he was not free to
leave before that point, we conclude that the action of Officer Figura’s
“pull[ing] up behind” behind Baxter to assist Sergeant Wooten in the dispatch
call did not constitute a seizure under the Fourth Amendment in this instance.
Transcript Volume 2 at 47. See Powell 912 N.E.2d at 859 (“Not every encounter
between a police officer and a citizen amounts to a seizure requiring objective
justification.’’) (citing Overstreet, 724 N.E.2d at 663). Even had Baxter been
unable to initially maneuver around Officer Figura’s vehicle, based on the
record and under these circumstances, we cannot say that he was the subject of
an investigatory detention until after officers had a particularized and objective
basis for suspecting legal wrongdoing.4 The encounter with the three
individuals lasted five minutes and occurred on the north side of the building
just to the east of the exit, several parking spots east from where Baxter was
parked. During this encounter, there was no display of a weapon, physical
touching, the use of language or tone of voice that implied compulsion, or an
accusation of criminal activity toward Baxter, and the attention of the officers
was focused on the three individuals, and not on Baxter. We conclude a
reasonable person in Baxter’s position would have felt free to leave the scene.
A reasonable person would have felt he could have approached Officer Figura
4
To the extent Baxter cites State v. Stickle, we note that Stickle is distinguishable from this case because, in
Stickle, a state trooper approached and addressed the defendant and his passenger, stating, “Ma’am, sir, we
need you to come with us,” the defendant complied and walked outside with two state troopers, and the
defendant observed that his vehicle was “‘completely blocked in’ by two police cars such that it would not
have been possible for [the defendant and his companion] to leave in the vehicle.” 792 N.E.2d at 54 (internal
citations omitted).
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and asked him to move his vehicle if he believed he could not back out of the
space.
B. Article 1, Section 11
[19] Article 1, Section 11 of the Indiana Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
[20] Although its text mirrors the federal Fourth Amendment, we interpret Article 1,
Section 11 of our Indiana Constitution separately and independently. Robinson,
5 N.E.3d at 368. “When a defendant raises a Section 11 claim, the State must
show the police conduct ‘was reasonable under the totality of the
circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d 1200, 1205-1206
(Ind. 2008), reh’g denied). “The focus of the exclusionary rule under the Indiana
Constitution is the reasonableness of police conduct.” Hardister v. State, 849
N.E.2d 563, 573 (Ind. 2006). “We consider three factors when evaluating
reasonableness: ‘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.’” Robinson, 5 N.E.3d at 368 (quoting Litchfield v. State, 824
N.E.2d 356, 361 (Ind. 2005)).
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[21] Baxter contends that the degree of concern was almost non-existent given that
the original 911 caller did not describe criminal activity and the police did not
observe any and that the extent of law enforcement needs was minimal in light
of the alleged suspicious activity. Baxter also contends that the degree of
intrusion was significant because he was blocked in while police conducted the
illegal detention to check for warrants, and asserts, again without citation to the
record, that one of the three detained individuals was a passenger from his car.
[22] The record reveals that the car wash owner or manager of Mike’s Carwash
called 911 and stated that suspicious males were on the property, that they were
not using the business’s services, and that they looked to be evading the security
cameras to the business. When Officer Figura parked behind Baxter’s car,
Sergeant Wooten had already arrived at the scene, encountered three males on
the “west end on the north side of the exit” of the car wash building, and the
black male had walked over toward the officers from the vicinity of a running,
parked car with heavily tinted windows. Transcript Volume 2 at 17. When the
warrant checks of the three individuals came back negative, the two Hispanic
males entered a SUV and left and the black male walked away. Officer Figura
approached Baxter’s car from the rear and, before looking inside, he could smell
the odor of burnt marijuana coming from the inside of the car. He received no
response when he ordered Baxter, the occupant he saw in the driver’s seat, to
exit the car. We conclude that the record indicates a degree of concern,
suspicion, or knowledge that a violation had occurred.
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[23] The record also reveals that the degree of intrusion was minor and the extent of
law enforcement needs for their own protection was strong. As Officer Figura
approached Baxter’s running and parked car from the rear, he could not discern
how many other occupants were inside because of the heavily tinted windows.
Reaching the driver’s window which was open to a degree, he forcibly
commanded Baxter to exit after he had already smelled burnt marijuana,
received no response, and became concerned for his safety. Under these
circumstances, we conclude that Baxter’s rights against unreasonable search
and seizure under Article 1, Section 11 of the Indiana Constitution were not
violated and the trial court did not err in denying Baxter’s motion to suppress.
Conclusion
[24] For the foregoing reasons, we affirm the denial of Baxter’s motion to suppress.
[25] Affirmed.
Najam, J., and May, J., concur.
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