D.H. v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 17 2020, 10:15 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ash O. Kulak Curtis T. Hill, Jr.
Lawrence County Attorney General of Indiana
Public Defender Agency
Sierra A. Murray
Bedford, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.H., July 17, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-JV-2403
v. Appeal from the Lawrence Circuit
Court
State of Indiana, The Honorable Nathan G. Nikirk,
Appellee-Plaintiff, Judge
Trial Court Cause No.
47C01-1811-JD-377
Robb, Judge.
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Case Summary and Issues
[1] D.H. appeals his adjudication as a delinquent child for what would be
possession of marijuana, a Class B misdemeanor if committed by an adult.
D.H. raises multiple issues for our review, which we consolidate and restate as
whether the juvenile court abused its discretion by admitting evidence obtained
in violation of D.H.’s rights under the Fourth Amendment to the United States
Constitution and Article 1, section 11 of the Indiana Constitution. Concluding
D.H.’s rights were not violated under either constitutional provision and the
juvenile court did not abuse its discretion, we affirm D.H.’s adjudication.
Facts and Procedural History 1
[2] On October 2, 2018, seventeen-year-old D.H. left a friend’s house and was
headed to his grandmother’s house located in a trailer park when he met two
other friends and the three began walking down the street. At the same time,
Captain Morgan Lee of the Bedford Police Department (“BPD”) was patrolling
the area in full uniform and in a marked police vehicle. Captain Lee saw D.H.
and his friends walking east and as he passed them going west, “they all kind of
stopped and looked at [him] and gave [him]. . . a funny look.” Transcript of
Evidence, Volume 2 at 7. Captain Lee watched the boys in his rearview mirror
1
The facts in this case are comprised of testimony from the factfinding hearing held on July 23, 2019, as well
as evidence from the suppression hearing held on July 2 that is not in direct conflict with evidence introduced
at the factfinding hearing. See Kelley v. State, 825 N.E.2d 420, 426 (Ind. Ct. App. 2005).
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and noticed that they “seemed to start walking off real fast” as if “they were
trying to avoid [him].” Id. at 7, 42.
[3] Captain Lee hit his brakes, turned around, and noticed that D.H. and his
friends “hurried off” into the trailer park. Id. at 42. Captain Lee drove into the
trailer park to locate them. Captain Lee did not activate any lights or sirens on
his police vehicle. When Captain Lee located D.H. and his friends, he “stopped
right there with all three of them.” Id. at 44. Captain Lee asked why they were
“acting so suspiciously[,]” requested their identification, and called dispatch to
have their information run through the police system. Id. at 42. By this time,
BPD Major Jeremy Bridges had arrived on the scene in full uniform after
receiving a call from Captain Lee for backup.
[4] While Captain Lee was waiting on dispatch to return information concerning
the juveniles,2 Major Bridges was standing next to the juveniles and identified
an odor of raw marijuana. Major Bridges was closest to D.H. and believed the
odor came from his direction. Major Bridges then conducted a patdown of
D.H.’s outer garments and felt “a baggie with what [he] believe[d] to be a plant-
like material.” Id. at 20. From his training and experience, Major Bridges
believed it to be marijuana. When Major Bridges asked what it was, D.H.
responded, “I don’t know. Probably a little bag of weed or something.” Id. at
57. Major Bridges reached inside D.H.’s left pants pocket and found a baggy
2
No reports were returned about D.H., but dispatch reported that one of the other juveniles was a runaway.
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containing a plant-like material, which later field-tested positive for marijuana.
The officers arrested D.H. and transported him to BPD.
[5] On November 9, 2018, the State filed a delinquency petition, alleging D.H.
committed possession of marijuana, a Class B misdemeanor if committed by an
adult. D.H. filed a motion to suppress alleging that the marijuana was obtained
from an unlawful investigatory stop, search, and seizure. A hearing was held on
that motion on July 2, 2019, and the juvenile court denied D.H.’s motion to
suppress from the bench. Specifically, the juvenile court concluded,
The individuals were in a group. The officer turned around. I
don’t know why he went back, but he did and he went and talked
with them. The individuals at that time were free to leave. They
were not in custody at that point. And I heard no testimony
today . . . that the officers told the boys during the initial contact
that they were compelled to stay there, that they had to stay. The
testimony is pretty clear that . . . during the conversation between
the officer and the boys, the officer smelled marijuana, that
creates the reasonable suspicion at that point. It sounds like a pat-
down was then conducted. Marijuana was found. There’s
probable cause for the arrest.
Id. at 34-35.
[6] At the factfinding hearing, the juvenile court admitted into evidence pictures of
the marijuana over D.H.’s objection. D.H. was adjudicated a delinquent child
and on September 10, 2019, the juvenile court entered its dispositional order,
ordering D.H. to pay court costs and fees. D.H. now appeals his adjudication.
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Discussion and Decision
[7] D.H. argues that evidence concerning his possession of marijuana should have
been excluded from his factfinding hearing because it was obtained in violation
of his rights under the Fourth Amendment to the United States Constitution
and Article 1, section 11 of the Indiana Constitution. Two warrantless
encounters merit discussion in this case: (1) the initial encounter between D.H.
and Captain Lee and (2) the patdown of D.H. by Major Bridges.
I. Standard of Review
[8] D.H. brings this appeal following his factfinding hearing, rather than as an
interlocutory appeal of the denial of his motion to suppress and therefore, we
review this appeal as a challenge to the juvenile court’s admission of evidence at
the factfinding hearing. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). A
juvenile court’s decision to admit or exclude evidence is reviewed for an abuse
of discretion. Young v. State, 980 N.E.2d 412, 417 (Ind. Ct. App. 2012). A
juvenile court abuses its discretion when its decision is clearly against the logic
and effect of the facts and circumstances or when the court has misinterpreted
the law. Id. We do not reweigh the evidence, and we consider conflicting
evidence most favorable to the trial court’s ruling. Patterson v. State, 958 N.E.2d
478, 482 (Ind. Ct. App. 2011). We also consider uncontested evidence favorable
to the defendant. Id. The constitutionality of a search is a question of law,
which we review de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).
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Similarly, determinations of reasonable suspicion and probable cause are
reviewed de novo. Myers v. State, 839 N.E.2d 1146, 1150 (Ind. 2005).
II. The Fourth Amendment
[9] The Fourth Amendment to the United States Constitution guarantees:
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.
This protection has been extended to the States through the Fourteenth
Amendment. Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013). To deter state
actors from violating the prohibition against unreasonable searches and
seizures, evidence obtained in violation of the Fourth Amendment is generally
not admissible in a prosecution of the person whose rights were violated. Clark,
994 N.E.2d at 260; see also Segura v. United States, 468 U.S. 796, 804 (1984)
(noting the exclusionary rule encompasses both “primary evidence obtained as
a direct result of an illegal search or seizure” and any “evidence later discovered
and found to be derivative of an illegality”); Hill v. State, 956 N.E.2d 174, 177
(Ind. Ct. App. 2011) (holding that evidence obtained from an illegal search was
“fruit of the poisonous tree” and therefore inadmissible), trans. denied. Under
the Fourth Amendment, warrantless searches and seizures are per se
unreasonable, subject to a “few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). When a defendant
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challenges a warrantless search, it is the State’s obligation to prove the search
fell within an exception to the warrant requirement. Clark, 994 N.E.2d at 260.
[10] It is not the purpose of the Fourth Amendment to eliminate all contact between
police and citizenry, however. United States. v. Mendenhall, 446 U.S. 544, 553
(1980). We have recognized three levels of police investigation, two of which
implicate Fourth Amendment protections and one of which does not:
First, the Fourth Amendment requires that an arrest or detention
for more than a short period be justified by probable cause.
Probable cause to arrest exists where the facts and circumstances
within the knowledge of the officers are sufficient to warrant a
belief by a person of reasonable caution that an offense has been
committed and that the person to be arrested has committed it.
Second, it is well-settled Fourth Amendment jurisprudence that
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 “may be afoot.” Accordingly, limited
investigatory stops and seizures on the street involving a brief
question or two and a possible frisk for weapons can be justified
by mere reasonable suspicion. Finally, the third level of
investigation occurs when a law enforcement officer makes a
casual and brief inquiry of a citizen which involves neither an
arrest nor a stop. In this type of “consensual encounter” no
Fourth Amendment interest is implicated.
Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000) (citations omitted),
trans. denied.
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A. Encounter with Captain Lee
[11] D.H. first argues that his encounter with Captain Lee was in violation of his
rights under the Fourth Amendment because Captain Lee stopped him on a
hunch rather than reasonable articulable suspicion of criminal activity and D.H.
did not feel free to leave. The State maintains there was no violation of the
Fourth Amendment because the initial encounter between Captain Lee and
D.H. was “consensual.” Brief of Appellee at 10. We agree with the State.
[12] When determining whether an interaction was a consensual encounter, our
evaluation turns on “whether a reasonable person would feel free to disregard
the police and go about his or her business.” Clark, 994 N.E.2d at 261
(quotation omitted). The test is objective; therefore, we consider not whether
the particular citizen actually felt free to leave, but whether the officer’s words
and actions would have conveyed to a reasonable person that he was not free to
leave. Id.3 Examples of facts and circumstances that might lead a reasonable
person to believe he was no longer free to leave could include “the threatening
presence of several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.”
3
At both the suppression hearing and the fact-finding hearing, Captain Lee described his interaction with the
boys as a consensual encounter. See Tr., Vol. 2 at 13 (when D.H.’s counsel on cross examination asked,
“[T]hey weren’t really free to go at that point?,” Captain Lee answered, “It was a consensual encounter.”)
and 42 (when asked what happened after he made contact with the boys, Captain Lee answered, “I . . . made
a consensual encounter with them.”). The test is not based on the officer’s viewpoint but on a reasonable
citizen’s and an officer merely invoking those words in a report or from the stand does not make it so.
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Overstreet, 724 N.E.2d at 664. “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).
[13] D.H. argues his encounter with Captain Lee was not consensual and compares
his case to Dowdell v. State, 747 N.E.2d 564 (Ind. Ct. App. 2001), trans. denied.
In Dowdell, a police officer drove by the defendant and, from a distance of about
fifteen feet, observed the defendant smoking what appeared to be a “blunt.”4 Id.
at 565. The defendant was not acting suspiciously, and the officer admitted that
he could not tell whether the defendant was smoking a blunt or a cigar. The
officer stopped his vehicle and said something along the lines of “hey come
here” or “what are you doing?” to the defendant. Id. The defendant threw the
blunt down, walked over to the police officer with what appeared to be plastic
baggies in one hand, and then put both hands in his pockets. The officer noticed
a strong odor of marijuana, so he handcuffed the defendant and questioned him
about the baggies. The defendant was transported to the police station where
officers later found marijuana and cocaine in baggies in his pocket. The
defendant was charged with and found guilty of possession of cocaine and
possession of marijuana. On appeal, the defendant argued the police officer did
not have reasonable suspicion to conduct an investigatory stop when he
4
A blunt is a cigar that contains marijuana. Id. at 565 n.3.
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questioned him about the blunt and therefore, violated his Fourth Amendment
rights. The State replied that the encounter between the defendant and the
police officer was consensual, did not constitute a stop, and thus, did not
implicate the Fourth Amendment. We concluded that the encounter constituted
a stop that required reasonable suspicion because the defendant’s compliance
was compelled after the officer in a marked police car pulled up to him and
called him over. Id. at 567. Specifically, we noted, “A reasonable person when
faced with a police officer pulling up to him in a marked vehicle and calling for
him to come over to the car would not assume that he can just turn and walk
away.” Id. Accordingly, we reversed the defendant’s convictions because the
evidence of marijuana and cocaine was discovered as the result of an illegal
stop.
[14] This case is distinguishable from Dowdell. Here, Captain Lee observed D.H. and
his friends act strangely when he passed them on routine patrol. When Captain
Lee turned around, the juveniles hurried into the nearby trailer park. When
Captain Lee caught up to the juveniles, he did not stop them or tell them to
come over to him, unlike the officer in Dowdell. Instead, he stopped near them
while they were standing in a group. Captain Lee did not activate the lights or
sirens on his vehicle, did not have a threatening presence, did not physically
touch D.H. or his friends, did not detain them, and there was no evidence he
displayed any weapons other than those visible on his uniform or spoke to the
boys in a tone that would indicate their compliance was compelled. Captain
Lee merely asked why they were acting suspiciously and asked for their
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identification, which was essential to Captain Lee’s investigation. See Cochran v.
State, 843 N.E.2d 980, 984 (Ind. Ct. App. 2006) (“Asking questions is an
essential part of police investigations. In the ordinary course a police officer is
free to ask a person for identification without implicating the Fourth
Amendment.”) (citation omitted), trans. denied, cert. denied, 549 U.S. 1122
(2007).
[15] To the extent D.H. argues, based on his own testimony, that Captain Lee called
them over to him, our standard of review requires us to consider conflicting
evidence in favor of the trial court’s ruling, see Patterson, 958 N.E.2d at 482, and
the evidence favorable to the ruling is that Captain Lee approached D.H., did
not have a threatening presence, and did not “holler” at D.H. to compel
compliance as he suggests. Brief of Defendant-Appellant at 16. Therefore,
under the circumstances of this case, Captain Lee’s encounter with D.H. was
consensual, did not constitute a “seizure,” and did not implicate the Fourth
Amendment. See Woodson v. State, 966 N.E.2d 135, 140 (Ind. Ct. App. 2012)
(holding that police encounter with the defendant was consensual rather than a
seizure within the meaning of the Fourth Amendment because officers, who
received a report of a couple fighting in the street, did not have a threatening
presence, their weapons drawn, or the lights on their cars activated when they
approached the defendant and his female companion while they were on the
sidewalk), trans. denied.
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B. Search by Major Bridges
[16] When the report from dispatch did not return anything negative about D.H.,
the officers could not lawfully continue the encounter with D.H. without
reasonable suspicion or probable cause to do so. D.H. contends that Major
Bridges violated his Fourth Amendment rights by conducting a patdown
without any reasonable suspicion that he was armed or dangerous. See Br. of
Defendant-Appellant at 25.
[17] D.H. is correct, inasmuch as the officers were not conducting an investigatory
stop supported by reasonable suspicion that criminal activity might be afoot and
Major Bridges admitted at the fact-finding hearing that he was not concerned
about D.H. being armed or dangerous. See Tr., Vol. 2 at 52; see also Curry v.
State, 90 N.E.3d 677, 687 (Ind. Ct. App. 2017) (noting that an officer may
conduct a patdown “when the officer has reason to believe he is dealing with an
armed and dangerous individual, regardless of whether there is probable cause
to arrest the individual for a crime”) (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)),
trans. denied; Bell v. State, 144 N.E.3d 791, 797-98 (Ind. Ct. App. 2020) (noting
that when, during an initially consensual encounter, officers developed
reasonable suspicion that the defendant possessed an illegal firearm, they were
justified in conducting a limited patdown for weapons).
[18] However, as previously noted, warrantless searches and seizures, although per
se unreasonable under the Fourth Amendment, are subject to a few specific
exceptions. Katz, 389 U.S. at 357. “One exception to the warrant requirement is
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the search incident to arrest, which permits ‘a search of the arrestee’s person
and the area within his or her control.’” Durstock v. State, 113 N.E.3d 1272,
1278 (Ind. Ct. App. 2018) (quoting Clark, 994 N.E.2d at 261 n.10), trans. denied.
An officer may conduct a search incident to a lawful arrest if the officer has
probable cause to make an arrest. Curry, 90 N.E.3d at 687. The fact that a
person was not formally under arrest at the time of the search will not invalidate
the search. Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App. 2004), trans.
denied.
[19] Probable cause exists “when the totality of the circumstances establishes ‘a fair
probability’—not proof or a prima facie showing—of criminal activity,
contraband, or evidence of a crime.” Hodges v. State, 125 N.E.3d 578, 582 (Ind.
2019) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The determination of
probable cause is based on the “factual and practical considerations of everyday
life upon which reasonable and prudent persons act.” State v. Hawkins, 766
N.E.2d 749, 751 (Ind. Ct. App. 2002), trans. denied.
[20] In Bell v. State, 13 N.E.3d 543 (Ind. Ct. App. 2014), trans. denied, we held that
when an officer smelled a strong odor of raw marijuana coming from the
defendant’s person, the officer had probable cause to arrest the defendant
because “the smell of raw marijuana on a person is sufficient to provide
probable cause that the person possesses marijuana.” Id. at 545-46. Therefore, it
was permissible under the Fourth Amendment for the officer to conduct a
patdown search incident to arrest. Id. at 546; see also Edmond v. State, 951
N.E.2d 585, 591 (Ind. Ct. App. 2011) (holding that where officers “specifically
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smelled marijuana on [defendant’s] breath” as well as emanating from his
vehicle, “a person of reasonable caution would be warranted in the belief
[defendant] possessed marijuana” and therefore had probable cause to arrest
and search the defendant); cf. Meek v. State, 950 N.E.2d 816, 820 (Ind. Ct. App.
2011) (rejecting the defendant’s contention that although the odor of raw
marijuana emanating from his vehicle during a traffic stop might have provided
probable cause to search the vehicle, it did not provide probable cause to search
his person and concluding the smell, combined with the defendant’s admission
he had smoked marijuana earlier in the day and the officers’ failure to find the
source of the odor in the vehicle, supported the reasonableness of the patdown
search of the defendant under the state constitution), trans. denied.
[21] Here, Major Bridges arrived on the scene at the same time Captain Lee was
obtaining information from dispatch on the three boys. While Major Bridges
was standing with the boys and within a shoulder’s length of D.H., he identified
an odor of raw marijuana and due to his proximity to D.H., reasonably inferred
the smell was emanating from D.H. As in Bell, the smell of marijuana coming
from D.H. was sufficient to provide probable cause for Major Bridges to arrest
D.H. for possession of marijuana and conduct a patdown incident to his arrest.
During the patdown, Major Bridges felt a baggie containing what he believed to
be a plant-like material and D.H. admitted it was “probably a little bag of weed
or something.” Id. at 57. Major Bridges then reached inside D.H.’s left pocket
and found the marijuana. The patdown and subsequent search did not violate
D.H.’s Fourth Amendment rights.
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[22] We therefore conclude that neither Captain Lee’s initial encounter with D.H.
nor Major Bridges’ subsequent patdown after smelling marijuana violated the
Fourth Amendment to the United States Constitution.
II. Article 1, Section 11
[23] D.H. also argues that his seizure was unreasonable under Article 1, section 11
of the Indiana Constitution, which 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.
[24] Although Article 1, section 11 is virtually identical to the Fourth Amendment
textually, Indiana courts interpret the state constitutional provision differently
from the federal provision: “The legality of a governmental search under the
Indiana Constitution turns on an evaluation of the reasonableness of the police
conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d
356, 359 (Ind. 2005) (internal citation omitted). We consider the following three
factors in determining the reasonableness of a warrantless search: “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 361. It is
the State’s burden to demonstrate the reasonableness of the intrusion. State v.
Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002).
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[25] Beginning with the first factor in Litchfield, D.H. argues that the degree of
suspicion that a violation occurred was “very low[.]” Br. of Defendant-
Appellant at 41. As Captain Lee drove by D.H. and his friends, he observed
them act suspiciously and hurry into a nearby trailer park. Captain Lee
described the boys’ behavior as “odd” and “uneasy.” Tr., Vol. 2 at 15. Captain
Lee then located the boys to investigate their behavior and subsequently asked
for their identification. Captain Lee asked dispatch to run their information and
discovered that one of them was a runaway. And while Major Bridges was
standing near the boys as this information was gathered, he detected an odor of
marijuana emanating from D.H. Under the totality of the circumstances, the
odor of marijuana, the subsequent patdown, and D.H.’s admission that he
possibly had marijuana on him, taken together with the reasonable inferences
arising from such facts, gave Major Bridges suspicion to investigate further.
Captain Lee and Major Bridges had a high degree of suspicion that a violation
had occurred. Thus, this factor weighs in favor of the State.
[26] As for the second factor – the degree of intrusion – we conclude it was minimal.
The degree of intrusion is assessed from the defendant’s point of view. Mundy v.
State, 21 N.E.3d 114, 118 (Ind. Ct. App. 2014). Until Major Bridges conducted
a patdown of D.H., D.H.’s encounter with Captain Lee and Major Bridges was
consensual as we concluded above. D.H. was not detained and neither officer
had a threatening presence that would have suggested compelled compliance.
Once Major Bridges smelled marijuana, this gave him reason to conduct a
patdown of D.H., during which he felt “a baggie with what [he] believe[d] to be
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a plant-like material.” Tr., Vol. 2 at 20. D.H. then admitted that the bag
probably contained marijuana. Only then did Major Bridges reach inside
D.H.’s left pocket and locate the marijuana. The degree of intrusion was low
and therefore, this factor weighs in favor of the State.
[27] Finally, as to the extent of law enforcement needs, this court considers of the
nature and immediacy of the governmental concern. Masterson v. State, 843
N.E.2d 1001, 1007 (Ind. Ct. App. 2006), trans. denied. Here, the extent of law
enforcement needs was significant because after Major Bridges identified the
odor of marijuana, it was necessary to determine whether the boys were
concealing any illegal drugs or involved in drug activity, and also to ensure that
any evidence would not be removed or destroyed. The articulated needs of law
enforcement were high with respect to this situation and therefore, this factor
weighs in favor of the State. We conclude the Litchfield factors weigh in favor of
the State and the reasonableness of the search. Accordingly, the search of D.H.
was permissible under Article 1, section 11 of the Indiana Constitution.
Conclusion
[28] For the reasons set forth above, the brief “consensual encounter” with Captain
Lee and the subsequent search by Major Bridges did not violate D.H.’s rights
under the Fourth Amendment to the United States Constitution or Article 1,
section 11 of the Indiana Constitution and therefore, the juvenile court did not
abuse its discretion when it admitted pictures of the marijuana found in D.H.’s
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possession into evidence. Accordingly, we affirm D.H.’s adjudication as a
delinquent.
[29] Affirmed.
May, J., and Vaidik, J., concur.
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