Ashley Bell v. State of Indiana , 2014 Ind. App. LEXIS 356 ( 2014 )

Jul 28 2014, 9:30 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW D. ANGLEMEYER GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ASHLEY BELL, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1312-CR-1026
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven J. Rubick, Magistrate
Cause No. 49F10-1307-CM-45257
July 28, 2014
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Ashley Bell was the passenger of a vehicle that was stopped by a police officer
because of an illegally displayed temporary license plate. The officer learned that the driver
did not have a valid driver’s license and ordered the vehicle’s occupants to exit. As Bell
exited the vehicle, the officer smelled raw marijuana coming from both the vehicle and Bell’s
person. The officer handcuffed Bell and conducted a patdown search which revealed ten
baggies of marijuana. Bell was convicted of class A misdemeanor possession of marijuana.
On appeal, she claims that the search of her person during the traffic stop violated the
Fourth Amendment and that the marijuana found during the search should not have been
admitted at trial. Concluding that the search was permissible under the Fourth Amendment,
we affirm.
Facts and Procedural History
In July 2013, Bell was the front seat passenger of a vehicle that was stopped by
Indianapolis Metropolitan Police Department Officer Lorrie Phillips because of an illegally
displayed temporary license plate. The driver did not have a valid driver’s license. Officer
Phillips ordered the occupants of the vehicle to exit so the car could be towed. As Bell exited
the vehicle, Officer Phillips smelled a strong odor of raw marijuana coming from both the
vehicle and Bell’s person. Officer Phillips handcuffed and conducted a patdown search of
Bell which revealed ten individual baggies of marijuana in her possession. Bell was charged
with class A misdemeanor dealing marijuana and class A misdemeanor possession of
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marijuana. Following a bench trial, Bell was found not guilty of dealing but guilty of
possession.
Discussion and Decision
Bell claims that the trial court erred by admitting the evidence seized by Officer
Phillips because the search violated her rights under the Fourth Amendment to the United
States Constitution.
A trial court has broad discretion in ruling on the admissibility of
evidence. Accordingly, we will reverse a trial court’s ruling on the
admissibility of evidence only when the trial court abused its discretion. An
abuse of discretion involves a decision that is clearly against the logic and
effect of the facts and circumstances before the court.
Smith v. State, 980 N.E.2d 346, 349 (Ind. Ct. App. 2012) (citations omitted), trans. denied
(2013). “We do not reweigh the evidence, and we consider conflicting evidence most
favorable to the trial court’s ruling.” Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App.
2000), trans. denied. However, we must also consider the uncontested evidence favorable to
the defendant. Id.
Here, Bell does not challenge the constitutionality of the investigatory traffic stop, nor
does she challenge Officer Phillips’s order to exit the vehicle. However, Bell does claim that
the warrantless patdown search violated the Fourth Amendment, which states,
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.
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Bell contends that Officer Phillips did not have reasonable suspicion to conduct the
patdown search. A patdown search is justified during an investigatory stop when the officer
is concerned for her safety; it is not to discover evidence of crime, but rather to allow the
officer to pursue her investigation without fear of violence. Shinault v. State, 668 N.E.2d
274, 277 (Ind. Ct. App. 1996). A patdown search for weapons may be conducted if the
officer is “justified in believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the officer or to others.”
Jackson v. State, 669 N.E.2d 744, 747 (Ind. Ct. App. 1996) (quoting Terry v. Ohio, 392 U.S.
1, 24 (1968)). In a patdown search for weapons, an officer may seize nonthreatening
contraband if while patting down a suspect’s outer clothing she feels an object whose identity
is immediately apparent. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Bell asserts,
and we agree, that Officer Phillips had no reason to believe that Bell was armed and
dangerous.
We note however, that a patdown search would have been permissible if Officer
Phillips had probable cause to arrest Bell. “Probable cause to search exists where the facts
and circumstances within the knowledge of the officer making the search, based on
reasonably trustworthy information, are sufficient to warrant a person of reasonable caution
in the belief that an offense has been or is being committed.” Meek v. State, 950 N.E.2d 816,
819 (Ind. Ct. App. 2011), trans. denied. One of the exceptions to the Fourth Amendment’s
warrant requirement is a search incident to a lawful arrest. Arizona v. Gant, 556 U.S. 332,
338 (2009). When probable cause exists to make an arrest, the fact that a suspect was not
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formally placed under arrest at the time of the search incident will not invalidate the search.
Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App. 2004), trans. denied. A police officer’s
subjective belief concerning whether she had probable cause to arrest a defendant has no
legal effect. Fentress v. State, 863 N.E.2d 420, 423 (Ind. Ct. App. 2007). The ultimate
determination of probable cause is reviewed de novo. Burkett v. State, 691 N.E.2d 1241,
1244 (Ind. Ct. App. 1998), trans. denied.
Here, Officer Phillips conducted a patdown search of Bell after she smelled a strong
odor of raw marijuana coming from both the vehicle and Bell’s person. In a case involving
the Indiana Constitution, we concluded that a warrantless search of the defendant driver was
reasonable under the totality of the circumstances when the officer smelled raw marijuana
coming from the vehicle after a lawful traffic stop. Meek, 950 N.E.2d at 820. In Shinault,
we noted the possibility that the detection of a strong marijuana odor coming from the
defendant driver could have given the officer probable cause to arrest and further search the
defendant. 668 N.E.2d at 278 n.5. And we have previously held that the odor of burnt
marijuana from a person’s vehicle and breath yields probable cause to believe that she
possesses marijuana. Edmond v. State, 951 N.E.2d 585, 591 (Ind. Ct. App. 2011).
We agree with the State’s argument that, like the smell of burnt marijuana, the smell
of raw marijuana on a person is sufficient to provide probable cause that the person possesses
marijuana. We note that the odor of raw marijuana indicates that it has not been smoked and
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therefore still may be in the defendant’s possession.1 As such, we conclude that Officer
Phillips had probable cause to arrest Bell and conduct a search incident to arrest. Therefore
we also conclude that the trial court did not abuse its discretion in admitting the evidence
seized during the search. Consequently, we affirm.
Affirmed.
BAKER, J., and BARNES, J., concur.
1
We note that a defendant may challenge the qualifications of the officer in determining the nature of
the odor. State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. denied. Here, Bell does not
challenge Officer Phillips’s training and experience in detecting the odor of raw marijuana.
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