Ronte A. Terrell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jul 12 2018, 9:21 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
Gregory S. Loyd Curtis T. Hill, Jr.
Truitt, Ray, Sharvelle & Eberhardt LLP Attorney General of Indiana
Lafayette, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronte A. Terrell, July 12, 2018
Appellant-Defendant, Court of Appeals Case No.
79A04-1712-CR-2941
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Laura Zeman,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D04-1702-CM-482
Baker, Judge.
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[1] Ronte Terrell appeals his conviction for Class B Misdemeanor Possession of
Marijuana.1 Terrell argues that the trial court improperly admitted evidence
stemming from a police officer’s roadside search of Terrell’s person. Finding no
error, we affirm.
Facts
[2] Around 9:30 p.m. on January 6, 2017, Lafayette Police Officer Zachary Hall
observed a vehicle commit three traffic infractions. Officer Hall conducted a
traffic stop of the vehicle, which was being driven by Terrell and held another
passenger. The stop occurred on a major traffic artery in Lafayette lined with
intermittent street and business lights, but the stop did not occur under or near
any of the lights. It was dark enough that Officer Hall needed to use a flashlight
during the stop.
[3] When Officer Hall reached the rolled-down passenger window, he noticed the
odor of marijuana. After obtaining identification from Terrell and the
passenger, Officer Hall returned to his vehicle, ran the identifications, and
determined that the passenger had committed a trespass violation. Officer Hall
called for a backup officer to assist him in detaining the passenger. Officer Neil
Chidalek responded.
1
Ind. Code § 35-48-4-11.
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[4] After Officer Chidalek arrived, Officer Hall arrested the passenger and
conducted a search incident to arrest. During a pat-down search of the
passenger’s outer clothing, a bag of marijuana fell from the passenger’s groin
area down his pants leg. Officer Hall secured the passenger in the back of one
of the police vehicles.
[5] Officer Hall could still smell marijuana emanating from the vehicle, so he asked
Officer Chidalek to remove Terrell from the vehicle so that he could search it.
When Terrell was removed from the vehicle, Officer Hall smelled marijuana on
his person. Officer Hall asked Terrell if he had any marijuana on him; Terrell
responded that he did not. Officer Hall did not find anything in his search of
the vehicle. Officer Chidalek later searched the vehicle again and found
marijuana “shake,” which is “little leafy parts of marijuana,” including “stems
and whatnot[.]” Tr. Vol. II p. 50, 51.
[6] Officer Chidalek conducted a limited pat-down search of Terrell for weapons
but found no weapons or contraband. After searching the vehicle, Officer Hall
returned to the area where Terrell and Officer Chidalek were standing; Officer
Hall could still smell an “overwhelming” odor of raw marijuana emanating
from Terrell. Id. at 18. Officer Hall walked Terrell back to his police vehicle
and instructed Terrell to sit in the rear passenger seat with the door open and
remove his shoes, but not his socks. Officer Hall looked inside the shoes and at
the bottom of Terrell’s feet, but did not find marijuana.
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[7] Officer Hall instructed Terrell to put his shoes back on and stand up next to the
vehicle. Officer Hall then conducted another pat-down search of Terrell’s outer
clothing; this time, Officer Hall felt something near Terrell’s groin area. The
officer pulled on the outside of the elastic waistband of Terrell’s loose-fitting
sweatpants. The officer was wearing gloves and moved the waistband no more
than two or three inches from Terrell’s waist. Officer Hall noticed that Terrell
was wearing boxer shorts but did not look down Terrell’s pants at his groin
area; instead, he looked only at Terrell’s waistline when he shook the
sweatpants. When Officer Hall shook the pants, a plastic bag containing what
was later revealed to be 7.6 grams of marijuana fell from Terrell’s groin area
and down his pants leg to the ground.
[8] Some cars passed by during the traffic stop, but Officer Hall did not recall any
vehicles passing by during the search of Terrell. No pedestrians were in the
area, the roadway did not have sidewalks, and no houses were in the vicinity.
The passenger in Terrell’s vehicle was secured in another police vehicle during
the search of Terrell.
[9] On February 14, 2017, the State charged Terrell with Class B misdemeanor
possession of marijuana. On July 29, 2017, Terrell filed a motion to suppress
the marijuana evidence; the trial court later denied the motion. Terrell’s bench
trial took place on August 31, 2017. The trial court found Terrell guilty as
charged and sentenced him to 180 days, with 178 days suspended to probation.
Terrell now appeals.
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Discussion and Decision
[10] Terrell argues that the trial court erred by denying his motion to suppress the
evidence, but because he is appealing following a completed trial, the issue is
properly framed as an argument regarding the admission of the evidence at
trial. E.g., Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). We will only
reverse a trial court’s ruling on admission of evidence if the decision is clearly
against the logic and effect of the facts and circumstances before the court. D.F.
v. State, 34 N.E.3d 686, 688 (Ind. Ct. App. 2015). In conducting our review, we
will neither reweigh the evidence nor assess witness credibility, but we apply a
de novo standard of review to matters of law. Id. In other words, when a
defendant contends that the trial court admitted evidence alleged to have been
discovered as the result of an illegal search or seizure, an appellate court will
generally assume the trial court accepted the evidence as presented by the State
and will not reweigh that evidence, but we owe no deference as to whether that
evidence established the constitutionality of the search or seizure. Id. at 689.
I. United States Constitution
[11] Terrell first argues that the search was unconstitutional pursuant to the Fourth
Amendment to the United States Constitution. A search conducted without a
warrant is per se unreasonable unless it falls within a few well-delineated
exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357
(1967). Relevant to this case is the exception for searches incident to arrest.
Terrell concedes that this exception applies to this case. Reply Br. p. 5; see also
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Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (holding that the smell of
raw marijuana on a person is sufficient to provide probable cause that the
person possesses marijuana); Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App.
2004) (noting that so long as probable cause exists to make an arrest, “the fact
that a suspect was not formally placed under arrest at the time of the search
incident thereto will not invalidate the search”).
[12] The purposes of a search incident to arrest are to ensure officer safety and to
prevent destruction of evidence. United States v. Robinson, 414 U.S. 218, 227-28
(1973). Even if a search incident to arrest is permissible, it must still be
conducted in a reasonable manner. The United States Supreme Court has
explained that evaluating the reasonableness of a search incident to arrest
requires “a balancing of the need for a particular search against the invasion of
personal rights the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In
conducting this analysis, there are four factors to consider: (1) the scope of the
particular intrusion, (2) the manner in which it is conducted, (3) the justification
for initiating it, and (4) the place in which it is conducted. Id.
[13] As for the first two factors, the scope of the intrusion was relatively minimal
and the manner in which it was conducted was reasonable. Officer Hall,
wearing gloves, conducted a pat-down search of Terrell’s person when Terrell
was standing next to and partially shielded by a police vehicle. After feeling
something near Terrell’s groin area, the officer pulled on the outside of the
elastic waistband of Terrell’s pants. Officer Hall pulled the pants no more than
two to three inches away from Terrell’s body and did not touch Terrell’s
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underwear, look in his groin area, or reach his hand inside Terrell’s pants.
When the officer shook the waistline of Terrell’s pants, a bag of marijuana fell
from Terrell’s groin area through his pants leg and to the ground.
[14] Second, the justification for initiating the search was the strong odor of raw
marijuana emanating from Terrell’s person. The odor of marijuana is sufficient
to justify an officer’s belief that the offense of marijuana possession has
occurred. E.g., State v. Parrott, 69 N.E.3d 535, 543-44 (Ind. Ct. App. 2017),
trans. denied. At that point, Officer Hall had probable cause to arrest Terrell and
needed no further justification to conduct the search incident to arrest.
Robinson, 414 U.S. at 235. Because Officer Hall had probable cause to believe
that Terrell had concealed evidence on his person, his search of Terrell was
justified.
[15] Finally, as for the place in which it was conducted, the search occurred
alongside a busy road in Lafayette. It was dark enough in the area of the search
that Officer Hall had to use a flashlight during the traffic stop, and no vehicles
passed by during the search. Terrell was standing next to and partially shielded
by a police vehicle, and the passenger in his vehicle was secured in a different
vehicle. The area was non-residential and had no sidewalks or pedestrians.
[16] Terrell directs our attention to Porter v. State, in support of his contention that
the search ran afoul of the Fourth Amendment. 82 N.E.3d 898 (Ind. Ct. App.
2017). We find Porter distinguishable from the instant case. In Porter, this
Court found a search unconstitutional where an officer reached inside the
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female defendant’s tight-fitting pants and underwear to retrieve contraband
during a traffic stop. The search occurred on a public street and the record was
silent as to the time of day, whether any efforts were made to shield the
defendant from view of any passersby or the two men at the scene, or whether
the officer was wearing gloves. Id. at 906.
[17] Here, in contrast, Officer Hall, who was wearing gloves, did not reach inside
Terrell’s pants or underwear. The search was conducted under cover of
darkness, partially shielded by a police vehicle, and out of the view of any
bystanders in the non-residential area. Unlike in Porter, therefore, the scope of
the intrusion was relatively minimal and the manner and place in which the
search was conducted was designed to afford Terrell as much privacy as
possible under the circumstances. We find that this search did not run afoul of
the Fourth Amendment and that the trial court did not err by admitting the
evidence at issue.
II. State Constitution
[18] Terrell next argues that the search violated Article I, Section 11 of the Indiana
Constitution. Although that provision shares the same language as the Fourth
Amendment, we interpret and apply it independently. State v. Bulington, 802
N.E.2d 435, 438 (Ind. 2004). We construe this provision of the state
constitution liberally “in favor of protecting individuals from unreasonable
intrusions on privacy,” Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008),
applying a totality of the circumstances test “to evaluate the reasonableness of
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the officer’s actions,” Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010). The State
bears the burden of showing that the intrusion was reasonable. Bulington, 802
N.E.2d at 438. In determining reasonableness, we consider “(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.” Litchfield v. State, 824
N.E.2d 356, 361 (Ind. 2005).
[19] The degree of concern, suspicion, or knowledge that a violation had occurred
was substantial. Officer Hall testified that he repeatedly noticed the
overwhelming odor of raw marijuana emanating from Terrell’s person. Terrell
argues that no foundation was laid to establish that Officer Hall had the training
and experience to identify the odor of raw marijuana. The State did, however,
ask Officer Hall the following question: “Based on your training and if you
recall, was the odor of raw marijuana or burnt marijuana?” Tr. Vol. II p. 20.
The officer replied, “Raw.” Id. Later, the State asked, “was the odor consistent
with your training and experience of marijuana?” Id. at 21. And Officer Hall
replied affirmatively. Id.
[20] Ideally, a more thorough foundation would have been laid, but it was not. But
at no point did Terrell object to Officer Hall’s many statements indicating that
he smelled a strong marijuana odor on Terrell’s person. Given that no
objections were made, we find that the limited questions and answers above
suffice to establish that Officer Hall had the training to identify the odor of raw
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marijuana. As such, the degree of suspicion or knowledge that a violation had
occurred was high.
[21] Next, as noted above, we find the degree of intrusion to be relatively minimal.
Terrell was first subjected to a limited pat-down search for weapons while his
car was searched for marijuana and when that was not fruitful, Officer Hall
searched Terrell’s shoes and conducted a more thorough pat-down of his outer
clothing, including pulling on the outer waistband of Terrell’s loose-fitting
sweatpants. Terrell’s body parts were never exposed, Officer Hall was wearing
gloves, Officer Hall did not reach inside Terrell’s pants or underwear, and the
search occurred at night, shielded by a police vehicle, with no passersby
present. We find that Officer Hall used the least intrusive method possible to
locate the contraband hidden on Terrell’s person.
[22] Finally, the extent of law enforcement needs was moderate. Officer Hall knew
that Terrell almost certainly had contraband on his person. Two of the
purposes of a search incident to arrest are to ensure that the arrestee does not
bring contraband into the jail and to prevent the destruction of evidence.
Edmond v. State, 951 N.E.2d 585, 592 (Ind. Ct. App. 2011). To serve these
purposes, therefore, Officer Hall needed to search Terrell’s person until the
contraband was found.
[23] We find that under the totality of the circumstances, the search was reasonable
under the Indiana Constitution. Therefore, the trial court did not err by
admitting this evidence.
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[24] Terrell makes a final argument that, in the aggregate, the multiple searches
amounted to an unconstitutional process even if no single search was
problematic. We disagree. The officers had the authority to conduct a limited
pat-down search for weapons when Terrell was removed from his vehicle, to
search his vehicle when they smelled marijuana emanating from it, and to
search Terrell incident to arrest—including asking that he remove his shoes and
then conducting a more thorough pat-down search—once Officer Hall
confirmed that the strong odor of marijuana was coming from Terrell’s person
rather than from the vehicle. Each stage of the encounter was legal and there is
no authority supporting Terrell’s argument that the cumulative nature of the
lawful searches somehow renders the officers’ actions unconstitutional. We
decline to reverse on this basis.
[25] The judgment of the trial court is affirmed.
Kirsch, J., and Bradford, J., concur.
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