Brenda S. Hanna v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Mar 05 2012, 8:31 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER GREGORY F. ZOELLER
Clark County Chief Public Defender Attorney General of Indiana
Jeffersonville, Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRENDA S. HANNA, )
)
Appellant-Defendant, )
)
vs. ) No. 10A01-1105-CR-277
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerome F. Jacobi, Judge
Cause No. 10D02-1002-FD-70
MARCH 5, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Brenda Hanna appeals her conviction for Class D felony possession of a narcotic
drug. Ind. Code § 35-48-4-6(a) (2006). We affirm.
ISSUE
Hanna presents one issue, which we restate as: whether the trial court abused its
discretion in the course of admitting evidence at trial.
FACTS AND PROCEDURAL HISTORY
One evening in February 2010, Officer John Hartman of the Jeffersonville Police
Department saw a vehicle turning from Plank Road onto Main Street. The driver, later
identified as Hanna, failed to signal the turn. Officer Hartman initiated a traffic stop.
Upon approaching the vehicle, Officer Hartman saw Hanna, who was almost fifty years
old, and a male passenger who appeared to be roughly twenty years younger. Officer
Hartman asked Hanna for her driver’s license, registration, and proof of insurance.
Hanna gave Officer Hartman her driver’s license but had only an expired registration and
no proof of insurance. Officer Hartman returned to his vehicle and ran the information
on Hanna and her passenger. He received an alert over the radio from Officer Denver
Leverett, a narcotics enforcement officer, that Hanna had been known to use heroin.
While Officer Hartman continued to check Hanna’s information, Officer Leverett and
Sergeant Greg Sumler arrived to assist him. Hanna’s information came back showing
that she was a valid licensed driver.
Officer Hartman returned to Hanna, and when she was still unable to produce any
valid proof of insurance, he asked her to exit the vehicle. They went to the rear of her
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vehicle to talk. Officer Hartman explained that if she could not provide proof of
insurance, he would have to issue a citation and tow the vehicle. Tr. p. 76. Officer
Hartman asked about the age difference between Hanna and her passenger. Hanna
responded that they were in a relationship and that they were not doing anything illegal.
Officer Hartman then asked for consent to search the vehicle, and Hanna consented. At
some point before he searched the vehicle, Officer Hartman told Hanna that he would be
looking for heroin. Id. at 89-90.
Hanna’s purse was sitting open on the driver’s seat. Inside the purse, Officer
Hartman found a small change purse containing two plastic baggies with a white
powdery residue. When Officer Hartman told Hanna what he had found, Hanna said that
she had previously had a heroin problem and that she had forgotten that the heroin was
still in her purse. Officer Hartman then performed a field test on the substance, which
came back positive for heroin. Hanna was placed under arrest.
The State charged Hanna with Class D felony possession of a narcotic drug.
Hanna filed a motion to suppress evidence of the heroin found in her purse, which was
denied after a hearing. At a jury trial, Hanna objected to evidence of the heroin, but the
trial court overruled her objections. The jury found Hanna guilty as charged, and the trial
court sentenced her to three years in the Department of Correction. Hanna now appeals.
DISCUSSION AND DECISION
Although Hanna originally challenged the evidence of the heroin through a motion
to suppress, she now challenges this evidence on appeal following a completed trial. The
issue is therefore properly framed as whether the trial court abused its discretion by
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admitting the challenged evidence at trial. See Collins v. State, 822 N.E.2d 214, 218 (Ind.
Ct. App. 2005), trans. denied. Our standard of review of rulings on the admissibility of
evidence is essentially the same whether the challenge is made by a pre-trial motion to
suppress or by trial objection. Id. We do not reweigh the evidence, and we consider any
conflicting evidence in favor of the trial court’s ruling. Id. However, we must also
consider the uncontested evidence favorable to the defendant. Id.Hanna does not challenge the initial stop of her vehicle, nor could she do so.
Police officers may stop a vehicle when they observe minor traffic violations. State v.
Quirk, 842 N.E.2d 334, 340 (Ind. 2006). A traffic violation, however minor, creates
probable cause to stop a vehicle. Id. Officer Hartman’s observation of Hanna turning
without signaling justified the initial stop in this case. See Ind. Code § 9-21-8-25 (1991)
(providing that a driver must signal before turning or changing lanes).
Instead, Hanna contends that the search of her vehicle violated her rights under the
Fourth Amendment to the United States Constitution and Article 1, Section 11 of the
Indiana Constitution because her consent to search was not voluntary. Specifically,
Hanna claims that her consent was obtained only after Officer Hartman “unreasonably
detained her . . . beyond the time necessary to complete his investigation of the infraction
for which she was stopped.” Appellant’s Br. p. 6. A search warrant is generally a
prerequisite to a constitutionally proper search and seizure. Callahan v. State, 719
N.E.2d 430, 434 (Ind. Ct. App. 1999). In cases involving a warrantless search, the State
bears the burden of proving an exception to the warrant requirement. Id. A valid consent
to search is an exception to the warrant requirement. Id. The theory underlying this
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exception is that, when an individual gives the State permission to search his or her
person or property, the governmental intrusion is presumably reasonable. Id. We first
address whether Hanna was unreasonably detained and then address whether her consent
was voluntary.
Hanna argues that she was unreasonably detained when Officer Hartman extended
the duration of the stop by waiting for backup officers and asking a question unrelated to
the purpose of the stop. During the stop, Officer Hartman asked Hanna about the age
difference between her and her passenger. Hanna claims that Officer Hartman lacked
reasonable suspicion to ask this question and that it unreasonably extended the duration
of the stop. However, the Seventh Circuit has held that because questions are neither
searches nor seizures, an officer need not demonstrate justification for each inquiry.
United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002). “Questions asked during
detention may affect the reasonableness of that detention (which is a seizure) to the extent
that they prolong custody, but questions that do not increase the length of detention (or
that extend it by only a brief time) do not make the custody itself unreasonable . . . .” Id.Officer Hartman’s brief question unrelated to Hanna’s failure to signal and failure to
provide proof of insurance did not unreasonably extend the duration of the stop or
otherwise violate the Fourth Amendment or Article 1, Section 11 of the Indiana
Constitution. See State v. Washington, 898 N.E.2d 1200, 1205, 1208 (Ind. 2008) (where
officer initiated traffic stop based on observation of defendant repeatedly driving moped
left of center and suspicion that defendant was under eighteen and not wearing goggles or
helmet as required by statute, officer’s question as to whether defendant had any drugs on
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his person did not violate Fourth Amendment or Article 1, Section 11 of the Indiana
Constitution).
We also disagree with Hanna’s claim that Officer Hartman extended the duration
of the stop by waiting for backup officers. At trial, Officer Hartman testified that he was
running Hanna’s information while waiting for an additional unit:
Uh, I went back to my vehicle and began to uh run information, check her
[d]river’s [l]icense through dispatch, uh go ahead and verify the plates on
the vehicle, all that good stuff. Um, and then uh waited for an additional
unit to get there. Uh while I was still seated in my vehicle checking her
information such as the [d]river’s [l]icense and [r]egistration, two
[o]fficer[s] from the Jeffersonville Police Department did arrive to assist
me . . . .
Tr. pp. 74-75. The fact that Officer Hartman waited for an additional unit to arrive
therefore did not extend the duration of the stop. We conclude that Hanna was not
unlawfully detained at any point during the stop.
We note that Hanna assumes that Officer Hartman waited for backup officers to
arrive, asked a question unrelated to the purpose of the stop, and asked for consent to
search only after Officer Hartman was done dealing with her failure to signal and her
failure to provide proof of insurance. See Appellant’s Br. p. 11. Our review of the
record, however, reveals that Officer Hartman had not yet completed the purpose of the
stop. After Officer Hartman ran Hanna’s information, he gave her another chance to
provide proof of insurance, informed her that he would have to issue a citation and tow
the vehicle, then asked about the age difference between her and her passenger and
whether she would consent to search. There is no indication that Officer Hartman issued
the citation before he asked for consent to search. In any event, the key inquiry is not
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whether Officer Hartman asked for consent before or after the purpose of the traffic stop
was terminated. See Callahan, 719 N.E.2d at 439 (rejecting defendant’s argument that
Indiana Constitution prohibits officer from seeking consent to search vehicle after
purpose of traffic stop is terminated even though officer has no independent reasonable
suspicion of illegal activity). Rather, the key inquiry is whether Hanna’s consent was
voluntary.
A warrantless search based on lawful consent is consistent with both the Indiana
and United States Constitutions. Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008). The
State has the burden of proving that the consent was in fact voluntarily given. Id.Voluntariness is a question of fact to be determined from all the circumstances. Id. A
consent to search is valid except where it is procured by fraud, duress, fear, intimidation,
or where it is merely a submission to the supremacy of the law. Navarro v. State, 855
N.E.2d 671, 675 (Ind. Ct. App. 2006). To constitute a valid waiver of Fourth
Amendment rights, a consent must be the intelligent relinquishment of a known right or
privilege. Id. Such waiver may not be conclusively presumed from a verbal expression
of assent unless the court determines, from the totality of the circumstances, that the
verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the
officer a license that the person knows may be freely and effectively withheld. Id.The totality of the circumstances from which the voluntariness of a defendant’s
consent is to be determined includes, but is not limited to, the following considerations:
(1) whether the defendant was advised of his or her Miranda rights before the request to
search; (2) the defendant’s degree of education and intelligence; (3) whether the
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defendant was advised of his or her right not to consent; (4) whether the defendant has
had previous encounters with law enforcement; (5) whether the officer made any express
or implied claims of authority to search without consent; (6) whether the officer was
engaged in any illegal action before the request; (7) whether the defendant was
cooperative previously; and (8) whether the officer was deceptive as to his or her true
identity or the purpose of the search. Id.The evidence most favorable to the trial court’s ruling shows that Officer Hartman
neither arrested Hanna nor physically restrained her until after he discovered the heroin in
her purse. Accordingly, Officer Hartman did not advise Hanna of her Miranda rights
before the request to search, nor was such an advisement required. See id. at 678 (noting
that although defendant was not advised of his Miranda rights before request to search,
defendant was not entitled to such advisement because he was not in custody). The
record does not indicate that Hanna, who was cooperative throughout the incident, was
below average in terms of education or intelligence. It is unclear if Officer Hartman
knew whether Hanna had had previous encounters with law enforcement; however, he
was alerted by Officer Leverett that Hanna had been known to use heroin. Hanna’s
presentence investigation report shows that she has had numerous encounters with law
enforcement. There is no suggestion that Officer Hartman engaged in any illegal action
before requesting consent or that he claimed any authority to search without consent.
Officer Hartman was not deceptive about the purpose of the search and instead told
Hanna that he would be searching for heroin. Although we acknowledge that Officer
Hartman did not advise Hanna of her right not to consent, “knowledge of the right to
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refuse is but one factor in determining the voluntariness of consent to search.” State v.
Scheibelhut, 673 N.E.2d 821, 823 (Ind. Ct. App. 1996). The totality of the circumstances
shows that Hanna’s consent to search her vehicle was voluntary.
We conclude that Hanna’s rights provided by the Fourth Amendment and Article
1, Section 11 of the Indiana Constitution were not violated. The trial court therefore did
not abuse its discretion by admitting evidence of the heroin at trial.
CONCLUSION
For the reasons stated above, we affirm Hanna’s conviction.
Affirmed.
FRIEDLANDER, J., and BRADFORD, J., concur.
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