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.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020                    Page 1 of 18
                                 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).

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020                     Page 2 of 18
      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.


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020                     Page 3 of 18
      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.




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 4 of 18
                                 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).




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 5 of 18
      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

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 6 of 18
       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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 7 of 18
                                 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.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020                     Page 8 of 18
       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.


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 9 of 18
       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


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 10 of 18
       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.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 11 of 18
                                   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


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 12 of 18
       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
       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 13 of 18
       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.


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 14 of 18
[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).

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 15 of 18
[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


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 16 of 18
       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



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 17 of 18
       possession into evidence. Accordingly, we affirm D.H.’s adjudication as a

       delinquent.


[29]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2403 | July 17, 2020   Page 18 of 18
