                                                                                FILED
                                                                           Feb 06 2017, 8:50 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Brooke N. Russell                                          Curtis T. Hill, Jr.
      Indianapolis, Indiana                                      Attorney General of Indiana

                                                                 Eric P. Babbs
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          February 6, 2017
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 49A02-1606-CR-1271
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      James Parrott,                                             The Honorable Jose D. Salinas,
      Appellee-Defendant                                         Judge
                                                                 Trial Court Cause No.
                                                                 49G14-1511-F6-40302



      Crone, Judge.


                                              Case Summary
[1]   A police officer detected a strong odor of raw marijuana emanating from James

      Parrott’s vehicle during a traffic stop. The officer had Parrott exit the vehicle,

      handcuffed him, searched him, and found raw marijuana and other contraband

      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017                   Page 1 of 17
      in his pockets. The State charged Parrot with marijuana possession and other

      crimes. Parrott filed a motion to suppress the evidence seized during the

      search, arguing that the officer did not have probable cause to conduct a

      warrantless search because the officer did not smell marijuana on him after he

      exited the vehicle. The trial court granted Parrott’s motion. The State did not

      dismiss the charges and appealed the ruling.


[2]   Parrott filed a motion to dismiss the State’s appeal, arguing that the State was

      required to dismiss the charges before it could appeal the suppression order.

      Because the ultimate effect of the order is to preclude further prosecution of the

      drug-related charges, at a minimum, we deny Parrott’s motion to dismiss.


[3]   The State argues that the trial court erred in granting Parrott’s motion to

      dismiss, asserting that the officer had probable cause to arrest Parrott based on

      the strong odor of raw marijuana emanating from his vehicle and conduct a

      warrantless search incident to that arrest. We agree and therefore reverse and

      remand for further proceedings.


                                  Facts and Procedural History
[4]   The relevant facts are undisputed. On November 13, 2015, Indianapolis

      Metropolitan Police Department Officer Andrew Clark was in his patrol car

      and saw a vehicle run a stop sign. Officer Clark stopped the vehicle and

      approached the driver’s side. Parrott was the vehicle’s only occupant. The

      officer asked Parrott for his registration and ID. As the officer spoke with

      Parrott, he detected an “odor of raw marijuana coming from the vehicle” that

      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 2 of 17
      was “pretty strong.” Tr. at 10, 11. According to Officer Clark, raw marijuana

      has “no burnt or singed smell” and smells “[k]ind of almost like a plant[,]”

      whereas the smell of burnt marijuana is “similar to like a cigarette smell where

      it’s something more burned. It’s a more of a singed-in-the-air kind of smell at

      least for me.” Id. at 8. The officer did not see any marijuana in plain view.


[5]   Officer Clark had Parrott step out of the vehicle, at which point “there was not

      a distinguishable odor [of marijuana] from him.” Id. at 19. In Officer Clark’s

      experience, “a passenger compartment is confined space. It’s an enclosed area.

      So if it’s not exposed to any outside sources, […] that smell is going to linger.”

      Id. at 23-24. Also, “the smell from a passenger compartment is obviously

      stronger than it would be a smell coming from an actual individual person.” Id.

      at 24. Officer Clark handcuffed Parrott and searched him “because of the odor

      of marijuana coming from the car .… [w]hen he was in it.” Id. at 19. The

      officer found “a half burnt marijuana cigarette and a yellow baggie” with crack

      cocaine in Parrott’s right pants pocket and a “small baggie of a green leafy

      substance that [the officer] knew to be marijuana” and two Percocet pills in his

      left pants pocket. Id. at 12-13. The officer put the contraband in an envelope

      and put Parrott in his patrol car. Two backup officers arrived, and Officer

      Clark went to search Parrot’s vehicle. Parrott ran away from the backup

      officers, who apprehended him. Officer Clark found no contraband in Parrott’s

      vehicle.


[6]   The State charged Parrott with six counts: level 6 felony cocaine possession,

      level 6 felony narcotic drug possession, class B misdemeanor marijuana

      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 3 of 17
      possession, and two counts of class A misdemeanor resisting law enforcement.

      Parrott filed a motion to suppress the evidence seized during the search. At a

      hearing on the motion, Parrott argued that Officer Clark did not have probable

      cause to conduct a warrantless search of his person because the officer did not

      smell marijuana on his person after he exited the vehicle.1 The trial court took

      the matter under advisement. At a subsequent hearing, the court granted

      Parrott’s motion to suppress, stating, “The nuance is that if there’s probable

      cause -- if [Parrott] was in the car, you could search him. But by stepping out of

      the car, you know, they lose that probable cause to [Parrott].” Id. at 46. The

      court also stated, “Based on the facts that I saw, the search of the vehicle was

      100 appropriate and legal [sic].” Id. at 48. The court told the State, “[I]f you

      want to do an interlocutory [appeal], I’ll be happy to grant that.” Id. at 48.

      Defense counsel advised the court, “We do have misdemeanor Resistings that

      will remain even with the Court’s ruling.” Id. at 50. The court then set a

      pretrial hearing. The State filed a motion to correct error. The trial court issued

      a written order in which it granted Parrott’s motion to suppress and

      incorporated its oral findings of fact and ruling and also denied the State’s

      motion to correct error.


[7]   Indiana Code Section 35-38-4-2 provides that the State may take appeals to this

      Court in certain cases, including




      1
       Parrott did not challenge the validity of the traffic stop or Officer Clark’s training and experience in
      detecting the odor of raw marijuana.

      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017                          Page 4 of 17
              (5) From an order granting a motion to suppress evidence, if the
              ultimate effect of the order is to preclude further prosecution of
              one (1) or more counts of an information or indictment.

              (6) From any interlocutory order if the trial court certifies and the
              court on appeal or a judge thereof finds on petition that:

              (A) the appellant will suffer substantial expense, damage, or
              injury if the order is erroneous and the determination thereof is
              withheld until after judgment;

              (B) the order involves a substantial question of law, the early
              determination of which will promote a more orderly disposition
              of the case; or

              (C) the remedy by appeal after judgment is otherwise inadequate.


[8]   Indiana Appellate Rule 5 provides that this Court has jurisdiction in appeals

      from final judgments and from interlocutory orders. After the denial of its

      motion to correct error, the State filed a motion to stay proceedings and certify

      order for interlocutory appeal pursuant to Indiana Code Section 35-48-4-2(5),

      asserting that it “cannot proceed on one or more of the charges” as a result of

      the suppression ruling. Appellant’s App. at 71. Parrott filed an objection and

      argued,


              2. IC 35-38-4-2(6) references appeals from interlocutory orders
              while IC 35-38-4-2(5) is the specific appeal authority for an
              appeal from an order granting suppression. The specific controls
              the general.

              3. The controlling code section requires that the order effectively
              preclude further prosecution on the affected counts which implies


      Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 5 of 17
                a dismissal. The proper procedure is to dismiss the affected
                counts then take a direct appeal and stay the remaining counts.


       Id. at 73. Before the court ruled on its motion to stay, the State filed a notice of

       appeal indicating that it was appealing from a final judgment. Indiana

       Appellate Rule 2(H)(5) provides that a judgment is a final judgment if “it is

       otherwise deemed final by law.”


[9]    After the State filed its appellant’s brief, Parrott filed a motion to dismiss the

       appeal, arguing that this Court lacks jurisdiction to consider the appeal because

       the State did not dismiss any charges.2 The State filed a response, asserting that

       the suppression order is a judgment deemed final by Indiana Code Section 35-

       38-4-2(5). The appeal was fully briefed in due course.


                                         Discussion and Decision

           Section 1 – The State was not required to dismiss the charges
                  against Parrott before filing a notice of appeal.
[10]   We first address Parrott’s motion to dismiss this appeal. “The State’s right to

       appeal in a criminal matter is statutory, and the State cannot appeal unless

       given that statutory authorization by the legislature. The State’s statutory right

       of appeal is in contravention of common law principles and is therefore strictly

       construed.” State v. Coleman, 971 N.E.2d 209, 211 (Ind. Ct. App. 2012)




       2
        Although Parrott does not specifically say so in his motion to dismiss, we presume that his assertion of lack
       of jurisdiction is based on the premise that the suppression order is not a final judgment because the State did
       not dismiss the charges.

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017                         Page 6 of 17
       (citation omitted). That said, we may not read into a statute a restriction that

       the legislature did not include. Williams v. State, 952 N.E.2d 317, 319 (Ind. Ct.

       App. 2011).


[11]   Parrott has not cited any statute, rule, or caselaw that unequivocally requires

       the State to dismiss charges before it may appeal from an unfavorable

       suppression order. Indeed, Indiana Code Section 35-38-4-2(5) itself does not

       require dismissal as a precondition to appeal. In State v. Pease,             (Ind. Ct.

       App. 1988), another panel of this Court noted that since the enactment of

       Indiana Code Section 35-38-4-2(5),

               this court has construed I.C. 35-38-4-2(5) as permitting appeals in
               those cases where the suppression order has the effect of
               precluding further prosecution by the State. Such suppression
               orders, when interlocutory, are “tantamount to a dismissal of the action
               and therefore appealable as a final judgment under subsection (5) of the
               statute.” State v. Williams (1983), Ind. App., 445 N.E.2d 582, 584.
               See, e.g. State v. Watkins (1987), Ind. App., 515 N.E.2d 1152, n.1;
               State v. Blake (1984), Ind. App., 468 N.E.2d 548, 550.

               The State charged Pease with class D felony possession of a
               schedule II controlled substance (amphetamine). The State
               acquired its evidence of this offense as a consequence of the
               illegal search alleged in Pease’s motion to suppress. When the
               trial court ordered that the fruits of the search of Pease’s person
               were to be excluded, the State lost its ability to prosecute and
               dismissed the information the same day.

               The order granting Pease’s motion to suppress has become a final order
               by virtue of the action’s dismissal. I.C. 35-38-4-2(5) authorizes
               appeals from orders suppressing evidence when the effect is to
               preclude further prosecution. We are unaware of any principled

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017      Page 7 of 17
               basis for distinguishing between final orders and interlocutory
               orders deemed final when both have the effect of precluding
               further prosecution.


       Id. at 1209 (emphases added).


[12]   Notwithstanding any apparent inconsistency between the two italicized

       sentences, the plain meaning of Indiana Code Section 35-38-4-2(5) is clear: if

       the ultimate effect of an order granting a motion to suppress is to preclude

       further prosecution of one or more counts of an information or indictment, the

       State may appeal that order as a final judgment. Dismissal of the charges is not

       required. At a minimum, the ultimate effect of the trial court’s suppression

       order in this case is to preclude further prosecution of the drug-related counts

       against Parrott. The State was not required to dismiss those counts before filing

       a notice of appeal. Therefore, we deny Parrott’s motion to dismiss this appeal

       by separate order issued contemporaneously with this opinion.


        Section 2 – The warrantless search of Parrott’s person did not
          violate the Fourth Amendment to the U.S. Constitution.
[13]   We now address the merits of the State’s appeal. “At the suppression hearing,

       the State had the burden of demonstrating the constitutionality of the measures

       it used to seize evidence as the result of a warrantless search.” State v. Holley,

       899 N.E.2d 31, 33 (Ind. Ct. App. 2008), trans. denied (2009). Thus, the State

       appeals from a negative judgment and must show that the trial court’s

       suppression ruling was contrary to law. Id. We “will reverse a negative

       judgment only when the evidence is without conflict and all reasonable

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 8 of 17
       inferences lead to a conclusion opposite that of the trial court. We will not

       reweigh the evidence or judge witness credibility.” Id. (citation omitted).


[14]   The Fourth Amendment to the U.S. Constitution provides,

               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.


       The fundamental purpose of the Fourth Amendment is to protect the legitimate

       expectations of privacy that citizens possess in their persons, homes, and

       belongings. Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct. App. 2016). This

       protection has been extended to the states through the Fourteenth Amendment.

       Id. “In general, the Fourth Amendment prohibits searches and seizures

       conducted without a warrant that is supported by probable cause.” Id.


               As a deterrent mechanism, evidence obtained without a warrant
               is not admissible in a prosecution unless the search or seizure
               falls into one of the well-delineated exceptions to the warrant
               requirement. Where a search or seizure is conducted without a
               warrant, the State bears the burden to prove that an exception to
               the warrant requirement existed at the time of the search or
               seizure.


       Id. (citations and quotation marks omitted).


[15]   The State essentially concedes that the only basis for upholding the

       constitutionality of Officer Clark’s warrantless search of Parrott under the

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 9 of 17
       Fourth Amendment would be as a search incident to a lawful arrest. See United

       States v. Robinson, 414 U.S. 218, 235 (1973) (“A custodial arrest of a suspect

       based on probable cause is a reasonable intrusion under the Fourth

       Amendment; that intrusion being lawful, a search incident to the arrest requires

       no additional justification. It is the fact of the lawful arrest which establishes

       the authority to search ….”).3

                A suspect is considered under arrest when a police officer
                interrupts the freedom of the accused and restricts his liberty of
                movement. The fact that a police officer does not inform a
                defendant he is under arrest prior to a search does not invalidate
                the search incident to arrest exception as long as there is probable
                cause to make an arrest.


       Fentress v. State, 863 N.E.2d 420, 423 (Ind. Ct. App. 2007) (citation, quotation

       marks, and brackets omitted). The State does not try to pinpoint when Parrott

       was under arrest, but for purposes of this opinion, we will assume, without

       deciding, that he was under arrest when he was handcuffed by Officer Clark.


[16]   “An officer may arrest a person without a warrant if the officer has ‘probable

       cause to believe the person is committing or attempting to commit a

       misdemeanor in the officer’s presence ….’” Haley v. State, 696 N.E.2d 98, 104

       (Ind. Ct. App. 1998) (quoting Ind. Code § 35-33-1-1(a)(4)), trans. denied. A




       3
        The rationale for the rule allowing warrantless searches incident to arrest is “the need to seize weapons and
       other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the
       destruction of evidence of the crime[.]” Preston v. United States, 376 U.S. 364, 367 (1964).

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017                        Page 10 of 17
       person who knowingly possesses pure or adulterated marijuana commits

       possession of marijuana, a class B misdemeanor. Ind. Code § 35-48-4-11(a).

       “Possession can be either actual or constructive.” Britt v. State, 810 N.E.2d

       1077, 1082 (Ind. Ct. App. 2004). “Actual possession occurs when the

       defendant has direct physical control over the item, while constructive

       possession involves the intent and capability to maintain control over the item

       even though actual physical control is absent.” Id.


[17]   “Probable cause to arrest exists where the facts and circumstances within the

       knowledge of an officer 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 committed it.” State v. Stevens, 33 N.E.3d 1200, 1204-05 (Ind. Ct.

       App. 2015), trans. denied.


               The amount of evidence necessary to meet the probable cause
               requirement is determined on a case-by-case basis. It is grounded
               in notions of common sense, not mathematical precisions. As
               such, the probable cause standard is a practical, nontechnical
               conception that deals with the factual and practical
               considerations of everyday life on which reasonable and prudent
               men, not legal technicians, act.


       White v. State, 24 N.E.3d 535, 539 (Ind. Ct. App. 2015) (citations and quotation

       marks omitted), trans. denied. “The level of proof necessary to establish

       probable cause is less than that necessary to establish guilt beyond a reasonable

       doubt. Probable cause, in fact, requires only a fair probability of criminal




       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 11 of 17
       activity, not a prima facie showing.” Jellison v. State, 656 N.E.2d 532, 534 (Ind.

       Ct. App. 1995) (citation omitted).


[18]   “[A]s 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.” Moffitt v. State, , 247 (Ind. Ct. App. 2004), trans.

       denied. “A police officer’s subjective belief as to whether he has probable cause

       to arrest a defendant has no legal effect. Instead, the police officer’s actual

       knowledge of objective facts and circumstances is determinative.” VanPelt v.

       State, 760 N.E.2d 218, 223 (Ind. Ct. App. 2001) (citation omitted), trans. denied

       (2002). “The ultimate determination of probable cause is reviewed de novo.”

       Bell v. State, 13 N.E.3d 543, 545 (Ind. Ct. App. 2014), trans. denied.


[19]   The State argues that Officer Clark had probable cause to arrest Parrott “based

       on the odor of raw marijuana emanating from the vehicle of which he was the

       driver and sole occupant.” Appellant’s Br. at 10. Over the years, this Court has

       decided numerous cases involving the odor of marijuana as the basis for a

       warrantless search of a person or vehicle. See, e.g., K.K. v. State, 40 N.E.3d 488,

       495 (Ind. Ct. App. 2015) (finding that officer had probable cause to arrest and

       conduct warrantless search of vehicle’s backseat passenger based on “strong

       odor of burnt marijuana coming from inside the vehicle” and passenger’s

       “furtive movements” and nervousness); Bell, 13 N.E.3d at 546 (finding that

       officer had probable cause to arrest and conduct warrantless search of vehicle’s

       passenger based on “strong odor of raw marijuana coming from both the

       vehicle and Bell’s person.”); Edmond v. State, 951 N.E.2d 585, 591-92 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 12 of 17
       App. 2011) (finding that officer had probable cause to arrest and conduct

       warrantless search of vehicle’s sole occupant based on smell of burnt marijuana

       coming from vehicle and occupant’s breath); Meek v. State, 950 N.E.2d 816, 820

       (Ind. Ct. App. 2011) (finding that officer had probable cause to conduct

       warrantless search of vehicle’s driver, where officers smelled raw marijuana

       emanating from vehicle, driver admitted to possessing weapon after initially

       denying it, driver “stated that he had previously smoked marijuana that day[,]”

       and officers found no marijuana in vehicle or on passenger’s person), trans.

       denied; Marcum v. State, 843 N.E.2d 546, 548 (Ind. Ct. App. 2006) (finding that

       officers had probable cause to conduct warrantless search of vehicle where one

       officer smelled “strong odor of raw marijuana emanating from the vehicle” and

       another officer smelled burnt marijuana); Sebastian v. State, 726 N.E.2d 827, 831

       (Ind. Ct. App. 2000) (finding that officers had probable cause to arrest and

       conduct warrantless search of driver and vehicle based on erratic driving and

       “distinctive odor of burnt marijuana emanating from the passenger

       compartment.”), trans. denied.


[20]   None of these cases is factually on all fours with this case, but they offer some

       guidance in determining whether probable cause existed to arrest Parrott and

       conduct a warrantless search of his person incident to that arrest. In Bell, we

       noted that “the odor of raw marijuana indicates that it has not been smoked

       and therefore still may be in the defendant’s possession.” 13 N.E.3d at 546.

       According to Officer Clark, the odor of raw marijuana in Parrott’s vehicle was

       “pretty strong” and “stronger than it would be” coming from a person. Tr. at


       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 13 of 17
       11, 24. And in K.K., we explained that whether a defendant is alone in a

       vehicle “and whether the odor of marijuana—burnt or raw—is also present on

       an individual or his breath are factors to be considered in the analysis, not

       bright-line prerequisites necessary for probable cause to exist.” 40 N.E.3d at

       494.


[21]   Although Parrott did not drive erratically or act furtively like the defendants in

       Sebastian and K.K., and although he did not smell of marijuana or admit to

       smoking marijuana like the defendants in Edmond, Bell, and Meek, we conclude

       that the facts and circumstances within Officer Clark’s knowledge were

       sufficient to warrant a reasonable belief that Parrott possessed raw marijuana in

       his vehicle. Parrott was the sole occupant of the vehicle, and the odor of raw

       marijuana emanating from the vehicle was “pretty strong,” from which one

       could reasonably infer that raw marijuana was present in the vehicle and that

       Parrott had the intent and capability to maintain control over it. Therefore, the

       officer had probable cause to arrest Parrott for marijuana possession and

       conduct a warrantless search of his person incident to that arrest. See Butler v.

       United States, 102 A.3d 736, 742 (D.C. 2014) (finding that officer had probable

       cause to arrest and conduct warrantless search of defendant based on strong

       odor of “fresh” marijuana emanating from vehicle because (1) “appellant was

       the sole occupant of the vehicle, thus making it more likely that any marijuana

       present was either on his person or within his exclusive control” and (2) smell

       of fresh marijuana “makes it more likely that appellant was presently in




       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 14 of 17
       possession of marijuana.”).4 Parrott cites no authority for his suggestion that

       the officer was required to search the vehicle before he could search Parrott’s

       person.5 In sum, the search did not violate the Fourth Amendment.


           Section 3 – The warrantless search of Parrott’s person did not
             violate Article 1, Section 11 of the Indiana Constitution.
[22]   Article 1, Section 11 of the Indiana Constitution 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.


       “This Section has long served to protect Hoosiers from unreasonable searches

       and seizures.” Garcia v. State, 47 N.E.3d 1196, 1199 (Ind. 2016). “While

       almost identical to the wording in the search and seizure clause of the federal

       constitution, Indiana’s search and seizure clause is independently interpreted

       and applied.” Baniaga v. State, 891 N.E.2d 615, 618 (Ind. Ct. App. 2008).




       4
        Because the Butler court contrasted fresh and burnt marijuana, 102 A.3d at 741 n.10, we presume that fresh
       marijuana is the same as raw marijuana.
       5
         Parrott argues, “[I]f the odor of raw marijuana coming from the passenger compartment of a vehicle,
       standing alone, without searching the vehicle or any other circumstances being present, is enough to arrest
       the defendant for possession of marijuana, then it does not matter if marijuana were ever found.” Appellee’s
       Br. at 14. We emphasize that “[p]robable cause is only a probability or substantial chance of criminal
       activity, not a certainty that a crime was committed.” Keeylen v. State, 14 N.E.3d 865, 871 (Ind. Ct. App.
       2014) (citation and quotation marks omitted), clarified on reh’g, 21 N.E.3d 840, trans. denied (2015). Parrott
       also raises a “slippery slope” argument based on hypothetical facts not present in this case. Appellee’s Br. at
       15.

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017                       Page 15 of 17
       “Reasonableness of a search under the Indiana Constitution ‘turns on an

       evaluation of the reasonableness of the police conduct under the totality of the

       circumstances.’” Garcia, 47 N.E.3d at 1199 (quoting Litchfield v. State, 824

       N.E.2d 356, 361 (Ind. 2005)) (emphasis in Garcia). “In considering the totality

       of the circumstances, the perspectives of both the investigating officer and

       subject of the search are considered.” Id. “Three factors must be balanced: ‘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.

       (quoting Litchfield, 824 N.E.2d at 361). “The burden is on the State to show

       that under the totality of the circumstances, the intrusion was reasonable.”

       Baniaga, 891 N.E.2d at 618.


[23]   The State first argues, “Because there was probable cause that a violation had

       occurred, [i.e., that Parrott possessed marijuana], the degree of suspicion or

       knowledge weighs in favor of the State.” Appellant’s Br. at 13. We agree. As

       for the degree of intrusion, the State acknowledges that it is “not insignificant”

       but asserts that “[t]he trial court’s ruling that the officers could search the

       vehicle meant that the intrusion on [Parrott’s] ordinary activities involved in a

       search of [his] pockets was only modestly greater than that which [he] would

       have experienced anyway from the vehicle search.” Id. at 14. Again, we agree.

       And as for the extent of law enforcement needs, the State relies on our

       pronouncement in Edmond that “[a] search incident to arrest serves important

       purposes, such as ensuring that the arrestee is unarmed, preventing the arrestee

       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 16 of 17
       from bringing contraband into jail, and preventing the destruction of evidence.”

       951 N.E.2d at 592. Balancing these three factors, we conclude that the State

       has met its burden to show that the warrantless search of Parrott’s person was

       reasonable under the totality of the circumstances and therefore did not violate

       Article 1, Section 11 of the Indiana Constitution. Consequently, we reverse the

       trial court’s suppression order and remand for further proceedings consistent

       with this opinion.


[24]   Reversed and remanded.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1606-CR-1271 | February 6, 2017   Page 17 of 17
