MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                         Dec 07 2018, 10:36 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
the defense of res judicata, collateral                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Frederick Vaiana                                         Stephen R. Creason
Voyles, Vaiana, Lukemeyer, Baldwin                       Chief Counsel
  & Webb
                                                         Chandra K. Hein
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Mitzs,                                       December 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1048
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable James Snyder,
Appellee-Plaintiff                                       Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1602-F2-7409



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018                Page 1 of 11
                                          Case Summary
[1]   Following a traffic stop, Christopher Mitzs was convicted of possession of

      cocaine. He now appeals, arguing that the traffic stop violated the Fourth

      Amendment to the U.S. Constitution. We affirm.



                            Facts and Procedural History
[2]   On February 21, 2016, Indianapolis Metropolitan Police Department Officers

      Jered Hidlebaugh and Zachary Miller were patrolling the city’s north side near

      34th and Meridian Streets when they saw a blue Dodge Magnum parked in a

      no-parking zone. Officers Hidlebaugh and Miller approached the car and spoke

      with the passenger—no driver was in the car. The officers noticed a strong odor

      of marijuana “like somebody had been smoking marijuana in the car.” Tr. Vol.

      II p. 100. They requested backup, and Officers Christopher Cooper and

      Michael Sojka arrived to help search the car and passenger. The officers did not

      find any marijuana, so they left the car where it was parked. Officers

      Hidlebaugh and Miller notified the other members of the north-district team

      that there was a blue Dodge Magnum parked at 34th and Meridian Streets with

      no driver, and that “if we see it rolling, and we can get an infraction on it, it

      would be a good thing to stop, and try to identify the driver.” Id. at 32.


[3]   Twenty minutes later, Officer Miller saw the car moving north on Salem Street.

      Officer Miller observed the car “fail to signal two hundred feet prior to

      turn[ing]” onto 35th Street and fail to “come to a complete stop at the stop


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018   Page 2 of 11
sign” at the intersection of 35th and Salem Streets. Id. at 115-16. Officer Miller

radioed to other officers that he had seen the blue Dodge Magnum commit two

traffic infractions and intended to pull the car over. Officer Miller maneuvered

his patrol car to follow the Dodge Magnum and saw it turn left on Meridian

Street into the opposing lane of traffic—i.e., “driving left of center.” Id. at 118.

Before Officer Miller could activate his patrol car’s lights, another officer

initiated a traffic stop and pulled the Dodge Magnum over. As Officer Miller

and Officer Richard Faulkner (who made the traffic stop) approached the

driver’s side door, there was a “strong smell of marijuana coming from the

vehicle.” Id. at 119. Once Officer Miller “noticed the smell of marijuana” he

asked the driver, later identified as Mitzs, to “step out of the vehicle” and

“placed him in handcuffs.” Id. at 120. The same person (who was searched

just twenty minutes earlier) was in the passenger seat. Id. at 145-46. After

Mitzs was handcuffed, Officer Miller did a pat-down to “make sure [Mitzs]

ha[d] no weapons on him.” Id. at 121. As soon as Officer Miller began to pat

down Mitzs, Mitzs “immediately reached for his . . . right front pocket.” Id.

Officer Miller told Mitzs not to do that again, but Mitzs “reached again” for his

right front pocket. Id. at 122. Officer Miller thought that Mitzs could have

been reaching for a weapon, so he restrained Mitzs’s arm and Officer Cooper

searched Mitzs’s right front pocket. In the pocket, Officer Cooper found a

“digital scale[] with a white powdery substance on it,” a “baggie with more

white powdery substance” (later determined to be 10.42 grams of cocaine), and

“several other empty baggies.” Id. at 123. Officer Cooper also searched the car


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018   Page 3 of 11
      and found a revolver in “the center console.” Id. at 170. Officer Miller later

      discovered that Mitzs had a permit for the gun. Id. at 123.


[4]   The State charged Mitzs with Level 2 felony dealing in cocaine and Level 3

      felony possession of cocaine (elevated because of the gun).1 Mitzs filed a

      motion to suppress “any evidence obtained from the stop” of his car.

      Appellant’s App. Vol. II pp. 78-80. Mitzs claimed violations of both the Fourth

      Amendment to the U.S. Constitution and Article 1, Section 11 of the Indiana

      Constitution. Following a hearing, the trial court denied Mitzs’s motion to

      suppress and found that Officer Miller “observed Mitzs commit the traffic

      infraction of failure to stop,” and that the odor of marijuana “gave officers

      probable cause to search both Mitzs and his vehicle further for contraband.” Id.

      at 96. A few weeks later, during the jury trial, the defense objected when the

      State presented evidence obtained during the traffic stop. The trial court

      admitted the evidence over the defense’s objections and stated that “there was a

      valid traffic stop, that being, the failure to stop at a stop sign” and that it also

      believed there was a second traffic infraction—that Mitzs “was left of center”

      when he turned onto Meridian Street. Tr. Vol. II p. 157. Ultimately, the jury

      found Mitzs not guilty of dealing in cocaine but guilty of possession of cocaine.


[5]   Mitzs now appeals.




      1
       Mitzs was also charged with Class A misdemeanor operating a motor vehicle while his driving privileges
      were suspended, but the State dismissed that charge before trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018              Page 4 of 11
                                Discussion and Decision
[6]   Mitzs contends that the traffic stop and subsequent pat-down violated his

      federal constitutional rights and that the trial court erred when it admitted into

      evidence the items found during the stop. We review de novo a ruling on the

      constitutionality of a search or seizure, but we give deference to a trial court’s

      determination of the facts, which will not be overturned unless clearly

      erroneous. Westmoreland v. State, 965 N.E.2d 163, 165 (Ind. Ct. App. 2012).


                                             I. Traffic Stop
[7]   Mitzs contends that the traffic stop violated the protections afforded by the

      Fourth Amendment to the U.S. Constitution. The Fourth Amendment

      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, the persons or
              things to be seized.


      U.S. Const. amend. IV. Our jurisprudence reflects two types of police

      encounters that implicate Fourth Amendment protection: the investigatory stop

      and the custodial stop. State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014). An

      investigatory stop is generally brief in duration and is constitutionally

      permissible so long as the officer “has a reasonable suspicion supported by

      articulable facts that criminal activity may be afoot.” Id. (quotations omitted).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018   Page 5 of 11
      If an officer observes a driver commit a traffic violation, he has probable

      cause—and thus also the lesser included reasonable suspicion—to stop that

      driver. Id. As long as there is an observable traffic violation, “the stop is valid

      whether or not the police officer would have otherwise made the stop but for

      ulterior suspicions or motives.” Doctor v. State, 57 N.E.3d 846, 853 (Ind. Ct.

      App. 2016) (quoting Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014)).


[8]   Mitzs argues that the bases for the traffic stop—failure stop at a stop sign and

      driving left of center—were pretextual. A pretextual traffic stop is a stop that

      police instigate under the guise of enforcing the traffic code what they would

      like to do for other reasons. Id. Mitzs alleges that officers “wanted to stop” the

      car so they “could identify the driver,” and since Officer Miller was the only

      one who saw the traffic infractions, “the infractions may very well not have

      happened.” Appellant’s Br. pp. 11-12. The trial court heard evidence that

      Mitzs committed traffic violations that would permit a lawful traffic stop.

      Officer Miller testified that Mitzs did not come to a complete stop at a stop sign

      and was driving left of center. The gist of Mitzs’s argument is that Officer

      Miller was not credible. Mitzs’s suggestion that Officer Miller did not actually

      witness any traffic infractions is a request to judge witness credibility, which we

      may not do. See Leonard v. State, 80 N.E.3d 878, 882 (Ind. 2017). Because the

      trial court believed Officer Miller’s testimony that Mitzs did not stop at a stop




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018   Page 6 of 11
       sign and was driving left of center, thus committing two traffic infractions, we

       find that reasonable suspicion existed for the traffic stop.2


                                                   II. Pat-down
[9]    Mitzs next contends that even if the traffic stop was valid, the pat-down

       violated the protections afforded by the Fourth Amendment. Appellant’s Br.

       pp. 12-14.


[10]   In general, the Fourth Amendment prohibits searches and seizures conducted

       without a warrant that is supported by probable cause. State v. Parrott, 69

       N.E.3d 535, 541 (Ind. Ct. App. 2017), trans. denied. Accordingly, a warrantless

       search or seizure is per se unreasonable, and the State bears the burden to show

       that one of the well-delineated exceptions to the warrant requirement applies.

       M.O. v. State, 63 N.E.3d 329, 331 (Ind. 2016). A search incident to lawful arrest

       is an exception to the warrant requirement under the Fourth Amendment. K.K.

       v. State, 40 N.E.3d 488, 491 (Ind. Ct. App. 2015). 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.

       Parrott, 69 N.E.3d at 542. A 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




       2
         Mitzs also challenges the traffic stop under Article 1, Section 11 of the Indiana Constitution. Although the
       standards are different, his argument is the same: that Officer Miller was not credible. Because the trial court
       believed Officer Miller, his challenge under the Indiana Constitution fails.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018                    Page 7 of 11
       constructive. Parrott, 69 N.E.3d at 542. 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.


[11]   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. Id. As long as probable cause exists to make an

       arrest, the fact that the suspect was not formally placed under arrest at the time

       of the search incident thereto will not invalidate the search. Id. A police

       officer’s subjective belief as to whether he has probable cause to arrest a

       defendant has no legal effect. K.K., 40 N.E.3d at 491. The ultimate

       determination of probable cause is reviewed de novo. Id.


[12]   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 car. See, e.g., id.

       (finding that officer had probable cause to arrest and conduct a search incident

       to arrest of car’s backseat passenger based on “strong odor of burnt marijuana

       emanating” from the car and passenger’s “furtive movements” and

       nervousness); Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014), trans.

       denied; Edmond v. State, 951 N.E.2d 585, 591-91 (Ind. Ct. App. 2011) (finding

       that officer had probable cause to arrest and conduct a search incident to arrest

       of car’s sole occupant based on smell of burnt marijuana coming from car and

       occupant’s breath); Meek v. State, 950 N.E.2d 816, 820 (Ind. Ct. App. 2011)

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018   Page 8 of 11
       (finding that officer had probable cause to conduct warrantless search of car’s

       driver, where officers smelled raw marijuana emanating from car, 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 car 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 car where one officer smelled “strong odor of raw

       marijuana emanating” from the car 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 a search incident

       to arrest of driver and car based on erratic driving and “distinctive odor of burnt

       marijuana emanating from the passenger compartment.”), trans. denied.


[13]   Mitzs argues that the logic of Parrott and Bell do not support the pat-down in

       this case. See Appellant’s Br. p. 13. In Parrott, the defendant was the sole

       occupant of the car, and the odor of raw marijuana emanating from the car was

       “pretty strong,” from which one could reasonably infer that raw marijuana was

       present in the car and that the defendant had the intent and capability to

       maintain control over it. 69 N.E.3d at 544. Therefore, we concluded that the

       officer had probable cause to arrest the defendant for marijuana possession and

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

       the defendant was a passenger in a car, and the officer smelled raw marijuana

       coming from the car and from the defendant’s person. 13 N.E.3d at 544. We

       determined that “like the smell of burnt marijuana, the smell of raw marijuana


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018   Page 9 of 11
       on a person is sufficient to provide probable cause that the person possesses

       marijuana.” Id. at 546. As such, we concluded that the officer had probable

       cause to arrest the defendant and conduct a search incident to arrest. Id.


[14]   Mitzs highlights that unlike the defendant in Parrott, he was not the sole

       occupant of the car, and that unlike the defendant in Bell, there was no evidence

       that there was an odor of marijuana coming from his person, and therefore the

       officers did not have probable cause to search his person. But these are not

       strict requirements. As Parrott explains:


               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.


       69 N.E.3d at 542-43 (quoting White v. State, 24 N.E.3d 535, 539 (Ind. Ct. App.

       2015), trans. denied). Put another way, “‘whether a defendant is alone’” in a car

       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 the

       bright-line prerequisites necessary for probable cause to exist.’” Id. at 544

       (quoting K.K., 40 N.E.3d at 494).


[15]   Here, the trial court heard evidence that would permit a search incident to

       arrest for possession of marijuana. First, Officer Miller testified that when he

       approached Mitzs’s car the second time, he noticed a “strong smell of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018   Page 10 of 11
       marijuana” coming from the car. Tr. Vol. II p. 119. To refute this evidence,

       Mitzs again argues that Officer Miller was not credible. Mitzs’s suggestion that

       Officer Miller is not credible because he was the only one who testified about

       noticing a “strong smell of marijuana” and that ultimately, no marijuana was

       ever found, is, again, a request to judge witness credibility, which we may not

       do. See Leonard, 80 N.E.3d at 882. Second, Officer Hidlebaugh testified that

       only twenty minutes before stopping Mitzs, both the car and passenger were

       searched after noticing an odor of marijuana, but the officers did not find any

       marijuana. See Tr. Vol. II pp. 32, 88, 100. Therefore, when officers detected

       the “strong smell of marijuana” the second time, it would be reasonable to infer

       that Mitzs possessed marijuana since he was the only person in the car who had

       not been searched. Id. at 119. Applying Parrott’s instruction to determine

       probable cause from the perspective of a “reasonable and prudent” person on a

       case-by-case basis, grounded in “common-sense,” because Mitzs was the only

       unsearched person in the car and the odor of marijuana coming from the car

       was “strong,” we find that the officers had probable cause to arrest Mitzs for

       possession of marijuana and conduct a warrantless search of his person incident

       to that arrest.3 Accordingly, there was no Fourth Amendment violation.


[16]   Affirmed.


       Riley, J., and Kirsch, J., concur.



       3
         Mitzs also challenges the pat-down under Article 1, Section 11 of the Indiana Constitution. As with the
       traffic stop, his argument hinges on the credibility of Officer Miller and therefore his challenge under the
       Indiana Constitution fails.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018                  Page 11 of 11
