Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                       Mar 25 2013, 8:22 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

TIMOTHY J. O’CONNOR                                GREGORY F. ZOELLER
O’Connor & Auersch                                 Attorney General of Indiana
Indianapolis, Indiana
                                                   JAMES B. MARTIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

AARON BROWN,                                       )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 49A02-1207-CR-546
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Jose D. Salinas, Judge
                      The Honorable John S. Alt, Master Commissioner
                            Cause No. 49G14-1011-FD-88835


                                         March 25, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
         Aaron Brown appeals his convictions of Class D felony possession of marijuana1 and

Class A misdemeanor driving with a suspended license.2 He argues the trial court abused its

discretion when it admitted evidence obtained in violation of his rights under the Fourth

Amendment to the United States Constitution and Article 1, Section 11 of the Indiana

Constitution. We affirm.

                              FACTS AND PROCEDURAL HISTORY

         On November 24, 2010, at approximately 5:00 p.m., Officer Dennis Lowe of the

Indianapolis Metropolitan Police Department saw a vehicle with front end damage pull into a

parking lot. There was another damaged vehicle in a nearby intersection. As Officer Lowe

approached the vehicle in the intersection, he saw Brown exit the driver’s side of the vehicle

in the parking lot. After determining no one was hurt, Officer Lowe asked Brown and the

driver of the vehicle in the intersection for identification.

         Brown told Officer Lowe he left his driver’s license at home, but he had the

registration for his vehicle. Officer Lowe ran a check on Brown’s name and date of birth,

and discovered Brown’s license was suspended. Officer Lowe arrested Brown for driving

with a suspended license. After he placed Brown under arrest, Brown told Officer Lowe he

had marijuana in his pocket, and Officer Lowe retreived it.

         The State charged Brown with Class A misdemeanor driving while suspended, Class

A misdemeanor possession of marijuana, and Class D felony possession of marijuana based


1
    Ind. Code § 9-24-19-2.
2
    Ind. Code § 35-48-4-11.

                                               2
on Brown’s prior conviction of Class A misdemeanor possession of marijuana. On

November 18, 2011, Brown filed a motion to suppress the evidence against him. After a

hearing on January 10, 2012, the trial court denied Brown’s motion to suppress. On June 18,

the court held a bench trial and convicted Brown of all counts.

                             DISCUSSION AND DECISION

       Brown did not seek interlocutory review of the denial of his motion to suppress but

instead appeals following trial. This issue is therefore “appropriately framed as whether the

trial court abused its discretion by admitting the evidence at trial.” Lundquist v. State, 834

N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Our 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

conflicting evidence most favorable to the trial court’s ruling. Id. However, we must also

consider the uncontested evidence favorable to the defendant. Id.

       Brown argues the search incident to his arrest violated the Fourth Amendment to the

United States Constitution and Article 1, Section 11 of the Indiana Constitution. Although

the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution contain textually

similar language, each must be separately analyzed. State v. Washington, 898 N.E.2d 1200,

1205-06 (Ind. 2008), reh’g denied.

       1.     Fourth Amendment

       Brown argues Officer Lowe did not have probable cause to arrest him, and therefore

the trial court abused its discretion when it admitted his driving record, statement, and the

                                              3
marijuana found in his car. We disagree.

       The Fourth Amendment to the United States 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.

As an exception to the warrant requirement of the Fourth Amendment, “a police officer may

conduct a warrantless search if the search is incident to a lawful arrest.” Edwards v. State,

759 N.E.2d 626, 629 (Ind. 2001). An arrest is lawful without a warrant when an officer has

probable cause to support the arrest. Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003).

Probable cause exists when the officer has knowledge of facts and circumstances that would

warrant a person of reasonable caution to believe the suspect committed a criminal act. Id.

       When Officer Lowe arrived on the scene of the accident, he saw Brown driving his

vehicle out of the intersection and into a nearby parking lot. Officer Lowe testified he saw

Brown exit the driver’s side of the car, and asked for Brown’s driver’s license. Brown

indicated he did not have his driver’s license with him, and Officer Lowe used Brown’s name

and date of birth to determine the status of Brown’s driver’s license. Officer Lowe

discovered Brown’s driver’s license was suspended, and placed Brown under arrest.

       Brown contends he was not driving the car, and thus Officer Lowe did not have

probable cause to ask for his license. Brown’s argument there was no probable cause to

arrest him is essentially an invitation for us to reweigh the evidence. We cannot. See

Lundquist, 834 N.E.2d at 1067 (appellate court does not reweigh the evidence or judge the

                                             4
credibility of witnesses). Therefore, the trial court did not abuse its discretion when it

admitted the evidence Brown’s license was suspended.

       Brown also argues the marijuana found in his pocket was improperly admitted. He

concedes the marijuana found in his pocket was found incident to his arrest. As his arrest

was lawful, the marijuana seized pursuant to that arrest was properly admitted. See

Culpepper v. State, 662 N.E.2d 670, 675 (Ind. Ct. App. 1996) (“Incident to a lawful arrest, an

arresting officer may conduct a warrantless search of the arrestee’s person and the area

within his or her immediate control.”), reh’g denied, trans. denied.

       2.     Article 1, Section 11

       The language of Article 1, Section 11is virtually identical to its Fourth Amendment

counterpart. Section 11 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.

       In resolving challenges involving this section, we consider the circumstances

presented in each case to determine whether the police behavior was reasonable. Saffold v.

State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010). The State has the burden of showing the

intrusion was reasonable under the totality of the circumstances. Id. In determining

reasonableness under Section 11, we recognize Indiana citizens are concerned not only with

personal privacy but also with safety, security, and protection from crime. Id. When

government intrusion is challenged under Section 11, therefore, the determination of

                                              5
reasonableness under the totality of circumstances may include consideration of police

officer safety. Id.

        As stated above, Officer Lowe testified Brown was driving one of the vehicles

involved in an automobile accident. Brown did not have his driver’s license, but he

voluntarily gave Officer Lowe his name and date of birth. Upon learning Brown’s license

was suspended, Officer Lowe arrested Brown. During the search incident to that arrest,

Officer Lowe retreived marijuana from Brown’s pocket. Based on the totality of the

circumstances, Officer Lowe had probable cause to arrest Brown based on the Officer’s

belief that Brown committed a crime by driving with a suspended license. Brown’s argument

to the contrary is an invitation to reweigh the evidence, which we cannot do. See Lundquist

v. State, 834 N.E.2d at 1067 (appellate court does not reweigh the evidence or judge the

credibility of witnesses).3

                                           CONCLUSION

        Because Officer Lowe had probable cause to believe Brown was driving on a

suspended license, Officer Lowe’s arrest of Brown was lawful, and the trial court did not

abuse its discretion when it admitted the evidence obtained incident to that arrest.

Accordingly, we affirm.

        Affirmed.

ROBB, C.J., and PYLE, J., concur.


3
 Brown’s trial was a bench trial. In bench trials, we assume the judge “is aware of and knows the law, and
considers only evidence property before the judge in reaching a decision.” Dumas v. State, 803 N.E.2d 1113,
1121 (Ind. 2004).
                                                    6
