MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Jan 16 2019, 7:20 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         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
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General

                                                         Ian McLean
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sirajuddin Abdul Qadir,                                  January 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2035
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable Brant J. Parry,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         34D02-1805-F1-120



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2035 | January 16, 2019             Page 1 of 8
                                                  Case Summary
[1]   Sirajuddin Abdul Qadir appeals his conviction for attempted murder, a level 1

      felony, following a bench trial. Qadir asserts that the trial court committed

      fundamental error in admitting evidence seized after what he claims was an

      unconstitutional traffic stop. Because Qadir has failed to establish any error, let

      alone fundamental error, we affirm.


                                    Facts and Procedural History1
[2]   The facts most favorable to Qadir’s conviction are that Howard County and

      federal law enforcement authorities were investigating drug activity involving

      Reggie Balentine in early 2018. Balentine’s associates included Michael

      O’Bannon in Kokomo and Pierre Riley in Atlanta, Georgia. In February 2018,

      federal authorities began tapping Balentine’s and Riley’s phones. Around that

      time, a confidential police informant involved in the investigation expressed

      concern for his safety. Police recorded phone conversations regarding a

      murder-for-hire plot involving Balentine, O’Bannon, and Riley.


[3]   On March 2, 2018, Kokomo Police Department Detective Derek Root was

      informed that O’Bannon would be at Balentine’s house. Detective Root

      surveilled the residence and saw O’Bannon drive away in a Chevy Impala. The




      1
        Indiana Appellate Rule 46(A)(6) provides that an appellant’s statement of facts “shall describe the facts
      relevant to the issues presented for review” and “shall be stated in accordance with the standard of review
      appropriate to the judgment or order being appealed.” Qadir’s statement of facts is less than a page long, is
      practically devoid of facts relevant to the constitutional issues presented in his brief, and fails to mention that
      he was one of the persons seized and searched during the traffic stop.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2035 | January 16, 2019                        Page 2 of 8
      detective followed O’Bannon and saw him park in a Quality Inn hotel lot. A

      Kia with Georgia plates and two occupants – later identified as Qadir and Jamil

      Williamson – parked nearby. O’Bannon and one of the men in the Kia got out

      of their vehicles and talked in the parking lot. Eventually, all three men got into

      the Impala and drove away. Detective Root followed and saw the Impala go in

      front of and then behind the confidential informant’s residence. The Impala

      stopped briefly, went past the residence again, and headed to a fast-food

      restaurant near the Quality Inn, where it remained for roughly thirty minutes.


[4]   Detective Root contacted Kokomo Police Department Officer Chad Vancamp

      and asked him to conduct a traffic stop of the Impala when it left the restaurant.

      The detective followed the Impala out of the parking lot onto State Road 931

      and notified Officer Vancamp that it was traveling fifty-five miles per hour in a

      forty-five-mile-per-hour zone. Officer Vancamp activated the emergency lights

      on his patrol car, and the Impala pulled into the Quality Inn parking lot.


[5]   Officer Vancamp approached the Impala’s rear passenger door and knocked on

      the darkly tinted window.2 Qadir rolled down the window, and Officer

      Vancamp “detected an odor, consistent to that of [burning] marijuana.” Tr.

      Vol. 2 at 37. Officer Vancamp advised the Impala’s occupants of their Miranda

      rights, which they acknowledged, and asked Qadir to exit the vehicle. The




      2
       At trial, Officer Vancamp testified that he approached the rear passenger’s door instead of the driver’s door
      “due to the fact that there may be gun play and that [he] was dealing with individuals for a potential
      hitman[,]” and he “didn’t want to be shot in the back by anybody who was in the backseat.” Tr. Vol. 2 at 45.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2035 | January 16, 2019                   Page 3 of 8
      officer handcuffed Qadir, searched him, and found a Georgia identification

      card and a hotel room key. The officer searched O’Bannon and found $7500 in

      cash. He also searched Williamson, the front seat passenger, and found $2500

      in cash.3 Officer Vancamp searched the Impala and found an extended

      handgun magazine containing twenty 9-millimeter bullets “inside the back seat

      pouch of the passenger seat[,]” which was “basically directly in front of” where

      Qadir’s knees would have been. Id. at 41-42. Williamson was arrested on an

      outstanding homicide warrant from Atlanta, and all three men were taken to

      the police department for questioning.


[6]   Police learned that Qadir and Williamson had been staying in a room at the

      Quality Inn with Cynthia Foster. Police obtained Foster’s consent to search the

      room, in which they found dark clothing that had been purchased from a

      Kokomo Walmart, the receipt from that purchase, and two 9-millimeter

      handguns. Police obtained security camera footage from Walmart showing

      Qadir and Williamson purchasing items from a cashier.


[7]   The State charged Qadir with attempted murder and conspiracy to commit

      murder. At trial, Foster testified that Qadir had asked her to drive him and

      Williamson in her car from Atlanta to Kokomo. When they arrived at the

      hotel, Foster went to bed. Qadir told her that he was going to take the car to




      3
        Recorded phone conversations between Balentine and Riley indicate that Balentine had given O’Bannon
      $7500 to give to third parties and that O’Bannon himself would contribute $2500 to “help with the play” so
      that Balentine and Riley would not get “caught up in the heat.” Tr. Vol. 2 at 31.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2035 | January 16, 2019                 Page 4 of 8
      Walmart, and he and Williamson returned to the hotel with bags from

      Walmart. They then left the hotel with O’Bannon. The trial court took the

      matter under advisement and ultimately found Qadir guilty as charged. The

      court later vacated the conspiracy conviction and sentenced Qadir to thirty-five

      years executed for attempted murder. This appeal ensued.


                                       Discussion and Decision
[8]   Qadir contends that the trial court committed fundamental error in admitting

      unspecified evidence that he failed to object to at trial, claiming that it was

      seized as the result of an unconstitutional traffic stop.4 “A claim that has been

      waived by a defendant's failure to raise a contemporaneous objection can be

      reviewed on appeal if the reviewing court determines that a fundamental error

      occurred.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). The fundamental

      error exception to the contemporaneous objection rule is “extremely narrow,

      and applies only when the error constitutes a blatant violation of basic

      principles, the harm or potential for harm is substantial, and the resulting error

      denies the defendant fundamental due process.” Id. (quoting Mathews v. State,

      849 N.E.2d 578, 587 (Ind. 2006)). “The error claimed must either ‘make a fair

      trial impossible’ or constitute ‘clearly blatant violations of basic and elementary

      principles of due process.’” Id. (quoting Clark v. State, 915 N.E.2d 126, 131




      4
        The State notes that Qadir failed to object to evidence regarding the wiretaps, the handgun magazine found
      in the Impala, and the handguns found in the hotel room, among other things. Qadir does not contend that
      the evidence admitted at trial is insufficient to support his attempted murder conviction.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2035 | January 16, 2019                 Page 5 of 8
       (Ind. 2009)). “This exception is available only in ‘egregious circumstances.’”

       Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).


[9]    In Brown, our supreme court held that “a claimed error in admitting unlawfully

       seized evidence at trial, … without more, does not assert fundamental error[,]”

       explaining that “because improperly seized evidence is frequently highly

       relevant, its admission ordinarily does not cause us to question guilt.” Id. at

       205, 207. The court held that Brown’s claim of error regarding the admission of

       evidence seized from his home did not “rise to the level of fundamental error”

       because it did not call into question “the integrity of the judicial process[,]” i.e.,

       “there [was] no claim of fabrication of evidence or willful malfeasance on the

       part of the investigating officers and no contention that the evidence [was] not

       what it appear[ed] to be.” Id.


[10]   Qadir claims that Officer Vancamp’s stop of the Impala based on Detective

       Root’s report of speeding was a “sham” that was used as a pretext to conduct

       allegedly unconstitutional warrantless searches of the vehicle and his person.

       Appellant’s Br. at 11. This argument ignores the axiom that “an investigative

       stop may be based upon the collective information known to the law

       enforcement organization as a whole[,]” State v. Glass, 769 N.E.2d 639, 643

       (Ind. Ct. App. 2002), trans. denied, and that pretextual traffic stops are not

       prohibited by either the state or federal constitutions. Mitchell v. State, 745




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2035 | January 16, 2019   Page 6 of 8
N.E.2d 775, 787 (Ind. 2001); Whren v. United States, 517 U.S. 806, 814 (1996).5

Once Officer Vancamp stopped the vehicle, he was permitted to order Qadir

out of the vehicle, arrest him based on the odor of burning marijuana, and

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

v. Wilson, 519 U.S. 408, 415 (1997) (“[A]n officer making a traffic stop may

order passengers to get out of the car pending completion of the stop.”); K.K. v.

State, 40 N.E.3d 488, 489 (Ind. Ct. App. 2015) (holding that odor of burnt

marijuana emanating from vehicle during traffic stop provided probable cause

for officers to arrest all three occupants);6 White v. State, 24 N.E.3d 535, 540

(Ind. Ct. App. 2015) (“[A] police officer may conduct a warrantless search of a

person if the search is incident to a lawful arrest.”), trans. denied. The officer

was also permitted to conduct a warrantless search of the Impala. See Edmond

v. State, 951 N.E.2d 585, 590 n.5, 588 n.3 (Ind. Ct. App. 2011) (stating that

police “may conduct a warrantless search of a vehicle if there is probable cause

to believe that it contains evidence of a crime” and that odor of burning

marijuana indicates that a crime has been or is being committed). Qadir



5
  Qadir complains that “there is no evidence in the Record of how [Detective] Root scientifically calculated
the Impala’s speed—if he did.” Appellant’s Br. at 8. Qadir cites no authority for the proposition that a
scientific calculation of a vehicle’s speed is required for a legal traffic stop, and he failed to question Detective
Root regarding his calculation of the Impala’s speed at trial. Officer Vancamp testified that he stopped the
Impala based on Detective Root’s report of speeding, as well as a suspected window tint violation. Qadir
expresses doubts about the latter, but because the former was a legitimate basis for the stop, we need not
address those concerns. See Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014) (“Police officers may stop
a vehicle when they observe minor traffic violations.”).
6
 Qadir complains about Officer Vancamp’s “unprovable” testimony that he smelled burning marijuana
when Qadir rolled down the car window. Appellant’s Br. at 9. As the finder of fact, the trial court was
entitled to believe that testimony, and we may not second-guess that determination on appeal. Phillips v.
State, 25 N.E.3d 1284, 1289 (Ind. Ct. App. 2015).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2035 | January 16, 2019                         Page 7 of 8
       suggests that the warrantless search of the hotel room was unconstitutional, but

       he makes no cogent argument regarding the validity of Foster’s consent to

       search the room.


[11]   In sum, Qadir has failed to establish that the traffic stop and the ensuing

       searches and seizures were unconstitutional, and he has failed to establish that

       the police fabricated evidence or engaged in willful malfeasance or that the

       evidence was not what it appeared to be.7 Thus, he has failed to establish any

       error, fundamental or otherwise, in the admission of the evidence introduced at

       trial. Therefore, we affirm his conviction.


[12]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       7
         Qadir suggests that the extended magazine found in the Impala was incompatible with the handguns found
       in the hotel room, but he cites no authority for this suggestion. In any event, as the State observes, “the
       significance of Qadir’s proximity to the extended magazine is not connecting Qadir with a specific handgun
       in the hotel room …; the magazine connects Qadir with the murder of [the confidential informant] planned
       by him and the other conspirators.” Appellee’s Br. at 20.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2035 | January 16, 2019                 Page 8 of 8
