      MEMORANDUM DECISION
                                                                      Sep 04 2015, 8:28 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before 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
      Kevin Wild                                                Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana
                                                                Monika Prekopa Talbot
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Marcus Blackmon,                                         September 4, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1412-CR-890
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Steven R. Eichholtz,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 49G20-1210-FA-68486




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Marcus Blackmon appeals his convictions of dealing in a narcotic drug, a Class

      A felony, Indiana Code section 35-48-4-1 (2006); possession of a controlled

      substance, a Class D felony, Indiana Code section 35-48-4-7 (2011); two counts

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 1 of 9
      of resisting law enforcement, as Class A misdemeanors, Indiana Code section

      35-44.1-3-1 (2012); and escape, a Class C felony, Indiana Code section 35-44.1-

      3-4 (2012). We affirm.


                                                     Issue
[2]   Blackmon presents a single issue for our review, which we restate as: whether

      the trial court abused its discretion by admitting certain evidence at trial that

      was obtained following a warrantless traffic stop.


                               Facts and Procedural History
[3]   In October 2012, Detective Wolfe of the Indianapolis police force was

      observing a Buick vehicle and its occupants in relation to an ongoing

      investigation. The Buick was parked in a parking lot next to another vehicle,

      and Detective Wolfe observed what he believed to be a possible hand-to-hand

      drug transaction between the occupants of the two vehicles. When the Buick

      left the parking lot, Detective Wolfe observed that the Buick’s driver failed to

      signal when turning and traveled eastbound in the westbound lane of travel. At

      that time, Detective Wolfe relayed this information over his radio and called for

      assistance.


[4]   Sergeant McDonald, who was assisting Detective Wolfe, heard the request to

      stop the Buick. Although Sergeant McDonald did not witness the initial traffic

      violations, he did note a third violation upon locating the vehicle — the tinting

      on the Buick’s windows was too dark. Sergeant McDonald initiated a traffic

      stop of the Buick, and the driver of the Buick pulled into a parking space at a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 2 of 9
      gas station. As Sergeant McDonald walked up to the Buick, the driver opened

      the door. Sergeant McDonald saw pieces of marijuana in the hand rest of the

      driver’s door and smelled a strong odor of marijuana coming from the car. The

      driver of the vehicle then informed Sergeant McDonald that he did not have a

      license. Sergeant McDonald called for back-up.


[5]   Officer Reetz arrived to assist Sergeant McDonald. Officer Reetz asked

      Blackmon, who was the passenger in the Buick, to exit the vehicle, turn around

      and put his hands on his shoulders. Blackmon exited the vehicle, put his hands

      up, and then began to run from the scene. Both officers pursued Blackmon.

      Officer Reetz grabbed Blackmon’s sweatshirt and wrestled him to the ground.

      As Blackmon struggled, he continued to reach for his pants pocket. Eventually,

      Blackmon pulled a pill bottle from his pocket and tossed it away from the

      immediate area. When the pill bottle hit the ground, it burst open and sixty-five

      small foil packets fell out. The officers tried to handcuff Blackmon, but they

      were unable to do so because he continued to struggle. Sergeant McDonald

      administered dry stuns with a Taser to the middle of Blackmon’s back, and the

      officers eventually got him handcuffed. Once handcuffed, Blackmon was

      searched and three pills were located in his jeans pocket in addition to a “wad

      of cash.” Tr. p. 101. At that time, Blackmon was placed in the back of a police

      car. Blackmon was able to get out of the police car, and he again ran from the

      scene. By then, Detective Wolfe had arrived at the scene, and he chased

      Blackmon and eventually apprehended him.




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[6]   Based on this incident, Blackmon was charged with dealing in a narcotic drug,
                                                                                         1
      a Class A felony; possession of a narcotic drug, a Class C felony ; possession of

      a controlled substance, a Class D felony; two counts of resisting law

      enforcement, as Class A misdemeanors; and escape, a Class C felony. A bench

      trial was held on these charges at which Blackmon objected to the admission of

      any evidence obtained as a result of the traffic stop. The evidence was admitted

      over objection, and the State presented testimony that the foil packets contained

      heroin. The three pills from Blackmon’s pants pocket were also tested and

      determined to be Oxycodone. Blackmon was found guilty of all charges. His

      conviction of possession of a narcotic drug was merged into his conviction of

      dealing in a narcotic drug, and Blackmon was sentenced to an aggregate

      sentence of thirty years with ten years suspended.


                                          Discussion and Decision
[7]   Blackmon contends that the trial court erred when it denied his motion to

      suppress the evidence prior to trial and when it admitted the evidence over his

      objection at trial. Because Blackmon appeals following a completed trial, the

      issue is simply whether the trial court abused its discretion by admitting the

      evidence at trial. See Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),

      trans. denied. The discretion afforded the trial court is broad, and an abuse of

      this discretion occurs when a decision is clearly against the logic and effect of




      1
          Ind. Code § 35-48-4-6 (2006).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 4 of 9
       the facts and circumstances before the court. Paul v. State, 971 N.E.2d 172, 175

       (Ind. Ct. App. 2012).


[8]    In reviewing a trial court’s ruling on the admissibility of evidence from an

       allegedly illegal search, we do not reweigh the evidence. Reinhart v. State, 930

       N.E.2d 42, 45 (Ind. Ct. App. 2010). Rather, we defer to the trial court’s factual

       determinations, unless clearly erroneous, and we consider conflicting evidence

       most favorable to the trial court’s ruling. Id. Further, we consider anew any

       legal question of the constitutionality of a search or seizure. Id.


[9]    Here, Blackmon asserts that his convictions arose from a pretextual stop and

       subsequent search of his person that violated his rights under both the federal

       and Indiana constitutions. He argues that he was stopped merely so the officers

       could further their ongoing investigation and that Detective Wolfe called for

       assistance and then “sought some sort of reason to make the stop.” Appellant’s

       Br. p. 15. The Fourth Amendment to the United States Constitution protects

       against unreasonable searches and seizures. Likewise, article I, section 11 of

       the Indiana Constitution protects citizens from unreasonable searches and

       seizures. Despite the similarity of the two provisions, Indiana courts interpret

       and apply article I, section 11 independently from the Fourth Amendment.

       Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001).


                                             Fourth Amendment

[10]   The safeguards of the Fourth Amendment extend to brief investigatory stops of

       persons or vehicles that fall short of traditional arrest. Porter v. State, 985

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       N.E.2d 348, 353 (Ind. Ct. App. 2013). The burden is on the State to

       demonstrate that the measures it used to seize evidence were constitutional. Id.

       A traffic stop is a seizure under the Fourth Amendment, and, accordingly, the

       police must possess at least a reasonable suspicion that a traffic law has been

       violated or that other criminal activity is taking place. Meredith v. State, 906

       N.E.2d 867, 869 (Ind. 2009). Such reasonable suspicion must encompass more

       than hunches or unparticularized suspicions; that is, an officer must be able to

       point to specific facts giving rise to a reasonable suspicion of criminal activity.

       Denton v. State, 805 N.E.2d 852, 855 (Ind. Ct. App. 2004), trans. denied. Further,

       the subjective intentions of the officer do not factor into the determination of

       the reasonableness of the stop under the Fourth Amendment. Osborne v. State,

       805 N.E.2d 435, 439 (Ind. Ct. App. 2004), trans. denied.


[11]   At both the hearing on the motion to suppress and at trial, the State conceded

       that the stop was pretextual but argued that it was also legal. Tr. pp. 15, 95. At

       the hearing on Blackmon’s motion to suppress, Sergeant McDonald testified as

       follows:


               McDonald: They were conducting surveillance of this particular
               vehicle and the individuals in it and that they believed that they
               were involved in drug trafficking.
               Defense Counsel: Okay. Was there any discussion of a traffic
               pull over or traffic infractions if you recall?
               McDonald: They — yeah. The intent was to stop this vehicle.
               Defense Counsel: To stop it for a traffic infraction?
               McDonald: Yes.


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               Defense Counsel: Okay. Was there — were you given any basis
               for an infraction before you pulled them over?
               McDonald: Yes.
               Defense Counsel: Okay. What was that basis?
               McDonald: They were driving the wrong way on the — 21st
               Street and didn’t use a turn signal.
       Id. at 37-38. And later:


               Defense Counsel: Sergeant McDonald, Detective Wolfe asked
               you to stop this vehicle before he relayed any information about
               the traffic violations, right?
               McDonald: I think the goal was to get the vehicle stopped, yes.
               But no, he didn’t say, “Stop his car.”
               Defense Counsel: The goal of this investigation was to stop the
               car. You knew he wanted the car stopped before he had relayed
               to you that there were traffic violations?
               McDonald: Yeah. If we did observe some violations and had
               enough reasonable suspicion to stop this vehicle, yes. He wanted
               the car stopped. But it wasn’t until traffic violations were
               observed that I did stop the car.
       Id. at 40-41.


[12]   Likewise at trial, Sergeant McDonald testified that he received a request on his

       police radio to stop the Buick that had been observed by Detective Wolfe failing

       to signal and driving on the wrong side of the road. Both of these actions

       constitute traffic violations. See Ind. Code §§ 9-21-8-25 (1991), 9-21-8-2 (1991).

       Moreover, upon locating the Buick, Sergeant McDonald noticed that its

       window tinting appeared to be too dark in violation of Indiana Code section 9-

       19-19-4(c) (2003). These circumstances indicate that when Sergeant McDonald


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 7 of 9
       conducted a traffic stop on the Buick, he possessed more than a reasonable

       suspicion that three traffic laws had been violated.


                                             Article I, Section 11

[13]   Concluding that the traffic stop did not violate Blackmon’s Fourth Amendment

       rights, we now turn to the separate argument under the Indiana Constitution.

       Under Indiana constitutional analysis, we examine the circumstances of each

       case to determine whether police behavior was reasonable. Mitchell, 745

       N.E.2d at 786. The State bears the burden of showing that the intrusion was

       reasonable in light of the totality of the circumstances. Id. “A police stop and

       brief detention of a motorist is reasonable and permitted under Section 11 if the

       officer reasonably suspects that the motorist is engaged in, or about to engage

       in, illegal activity.” Id. “Reasonable suspicion exists if the facts known to the

       officer, together with the reasonable inferences arising therefrom, would cause

       an ordinarily prudent person to believe that criminal activity has or is about to

       occur.” Id.


[14]   Moreover, the courts of our state have determined that pretextual stops are not

       unreasonable under the Indiana Constitution provided the officer has probable

       cause to believe there has been a traffic violation. Osborne, 805 N.E.2d at 439.

       Our supreme court explained that:


               We find nothing unreasonable in permitting an officer, who may
               have knowledge or suspicion of unrelated criminal activity by the
               motorist, to nevertheless respond to an observed traffic violation.
               It is likewise not unreasonable for a motorist who commits a
               traffic law violation to be subject to accountability for said
       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-890 | September 4, 2015   Page 8 of 9
                violation even if the officer may have an ulterior motive of
                furthering an unrelated criminal investigation.
       Mitchell, 745 N.E.2d at 787.


[15]   Here, Sergeant McDonald received information from Detective Wolfe that the

       occupants of the Buick had been involved in a possible hand-to-hand

       transaction. Detective Wolfe asked the officers, including Sergeant McDonald,

       to stop the Buick, and told them that he had observed two different traffic

       violations — failure to signal and driving on the wrong side of the road. Upon

       stopping the Buick, Sergeant McDonald identified a third violation regarding

       the window tint. All three of these violations are completely independent of

       any possible drug transaction, and all three constitute traffic violations. Thus,

       while the stop may have been pretextual, we conclude that Sergeant McDonald

       had reasonable suspicion of traffic violations to conduct a traffic stop of the

       Buick.


                                                Conclusion
[16]   For the reasons stated, we conclude that the traffic stop of the Buick did not

       violate Blackmon’s constitutional rights. Accordingly, the trial court did not

       abuse its discretion in admitting at trial the evidence seized as a result of the

       stop.


[17]   Affirmed.


[18]   Baker, J., and May, J., concur.



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