Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
                                                                        Sep 30 2014, 9:39 am
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:

CLIFFORD M. DAVENPORT                            GREGORY F. ZOELLER
Davenport Law Offices                            Attorney General of Indiana
Anderson, Indiana
                                                 LYUBOV GORE
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

GORDON LEE PEAK,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 48A02-1312-CR-992
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                        The Honorable Thomas Newman, Jr., Judge
                             Cause No. 48D03-0108-CF-282



                                     September 30, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
        Gordon Lee Peak appeals the revocation of his probation. Peak raises four issues

which we revise and restate as:

        I.      Whether the trial court erred in admitting evidence obtained as a
                result of a traffic stop;

        II.     Whether the court violated his Fifth Amendment rights by
                compelling him to answer a question at the revocation hearing; and

        III.    Whether the court abused its discretion in ordering that he serve his
                previously suspended sentence in the Department of Correction.

We affirm.1

                           FACTS AND PROCEDURAL HISTORY

        On December 3, 2001, Peak was sentenced pursuant to a plea agreement to an

aggregate term of thirty years on Count I, dealing in cocaine as a class A felony; Count

II, possession of marijuana as a class A misdemeanor; Count III, resisting law

enforcement as a class A misdemeanor; and Count IV, driving while suspended as a class

A misdemeanor. On September 5, 2007, the court held a hearing on a Petition to Modify

Sentence filed by Peak, granted the petition, and ordered that Peak be placed on work

release. He was also ordered to participate in the “RIGHT program, Job group, and Man-

4-Man.” Appellant’s Appendix at 6. On February 29, 2008, Peak was transferred to in-

home detention. On June 18, 2008, a violation of the RIGHT program was filed against

Peak stating that he tested positive for Cannabinoids on June 4, 2008, and the court held a

hearing on July 7, 2008, in which Peak admitted the violation. The court ordered that he




        1
          Peak also argues in his brief that “[i]f the court determines that [his] argument concerning due
process was waived due to trial counsel failing to object . . . Peak would state he had ineffective
assistance of counsel.” Appellant’s Brief at 16. Because we affirm the admission of evidence gathered
from the traffic stop in part I on the merits, we need not address this issue.
                                                    2
submit to a urine screen which came back negative, and on July 21, 2008, the court

placed him on work release.

       On August 13, 2008, Peak filed a pro se Request for Modification of work release,

and on August 18, 2008, the court held a hearing on the motion. That same day and

following another negative urine screen, the court placed Peak back on in-home

detention.   On October 13, 2008, the court held a hearing regarding a Petition for

Termination of Home Detention Program Privileges and Violation of Suspended

Sentence in which the court found that Peak did not violate the terms of his in-home

detention but sanctioned him for “an inappropriate association” and placed him back on

work release. Id. at 9. On January 1, 2009, Peak filed a pro se Request for Modification

off of Work Release, the court held a hearing on March 9, 2009, granted his request, and

placed Peak on probation for the balance of his sentence.

       On January 22, 2012, Sergeant Shawn Sizemore of the Marion Police Department

was conducting surveillance of a residence with suspected drug dealing involvement in

Marion, Grant County, Indiana, when he observed a silver Buick leave the residence and

travel east along 31st street. Sergeant Sizemore followed the Buick and observed it stop

at a traffic light. A “short time” after the vehicle stopped, he observed the vehicle signal

for turning right, and it turned right. Transcript at 28. Sergeant Sizemore then contacted

Sergeant John Kauffman requesting that he “conduct a traffic stop on the vehicle for

failure to use a right turn signal within 200 feet of travel before making the turn.” Id.

Sergeant Kauffman stopped the Buick about six blocks from where Sergeant Sizemore

observed the infraction, and he observed that the Buick contained only the driver who he

identified as Peak. Peak rolled down his window, Sergeant Kauffman told him the nature
                                           3
of the stop and asked Peak for his driver’s license and registration, and Peak responded

that he did not have a driver’s license because it was suspended. Peak produced an

Indiana identification card, and as he did so “he kept his left hand down at his side

between the door and his leg, where [Sergeant Kauffman] could not see it.” Id. at 9.

Sergeant Kauffman noticed that Peak “was breathing rapidly and didn’t make eye contact

with him,” and further noted that Peak’s hand was trembling when he handed over his

identification card. Id. at 28. Also, while speaking with Peak, Sergeant Kauffman

detected, based upon his training and experience, the “overwhelming odor of fresh green

marijuana coming from inside the vehicle,” and due to his concern of not being able to

see Peak’s left hand he asked Peak to exit the vehicle so that he could pat Peak down for

safety. Id. at 10. Sergeant Sizemore arrived at the scene and also detected the smell of

fresh marijuana.

       Sergeant Kauffman escorted Peak to the rear of the vehicle, patted him down, and

noticed that Peak “hugged the rear of the vehicle” even after he was asked to step away

from it. Id. at 11. Peak finally did step away from the vehicle, and when Sergeant

Kauffman patted the front of Peak’s clothing, including Peak’s groin area, he “felt a large

bulge” which “had the consistency of what [he] recognize[d] to be packaged marijuana.”

Id. Sergeant Kauffman asked “if what [he] was feeling was marijuana and he confirmed

that it was.” Id. Sergeant Kauffman then placed Peak into custody, transported him to

the Marion Police Department, escorted Peak to a room, and instructed Peak to remove

the package from inside his pants. The package field tested positive for marijuana and

weighed over thirty grams. Sergeant Sizemore advised Peak of his Miranda rights and

proceeded to interview Peak, and Peak admitted that he had a large baggie of marijuana
                                         4
on his person that was his and that he “was coming from . . . his brother’s residence.” Id.

at 31. Peak said that he had been at his brother’s residence “watching the game, smoking

some weed,” and that when the game ended he left the residence. Id.

       On January 26, 2012, a notice of probation violation was filed alleging that Peak

committed the criminal offense of possession of marijuana as a class D felony in Grant

County. On February 22, 2012, the court held an initial hearing on the violation in which

Peak was notified that an evidentiary hearing would be held on March 12, 2012, and that

he would have to appear in court that day. On March 12, 2012, the court held an

evidentiary hearing in which Peak failed to appear but was represented by counsel.

Sergeant Kauffman testified and was cross-examined regarding the violation, and at the

conclusion of the evidence the court issued an arrest warrant for Peak. In September

2013, Peak was extradited from Vero Beach, Florida, and on October 10, 2013, the court

held a hearing at which he appeared and set an evidentiary hearing for October 21, 2013.

       On October 21, 2013, the court held an evidentiary hearing in which Peak by

counsel indicated that Peak was “disputing his complicity with” the possession of

marijuana charge but was “willing to admit” that he had been charged with the crime. Id.

at 21. The State noted for the court that an evidentiary hearing had been held on March

12, 2012, at which Peak failed to appear and that the court had continued the hearing until

“Peak was picked up . . . to allow him to dispute the allegations . . . .” Id. at 22. The

court continued the hearing to give Peak the opportunity to prepare a defense and cross-

examine the witnesses while he was present.

       On November 4, 2013, the court held a hearing in which defense counsel stated at

the outset that Peak was willing to admit to the arrest “which in and of itself would be a
                                            5
probation violation” and that he did not think that it was “appropriate to try [Peak’s] case

as to the merits.” Id. at 26. The hearing proceeded over the objection of Peak, and

Sergeant Sizemore testified to evidence consistent with the foregoing.          Afterward,

defense counsel called Peak to the stand in which the following exchange occurred:

       Q      Mr. Peak, I have advised you, as your attorney on this probation
              violation, that you have a right to remain silent and that any record
              you make here at this probation violation hearing could be used as
              evidence against you in the case in Grant County. Have I advised
              you that?

       A      Yes, sir.

       Q      And nevertheless, you are insisting on giving testimony on this stop
              that occurred as been testified to earlier, is that correct?

       A      Yes, sir.

Id. at 38.

       After Peak provided direct testimony that the police officers conducted a strip

search at the scene of the stop, the prosecutor asked Peak on cross-examination whether

he possessed marijuana when he was pulled over.            Defense counsel objected and

instructed Peak not to answer the question, and the court overruled the objection. Peak

was again asked if he possessed marijuana at the time he was pulled over, and Peak

responded: “Yes, you seen the pictures.” Id. at 48. The court revoked Peak’s probation

and ordered him to serve the balance of his sentence in the Department of Correction.

                                             I.

       The first issue is whether the trial court erred in admitting evidence obtained as a

result of the traffic stop.   The Due Process Clause applies to probation revocation

hearings. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007) (citing Gagnon v. Scarpelli,

                                             6
411 U.S. 778, 782, 93 S. Ct. 1756 (1973)), reh’g denied. “But there is no right to

probation: the trial court has discretion whether to grant it, under what conditions, and

whether to revoke it if conditions are violated.” Id. “It should not surprise, then, that

probationers do not receive the same constitutional rights that defendants receive at trial.”

Id.

       The due process right applicable in probation revocation hearings allows for

procedures that are more flexible than in a criminal prosecution. Id. Such flexibility

allows courts to enforce lawful orders, address an offender’s personal circumstances, and

protect public safety, sometimes within limited time periods. Id. Within this framework,

and to promote the aforementioned goals of a probation revocation hearing, courts may

admit evidence during probation revocation hearings that would not be permitted in a

full-blown criminal trial. Id.; see also Ind. Evidence Rule 101(d)(2) (“The rules [of

evidence] . . . do not apply [to] . . . [p]roceedings relating to . . . probation . . . .”).

         A probation revocation hearing is in the nature of a civil action, and therefore

does not equate with an adversarial criminal proceeding. Grubb v. State, 734 N.E.2d 589,

591 (Ind. Ct. App. 2000), trans. denied.

       As such, a probationer who is faced with a petition to revoke his probation,
       although he must be given “written notice of the claimed violations,
       disclosure of the evidence against him, an opportunity to be heard and
       present evidence, the right to confront and cross-examine adverse
       witnesses, and a neutral and detached hearing body,” is not entitled to the
       full panoply of rights that he enjoyed prior to his conviction.

Id. (quoting Isaac v. State, 605 N.E.2d 144, 147 (Ind. 1992), cert. denied, 508 U.S. 922,

113 S. Ct. 2373 (1993)).



                                                  7
       In probation revocation hearings, the exclusionary rule is not fully applicable. Pa.

Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365-369 (1998) (holding that exclusionary

rule did not bar introduction of evidence seized in violation of parolee’s Fourth

Amendment rights at parole revocation hearing); Henderson v. State, 544 N.E.2d 507,

512-513 (Ind. 1989) (observing that exclusionary rule is not fully applicable in probation

revocation hearings); Grubb, 734 N.E.2d at 592-593 (holding that exclusionary rule did

not bar introduction of statements obtained in violation of probationer’s Fifth

Amendment rights at probation revocation proceeding); Plue v. State, 721 N.E.2d 308,

310-311 (Ind. Ct. App. 1999) (holding that exclusionary rule did not bar evidence

obtained as a result of illegal search and seizure at probation revocation proceeding).

Illegally seized evidence will be excluded at a revocation hearing only if it was seized as

part of a continuing plan of police harassment or in a particularly offensive manner.

Henderson, 544 N.E.2d at 513; Plue, 721 N.E.2d at 310. But see Polk v. State, 739

N.E.2d 666, 669 (Ind. Ct. App. 2000) (applying exclusionary rule to probation revocation

proceeding without concluding that evidence was seized as part of a continuing plan of

police harassment or in a particularly offensive manner).

       Peak argues that although a probationer’s due process rights are normally limited

at revocation proceedings, “there is an exception to this rule[] if a police office [sic] is not

investigating the enforcement of a probationer’s conditions of probation nor working

with a probationer’s probation officer,” in which such “probationer has the normal

privacy rights of any other person.” Appellant’s Brief at 13 (citing Polk, 739 N.E.2d at

666). Peak maintains that accordingly the exclusionary rule is applicable here and indeed

applies to exclude the evidence obtained from the stop because the stop was not
                                        8
supported by reasonable suspicion. The State argues that Peak waived any challenge to

the admission of evidence by failing to object, that the exclusionary rule and rules of

evidence are not fully applicable in revocation proceedings, and that Sergeant Kauffman

had reasonable suspicion to initiate the stop.

       The crux of Peak’s argument is that the circumstances of his case fall within the

exception to the rule that the exclusionary rule is inapplicable in revocation proceedings

as described in Polk, that Sergeant Kauffman did not have reasonable suspicion to initiate

the traffic stop when he came to a stop before signaling to turn right and proceeded to do

so, and that accordingly the evidence resulting from the stop should not have been

admitted. Even assuming that Peak did not waive his challenge by failing to object and

that his arguments with respect to Polk are persuasive, however, we note that this court

recently upheld the admission of evidence resulting from a traffic stop for failure to

signal. In Santana v. State, a police officer ran the license plate information of a pickup

truck in which “he omitted one digit from the plate number and the result came back ‘Not

on File.’” 10 N.E.3d 76, 77 (Ind. Ct. App. 2014). The officer soon after observed the

truck “turn 100 to 150 feet after the turn signal was activated” and initiated a traffic stop.

Id. As a result of the stop, defendant Santana was charged with operating a motor vehicle

while privileges were forfeited for life as a class C felony. Id. Santana filed a motion to

suppress arguing that the officer did not have a valid basis for stopping his truck. Id. The

court denied the motion, and after a bench trial Santana was found guilty as charged. Id.

at 77-78.

       On appeal, we observed that “[p]olice officers may stop a vehicle when they

observe minor traffic violations,” that “[a] stop is lawful if there is an objectively
                                           9
justifiable reason for it, and a stop may be justified on less than probable cause,” and that

“[i]f there is an objectively justifiable reason, then the stop is valid whether or not the

police officer would have otherwise made the stop but for ulterior suspicions or motives.”

Id. at 78. We noted that Ind. Code § 9-21-8-25 requires that “[a] signal of intention to

turn right or left shall be given continuously during not less than the last two hundred

(200) feet traveled by a vehicle before turning or changing lanes” and that the court heard

evidence that Santana committed an infraction when he failed to do so, and we affirmed

Santana’s conviction. Id. at 77-78.

         Here, Sergeant Sizemore observed Peak come to a stop before signaling and

turning right. Whether or not Sergeant Sizemore’s decision to radio Sergeant Kauffman

to initiate the stop based in part upon other observations is immaterial because Peak’s

failure to signal in accordance with the law provided an objectively justifiable reason for

the stop. We cannot say that the court erred when it admitted evidence resulting from the

stop.2

                                                  II.

         The next issue is whether the court violated Peak’s Fifth Amendment rights by

compelling him to answer a question at the revocation hearing. Peak notes that at the

revocation hearing the prosecutor asked him if he possessed marijuana when he was

         2
          Peak also asserts in this section of his brief that “[n]owhere in Kauffman’s testimony did he
indicate that he gave Peak his Miranda rights or had him sign a waiver of his rights,” and further that
“Officer Sizemore testified that he advised Peak of his Miranda warning and that Peak signed a waiver of
rights form at the Marion Police Department. However no copy of the waiver was submitted into
evidence at the hearing on November 4, 2013.” Appellant’s Brief at 14. The State argues that Peak failed
to make cogent argument regarding Miranda and that the issue is waived, and we agree. See, e.g., Cooper
v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived
because it was “supported neither by cogent argument nor citation to authority”); Shane v. State, 716
N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument on appeal by failing to
develop a cogent argument).
                                                  10
pulled over, his counsel “instructed him not to answer because it would put him in

jeopardy of the criminal case in Grant County,” and the court “overruled [his] counsel

and then [his] counsel made a continuing objection.” Appellant’s Brief at 17. He argues

that he “was forced to testify as to the marijuana and that violated his Fifth Amendment

privilege . . . .” Id. The State argues that “[a] probationer may be forced to provide

incriminating information if the State recognizes that it may not use the answers in a later

criminal proceeding,” that here “[i]t appears [Peak] never asserted his Fifth Amendment

privilege against self-incrimination,” that Peak “opened the door to questions about the

marijuana because he testified about the traffic stop without mentioning the marijuana,”

that “[t]here is no basis for [Peak’s] assumption that the information . . . would be used

against him in his pending criminal case,” and that in any event the error was harmless.

Appellee’s Brief at 20-22.

        The improper admission of evidence is harmless error when the conviction is

supported by substantial independent evidence of guilt which satisfies the reviewing

court that there is no substantial likelihood the challenged evidence contributed to the

conviction.” Morales v. State, 749 N.E.2d 1260, 1267 (Ind. Ct. App. 2001). We review a

federal constitutional error de novo, and any error “must be ‘harmless beyond a

reasonable doubt.’”3 Id. (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,

828 (1967), reh’g denied). Thus, in order to find the error to be harmless in this context,

        3
          We note that it is apparently not entirely settled whether the federal constitutional harmless error
standard applies in probation revocation proceedings. See Black v. State, 794 N.E.2d 561, 566 (Ind. Ct.
App. 2003) (applying the federal constitutional harmless error standard in a probation revocation
proceeding because the issue was not argued by the parties, but leaving the question “open for argument
in subsequent cases”). We need not resolve the question here, because even under the more rigorous
federal standard, we conclude that any error in the court’s decision to overrule defense counsel’s
objection was harmless.

                                                     11
we must determine that the error did not contribute to the court’s revocation decision, that

is, that the error was unimportant in relation to everything else the court considered. See

Furnish v. State, 779 N.E.2d 576, 582 (Ind. Ct. App. 2002) (noting that in determining

whether an error was harmless beyond a reasonable doubt that this court “must find that

the error did not contribute to the verdict, that is, that the error was unimportant in

relation to everything else the jury considered on the issue in question”), trans. denied.

        Here, we find that Peak’s admission at the revocation hearing that he possessed

marijuana when he was stopped did not contribute to the court’s revocation decision.

The court heard the officers’ testimony that Peak was stopped for failing to signal for 200

feet in advance of making a right turn, that Officer Kauffman smelled the odor of fresh

marijuana when he began speaking with Peak, and that he discovered a package of

marijuana which field tested positive while patting Peak down for weapons. A picture of

the package of marijuana was admitted as State’s Exhibit 2. Any error in compelling

Peak to testify regarding whether he possessed marijuana was harmless beyond a

reasonable doubt.4

                                                  III.

        The final issue is whether the court abused its discretion in ordering that Peak

serve his previously suspended sentence in the Department of Correction. At the time of

Peak’s violation, Ind. Code § 35-38-2-3(g) set forth a trial court’s sentencing options if

the trial court found a probation violation and provided:



        4
         We observe that, should the issue arise, whether to admit evidence of Peak’s testimony from the
revocation hearing in the criminal case in Grant County is a matter for the trial court in that case to
address.
                                                  12
       If the court finds that the person has violated a condition at any time before
       termination of the period, and the petition to revoke is filed within the
       probationary period, the court may impose one (1) or more of the following
       sanctions:

                 (1)      Continue the person on probation, with or without
                          modifying or enlarging the conditions.

                 (2)      Extend the person’s probationary period for not more
                          than one (1) year beyond the original probationary
                          period.

                 (3)      Order execution of all or part of the sentence that was
                          suspended at the time of initial sentencing.[5]

       The Indiana Supreme Court has held that a trial court’s sentencing decisions for

probation violations are reviewable for abuse of discretion. Prewitt v. State, 878 N.E.2d

184, 188 (Ind. 2007). The Court explained that “[o]nce a trial court has exercised its

grace by ordering probation rather than incarceration, the judge should have considerable

leeway in deciding how to proceed” and that “[i]f this discretion were not afforded to trial

courts and sentences were scrutinized too severely on appeal, trial judges might be less

inclined to order probation to future defendants.” Id. An abuse of discretion occurs

where the decision is clearly against the logic and effect of the facts and circumstances.

Id. (citation omitted).         As long as the proper procedures have been followed in

conducting a probation revocation hearing, “the trial court may order execution of a

suspended sentence upon a finding of a violation by a preponderance of the evidence.”

Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).

       Peak points out that at the revocation hearing his probation officer testified that

between March 9, 2009, and the traffic stop on January 22, 2012, “Peak had done

       5
           This provision is currently codified as Ind. Code § 35-38-2-3(h).

                                                     13
everything that he was supposed to do on probation.” Appellant’s Brief at 18. He asserts

that “an alternative to revoking his probation should be considered,” noting that “[b]oth

probation and community correction programs are alternatives to a commitment to the

Department of Corrections [sic] and both alternatives are within the sole discretion of the

trial court.” Id. at 18-19. He argues that “[t]hese alternatives ‘…serve the humane

purposes of avoiding incarceration and of permitting the offender to meet the offender’s

financial obligations.’” Id. at 19 (quoting Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999),

reh’g denied). The State argues that the court was well within its discretion in revoking

Peak’s probation.

       The record reveals that less than six years after receiving an aggregate thirty-year

sentence, the court modified Peak’s sentence and placed him on work release. He was

soon after transferred to in-home detention. Less than four months later, Peak tested

positive for Cannabinoids and was placed back on work release. The court gave Peak

another chance at in-home detention in August 2008, and two months later in October

2008 the court held a hearing on a petition for termination of home detention privileges.

Following the hearing, the court placed Peak back on work release due to “an

inappropriate association.” Appellant’s Appendix at 9. Peak was subsequently placed on

probation on March 9, 2009.        On January 22, 2012, while still on probation for

convictions of, among others, dealing in cocaine and possession of marijuana, Peak was

found during a traffic stop to be in possession of over thirty grams of marijuana. The

court held an initial hearing on Peak’s probation violation on February 22, 2012, and

informed Peak that the evidentiary hearing would be held on March 12, 2012. At the

March 12 evidentiary hearing, Peak failed to appear and a warrant for his arrest was
                                         14
issued. Eighteen months later in September 2013, Peak was arrested in Vero Beach,

Florida, and he was extradited back to Indiana. Given the circumstances as set forth

above and in the record, we cannot say that the court abused its discretion in ordering

Peak to serve his previously suspended sentence.

                                    CONCLUSION

      For the foregoing reasons, we affirm the court’s order revoking Peak’s probation

and ordering that he serve his previously suspended sentence in the Department of

Correction.

      Affirmed.

BARNES, J., and BRADFORD, J., concur.




                                          15
