MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Jul 12 2018, 9:21 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gregory S. Loyd                                          Curtis T. Hill, Jr.
Truitt, Ray, Sharvelle & Eberhardt LLP                   Attorney General of Indiana
Lafayette, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronte A. Terrell,                                        July 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1712-CR-2941
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Laura Zeman,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D04-1702-CM-482



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018              Page 1 of 11
[1]   Ronte Terrell appeals his conviction for Class B Misdemeanor Possession of

      Marijuana.1 Terrell argues that the trial court improperly admitted evidence

      stemming from a police officer’s roadside search of Terrell’s person. Finding no

      error, we affirm.


                                                     Facts
[2]   Around 9:30 p.m. on January 6, 2017, Lafayette Police Officer Zachary Hall

      observed a vehicle commit three traffic infractions. Officer Hall conducted a

      traffic stop of the vehicle, which was being driven by Terrell and held another

      passenger. The stop occurred on a major traffic artery in Lafayette lined with

      intermittent street and business lights, but the stop did not occur under or near

      any of the lights. It was dark enough that Officer Hall needed to use a flashlight

      during the stop.


[3]   When Officer Hall reached the rolled-down passenger window, he noticed the

      odor of marijuana. After obtaining identification from Terrell and the

      passenger, Officer Hall returned to his vehicle, ran the identifications, and

      determined that the passenger had committed a trespass violation. Officer Hall

      called for a backup officer to assist him in detaining the passenger. Officer Neil

      Chidalek responded.




      1
          Ind. Code § 35-48-4-11.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 2 of 11
[4]   After Officer Chidalek arrived, Officer Hall arrested the passenger and

      conducted a search incident to arrest. During a pat-down search of the

      passenger’s outer clothing, a bag of marijuana fell from the passenger’s groin

      area down his pants leg. Officer Hall secured the passenger in the back of one

      of the police vehicles.


[5]   Officer Hall could still smell marijuana emanating from the vehicle, so he asked

      Officer Chidalek to remove Terrell from the vehicle so that he could search it.

      When Terrell was removed from the vehicle, Officer Hall smelled marijuana on

      his person. Officer Hall asked Terrell if he had any marijuana on him; Terrell

      responded that he did not. Officer Hall did not find anything in his search of

      the vehicle. Officer Chidalek later searched the vehicle again and found

      marijuana “shake,” which is “little leafy parts of marijuana,” including “stems

      and whatnot[.]” Tr. Vol. II p. 50, 51.


[6]   Officer Chidalek conducted a limited pat-down search of Terrell for weapons

      but found no weapons or contraband. After searching the vehicle, Officer Hall

      returned to the area where Terrell and Officer Chidalek were standing; Officer

      Hall could still smell an “overwhelming” odor of raw marijuana emanating

      from Terrell. Id. at 18. Officer Hall walked Terrell back to his police vehicle

      and instructed Terrell to sit in the rear passenger seat with the door open and

      remove his shoes, but not his socks. Officer Hall looked inside the shoes and at

      the bottom of Terrell’s feet, but did not find marijuana.




      Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 3 of 11
[7]   Officer Hall instructed Terrell to put his shoes back on and stand up next to the

      vehicle. Officer Hall then conducted another pat-down search of Terrell’s outer

      clothing; this time, Officer Hall felt something near Terrell’s groin area. The

      officer pulled on the outside of the elastic waistband of Terrell’s loose-fitting

      sweatpants. The officer was wearing gloves and moved the waistband no more

      than two or three inches from Terrell’s waist. Officer Hall noticed that Terrell

      was wearing boxer shorts but did not look down Terrell’s pants at his groin

      area; instead, he looked only at Terrell’s waistline when he shook the

      sweatpants. When Officer Hall shook the pants, a plastic bag containing what

      was later revealed to be 7.6 grams of marijuana fell from Terrell’s groin area

      and down his pants leg to the ground.


[8]   Some cars passed by during the traffic stop, but Officer Hall did not recall any

      vehicles passing by during the search of Terrell. No pedestrians were in the

      area, the roadway did not have sidewalks, and no houses were in the vicinity.

      The passenger in Terrell’s vehicle was secured in another police vehicle during

      the search of Terrell.


[9]   On February 14, 2017, the State charged Terrell with Class B misdemeanor

      possession of marijuana. On July 29, 2017, Terrell filed a motion to suppress

      the marijuana evidence; the trial court later denied the motion. Terrell’s bench

      trial took place on August 31, 2017. The trial court found Terrell guilty as

      charged and sentenced him to 180 days, with 178 days suspended to probation.

      Terrell now appeals.



      Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 4 of 11
                                    Discussion and Decision
[10]   Terrell argues that the trial court erred by denying his motion to suppress the

       evidence, but because he is appealing following a completed trial, the issue is

       properly framed as an argument regarding the admission of the evidence at

       trial. E.g., Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). We will only

       reverse a trial court’s ruling on admission of evidence if the decision is clearly

       against the logic and effect of the facts and circumstances before the court. D.F.

       v. State, 34 N.E.3d 686, 688 (Ind. Ct. App. 2015). In conducting our review, we

       will neither reweigh the evidence nor assess witness credibility, but we apply a

       de novo standard of review to matters of law. Id. In other words, when a

       defendant contends that the trial court admitted evidence alleged to have been

       discovered as the result of an illegal search or seizure, an appellate court will

       generally assume the trial court accepted the evidence as presented by the State

       and will not reweigh that evidence, but we owe no deference as to whether that

       evidence established the constitutionality of the search or seizure. Id. at 689.


                                I. United States Constitution
[11]   Terrell first argues that the search was unconstitutional pursuant to the Fourth

       Amendment to the United States Constitution. A search conducted without a

       warrant is per se unreasonable unless it falls within a few well-delineated

       exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357

       (1967). Relevant to this case is the exception for searches incident to arrest.

       Terrell concedes that this exception applies to this case. Reply Br. p. 5; see also


       Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 5 of 11
       Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (holding that the smell of

       raw marijuana on a person is sufficient to provide probable cause that the

       person possesses marijuana); Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App.

       2004) (noting that so long as probable cause exists to make an arrest, “the fact

       that a suspect was not formally placed under arrest at the time of the search

       incident thereto will not invalidate the search”).


[12]   The purposes of a search incident to arrest are to ensure officer safety and to

       prevent destruction of evidence. United States v. Robinson, 414 U.S. 218, 227-28

       (1973). Even if a search incident to arrest is permissible, it must still be

       conducted in a reasonable manner. The United States Supreme Court has

       explained that evaluating the reasonableness of a search incident to arrest

       requires “a balancing of the need for a particular search against the invasion of

       personal rights the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In

       conducting this analysis, there are four factors to consider: (1) the scope of the

       particular intrusion, (2) the manner in which it is conducted, (3) the justification

       for initiating it, and (4) the place in which it is conducted. Id.


[13]   As for the first two factors, the scope of the intrusion was relatively minimal

       and the manner in which it was conducted was reasonable. Officer Hall,

       wearing gloves, conducted a pat-down search of Terrell’s person when Terrell

       was standing next to and partially shielded by a police vehicle. After feeling

       something near Terrell’s groin area, the officer pulled on the outside of the

       elastic waistband of Terrell’s pants. Officer Hall pulled the pants no more than

       two to three inches away from Terrell’s body and did not touch Terrell’s

       Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 6 of 11
       underwear, look in his groin area, or reach his hand inside Terrell’s pants.

       When the officer shook the waistline of Terrell’s pants, a bag of marijuana fell

       from Terrell’s groin area through his pants leg and to the ground.


[14]   Second, the justification for initiating the search was the strong odor of raw

       marijuana emanating from Terrell’s person. The odor of marijuana is sufficient

       to justify an officer’s belief that the offense of marijuana possession has

       occurred. E.g., State v. Parrott, 69 N.E.3d 535, 543-44 (Ind. Ct. App. 2017),

       trans. denied. At that point, Officer Hall had probable cause to arrest Terrell and

       needed no further justification to conduct the search incident to arrest.

       Robinson, 414 U.S. at 235. Because Officer Hall had probable cause to believe

       that Terrell had concealed evidence on his person, his search of Terrell was

       justified.


[15]   Finally, as for the place in which it was conducted, the search occurred

       alongside a busy road in Lafayette. It was dark enough in the area of the search

       that Officer Hall had to use a flashlight during the traffic stop, and no vehicles

       passed by during the search. Terrell was standing next to and partially shielded

       by a police vehicle, and the passenger in his vehicle was secured in a different

       vehicle. The area was non-residential and had no sidewalks or pedestrians.


[16]   Terrell directs our attention to Porter v. State, in support of his contention that

       the search ran afoul of the Fourth Amendment. 82 N.E.3d 898 (Ind. Ct. App.

       2017). We find Porter distinguishable from the instant case. In Porter, this

       Court found a search unconstitutional where an officer reached inside the


       Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 7 of 11
       female defendant’s tight-fitting pants and underwear to retrieve contraband

       during a traffic stop. The search occurred on a public street and the record was

       silent as to the time of day, whether any efforts were made to shield the

       defendant from view of any passersby or the two men at the scene, or whether

       the officer was wearing gloves. Id. at 906.


[17]   Here, in contrast, Officer Hall, who was wearing gloves, did not reach inside

       Terrell’s pants or underwear. The search was conducted under cover of

       darkness, partially shielded by a police vehicle, and out of the view of any

       bystanders in the non-residential area. Unlike in Porter, therefore, the scope of

       the intrusion was relatively minimal and the manner and place in which the

       search was conducted was designed to afford Terrell as much privacy as

       possible under the circumstances. We find that this search did not run afoul of

       the Fourth Amendment and that the trial court did not err by admitting the

       evidence at issue.


                                       II. State Constitution
[18]   Terrell next argues that the search violated Article I, Section 11 of the Indiana

       Constitution. Although that provision shares the same language as the Fourth

       Amendment, we interpret and apply it independently. State v. Bulington, 802

       N.E.2d 435, 438 (Ind. 2004). We construe this provision of the state

       constitution liberally “in favor of protecting individuals from unreasonable

       intrusions on privacy,” Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008),

       applying a totality of the circumstances test “to evaluate the reasonableness of


       Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 8 of 11
       the officer’s actions,” Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010). The State

       bears the burden of showing that the intrusion was reasonable. Bulington, 802

       N.E.2d at 438. In determining reasonableness, we consider “(1) the degree of

       concern, suspicion, or knowledge that a violation has occurred, (2) the degree of

       intrusion the method of the search or seizure imposes on the citizen’s ordinary

       activities, and (3) the extent of law enforcement needs.” Litchfield v. State, 824

       N.E.2d 356, 361 (Ind. 2005).


[19]   The degree of concern, suspicion, or knowledge that a violation had occurred

       was substantial. Officer Hall testified that he repeatedly noticed the

       overwhelming odor of raw marijuana emanating from Terrell’s person. Terrell

       argues that no foundation was laid to establish that Officer Hall had the training

       and experience to identify the odor of raw marijuana. The State did, however,

       ask Officer Hall the following question: “Based on your training and if you

       recall, was the odor of raw marijuana or burnt marijuana?” Tr. Vol. II p. 20.

       The officer replied, “Raw.” Id. Later, the State asked, “was the odor consistent

       with your training and experience of marijuana?” Id. at 21. And Officer Hall

       replied affirmatively. Id.


[20]   Ideally, a more thorough foundation would have been laid, but it was not. But

       at no point did Terrell object to Officer Hall’s many statements indicating that

       he smelled a strong marijuana odor on Terrell’s person. Given that no

       objections were made, we find that the limited questions and answers above

       suffice to establish that Officer Hall had the training to identify the odor of raw



       Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 9 of 11
       marijuana. As such, the degree of suspicion or knowledge that a violation had

       occurred was high.


[21]   Next, as noted above, we find the degree of intrusion to be relatively minimal.

       Terrell was first subjected to a limited pat-down search for weapons while his

       car was searched for marijuana and when that was not fruitful, Officer Hall

       searched Terrell’s shoes and conducted a more thorough pat-down of his outer

       clothing, including pulling on the outer waistband of Terrell’s loose-fitting

       sweatpants. Terrell’s body parts were never exposed, Officer Hall was wearing

       gloves, Officer Hall did not reach inside Terrell’s pants or underwear, and the

       search occurred at night, shielded by a police vehicle, with no passersby

       present. We find that Officer Hall used the least intrusive method possible to

       locate the contraband hidden on Terrell’s person.


[22]   Finally, the extent of law enforcement needs was moderate. Officer Hall knew

       that Terrell almost certainly had contraband on his person. Two of the

       purposes of a search incident to arrest are to ensure that the arrestee does not

       bring contraband into the jail and to prevent the destruction of evidence.

       Edmond v. State, 951 N.E.2d 585, 592 (Ind. Ct. App. 2011). To serve these

       purposes, therefore, Officer Hall needed to search Terrell’s person until the

       contraband was found.


[23]   We find that under the totality of the circumstances, the search was reasonable

       under the Indiana Constitution. Therefore, the trial court did not err by

       admitting this evidence.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 10 of 11
[24]   Terrell makes a final argument that, in the aggregate, the multiple searches

       amounted to an unconstitutional process even if no single search was

       problematic. We disagree. The officers had the authority to conduct a limited

       pat-down search for weapons when Terrell was removed from his vehicle, to

       search his vehicle when they smelled marijuana emanating from it, and to

       search Terrell incident to arrest—including asking that he remove his shoes and

       then conducting a more thorough pat-down search—once Officer Hall

       confirmed that the strong odor of marijuana was coming from Terrell’s person

       rather than from the vehicle. Each stage of the encounter was legal and there is

       no authority supporting Terrell’s argument that the cumulative nature of the

       lawful searches somehow renders the officers’ actions unconstitutional. We

       decline to reverse on this basis.


[25]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1712-CR-2941 | July 12, 2018   Page 11 of 11
