                                                                           Jul 30 2013, 7:45 am

FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

STUART K. BAGGERLY                           GREGORY F. ZOELLER
Bloomington, Indiana                         Attorney General of Indiana

NOAH T. WILLIAMS                             ERIC P. BABBS
Bloomington, Indiana                         Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA


ADAM MILLER,                                 )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 53A05-1211-CR-560
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                    APPEAL FROM THE MONROE CIRCUIT COURT
                        The Honorable Marc R. Kellams, Judge
                            Cause No. 53C02-1101-CM-98



                                    July 30, 2013

                             OPINION - FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Adam Miller (Miller), appeals the trial court’s denial of his

motion to suppress.

       We reverse.

                                          ISSUE

       Miller raises four issues, one of which we find dispositive and restate as the

following: Whether the trial court erred by denying his motion to suppress.

                        FACTS AND PROCEDURAL HISTORY

        On January 9, 2011, Officer Jordan Hasler of the Bloomington Police

Department (Officer Hasler) was patrolling in his vehicle when he saw a vehicle driven

by Miller. After confirming that the vehicle’s license plate sticker had expired, he

initiated a traffic stop of Miller’s vehicle. Officer Hasler saw Miller reach toward the

right side of the car. Miller turned into a nearby restaurant parking lot and parked his car

in a handicapped parking space, reaching toward the left side of the car as he did so.

       Officer Hasler exited his vehicle and approached Miller’s vehicle on the passenger

side. Miller exited his car, coming out all the way out as he saw Officer Hasler at the rear

right bumper. Miller appeared irate and Officer Hasler commanded him to return to the

inside of the car. Miller continued to exit the car three more times, with Officer Hasler

commanding him to return. However, on the fourth time, Officer Hasler handcuffed

Miller outside the car. The parking lot was filled with people during this time.

                                             2
       Officer Hasler commenced a patdown of Miller’s clothing. He found no weapons

but noticed the smell of burnt marijuana on Miller’s clothes. Officer Hasler asked Miller

why he smelled of marijuana and Miller replied that he did not smoke marijuana and that

his father was a police officer. Officer Hasler asked Miller whether he had any “guns,

knives, needles […] rocket launchers or grenades in his car.” (Transcript p. 10). Miller

responded, “none that [Officer Hasler] needed to know of.” (Tr. p. 10). Officer Hasler

did not believe this was a common answer and was concerned that Miller may have a

weapon.

       Additional officers arrived at the scene. Officer Hasler determined that the car

was registered to Miller, but pursuant to Bloomington Police Department policy, decided

to have the vehicle towed because of its expired license plate sticker. Pursuant to policy,

the officers began an inventory search of Miller’s car prior to towing. Officer Hasler

issued Miller a citation. Miller was released from his handcuffs and told that he was free

to leave. Miller said that he needed his cell phone and backpack which were still inside

his car.

       Officer Hasler retrieved the backpack and searched it for weapons. Inside the

backpack, Officer Hasler saw two containers held together with a rubber band:            a

transparent Tupperware container that had green residue which Officer Hasler believed to

be marijuana, and an opaque “wooden container that contained a smoking device that

emitted burnt marijuana odor.” (Tr. p. 13).



                                              3
       Miller was arrested for possession of paraphernalia and the officers continued their

inventory search of Miller’s vehicle. Officer Hasler took Miller’s car key to open the

glove box in his car. Inside, a loaded handgun and a magazine containing 30 rounds of

ammunition was found. Miller had a license to possess the handgun. Approximately 45

minutes to an hour elapsed from the beginning of the traffic stop to Miller’s eventual

booking at jail.

       On January 10, 2011, the State filed an Information charging Miller with Count I,

possession of paraphernalia, a Class A misdemeanor, Ind. Code § 35-48-4-8.3(a)(1). On

November 7, 2011, Miller filed a motion to suppress the evidence, alleging violations of

both the Fourth Amendment of the United States Constitution and Article 1, Section 11

of the Indiana Constitution. On February 13, 2012, a hearing was held with Officer

Hasler and Miller providing testimony. The trial court took the matter under advisement.

On February 21, 2012, Miller filed a brief in support of his motion to suppress.

       On February 24, 2012, the Stated filed a motion to reopen evidence. The State

alleged that Officer Hasler had additional testimony required to resolve an issue

concerning the level of invasiveness of Officer Hasler’s search of the backpack. On

February 27, 2012, Miller opposed the State’s motion alleging prejudice if the State was

permitted to present additional evidence after Miller had filed his memorandum in

support of his motion to dismiss. On March 15, 2012, the trial court held an additional

hearing. Over objection, the State briefly examined Officer Hasler on his experience

with marijuana smoking paraphernalia, particularly the paraphernalia found in Miller’s

                                             4
backpack. Miller then extensively cross-examined Officer Miller on the paraphernalia,

the inventory search, his questioning of Miller regarding weapons, and his experience

with hidden weapons.

      On August 8, 2012, the trial court issued its Order denying Miller’s motion to

suppress. On August 24, 2012, Miller filed a motion to correct error and on September 7,

2012, filed a motion to certify the trial court’s Order for interlocutory appeal.     On

October 3, 2012, the trial court denied Miller’s motion to correct error and certified its

Order for interlocutory appeal.    On December 14, 2012, we accepted interlocutory

appeal.

      Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

                                  I. Motion to Suppress

      Miller argues that the trial court abused its discretion by denying his motion to

suppress. He contends that Officer Hasler’s search of his backpack violated his rights

under the Fourth Amendment of the United States Constitution. Specifically, he asserts

that Officer Hasler’s warrantless search of the backpack was not based on a reasonable

suspicion of criminal activity or reasonable safety concerns. He also contends that the

automobile exception to the Fourth Amendment does not apply.

      We review a denial of a motion to suppress similar to other sufficiency matters.

Dora v. State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), reh’g denied, trans. denied.

We do not reweigh the evidence, but consider conflicting evidence in the light most

                                            5
favorable to the trial court’s ruling. Id. Uncontested evidence, however, is viewed in

favor of the defendant. Id.

                                      A. Terry Stop

       The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures; its protections extend to the States through the

Fourteenth Amendment. Id. Warrantless searches are generally prohibited under the

Fourth Amendment. Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998). When a search is

conducted without a warrant, the State has the burden of proving that an exception to the

warrant requirement existed at the time of the search. Id.

       In upholding the search of Miller’s backpack, the trial court relied primarily upon

the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1 (1968), which

permits a warrantless but “reasonable search for weapons for the protection of the police

officer, where he has reason to believe that he is dealing with an armed and dangerous

individual, regardless of whether he has probable cause to arrest the individual for a

crime.” Id. at 27.    “The officer need not be absolutely certain that the individual is

armed; rather, the issue is whether a reasonable prudent person in the circumstances

would be warranted in the belief that his safety or that of others was in danger.” Id.

       In Berry, a police officer found Berry sleeping under some bushes. Berry, 704

N.E.2d at 465. Berry was not under arrest nor considered dangerous. See id. After his

story did not check out, the officer and Berry went to the officer’s patrol car. Id. The

officer picked up Berry’s backpack, placed it on her patrol car, and heard a metallic

                                             6
sound. Id. at 465-66. The police officer searched both Berry and the backpack and found

a handgun and ammunition. Id. at 466. The Berry court noted that, “circumstances that

justify a Terry stop and search of a person for a weapon do not automatically justify

examination of the contents of items carried by that person such as purses, backpacks or

briefcases.” Berry, 704 N.E.2d at 465. However, “where either the suspicion that

criminal activity may be afoot or a concern over the possibility of harm is reasonably

heightened during the stop, the police are authorized to search such items within the

suspicious person’s immediate control.” Id. at 466.

       The Berry court relied on Owens v. State, 497 N.E.2d 230, 232 (Ind. 1986), to

uphold the search. In Owens, police stopped Owens based on a description of a robbery

suspect. Id. at 231. After his story did not check out, an officer placed Owens’ bag on

the patrol car and heard a metallic sound. Id. A subsequent patdown and search of the

bag revealed a sawed-off shotgun. Id. The distinguishing feature in both cases was that

the police could point to an articulable fact in support of “a concern over the possibility

of harm [being] reasonably heightened during the stop.” Berry, 704 N.E.2d at 466.

       Because Officer Hasler did not point to articulable facts supporting either a

suspicion of criminal activity or a concern over the possibility of harm, we conclude that

Officer Hasler’s search of Miller’s backpack was impermissible under the Fourth

Amendment. Miller was initially detained by Officer Hasler for driving with an expired

license plate registration sticker. Due to Miller’s unusual behavior, he was restrained and

frisked for weapons by Officer Hasler. After Miller refused to consent to a search of his

                                            7
vehicle, Miller’s vehicle was to be inventoried and towed pursuant to Bloomington Police

Department policy. Officer Hasler issued him a citation and Miller was released from

handcuffs and told that he was free to go. Based upon Miller’s request, Officer Hasler

retrieved the backpack from the vehicle but searched his backpack. In explaining why he

searched Miller’s backpack, Officer Hasler testified on cross-examination as follows:

       [OFFICER HASLER]: […]. I was going to search for weapons due to the
       fact that it was in the vehicle and it was being inventoried.

       [MILLER]: So is it a – sorry, was it a search for weapons or an inventory?

       [OFFICER HASLER]: If a person comes to me and says I want a backpack
       or I want a hat in my car and it’s being inventoried, I’m going to search it
       for weapons prior to giving it back to him because I’m not going to hand
       him a case or a back pack after inventory in it that has a handgun or knife or
       something inside of it, for my safety.

…

       [MILLER]: Okay. If I were a student, would you refuse to let me get my
       books out of the car before your searched the book bag?

       [OFFICER HASLER]: I would search […] simply for our safety because
       you could have razor blades or other sharp objects or cut out, you know, a
       handgun could be in a book, I mean.

       [OFFICER HASLER]: Would you say if you stopped [the trial court
       judge] and his tags were expired and he said, hey I’d like to get my
       briefcase out of there. It’s got my files for [c]ourt today. You’d search it
       before you handed it to him?

       [OFFICER HASLER]: Yes, sir.

(Tr. pp. 21, 24).

       Unlike Owens and Berry, the traffic stop here terminated with the issuance of a

citation. Officer Hasler did not point to any suspicion that criminal activity was afoot,
                                            8
nor any facts in support of “a concern over the possibility of harm [being] reasonably

heightened during the stop.”           Berry, 704 N.E.2d at 466.             Instead, Officer Hasler’s

testimony demonstrates that his election to search the backpack was based upon

procedure. We conclude that this is insufficient under these circumstances.

        In defense of Officer Hasler’s search, the State points to Miller’s erratic behavior

prior to and immediately after the stop. As with many search cases and probable cause

issues, the timing of events and the officer’s knowledge are critical in determining the

validity of the search. Sears v. State, 668 N.E.2d 662, 666 (Ind. 1996), overruled on

other grounds, Scisney v. State, 701 N.E.2d 847, 849 (Ind. 1998). Officer Hasler’s

issuance of the citation ended the encounter and therefore the Terry stop; Miller had been

released from his handcuffs and told that he was free to go. Miller’s erratic behavior was

too attenuated to furnish either a suspicion of criminal activity or belief that it posed a

safety threat to trigger a new Terry stop after having been released.                       We therefore

conclude that Officer Hasler’s search of Miller’s backpack was impermissible under the

Fourth Amendment.1

                                      B. Automobile Exception

        In upholding the search of Miller’s backpack, the trial court also relied on the

automobile exception to the Fourth Amendment. The trial court reasoned that Officer

1
  Because we conclude that the search of Miller’s backpack and subsequent discovery of paraphernalia
were improper under the Fourth Amendment, we do not address the parties’ arguments on whether the
search comported with Article 1, Section 11 of the Indiana Constitution. Further, because we reverse the
trial court, we do not discuss whether the trial court abused its discretion by reopening the evidence on the
motion to suppress.

                                                     9
Hasler’s search was supported by probable cause based upon Officer Hasler’s prior

observation that Miller’s clothes smelt of burnt marijuana. On appeal, Miller argues that

Officer Hasler’s search was not based on probable cause.

      A search falls within the automobile exception when a vehicle is readily mobile

and there is probable cause to believe it contains contraband or evidence of a crime. See

Meister v. State, 933 N.E.2d 875, 878-79 (Ind. 2010). If probable cause exists, the police

have the authority to search a vehicle and all containers located therein.   See Krise v.

State, 746 N.E.2d 957, 962 (Ind. 2001). However, “the scope of a warrantless search

based on probable cause is no narrower – and no broader – than the scope of a search

authorized by a warrant supported by probable cause.” Id. at 749.

      The trial court concluded that “the distinctive odor of burnt marijuana emanated

from [Miller’s] clothes” “justifie[d] a search of the vehicle and containers therein based

on probable cause.” (Appellant’s App. p. 14). It also reasoned that Officer Hasler’s

observation of green residue inside the Tupperware container found in Miller’s backpack

“bolsters finding probable cause.” (Appellant’s App. p. 14). We disagree.

      “Facts necessary to demonstrate the existence of probable cause for a warrantless

search are not materially different from those which would authorize the issuance of a

warrant if presented to a magistrate.” Meister, 933 N.E.2d at 879. Probable cause to issue

a search warrant exists where the facts and circumstances would lead a reasonably

prudent person to believe that a search would uncover evidence of a crime. Id. Officer

Hasler noticed the smell of burnt marijuana emanating from Miller’s clothes prior to

                                           10
restraining him. Officer Hasler asked Miller why his clothes smelled of burnt marijuana

and Miller replied that he did not smoke marijuana and that his father was a police

officer. Following his patdown of Miller’s clothes, Officer Hasler did not find marijuana.

Thereafter, Officer Hasler issued him a citation and told Miller that he was free to leave.

       We have recognized that the odor of marijuana on a person’s breath and

emanating from inside a vehicle may give rise to probable cause that a person possesses

marijuana. Edmond v. State, 951 N.E.2d 585, 590-91 (Ind. Ct. App. 2011). At the same

time, “[b]ecause the odor of burnt marijuana might linger in a vehicle for a period of

time, that odor does not necessarily indicate illegal activity by a current occupant.” Id. at

591. Here, there is no evidence that the odor of marijuana emanated from the vehicle.

Following Miller’s request, Officer Hasler entered Miller’s vehicle to retrieve the

backpack yet he did not testify that the vehicle smelled of marijuana. To the extent that

the State argues that Miller’s prior actions supplied probable cause, we again conclude

that these circumstances are too attenuated given that Officer Hasler’s patdown found no

marijuana and Miller was told that he was free to leave. Because we conclude that

Officer Hasler provided no facts and circumstances that would lead a reasonably prudent

person to believe that a search would uncover evidence of a crime, probable cause to

search Miller’s backpack did not exist. As a result, the automobile exception to the

Fourth Amendment cannot be applied to uphold the search. Therefore, the trial court

erred by denying Miller’s motion to suppress.

                                      CONCLUSION

                                             11
      Based on the foregoing, we conclude that the trial court erred by denying Miller’s

motion to suppress.

      Reversed.

BROWN, J. concurs

BRADFORD, J. dissents with separate opinion




                                          12
                                                                       Jul 30 2013, 7:45 am




                            IN THE
                  COURT OF APPEALS OF INDIANA


ADAM MILLER,                                     )
                                                 )
       Appellant-Defendant,                      )
                                                 )
       vs.                                       )    No. 53A05-1211-CR-560
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


BRADFORD, Judge, dissenting


       While I agree with the majority that Officer Hasler’s search of Miller’s backpack

was not justified by officer safety concerns or as part of an inventory search of the

impounded car, I believe that it was supported by probable cause that contraband might

be found within. Also, in addressing arguments not reached by the majority, I would

conclude that Officer Hasler’s search did not violate the Indiana Constitution and that the




                                            13
trial court did not abuse its discretion in reopening the evidence at Miller’s suppression

hearing.


                                 I. Fourth Amendment


      The State argues that Officer Hasler’s search of Miller’s backpack was justified

pursuant to the automobile exception to the Fourth Amendment.


              As a general rule, the Fourth Amendment prohibits warrantless
      searches, but there are exceptions to the warrant requirement. Black v.
      State, 810 N.E.2d 713, 715 (Ind. 2004).…

             The automobile exception was first applied in Carroll v. United
      States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This exception
      was originally based on ready mobility and exigent circumstances. See
      Coolidge v. New Hampshire, 403 U.S. 443, 459-60, 91 S.Ct. 2022, 2034-
      35, 29 L.Ed.2d 564, 579 (1971). The United States Supreme Court later
      made clear that separate exigent circumstances are not required for the
      automobile exception to apply because “[t]he mobility of automobiles …
      ‘creates circumstances of such exigency that, as a practical necessity,
      rigorous enforcement of the warrant requirement is impossible.’”
      California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 2069, 85 L.Ed.2d
      406, 413 (1985) (quoting South Dakota v. Opperman, 428 U.S. 364, 367,
      96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000, 1004 (1976)); see also Maryland v.
      Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442, 445
      (1999) (“[T]he ‘automobile exception’ has no separate exigency
      requirement…. [I]n cases where there [is] probable cause to search a
      vehicle ‘a search is not unreasonable if based on facts that would justify the
      issuance of a warrant, even though a warrant has not been actually
      obtained.’”) (quoting United States v. Ross, 456 U.S. 798, 809, 102 S.Ct.
      2157, 2164-65, 72 L.Ed.2d 572, 584 (1982)); Pennsylvania v. Labron, 518
      U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031, 1036 (1996) (“If a
      car is readily mobile and probable cause exists to believe it contains
      contraband, the Fourth Amendment thus permits police to search the

                                           14
       vehicle without more.”). Furthermore, the exception is based not only on
       ready mobility but also on the lesser expectation of privacy with respect to
       automobiles, so that even where an automobile is not immediately mobile,
       a warrantless search may still be justified. Labron, 518 U.S. at 940, 116
       S.Ct. at 2487, 135 L.Ed.2d at 1036.

              In Dyson, the United States Supreme Court held that police need not
       obtain a search warrant before searching a vehicle that they have probable
       cause to believe contains illegal drugs. The Court emphasized that the
       automobile exception “does not have a separate exigency requirement,” id.,
       527 U.S. at 467, 119 S.Ct. at 2014, 144 L.Ed.2d at 445, and that “[i]f a car
       is readily mobile and probable cause exists to believe it contains
       contraband, the Fourth Amendment ... permits police to search the vehicle
       without more.” Id. (quoting Labron, 518 U.S. at 940, 116 S.Ct. at 2485,
       135 L.Ed.2d at 1035-36).



Myers v. State, 839 N.E.2d 1146, 1150-51 (Ind. 2005).


       I believe that Officer Hasler had ample probable cause to search Miller’s vehicle

and its contents, including the backpack. In cases where police detected the odor of burnt

marijuana emanating from a motor vehicle, Indiana Courts, adhering to the majority rule,

have consistently held that probable cause to search the car existed. See, e.g., State v.

Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002) (“[W]e have no hesitation in

deciding that when a trained and experienced police officer detects the strong and

distinctive odor of burnt marijuana coming from a vehicle, the officer has probable cause

to search the vehicle.”), trans. denied.


       While recognizing that there is nothing in the record to indicate that Officer Hasler

detected the odor of burnt marijuana emanating from Miller’s vehicle, I would still
                                            15
conclude that, under the circumstances of this case, probable cause existed to search it for

contraband. First and foremost, Officer Hasler detected the odor of burnt marijuana on

Miller’s person, which raises a reasonable inference that he had smoked marijuana

somewhat recently and might be in possession of contraband, either on his person or in

the vehicle he recently exited.


       Moreover, Miller’s actions before, during, and after the traffic stop were

suspicious and raised a reasonable inference that his vehicle contained contraband. After

Officer Hasler activated his lights, he noticed Miller “abruptly lean[] down as if he was

reaching for something or doing something to the right side as he turned into the parking

lot.” Tr. p. 7. After Miller quickly parked his vehicle, Officer Hasler observed Miller

“reach[] down as if he was reaching to the left side[.]” Tr. p. 7. When Officer Hasler

approached Miller’s car on the passenger side and had reached the back quarter panel,

Miller “abruptly exited the vehicle.” Tr. p. 8. Although Miller briefly returned to his

vehicle when advised to by Officer Hasler, he exited again almost immediately when

Officer Hasler started toward the passenger-side window. Miller sat down a third time in

the vehicle, but, again, almost immediately exited as Officer Hasler started to walk

around the rear of the vehicle. Officer Hasler advised Miller once to stay seated in the

vehicle, but Miller exited almost immediately for a fourth time.


       In my view, Miller’s actions also give rise to a reasonable inference that his

vehicle contained contraband.     Miller’s furtive actions before and after parking his


                                            16
vehicle are entirely consistent with a person secreting contraband that might otherwise be

plainly visible to a person standing outside looking into the vehicle, as Officer Hasler was

about to do. Miller’s refusal to remain in his vehicle, despite being advised to several

times, also leads to a reasonable inference that there was something within that he did not

want Officer Hasler to see or otherwise become aware of. In short, Miller seemed to

being doing everything he could to keep Officer Hasler away from his vehicle. 2 Miller’s

actions, along with the odor of marijuana emanating from his person, provided ample

probable cause to search his vehicle and containers within for illegal drugs. It is not

relevant to our analysis that Officer Hasler believed that his search of Miller’s backpack

was justified as an inventory search. Officer’s Hasler’s subjective beliefs, quite simply,

have no legal effect. See, e.g., Moffitt v. State, 817 N.E.2d 239, 246 (Ind. Ct. App. 2004),

trans. denied. I believe that objective probable cause existed to search the backpack, and

so Officer Hasler’s search, whatever his stated justification, was constitutional.


                                          II. Article I, Section 11


        I would also conclude that the search of Miller’s backpack did not violate Article

I, Section 11, of the Indiana Constitution, which provides that


        [t]he 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

2
   It is also worth noting that had Miller stayed seated in his vehicle as advised, Officer Hasler would likely have
first detected the odor of marijuana emanating from within the vehicle, which would have unquestionably justified a
search of the vehicle and its contents. As such, ruling in Miller’s favor would be, in effect, to reward him for
refusing to cooperate with law enforcement, an outcome I cannot endorse.

                                                        17
      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.



      The Indiana Supreme Court has noted that


      [w]hile almost identical in wording to the federal Fourth Amendment, the
      Indiana Constitution’s Search and Seizure clause is given an independent
      interpretation and application. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.
      2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999); Moran v.
      State, 644 N.E.2d 536, 540 (Ind. 1994). To determine whether a search or
      seizure violates the Indiana Constitution, courts must evaluate the
      “reasonableness of the police conduct under the totality of the
      circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005) (citing
      Moran, 644 N.E.2d at 539). “We believe that the totality of the
      circumstances requires consideration of both the degree of intrusion into the
      subject’s ordinary activities and the basis upon which the officer selected
      the subject of the search or seizure.” Id. at 360. In Litchfield, we
      summarized this evaluation as follows:

             In sum, although we recognize there may well be other
             relevant considerations under the circumstances, we have
             explained reasonableness of a search or seizure as turning on
             a balance of: 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
             citizens’ ordinary activities, and 3) the extent of law
             enforcement needs.

      Id. at 361.

Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005).




                                           18
Although Officer Hasler’s stated reason for searching Miller’s backpack was concern for

his safety, there was nonetheless a relatively high degree of suspicion that a criminal

violation had occurred. Miller was acting suspiciously, repeatedly failing to heed Officer

Hasler’s requests that he remain in his vehicle, and he smelled of burnt marijuana. Miller

seemed to be very intent on keeping Officer Hasler away from this vehicle, raising

suspicion that it might contain contraband. See, e.g., Edmond v. State, 951 N.E.2d 585,

592 (Ind. Ct. App. 2011) (concluding that degree of suspicion weighed in State’s favor

where there was probable cause to believe illegal drugs were present). The degree of

intrusion into Miller’s activities was slight. Officer Hasler’s search of Miller’s backpack

was not invasive or humiliating, did not involve searching his person, and apparently did

not lengthen his detention appreciably. Finally, I would conclude that the extent of law

enforcement needs was high enough to weigh in the State’s favor as well. While I agree

that Officer Hasler did not have sufficient justification to search the backpack for officer

safety reasons, there was ample reason to believe that it might have contained illegal

drugs, in whose removal from the streets police have an obvious interest. Under the

totality of the circumstances, I would conclude that Officer Hasler’s search of Miller’s

backpack was reasonable pursuant to Article I, Section 11.


                 III. Reopening the Evidence on the Motion to Suppress




                                             19
      Finally, Miller contends that the trial court abused its discretion in allowing the

State to reopen its evidence and present additional testimony from Officer Hasler at the

suppression hearing.


              [T]he granting of permission to reopen a case is within the discretion
      of the trial court and the decision will be reviewed only to determine
      whether or not there has been an abuse of that discretion. Gorman v. State
      (1984), Ind., 463 N.E.2d 254, 257. Among the factors which weigh in the
      exercise of discretion are whether there is any prejudice to the opposing
      party, whether the party seeking to reopen appears to have rested
      inadvertently or purposely, the stage of the proceedings at which the
      request is made, and whether any real confusion or inconvenience would
      result from granting the request. Flynn v. State (1986), Ind., 497 N.E.2d
      912, 914. Two conditions must be shown to exist to justify a court of
      appellate jurisdiction in setting aside a ruling made by a trial court in the
      exercise of judicial discretion: 1) the action complained of must have been
      unreasonable in light of all attendant circumstances or it must have been
      clearly untenable or unreasonable; and 2) the action was prejudicial to the
      rights of the complaining party. Flynn, 497 N.E.2d at 916, citing Allman v.
      State (1968), 253 Ind. 14, 19-20, 235 N.E.2d 56, 59.

             A party should be afforded the opportunity to reopen its case to
      submit evidence which could have been part of its case in chief. Gorman,
      463 N.E.2d at 257. Given [a] claim of insufficient evidence, “the State
      should have had an opportunity to supply such insufficiency or reopen the
      case for that purpose, even after it had rested, since a trial is not a game of
      technicalities, but one in which the facts and truth are sought.” Eskridge v.
      State (1972), 258 Ind. 363, 369, 281 N.E.2d 490, 493.



Ford v. State, 523 N.E.2d 742, 745-46 (Ind. 1988).


      I would conclude that the trial court did not abuse its discretion in allowing the

State to reopen its evidence and present further testimony from Officer Hasler. In so
                                          20
concluding, I find the preliminary stage of the litigation to be dispositive. Because a

pretrial suppression proceeding determines nothing with finality and retains no viability

once the case goes to trial, the State could have simply introduced the additional evidence

at that point if the trial court had denied its pretrial request.


       Once the matter proceeds to trial, the question of whether the trial court
       erred in denying a motion to suppress is no longer viable. See Beverly v.
       State, 801 N.E.2d 1254, 1260 n.5 (Ind. Ct. App. 2004), trans. denied;
       Packer v. State, 800 N.E.2d 574, 578 (Ind. Ct. App. 2003), trans. denied;
       Washington [v. State], 784 N.E.2d [584,] 586 [(Ind. Ct. App. 2003]. The
       logic behind this rule is that “‘a ruling upon a pretrial motion to suppress is
       not intended to serve as the final expression concerning admissibility.’”
       Joyner v. State, 678 N.E.2d 386, 393 (Ind. 1997) (quoting Gajdos v. State,
       462 N.E.2d 1017, 1022 (Ind. 1984)). In other words, the preliminary ruling
       on the defendant’s motion to suppress is subject to modification at trial. Id.



Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). Given that the State could just

have presented Officer Hasler’s testimony at trial had the trial court denied its request to

reopen its evidence, it would have made little sense to do so. I would therefore conclude

that the trial court did not abuse its discretion in this regard.


                                        CONCLUSION


       I would conclude that Officer Hasler’s search of Miller’s backpack violated

neither the Fourth Amendment of the United States Constitution nor Article I, Section 11,

of the Indiana Constitution. I would further conclude that the trial court did not abuse its

discretion in allowing the State to reopen its evidence at the suppression hearing.

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Consequently, I would affirm the trial court in all respects and must therefore respectfully

dissent.




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