MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      FILED
this Memorandum Decision shall not be                            Nov 22 2016, 9:19 am

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


ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                      Cara Schaefer Wieneke
Attorney General of Indiana                             Special Asst. to the Henry County
                                                        Public Defender
Angela N. Sanchez                                       Wieneke Law Office, LLC
Deputy Attorney General                                 Brooklyn, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                       November 22, 2016
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        33A05-1603-CR-562
        v.                                              Appeal from the Henry Circuit
                                                        Court
Terrence L. Hawkins,                                    The Honorable Mary G. Willis,
Appellee-Defendant.                                     Judge
                                                        Trial Court Cause No.
                                                        33C01-1007-FB-35



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 1 of 11
[1]   The State of Indiana appeals the trial court’s order granting a motion to

      suppress filed by Terrence L. Hawkins. The State raises one issue which we

      revise and restate as whether the trial court erred in granting Hawkins’s motion

      to suppress. We affirm.


                                          Facts and Procedural History

[2]   Shortly after noon on July 8, 2010, Richmond Police Officer David Glover

      observed a vehicle drive past on Interstate 70 at a high rate of speed. Officer

      Glover initiated a traffic stop and approached the vehicle. Officer Glover spoke

      to the driver, Hawkins, and the front seat passenger, Williams, and detected the

      odor of burnt marijuana coming from the vehicle. He noticed “some marijuana

      shake, small fragments of marijuana on the center console,” and asked Hawkins

      to step out of the vehicle. Transcript at 5. Officer Glover patted down Hawkins

      for weapons, asked him to identify an object in his pocket, and Hawkins

      answered that it was “two Gs,” which is a street term for $2,000. 1 Id. at 21.


[3]   Officer Glover spoke to the passenger, approached Hawkins again, had

      Hawkins sit in the front seat of the patrol vehicle, and called two other officers

      to the scene because of the odor of marijuana coming from the vehicle as well

      as the odor of alcohol on Hawkins’s breath. Officer Glover ran Hawkins’s

      driver’s license and the information for the passenger and started issuing a

      traffic ticket for speeding.




      1
          Officer Glover later determined that the amount was $1,862.


      Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 2 of 11
[4]   Henry County Sheriff’s Sergeant Jim Goodwin and Hancock County Sheriff’s

      Deputy Nick Ernstes arrived at the scene. Sergeant Goodwin and Deputy

      Ernstes reported to Officer Glover that they could also smell burnt marijuana

      and see a couple of pieces of shake. Deputy Ernstes spoke with Hawkins and

      detected the odor of an alcoholic beverage on his breath. Deputy Ernstes then

      spoke with Williams in Hawkins’s vehicle and smelled the odor of burnt

      marijuana coming from inside the car. Deputy Ernstes talked to Williams

      about the smell of marijuana, and Williams stated that he had been smoking

      marijuana at some point. Deputy Ernstes asked Williams to step out of the

      patrol vehicle, and after Williams did so, Deputy Ernstes could see loose green

      particles of marijuana on the floor board where he had been seated.


[5]   Deputy Ernstes handcuffed Williams, told him he was not under arrest, and

      read him his rights. Deputy Ernstes asked Williams if he knew there was

      marijuana in the car, and Williams said that he “thought there was.” Id. at 38.

      Williams “wasn’t specific in nature in where it was, but he told [Deputy

      Ernstes] he thought it was in there.” Id. Williams admitted “that he had been

      smoking marijuana and that he had . . . had marijuana on the [sic] possession.”

      Id. at 40.


[6]   Based upon the odor of burnt marijuana and observing the “shake” or raw

      marijuana, the police then searched the vehicle, and Officer Glover located a

      “blunt package” with two marijuana cigarettes in it in the ash tray of the

      passenger compartment and a set of digital scales in the center console. Id. at 8.

      Hawkins and the passenger were arrested for possession of marijuana,

      Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 3 of 11
      handcuffed, and placed in the patrol vehicles. After the arrest, Sergeant

      Goodwin and Deputy Ernstes then searched the trunk and found a marijuana

      bong inside a sack and two handguns.


[7]   On July 9, 2010, the State charged Hawkins with possession of a firearm by a

      serious violent felon as a class B felony, possession of marijuana as a class A

      misdemeanor, and possession of paraphernalia as a class A misdemeanor. In

      2011, the court issued a bench warrant after Hawkins failed to appear. In

      August 2015, the warrant was served, and the court held a hearing.


[8]   On November 4, 2015, Hawkins filed a motion to suppress the evidence seized

      from his person and property and argued that the stop, detention, search, and

      arrest were without probable cause, a warrant, or valid consent. He argued that

      his arrest, detention, and seizure of his property were in violation of the Fourth

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

      Indiana Constitution. On January 4, 2016, the court held a hearing on the

      motion.


[9]   On February 4, 2016, the court entered an order granting Hawkins’s motion to

      suppress as it related to the evidence seized from the trunk and denied the

      motion as to all other evidence seized. Specifically, the court found that the

      traffic stop was valid and the drug material on the console was in plain sight

      and validly seized and that the search of Hawkins was conducted with consent

      and was valid for both officer safety and as a search incident to arrest. The

      order then states:


      Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 4 of 11
        4. . . . . [Hawkins] was handcuffed and placed in the back of the
        police vehicle. The search of the trunk of the vehicle was
        conducted without a warrant and the court finds no exception for
        the trunk of the vehicle due to officer safety. The Court finds that
        the weapons were not in plain sight and were not under the
        control of [Hawkins] or the passenger. The Court finds that there
        is no evidence that the Officer reasonably believed that his safety
        was in jeopardy while waiting for further officers.


        5. One exception to the warrant requirement is the automobile
        exception. The State further argues that the “automobile
        exception” permitted the warrantless search of the entire vehicle.
        In Johnson v. State, 766 N.E.2d 426 (Ind. Ct. App. 2002), [trans.
        denied,] also involving unlawful possession of a firearm by a
        serious violent felon, the search under the hood of a vehicle
        following a tip that a gun could be found under the hood of the
        vehicle was valid because the threat of harm and loss of evidence
        was significant and the vehicle was readily mobile. However, the
        automobile exception is not without its limitations. Here, there
        was no threat of harm and the threat of loss of evidence was
        insignificant.


        6. One exception to the warrant requirement is an inventory
        search of a properly impounded vehicle, Fair v. State, 627 N.E.2d
        427 (Ind. [1993]). As stated in Edwards v. State, 762 N.E.2d 128
        (Ind. Ct. App. 2002), [aff’d on reh’g, 768 N.E.2d 506, trans. denied,]
        “to show that its actions come within the inventory exception,
        the State must do more than offer the bald allegation of law
        enforcement that the search was conducted as a routine
        inventory” for the trial court to determine if there is an
        evidentiary basis to evaluate whether the inventory search “was
        in conformity with established local law enforcement policy”.
        Although at the hearing, Officer Glover testified to an “inventory
        search” conducted after the arrest and prior to the vehicle being
        towed, this information is not contained within the police report
        where the search is referred to as a “PC search.” [State’s Exhibit

Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 5 of 11
        1]. No evidence was provided to the Court to establish that this
        was an inventory search pursuant to any established law
        enforcement procedure or protocol. Here, there wasn’t even a
        bald allegation of a local law enforcement policy or its
        compliance.


        7. The Court finds that the officer’s testimony that, in his
        training and experience, there may be additional drug evidence in
        the car was accurate. However, that should have prompted
        either an application for a search warrant or strict compliance
        with an established law enforcement protocol on an inventory
        search. The undersigned commends the work of the PACE team
        and recognizes the many improvements made in the process
        since it was initiated nearly six years ago.


        8. The Court of Appeals recently issued an opinion on nearly
        identical facts in Rhodes v. State, [50 N.E.3d 378,] (Ind. Ct. App.
        Jan. 19, 2016), which found the inventory search was
        unreasonable because the State did not prove the scope of the
        search complied with official police policy. In Rhodes, the
        testimony was even greater regarding an inventory search than
        was presented here.


        9. The Court finds that the warrantless search of the trunk of the
        vehicle without consent and without evidence of the established
        protocols and procedures of a valid inventory search was invalid.
        The seizure of the fruits of the invalid search of the trunk of the
        vehicle, the weapons, were poisoned by the improper search
        without a warrant. The drug material and paraphernalia were
        discovered in plain sight and seizure of these items was valid,
        however, the ends, do not justify the means of discovery of the
        weapons in the trunk of the vehicle.


        10. The items in the trunk of the vehicle were not in plain view
        and there is no evidence that there was a concern for officer

Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 6 of 11
               safety since [Hawkins] had been arrested, handcuffed and placed
               in the police vehicle. The Court finds that there was a basis for
               the stop and brief detention seeking the assistance of the fellow
               PACE officer based upon the strong odor of marijuana, and the
               seizure of the marijuana and paraphernalia was valid, but there
               was no basis for the warrantless search of the trunk of the vehicle
               and it does meet [sic] the automobile exception.


               11. The search of the vehicle of the trunk [sic] without a warrant
               and the seizure of the weapons from the trunk without a valid
               warrant was improper and no valid automobile or inventory
               exception existed.


               12. The Court finds the evidence seized from the trunk of the
               vehicle without a valid warrant was not within the inventory
               search exception, and the State shall be prohibited from
               introducing any evidence seized from the trunk of [Hawkins’s]
               vehicle without a warrant.


       Appellant’s Appendix at 95-97 (underlining and italics omitted).


[10]   On February 16, 2016, the State filed a motion to correct error. On March 8,

       2016, the court again found that the evidence seized from the trunk was without

       consent or a valid warrant and was not within the automobile or inventory

       exceptions and denied the State’s motion to correct error.


                                                   Discussion

[11]   The issue is whether the trial court erred in granting Hawkins’s motion to

       suppress. “In reviewing a trial court’s motion to suppress, we determine

       whether the record discloses ‘substantial evidence of probative value that

       supports the trial court’s decision.’” State v. Renzulli, 958 N.E.2d 1143, 1146

       Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 7 of 11
       (Ind. 2011) (quoting State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)). “We do

       not reweigh the evidence, but consider ‘conflicting evidence most favorably to

       the trial court’s ruling.’” Id. (quoting Quirk, 842 N.E.2d at 340). “When the

       State appeals from a negative judgment, as here, it ‘must show that the trial

       court’s ruling on the suppression motion was contrary to law.’” Id. (quoting

       State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008), reh’g denied). “[T]he

       ultimate determination of the constitutionality of a search or seizure is a

       question of law that we consider de novo.” Carpenter v. State, 18 N.E.3d 998,

       1001 (Ind. 2014).


[12]   The State argues that the search of the trunk was properly performed under the

       automobile exception to the warrant requirement. The State asserts that

       Hawkins admitted that police had probable cause to search his car and that, if

       probable cause justifies the search of a lawfully stopped vehicle, it justifies the

       search of every part of the vehicle and its contents that may conceal the object

       of the search. Appellant’s Brief at 14 (citing United States v. Ross, 456 U.S. 798,

       825 (1982)). The State contends that the automobile exception does not require

       that there be an imminent possibility the vehicle may be driven away. Id. at 15

       (citing State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010)). It argues that the

       trial court required more of the officers than was demanded by the Fourth

       Amendment by looking for exigent circumstances that endangered the officers

       or risked destruction of evidence, and that the search of the trunk for illegal

       drugs was reasonable under the Indiana Constitution.




       Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 8 of 11
[13]   Hawkins concedes that the State is correct that the odor of burnt marijuana

       gave Officer Glover the authority to search the vehicle for evidence of

       contraband, but argues that once Officer Glover found that evidence, under the

       holdings in Horton v. California, 496 U.S. 128 (1990) and Gonser v. State, 843

       N.E.2d 947 (Ind. Ct. App. 2006), he was required to terminate the warrantless

       search. Hawkins asserts that the officers had no authority under the automobile

       exception to continue searching the vehicle after they discovered the marijuana.

       He also argues that the search was not reasonable under Article 1, Section 11 of

       the Indiana Constitution. In reply, the State contends that the cases upon

       which Hawkins relies are clearly distinguishable because the object of the

       search in those cases was a specific, readily identifiable, and finite item, not a

       general class of evidence of unknown quantity as in this case.


[14]   We focus on the Indiana Constitution as we find it dispositive. Article 1,

       Section 11 of the Indiana Constitution provides:

               The 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 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.


[15]   “Although this language tracks the Fourth Amendment verbatim, we proceed

       somewhat differently when analyzing the language under the Indiana

       Constitution than when considering the same language under the Federal

       Constitution.” Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006), adhered to on

       Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 9 of 11
       reh’g, 848 N.E.2d 278 (Ind. 2006). “Instead of focusing on the defendant’s

       reasonable expectation of privacy, we focus on the actions of the police officer,

       concluding that the search is legitimate where it is reasonable given the totality

       of the circumstances.” Id. “We will consider the following factors in assessing

       reasonableness: ‘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.’” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind.

       2005)).


[16]   Based upon the odor of burnt marijuana, the marijuana and blunt cigarettes

       found in the passenger compartment of the vehicle, the set of digital scales in

       the center console, the money found on Hawkins’s person, and Williams’s

       statement that he thought there was marijuana in the car, we conclude that the

       degree of concern, suspicion, or knowledge that a violation occurred was high.


[17]   As for the degree of intrusion, we observe that the Indiana Supreme Court has

       held that “[w]ith respect to automobiles generally, it may safely be said that

       Hoosiers regard their automobiles as private and cannot easily abide their

       uninvited intrusion.” Brown v. State, 653 N.E.2d 77, 80 (Ind. 1995). The stop

       occurred shortly after noon at a time when prompt access to a magistrate would

       not have been difficult and along Interstate 70 exposing Hawkins to at least

       some public notice and embarrassment. Cf. Myers v. State, 839 N.E.2d 1146,

       1154 (Ind. 2005) (addressing a search that occurred at 1:00 a.m. and holding the

       search occurred at a time when prompt access to a magistrate would be more

       Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 10 of 11
       difficult and stating: “Second, the interior search of the defendant’s personal car

       was likely to impose an intrusion ‘on the citizen’s ordinary activities,’ but we

       recognize that, to a limited extent, the intrusion, at least as to public notice and

       embarrassment, was somewhat lessened because of the hour and place of the

       search”) (internal citation omitted).


[18]   With respect to the extent of law enforcement needs, Hawkins and his

       passenger were already under arrest at the point that the trunk was searched

       and there was little likelihood that the car would be moved or that the contents

       of the trunk would have been lost to the police. Cf. id. (observing that the

       defendant was present and not under arrest at the time of the interior search and

       free to drive his vehicle away and dispose of the contraband contained within,

       and concluding that the warrantless search of the defendant’s vehicle did not

       violate Article 1, Section 11 of the Indiana Constitution). Under these

       circumstances, we conclude that the search was unreasonable and violated

       Article 1, Section 11 of the Indiana Constitution.


                                                   Conclusion

[19]   For the foregoing reasons, we affirm the trial court’s grant of Hawkins’s motion

       to suppress.


[20]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A05-1603-CR-562 | November 22, 2016   Page 11 of 11
