                                                                       Jul 28 2014, 9:30 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                         GREGORY F. ZOELLER
Marion County Public Defender                 Attorney General of Indiana
Indianapolis, Indiana
                                              GEORGE P. SHERMAN
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

ASHLEY BELL,                                  )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A02-1312-CR-1026
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Steven J. Rubick, Magistrate
                          Cause No. 49F10-1307-CM-45257



                                    July 28, 2014


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Ashley Bell was the passenger of a vehicle that was stopped by a police officer

because of an illegally displayed temporary license plate. The officer learned that the driver

did not have a valid driver’s license and ordered the vehicle’s occupants to exit. As Bell

exited the vehicle, the officer smelled raw marijuana coming from both the vehicle and Bell’s

person. The officer handcuffed Bell and conducted a patdown search which revealed ten

baggies of marijuana. Bell was convicted of class A misdemeanor possession of marijuana.

       On appeal, she claims that the search of her person during the traffic stop violated the

Fourth Amendment and that the marijuana found during the search should not have been

admitted at trial. Concluding that the search was permissible under the Fourth Amendment,

we affirm.

                              Facts and Procedural History

       In July 2013, Bell was the front seat passenger of a vehicle that was stopped by

Indianapolis Metropolitan Police Department Officer Lorrie Phillips because of an illegally

displayed temporary license plate. The driver did not have a valid driver’s license. Officer

Phillips ordered the occupants of the vehicle to exit so the car could be towed. As Bell exited

the vehicle, Officer Phillips smelled a strong odor of raw marijuana coming from both the

vehicle and Bell’s person. Officer Phillips handcuffed and conducted a patdown search of

Bell which revealed ten individual baggies of marijuana in her possession. Bell was charged

with class A misdemeanor dealing marijuana and class A misdemeanor possession of




                                              2
marijuana. Following a bench trial, Bell was found not guilty of dealing but guilty of

possession.

                                  Discussion and Decision

       Bell claims that the trial court erred by admitting the evidence seized by Officer

Phillips because the search violated her rights under the Fourth Amendment to the United

States Constitution.

              A trial court has broad discretion in ruling on the admissibility of
       evidence. Accordingly, we will reverse a trial court’s ruling on the
       admissibility of evidence only when the trial court abused its discretion. An
       abuse of discretion involves a decision that is clearly against the logic and
       effect of the facts and circumstances before the court.

Smith v. State, 980 N.E.2d 346, 349 (Ind. Ct. App. 2012) (citations omitted), trans. denied

(2013). “We do not reweigh the evidence, and we consider conflicting evidence most

favorable to the trial court’s ruling.” Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App.

2000), trans. denied. However, we must also consider the uncontested evidence favorable to

the defendant. Id.

       Here, Bell does not challenge the constitutionality of the investigatory traffic stop, nor

does she challenge Officer Phillips’s order to exit the vehicle. However, Bell does claim that

the warrantless patdown search violated the Fourth Amendment, which states,

              The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated, and
       no Warrants shall issue, but upon probable cause, supported by Oath or
       affirmation, and particularly describing the place to be searched, and the
       persons or things to be seized.




                                               3
       Bell contends that Officer Phillips did not have reasonable suspicion to conduct the

patdown search. A patdown search is justified during an investigatory stop when the officer

is concerned for her safety; it is not to discover evidence of crime, but rather to allow the

officer to pursue her investigation without fear of violence. Shinault v. State, 668 N.E.2d

274, 277 (Ind. Ct. App. 1996). A patdown search for weapons may be conducted if the

officer is “justified in believing that the individual whose suspicious behavior he is

investigating at close range is armed and presently dangerous to the officer or to others.”

Jackson v. State, 669 N.E.2d 744, 747 (Ind. Ct. App. 1996) (quoting Terry v. Ohio, 392 U.S.

1, 24 (1968)). In a patdown search for weapons, an officer may seize nonthreatening

contraband if while patting down a suspect’s outer clothing she feels an object whose identity

is immediately apparent. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Bell asserts,

and we agree, that Officer Phillips had no reason to believe that Bell was armed and

dangerous.

       We note however, that a patdown search would have been permissible if Officer

Phillips had probable cause to arrest Bell. “Probable cause to search exists where the facts

and circumstances within the knowledge of the officer making the search, based on

reasonably trustworthy information, are sufficient to warrant a person of reasonable caution

in the belief that an offense has been or is being committed.” Meek v. State, 950 N.E.2d 816,

819 (Ind. Ct. App. 2011), trans. denied. One of the exceptions to the Fourth Amendment’s

warrant requirement is a search incident to a lawful arrest. Arizona v. Gant, 556 U.S. 332,

338 (2009). When probable cause exists to make an arrest, the fact that a suspect was not


                                              4
formally placed under arrest at the time of the search incident will not invalidate the search.

Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App. 2004), trans. denied. A police officer’s

subjective belief concerning whether she had probable cause to arrest a defendant has no

legal effect. Fentress v. State, 863 N.E.2d 420, 423 (Ind. Ct. App. 2007). The ultimate

determination of probable cause is reviewed de novo. Burkett v. State, 691 N.E.2d 1241,

1244 (Ind. Ct. App. 1998), trans. denied.

       Here, Officer Phillips conducted a patdown search of Bell after she smelled a strong

odor of raw marijuana coming from both the vehicle and Bell’s person. In a case involving

the Indiana Constitution, we concluded that a warrantless search of the defendant driver was

reasonable under the totality of the circumstances when the officer smelled raw marijuana

coming from the vehicle after a lawful traffic stop. Meek, 950 N.E.2d at 820. In Shinault,

we noted the possibility that the detection of a strong marijuana odor coming from the

defendant driver could have given the officer probable cause to arrest and further search the

defendant. 668 N.E.2d at 278 n.5. And we have previously held that the odor of burnt

marijuana from a person’s vehicle and breath yields probable cause to believe that she

possesses marijuana. Edmond v. State, 951 N.E.2d 585, 591 (Ind. Ct. App. 2011).

       We agree with the State’s argument that, like the smell of burnt marijuana, the smell

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

marijuana. We note that the odor of raw marijuana indicates that it has not been smoked and




                                              5
therefore still may be in the defendant’s possession.1 As such, we conclude that Officer

Phillips had probable cause to arrest Bell and conduct a search incident to arrest. Therefore

we also conclude that the trial court did not abuse its discretion in admitting the evidence

seized during the search. Consequently, we affirm.

        Affirmed.

BAKER, J., and BARNES, J., concur.




        1
         We note that a defendant may challenge the qualifications of the officer in determining the nature of
the odor. State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. denied. Here, Bell does not
challenge Officer Phillips’s training and experience in detecting the odor of raw marijuana.

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