ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ruth Johnson                                               Gregory F. Zoeller
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           George P. Sherman
Timothy J. O’Connor                                        Deputy Attorney General
O’Connor & Auersch                                         Indianapolis, Indiana
Indianapolis, Indiana
                                                                                       Jun 22 2015, 8:55 am




                                             IN THE
    COURT OF APPEALS OF INDIANA

K.K.,                                                      June 22, 2015

Appellant-Respondent,                                      Court of Appeals Case No.
                                                           49A02-1410-JV-687
        v.                                                 Appeal from the
                                                           Marion Superior Court

State of Indiana,                                          The Honorable Marilyn A. Moores,
                                                           Judge
Appellee-Petitioner.                                       The Honorable Geoffrey A. Gaither,
                                                           Magistrate
                                                           Cause No. 49D09-1406-JD-1558




Kirsch, Judge.




Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015                    Page 1 of 15
[1]   K.K., a juvenile, brings this appeal after he was adjudicated a delinquent child

      for having committed the offense of dangerous possession of a firearm, 1 a Class

      A misdemeanor. He raises one issue that we restate as: whether the odor of

      burnt marijuana emanating from a vehicle in which K.K. was a passenger

      provided probable cause for officers to arrest the car’s three occupants, such that

      the loaded handgun found during the subsequent search of K.K. was properly

      admitted into evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   While on patrol in the early morning hours of April 12, 2014, Officer Vincent

      Stewart of the Indianapolis Metropolitan Police Department observed a two-

      toned Ford Crown Victoria that appeared similar to those used by law

      enforcement. It caught his attention because “we have a lot of impersonators

      and they are still driving these former police vehicles.” Tr. at 6. He also

      observed that the windows were tinted “very dark.” Id. Officer Stewart ran a

      search of the plates and learned that it was previously registered to a sheriff’s

      office or police department and that the current registered owner’s driver’s




      1
       See Ind. Code §35-47-10-5 (providing, in part, that a child who knowingly, intentionally, or recklessly
      possesses firearm for any other purpose other than described in section 1 of the chapter, which exempts
      certain uses of firearms such as attending a hunter safety course, commits Class A misdemeanor dangerous
      possession of firearm). We note that an amendment to this statute became effective on July 1, 2014. We will
      apply the statute in effect at the time that the offense occurred in April 2014.

      Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015                        Page 2 of 15
      license was suspended. Officer Stewart then initiated a traffic stop of the

      vehicle.


[4]   As is his custom, Officer Stewart approached the car from the passenger’s side,

      and he saw that, in addition to the adult male driver, there were two additional

      occupants, not previously observable because of the tinted windows.2 The

      driver’s son was the front seat passenger, and his friend, K.K., age seventeen,

      was seated in the backseat. As Officer Stewart was speaking with and obtaining

      identification from the three occupants, he noticed a strong odor of burnt

      marijuana coming from inside the vehicle. This concerned him, and he radioed

      for assistance. Rather than returning to his patrol car, Officer Stewart remained

      at the stopped vehicle and continued to speak with the three individuals inside

      it, including asking the occupants if there were “any guns, knives, or weapons

      of mass destruction in the vehicle,” which he always asks during traffic stops for

      officer safety, and the response he received was that there were none. Id. at 12.

      Another officer arrived at the scene, at which time Officer Stewart directed the

      three occupants to step out of the vehicle.


[5]   One or both of the officers conducted a “quick pat down” of the three

      occupants, from which nothing was found, and they were placed in handcuffs

      and told to sit on the curb. Id. at 13. A third officer, Officer Michael Leepper,




      2
        Under Indiana Code section 9-19-19-4(c), a person may not drive a motor vehicle that has a windshield,
      side window that is part of a front door, or a rear back window that is tinted to the extent that the occupants
      cannot be easily identified or recognized through the window from the outside of the vehicle. See Meek v.
      State, 950 N.E.2d 816, 819 (Ind. Ct. App. 2011), trans. denied.

      Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015                             Page 3 of 15
      arrived at the scene about that time. While Officer Stewart stepped away,

      Officer Leepper positioned himself to supervise the three who were handcuffed.

      Officer Leepper observed K.K. make a furtive movement by “blading” or

      turning his body to his left side. Id. at 29-30. Officer Leepper also noticed that

      K.K. looked “very nervous,” in contrast to the other two individuals. Id. at 31.

      Suspecting that K.K. was attempting to conceal something or trying to retrieve

      something, Officer Leepper directed K.K. to stand, at which time Officer

      Leepper patted down K.K. and discovered a loaded Glock handgun in the

      pocket of his basketball shorts.3 The serial number of the firearm had been

      scratched out.


[6]   The State filed a petition alleging that K.K., then-seventeen years old, was a

      delinquent child for having committed the offenses of dangerous possession of a

      firearm, a Class A misdemeanor, and carrying a handgun without a license, a

      Class A misdemeanor if committed by an adult.


[7]   At the fact-finding hearing, counsel for K.K. moved to suppress the handgun

      and objected to its admission several times during the testimonies of Officer

      Stewart and Officer Leepper. Id. at 9, 13, 34-36. The trial court denied the

      motions, admitted the handgun into evidence, and ultimately adjudicated K.K.

      a delinquent child, entering a true finding for the offense of dangerous

      possession of a firearm and dismissing the other charge. At the subsequent



      3
       The probable cause affidavit indicates that K.K. was wearing jeans over the basketball shorts. Appellant’s
      App. at 15.

      Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015                           Page 4 of 15
      dispositional hearing, the trial court placed K.K. on probation with a suspended

      commitment to the Indiana Department of Correction and ordered K.K. to

      participate in two specified programs. K.K. now appeals.


                                      Discussion and Decision
[8]   K.K. claims he was unlawfully seized in violation of the Fourth Amendment,

      and the evidence obtained from that seizure, the handgun, was “fruit of the

      poisonous tree” and should have been suppressed. Appellant’s Br. at 1, 6, 10.

      Because K.K.’s case proceeded to a fact-finding hearing, where he renewed the

      motion to suppress and objected to the admission of that evidence, his appeal is

      properly framed as a request to review the trial court’s ruling on the

      admissibility of the evidence. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind.

      2014) (recognizing direct review of denial of motion to suppress is only proper

      where defendant files an interlocutory appeal). The trial court has broad

      discretion to rule on the admissibility of evidence. Meek v. State, 950 N.E.2d

      816, 819 (Ind. Ct. App. 2011), trans. denied; Fentress v. State, 863 N.E.2d 420,

      422-23 (Ind. Ct. App. 2007). We will reverse a trial court’s rulings on the

      admissibility of evidence only when the trial court abused its discretion. Bell v.

      State, 13 N.E.3d 543, 544-45 (Ind. Ct. App. 2014), trans. denied. An abuse of

      discretion involves a decision that is clearly against the logic and effect of the

      facts and circumstances and the error affects a party’s substantial rights.

      Guilmette, 14 N.E.3d at 40. “But when an appellant’s challenge to such a ruling

      is predicated on an argument that impugns the constitutionality of the search or

      seizure of the evidence, it raises a question of law, and we consider that

      Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015    Page 5 of 15
      question de novo.” Id. at 40-41 (citing Kelly v. State, 997 N.E.2d 1045, 1050

      (Ind. 2013)).


[9]   K.K. contends that his arrest violated his protections under 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.
      U.S. Const. amend. IV. K.K. maintains that, under Indiana law, the smell of

      burnt marijuana coming from the car gave officers probable cause to conduct a

      warrantless search of the vehicle, but it did not give them probable cause to

      seize him by placing him in handcuffs and ordering him to sit on the curb. See

      Appellant’s Br. at 9 (citing Hawkins v. State, 766 N.E.2d 749, 752 (Ind. Ct. App.

      2002), trans. denied). He asserts that there “was no legitimate concern for officer

      safety,” and further, no marijuana was found during Officer Stewart’s search of

      the car, such that the officer’s claim that he smelled marijuana was pretextual

      and the officers were on a “fishing expedition.” 4 Id. at 3. Therefore, K.K.




      4
        Indiana has recognized that, even if a traffic stop was pretextual in nature, which we do not concede was
      the case here, such does not convert a valid traffic stop into an unconstitutional stop and search. See Lark v.
      State, 755 N.E.2d 1153, 1155 n.5 (Ind. Ct. App. 2001) (citing Kenner v. State, 703 N.E.2d 1122, 1129 n.1 (Ind.
      Ct. App. 1999), trans. denied and State v. Voit, 679 N.E.2d 1360, 1363 (Ind. Ct. App. 1997)), aff’d on reh’g, 759
      N.E.2d 275 (Ind. Ct. App. 2001)).



      Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015                              Page 6 of 15
       claims that the arrest was unlawful and anything stemming from it was fruit of

       the poisonous tree.


[10]   A search incident to lawful arrest is an exception to the warrant requirement

       under the Fourth Amendment. Bell, 13 N.E.3d at 545 (citing Arizona v. Gant,

       556 U.S. 332, 338 (2009)). An arrest is lawful if it is supported by probable

       cause. Fentress, 863 N.E.2d at 423. Probable cause for an arrest exists if at the

       time of the arrest the officer has knowledge of facts and circumstances that

       would warrant a person of reasonable caution to believe that the suspect has

       committed the criminal act in question. Kelly, 997 N.E.2d at 1051; Bell, 13

       N.E.3d at 545. A police officer’s subjective belief concerning whether he had

       probable cause to arrest a defendant has no legal effect. Bell, 13 N.E.3d at 545.

       The ultimate determination of probable cause is reviewed de novo. Id. Here,

       K.K. argues that “[t]he smell of burnt marijuana coming from inside of the car

       in which K.K. was a back seat passenger did not constitute probable cause for

       officers to arrest him and conduct a search of his person.” Appellant’s Br. at 6.

       After careful consideration, we disagree.5




       5
         As our Supreme Court has observed, “The line between a Terry stop and a full-blown custodial arrest is
       blurred by the tension and uncertainty inherent in such encounters.” Kelly v. State, 997 N.E.2d 1045, 1051
       (Ind. 2013). The typical Terry stop is a relatively brief encounter, whereas an arrest occurs when a police
       officer interrupts the freedom of the accused and restricts the person’s liberty of movement. Id.; Fentress v.
       State, 863 N.E.2d 420, 423 (Ind. Ct. App. 2007) (citing Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996)). Here,
       K.K.’s position is that he was arrested when he was handcuffed with hands behind his back and instructed to
       sit on the curb and that the arrest was unlawful; the State’s position is that the search that revealed the
       handgun was a lawful search incident to arrest. Thus, both parties’ baseline premise is that an arrest
       occurred, and we likewise proceed with our analysis on this basis.

       Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015                            Page 7 of 15
[11]   In reaching this decision, we observe our court’s analyses in recent decisions

       involving similar fact patterns, including Bell and Meek. In Meek, an officer

       conducted a traffic stop of a vehicle that he believed was driving away from an

       accident scene; the car had very dark window tint so that he could not see

       inside it. Upon stopping the vehicle, the officer learned that there were three

       occupants, two adults and a minor, and Meek was the driver. The officer

       smelled raw marijuana emanating from the car. 950 N.E.2d at 818. The officer

       called for back-up assistance. Upon inquiry, the occupants responded that there

       were no weapons or contraband in the car. The officers on the scene asked the

       two adults to step out of the car, and one officer read Miranda rights to the men,

       at which time Meek told the officer he had a weapon. The officers conducted a

       pat-down search of both men and found cash and Meek’s gun, as well as his

       permit for it. The officers did not find marijuana on either suspect and found

       none in the car. When questioned about the odor of marijuana coming from

       the car, Meek stated that he had previously smoked marijuana that day.

       However, because the officers had smelled raw, not burnt, marijuana, they

       conducted a more thorough pat-down search, and a baggie fell from Meek’s leg

       containing what officers suspected was marijuana and also white pills. Meek’s

       motion to suppress was denied. Id. at 819.


[12]   In Meek’s interlocutory appeal, he asserted that the trial court erred when it

       denied his motion to suppress the evidence because officers lacked probable

       cause to search his person based solely upon the smell of raw marijuana

       emanating from the vehicle he was driving. Id. Meek argued that the search


       Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015   Page 8 of 15
       violated Article 1, Section 11 of the Indiana Constitution. Id. at 820. A panel

       of this court determined that the search was reasonable in light of the totality of

       the circumstances, and we affirmed the denial of the motion to suppress. 6 Id.


[13]   That same month, a panel of this court decided Edmond v. State, 951 N.E.2d 585

       (Ind. Ct. App. 2011). In that case, an officer conducted a traffic stop and

       discovered the driver, the only person in the car, possessed a learner’s permit

       rather than a driver’s license. The officer smelled a strong odor of burnt

       marijuana coming from the vehicle and on Edmond’s breath. Id. at 587. Upon

       request, Edmond got out of the car, and the officer conducted a pat-down

       search and removed marijuana from Edmond’s pocket. Edmond’s motion to

       suppress was denied, and he was found guilty of possession of marijuana. Id.


[14]   On appeal, Edmond argued that the search and seizure violated his Fourth

       Amendment protections, as well as those under Article 1, Section 11 of the

       Indiana Constitution. Like K.K., Edmond conceded that the smell of

       marijuana coming from his vehicle could have established probable cause to

       search the vehicle. Id. at 588. Also like K.K., Edmond asserted that probable

       cause to search his vehicle did not extend to his person and that the pat-down




       6
         We recognize that the Article 1 Section 11 analysis is separate and distinct from Fourth Amendment
       analysis, which we are called to apply in K.K.’s case, and that in some cases Article 1, Section 11 confers
       greater protections to individual rights than the Fourth Amendment, but we nevertheless find that Meek is
       relevant and worthy of inclusion in our discussion, particularly given its factual similarities to the case before
       us. See e.g., Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (in addressing Bell’s Fourth Amendment
       challenges to officer’s pat-down, court included discussion of Meek, which presented Article 1, Section 11
       claim).

       Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015                               Page 9 of 15
       was not justified by a concern for officer safety. Id. at 589. In its Fourth

       Amendment analysis, the Edmond court observed, “[W]e have never

       determined whether the smell of burnt marijuana alone may constitute probable

       cause to support an arrest and search incident to arrest.” Id. at 591. The

       Edmond court concluded that under certain circumstances the odor of marijuana

       may constitute probable cause to support an arrest and search incident to arrest,

       reasoning:

               Because 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; however, we note that [the officer] specifically
               smelled marijuana on [the defendant]’s breath in addition to the odor
               coming from his vehicle. Furthermore, [the defendant] was alone in
               the vehicle.
       Id. The court determined that, under those circumstances, a person of

       reasonable caution would be warranted in the belief that Edmond possessed

       marijuana, and, thus, the officer had probable cause to arrest him and a lawful

       basis to search him. Id.


[15]   About one year later, this court decided Bell. There, Bell was a passenger in a

       vehicle that was stopped by an 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 occupants to exit the car. As Bell got out, the

       officer smelled raw marijuana coming from the car and from Bell’s person. Bell,

       13 N.E.3d at 544. The officer handcuffed Bell and conducted a pat-down

       search which revealed marijuana. Following her conviction for possession of

       marijuana, Bell appealed and argued that the pat-down search during the traffic

       Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015        Page 10 of 15
       stop violated her Fourth Amendment rights and that the marijuana should not

       have been admitted at trial. Bell asserted, and this court agreed, that the officer

       had no reason to believe that Bell was armed and dangerous and thus the pat-

       down was not justified by officer safety concerns. Id. at 545. Instead, the Bell

       court assessed whether the pat-down was permissible on the basis that the

       officer had probable cause to arrest Bell. Id.


[16]   Although the facts in Bell involved the odor of raw marijuana, the Bell court’s

       analysis recognized prior Indiana decisions involving the smell of burnt

       marijuana in a vehicle:

               In Shinault [v. State], 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 [274, 278 n.5 (Ind. Ct. App. 1996).] 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).
       Id. at 546. Ultimately, the Bell court determined, “[L]ike the smell of burnt

       marijuana, the smell of raw marijuana on a person is sufficient to provide

       probable cause that the person possesses marijuana.” Id. The court concluded

       that the officer had probable cause to arrest Bell and conduct a search incident

       to arrest, and the trial court did not abuse its discretion in admitting the

       evidence seized during the search. Id.


[17]   K.K. suggests that the Edmond decision requires that, for probable cause to

       exist, the officer must not only smell marijuana emanating from the vehicle,

       but, in addition, the defendant driver must be alone in the vehicle when the

       Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015       Page 11 of 15
       smell is detected, and the officer must detect it on the individual’s person or

       breath. Appellant’s Br. at 9-10. To the extent that Edmond could be interpreted

       to require the presence of all of these factors, we respectfully decline to follow

       it. In our view, whether the defendant is alone and whether the odor of

       marijuana – burnt or raw – is also present on an individual or his breath are

       factors to be considered in the analysis, not bright-line prerequisites necessary

       for probable cause to exist. As this court has recently observed:

               The amount of evidence necessary to meet the probable cause
               requirement is determined on a case-by-case basis. It is grounded in
               notions of common sense, not mathematical precisions. As such, the
               probable cause standard is a “practical, nontechnical conception that
               deals with the factual and practical considerations of everyday life on
               which reasonable and prudent men, not legal technicians, act.”
       White v. State, 24 N.E.3d 535, 539 (Ind. Ct. App. 2015), trans. denied (internal

       citations omitted). Taking into consideration the decisions discussed above, we

       conclude that, at the time of the arrest in this case, Officer Stewart had

       knowledge of facts and circumstances that would warrant a person of

       reasonable caution to believe that a criminal act had been or was being

       committed, and we find that probable cause existed to arrest the occupants of

       the vehicle, including K.K.


[18]   Our decision today is in line with a determination reached by our federal

       colleagues in Lessley v. City of Madison, Indiana, 654 F.Supp.2d 877 (S.D. Ind.

       2009). In Lessley, police conducted a traffic stop of a vehicle that had a broken

       license plate light. Several police cars were involved in the traffic stop, two

       parked in front of and one parked behind the stopped car. One officer

       Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015       Page 12 of 15
       approached the car and smelled marijuana7 and saw rolling papers. The

       women were directed to exit the car, and they were seated in police vehicles.

       One officer searched the car, but found “either nothing or a trace amount of

       marijuana.” Id. at 889. Another officer searched the pockets of the car’s three

       occupants and/or they were told to pull them out to view, but no marijuana

       was found. Officers called for a female officer to conduct a more thorough

       search, and when that officer arrived, the occupants were taken to a fire station

       and strip-searched, and marijuana was discovered on Lessley, at which time she

       was handcuffed and arrested. Lessley was charged with possession of

       marijuana, but those charges were later dismissed. All three occupants filed a

       complaint, alleging various state tort claims and federal civil rights claims, and

       it “became the subject of elaborate and expensive litigation” involving a

       “lengthy tour through wide tracts of Fourth Amendment law[.]” Id.


[19]   In the course of the Lessley Court’s discussion of the Fourth Amendment issues,

       it stated that probable cause existed to arrest Lessley because the officer smelled

       marijuana on her. 654 F.Supp.2d at 894. It continued, “Though it is a closer

       question, the officers also had probable cause to arrest [the other two

       occupants] because of the smell of marijuana emanating from [the] vehicle.”

       Id. (citing Maryland v. Pringle, 540 U.S. 366, 327 (2003) (finding it was




       7
         While the case does not state whether the officer smelled burnt or raw marijuana, the facts of the case reveal
       that, while in the car, each of the three occupants smoked from a marijuana cigarette, and then once they
       realized a police car was following them, one of the women placed two baggies of raw marijuana in her
       underwear. Lessley v. City of Madison, Ind., 654 F.Supp.2d 877, 890 (S.D. Ind. 2009). So according to the
       facts, it was possible that the odor of burnt or raw marijuana, or both, was present.

       Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015                           Page 13 of 15
       reasonable for officer to infer that any or all of occupants had knowledge of and

       exercised dominion and control over contraband)). The Lessley Court observed

       that, in the case before it, the three women were traveling in a private passenger

       car, “which suggested that at least one of the occupants had been smoking

       marijuana in the presence of others.” Id. at 894-95. “[T]he smell of marijuana

       indicated that there was marijuana in the vehicle and that all the occupants

       knew it,” and given that Indiana criminalizes the constructive possession of

       marijuana, the Lessley Court held that the officers had probable cause to arrest

       each of the three occupants. Id. at 895.


[20]   In the present case, after executing a valid traffic stop of a two-toned police-type

       vehicle with very dark tinted windows at 1:30 a.m., Officer Stewart

       encountered a strong odor of burnt marijuana emanating from the vehicle in

       which K.K. was a backseat passenger. Officer Stewart asked the three

       occupants whether drugs or weapons were present, and he was told there were

       none. The officer called for back-up assistance. Once another officer arrived,

       Officer Stewart ordered the three occupants out of the vehicle, and a brief pat-

       down of each of them was conducted, after which they were handcuffed and

       instructed to sit on the curb. A third officer who had arrived on the scene

       noticed K.K. making furtive movements, repeatedly leaning to his left, and

       appearing nervous. The officer patted down K.K. and found a loaded Glock

       handgun in his pocket. K.K. concedes, “If [he] had been lawfully under arrest

       during the search, then the handgun might have been admissible as the product

       of a lawful search incident to the arrest.” Appellant’s Br. at 10. Finding as we do


       Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015   Page 14 of 15
       that the arrest was supported by probable cause, the trial court did not abuse its

       discretion by allowing the firearm to be admitted into evidence because it was

       discovered pursuant to a lawful search incident to K.K.’s arrest.8


[21]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       8
         As did our colleagues in Edmond, we “caution police officers against routinely searching people stopped for
       traffic violations; it is not inevitable that there will always be a valid basis for doing so.” Edmond v. State, 951
       N.E.2d 585, 592 n.7 (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Opinion 49A02-1410-JV-687 | June 22, 2015                               Page 15 of 15
