FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JUNE E. BULES                                 GREGORY F. ZOELLER
Plymouth, Indiana                             Attorney General of Indiana

                                              ELLEN H. MEILAENDER
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                                                                      Apr 23 2014, 10:06 am

                              IN THE
                    COURT OF APPEALS OF INDIANA

CHARLA P. RICHARD,                            )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 50A03-1307-CR-297
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                    APPEAL FROM THE MARSHALL SUPERIOR COURT
                          The Honorable Robert O. Bowen, Judge
                              Cause No. 50D01-1201-FD-43



                                    April 23, 2014

                             OPINION - FOR PUBLICATION

SHEPARD, Senior Judge
       When a police dog alerts to the presence of narcotics in a vehicle, does an officer

have probable cause to arrest and thus search the vehicle’s passenger? On the facts of

this case, we answer yes and therefore affirm.

                         FACTS AND PROCEDURAL HISTORY

       On January 24, 2012, Officer John Weir of the Plymouth Police Department was

on duty in his squad car with his canine partner Rex, who was trained in narcotics

detection. When a vehicle in front of them repeatedly crossed the center line, Officer

Weir initiated a traffic stop. Christopher Fields was in the driver’s seat, and appellant

Charla Richard was in the front passenger seat. Officer Weir recognized both from

previous interactions and knew that a warrant had been issued for Fields just the day

before.

       On the basis of the warrant, Officer Weir arrested Fields and placed him in his

squad car. He then retrieved Rex and walked him counterclockwise from the front

bumper of the vehicle. Rex alerted at the driver’s door.

       Officer Weir asked Richard to step out of the vehicle and then called Officer

Bridget Hite to the scene so that she could search Richard. In conducting the search,

Officer Hite noticed that Richard appeared to favor one side, so she asked her to raise her

arm on that side. When Richard did so, a small tin fell out of her shirt onto the ground.

The tin held two small plastic baggies containing a white powdery substance later

determined to be meth.




                                            2
        The State charged Richard with class D felony possession of methamphetamine. 1

Richard moved to suppress the evidence obtained from the search on both federal and

state constitutional grounds. The trial court denied the motion.

        In her subsequent bench trial, Richard objected to the meth evidence on the same

grounds as in her motion to suppress. The court overruled her objections and found her

guilty. She was later sentenced to the advisory term of one and a half years.

                                               ISSUES

        Richard contends the methamphetamine evidence was inadmissible because the

search of her person based on the police dog’s positive alert violated both the Fourth

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

Constitution.

                                 DISCUSSION AND DECISION

                                   I. FOURTH AMENDMENT

        The Fourth Amendment protects people from unreasonable searches and seizures.

Warrantless searches are per se unreasonable under the Fourth Amendment, subject to a

few well-delineated exceptions. Kelly v. State, 997 N.E.2d 1045, 1050-51 (Ind. 2013).

One such exception is for searches incident to a lawful arrest. Ward v. State, 903 N.E.2d

946, 957 (Ind. 2009), adhered to on reh’g, 908 N.E.2d 595 (2009).

        The facts here show that Richard was searched incident to a lawful arrest.

Specifically, Rex’s positive alert at the driver’s door provided probable cause to believe


1
 The State also charged her with possession of paraphernalia as a class A infraction, but that charge was
dismissed at trial on the State’s motion.
                                                   3
the vehicle contained illegal drugs. See State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind.

2010) (“The subsequent dog sniff provided probable cause that the vehicle contained

illicit drugs.”). And because there was probable cause to believe the vehicle contained

drugs, there was probable cause to believe any of its passengers had at least constructive

possession of the drugs.

       Richard nonetheless argues that her mere presence as a passenger in the suspected

vehicle was not enough to establish probable cause as to her. The U.S. Supreme Court

has indicated otherwise. In Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L.

Ed. 2d 769 (2003), a car occupied by Pringle and two other men was stopped for

speeding. In the course of the stop, the officers received consent to search the car and

found a large sum of money in the glove compartment and cocaine behind the backseat

armrest. When questioned, the men offered no information about who owned the drugs

or money. They were arrested.

       The sole question addressed by the Supreme Court was whether there was

probable cause to believe that Pringle had committed a crime. The unanimous Court

concluded: “We think it an entirely reasonable inference from these facts that any or all

three of the occupants had knowledge of, and exercised dominion and control over, the

cocaine. Thus, a reasonable officer could conclude that there was probable cause to

believe Pringle committed the crime of possession of cocaine, either solely or jointly.”

Id. at 372.

       In reaching this conclusion, the Court distinguished Pringle’s case with a case in

which a person was singled out as the guilty party. See United States v. Di Re, 332 U.S.

                                            4
581, 68 S. Ct. 222, 92 L. Ed. 210 (1948). In Di Re, an informant told an investigator that

he was to buy counterfeit gasoline ration coupons from Buttitta at a particular place. The

investigator went to the place and saw the informant, holding gasoline ration coupons, in

a car with Buttitta and Di Re. Upon questioning, the informant said Buttitta had given

him the counterfeit coupons.      All three men were arrested.       The Supreme Court

concluded that there was no probable cause to believe Di Re was involved in the crime:

“Any inference that everyone on the scene of a crime is a party to it must disappear if the

Government informer singles out the guilty person.” Id. at 594. Pringle distinguished Di

Re on this basis, saying: “No such singling out occurred in this case; none of the three

men provided information with respect to the ownership of the cocaine or money.”

Pringle, 540 U.S. at 374.

       Here, Rex’s positive alert provided probable cause to believe there were drugs in

the vehicle. And there was no indication that Fields, and only Fields, was involved in

narcotics activity. It was thus an entirely reasonable inference that any of the vehicle’s

occupants had at least constructive possession of drugs.        Richard’s arrest and the

subsequent search did not violate the Fourth Amendment.

                              II. ARTICLE 1, SECTION 11

       Although the language of Article 1, Section 11 of the Indiana Constitution tracks

the Fourth Amendment almost verbatim, the state constitutional analysis is different.

Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). Under the Indiana Constitution, the

legality of a governmental search turns on an evaluation of the reasonableness of the

police conduct under the totality of the circumstances. Id. Although there may be other

                                            5
relevant considerations, the reasonableness of a search or seizure under the Indiana

Constitution generally turns on a balance of: (1) the degree of concern, suspicion, or

knowledge that a violation has occurred, (2) the degree of intrusion that the method of the

search or seizure imposes on the citizen’s ordinary activities, and (3) the extent of law

enforcement needs. Id. at 361.

         Rex gave a positive alert on the vehicle in which Richard was riding. There was

thus a high degree of suspicion that Richard actually or constructively possessed illegal

drugs.    And although any search of a person necessarily intrudes on that person’s

ordinary activities, there is no evidence or claim that the one here was in any way

extensive. When Officer Hite noticed Richard did not want to raise one arm, she ordered

her to raise it. When Richard did so, the methamphetamine tin fell out of her shirt onto

the ground. Given the minimal nature of the search, the degree of intrusion was slight.

Finally, the extent of law enforcement needs was significant. Rex’s positive alert for

narcotics turned the traffic stop into a narcotics investigation and gave rise to a

reasonable belief that Richard had illegal drugs on her person. Based on the totality of

the circumstances, the search of Richard was reasonable under the Indiana Constitution.

         Because the search did not violate the Fourth Amendment or Article 1, Section 11,

there was no error in the admission of the meth evidence at Richard’s trial.

                                      CONCLUSION

         We therefore affirm her conviction.

NAJAM, J., and RILEY, J., concur.



                                               6
