                                                                                 FILED
                                                                            08/22/2017, 11:07 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Megan Shipley                                              Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana                                      Monika Prekopa Talbot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Taccasia Porter,                                           August 22, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1703-CR-572
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Steven Rubick,
Appellee-Plaintiff                                         Magistrate
                                                           Trial Court Cause No.
                                                           46G07-1610-CM-40805



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017                        Page 1 of 21
[1]   Taccasia Porter was a passenger in a vehicle that was pulled over for a routine

      traffic stop. During the stop, the officer noticed an odor of marijuana

      emanating from Porter’s person. An initial search revealed no contraband, so

      the officer decided to conduct a more thorough search. Therefore, on the side

      of a public road, with no evidence of any measures taken to protect Porter’s

      privacy or any law enforcement need to conduct the search right then and there,

      the officer pulled Porter’s jeans away from her body and inserted her hand

      inside Porter’s jeans. After feeling an object inside Porter’s underwear, the

      officer then stuck her hand inside Porter’s underwear, next to her genital area,

      and retrieved a marijuana blunt. While the initial pat-down search was

      permissible, we find that the subsequent search ran afoul of both the federal and

      state constitutions.


[2]   Porter appeals her conviction for Class B Misdemeanor Possession of

      Marijuana.1 Porter argues that the trial court erroneously admitted evidence

      stemming from an unduly invasive roadside search of her person by a police

      officer. We agree, and reverse.


                                                      Facts
[3]   On October 15, 2016, Indianapolis Metropolitan Police Officer Tiffany Wren

      made a traffic stop in the 2300 block of Lafayette Road for an unspecified

      headlights violation. Porter was a passenger in the vehicle that was pulled over.




      1
          Ind. Code § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 2 of 21
      When Officer Wren approached the vehicle, she smelled the odor of burnt

      marijuana. She called for backup and another officer responded. The officers

      asked Porter and the driver to get out of the vehicle.


[4]   When Porter exited the vehicle, Officer Wren smelled marijuana. Initially,

      Officer Wren could not tell whether the odor was coming from Porter herself or

      from “being in the car.” Tr. p. 10. Officer Wren searched Porter by checking

      her pockets, around the waistband of her jeans, and down her legs, but the

      officer did not find anything. Officer Wren then searched the vehicle, and did

      not find anything.


[5]   Officer Wren returned to where Porter and the driver were standing and again

      smelled “a very, very strong odor of raw marijuana coming from [Porter’s]

      person.” Id. at 11. Officer Wren then searched Porter a second time, re-

      checking all the areas she had already searched and also checking “the front of

      [Porter’s] pants.” Id. at 13. According to the officer, Porter’s “jeans were really

      tight so that I recall I had to really, like pull her jeans out in order to get my

      hand in there.” Id. at 16. Officer Wren put her hand inside the front of Porter’s

      jeans but outside of her underwear. Officer Wren stated, “when I put my hand

      in, I felt on the back of my hand something . . . I believed to be a marijuana

      blunt.” Id. at 13. Officer Wren then put her hand inside of Porter’s underwear,

      on the front side, and retrieved a blunt. Porter was then placed under arrest for

      possession of marijuana.




      Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017    Page 3 of 21
[6]   On October 16, 2016, the State charged Porter with Class B misdemeanor

      possession of marijuana. Porter’s bench trial took place on February 16, 2017.

      At the bench trial, Porter moved to suppress the evidence of the marijuana,

      arguing that the search was unconstitutional under the federal and state

      constitutions. The trial court denied the motion to suppress and admitted the

      evidence, ultimately finding Porter guilty as charged. The trial court sentenced

      Porter to 180 days in the Marion County Jail, with 178 days suspended. Porter

      now appeals.


                                    Discussion and Decision
[7]   Porter argues that the trial court erroneously admitted the evidence of the

      marijuana blunt stemming from Officer Wren’s roadside search of her person.

      We will only reverse a trial court’s ruling on admission of evidence if the

      decision is clearly against the logic and effect of the facts and circumstances

      before the court. D.F. v. State, 34 N.E.3d 686, 688 (Ind. Ct. App. 2015), trans.

      denied. In conducting our review, we will neither reweigh the evidence nor

      assess witness credibility, but we apply a de novo standard of review to matters

      of law. Id. In other words, when a defendant contends that the trial court

      admitted evidence alleged to have been discovered as the result of an illegal

      search or seizure, an appellate court will generally assume the trial court

      accepted the evidence as presented by the State and will not reweigh that

      evidence, but we owe no deference as to whether that evidence established the

      constitutionality of the search or seizure. Id. at 689.



      Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 4 of 21
                                    I. Trial Court’s Findings
[8]   The trial court made a brief oral statement explaining its ruling on Porter’s

      motion to suppress, and she argues that two of its factual findings were clearly

      erroneous. See L.A.F. v. State, 698 N.E.2d 355, 356 (Ind. Ct. App. 1998) (noting

      that we will accept a trial court’s factual findings unless they are clearly

      erroneous; findings are clearly erroneous when the record lacks any facts or

      reasonable inferences to support them). The trial court found as follows:


              Motion to suppress is denied. The officer conducted an initial
              brief patdown then proceeded to the car. Upon returning from
              the car, she noticed a strong odor emanating directly from Ms.
              Porter. The initial patdown search—if the initial patdown search
              had gone to this extent, I would have sustained it, the defendant’s
              motion to suppress. But this was a subsequent search based on
              the probable cause of the strong odor clearly emanating from Ms.
              Porter after the officer returned.


              I understand the defendant’s position with respect to the location,
              but the evidence before the Court incorporating the evidence from Officer
              Wren from the previous trial that this is at 10:00 o’clock at night, and the
              officer has testified that she kept her hands not in the, as I believe she
              said, the “private-private” area, but around the waistband.


              The Court finds that the level of intrusion, though greater than
              normal, was less of an intrusion on Ms. Porter than having her
              taken into custody, transported to the processing center, and
              subjected to a full search. The motion to suppress is denied.




      Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017         Page 5 of 21
       Tr. p. 22 (emphasis added). Porter argues that the trial court’s findings

       regarding the time of day the search occurred and the placement of Officer

       Wren’s hands during the search are clearly erroneous.


                                          A. Time of Search
[9]    With respect to the time of the search, the record is silent. Officer Wren

       testified that she “worked 12:00 to 10:00,” but did not specify whether it was

       noon to 10:00 p.m. or midnight to 10:00 a.m., and did not testify at all as to the

       time she pulled over the vehicle and searched Porter. Id. at 6. The trial court

       relied on information from a “previous trial,” id. at 22, to find that the search

       took place at 10:00 p.m., but there was no previous trial involving Porter. This

       may have been a reference to the trial of the driver of Porter’s vehicle, but

       Porter did not participate in that trial or have any opportunity to challenge

       testimony in that setting.


[10]   The State argues that Officer Wren testified that she did not issue a ticket “for

       the headlights,” id. at 23, which must mean that the incident occurred at night,

       in the dark. We disagree, as Officer Wren did not specify what headlights

       infraction may have occurred. There are many traffic infractions involving

       headlights that can be committed at any time of day or night. E.g., Ind. Code §

       9-21-7-2 (requiring use of headlights in certain weather conditions); I.C. § 9-21-

       7-3 (vehicle must display at least two headlights and may only have four

       auxiliary or spot headlights lit at one time); I.C. § 9-21-7-4 (vehicle may only

       have high beams lit if they strike less than seventy-five feet from the vehicle);


       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 6 of 21
       I.C. § 9-21-7-10 (prohibiting unauthorized display of colored lights on front of

       vehicle); I.C. § 9-21-13-4.5 (requiring use of headlights and taillights during

       participation in a funeral procession); I.C. § 9-21-8-55 (defining “aggressive

       driving,” in part, as “[r]epeatedly flashing the vehicle’s headlights”). Therefore,

       the mere fact that Officer Wren considered citing the vehicle for a headlights

       infraction does not permit a reasonable inference that the incident occurred at

       night. As there is no basis in the record supporting this finding, it is clearly

       erroneous.


                               B. Placement of Officer’s Hands
[11]   Next, we turn to the trial court’s finding that Officer Wren did not put her

       hands in the “‘private-private’ area” and instead kept them around Porter’s

       waistband. Id. at 22. Officer Wren testified that she searched “down through

       [Porter’s] pants,” pulling Porter’s jeans away from her body to insert the

       officer’s hand inside her pants, feeling the outside of Porter’s underwear, and,

       finally, sticking her hand inside of Porter’s underwear to retrieve the blunt;

       Officer Wren even explicitly testified that she placed her hands “in the crotch

       area” and “between [Porter’s] legs” to retrieve the marijuana. Id. at 13-16, 23.

       Therefore, the finding that Officer Wren kept her hands around Porter’s

       waistband and did not insert them beneath her clothing was clearly erroneous. 2




       2
         The State concedes that this finding was clearly erroneous but contends that this error is not enough to
       reverse the judgment. We agree, and will continue with the constitutional analysis.

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017                          Page 7 of 21
                                II. United States Constitution
[12]   Porter argues that the search was unconstitutional pursuant to the Fourth

       Amendment to the United States Constitution. A search conducted without a

       warrant is per se unreasonable unless it falls within a few well-delineated

       exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357

       (1967). Relevant to this case is the exception for searches incident to arrest.

       Porter concedes that this exception applies to this case because, “[a]lthough

       Officer Wren did not formally place Porter under arrest until after she found the

       marijuana, Officer Wren had the authority to search Porter once she smelled

       [the] odor of raw marijuana coming from her person.” Appellant’s Br. p. 12; see

       also Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (holding that the smell

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

       person possesses marijuana); Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App.

       2004) (noting that so long as probable cause exists to make an arrest, “the fact

       that a suspect was not formally placed under arrest at the time of the search

       incident thereto will not invalidate the search”).


[13]   The purposes of a search incident to arrest are to ensure officer safety and to

       prevent destruction of evidence. United States v. Robinson, 414 U.S. 218, 227-28

       (1973). Even if a search incident to arrest is permissible, it must still be

       conducted in a reasonable manner. The United States Supreme Court has

       explained that evaluating the reasonableness of a search incident to arrest

       requires “a balancing of the need for a particular search against the invasion of

       personal rights the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017      Page 8 of 21
       conducting this analysis, there are four factors to consider: (1) the scope of the

       particular intrusion, (2) the manner in which it is conducted, (3) the justification

       for initiating it, and (4) the place in which it is conducted. Id.


[14]   Turning to the instant case, we note that the State has the burden of proving the

       reasonableness of a warrantless search. Middleton v. State, 714 N.E.2d 1099,

       1101 (Ind. 1999). To establish reasonableness, the State is limited to the

       evidence it presented at trial and any reasonable inferences that may be drawn

       from that evidence. E.g., L.A.F., 698 N.E.2d at 356.


                                              1. Scope of Intrusion

[15]   As to the first Bell factor, the scope of the intrusion, Officer Wren testified that

       the second search included the use of force to pull Porter’s jeans away from her

       body: “her jeans were really tight so that I recall I had to really, like pull her

       jeans out in order to get my hand in there.” Tr. p. 16. Officer Wren first put

       her hand inside the front of Porter’s jeans but outside of her underwear, using

       the back of her hand to touch Porter’s underwear; then, she put her hand inside

       of Porter’s underwear and retrieved the blunt. Id. at 13-14.


[16]   It is well established in our culture that “people have a reasonable expectation

       not to be unclothed involuntarily, to be observed unclothed or to have their

       ‘private’ parts observed or touched by others.” Justice v. Peachtree City, 961 F.2d

       188, 191 (11th Cir. 1992); see also State v. Battle, 688 S.E.2d 805, 814 (N.C. Ct.

       App. 2010) (finding a similar search that included pulling a woman’s

       underwear away from her body on the side of a public roadway to be

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 9 of 21
       “humiliating”). Our General Assembly has also recognized a person’s privacy

       interest in the genital area of his or her body. See, e.g., Ind. Code § 35-45-4-

       5(a)(3) (defining “private area,” for purpose of voyeurism statute, as “the naked

       or undergarment clad genitals, pubic area, or buttocks of an individual”); Ind.

       Code § 35-42-4-8 (criminalizing the act of touching a person’s “genitals, pubic

       area, buttocks, or female breast” with intent to arouse when the person is

       unaware the touching is occurring). It would be hard to contest an assertion

       that one’s pubic area is a private area of the body that merits special protections.


[17]   We find two cases instructive on this Bell factor. First is Powell v. State, in which

       this Court considered an argument that a search incident to arrest was

       unreasonable under the Fourth Amendment. 898 N.E.2d 328 (Ind. Ct. App.

       2008). In Powell, while searching the defendant incident to his arrest for several

       crimes, a police officer felt a hard object in the seat of his underwear. Powell

       was wearing very droopy pants that hung below his buttocks, exposing his

       underwear. The officer decided to cut the object out of Powell’s underwear,

       which he was able to readily access because of the low position in which Powell

       was wearing his pants. The object was later determined to be cocaine enclosed

       in a fabric pocket. This Court did not find the search to be overly intrusive:

               Though the scope of the intrusion seems unreasonable at first
               blush, given that Powell was wearing his pants low, thereby
               exposing his underwear by his own doing, and the cocaine was
               kept in a pocket-type enclosure with material on both sides,
               Officer Thompson was able to remove the cocaine from Powell’s
               underwear without exposing any of Powell’s skin.


       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 10 of 21
       Id. at 335.


[18]   In this case, as in Powell, Officer Wren was able to remove the blunt from

       Porter’s underwear without exposing any of her skin. Unlike Powell, however,

       the manner in which Porter wore her clothing did not expose her

       undergarments or provide easy access to areas underneath her clothing.


[19]   The second case we find instructive is Battle, 688 S.E.2d 805, which is

       somewhat factually similar to the case before us. In Battle, the police pulled

       over a vehicle in which Battle was a passenger. The officers had probable cause

       to search Battle incident to arrest based on the statements of a confidential

       informant. A female officer instructed Battle to stand between the open doors

       of a police SUV parked on the side of the road so she could conduct the search

       out of the view of the public. The officer instructed Battle to pull the bottom of

       her bra away from her body and shake it; she was not required to remove her

       shirt. The officer then conducted a patdown, but did not find anything.

       Finally, the officer unzipped Battle’s pants, pulled them open, lowered them to

       her hip, and pulled back her underwear, where she found a crack pipe and a

       plastic baggie containing heroin. The officer saw the top of Battle’s pubic hair

       and buttocks; her underwear and pants were not pulled down. The Battle Court

       considered the Bell factors, finding that


               the scope of the intrusion relative to Defendant’s person was
               great, as any reasonable person would have found it to be a
               humiliating experience far beyond that incident to an arrest and
               search of Defendant’s outer garments alone. . . . Whether anyone
               other than [the police officer] actually saw Defendant’s private

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 11 of 21
               parts during the search is irrelevant to the Fourth Amendment
               analysis in this regard.


       Id. at 814. The Battle Court noted that the United States Supreme Court has

       held that the Fourth Amendment consequences of a search would not be

       analyzed “in a way that would guarantee litigation about who was looking and

       how much was seen.” Safford Unified Sch. Dist. No. 1. v. Redding, 557 U.S. 364,

       374 (2009).


[20]   In the instant case, Officer Wren did not lower Porter’s pants at all or visually

       observe any of Porter’s private areas, unlike in Battle. But the officer did

       strenuously pull Porter’s pants away from her body, insert her hand between the

       pants and underwear, and then insert her hand between the underwear and

       Porter’s body. So, while the scope of intrusion was arguably not as great as in

       Battle, it was still significant.


                               2. Manner in which Search was Conducted

[21]   The State presented limited evidence about the manner in which the search was

       conducted. The record reveals that Officer Wren is a woman. She testified that

       she had been trained on performing a search, but she did not testify as to the

       content of that training or whether she followed it. Tr. p. 14. And there is no

       evidence as to whether she conducted herself professionally, whether she wore

       gloves or followed proper procedures, or whether she attempted to protect

       Porter from public embarrassment. There were two men—the unnamed male

       officer and the male driver of the vehicle—at the scene when Porter’s


       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 12 of 21
       underwear was searched, and there was no evidence that Officer Wren moved

       Porter away from the men or otherwise attempted to block their view of Porter

       while she was searched. The State has the burden of proving the

       reasonableness of the search, and it did not establish that the search was

       conducted in a reasonable manner.


                                   3. Justification for Initiating Search

[22]   Porter concedes that Officer Wren had probable cause to conduct a search

       incident to arrest based on the odor of raw marijuana. But Officer Wren offered

       no justification for going steps further than a pat down, up to and including

       placing her hand inside Porter’s underwear, aside from her suspicion that Porter

       possessed marijuana.


[23]   In Powell, the officer testified that he needed to remove the unknown hard

       object from the defendant’s underwear prior to transporting him to the police

       station for reasons of officer safety. 898 N.E.2d at 335 (noting that Powell was

       suspected of felony possession of a gun and had already attempted to flee from

       officers earlier in the stop). This Court found the justification to be adequate in

       those circumstances. Id. In Battle, in contrast, the Court found that the

       justification was inadequate:


               The trial court made no findings of fact or conclusions of law
               regarding any exigent circumstances that existed warranting the
               roadside strip search of Defendant. . . . Detective Curl had
               already conducted the normal search incident to arrest, manual
               inspection over the top of Defendant’s clothing, as well as
               reaching inside Defendant’s pockets, without discovering

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 13 of 21
               anything suspicious. At the time Detective Curl initiated the
               strip search, there were no reasonable grounds to believe
               Defendant was concealing any weapon. There was no testimony
               indicating a belief that if Defendant was actually concealing
               drugs, that she was in a position to destroy or further hide that
               evidence. . . . This fails to meet constitutional muster.


       688 S.E.2d at 818.


[24]   Here, as in Battle, there is nothing in the record regarding any exigent

       circumstances. There is no evidence that Porter had made any furtive

       movements, that she resisted in any way, or that she presented any threat to the

       officers. Officer Wren voiced zero concerns about officer safety, nor did she

       testify that she was concerned that if Porter was concealing drugs, she would

       have been able to destroy, discard, or further hide that evidence before a full

       search could be conducted in a more private area. Officer Wren pulled the

       vehicle over for a minor traffic violation and extended the stop based on the

       odor of marijuana, which she encounters “almost daily.” Tr. p. 7-8. In other

       words, this was a routine encounter with no justification for an invasive

       roadside search. See Battle, 688 S.E.2d at 824 (noting that approving an

       underwear search for a “run-of-the-mill” stop would allow the police to conduct

       invasive searches anytime they “have probable cause to suspect drug activity”);

       Paulino v. State, 924 A.2d 308, 314 (Md. 2007) (cautioning that “[w]ithout the

       constitutional safeguards of exigent circumstances and reasonableness, every

       search incident to arrest could result in a strip search”).




       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 14 of 21
                                4. Place in which Search was Conducted

[25]   Finally, as for the place in which the search was conducted, the State again

       offered limited evidence. The record reveals that the traffic stop and search of

       Porter’s person took place on the side of the road in the 2300 block of Lafayette

       Road in Indianapolis. There is no evidence regarding time of day, amount of

       traffic, presence of pedestrians, type of neighborhood (residential or

       commercial), or proximity of buildings to the scene. The record does not reveal

       whether it was dark or light outside, but even if it was dark, there is no evidence

       about the lighting conditions, such as proximity and/or brightness of street

       lights, business lights, or patrol car headlights or spotlights. There is no

       evidence that Officer Wren took any precautions to block Porter from the view

       of any passersby on the street or sidewalk or the two men at the scene. Simply

       put, the evidence presented at trial was that the search took place in a public

       place, with no evidence that Porter was shielded from public view.


[26]   The State argues that “the record shows that [the] search occurred when it was

       dark outside, at 10:00 p.m. on the side of the road in the 2300 block of

       Lafayette Road.” Appellee’s Br. p. 13. As noted above, however, the record

       establishes neither that it was dark nor that it was 10:00 p.m. The State also

       points out that “[n]o one testified that there were vehicles driving by or

       pedestrians walking by during the search. Thus, exposure to the public was

       minimal.” Id. at 13-14. This argument, however, upends the burden of proof.

       As aptly put by Porter, “[b]ecause the State had the burden of establishing the

       reasonableness of the search at trial, the absence of evidence about traffic cannot

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 15 of 21
       be used as affirmative evidence on appeal that there was in fact no traffic.” Reply

       Br. p. 7 (emphases original). We agree.


[27]   The only evidence in the record about the location of the search was that it was

       “out on the side of the road” in the 2300 block of Lafayette Road in

       Indianapolis. Tr. p. 14. This is indisputably a public place. Thus, on appeal,

       the only evidence supporting the reasonableness of the search is that it occurred

       in a public place.


[28]   Having examined all of the Bell factors, we are compelled to conclude that this

       search was unreasonable under the Fourth Amendment. While there was

       probable cause to search Porter incident to arrest and to conduct the initial

       search of Porter’s person, when Officer Wren went several steps further by

       inserting her hand into Porter’s pants and then under her underwear, in a public

       place, with no voiced concerns about officer safety or destruction of evidence,

       the search became unreasonable. Therefore, the evidence of the marijuana

       found pursuant to the second, more invasive search should have been excluded.


                                    III. Indiana Constitution
[29]   Although Article I, Section 11 of the Indiana Constitution shares the same

       language as the Fourth Amendment, we interpret and apply the provision

       independently. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). We

       construe this provision of the state constitution liberally “in favor of protecting

       individuals from unreasonable intrusions on privacy,” Rush v. State, 881 N.E.2d

       46, 52 (Ind. Ct. App. 2008), applying a totality of the circumstances test “to

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 16 of 21
       evaluate the reasonableness of the officer’s actions,” Duran v. State, 930 N.E.2d

       10, 17 (Ind. 2010). The State bears the burden of showing that the intrusion

       was reasonable. Bulington, 802 N.E.2d at 438. In determining reasonableness,

       we consider “(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.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).


[30]   In Powell, having found that the search passed muster under the Fourth

       Amendment, this Court then turned to Article I, Section 11 of the Indiana

       Constitution. 898 N.E.2d at 336. The degree of suspicion was high because

       Powell was being arrested for numerous crimes, including felony possession of

       a gun and resisting law enforcement. Id. The degree of intrusion was lessened

       by the fact that Powell wore his pants in a way that exposed his underwear to

       the public. Id. Additionally, the officer was able to remove the package of

       cocaine without exposing any of Powell’s skin, Powell was shielded from public

       view by parked police cars and a building, and the officer testified that no

       pedestrians walked by during the search. Id. The law enforcement need was

       significant because the officer believed it was necessary to remove the unknown

       hard object for officer safety before transporting Powell to another location. Id.

       Under these circumstances, this Court found that the search of Powell did not

       violate the Indiana Constitution. Id.


[31]   In the instant case, Officer Wren undeniably had a valid reason to suspect that

       Porter was committing the Class B misdemeanor of possession of marijuana

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 17 of 21
       based on the odor of raw marijuana emanating from her person. There was no

       evidence, however, that Officer Wren ever suspected Porter of a more serious

       crime. See Edwards v. State, 759 N.E.2d 626, 627 (Ind. 2001) (holding that

       “routine, warrantless strip searches of misdemeanor arrestees, even when

       incident to lawful arrests, are impermissible under the Indiana Constitution”).


[32]   With regard to the degree of intrusion, we must consider “the nature of the

       privacy interest upon which the search intrudes and the character of the

       intrusion itself.” Chest v. State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009). As

       noted above, the privacy interest in this case—the sanctity of one’s most private

       areas—is of the highest degree. As to the character of the intrusion itself,

       Officer Wren pulled Porter’s jeans forcibly away from her body and inserted her

       hand inside the pants. She then inserted her hand inside of Porter’s underwear.

       All of this took place in a public area on the side of a road, with no evidence

       that any precautions were taken to protect Porter’s privacy from pedestrian or

       vehicular passersby or the two men on the scene. There is also no evidence that

       Officer Wren took sanitary precautions, such as using plastic gloves to conduct

       the search. Thus, the degree of intrusion was significant.


[33]   Finally, as to the extent of law enforcement needs, the State presented no

       evidence of an immediate need to search Porter on the side of the road, rather

       than taking her to a more private area such as a police vehicle, police station, or

       jail. Cf. Powell, 898 N.E.2d at 331 (noting that officer specifically testified that it

       “was necessary to remove the unknown object for officer safety before

       transporting Powell”) (emphasis added). Officer Wren voiced no concerns about

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 18 of 21
       officer safety, and there is no evidence that Porter did anything during the stop

       to create officer safety concerns. Likewise, there is no evidence that the officer

       was concerned that Porter would somehow be able to destroy, hide, or dispose

       of the evidence before a search of her person in a more private area could be

       conducted.3 Thus, the law enforcement need in this case was limited to the

       normal law enforcement task of enforcing Indiana’s misdemeanor laws.


[34]   Having considered the three factors, we can only conclude that the search in

       this case was unreasonable under the Indiana Constitution. While the officer

       had probable cause to believe Porter had committed a misdemeanor and had

       the authority to perform a search of her person incident to arrest, her decision to

       perform an intrusive search on the side of a public road, without a clear law

       enforcement need to do so, was unreasonable under the totality of the

       circumstances. Consequently, the admission of this evidence was also

       erroneous under the Indiana Constitution.


[35]   The judgment of the trial court is reversed.


       Bailey, J., concurs.
       Altice, J., concurs with a separate opinion.




       3
         The State mentions in passing “a potential health risk” to Porter had the officer left the marijuana in place
       inside Porter’s underwear pending transportation to a more private area for a fuller search. Appellee’s Br. p.
       21. But the State does not elaborate on what the health risk may have been, nor is there any evidence
       whatsoever in the record supporting such an assertion.

       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017                         Page 19 of 21
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Taccasia Porter,                                           Court of Appeals Case No.
                                                                  49A02-1703-CR-572
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Altice, Judge, concurring.


[36]   The slender record presented by the State below compels the result reached in

       this case. Officer Wren smelled a very strong odor of raw marijuana coming

       from Porter’s person but had been unable to locate the contraband during a pat

       down search. Officer Wren then pulled on the waistband of Porter’s jeans and

       reached her hand inside the front, crotch area, between Porter’s legs. Upon

       feeling what she believed to be a marijuana blunt, Officer Wren then placed her

       hand inside Porter’s underwear and retrieved the contraband.




       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017              Page 20 of 21
[37]   Although far from a strip search, I agree that this roadside exploratory search

       inside Porter’s pants was particularly intrusive and necessitated a showing that

       the search was performed in a reasonable manner or under exigent

       circumstances. The State made no such showing. The bare record establishes

       merely that the search occurred “out on the side of the road” in the 2300 block

       of Lafayette Road and was performed by a female officer with at least two

       males present at the scene. Transcript at 14. These facts are not sufficient to

       establish that the search was reasonable.




       Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017   Page 21 of 21
