MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be                               Dec 13 2016, 9:06 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                                 ATTORNEYS FOR APPELLEE
Tyler E. Burgauer                                       Gregory F. Zoeller
Certified Legal Intern                                  Attorney General of Indiana
Joel M. Schumm                                          Monika Prekopa Talbot
Appellate Clinic                                        Deputy Attorney General
Indiana University                                      Indianapolis, Indiana
Robert H. McKinney School of Law
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marcus Sanders,                                         December 13, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1605-CR-971
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Linda Brown,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G10-1601-CM-1539



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016     Page 1 of 7
                                          Case Summary
[1]   Following a bench trial, Marcus Sanders (“Sanders”) was convicted of

      Possession of Marijuana as a Class A misdemeanor. 1 Sanders now appeals,

      raising the sole restated issue of whether the trial court improperly admitted

      evidence observed in plain view during an investigatory stop. We affirm.



                                Facts and Procedural History
[2]   On December 3, 2015, Marion County Sheriff’s Deputy Brandon Stewart

      (“Deputy Stewart”), in full police uniform, was working as a courtesy officer for

      an apartment complex in Indianapolis. Around 9:00 p.m., Deputy Stewart saw

      a vehicle strike a curb twice while moving from one parking spot to another.

      Deputy Stewart was concerned that the driver was intoxicated and decided to

      check on the driver. As Deputy Stewart approached the vehicle, Sanders began

      to exit, and Deputy Stewart told Sanders to stay in the vehicle. Sanders

      complied and left the door open. Deputy Stewart noticed a clear “baggie” near

      the doorframe that contained a green leafy substance. Deputy Stewart seized

      the suspected contraband. Later testing concluded that the substance was

      marijuana.




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


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016   Page 2 of 7
[3]   On January 13, 2016, the State charged Sanders with Possession of Marijuana.

      During a bench trial, Sanders moved to suppress the marijuana evidence. The

      trial court denied Sanders’s motion and found Sanders guilty.


[4]   Sanders now appeals.



                                Discussion and Decision
[5]   Sanders argues that Deputy Stewart’s warrantless stop violated his rights under

      the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the

      Indiana Constitution. He contends that the marijuana evidence procured

      during the stop should not have been admitted.


[6]   The trial court has broad discretion to rule on the admissibility of evidence at

      trial. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We review the trial

      court’s ruling for abuse of that discretion and reverse only when admission is

      clearly against the logic and effect of the facts and circumstances before the

      court and the error affects a party’s substantial rights. Id. The constitutionality

      of a search or seizure is a question of law, which we review de novo. Kelly v.

      State, 997 N.E.2d 1045, 1050 (Ind. 2013). In reviewing the constitutionality of

      a search or seizure, we do not reweigh the evidence, but consider conflicting

      evidence most favorably to the trial court’s ruling. Belvedere v. State, 889 N.E.2d

      286, 288 (Ind. 2008).




      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016   Page 3 of 7
                                       Fourth Amendment
[7]   The Fourth Amendment provides protection against unreasonable searches and

      seizures by generally prohibiting such acts without a warrant supported by

      probable cause. U.S. Const. amend. IV. The State has the burden of showing

      that an exception to the warrant requirement applies. Osborne v. State, No.

      29S02-1608-CR-433, slip op. at 4 (Ind. Nov. 29, 2016). One exception is the

      Terry stop, which permits an officer to “stop and briefly detain a person for

      investigative purposes if the officer has a reasonable suspicion supported by

      articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks

      probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.

      Ohio, 392 U.S. 1, 30 (1968)). Such a stop “must be justified by some objective

      manifestation that the person stopped is, or is about to be, engaged in criminal

      activity.” United States v. Cortez, 449 U.S. 411, 417 (1981).


[8]   Here, Deputy Stewart saw Sanders twice strike a parking lot curb. Suspecting

      that Sanders was intoxicated, Deputy Stewart initiated a Terry stop. Sanders

      contends that “[i]t is not unusual for drivers to bump curbs while positioning

      their vehicles in parking lots,” (Appellant’s Br. at 10), characterizing the curb

      strikes as innocuous parking maneuvers. The evidence favorable to the ruling,

      however, indicated that Sanders struck the curb as he was moving between two

      parking spots.


[9]   In Robinson v. State, 5 N.E.3d 362 (Ind. 2014), our supreme court found

      reasonable suspicion to justify a Terry stop when an officer observed a vehicle


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016   Page 4 of 7
       cross over the fog line twice. The Robinson Court acknowledged that “such

       movement could have been attributable to driver distraction or some other

       more innocuous case,” but observed that “Terry does not require absolute

       certainty of illegal activity, but rather reasonable suspicion.” Robinson, 5

       N.E.3d at 368.


[10]   Just as there was reasonable suspicion in Robinson when the vehicle twice

       crossed the fog line, we find that under these facts there was reasonable

       suspicion when Sanders twice struck the curb while driving in a parking lot.

       Accordingly, Deputy Stewart did not violate Sanders’s Fourth Amendment

       rights when Deputy Stewart carried out an investigatory stop.


                                        Article I, Section 11
[11]   The text of Article 1, Section 11 of the Indiana Constitution is similar to that of

       the Fourth Amendment. However, we conduct a separate, independent inquiry

       focusing on whether the police conduct was “reasonable under the totality of

       the circumstances.” State v. Washington, 898 N.E.2d 1200, 1205-06 (Ind. 2008).

       In evaluating reasonableness, we consider three factors: “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).


[12]   Here, the degree of concern was high because Deputy Stewart witnessed

       Sanders twice strike a curb while driving between parking spots, indicating that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016   Page 5 of 7
       Sanders may have been impaired. The degree of intrusion was low, which

       Sanders concedes, because Deputy Stewart was carrying out a brief

       investigatory stop. The extent of law enforcement needs was high because an

       intoxicated driver could have returned to the road and endangered the public if

       Deputy Stewart had not intervened.


[13]   Sanders argues that law enforcement needs were nonexistent because Deputy

       Stewart was working in an off-duty capacity. Sanders relies on C.P. v. State, 39

       N.E.3d 1174 (Ind. Ct. App. 2015), trans. denied, where this Court found law

       enforcement needs nonexistent when an officer working a church event stopped

       someone who was wearing sagging pants and using obscenities, which violated

       church policies. Here, however, Deputy Stewart stopped Sanders on suspicion

       that Sanders was violating Indiana law.


[14]   We find that the investigatory stop was reasonable under the totality of the

       circumstances and, therefore, not in violation of Article I, Section 11.


[15]   Finally, we note that Sanders makes a cursory argument concerning plain view.

       The plain view doctrine provides that “police do not need a warrant to seize

       incriminating evidence . . . if the following conditions are met: (1) police have a

       legal right to be at the place from which the evidence can be plainly viewed; (2)

       the incriminating character of the evidence is immediately apparent; and (3)

       police have a lawful right of access to the object itself. Houser v. State, 678

       N.E.2d 95, 101 (Ind. 1997) (citing Horton v. California, 496 U.S. 128, 136-37

       (1990)). Here, Sanders contends that Deputy Stewart did not have a legal right


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016   Page 6 of 7
       to be in plain view of the marijuana evidence because the investigatory stop was

       unconstitutional. Having found no constitutional defect with the investigatory

       stop, we find that the plain view doctrine justified seizure of the marijuana

       evidence.



                                               Conclusion
[16]   Because Deputy Stewart constitutionally stopped Sanders, the trial court did

       not abuse its discretion in admitting evidence in plain view during the stop.


[17]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016   Page 7 of 7
