FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JOEL M. SCHUMM                                GREGORY F. ZOELLER
Clinical Professor of Law                     Attorney General of Indiana

JARRYD F. ANGLIN                              JODI KATHRYN STEIN
Certified Legal Intern                        Deputy Attorney General
Indiana University Robert H. McKinney
School of Law
Indianapolis, Indiana
                                              Indianapolis, Indiana
                                                                            FILED
                                                                      Feb 21 2012, 9:22 am


                                                                              CLERK
                              IN THE
                                                                            of the supreme court,
                                                                            court of appeals and
                                                                                   tax court



                    COURT OF APPEALS OF INDIANA


HERBERT YANEZ,                                )
                                              )
       Appellant-Defendant,                   )
                                              )
              vs.                             )    No. 49A02-1104-CR-362
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee-Plaintiff.                    )


                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Teresa Hall, Judge Pro Tempore
                           Cause No. 49F10-1004-CM-27238



                                  FEBRUARY 21, 2012

                              OPINION - FOR PUBLICATION



BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       Defendant-Appellant Herbert Yanez appeals his conviction of possession of

marijuana, a Class A misdemeanor. Ind. Code § 35-48-4-11 (1983).

       We reverse and remand.

                                         ISSUE

       Yanez presents two issues for our review, one of which is dispositive: whether the

trial court erred by admitting evidence of marijuana because it was discovered as the

result of an unconstitutional stop.

                        FACTS AND PROCEDURAL HISTORY

       On April 2, 2010, Special Agent Rodriguez with the Immigration and Customs

Enforcement Unit of the Department of Homeland Security, assisted by Officer

Humerickhouse with the Indianapolis Metropolitan Police, was conducting two

investigations at a flea market in Indianapolis: 1) Operation Community Shield (looking

for illegal immigrants who are gang members) and 2) customs detail for counterfeit

NCAA items. Yanez was present at the flea market that day with a female companion.

At some point, Yanez was approached by Special Agent Rodriguez, who began

questioning him. Officer Humerickhouse subsequently approached the two men to assist

Special Agent Rodriguez. At that time, Yanez began reaching toward his groin area, and

Officer Humerickhouse asked him to keep his hands out of his pockets. She also asked

him if he had any weapons and if she could perform a pat-down search. Yanez consented

to the search. As Officer Humerickhouse reached down to begin the pat-down search,

                                            2
she noticed a baggie with marijuana sticking out of Yanez’s pants pocket. Yanez was

charged with possession of marijuana as a Class A misdemeanor. A bench trial was held

during which Yanez moved to suppress the marijuana based upon the lack of

constitutional basis for the investigatory stop. The trial court denied the motion and

found Yanez guilty as charged. It is from this conviction that Yanez now appeals.

                               DISCUSSION AND DECISION

       Yanez contends that his rights under both the Fourth Amendment to the United

States Constitution and article I, section 11 of the Indiana Constitution were violated

when Special Agent Rodriguez stopped him and questioned him at the flea market.

Essentially, Yanez asserts that the trial court erred by admitting evidence of the marijuana

at trial because it was obtained as a result of the unconstitutional investigatory stop and

therefore should have been excluded. Because it is dispositive in this case, we need only

address the issue on state constitutional grounds.

       “Although we generally review a trial court’s decision to admit evidence despite a

motion to suppress under an abuse of discretion standard, the ultimate determination of

whether an officer had reasonable suspicion to conduct an investigatory stop is reviewed

de novo.” Harper v. State, 922 N.E.2d 75, 79 (Ind. Ct. App. 2010), trans. denied.

Nevertheless, we defer to a trial court’s determination of the facts, which will not be

overturned unless clearly erroneous. Belvedere v. State, 889 N.E.2d 286, 287-88 (Ind.

2008). We do not reweigh the evidence but consider conflicting evidence most favorably

to the trial court’s ruling. Id. at 288.

                                             3
       Article I, section 11 provides, “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable search or seizure, shall not be

violated . . . .” Although the language of Section 11 is very similar to that of the Fourth

Amendment, we interpret and apply it independently from the Fourth Amendment.

Masterson v. State, 843 N.E.2d 1001, 1006 (Ind. Ct. App. 2006), trans. denied. In

determining whether police behavior was reasonable under Section 11, courts must

evaluate the police conduct under the totality of the circumstances. Id. When police

conduct is challenged as violating Section 11, the burden is on the State to show that the

search or seizure was reasonable under the totality of the circumstances. State v.

Washington, 898 N.E.2d 1200, 1206 (Ind. 2008). The totality of the circumstances

evaluation requires consideration of both the degree of intrusion into the subject’s

ordinary activities and the basis upon which the officer selected the subject of the search

or seizure. Litchfield v. State, 824 N.E.2d 356, 360 (Ind. 2005). The determination of the

reasonableness of a search and seizure under Section 11 hinges on a balance of: 1) the

degree of concern, suspicion, or knowledge that a violation of law has occurred; 2) the

degree of intrusion the method of search or seizure imposes on the citizen’s ordinary

activities; and 3) the extent of law enforcement needs. Washington, 898 N.E.2d at 1206.

       Here, there was absolutely no evidence of a concern or suspicion that a violation

of law had occurred. The evidence shows only that Yanez was at a flea market and was

talking loudly to his female companion. The evidence further discloses that Special

Agent Rodriguez was the officer who stopped Yanez; however, Special Agent Rodriguez

                                            4
did not testify at the trial of this cause.        The State’s sole witness was Officer

Humerickhouse, who approached Special Agent Rodriguez and Yanez after Yanez had

already been stopped and subjected to questioning. Officer Humerickhouse testified that

Special Agent Rodriguez was at the flea market that day with regard to immigration

enforcement, and she indicated that looking for tattoos is part of the criteria.

       The State has failed to fulfill its burden under Article I, Section 11 of the Indiana

Constitution to establish the reasonableness of its actions in this case. The State failed to

present the testimony of Special Agent Rodriguez, the officer who initiated the stop of

Yanez. There was no evidence presented as to why Yanez was stopped or what occurred

between him and Special Agent Rodriguez when he was stopped. Thus, this Court is

unable to assess the reasonableness of the actions of Special Agent Rodriguez in stopping

Yanez.

       Further, the evidence that was presented on the State’s behalf in the form of the

testimony of Officer Humerickhouse also failed to establish the reasonableness of the

State’s actions. Her testimony showed that Yanez was at a flea market speaking loudly to

his female companion and that he apparently had a tattoo. Officer Humerickhouse did

not stop Yanez; rather, she approached the two men after Special Agent Rodriguez had

stopped Yanez and after he had begun questioning Yanez. The evidence presented by

Officer Humerickhouse is her postulation of what occurred between Yanez and Special

Agent Rodriguez and does not meet the reasonableness standard.                Moreover, her



                                              5
discovery of marijuana after Yanez was stopped cannot justify the initial illegal seizure

of Yanez by Special Agent Rodriguez.

       In addition, although the degree of intrusion on Yanez’s activities was minimal,

that factor is not sufficient to convert an otherwise unconstitutional stop into a

constitutional one. Finally, the extent of the officers’ need to investigate was nominal.

Nothing had occurred, other than Yanez speaking loudly in a busy public flea market, to

trigger a need to investigate.

                                    CONCLUSION

       The State did not carry its burden under Article I, Section 11 of the Indiana

Constitution to establish the reasonableness of its actions. We therefore reverse Yanez’s

conviction and remand for further proceedings consistent with this opinion.

       Reversed and remanded.

RILEY, J., concurs.

BARNES, J., concurring in result with separate opinion.




                                            6
                             IN THE
                   COURT OF APPEALS OF INDIANA



HERBERT YANEZ,                                 )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )     No. 49A02-1104-CR-362
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )




BARNES, Judge, concurring in result

      I concur in result because I agree that without the testimony of Agent Rodriguez,

we are left to wonder what triggered his initial approach to Yanez other than the “loud”

talking Yanez allegedly was engaged in with his female companion. Without more, the

State fails in its burden as the majority describes. However, I part company with the

analysis regarding “reasonableness” and the “seizure” of Yanez.

      If this case solely involved Officer Humerickhouse and her discovery of marijuana

on Yanez’s person, we would have a much different case. It doesn’t, and thus this result.
                                           7
Generally, police officers are not prohibited, under either the United States or Indiana

Constitutions, from approaching persons in public places and asking them questions. See

Powell v. State, 912 N.E.2d 853, 862-63 (Ind. Ct. App. 2009). Where an encounter such

as this is “consensual,” the officer has not seized anyone and there are no constitutional

implications.     Id.    Moreover, when Officer Humerickhouse approached Yanez, she

noticed that he smelled “strongly” of burnt marijuana. Tr. p. 24. This certainly would

have warranted further investigation into whether Yanez possessed marijuana, possibly

even including a search of his person. See Edmond v. State, 951 N.E.2d 585, 591 (Ind.

Ct. App. 2011).

        However, Yanez already was speaking with Agent Rodriguez when she decided to

approach Yanez; the question is whether Agent Rodriguez had seized him. 1

Circumstances that might indicate a seizure may include the threatening presence of

several officers, the display of a weapon by an officer, some physical touching of the

suspect by an officer, or the use of language or tone of voice indicating that compliance

with an officer’s request might be compelled. Powell, 912 N.E.2d at 860 (quoting United

States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). Without Agent

Rodriguez’s testimony, it is very difficult to assess whether any of these circumstances




1
  I note that although Agent Rodriguez is a federal law enforcement official, Indiana seems to adhere to
the view that the protections of the Indiana Constitution apply to actions of federal officials with respect
to state criminal prosecutions. See Moran v. State, 644 N.E.2d 536, 538-39 (Ind. 1994), abrogated on
other grounds by Litchfield v. State, 824 N.E.2d 356 (Ind. 2005).

                                                     8
existed,2 whether he had seized Yanez, and, thus, whether Yanez continued to be seized

when Officer Humerickhouse approached. We know nothing directly of what Agent

Rodriguez said to Yanez. Even if Yanez had been seized, it would not necessarily have

been an illegal seizure if Agent Rodriguez possessed reasonable suspicion or probable

cause of wrongdoing to support the seizure. See id. at 859. Without Agent Rodriguez’s

testimony, we cannot assess that question.

        As the proponent of evidence recovered during a warrantless search, it was the

State’s burden to prove that that search was constitutional. See Willis v. State, 780

N.E.2d 423, 428 (Ind. Ct. App. 2002). Although we can speculate that Yanez’s initial

encounter with Agent Rodriguez might have been “consensual,” as that word is defined

by case law, I believe it was the State’s burden to establish that it was. Without Agent

Rodiguez’s testimony, the State failed to meet that burden. Thus, I concur in result.




2
 Officer Humerickhouse testified that there were “several” officers in the vicinity where Yanez was being
questioned, but less than five. Tr. p. 22.
                                                   9
