                                                                         Oct 22 2013, 5:28 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

BARBARA J. SIMMONS                                 GREGORY F. ZOELLER
Oldenburg, Indiana                                 Attorney General of Indiana

                                                   MARJORIE LAWYER-SMITH
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TONY KIMBLE,                                       )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 49A02-1303-CR-268
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Steven J. Rubick, Magistrate
                            Cause No. 49F19-1209-CM-67847



                                        October 22, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On September 29, 2012, while working as an off-duty police officer at the Keystone

North Apartments, Marion County Sheriff’s Deputy James Ellis observed Appellant-

Defendant Tony Kimble entering the driver’s seat of a parked vehicle after displaying signs

of intoxication. Believing that Kimble was intoxicated, Deputy Ellis approached the vehicle

and asked Kimble for identification. While reviewing Kimble’s identification, Deputy Ellis

saw Kimble reach into his left front pocket. Kimble did not remove his hand from his pocket

when Deputy Ellis requested that he do so. In light of Kimble’s failure to comply with his

request and out of concerns for officer safety, Deputy Ellis asked Kimble to exit the vehicle.

When Kimble opened the door to the vehicle, Deputy Ellis saw two small bags containing

marijuana in plain view on the floorboard of the driver’s area of the vehicle.

       Kimble was subsequently charged with one count of Class A misdemeanor possession

of marijuana. At trial, Kimble moved to suppress all evidence recovered during the course of

his encounter with Deputy Ellis. This motion was denied. Kimble did not, however, make a

separate objection to the admission of the marijuana. Following a bench trial, Kimble was

found guilty of Class A misdemeanor possession of marijuana and sentenced to time served.

On appeal, Kimble contends that the trial court abused its discretion in denying his motion to

suppress. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On September 29, 2012, Deputy Ellis was working security at the Keystone North



                                              2
Apartments1 (“apartment complex”). The apartment complex is government housing. There

are signs posted throughout the apartment complex that indicate that any resident or visitor to

the apartment complex must carry proper government identification at all times.

       While completing a routine foot patrol of the apartment complex, Deputy Ellis

observed Kimble exit an apartment and approach a parked vehicle. Deputy Ellis observed

that Kimble displayed poor balance, swayed from side to side, and almost fell over several

times. Deputy Ellis’s training and experience led him to believe that Kimble was “possibly

in the state of intoxication.” Tr. p. 8.

       Deputy Ellis approached Kimble after Kimble entered the driver’s seat of the parked

vehicle. Deputy Ellis asked Kimble for identification. Kimble complied with Deputy Ellis’s

request. While Deputy Ellis was reviewing Kimble’s identification, Deputy Ellis saw Kimble

reach into his left front pocket. Deputy Ellis asked Kimble to remove his hand from his

pocket. Kimble, however, did not comply with Deputy Ellis’s request and continued

“fumbling around” in his pocket. Tr. p. 11. Citing concerns for officer safety, Deputy Ellis

then asked Kimble to exit the vehicle. When Kimble opened the door to the vehicle, Deputy

Ellis saw two small bags of a green leafy substance in plain view on the floorboard of the

driver’s area of the vehicle. Though his training and experience, Deputy Ellis knew that the

green leafy substance was marijuana. Combined, the two bags contained 2.62 grams of

marijuana.

       Kimble was subsequently charged with one count of Class A misdemeanor possession


       1
           The Keystone North Apartments are also known as the Phoenix Apartments.
                                                  3
of marijuana. On February 25, 2013, the trial court conducted a bench trial during which

Kimble moved to suppress all evidence recovered during the course of his encounter with

Deputy Ellis. Specifically, Kimble argued that his encounter with Deputy Ellis violated his

constitutional rights because Deputy Ellis did not have any reason to stop him. The trial

court denied Kimble’s motion to suppress. Kimble did not make a separate objection to the

admission of the marijuana. Following trial, the trial court found Kimble guilty of Class A

misdemeanor possession of marijuana and sentenced him to time served.

                            DISCUSSION AND DECISION

      Kimble contends that the trial court erred in denying his motion to suppress the

evidence obtained during his encounter with Deputy Ellis. Although Kimble originally

challenged the admission of the evidence through a motion to suppress, he appeals following

a completed trial and thus challenges the admission of the evidence at trial. “Accordingly,

‘the issue is more appropriately framed as whether the trial court abused its discretion by

admitting the evidence at trial.’” Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007)

(quoting Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003)).

      Our standard of review for rulings on the admissibility of evidence is
      essentially the same whether the challenge is made by a pre-trial motion to
      suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-
      75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the
      evidence, and we consider conflicting evidence most favorable to the trial
      court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
      trans. denied. We also consider uncontroverted evidence in the defendant’s
      favor. Id.

Id.


                                            4
       A trial court has broad discretion in ruling on the admissibility of evidence.

Washington, 784 N.E.2d at 587 (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind. Ct.

App. 2001)). Accordingly, we will reverse a trial court’s ruling on the admissibility of

evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at

273). An abuse of discretion involves a decision that is clearly against the logic and effect of

the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093,

1095 (Ind. Ct. App. 2000)). In the instant matter, Kimble argues that the trial court abused its

discretion in admitting the marijuana discovered during his encounter with Deputy Ellis

because the marijuana was discovered in violation of his constitutional rights under both the

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

Constitution.

                                         A. Waiver

       As an initial matter, we note that while Kimble moved to suppress all evidence

discovered during his encounter with Deputy Ellis, Kimble did not make a contemporaneous

objection to the admission of the marijuana at trial. Failure to make a contemporaneous

objection to the admission of evidence at trial generally results in waiver of the error upon

appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010); Lewis v. State, 755 N.E.2d 1116,

1122 (Ind. Ct. App. 2001). However, waiver notwithstanding, we will address the merits of

Kimble’s claims.

                                B. The Fourth Amendment

       Kimble argues that the trial court abused its discretion in admitting the marijuana

                                               5
found in his vehicle during his encounter with Deputy Ellis into evidence because Deputy

Ellis lacked the reasonable suspicion that a crime had occurred or was about to occur when

he initiated the warrantless stop during which the marijuana was discovered.

      The Fourth Amendment to the United States Constitution provides all citizens
      with “[t]he right of people to be secure in their persons, houses, papers, and
      effects, against unreasonable searches and seizures ....” U.S. CONST. amend.
      IV; see also Black v. State, 810 N.E.2d 713, 715 (Ind. 2004). The Fourth
      Amendment’s protection against unreasonable search and seizure has been
      extended to the states through the Fourteenth Amendment. See Berry v. State,
      704 N.E.2d 462, 464-65 (Ind. 1998). The protection against unreasonable
      seizures includes seizure of the person. California v. Hodari D., 499 U.S. 621,
      624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (citation omitted). However, not
      all police-citizen encounters implicate the Fourth Amendment. See, e.g., Terry
      v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“Only
      when the officer, by means of physical force or show of authority, has in some
      way restrained the liberty of a citizen may we conclude a ‘seizure’ has
      occurred.”); see also Molino v. State, 546 N.E.2d 1216, 1218 (Ind. 1989). A
      seizure does not occur, for example, simply because a police officer
      approaches a person, asks questions, or requests identification. Florida v.
      Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also
      Sellmer v. State, 842 N.E.2d 358, 360 (Ind. 2006) (recognizing that a person is
      not seized within the meaning of the Fourth Amendment when police officers
      merely approach an individual and ask if the individual is willing to answer
      questions).
              Instead, a person is seized for Fourth Amendment purposes when,
      considering all the surrounding circumstances, the police conduct “would have
      communicated to a reasonable person that the person was not free to decline
      the officers’ requests or otherwise terminate the encounter.” Florida v. Royer,
      460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion);
      see also INS v. Delgado, 466 U.S. 210, 216-17, 104 S.Ct. 1758, 80 L.Ed.2d
      247 (1984) (“Unless the circumstances of the encounter are so intimidating as
      to demonstrate that a reasonable person would have believed he was not free to
      leave if he had not responded, one cannot say that the questioning resulted in a
      detention under the Fourth Amendment.”).
              Applying a version of the U.S. Supreme Court’s test, this Court has
      determined that not “every street encounter between a citizen and the police” is
      a seizure. Overstreet v. State, 724 N.E.2d 661, 664 (Ind. Ct. App. 2000), reh’g
      denied, trans. denied.… Similarly, a number of other jurisdictions have held
      that there is no “seizure of persons” when an officer walks up to a person
                                             6
       seated in a parked vehicle in a public place and asks a question of that person.
       See, e.g., State v. Carlson, 762 N.E.2d 121, 128 (Ind. Ct. App. 2002) (citing
       Latta v. Keryte, 118 F.3d 693, 699 (10th Cir. 1997) (holding that no seizure
       occurred where police officer approached parked vehicle and asked defendant
       to get out, but instead the defendant drove off); United States v. Kim, 25 F.3d
       1426, 1430-31 (9th Cir. 1994) (holding that there was no Terry stop where
       police officers came upon an already parked vehicle even though police car
       “partially blocked” the parked car), cert. denied, 513 U.S. 1030, 115 S.Ct. 607,
       130 L.Ed.2d 517 (1994); People v. Long, 99 Ill.2d 219, 75 Ill. Dec. 693, 457
       N.E.2d 1252, 1257 (1983) (holding that no seizure occurred where a police
       officer approached a parked vehicle and asked defendant a few questions);
       State v. Marks, 226 Kan. 704, 602 P.2d 1344, 1349 (1979) (holding that no
       seizure occurred where officer, responding to a police dispatch, approached
       parked vehicle and put questions to occupants); People v. Taylor, 454 Mich.
       580, 564 N.W.2d 24, 28 (1997) (holding that officer made no seizure by
       merely approaching the vehicle in a public place and asking defendants if they
       were willing to answer some questions), overruled on other grounds by People
       v. Kazmierczak, 461 Mich. 411, 605 N.W.2d 667, 674-75 (2000); and State v.
       Glaesman, 545 N.W.2d 178, 182 (N.D. 1996) (holding that there was no
       seizure where police officer walked up to a parked pickup truck and then,
       when the driver opened door, police officer smelled alcohol)).
               An encounter that begins as consensual might become a seizure,
       however, when a police officer orders a suspect to “freeze” or get out of the
       vehicle. See 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A
       TREATISE ON THE FOURTH AMENDMENT § 9.4(a), at 434 (2004). The
       Fourth Amendment may also be implicated when police engage in activity,
       which one “would not expect if the encounter was between two private
       citizens—boxing the car in, approaching it on all sides by many officers,
       pointing a gun at the suspect and ordering him to place his hands on the
       steering wheel, or use of flashing lights as a show of authority.” Id. at 434-35.

Bentley v. State, 846 N.E.2d 300, 305-06 (Ind. Ct. App. 2006).

       Here, the encounter between Deputy Ellis and Kimble began as a consensual

encounter. The record reveals that Deputy Ellis observed Kimble enter the driver’s seat of a

vehicle after displaying signs of intoxication. Deputy Ellis approached Kimble and asked

Kimble for identification. This request did not convert the encounter into an investigatory


                                              7
stop. See id. at 306 (citing Bostick, 501 U.S. 429 at 434).

       The evidence further demonstrates that after complying with Deputy Ellis’s request

for identification, Kimble placed his hand in his left front pocket. When Deputy Ellis noticed

that Kimble had put his hand in his pocket, Deputy Ellis asked Kimble to remove his hand

from his pocket. This too was insufficient to convert the encounter into an investigatory stop

requiring reasonable suspicion under Fourth Amendment jurisprudence. See id. at 307

(providing that an officer’s request that a passenger put his hands upon the seat was

insufficient to convert the encounter into an investigatory stop requiring reasonable

suspicion). The record does not indicate, for instance, that Deputy Ellis drew his weapon,

spoke in an intimidating fashion, or otherwise restricted Kimble from leaving the area. See

id. Rather, the request for Kimble to remove his hand from his pocket was largely to ensure

officer safety. That said, the consensual encounter escalated into a seizure for purposes of

the Fourth Amendment when Deputy Ellis asked Kimble to exit the vehicle. See id.

                The protection of the Fourth Amendment does “not ... guarantee against
       all ... seizures, but only against unreasonable ... seizures.” United States v.
       Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). In [Terry,
       392 U.S. 1, 88 S.Ct. 1868], the Court established the rule that a police officer
       may, without a warrant or probable cause, briefly detain a person for either
       investigatory purposes or a protective search (“frisk”)—which permits an
       officer, in the course of an investigative detention, to conduct a limited search
       for weapons for his or her own protection—if, based upon specific and
       articulable facts together with rational inferences from those facts, “official
       intrusion upon the constitutionally protected interests” of private citizens is
       reasonably warranted, and the officer has a reasonable suspicion that criminal
       activity “may be afoot.” Id. at 21-22, 30, 88 S.Ct. 1868.

Id.

              The Supreme Court has recognized that “[t]he concept of reasonable
                                         8
       suspicion, like probable cause, is not readily, or even usefully, reduced to a
       neat set of legal rules.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct.
       1581, 104 L.Ed.2d 1 (1989) (citations omitted). Rather, in evaluating the
       legality of a Terry stop, we must consider “the totality of the circumstances—
       the whole picture.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690,
       66 L.Ed.2d 621 (1981). Therefore, the reasonable-suspicion inquiry is fact-
       sensitive and must be determined on a case-by-case basis. Lampkins v. State,
       682 N.E.2d 1268, 1271 (Ind. 1997), modified on reh’g on other grounds, 685
       N.E.2d 698. The reasonable suspicion requirement is satisfied where the facts
       known to the officer at the moment of the stop, together with the reasonable
       inferences arising from such facts, would cause an ordinarily prudent person to
       believe that criminal activity has occurred or is about to occur. Lyons v. State,
       735 N.E.2d 1179, 1183-1184 (Ind. Ct. App. 2000), trans. denied; see also
       Gipson v. State, 459 N.E.2d 366, 368 (Ind. 1984). Thus, reasonable suspicion
       entails something more than an inchoate and unparticularized suspicion or
       hunch, but considerably less than proof of wrongdoing by a preponderance of
       the evidence. Luster v. State, 578 N.E.2d 740, 743 (Ind. Ct. App. 1991). We
       review a trial court’s determination regarding reasonable suspicion de novo.
       Burkett v. State, 736 N.E.2d 304, 306 (Ind. Ct. App. 2000).

Id.

       In the present case, Kimble claims that Deputy Ellis did not have reasonable suspicion

that criminal activity had occurred or was about to occur when he requested that Kimble exit

the vehicle, thereby initiating the stop. We disagree. Deputy Ellis observed Kimble display

signs of intoxication as Kimble approached the driver’s seat of the vehicle. Specifically,

Deputy Ellis observed that Kimble’s “balance was off,” that he almost fell over several times,

and that he was “swaying back and forth from side to side.” Tr. pp. 7, 8. Deputy Ellis’s

training and experience lead him to believe that these behaviors indicated that Kimble was

intoxicated and this belief, coupled with the fact that Kimble entered the driver’s seat of a

vehicle and appeared to be preparing to operate said vehicle, was sufficient to create a

reasonable suspicion that criminal activity, i.e. operating a vehicle while intoxicated, was

                                              9
about to occur.

       Under the circumstances, we conclude that although the encounter between Deputy

Ellis and Kimble was initially a consensual encounter that did not require reasonable

suspicion under Fourth Amendment jurisprudence, the search transformed into a stop when

Deputy Ellis requested that Kimble exit the vehicle. However, because Deputy Ellis

reasonably believed that criminal activity was about to occur and that it was necessary for

Kimble to exit the vehicle due to officer safety concerns, we conclude that Kimble’s rights

under the Fourth Amendment were not violated.

       Further, we note that the marijuana was not discovered during an intrusive search of

Kimble’s person or vehicle but rather was in plain view when Kimble opened the door to the

vehicle in an effort to comply with Deputy Ellis’s request that he exit the vehicle. When

Kimble opened the door to the vehicle, Deputy Ellis observed two small bags containing a

green leafy substance sitting on the floorboard of the driver’s area in the vehicle. Deputy

Ellis testified that “through [his] training and experience” he knew that the green leafy

substance was marijuana. Tr. p. 11. Combined, the two bags contained 2.62 grams of

marijuana. (Tr. 20)

                                  B. Article I, Section 11

       Kimble also argues that his encounter with Deputy Ellis violated his rights under

Article I, Section 11.

       Article I, Section 11 provides, “[t]he right of the people to be secure in their
       persons, houses, papers, and effects, against unreasonable search or seizure,
       shall not be violated....” The purpose of this article is to protect from
       unreasonable police activity those areas of life that Hoosiers regard as private.
                                             10
       Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994). The provision must receive
       a liberal construction in its application to guarantee the people against
       unreasonable search and seizure. Brown v. State, 653 N.E.2d 77, 79 (Ind.
       1995).

State v. Quirk, 842 N.E.2d 334, 339-40 (Ind. 2006).

               “While almost identical to the wording in the search and seizure clause
       of the federal constitution, Indiana’s search and seizure clause is independently
       interpreted and applied.” Baniaga v. State, 891 N.E.2d 615, 618 (Ind. Ct. App.
       2008). 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. Litchfield v. State, 824 N.E.2d 356, 359 (Ind.
       2005).… The burden is on the State to show that under the totality of the
       circumstances, the intrusion was reasonable. Id.

Hathaway v. State, 906 N.E.2d 941, 945 (Ind. Ct. App. 2009).

       For the reasons stated in our analysis relating to the Fourth Amendment, we conclude

that Deputy Ellis’s encounter with Kimble was reasonable under the totality of the

circumstances. Again, Deputy Ellis observed that Kimble’s “balance was off,” that he almost

fell over several times, and that he was “swaying back and forth from side to side.” Tr. pp. 7,

8. Deputy Ellis’s training and experience led him to believe that these behaviors indicated

that Kimble was intoxicated. Deputy Ellis further observed Kimble enter the driver’s seat of

a vehicle. Under these circumstances, we conclude that it was reasonable for Deputy Ellis to

approach Kimble to determine whether Kimble was intoxicated before Kimble drove away in

the vehicle because of the increased risk that Kimble could have injured himself or an

innocent bystander if he had been permitted to operate a vehicle in an intoxicated state. In

addition, Deputy Ellis’s concern for officer safety was reasonable in light Kimble’s failure to

comply with Deputy Ellis’s request that he remove his hand from his front left pocket. It was

                                              11
not unreasonable for Deputy Ellis to request that Kimble exit the vehicle under the totality of

the circumstances. As such, we conclude that Kimble’s rights under Article I, Section 11

were not violated.

       Because Kimble’s rights under the Fourth Amendment and Article I, Section 11 were

not violated, the trial court acted within its discretion in admitting into evidence the

marijuana recovered from Kimble’s vehicle. Therefore, we affirm his conviction.

       The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.




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