MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Aug 08 2017, 7:55 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                    Curtis T. Hall, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marlon Jackson,                                          August 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1701-CR-89
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jose D. Salinas,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable John M. Christ,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G14-1603-F6-10184



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017             Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Marlon Jackson (Jackson), appeals the trial court’s denial

      of his motion to suppress certain evidence.


[2]   We affirm.


                                                   ISSUES
[3]   Jackson presents us with two issues in this interlocutory appeal, which we

      restate as:


          (1) Whether the trial court erred by denying his motion to suppress evidence

              obtained in violation of his Fourth Amendment Rights under the United

              States Constitution; and

          (2) Whether the trial court erred by denying his motion to suppress evidence

              obtained in violation of Article 1, Section 11 of the Indiana Constitution.


                      FACTS AND PROCEDURAL HISTORY
[4]   On July 25, 2016, Jackson filed a motion to suppress, which the trial court set

      for an evidentiary hearing on August 4, 2016. Prior to the hearing, the State

      dismissed Jackson’s charge of possessing a narcotic drug, a Level 6 felony,

      because Jackson presented a valid prescription. At the hearing, the parties

      informed the trial court that Jackson had very recently discovered legal

      authority which, according to Jackson, would prevent the State from

      proceeding with Jackson’s remaining charge of possession of marijuana, a Class

      B misdemeanor. Although Jackson had provided this case law to the State

      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017   Page 2 of 11
      immediately prior to the hearing, the State requested time to review the case

      and to decide whether to proceed. The trial court continued the suppression

      hearing to September 1, 2016.


[5]   A set of pretrial conferences was conducted respectively on September 1, 2016,

      and September 15, 2016. During the latter pretrial conference, the parties

      stipulated to the facts contained in the affidavit of probable cause filed by the

      arresting officer, which read as follows:


              On 3/13/2016 at approx. 1008 [sic] pm I, Officer Bryan M. Zotz
              [Officer Zotz] with the IMPD, was sitting northbound on Drexel
              Ave at 36th St. I observed a gray Cadillac driving backwards,
              westbound on 36th St. I observed the vehicle stop at the stop sign
              at 36th St., and then continue westbound on 36th St., driving
              backwards. I activated my emergency lights and stopped that
              vehicle westbound on 36th St. at Linwood Ave.


              I approached the vehicle on the passenger side and observed the
              driver, later identified as [Jackson], b/m, d.o.b. . . . take off his
              ball cap and place it over the items in the floorboard tray in front
              of the center console. Jackson was leaning hard to his right, and
              kept repositioning the hat to cover the center tray. I asked
              Jackson why he was driving down the street backwards. Jackson
              stated that his car would not drive forward, and that he was
              headed home to Rural Ave. I asked Jackson for his driver’s
              license. Jackson started to look around his person and about the
              vehicle. Jackson opened up the center console, and I was able to
              observe a digital scale inside. Due to my training and experience
              as a police officer, I know a digital scale to be commonly used to
              weigh illegal narcotics.


              Jackson verbally gave me his identifiers, and I moved to the rear
              of the vehicle to have IMPD Control run the IN temporary
      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017   Page 3 of 11
        license plate of G242370. As I did so, I observed Jackson and his
        front seat passenger start reaching around the floor board tray
        area. I then ran both individuals through IMPD
        Communications and requested backup.


        After Officer Chad Gibbson, A366, had arrived on the scene, I
        had Jackson step from the vehicle. When Jackson stepped from
        the vehicle, I would smell the odor of raw marijuana coming off
        of his person. I moved Jackson to the rear of the vehicle,
        performed a pat down of his outer clothing, and had him sit on
        the ground. I then performed a search of the driver’s
        compartment of the vehicle. I recovered the digital scale from
        the center console. I also observed small amounts of marijuana
        shake and seeds on the floorboard of the vehicle.


        I then went back to Jackson to perform a search of his person. I
        asked Jackson if he had any marijuana on his person. He stated
        he did, and that it was in his pocket I then searched Jackson, and
        found inside his right front pant pocket, a clear bag containing a
        green leafy substance that, due to my training and experience as a
        police officer, I believed to be marijuana. [Jackson] was arrested
        for [p]ossession of marijuana, . . . ., and [p]ossession of
        [p]araphernalia, . . .


        Jackson was transported to the APC by MCSO. Deputy
        Patterson 30679, advised me that when Jackson was received in
        the APC, Deputy Ladd, 31153, located a white pill suspected to
        be hydrocodone inside the right front undershorts pocket of
        Jackson. Deputy Patterson then collected and transported the
        white pill back to me. I then transported the pill, suspected
        marijuana, and digital scale to the IMPD property room, placed
        the items in a heat seal envelope, and into the narcotics box.
        Jackson was also arrested for [p]ossession of a [c]ontrolled
        [s]ubstance, . . . Vehicle was transported by Auto Return.



Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017   Page 4 of 11
              All events occurred in Marion Co., State of IN.


              The suspected substance(s) were tested in the IMPD Property
              room. The results were as follows: Marijuana 8.49 grams.


      (Appellant’s App. Vol. II, pp. 11-12).


[6]   On October 6, 2016, the State submitted a memorandum in opposition to

      Jackson’s motion to suppress. Jackson’s memorandum in response was

      submitted on October 21, 2016. During a hearing on November 3, 2016, the

      trial court denied Jackson’s motion to suppress. The trial court granted Jackson

      leave to file an interlocutory appeal, which we accepted on February 3, 2017.


[7]   Jackson now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Jackson contends that the trial court erred by denying his motion to suppress as

      certain evidence was obtained in violation of his Fourth Amendment Rights

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

      Constitution.


[9]   We review the denial of a motion to suppress in a manner similar to reviewing

      the sufficiency of the evidence. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013).

      We consider only the evidence favorable to the trial court’s ruling, alongside

      substantial uncontradicted evidence to the contrary, to decide if that evidence is

      sufficient to support the denial. Id. We review de novo a ruling on the

      constitutionality of a search or seizure, but we give deference to a trial court’s

      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017   Page 5 of 11
       determination of the facts, which will not be overturned unless clearly

       erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).


                                             I. Fourth Amendment


[10]   The Fourth Amendment to the United States Constitution protects the privacy

       and possessory interests of individuals by prohibiting unreasonable searches and

       seizures. “The fundamental purpose of the Fourth Amendment ‘is to protect

       the legitimate expectations of privacy that citizens possess in their persons, their

       homes, and their belongings.’” Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct.

       App. 2016) (quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).

       This protection has been extended to the states through the Fourteenth

       Amendment to the United States Constitution. Krise v. State, 746 N.E.2d 957,

       961 (Ind. 2001). In general, the Fourth Amendment prohibits searches and

       seizures conducted without a warrant that is supported by probable cause.

       Mullen, 55 N.E.3d at 827. As a deterrent mechanism, evidence obtained

       without a warrant is not admissible in a prosecution unless the search or seizure

       falls into one of the well-delineated exceptions to the warrant requirements. Id.

       “Where a search or seizure is conducted without a warrant, the State bears the

       burden to prove that an exception to the warrant requirement existed at the

       time of the search or seizure.” Brooks v. State, 934 N.E.2d 1234, 1240 (Ind. Ct.

       App. 2010), trans. denied.


[11]   One such exception was created in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

       L.Ed.2d 889 (1968), pursuant to which an officer is permitted to “stop and


       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017   Page 6 of 11
       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,

       109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Reasonable suspicion entails some

       minimal level of objective justification for making a stop, something more than

       an un-particularized suspicion or hunch, but less than the level of suspicion for

       probable cause. Polson v. State, 49 N.E.3d 186, 189-90 (Ind. Ct. App. 2015),

       trans. denied. What constitutes reasonable suspicion is determined on a case-by-

       case basis, and the totality of the circumstances is considered. Id. at 190. As a

       result, 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, 1183-84 (Ind. Ct. App. 2000), trans. denied. In judging the

       reasonableness of investigatory stops, courts must strike “a balance between the

       public interest and the individual’s right to personal security free from arbitrary

       interference by law [enforcement] officers.” Polson, 49 N.E.3d at 190. Indeed,

       “there is no ‘bright line’ for evaluating whether an investigative detention is

       unreasonable, and ‘common sense and ordinary human experience must govern

       over right criteria.’” Reinhart v. State, 930 N.E.2d 42, 46 (quoting United States v.

       Sharp, 470 U.S. 675, 685 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985)).


[12]   Jackson now contends that Officer Zotz lacked reasonable suspicion to stop

       him when the officer observed Jackson “driving backwards at around 10:00

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017   Page 7 of 11
       p.m., stop[ing] at a stop sign, and continu[ing] to drive backwards.”

       (Appellant’s Br. p. 15). Analogizing to Ransom v. State, 741 N.E.2d 419 (Ind.

       Ct. App. 2000), trans. denied, Jackson asserts that Officer Zotz did not have an

       objectively justifiable reason for stopping him. In Ransom, Ransom was driving

       his vehicle on a narrow Indianapolis street when he encountered an

       approaching police vehicle. Id. at 420. Because of the narrowness of the road

       and the presence of parked vehicles on both sides by the road, the two vehicles

       could not both fit in the traveled portion of the road. Id. As the police officer

       put his vehicle to the side of the road, Ransom put his vehicle in reverse and

       backed around the corner. Id. The officer stopped Ransom’s vehicle for

       “operating his vehicle in reverse.” Id. A subsequent search of the vehicle

       revealed a handgun. Id. at 421. After the trial court denied Ransom’s motion

       to suppress, we accepted his interlocutory appeal. On appeal, we reversed the

       trial court, noting that as driving in reverse is an activity, that in and of itself, is

       not unlawful, and as Ransom did not commit any traffic violation, the officer

       lacked reasonable suspicion that justified the stop. Id. at 422.


[13]   Although we recognize that our legislature does not prohibit driving in reverse,

       nor does it mandate driving forward as a custom, unlike in Ransom, the instant

       “set of individually innocent facts, when observed in conjunction, [is] sufficient

       to create reasonable suspicion of criminal activity.” Polson, 49 N.E.3d at 190.

       At approximately 10:00 p.m., Officer Zotz was sitting northbound on Drexel

       Ave at 36th St., where he observed a gray Cadillac driving backwards,

       westbound on 36th St. The vehicle came to a stop at the stop sign at 36th St.,

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017   Page 8 of 11
       and then continued westbound on 36th St., driving backwards. Distinguished

       from the obstacles and narrow street in Ransom, Jackson drove backwards

       unrestrained and over a considerable distance. “Common sense and ordinary

       human experience” would qualify this as a most unusual and suspicious

       situation. Reinhart, 930 N.E.2d at 46. Therefore, these facts, together with the

       reasonable inferences arising from such facts, would cause an ordinary prudent

       person to believe criminal activity may be afoot. We conclude that Officer Zotz

       was justified in stopping Jackson for investigatory purposes. 1


                                                II. Article I, Section 11


[14]   Jackson also argues that the trial court erred in denying his motion to suppress

       under Article 1, Section 11 of the Indiana Constitution. Article 1, Section 11 of

       the Indiana Constitution is identical to the Fourth Amendment, but is analyzed

       differently. Croom v. State, 996 N.E.2d 436, 442 (Ind. Ct. App. 2013), reh’g

       denied, trans. denied. The Indiana Constitutional analysis focuses on the

       reasonableness of the police conduct under the totality of the circumstances.

       Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). We determine



       1
         We acknowledge that the State also asserted Officer Zotz’ Terry stop was justified based on several traffic
       infractions about the required illumination for vehicles. It argued that Jackson’s vehicle violated the
       headlamp statute by not having headlamps illuminating the area ahead of his vehicle because he was driving
       in reverse. See I.C. §§ 9-19-6-6; -17(b); -24(b). Second, the State claimed that Jackson violated the tail lamp
       and stop lamp statutes by not having tail lamps emitting red light visible from the rear of the vehicle and by
       not having stop lamps emitting red to amber light visible from the rear of the vehicle because he was driving
       in reverse. See I.C. §§ 9-19-6-6; -17(b); -24(b). Third, the State claimed that because Jackson was driving
       backward, it is likely his tail lamps were illuminated, displaying a red light in the direction of his travel. See
       I.C §§ 9-19-6-6; -17(b); -24(b). Nevertheless, the stipulated facts are silent as to the vehicle’s lamp location,
       number, color, operation, or other modifications or additions. Accordingly, the State’s arguments amount to
       nothing more than mere speculation.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017                  Page 9 of 11
       reasonableness under the Indiana Constitution by balancing “1) the degree of

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

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

       activities, and 3) the extent of law enforcement needs.” Id. at 361. The State

       carries the burden of proving that the search was reasonable under the totality

       of the circumstances. Croom, 996 N.E.2d at 442.


[15]   A brief investigatory stop may be justified by reasonable suspicion that the

       person detained is involved in criminal activity. Id. See also State v. Renzulli, 958

       N.E.2d 1143, 1146 (Ind. 2011). Such suspicion “exists where the facts known

       to the officer, together with the reasonable inferences arising from such facts,

       would cause an ordinarily prudent person to believe that criminal activity is or

       is about to occur.” Id.


[16]   Office Zotz’ stop was reasonable under the Indiana Constitution. Driving a car

       backwards for an extended distance in the late evening created a reasonable

       degree of concern that something criminal was occurring. Officer Zotz’ brief

       stop of Jackson’s vehicle to investigate why Jackson was driving backwards

       imposed a minimal degree of intrusion. Thirdly, the need of law enforcement

       to stop and conduct an investigation was reasonable. The only way to

       determine the reason for Jackson’s driving style and to dispel Officer Zotz’

       concern was to ask Jackson directly. Although the evidence is silent as to any

       other vehicles on the road at that time of the evening, Jackson’s driving

       backwards created a safety hazard for the public. Balancing the reasonable

       degree of concern, the minimal intrusion, and the need of law enforcement, we

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017   Page 10 of 11
       conclude that Officer Zotz had reasonable suspicion under Article 1, Section 11

       of the Indiana Constitution. Therefore, we affirm the trial court’s denial of

       Jackson’s motion to suppress.


                                             CONCLUSION
[17]   Based on the foregoing, we conclude that the trial court properly denied

       Jackson’s motion to suppress.


[18]   Affirmed.


[19]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-89 | August 8, 2017   Page 11 of 11
