                                                                FILED
                                                            Jan 31 2019, 7:40 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joel M. Schumm                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           George P. Sherman
                                                           Supervising Deputy Attorney
                                                           General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

John L. Solomon,                                           January 31, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2041
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Jose D. Salinas,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           49G14-1704-CM-13921



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019                     Page 1 of 11
[1]   John Solomon appeals his conviction for possession of marijuana as a class B

      misdemeanor. Solomon raises one issue which we revise and restate as

      whether his conviction violates his right to liberty and pursuit of happiness

      under Article 1, Section 1, of the Indiana Constitution. We affirm.


                                       Facts and Procedural History

[2]   On April 15, 2017, Indianapolis Metropolitan Police Officer Mitchel Farnsley

      initiated a traffic stop of a silver Buick near 30th Street and Capitol Avenue in

      Marion County. There were five occupants in the vehicle, and Solomon was

      seated in a rear seat. Officer Farnsley discovered that the license plate on the

      vehicle was for a green Ford Explorer, called for backup, and Officer Haley

      arrived on the scene. The police observed one of the vehicle’s occupants

      destroying a syringe, and they immediately had the occupants exit the vehicle.

      The police discovered numerous syringes and some aluminum foil, along with a

      “marijuana blunt, located directly smooshed between the seat and the back seat

      . . . where John Solomon’s butt would have been sitting.” Transcript Volume II

      at 11. Officer Farnsley read Solomon his Miranda rights. Solomon “stated that

      nothing in the car was his except for the marijuana blunt.” Id. at 12. Solomon

      also told the police that he was in the vehicle because he was getting a ride to

      the liquor store.


[3]   On April 16, 2017, the State charged Solomon with possession of marijuana as

      a class B misdemeanor. On August 1, 2018, the court held a bench trial at

      Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019      Page 2 of 11
      which Solomon testified that he did not know there was a marijuana blunt

      beneath him, that the marijuana blunt did not belong to him, and that he told

      Officer Haley that it did not belong to him. The court found Solomon guilty of

      possession of marijuana as a class B misdemeanor and sentenced him to twenty

      days with fourteen days suspended.


                                                    Discussion

[4]   Solomon claims that criminalizing the mere possession of a single marijuana

      blunt by an adult who is not driving or otherwise impacting others violates

      Article 1, Section 1, of the Indiana Constitution and that his conviction should

      be vacated. He argues that Ind. Code § 35-48-4-11 may be constitutional in

      many circumstances and that the challenge here is not a facial one but as

      applied to the facts of this case.


[5]   Ind. Code § 35-48-4-11 provides that a person who knowingly or intentionally

      possesses marijuana commits possession of marijuana as a class B

      misdemeanor.


[6]   Article 1, Section 1, of the Indiana Constitution (“Section 1”) provides:


              WE DECLARE, That all men are created equal; that they are
              endowed by their CREATOR with certain unalienable rights;
              that among these are life, liberty and the pursuit of happiness;
              that all power is inherent in the PEOPLE; and that all free
              governments are, and of right ought to be, founded on their
              authority, and instituted for their peace, safety, and well-being.
              For the advancement of these ends, the People have, at all times,
              an indefeasible right to alter and reform their government.

      Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019     Page 3 of 11
[7]   “A challenge to the constitutionality of a statute is a ‘pure question of law,’

      which we review de novo.” State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017)

      (citation omitted). “Such review is highly restrained and very deferential,

      beginning with a presumption of constitutional validity, and therefore the party

      challenging the statute labors under a heavy burden to show that the statute is

      unconstitutional.” Conley v. State, 972 N.E.2d 864, 877 (Ind. 2012) (citation and

      internal quotation marks and brackets omitted), reh’g denied. “All statutes are

      presumptively constitutional, and the court must resolve all reasonable doubts

      concerning a statute in favor of constitutionality.” Thakar, 82 N.E.3d at 259

      (citations and internal quotation marks and brackets omitted). “That being

      said, unlike the higher burden faced by those making a facial constitutional

      challenge, those challenging the statute as applied ‘need only show the statute is

      unconstitutional on the facts of the particular case.’” Id. (citing State v. Zerbe, 50

      N.E.3d 368, 369 (Ind. 2016)).


[8]   Solomon asserts that the possession of a single blunt of marijuana by an adult

      who is not driving or otherwise impacting others falls well within the

      protections afforded by Section 1 and that marijuana brings happiness to some

      people, whether helping to alleviate a medical condition or for recreational

      purposes. He argues that thirty-two states have legalized the use of marijuana

      for medicinal and/or recreational use and that his possession of a small amount

      of marijuana as a passenger of a vehicle does not adversely affect anyone else.

      He argues that marijuana use was legal in 1851 when the Indiana Constitution

      was drafted and ratified, that George Washington reportedly cultivated


      Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019        Page 4 of 11
      marijuana, and that in the mid-1800s marijuana was legal in the United States

      and used for medicinal purposes on a small scale. He also states that “[w]hen

      immigrants from Mexico and the West Indies began the practice of smoking

      marijuana around 1900, states began to criminalize the possession or sale of

      marijuana in statutes that ‘stemmed largely from racism and concern that use

      would spread,’” Appellant’s Brief at 10 (citing Scott W. Howe, Constitutional

      Clause Aggregation and the Marijuana Crimes, 75 WASH. & LEE L. REV. 779, 793

      (2018)), and that the possession of marijuana appears to have been criminalized

      in Indiana in the 1930s.


[9]   Solomon further argues that the Indiana Supreme Court, in Herman v. State, 8

      Ind. 545 (1855), found the liquor act of 1855 unconstitutional under Section 1.

      Appellant’s Brief at 8-9 (citing Herman, 8 Ind. at 558-564 (“[T]he right of liberty

      and pursuing happiness secured by the constitution, embraces the right, in each

      compos mentis individual, of selecting what he will eat and drink, in short, his

      beverages, so far as he may be capable of producing them, or they may be

      within his reach, and that the legislature cannot take away that right by direct

      enactment. If the constitution does not secure this right to the people, it secures

      nothing of value. . . . The happiness enjoyed in the exercise of general,

      reasonably regulated liberty by all, overbalances the evil of occasional

      individual excess.”)). He also asserts: “Our supreme court has found several

      statutes to violate Section 1. See Dep’t of Fin. Insts. v. Holt, 231 Ind. 293, 309,

      108 N.E.2d 629, 637 (1952) (invalidating a statute limiting the amount that

      purchasers of retail installment contracts could agree to pay retail dealers);


      Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019         Page 5 of 11
       Kirtley v. State, 227 Ind. 175, 179-180, 84 N.E.2d 712, 714 (1949) (striking down

       statute prohibiting ‘scalping’ of tickets to sports events); Dep’t of Ins. v.

       Schoonover, 225 Ind. 187, 192-194, 72 N.E.2d 747, 749-150 (1947) (invalidating

       regulation requiring commissions to be paid on insurance sales); State Bd. of

       Barber Exam’rs v. Cloud, 220 Ind. 552, 572-573, 44 N.E.2d 972, 980 (1942) (‘The

       individual’s right to engage in a lawful business, to determine the price of his

       labor and to fix the hours when his place of business shall be kept open, except

       as they conflict with the police power, are personal privileges and liberties

       within the protection of [Article I, Sections 1 and 23 of] the Indiana Bill of

       Rights.’); Street v. Varney Elec. Supply Co., 160 Ind. 338, 342, 66 N.E. 895, 896-

       897 (1903) (invalidating minimum wage legislation for public works projects).”

       Id. at 10-11 (footnote omitted).


[10]   The State responds that Solomon’s constitutional claim is waived because he

       did not raise it before the trial court and that, because Solomon did not provide

       the trial court with an opportunity to consider a challenge to the

       constitutionality of the marijuana possession statute or the State with the

       opportunity to offer evidence in support of the constitutionality of the statute,

       this Court should find his claim waived and decline to address it. Further, the

       State maintains that Article 1, Section 1, of the Indiana Constitution contains

       no judicially enforceable rights and that “[t]he Indiana Supreme Court has cast

       serious doubt that Article 1, Section 1 is a self-executing provision capable of

       judicial enforcement rather than an unenforceable expression of the general

       principles that animate our Constitution.” Appellee’s Brief at 11 (citing Doe v.


       Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019            Page 6 of 11
       O’Connor, 790 N.E.2d 985, 989-991 (Ind. 2003)). 1 The State argues that

       Solomon does not cite a single case from the last sixty-five years that has found

       a statute unconstitutional based solely on Section 1 and that the cases he does

       cite from the early to mid-1900’s do not consider the validity of criminal

       statutes but rather address the authority of the State or a political subdivision to

       regulate a lawful trade, profession, or business.


[11]   The State asserts that, at one time, the Indiana Supreme Court found “a right to

       possess alcohol as a species of property right,” id. at 14 (citing Beebe v. State, 6

       Ind. 501 (1855); Herman, 8 Ind. 545), 2 but that “the Court ultimately rejected

       this right and effectively overruled Beebe (and by implication Herman). See

       Schmitt v. F.W. Cook Brewing Co., 187 Ind. 623, 120 N.E. 19, 21 (1918)

       (upholding prohibitions on liquor sales and saying of Beebe, ‘[i]t cannot be

       determined . . . on what principle the court was acting’).” 3 Id. The State argues




       1
         In Doe, the Court stated that “[o]ther states also have construed constitutional provisions similar in wording
       to Art. I, § 1, of the Indiana Constitution not to provide a sole basis for challenging legislation since the
       language is not so complete as to provide courts with a standard that could be routinely and uniformly
       applied” and “[w]e need not decide whether Art. I, § 1, presents any justiciable issues here because Doe does
       not press a substantive claim.” 790 N.E.2d at 991. This Court later stated in Morrison v. Sadler: “It might be
       presumed, however, that even if the language in Doe was dicta, it is a good indicator of the court’s current
       thinking regarding Article 1, § 1 and that it is inclined to hold that particular constitutional provision not to
       be judicially enforceable.” 821 N.E.2d 15, 31 (Ind. Ct. App. 2005).
       2
        In Beebe and Herman, the Court found the liquor act of 1855 to be void. See Herman, 8 Ind. at 567; Beebe, 6
       Ind. at 522.
       3
         This Court has observed that the Indiana Supreme Court in Beebe found a right to possess alcohol and that
       “[t]his case and others following it were later overruled during the Prohibition Era.” Morrison, 821 N.E.2d at
       32 (citing Schmitt, 187 Ind. 623, 120 N.E. 19). In Schmitt, the Court stated “[t]he whole trend of the decisions
       in this state on the remonstance laws, license laws, and the local option laws shows that no such thing ever
       entered the mind of this court from the time of the Beebe Case and the cases immediately following it to the
       present time,” “[b]ut, on the contrary, this court has repeatedly said the subject of the control of intoxicating
       liquor is entirely within the power of the people through the Legislature to do anything that they deem
       necessary, not only to prohibit the sale, but in order to effectuate that purpose to even prohibit the

       Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019                                Page 7 of 11
“[t]hat Section 1 has provided meaningful protection only for economic

interests (and then only sporadically) is important because economic rights

doctrine has been discredited,” and that “Indiana’s Section 1 economic rights

cases are the product of an old model of judicial supremacy over public policy

that was discredited long ago.” Id. The State contends that “the United States

Supreme Court’s analogous economic rights era is most closely associated with

Lochner v. New York, 198 U.S. 45 (1905), where the Court invalidated a New

York State law that limited the hours employees in bakeries could work based

on notions of the ‘right of contract between the employer and employees,’” and

that “[t]he entire Lochner era, of course, has long been discredited, disavowed

and overruled by the United States Supreme Court.” Id. at 14-15 (citing Lincoln

Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949)). It argues

that, while the Indiana Supreme Court invalidated certain public works wage

legislation and other price and hour regulations in the early- and mid-1900’s,

“this era of judicial activism and supremacy in the arena of public policy—

economic or otherwise—is now over in Indiana. See McIntosh v. Melroe Co., 729

N.E.2d 972, 975 (Ind. 2000) (describing Lochner and other property rights cases

as ‘now discredited’).” Id. at 16.




manufacture of intoxicating liquor within the state,” and “[t]he power of the states, under their Constitutions
and under the federal Constitution, to prohibit the manufacture and sale of intoxicating liquor and to provide
such means for the enforcement of prohibition as seems expedient to the Legislature, is now so well settled
that it is no longer an open question.” 187 Ind. 623, 120 N.E. at 22.


Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019                               Page 8 of 11
[12]   The State further argues that, “[e]ven if Section 1 were to provide some level of

       judicially enforceable protection for some asserted ‘natural rights,’ there is no

       textual or historical basis for concluding that it protects any right to possess

       marijuana,” that statutes are clothed with the presumption of constitutionality,

       that Solomon offered no evidence that marijuana brings him happiness, that

       Solomon’s argument refers to items outside the record, and that, if this matter

       had been litigated in the trial court, the State would have been able to offer a

       number of studies which support the legislature’s conclusion that marijuana

       should be illegal. Id. at 17. It argues that, while some states have legalized

       marijuana, the Food and Drug Administration and Drug Enforcement

       Administration have concluded that marijuana has no federally-approved

       medical use for treatment and remains a Schedule I controlled substance under

       federal law. Id. at 19 (citing United States Department of Justice, Drug

       Enforcement Administration, Drugs of Abuse, A DEA Resource Guide 75

       (2017)). It also argues that, unlike in Herman, there is no evidence in the record

       that there was a large-scale marijuana industry in Indiana when its constitution

       was adopted and Solomon fails to cite a long-standing universal use of

       marijuana that the framers of the Indiana Constitution would have had in mind

       when adopting Section 1.


[13]   In his reply brief, Solomon argues that this appeal is about the liberty that

       Section 1 promises adult Hoosiers. He argues Section 1 provides judicially

       enforceable rights and that the Indiana Supreme Court addressed a substantive

       Section 1 claim in 2011. Appellant’s Reply Brief at 10 (citing Moore v. State, 949


       Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019       Page 9 of 11
       N.E.2d 343, 345 (Ind. 2011)). 4 He contends that Herman remains sound

       precedent, that his liberty has plainly and deeply been affected by the statute,

       and that Herman did not suggest a violation of Section 1 required a long-

       standing widespread or large-scale operation.


[14]   Solomon did not argue before the trial court that Ind. Code § 35-48-4-11

       violates Article 1, Section 1 of the Indiana Constitution as applied to him. The

       parties did not present arguments or evidence regarding the extent to which

       Solomon’s marijuana possession was protected by Section 1. Even if Solomon

       did not waive his claim and his claim is justiciable, we conclude that reversal is

       not warranted. While the Indiana Supreme Court may have found in Herman

       and Beebe that the liquor act of 1855 violated Section 1, we note that the Indiana

       Supreme Court subsequently held in Schmitt that the control of liquor was

       “entirely within the power of the people through the Legislature.” 187 Ind.

       623, 120 N.E. at 22. See also Morrison, 821 N.E.2d at 32 (observing that Beebe

       and “others following it were later overruled during the Prohibition Era”).

       Some states may have elected to permit the use of, and de-criminalize the

       possession of, marijuana under certain circumstances. Other states have not

       elected to do so. The Indiana legislature has not repealed Ind. Code § 35-48-4-



       4
         In Moore, the defendant appealed her conviction of public intoxication as a class B misdemeanor. 949
       N.E.2d at 344. On appeal, the defendant argued in part that her conviction was a result of her exercising her
       freedom of choice over which beverages to consume and cited Herman. Id. at 345. The Court held: “The
       defendant here, however, suffered no impingement of any alleged constitutional right to select which
       beverages to consume. She was subject to the public intoxication statute because of her conduct after
       consumption, not due to her beverage selection. The defendant’s accountability under the public intoxication
       statute does not violate her personal liberty rights under the Indiana Constitution.” Id.


       Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019                           Page 10 of 11
       11. The extent to which Solomon’s possession of marijuana under these

       circumstances constituted a criminal offense is a legislative determination and

       not a judicial one. Solomon has not established that he had a constitutional

       right to possess marijuana or that Ind. Code § 35-48-4-11 violates Article 1,

       Section 1, of the Indiana Constitution as applied to him.


[15]   For the foregoing reasons, we affirm Solomon’s conviction.


[16]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2041 | January 31, 2019    Page 11 of 11
