Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017 Page 1 of 21

ATTORNEY FOR APPELLANT

Megan Shipley

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Taccasia Porter,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

August 22, 2017

Court of Appeals Case No.

49A02-1703-CR-572

Appeal from the Marion Superior 

Court

The Honorable Steven Rubick, 

Magistrate

Trial Court Cause No.

46G07-1610-CM-40805

Baker, Judge.
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[1] Taccasia Porter was a passenger in a vehicle that was pulled over for a routine 

traffic stop. During the stop, the officer noticed an odor of marijuana 

emanating from Porter’s person. An initial search revealed no contraband, so 

the officer decided to conduct a more thorough search. Therefore, on the side 

of a public road, with no evidence of any measures taken to protect Porter’s 

privacy or any law enforcement need to conduct the search right then and there, 

the officer pulled Porter’s jeans away from her body and inserted her hand 

inside Porter’s jeans. After feeling an object inside Porter’s underwear, the 

officer then stuck her hand inside Porter’s underwear, next to her genital area, 

and retrieved a marijuana blunt. While the initial pat-down search was 

permissible, we find that the subsequent search ran afoul of both the federal and 

state constitutions.

[2] Porter appeals her conviction for Class B Misdemeanor Possession of 

Marijuana.1 Porter argues that the trial court erroneously admitted evidence 

stemming from an unduly invasive roadside search of her person by a police 

officer. We agree, and reverse.

Facts

[3] On October 15, 2016, Indianapolis Metropolitan Police Officer Tiffany Wren 

made a traffic stop in the 2300 block of Lafayette Road for an unspecified

headlights violation. Porter was a passenger in the vehicle that was pulled over. 

 

1

Ind. Code § 35-48-4-11(a)(1).
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When Officer Wren approached the vehicle, she smelled the odor of burnt 

marijuana. She called for backup and another officer responded. The officers 

asked Porter and the driver to get out of the vehicle.

[4] When Porter exited the vehicle, Officer Wren smelled marijuana. Initially, 

Officer Wren could not tell whether the odor was coming from Porter herself or 

from “being in the car.” Tr. p. 10. Officer Wren searched Porter by checking 

her pockets, around the waistband of her jeans, and down her legs, but the 

officer did not find anything. Officer Wren then searched the vehicle, and did 

not find anything. 

[5] Officer Wren returned to where Porter and the driver were standing and again 

smelled “a very, very strong odor of raw marijuana coming from [Porter’s] 

person.” Id. at 11. Officer Wren then searched Porter a second time, rechecking all the areas she had already searched and also checking “the front of 

[Porter’s] pants.” Id. at 13. According to the officer, Porter’s “jeans were really 

tight so that I recall I had to really, like pull her jeans out in order to get my 

hand in there.” Id. at 16. Officer Wren put her hand inside the front of Porter’s 

jeans but outside of her underwear. Officer Wren stated, “when I put my hand 

in, I felt on the back of my hand something . . . I believed to be a marijuana 

blunt.” Id. at 13. Officer Wren then put her hand inside of Porter’s underwear, 

on the front side, and retrieved a blunt. Porter was then placed under arrest for 

possession of marijuana.
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[6] On October 16, 2016, the State charged Porter with Class B misdemeanor 

possession of marijuana. Porter’s bench trial took place on February 16, 2017. 

At the bench trial, Porter moved to suppress the evidence of the marijuana, 

arguing that the search was unconstitutional under the federal and state 

constitutions. The trial court denied the motion to suppress and admitted the 

evidence, ultimately finding Porter guilty as charged. The trial court sentenced 

Porter to 180 days in the Marion County Jail, with 178 days suspended. Porter 

now appeals.

Discussion and Decision

[7] Porter argues that the trial court erroneously admitted the evidence of the 

marijuana blunt stemming from Officer Wren’s roadside search of her person. 

We will only reverse a trial court’s ruling on admission of evidence if the 

decision is clearly against the logic and effect of the facts and circumstances 

before the court. D.F. v. State, 34 N.E.3d 686, 688 (Ind. Ct. App. 2015), trans. 

denied. In conducting our review, we will neither reweigh the evidence nor 

assess witness credibility, but we apply a de novo standard of review to matters 

of law. Id. In other words, when a defendant contends that the trial court 

admitted evidence alleged to have been discovered as the result of an illegal 

search or seizure, an appellate court will generally assume the trial court 

accepted the evidence as presented by the State and will not reweigh that 

evidence, but we owe no deference as to whether that evidence established the 

constitutionality of the search or seizure. Id. at 689.
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I. Trial Court’s Findings

[8] The trial court made a brief oral statement explaining its ruling on Porter’s 

motion to suppress, and she argues that two of its factual findings were clearly 

erroneous. See L.A.F. v. State, 698 N.E.2d 355, 356 (Ind. Ct. App. 1998) (noting 

that we will accept a trial court’s factual findings unless they are clearly 

erroneous; findings are clearly erroneous when the record lacks any facts or 

reasonable inferences to support them). The trial court found as follows:

Motion to suppress is denied. The officer conducted an initial 

brief patdown then proceeded to the car. Upon returning from 

the car, she noticed a strong odor emanating directly from Ms. 

Porter. The initial patdown search—if the initial patdown search 

had gone to this extent, I would have sustained it, the defendant’s 

motion to suppress. But this was a subsequent search based on 

the probable cause of the strong odor clearly emanating from Ms. 

Porter after the officer returned. 

I understand the defendant’s position with respect to the location, 

but the evidence before the Court incorporating the evidence from Officer 

Wren from the previous trial that this is at 10:00 o’clock at night, and the 

officer has testified that she kept her hands not in the, as I believe she 

said, the “private-private” area, but around the waistband.

The Court finds that the level of intrusion, though greater than 

normal, was less of an intrusion on Ms. Porter than having her 

taken into custody, transported to the processing center, and 

subjected to a full search. The motion to suppress is denied.
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Tr. p. 22 (emphasis added). Porter argues that the trial court’s findings 

regarding the time of day the search occurred and the placement of Officer 

Wren’s hands during the search are clearly erroneous.

A. Time of Search

[9] With respect to the time of the search, the record is silent. Officer Wren 

testified that she “worked 12:00 to 10:00,” but did not specify whether it was 

noon to 10:00 p.m. or midnight to 10:00 a.m., and did not testify at all as to the 

time she pulled over the vehicle and searched Porter. Id. at 6. The trial court 

relied on information from a “previous trial,” id. at 22, to find that the search 

took place at 10:00 p.m., but there was no previous trial involving Porter. This

may have been a reference to the trial of the driver of Porter’s vehicle, but 

Porter did not participate in that trial or have any opportunity to challenge 

testimony in that setting. 

[10] The State argues that Officer Wren testified that she did not issue a ticket “for 

the headlights,” id. at 23, which must mean that the incident occurred at night, 

in the dark. We disagree, as Officer Wren did not specify what headlights 

infraction may have occurred. There are many traffic infractions involving 

headlights that can be committed at any time of day or night. E.g., Ind. Code § 

9-21-7-2 (requiring use of headlights in certain weather conditions); I.C. § 9-21-

7-3 (vehicle must display at least two headlights and may only have four 

auxiliary or spot headlights lit at one time); I.C. § 9-21-7-4 (vehicle may only 

have high beams lit if they strike less than seventy-five feet from the vehicle); 
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I.C. § 9-21-7-10 (prohibiting unauthorized display of colored lights on front of 

vehicle); I.C. § 9-21-13-4.5 (requiring use of headlights and taillights during 

participation in a funeral procession); I.C. § 9-21-8-55 (defining “aggressive 

driving,” in part, as “[r]epeatedly flashing the vehicle’s headlights”). Therefore, 

the mere fact that Officer Wren considered citing the vehicle for a headlights 

infraction does not permit a reasonable inference that the incident occurred at 

night. As there is no basis in the record supporting this finding, it is clearly 

erroneous.

B. Placement of Officer’s Hands

[11] Next, we turn to the trial court’s finding that Officer Wren did not put her 

hands in the “‘private-private’ area” and instead kept them around Porter’s 

waistband. Id. at 22. Officer Wren testified that she searched “down through 

[Porter’s] pants,” pulling Porter’s jeans away from her body to insert the 

officer’s hand inside her pants, feeling the outside of Porter’s underwear, and, 

finally, sticking her hand inside of Porter’s underwear to retrieve the blunt; 

Officer Wren even explicitly testified that she placed her hands “in the crotch 

area” and “between [Porter’s] legs” to retrieve the marijuana. Id. at 13-16, 23. 

Therefore, the finding that Officer Wren kept her hands around Porter’s 

waistband and did not insert them beneath her clothing was clearly erroneous.2

 

2 The State concedes that this finding was clearly erroneous but contends that this error is not enough to 

reverse the judgment. We agree, and will continue with the constitutional analysis.
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II. United States Constitution

[12] Porter argues that the search was unconstitutional pursuant to the Fourth 

Amendment to the United States Constitution. A search conducted without a 

warrant is per se unreasonable unless it falls within a few well-delineated 

exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357 

(1967). Relevant to this case is the exception for searches incident to arrest. 

Porter concedes that this exception applies to this case because, “[a]lthough 

Officer Wren did not formally place Porter under arrest until after she found the 

marijuana, Officer Wren had the authority to search Porter once she smelled 

[the] odor of raw marijuana coming from her person.” Appellant’s Br. p. 12; see 

also Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (holding that the smell 

of raw marijuana on a person is sufficient to provide probable cause that the 

person possesses marijuana); Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App. 

2004) (noting that so long as probable cause exists to make an arrest, “the fact 

that a suspect was not formally placed under arrest at the time of the search 

incident thereto will not invalidate the search”).

[13] The purposes of a search incident to arrest are to ensure officer safety and to 

prevent destruction of evidence. United States v. Robinson, 414 U.S. 218, 227-28 

(1973). Even if a search incident to arrest is permissible, it must still be 

conducted in a reasonable manner. The United States Supreme Court has 

explained that evaluating the reasonableness of a search incident to arrest 

requires “a balancing of the need for a particular search against the invasion of 

personal rights the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In 
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conducting this analysis, there are four factors to consider: (1) the scope of the 

particular intrusion, (2) the manner in which it is conducted, (3) the justification 

for initiating it, and (4) the place in which it is conducted. Id.

[14] Turning to the instant case, we note that the State has the burden of proving the

reasonableness of a warrantless search. Middleton v. State, 714 N.E.2d 1099, 

1101 (Ind. 1999). To establish reasonableness, the State is limited to the 

evidence it presented at trial and any reasonable inferences that may be drawn 

from that evidence. E.g., L.A.F., 698 N.E.2d at 356.

1. Scope of Intrusion

[15] As to the first Bell factor, the scope of the intrusion, Officer Wren testified that 

the second search included the use of force to pull Porter’s jeans away from her 

body: “her jeans were really tight so that I recall I had to really, like pull her 

jeans out in order to get my hand in there.” Tr. p. 16. Officer Wren first put 

her hand inside the front of Porter’s jeans but outside of her underwear, using 

the back of her hand to touch Porter’s underwear; then, she put her hand inside 

of Porter’s underwear and retrieved the blunt. Id. at 13-14.

[16] It is well established in our culture that “people have a reasonable expectation 

not to be unclothed involuntarily, to be observed unclothed or to have their 

‘private’ parts observed or touched by others.” Justice v. Peachtree City, 961 F.2d 

188, 191 (11th Cir. 1992); see also State v. Battle, 688 S.E.2d 805, 814 (N.C. Ct. 

App. 2010) (finding a similar search that included pulling a woman’s 

underwear away from her body on the side of a public roadway to be 
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“humiliating”). Our General Assembly has also recognized a person’s privacy 

interest in the genital area of his or her body. See, e.g., Ind. Code § 35-45-4-

5(a)(3) (defining “private area,” for purpose of voyeurism statute, as “the naked 

or undergarment clad genitals, pubic area, or buttocks of an individual”); Ind. 

Code § 35-42-4-8 (criminalizing the act of touching a person’s “genitals, pubic 

area, buttocks, or female breast” with intent to arouse when the person is 

unaware the touching is occurring). It would be hard to contest an assertion 

that one’s pubic area is a private area of the body that merits special protections.

[17] We find two cases instructive on this Bell factor. First is Powell v. State, in which 

this Court considered an argument that a search incident to arrest was 

unreasonable under the Fourth Amendment. 898 N.E.2d 328 (Ind. Ct. App. 

2008). In Powell, while searching the defendant incident to his arrest for several 

crimes, a police officer felt a hard object in the seat of his underwear. Powell 

was wearing very droopy pants that hung below his buttocks, exposing his 

underwear. The officer decided to cut the object out of Powell’s underwear, 

which he was able to readily access because of the low position in which Powell 

was wearing his pants. The object was later determined to be cocaine enclosed 

in a fabric pocket. This Court did not find the search to be overly intrusive: 

Though the scope of the intrusion seems unreasonable at first 

blush, given that Powell was wearing his pants low, thereby 

exposing his underwear by his own doing, and the cocaine was 

kept in a pocket-type enclosure with material on both sides, 

Officer Thompson was able to remove the cocaine from Powell’s 

underwear without exposing any of Powell’s skin.
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Id. at 335.

[18] In this case, as in Powell, Officer Wren was able to remove the blunt from 

Porter’s underwear without exposing any of her skin. Unlike Powell, however, 

the manner in which Porter wore her clothing did not expose her 

undergarments or provide easy access to areas underneath her clothing.

[19] The second case we find instructive is Battle, 688 S.E.2d 805, which is

somewhat factually similar to the case before us. In Battle, the police pulled 

over a vehicle in which Battle was a passenger. The officers had probable cause 

to search Battle incident to arrest based on the statements of a confidential 

informant. A female officer instructed Battle to stand between the open doors 

of a police SUV parked on the side of the road so she could conduct the search 

out of the view of the public. The officer instructed Battle to pull the bottom of 

her bra away from her body and shake it; she was not required to remove her 

shirt. The officer then conducted a patdown, but did not find anything. 

Finally, the officer unzipped Battle’s pants, pulled them open, lowered them to 

her hip, and pulled back her underwear, where she found a crack pipe and a 

plastic baggie containing heroin. The officer saw the top of Battle’s pubic hair 

and buttocks; her underwear and pants were not pulled down. The Battle Court 

considered the Bell factors, finding that 

the scope of the intrusion relative to Defendant’s person was 

great, as any reasonable person would have found it to be a 

humiliating experience far beyond that incident to an arrest and 

search of Defendant’s outer garments alone. . . . Whether anyone 

other than [the police officer] actually saw Defendant’s private 
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parts during the search is irrelevant to the Fourth Amendment 

analysis in this regard.

Id. at 814. The Battle Court noted that the United States Supreme Court has 

held that the Fourth Amendment consequences of a search would not be 

analyzed “in a way that would guarantee litigation about who was looking and 

how much was seen.” Safford Unified Sch. Dist. No. 1. v. Redding, 557 U.S. 364, 

374 (2009).

[20] In the instant case, Officer Wren did not lower Porter’s pants at all or visually 

observe any of Porter’s private areas, unlike in Battle. But the officer did 

strenuously pull Porter’s pants away from her body, insert her hand between the 

pants and underwear, and then insert her hand between the underwear and 

Porter’s body. So, while the scope of intrusion was arguably not as great as in 

Battle, it was still significant.

2. Manner in which Search was Conducted

[21] The State presented limited evidence about the manner in which the search was 

conducted. The record reveals that Officer Wren is a woman. She testified that 

she had been trained on performing a search, but she did not testify as to the 

content of that training or whether she followed it. Tr. p. 14. And there is no 

evidence as to whether she conducted herself professionally, whether she wore 

gloves or followed proper procedures, or whether she attempted to protect 

Porter from public embarrassment. There were two men—the unnamed male 

officer and the male driver of the vehicle—at the scene when Porter’s 
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underwear was searched, and there was no evidence that Officer Wren moved 

Porter away from the men or otherwise attempted to block their view of Porter 

while she was searched. The State has the burden of proving the 

reasonableness of the search, and it did not establish that the search was 

conducted in a reasonable manner.

3. Justification for Initiating Search

[22] Porter concedes that Officer Wren had probable cause to conduct a search 

incident to arrest based on the odor of raw marijuana. But Officer Wren offered 

no justification for going steps further than a pat down, up to and including 

placing her hand inside Porter’s underwear, aside from her suspicion that Porter 

possessed marijuana. 

[23] In Powell, the officer testified that he needed to remove the unknown hard 

object from the defendant’s underwear prior to transporting him to the police 

station for reasons of officer safety. 898 N.E.2d at 335 (noting that Powell was 

suspected of felony possession of a gun and had already attempted to flee from 

officers earlier in the stop). This Court found the justification to be adequate in 

those circumstances. Id. In Battle, in contrast, the Court found that the 

justification was inadequate:

The trial court made no findings of fact or conclusions of law 

regarding any exigent circumstances that existed warranting the 

roadside strip search of Defendant. . . . Detective Curl had 

already conducted the normal search incident to arrest, manual 

inspection over the top of Defendant’s clothing, as well as 

reaching inside Defendant’s pockets, without discovering 
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anything suspicious. At the time Detective Curl initiated the 

strip search, there were no reasonable grounds to believe 

Defendant was concealing any weapon. There was no testimony 

indicating a belief that if Defendant was actually concealing 

drugs, that she was in a position to destroy or further hide that 

evidence. . . . This fails to meet constitutional muster.

688 S.E.2d at 818. 

[24] Here, as in Battle, there is nothing in the record regarding any exigent 

circumstances. There is no evidence that Porter had made any furtive 

movements, that she resisted in any way, or that she presented any threat to the 

officers. Officer Wren voiced zero concerns about officer safety, nor did she 

testify that she was concerned that if Porter was concealing drugs, she would 

have been able to destroy, discard, or further hide that evidence before a full 

search could be conducted in a more private area. Officer Wren pulled the 

vehicle over for a minor traffic violation and extended the stop based on the 

odor of marijuana, which she encounters “almost daily.” Tr. p. 7-8. In other 

words, this was a routine encounter with no justification for an invasive 

roadside search. See Battle, 688 S.E.2d at 824 (noting that approving an 

underwear search for a “run-of-the-mill” stop would allow the police to conduct 

invasive searches anytime they “have probable cause to suspect drug activity”); 

Paulino v. State, 924 A.2d 308, 314 (Md. 2007) (cautioning that “[w]ithout the 

constitutional safeguards of exigent circumstances and reasonableness, every 

search incident to arrest could result in a strip search”).
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4. Place in which Search was Conducted

[25] Finally, as for the place in which the search was conducted, the State again 

offered limited evidence. The record reveals that the traffic stop and search of 

Porter’s person took place on the side of the road in the 2300 block of Lafayette 

Road in Indianapolis. There is no evidence regarding time of day, amount of 

traffic, presence of pedestrians, type of neighborhood (residential or 

commercial), or proximity of buildings to the scene. The record does not reveal 

whether it was dark or light outside, but even if it was dark, there is no evidence 

about the lighting conditions, such as proximity and/or brightness of street 

lights, business lights, or patrol car headlights or spotlights. There is no 

evidence that Officer Wren took any precautions to block Porter from the view 

of any passersby on the street or sidewalk or the two men at the scene. Simply 

put, the evidence presented at trial was that the search took place in a public 

place, with no evidence that Porter was shielded from public view.

[26] The State argues that “the record shows that [the] search occurred when it was 

dark outside, at 10:00 p.m. on the side of the road in the 2300 block of 

Lafayette Road.” Appellee’s Br. p. 13. As noted above, however, the record 

establishes neither that it was dark nor that it was 10:00 p.m. The State also 

points out that “[n]o one testified that there were vehicles driving by or 

pedestrians walking by during the search. Thus, exposure to the public was 

minimal.” Id. at 13-14. This argument, however, upends the burden of proof. 

As aptly put by Porter, “[b]ecause the State had the burden of establishing the 

reasonableness of the search at trial, the absence of evidence about traffic cannot 
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be used as affirmative evidence on appeal that there was in fact no traffic.” Reply 

Br. p. 7 (emphases original). We agree.

[27] The only evidence in the record about the location of the search was that it was 

“out on the side of the road” in the 2300 block of Lafayette Road in 

Indianapolis. Tr. p. 14. This is indisputably a public place. Thus, on appeal, 

the only evidence supporting the reasonableness of the search is that it occurred 

in a public place.

[28] Having examined all of the Bell factors, we are compelled to conclude that this 

search was unreasonable under the Fourth Amendment. While there was 

probable cause to search Porter incident to arrest and to conduct the initial 

search of Porter’s person, when Officer Wren went several steps further by 

inserting her hand into Porter’s pants and then under her underwear, in a public 

place, with no voiced concerns about officer safety or destruction of evidence, 

the search became unreasonable. Therefore, the evidence of the marijuana 

found pursuant to the second, more invasive search should have been excluded.

III. Indiana Constitution

[29] Although Article I, Section 11 of the Indiana Constitution shares the same 

language as the Fourth Amendment, we interpret and apply the provision 

independently. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). We 

construe this provision of the state constitution liberally “in favor of protecting 

individuals from unreasonable intrusions on privacy,” Rush v. State, 881 N.E.2d 

46, 52 (Ind. Ct. App. 2008), applying a totality of the circumstances test “to 
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evaluate the reasonableness of the officer’s actions,” Duran v. State, 930 N.E.2d 

10, 17 (Ind. 2010). The State bears the burden of showing that the intrusion 

was reasonable. Bulington, 802 N.E.2d at 438. In determining reasonableness, 

we consider “(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).

[30] In Powell, having found that the search passed muster under the Fourth 

Amendment, this Court then turned to Article I, Section 11 of the Indiana 

Constitution. 898 N.E.2d at 336. The degree of suspicion was high because 

Powell was being arrested for numerous crimes, including felony possession of 

a gun and resisting law enforcement. Id. The degree of intrusion was lessened 

by the fact that Powell wore his pants in a way that exposed his underwear to 

the public. Id. Additionally, the officer was able to remove the package of 

cocaine without exposing any of Powell’s skin, Powell was shielded from public 

view by parked police cars and a building, and the officer testified that no 

pedestrians walked by during the search. Id. The law enforcement need was 

significant because the officer believed it was necessary to remove the unknown 

hard object for officer safety before transporting Powell to another location. Id. 

Under these circumstances, this Court found that the search of Powell did not 

violate the Indiana Constitution. Id.

[31] In the instant case, Officer Wren undeniably had a valid reason to suspect that 

Porter was committing the Class B misdemeanor of possession of marijuana 
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based on the odor of raw marijuana emanating from her person. There was no 

evidence, however, that Officer Wren ever suspected Porter of a more serious 

crime. See Edwards v. State, 759 N.E.2d 626, 627 (Ind. 2001) (holding that 

“routine, warrantless strip searches of misdemeanor arrestees, even when 

incident to lawful arrests, are impermissible under the Indiana Constitution”).

[32] With regard to the degree of intrusion, we must consider “the nature of the 

privacy interest upon which the search intrudes and the character of the 

intrusion itself.” Chest v. State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009). As 

noted above, the privacy interest in this case—the sanctity of one’s most private 

areas—is of the highest degree. As to the character of the intrusion itself, 

Officer Wren pulled Porter’s jeans forcibly away from her body and inserted her 

hand inside the pants. She then inserted her hand inside of Porter’s underwear. 

All of this took place in a public area on the side of a road, with no evidence 

that any precautions were taken to protect Porter’s privacy from pedestrian or 

vehicular passersby or the two men on the scene. There is also no evidence that 

Officer Wren took sanitary precautions, such as using plastic gloves to conduct 

the search. Thus, the degree of intrusion was significant.

[33] Finally, as to the extent of law enforcement needs, the State presented no 

evidence of an immediate need to search Porter on the side of the road, rather 

than taking her to a more private area such as a police vehicle, police station, or 

jail. Cf. Powell, 898 N.E.2d at 331 (noting that officer specifically testified that it 

“was necessary to remove the unknown object for officer safety before 

transporting Powell”) (emphasis added). Officer Wren voiced no concerns about 
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officer safety, and there is no evidence that Porter did anything during the stop 

to create officer safety concerns. Likewise, there is no evidence that the officer 

was concerned that Porter would somehow be able to destroy, hide, or dispose 

of the evidence before a search of her person in a more private area could be 

conducted.3 Thus, the law enforcement need in this case was limited to the 

normal law enforcement task of enforcing Indiana’s misdemeanor laws.

[34] Having considered the three factors, we can only conclude that the search in 

this case was unreasonable under the Indiana Constitution. While the officer 

had probable cause to believe Porter had committed a misdemeanor and had 

the authority to perform a search of her person incident to arrest, her decision to 

perform an intrusive search on the side of a public road, without a clear law 

enforcement need to do so, was unreasonable under the totality of the 

circumstances. Consequently, the admission of this evidence was also 

erroneous under the Indiana Constitution.

[35] The judgment of the trial court is reversed.

Bailey, J., concurs.

Altice, J., concurs with a separate opinion.

 

3 The State mentions in passing “a potential health risk” to Porter had the officer left the marijuana in place 

inside Porter’s underwear pending transportation to a more private area for a fuller search. Appellee’s Br. p. 

21. But the State does not elaborate on what the health risk may have been, nor is there any evidence 

whatsoever in the record supporting such an assertion.
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I N T H E

COURT OF APPEALS OF INDIANA

Taccasia Porter,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

Court of Appeals Case No.

49A02-1703-CR-572

Altice, Judge, concurring.

[36] The slender record presented by the State below compels the result reached in 

this case. Officer Wren smelled a very strong odor of raw marijuana coming 

from Porter’s person but had been unable to locate the contraband during a pat 

down search. Officer Wren then pulled on the waistband of Porter’s jeans and 

reached her hand inside the front, crotch area, between Porter’s legs. Upon 

feeling what she believed to be a marijuana blunt, Officer Wren then placed her 

hand inside Porter’s underwear and retrieved the contraband. 
Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017 Page 21 of 21

[37] Although far from a strip search, I agree that this roadside exploratory search 

inside Porter’s pants was particularly intrusive and necessitated a showing that 

the search was performed in a reasonable manner or under exigent

circumstances. The State made no such showing. The bare record establishes 

merely that the search occurred “out on the side of the road” in the 2300 block 

of Lafayette Road and was performed by a female officer with at least two 

males present at the scene. Transcript at 14. These facts are not sufficient to 

establish that the search was reasonable.