Court of Appeals of Indiana | Memorandum Decision 49A05

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### MEMORANDUM DECISION 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.
A TTORNEY S FOR A PPELLANT Tyler E. Burgauer Certified Legal Intern Joel M. Schumm Appellate Clinic Indiana University Robert H. McKinney School of Law Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Marcus Sanders , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. December 13, 2016 Court of Appeals Ca se No. 49A05

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- 971 Appeal from the Marion Superior Court The Honorable Linda Brown, Judge Trial Co urt Cause No. 49G10

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- CM

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Bailey , Judge .Court of Appeals of Indiana | Memorandum Decision 49A05

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# Case Summary

[1] Following a bench trial, Marcus Sanders (“Sanders”) was convicted of Possession of Marijuana as a Class A misdemeanor. 1 Sanders now appeals, raising the sole restated issue of whether the trial court improperly admitted evidence observed in plain view during an investigatory stop . We affirm.



# Facts and Pro cedural History

[2] On December 3, 2015, Marion County Sheriff’s Deputy Brandon Stewart (“Deputy Stewart”) , in full police uniform, was working as a courtesy officer for an apartment complex in Indianapolis. Around 9:00 p . m . , Deputy Stewart saw a vehicle strike a curb twice while moving f rom one parking spot to another

. Deputy Stewart was concerned that the driver was intoxicated and decided to check on the driver. As Deputy Stewart approached the vehicle, Sanders began
to exit, and Deputy Stewart told Sanders to stay in the vehicle. Sanders

c omplied and left the door open. Deputy Stewart noticed a clear “baggie” near the doorframe that contained a green leafy substance . Deputy Stewart seized the suspected contraband . La ter testing concluded that the substance was marijuana.

1 Ind. Code § 35

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- 11(b).Court of Appeals of Indiana | Memorandum Decision 49A05

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- 971 | D e c e m b e r 1 3 , 2 0 1 6 Page 3 of 7 [3] On January 13, 2016, the State charged Sanders with Possession of Marijuana

. During a bench trial, Sanders moved to suppress the marijuana evidence. The trial court denied Sanders’s motion and found Sanders guilty.

[4] Sanders now appeals.



# Discussion and Decision

[5] Sanders argues that Deputy Stewart’s warrantless stop violated his rights under the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Indiana Constitution. He contends that the marijuana evidence procured during the stop should not have been admitted.

[6] The trial court has broad discretion to rule on the admissibility of evidence at trial. Guilmette v. State , 14 N.E.3d 38, 40 (Ind. 2014). We review the trial court’s rul ing for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances before the court and the error affects a party’s substantial rights. Id

. The constitutionality of a search or seizure is a question of law, which we review de novo

. Kelly v. State , 997 N.E.2d 1045, 1050 (Ind. 2013). In reviewing the constitutionality of a search or seizure , we do not reweigh the evidence, but consider conflicting evidence most favorably to the trial cou rt’s ruling. Belvedere v. State , 889 N.E.2d 286, 288 (Ind. 2008).Court of Appeals of Indiana | Memorandum Decision 49A05

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## Fourth Amendment
[7] The Fourth Amendment provides protection against unreasonable search es and seizure s by generally prohibiting such acts without a warrant supported by probable cause. U.S. Const. amend. IV . The State has the burden of showing that an exception to the warrant requirement applies. Osborne v. State , No. 29S02

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- 433, slip op. at 4 (Ind. Nov. 29, 2016). One exception is the Terry stop, which permits an officer to “ s top and 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 ( 1989) (quoting Terry v. Ohio , 392 U.S. 1, 30 (1968)). Such a stop “must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez , 449 U.S. 411, 417 ( 1981)

.
[8] Here, De puty Stewart saw Sanders twice strike a parking lot curb. Suspecting that Sanders was intoxicated, Deputy Stewart initiated a Terry stop. Sanders contends that “[i]t is not unusual for drivers to bump curbs while positioning their vehicles in parking lot s,” (Appellant’s Br. at 10), characterizing the curb strikes as innocuous parking maneuver s . The evidence favorable to the ruling, however, indicated that Sanders struck the curb as he was moving between two parking spots

.
[9] In Robinson v. State , 5 N.E.3d 3 62 (Ind. 2014), our supreme court found reasonable suspicion to justify a Terry stop when an officer observed a vehicleCourt of Appeals of Indiana | Memorandum Decision 49A05

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- 971 | D e c e m b e r 1 3 , 2 0 1 6 Page 5 of 7 cross over the fog line twice. The Robinson Court a cknowledged that “such movement could have been attributable to driver distraction o r some other more innocuous case,” but observed that “ Terry does not require absolute certainty of illegal activity, but rather reasonable suspicion.” Robinson , 5 N.E.3d at 3 68.

[10] Just as there was reasonable suspicion in Robinson when the vehicle twice crossed the fog line, we find that under these facts there was reasonable suspicion when Sanders twice struck the curb while driving in a parking lot

. Accordingly, Deputy Stewart did not violate Sanders’s Fourth Amendment rights wh en Deputy Stewart carried out an investigatory stop

.



## Article I, Section 11
[11] The text of Article 1, Section 11 of the Indiana Constitution is similar to t hat of the Fourth Amendment. However, we conduct a separate, independent inquiry focusing on whether th e police conduct was “reasonable under the totality of the circumstances.” State v. Washington , 898 N.E.2d 1200, 1205

- 06 (Ind. 2008). In evaluating reasonableness, we consider three factors: “1) the degree of concern, suspicion, or knowledge that a viola tion 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).

[12] Here, the degree of concern was high because Deputy Stewart witnessed Sanders twice strike a curb while driving between parking spots, indicating thatCourt of Appeals of Indiana | Memorandum Decision 49A05

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- 971 | D e c e m b e r 1 3 , 2 0 1 6 Page 6 of 7 Sanders may have been impaired. The degree of intrusion was low , which Sanders concedes, because D eputy Stewart was carrying out a b rief investigatory stop

. The extent of law enforcement needs was high because an intoxicated driver could have returned to the road and endangered the public if Deputy Stewart had not intervened

.
[13] Sanders argues that law enforcement needs were nonexistent because Deputy Stewart was working in an off

- duty capacity . Sanders relies on C.P. v. State , 39 N.E.3d 1174 (Ind. Ct. App. 2015), trans. denied , where this Court found law enforcement needs nonexistent when an officer working a church event stopped

someone who was wearing sagging pants and using obscenities , which violated church policies . Here, however, Deputy Stewart stopped Sanders on suspicion that Sanders was violating Indiana law

.
[14] We find that the investigatory stop was reasonable under the to tality of the circumstances and , therefore , not in violation of Article I, Section 11

.
[15] Finally, we note that Sanders makes a cursory argument concerning plain view. The plain view doctrine provides that “police do not need a warrant to seize incriminating evidence . . . if the following conditions are met: (1) police have a legal right to be at the place from which the evidence can be plainly viewed; (2) the incriminating character of the evidence is immediately apparent; and (3) police have a lawful right of access to the object itself. Houser v. State , 678 N.E.2d 95, 101 (Ind. 1997) (citing Horton v. California , 4 96 U.S. 128, 136

- 37 (1990)). Here, Sanders contends that Deputy Stewart did not have a legal rightCourt of Appeals of Indiana | Memorandum Decision 49A05

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- 971 | D e c e m b e r 1 3 , 2 0 1 6 Page 7 of 7 to be in plain view of the marijuana eviden ce because the investigatory stop was unconstitutional. Having found no constitutional defect with the investigatory stop , we find that the plain view doctrine justified seizure of the marijuana evidence. 

# Conclusion

[16] Because Deputy Stewart constitutionally stopped Sanders, the trial court did not abuse its discretion in admitting evidence in plain view during the stop.

[17] Affirmed.
Najam, J., and May, J., concur.