Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 1 of 7

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.

ATTORNEYS FOR APPELLANT

Tyler E. Burgauer

Certified Legal Intern

Joel M. Schumm

Appellate Clinic

Indiana University

Robert H. McKinney School of Law

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

49A05-1605-CR-971

Appeal from the Marion Superior 

Court

The Honorable Linda Brown, 

Judge

Trial Court Cause No.

49G10-1601-CM-1539

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-971 | December 13, 2016 Page 2 of 7

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 Procedural 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 from 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 

complied 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. Later testing concluded that the substance was 

marijuana.

 

1

Ind. Code § 35-48-4-11(b).
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[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 ruling 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 court’s ruling. Belvedere v. State, 889 N.E.2d 

286, 288 (Ind. 2008).
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Fourth Amendment

[7] The Fourth Amendment provides protection against unreasonable searches and 

seizures 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. 

29S02-1608-CR-433, slip op. at 4 (Ind. Nov. 29, 2016). One exception is the 

Terry stop, which permits an officer to “stop 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, Deputy 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 lots,” (Appellant’s Br. at 10), characterizing the curb 

strikes as innocuous parking maneuvers. 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 362 (Ind. 2014), our supreme court found

reasonable suspicion to justify a Terry stop when an officer observed a vehicle 
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cross over the fog line twice. The Robinson Court acknowledged that “such 

movement could have been attributable to driver distraction or 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 368.

[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 when 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 that of 

the Fourth Amendment. However, we conduct a separate, independent inquiry

focusing on whether the 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 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).

[12] Here, the degree of concern was high because Deputy Stewart witnessed 

Sanders twice strike a curb while driving between parking spots, indicating that 
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Sanders may have been impaired. The degree of intrusion was low, which 

Sanders concedes, because Deputy Stewart was carrying out a brief 

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 totality 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, 496 U.S. 128, 136-37 

(1990)). Here, Sanders contends that Deputy Stewart did not have a legal right 
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to be in plain view of the marijuana evidence 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.