Alexander-Woods v. State

163 N.E.3d 902

Myles Danard ALEXANDER-WOODS, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-1233

Court of Appeals of Indiana.

FILED February 3, 2021

Attorney for Appellant: Cara Schaefer Wieneke Brooklyn, Indiana

Attorneys for Appellee: Theodore E. Rokita Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1] This appeal stems from Myles Danard Alexander-Woods’ convictions for possession of a narcotic drug, a Level 3 felony; carrying a handgun without a license, a Class A misdemeanor; possession of marijuana, a Class B misdemeanor; and being an habitual offender. The charges arose from the seizure of certain evidence pursuant to a traffic stop, during which a police officer determined that the presence of the odor of marijuana supplied probable cause for a vehicle search, which yielded a handgun and contraband. Alexander-Woods moved unsuccessfully to suppress the seized evidence on the bases that the police lacked reasonable suspicion to search and arrest him; and his arrest and the vehicle search were unreasonable and violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.

[2] During Alexander-Woods’ jury trial, defense counsel objected to the State's introduction of the seized evidence on identical grounds. For the first time on appeal, however, Alexander-Woods challenges the underlying probable cause determination on the novel ground that the State failed to prove that the police officer was qualified to distinguish between the odors of illegal marijuana and legal hemp. Alexander-Woods failed to assert the "hemp argument" or challenge the police officer's qualifications below; thus, the issue is waived. Moreover, because Alexander-Woods cannot establish fundamental error, his claim must fail. We affirm.

Issue

[3] The issue on appeal is whether the trial court committed fundamental error pursuant to the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution by admitting evidence found during the search of Alexander-Woods’ vehicle.

Facts

[4] On October 10, 2019, while Deputy Brent Horton ("Deputy Horton") of the Rush County Sheriff's Department was on routine patrol, Deputy Horton initiated a traffic stop of a speeding vehicle with an Oklahoma license plate. Without his canine partner, Deputy Horton approached the vehicle on the passenger side. Deputy Horton observed the driver, later identified as Alexander-Woods, making "abnormal[ly]" excessive, "furtive movements" within the vehicle. Tr. Vol. III pp. 222, 223. Alexander-Woods was accompanied by his wife, India Alexander-Woods ("India").¹ The vehicle was a rental car.²

[5] Deputy Horton detected a strong odor of marijuana in the vehicle and observed one package of Swisher Sweets cigarillos in the center console and another package on India's floorboard. In Deputy Horton's experience, cigarillos are commonly used to smoke marijuana, with marijuana substituted for the original tobacco. Deputy Horton instructed Alexander-Woods and India to exit the vehicle and advised the couple that Deputy Horton detected the odor of raw marijuana coming from the vehicle. India exited the vehicle promptly; however, Alexander-Woods "took a fair amount of time to exit the vehicle which was a red-flag to [Deputy Horton]." Id. at 225-26. Alexander-Woods advised that the couple smoked marijuana earlier that day. Deputy Horton called for backup and commenced a vehicle search based on his detection of the marijuana odor.³

[6] The vehicle search revealed a baggie containing a plant-like material in the center console of the vehicle. Deputy Horton believed the plant-like material to be marijuana. Visibly protruding from beneath the driver's seat, Deputy Horton found a t-shirt that was wrapped around a crumpled napkin and a handgun. The napkin contained a hard, brown, sand-like substance that Deputy Horton suspected was heroin; the substance was later determined to be fentanyl. Deputy Horton read the Miranda advisements to Alexander-Woods, who agreed to speak with Deputy Horton. Alexander-Woods admitted that he owned the gun and that the brown sand-like material was heroin.

[7] On October 11, 2019, the State charged Alexander-Woods with possession of a narcotic drug, a Level 3 felony; theft of a firearm, a Level 6 felony; carrying a handgun without a license, a Class A misdemeanor; and possession of marijuana, a Class B misdemeanor. In a separate information, the State alleged that Alexander-Woods was an habitual offender.

[8] On January 3, 2020, Alexander-Woods filed a motion to suppress evidence, wherein he asserted that: (1) "[t]he search and seizure was not based on reasonable suspicion that [ ]Alexander-Woods [ ] was involved in criminal activity"; (2) "[t]he search was not incident to arrest, because the search preceded the arrest of [ ]Alexander-Woods[ ]"; and (3) "[c]onsidering the totality of the circumstances, the arrest and search of [Alexander-Woods] was unreasonable, and thus, violated Article l, Section 11 of the Indiana Constitution ... and the Fourth Amendment to the Constitution of the United States." See Alexander-Woods’ Conf. App. p. 71. On January 9, 2020, the trial court conducted a suppression hearing and, at the close of the evidence, found: "... [T]here was reasonable [ ] suspicion for the stop and [ ] the odor of marijuana, in itself, was Probable Cause for the search of the vehicle. [ ][T]he Motion for Suppression of Evidence should be denied." Tr. Vol. II p. 22.

[9] The trial court conducted Alexander-Woods’ jury trial on February 25 and 26, 2020.⁴ During the State's case-in-chief, Deputy Horton testified that: (1) he was previously trained regarding "street level narcotics training [and] identification[,]" tr. vol. III p. 220; and (2) he identified the odor of marijuana⁵ in the vehicle based on his training and experience. The defense objected to Deputy Horton's testimony "based on [the] prior Motion to Suppress" and "ask[ed] the Court to note [the defense's] continuing objection to any testimony from the Deputy regarding the search of the vehicle." Id. at 225. The trial court overruled the objection. Thereafter, as the State introduced into evidence the marijuana, handgun, fentanyl, and other items seized from the vehicle, Alexander-Woods renewed his objection.

[10] On cross-examination of Deputy Horton, defense counsel challenged: (1) the State's ability to prove that Alexander-Woods knowingly possessed the fentanyl and the handgun found in the vehicle; (2) the propriety of Deputy Horton's continued search after the discovery of the marijuana; (3) the particular circumstances under which each item of contraband or evidence was discovered during the search; (4) the nature, extent, and import of Deputy Horton's remarks to Alexander-Woods and India; and (5) the rationale for various steps taken by Deputy Horton during his investigation.⁶ The defense did not probe into Deputy Horton's qualifications to identify controlled substances and/or his ability to distinguish one controlled substance from another. See Tr. Vol. III pp. 246-47, Tr. Vol. IV p. 3 (Deputy Horton's testimony and defense counsel's references, on cross-examination, regarding Deputy Horton's detection of the odor of marijuana).

[11] On February 26, 2020, the jury found Alexander-Woods guilty on all counts; Alexander-Woods subsequently admitted he was an habitual offender. On June 4, 2020, the trial court sentenced Alexander-Woods as follows and ordered the counts to be served concurrently: (1) for possessing a narcotic drug, ten years in the Department of Correction ("DOC"), plus a six-year habitual offender enhancement; (2) for carrying a handgun without a license, one year; and (3) for possession of marijuana, sixty days. Alexander-Woods, thus, received a sixteen-year aggregate sentence from which he now appeals.

Analysis

[12] Alexander-Woods alleges the trial court abused its discretion in admitting the fentanyl and the handgun evidence; he maintains that the admission of these items violated his Fourth Amendment rights as well as his rights under Article 1, Section 11 of the Indiana Constitution. We review challenges to the admission of evidence for an abuse of the trial court's discretion. Fansler v. State , 100 N.E.3d 250, 253 (Ind. 2018). In those instances, we will reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Id. "[W]hen an appellant's challenge to such a ruling is predicated on an argument that impugns the constitutionality of the search or seizure of the evidence, it raises a question of law, and we consider that question de novo." Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).

[13] As noted above, Alexander-Woods argued below that:

3. The search and seizure was without lawful authority because:

a. The search and seizure was not based on reasonable suspicion that the citizen (Alexander-Woods) was involved in criminal activity.

b. The search was not incident to arrest, because the search preceded the arrest of the citizen (Alexander-Woods).

Considering the totality of the circumstances, the arrest and search of the Defendant was unreasonable, and thus, violated Article l, Section 11 of the Indiana Constitution. Brown v. State , 653 N.E.2d 77 (Ind. 1995) and the Fourth Amendment to the Constitution of the United States.

Alexander-Woods’ Conf. App. p. 71. On appeal, however, Alexander-Woods challenges the vehicle search on a different basis. Alexander-Woods now contends that Deputy Horton lacked probable cause to search because: (1) "the smell of marijuana is no longer a sufficient basis to establish probable cause because the smell is virtually indistinguishable from the smell of a legal plant like hemp"; (2) "[w]ithout evidence that a police officer has been formally trained and has experience in...