Porter v. State

82 N.E.3d 898

Taccasia PORTER, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 49A02-1703-CR-572.

Court of Appeals of Indiana.

August 22, 2017

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

Baker, Judge.

[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. 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, re-checking 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.

[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.

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.

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); 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

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, 88 S.Ct. 507, 19 L.Ed.2d 576 (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...