Jul 30 2013, 7:45 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STUART K. BAGGERLY GREGORY F. ZOELLER
Bloomington, Indiana Attorney General of Indiana
NOAH T. WILLIAMS ERIC P. BABBS
Bloomington, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ADAM MILLER, )
)
Appellant-Defendant, )
)
vs. ) No. 53A05-1211-CR-560
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Marc R. Kellams, Judge
Cause No. 53C02-1101-CM-98
July 30, 2013
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Adam Miller (Miller), appeals the trial court’s denial of his
motion to suppress.
We reverse.
ISSUE
Miller raises four issues, one of which we find dispositive and restate as the
following: Whether the trial court erred by denying his motion to suppress.
FACTS AND PROCEDURAL HISTORY
On January 9, 2011, Officer Jordan Hasler of the Bloomington Police
Department (Officer Hasler) was patrolling in his vehicle when he saw a vehicle driven
by Miller. After confirming that the vehicle’s license plate sticker had expired, he
initiated a traffic stop of Miller’s vehicle. Officer Hasler saw Miller reach toward the
right side of the car. Miller turned into a nearby restaurant parking lot and parked his car
in a handicapped parking space, reaching toward the left side of the car as he did so.
Officer Hasler exited his vehicle and approached Miller’s vehicle on the passenger
side. Miller exited his car, coming out all the way out as he saw Officer Hasler at the rear
right bumper. Miller appeared irate and Officer Hasler commanded him to return to the
inside of the car. Miller continued to exit the car three more times, with Officer Hasler
commanding him to return. However, on the fourth time, Officer Hasler handcuffed
Miller outside the car. The parking lot was filled with people during this time.
2
Officer Hasler commenced a patdown of Miller’s clothing. He found no weapons
but noticed the smell of burnt marijuana on Miller’s clothes. Officer Hasler asked Miller
why he smelled of marijuana and Miller replied that he did not smoke marijuana and that
his father was a police officer. Officer Hasler asked Miller whether he had any “guns,
knives, needles […] rocket launchers or grenades in his car.” (Transcript p. 10). Miller
responded, “none that [Officer Hasler] needed to know of.” (Tr. p. 10). Officer Hasler
did not believe this was a common answer and was concerned that Miller may have a
weapon.
Additional officers arrived at the scene. Officer Hasler determined that the car
was registered to Miller, but pursuant to Bloomington Police Department policy, decided
to have the vehicle towed because of its expired license plate sticker. Pursuant to policy,
the officers began an inventory search of Miller’s car prior to towing. Officer Hasler
issued Miller a citation. Miller was released from his handcuffs and told that he was free
to leave. Miller said that he needed his cell phone and backpack which were still inside
his car.
Officer Hasler retrieved the backpack and searched it for weapons. Inside the
backpack, Officer Hasler saw two containers held together with a rubber band: a
transparent Tupperware container that had green residue which Officer Hasler believed to
be marijuana, and an opaque “wooden container that contained a smoking device that
emitted burnt marijuana odor.” (Tr. p. 13).
3
Miller was arrested for possession of paraphernalia and the officers continued their
inventory search of Miller’s vehicle. Officer Hasler took Miller’s car key to open the
glove box in his car. Inside, a loaded handgun and a magazine containing 30 rounds of
ammunition was found. Miller had a license to possess the handgun. Approximately 45
minutes to an hour elapsed from the beginning of the traffic stop to Miller’s eventual
booking at jail.
On January 10, 2011, the State filed an Information charging Miller with Count I,
possession of paraphernalia, a Class A misdemeanor, Ind. Code § 35-48-4-8.3(a)(1). On
November 7, 2011, Miller filed a motion to suppress the evidence, alleging violations of
both the Fourth Amendment of the United States Constitution and Article 1, Section 11
of the Indiana Constitution. On February 13, 2012, a hearing was held with Officer
Hasler and Miller providing testimony. The trial court took the matter under advisement.
On February 21, 2012, Miller filed a brief in support of his motion to suppress.
On February 24, 2012, the Stated filed a motion to reopen evidence. The State
alleged that Officer Hasler had additional testimony required to resolve an issue
concerning the level of invasiveness of Officer Hasler’s search of the backpack. On
February 27, 2012, Miller opposed the State’s motion alleging prejudice if the State was
permitted to present additional evidence after Miller had filed his memorandum in
support of his motion to dismiss. On March 15, 2012, the trial court held an additional
hearing. Over objection, the State briefly examined Officer Hasler on his experience
with marijuana smoking paraphernalia, particularly the paraphernalia found in Miller’s
4
backpack. Miller then extensively cross-examined Officer Miller on the paraphernalia,
the inventory search, his questioning of Miller regarding weapons, and his experience
with hidden weapons.
On August 8, 2012, the trial court issued its Order denying Miller’s motion to
suppress. On August 24, 2012, Miller filed a motion to correct error and on September 7,
2012, filed a motion to certify the trial court’s Order for interlocutory appeal. On
October 3, 2012, the trial court denied Miller’s motion to correct error and certified its
Order for interlocutory appeal. On December 14, 2012, we accepted interlocutory
appeal.
Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Motion to Suppress
Miller argues that the trial court abused its discretion by denying his motion to
suppress. He contends that Officer Hasler’s search of his backpack violated his rights
under the Fourth Amendment of the United States Constitution. Specifically, he asserts
that Officer Hasler’s warrantless search of the backpack was not based on a reasonable
suspicion of criminal activity or reasonable safety concerns. He also contends that the
automobile exception to the Fourth Amendment does not apply.
We review a denial of a motion to suppress similar to other sufficiency matters.
Dora v. State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), reh’g denied, trans. denied.
We do not reweigh the evidence, but consider conflicting evidence in the light most
5
favorable to the trial court’s ruling. Id. Uncontested evidence, however, is viewed in
favor of the defendant. Id.
A. Terry Stop
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures; its protections extend to the States through the
Fourteenth Amendment. Id. Warrantless searches are generally prohibited under the
Fourth Amendment. Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998). When a search is
conducted without a warrant, the State has the burden of proving that an exception to the
warrant requirement existed at the time of the search. Id.
In upholding the search of Miller’s backpack, the trial court relied primarily upon
the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1 (1968), which
permits a warrantless but “reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to arrest the individual for a
crime.” Id. at 27. “The officer need not be absolutely certain that the individual is
armed; rather, the issue is whether a reasonable prudent person in the circumstances
would be warranted in the belief that his safety or that of others was in danger.” Id.
In Berry, a police officer found Berry sleeping under some bushes. Berry, 704
N.E.2d at 465. Berry was not under arrest nor considered dangerous. See id. After his
story did not check out, the officer and Berry went to the officer’s patrol car. Id. The
officer picked up Berry’s backpack, placed it on her patrol car, and heard a metallic
6
sound. Id. at 465-66. The police officer searched both Berry and the backpack and found
a handgun and ammunition. Id. at 466. The Berry court noted that, “circumstances that
justify a Terry stop and search of a person for a weapon do not automatically justify
examination of the contents of items carried by that person such as purses, backpacks or
briefcases.” Berry, 704 N.E.2d at 465. However, “where either the suspicion that
criminal activity may be afoot or a concern over the possibility of harm is reasonably
heightened during the stop, the police are authorized to search such items within the
suspicious person’s immediate control.” Id. at 466.
The Berry court relied on Owens v. State, 497 N.E.2d 230, 232 (Ind. 1986), to
uphold the search. In Owens, police stopped Owens based on a description of a robbery
suspect. Id. at 231. After his story did not check out, an officer placed Owens’ bag on
the patrol car and heard a metallic sound. Id. A subsequent patdown and search of the
bag revealed a sawed-off shotgun. Id. The distinguishing feature in both cases was that
the police could point to an articulable fact in support of “a concern over the possibility
of harm [being] reasonably heightened during the stop.” Berry, 704 N.E.2d at 466.
Because Officer Hasler did not point to articulable facts supporting either a
suspicion of criminal activity or a concern over the possibility of harm, we conclude that
Officer Hasler’s search of Miller’s backpack was impermissible under the Fourth
Amendment. Miller was initially detained by Officer Hasler for driving with an expired
license plate registration sticker. Due to Miller’s unusual behavior, he was restrained and
frisked for weapons by Officer Hasler. After Miller refused to consent to a search of his
7
vehicle, Miller’s vehicle was to be inventoried and towed pursuant to Bloomington Police
Department policy. Officer Hasler issued him a citation and Miller was released from
handcuffs and told that he was free to go. Based upon Miller’s request, Officer Hasler
retrieved the backpack from the vehicle but searched his backpack. In explaining why he
searched Miller’s backpack, Officer Hasler testified on cross-examination as follows:
[OFFICER HASLER]: […]. I was going to search for weapons due to the
fact that it was in the vehicle and it was being inventoried.
[MILLER]: So is it a – sorry, was it a search for weapons or an inventory?
[OFFICER HASLER]: If a person comes to me and says I want a backpack
or I want a hat in my car and it’s being inventoried, I’m going to search it
for weapons prior to giving it back to him because I’m not going to hand
him a case or a back pack after inventory in it that has a handgun or knife or
something inside of it, for my safety.
…
[MILLER]: Okay. If I were a student, would you refuse to let me get my
books out of the car before your searched the book bag?
[OFFICER HASLER]: I would search […] simply for our safety because
you could have razor blades or other sharp objects or cut out, you know, a
handgun could be in a book, I mean.
[OFFICER HASLER]: Would you say if you stopped [the trial court
judge] and his tags were expired and he said, hey I’d like to get my
briefcase out of there. It’s got my files for [c]ourt today. You’d search it
before you handed it to him?
[OFFICER HASLER]: Yes, sir.
(Tr. pp. 21, 24).
Unlike Owens and Berry, the traffic stop here terminated with the issuance of a
citation. Officer Hasler did not point to any suspicion that criminal activity was afoot,
8
nor any facts in support of “a concern over the possibility of harm [being] reasonably
heightened during the stop.” Berry, 704 N.E.2d at 466. Instead, Officer Hasler’s
testimony demonstrates that his election to search the backpack was based upon
procedure. We conclude that this is insufficient under these circumstances.
In defense of Officer Hasler’s search, the State points to Miller’s erratic behavior
prior to and immediately after the stop. As with many search cases and probable cause
issues, the timing of events and the officer’s knowledge are critical in determining the
validity of the search. Sears v. State, 668 N.E.2d 662, 666 (Ind. 1996), overruled on
other grounds, Scisney v. State, 701 N.E.2d 847, 849 (Ind. 1998). Officer Hasler’s
issuance of the citation ended the encounter and therefore the Terry stop; Miller had been
released from his handcuffs and told that he was free to go. Miller’s erratic behavior was
too attenuated to furnish either a suspicion of criminal activity or belief that it posed a
safety threat to trigger a new Terry stop after having been released. We therefore
conclude that Officer Hasler’s search of Miller’s backpack was impermissible under the
Fourth Amendment.1
B. Automobile Exception
In upholding the search of Miller’s backpack, the trial court also relied on the
automobile exception to the Fourth Amendment. The trial court reasoned that Officer
1
Because we conclude that the search of Miller’s backpack and subsequent discovery of paraphernalia
were improper under the Fourth Amendment, we do not address the parties’ arguments on whether the
search comported with Article 1, Section 11 of the Indiana Constitution. Further, because we reverse the
trial court, we do not discuss whether the trial court abused its discretion by reopening the evidence on the
motion to suppress.
9
Hasler’s search was supported by probable cause based upon Officer Hasler’s prior
observation that Miller’s clothes smelt of burnt marijuana. On appeal, Miller argues that
Officer Hasler’s search was not based on probable cause.
A search falls within the automobile exception when a vehicle is readily mobile
and there is probable cause to believe it contains contraband or evidence of a crime. See
Meister v. State, 933 N.E.2d 875, 878-79 (Ind. 2010). If probable cause exists, the police
have the authority to search a vehicle and all containers located therein. See Krise v.
State, 746 N.E.2d 957, 962 (Ind. 2001). However, “the scope of a warrantless search
based on probable cause is no narrower – and no broader – than the scope of a search
authorized by a warrant supported by probable cause.” Id. at 749.
The trial court concluded that “the distinctive odor of burnt marijuana emanated
from [Miller’s] clothes” “justifie[d] a search of the vehicle and containers therein based
on probable cause.” (Appellant’s App. p. 14). It also reasoned that Officer Hasler’s
observation of green residue inside the Tupperware container found in Miller’s backpack
“bolsters finding probable cause.” (Appellant’s App. p. 14). We disagree.
“Facts necessary to demonstrate the existence of probable cause for a warrantless
search are not materially different from those which would authorize the issuance of a
warrant if presented to a magistrate.” Meister, 933 N.E.2d at 879. Probable cause to issue
a search warrant exists where the facts and circumstances would lead a reasonably
prudent person to believe that a search would uncover evidence of a crime. Id. Officer
Hasler noticed the smell of burnt marijuana emanating from Miller’s clothes prior to
10
restraining him. Officer Hasler asked Miller why his clothes smelled of burnt marijuana
and Miller replied that he did not smoke marijuana and that his father was a police
officer. Following his patdown of Miller’s clothes, Officer Hasler did not find marijuana.
Thereafter, Officer Hasler issued him a citation and told Miller that he was free to leave.
We have recognized that the odor of marijuana on a person’s breath and
emanating from inside a vehicle may give rise to probable cause that a person possesses
marijuana. Edmond v. State, 951 N.E.2d 585, 590-91 (Ind. Ct. App. 2011). At the same
time, “[b]ecause the odor of burnt marijuana might linger in a vehicle for a period of
time, that odor does not necessarily indicate illegal activity by a current occupant.” Id. at
591. Here, there is no evidence that the odor of marijuana emanated from the vehicle.
Following Miller’s request, Officer Hasler entered Miller’s vehicle to retrieve the
backpack yet he did not testify that the vehicle smelled of marijuana. To the extent that
the State argues that Miller’s prior actions supplied probable cause, we again conclude
that these circumstances are too attenuated given that Officer Hasler’s patdown found no
marijuana and Miller was told that he was free to leave. Because we conclude that
Officer Hasler provided no facts and circumstances that would lead a reasonably prudent
person to believe that a search would uncover evidence of a crime, probable cause to
search Miller’s backpack did not exist. As a result, the automobile exception to the
Fourth Amendment cannot be applied to uphold the search. Therefore, the trial court
erred by denying Miller’s motion to suppress.
CONCLUSION
11
Based on the foregoing, we conclude that the trial court erred by denying Miller’s
motion to suppress.
Reversed.
BROWN, J. concurs
BRADFORD, J. dissents with separate opinion
12
Jul 30 2013, 7:45 am
IN THE
COURT OF APPEALS OF INDIANA
ADAM MILLER, )
)
Appellant-Defendant, )
)
vs. ) No. 53A05-1211-CR-560
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
BRADFORD, Judge, dissenting
While I agree with the majority that Officer Hasler’s search of Miller’s backpack
was not justified by officer safety concerns or as part of an inventory search of the
impounded car, I believe that it was supported by probable cause that contraband might
be found within. Also, in addressing arguments not reached by the majority, I would
conclude that Officer Hasler’s search did not violate the Indiana Constitution and that the
13
trial court did not abuse its discretion in reopening the evidence at Miller’s suppression
hearing.
I. Fourth Amendment
The State argues that Officer Hasler’s search of Miller’s backpack was justified
pursuant to the automobile exception to the Fourth Amendment.
As a general rule, the Fourth Amendment prohibits warrantless
searches, but there are exceptions to the warrant requirement. Black v.
State, 810 N.E.2d 713, 715 (Ind. 2004).…
The automobile exception was first applied in Carroll v. United
States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This exception
was originally based on ready mobility and exigent circumstances. See
Coolidge v. New Hampshire, 403 U.S. 443, 459-60, 91 S.Ct. 2022, 2034-
35, 29 L.Ed.2d 564, 579 (1971). The United States Supreme Court later
made clear that separate exigent circumstances are not required for the
automobile exception to apply because “[t]he mobility of automobiles …
‘creates circumstances of such exigency that, as a practical necessity,
rigorous enforcement of the warrant requirement is impossible.’”
California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 2069, 85 L.Ed.2d
406, 413 (1985) (quoting South Dakota v. Opperman, 428 U.S. 364, 367,
96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000, 1004 (1976)); see also Maryland v.
Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442, 445
(1999) (“[T]he ‘automobile exception’ has no separate exigency
requirement…. [I]n cases where there [is] probable cause to search a
vehicle ‘a search is not unreasonable if based on facts that would justify the
issuance of a warrant, even though a warrant has not been actually
obtained.’”) (quoting United States v. Ross, 456 U.S. 798, 809, 102 S.Ct.
2157, 2164-65, 72 L.Ed.2d 572, 584 (1982)); Pennsylvania v. Labron, 518
U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031, 1036 (1996) (“If a
car is readily mobile and probable cause exists to believe it contains
contraband, the Fourth Amendment thus permits police to search the
14
vehicle without more.”). Furthermore, the exception is based not only on
ready mobility but also on the lesser expectation of privacy with respect to
automobiles, so that even where an automobile is not immediately mobile,
a warrantless search may still be justified. Labron, 518 U.S. at 940, 116
S.Ct. at 2487, 135 L.Ed.2d at 1036.
In Dyson, the United States Supreme Court held that police need not
obtain a search warrant before searching a vehicle that they have probable
cause to believe contains illegal drugs. The Court emphasized that the
automobile exception “does not have a separate exigency requirement,” id.,
527 U.S. at 467, 119 S.Ct. at 2014, 144 L.Ed.2d at 445, and that “[i]f a car
is readily mobile and probable cause exists to believe it contains
contraband, the Fourth Amendment ... permits police to search the vehicle
without more.” Id. (quoting Labron, 518 U.S. at 940, 116 S.Ct. at 2485,
135 L.Ed.2d at 1035-36).
Myers v. State, 839 N.E.2d 1146, 1150-51 (Ind. 2005).
I believe that Officer Hasler had ample probable cause to search Miller’s vehicle
and its contents, including the backpack. In cases where police detected the odor of burnt
marijuana emanating from a motor vehicle, Indiana Courts, adhering to the majority rule,
have consistently held that probable cause to search the car existed. See, e.g., State v.
Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002) (“[W]e have no hesitation in
deciding that when a trained and experienced police officer detects the strong and
distinctive odor of burnt marijuana coming from a vehicle, the officer has probable cause
to search the vehicle.”), trans. denied.
While recognizing that there is nothing in the record to indicate that Officer Hasler
detected the odor of burnt marijuana emanating from Miller’s vehicle, I would still
15
conclude that, under the circumstances of this case, probable cause existed to search it for
contraband. First and foremost, Officer Hasler detected the odor of burnt marijuana on
Miller’s person, which raises a reasonable inference that he had smoked marijuana
somewhat recently and might be in possession of contraband, either on his person or in
the vehicle he recently exited.
Moreover, Miller’s actions before, during, and after the traffic stop were
suspicious and raised a reasonable inference that his vehicle contained contraband. After
Officer Hasler activated his lights, he noticed Miller “abruptly lean[] down as if he was
reaching for something or doing something to the right side as he turned into the parking
lot.” Tr. p. 7. After Miller quickly parked his vehicle, Officer Hasler observed Miller
“reach[] down as if he was reaching to the left side[.]” Tr. p. 7. When Officer Hasler
approached Miller’s car on the passenger side and had reached the back quarter panel,
Miller “abruptly exited the vehicle.” Tr. p. 8. Although Miller briefly returned to his
vehicle when advised to by Officer Hasler, he exited again almost immediately when
Officer Hasler started toward the passenger-side window. Miller sat down a third time in
the vehicle, but, again, almost immediately exited as Officer Hasler started to walk
around the rear of the vehicle. Officer Hasler advised Miller once to stay seated in the
vehicle, but Miller exited almost immediately for a fourth time.
In my view, Miller’s actions also give rise to a reasonable inference that his
vehicle contained contraband. Miller’s furtive actions before and after parking his
16
vehicle are entirely consistent with a person secreting contraband that might otherwise be
plainly visible to a person standing outside looking into the vehicle, as Officer Hasler was
about to do. Miller’s refusal to remain in his vehicle, despite being advised to several
times, also leads to a reasonable inference that there was something within that he did not
want Officer Hasler to see or otherwise become aware of. In short, Miller seemed to
being doing everything he could to keep Officer Hasler away from his vehicle. 2 Miller’s
actions, along with the odor of marijuana emanating from his person, provided ample
probable cause to search his vehicle and containers within for illegal drugs. It is not
relevant to our analysis that Officer Hasler believed that his search of Miller’s backpack
was justified as an inventory search. Officer’s Hasler’s subjective beliefs, quite simply,
have no legal effect. See, e.g., Moffitt v. State, 817 N.E.2d 239, 246 (Ind. Ct. App. 2004),
trans. denied. I believe that objective probable cause existed to search the backpack, and
so Officer Hasler’s search, whatever his stated justification, was constitutional.
II. Article I, Section 11
I would also conclude that the search of Miller’s backpack did not violate Article
I, Section 11, of the Indiana Constitution, which provides that
[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable search or seizure, shall not be violated; and no
2
It is also worth noting that had Miller stayed seated in his vehicle as advised, Officer Hasler would likely have
first detected the odor of marijuana emanating from within the vehicle, which would have unquestionably justified a
search of the vehicle and its contents. As such, ruling in Miller’s favor would be, in effect, to reward him for
refusing to cooperate with law enforcement, an outcome I cannot endorse.
17
warrant shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
person or thing to be seized.
The Indiana Supreme Court has noted that
[w]hile almost identical in wording to the federal Fourth Amendment, the
Indiana Constitution’s Search and Seizure clause is given an independent
interpretation and application. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.
2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999); Moran v.
State, 644 N.E.2d 536, 540 (Ind. 1994). To determine whether a search or
seizure violates the Indiana Constitution, courts must evaluate the
“reasonableness of the police conduct under the totality of the
circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005) (citing
Moran, 644 N.E.2d at 539). “We believe that the totality of the
circumstances requires consideration of both the degree of intrusion into the
subject’s ordinary activities and the basis upon which the officer selected
the subject of the search or seizure.” Id. at 360. In Litchfield, we
summarized this evaluation as follows:
In sum, although we recognize there may well be other
relevant considerations under the circumstances, we have
explained reasonableness of a search or seizure as turning on
a balance of: 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
citizens’ ordinary activities, and 3) the extent of law
enforcement needs.
Id. at 361.
Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005).
18
Although Officer Hasler’s stated reason for searching Miller’s backpack was concern for
his safety, there was nonetheless a relatively high degree of suspicion that a criminal
violation had occurred. Miller was acting suspiciously, repeatedly failing to heed Officer
Hasler’s requests that he remain in his vehicle, and he smelled of burnt marijuana. Miller
seemed to be very intent on keeping Officer Hasler away from this vehicle, raising
suspicion that it might contain contraband. See, e.g., Edmond v. State, 951 N.E.2d 585,
592 (Ind. Ct. App. 2011) (concluding that degree of suspicion weighed in State’s favor
where there was probable cause to believe illegal drugs were present). The degree of
intrusion into Miller’s activities was slight. Officer Hasler’s search of Miller’s backpack
was not invasive or humiliating, did not involve searching his person, and apparently did
not lengthen his detention appreciably. Finally, I would conclude that the extent of law
enforcement needs was high enough to weigh in the State’s favor as well. While I agree
that Officer Hasler did not have sufficient justification to search the backpack for officer
safety reasons, there was ample reason to believe that it might have contained illegal
drugs, in whose removal from the streets police have an obvious interest. Under the
totality of the circumstances, I would conclude that Officer Hasler’s search of Miller’s
backpack was reasonable pursuant to Article I, Section 11.
III. Reopening the Evidence on the Motion to Suppress
19
Finally, Miller contends that the trial court abused its discretion in allowing the
State to reopen its evidence and present additional testimony from Officer Hasler at the
suppression hearing.
[T]he granting of permission to reopen a case is within the discretion
of the trial court and the decision will be reviewed only to determine
whether or not there has been an abuse of that discretion. Gorman v. State
(1984), Ind., 463 N.E.2d 254, 257. Among the factors which weigh in the
exercise of discretion are whether there is any prejudice to the opposing
party, whether the party seeking to reopen appears to have rested
inadvertently or purposely, the stage of the proceedings at which the
request is made, and whether any real confusion or inconvenience would
result from granting the request. Flynn v. State (1986), Ind., 497 N.E.2d
912, 914. Two conditions must be shown to exist to justify a court of
appellate jurisdiction in setting aside a ruling made by a trial court in the
exercise of judicial discretion: 1) the action complained of must have been
unreasonable in light of all attendant circumstances or it must have been
clearly untenable or unreasonable; and 2) the action was prejudicial to the
rights of the complaining party. Flynn, 497 N.E.2d at 916, citing Allman v.
State (1968), 253 Ind. 14, 19-20, 235 N.E.2d 56, 59.
A party should be afforded the opportunity to reopen its case to
submit evidence which could have been part of its case in chief. Gorman,
463 N.E.2d at 257. Given [a] claim of insufficient evidence, “the State
should have had an opportunity to supply such insufficiency or reopen the
case for that purpose, even after it had rested, since a trial is not a game of
technicalities, but one in which the facts and truth are sought.” Eskridge v.
State (1972), 258 Ind. 363, 369, 281 N.E.2d 490, 493.
Ford v. State, 523 N.E.2d 742, 745-46 (Ind. 1988).
I would conclude that the trial court did not abuse its discretion in allowing the
State to reopen its evidence and present further testimony from Officer Hasler. In so
20
concluding, I find the preliminary stage of the litigation to be dispositive. Because a
pretrial suppression proceeding determines nothing with finality and retains no viability
once the case goes to trial, the State could have simply introduced the additional evidence
at that point if the trial court had denied its pretrial request.
Once the matter proceeds to trial, the question of whether the trial court
erred in denying a motion to suppress is no longer viable. See Beverly v.
State, 801 N.E.2d 1254, 1260 n.5 (Ind. Ct. App. 2004), trans. denied;
Packer v. State, 800 N.E.2d 574, 578 (Ind. Ct. App. 2003), trans. denied;
Washington [v. State], 784 N.E.2d [584,] 586 [(Ind. Ct. App. 2003]. The
logic behind this rule is that “‘a ruling upon a pretrial motion to suppress is
not intended to serve as the final expression concerning admissibility.’”
Joyner v. State, 678 N.E.2d 386, 393 (Ind. 1997) (quoting Gajdos v. State,
462 N.E.2d 1017, 1022 (Ind. 1984)). In other words, the preliminary ruling
on the defendant’s motion to suppress is subject to modification at trial. Id.
Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). Given that the State could just
have presented Officer Hasler’s testimony at trial had the trial court denied its request to
reopen its evidence, it would have made little sense to do so. I would therefore conclude
that the trial court did not abuse its discretion in this regard.
CONCLUSION
I would conclude that Officer Hasler’s search of Miller’s backpack violated
neither the Fourth Amendment of the United States Constitution nor Article I, Section 11,
of the Indiana Constitution. I would further conclude that the trial court did not abuse its
discretion in allowing the State to reopen its evidence at the suppression hearing.
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Consequently, I would affirm the trial court in all respects and must therefore respectfully
dissent.
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