MEMORANDUM DECISION
Sep 04 2015, 8:28 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin Wild Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marcus Blackmon, September 4, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1412-CR-890
v. Appeal from the Marion Superior
Court.
The Honorable Steven R. Eichholtz,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 49G20-1210-FA-68486
Barteau, Senior Judge
Statement of the Case
[1] Marcus Blackmon appeals his convictions of dealing in a narcotic drug, a Class
A felony, Indiana Code section 35-48-4-1 (2006); possession of a controlled
substance, a Class D felony, Indiana Code section 35-48-4-7 (2011); two counts
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of resisting law enforcement, as Class A misdemeanors, Indiana Code section
35-44.1-3-1 (2012); and escape, a Class C felony, Indiana Code section 35-44.1-
3-4 (2012). We affirm.
Issue
[2] Blackmon presents a single issue for our review, which we restate as: whether
the trial court abused its discretion by admitting certain evidence at trial that
was obtained following a warrantless traffic stop.
Facts and Procedural History
[3] In October 2012, Detective Wolfe of the Indianapolis police force was
observing a Buick vehicle and its occupants in relation to an ongoing
investigation. The Buick was parked in a parking lot next to another vehicle,
and Detective Wolfe observed what he believed to be a possible hand-to-hand
drug transaction between the occupants of the two vehicles. When the Buick
left the parking lot, Detective Wolfe observed that the Buick’s driver failed to
signal when turning and traveled eastbound in the westbound lane of travel. At
that time, Detective Wolfe relayed this information over his radio and called for
assistance.
[4] Sergeant McDonald, who was assisting Detective Wolfe, heard the request to
stop the Buick. Although Sergeant McDonald did not witness the initial traffic
violations, he did note a third violation upon locating the vehicle — the tinting
on the Buick’s windows was too dark. Sergeant McDonald initiated a traffic
stop of the Buick, and the driver of the Buick pulled into a parking space at a
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gas station. As Sergeant McDonald walked up to the Buick, the driver opened
the door. Sergeant McDonald saw pieces of marijuana in the hand rest of the
driver’s door and smelled a strong odor of marijuana coming from the car. The
driver of the vehicle then informed Sergeant McDonald that he did not have a
license. Sergeant McDonald called for back-up.
[5] Officer Reetz arrived to assist Sergeant McDonald. Officer Reetz asked
Blackmon, who was the passenger in the Buick, to exit the vehicle, turn around
and put his hands on his shoulders. Blackmon exited the vehicle, put his hands
up, and then began to run from the scene. Both officers pursued Blackmon.
Officer Reetz grabbed Blackmon’s sweatshirt and wrestled him to the ground.
As Blackmon struggled, he continued to reach for his pants pocket. Eventually,
Blackmon pulled a pill bottle from his pocket and tossed it away from the
immediate area. When the pill bottle hit the ground, it burst open and sixty-five
small foil packets fell out. The officers tried to handcuff Blackmon, but they
were unable to do so because he continued to struggle. Sergeant McDonald
administered dry stuns with a Taser to the middle of Blackmon’s back, and the
officers eventually got him handcuffed. Once handcuffed, Blackmon was
searched and three pills were located in his jeans pocket in addition to a “wad
of cash.” Tr. p. 101. At that time, Blackmon was placed in the back of a police
car. Blackmon was able to get out of the police car, and he again ran from the
scene. By then, Detective Wolfe had arrived at the scene, and he chased
Blackmon and eventually apprehended him.
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[6] Based on this incident, Blackmon was charged with dealing in a narcotic drug,
1
a Class A felony; possession of a narcotic drug, a Class C felony ; possession of
a controlled substance, a Class D felony; two counts of resisting law
enforcement, as Class A misdemeanors; and escape, a Class C felony. A bench
trial was held on these charges at which Blackmon objected to the admission of
any evidence obtained as a result of the traffic stop. The evidence was admitted
over objection, and the State presented testimony that the foil packets contained
heroin. The three pills from Blackmon’s pants pocket were also tested and
determined to be Oxycodone. Blackmon was found guilty of all charges. His
conviction of possession of a narcotic drug was merged into his conviction of
dealing in a narcotic drug, and Blackmon was sentenced to an aggregate
sentence of thirty years with ten years suspended.
Discussion and Decision
[7] Blackmon contends that the trial court erred when it denied his motion to
suppress the evidence prior to trial and when it admitted the evidence over his
objection at trial. Because Blackmon appeals following a completed trial, the
issue is simply whether the trial court abused its discretion by admitting the
evidence at trial. See Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
trans. denied. The discretion afforded the trial court is broad, and an abuse of
this discretion occurs when a decision is clearly against the logic and effect of
1
Ind. Code § 35-48-4-6 (2006).
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the facts and circumstances before the court. Paul v. State, 971 N.E.2d 172, 175
(Ind. Ct. App. 2012).
[8] In reviewing a trial court’s ruling on the admissibility of evidence from an
allegedly illegal search, we do not reweigh the evidence. Reinhart v. State, 930
N.E.2d 42, 45 (Ind. Ct. App. 2010). Rather, we defer to the trial court’s factual
determinations, unless clearly erroneous, and we consider conflicting evidence
most favorable to the trial court’s ruling. Id. Further, we consider anew any
legal question of the constitutionality of a search or seizure. Id.
[9] Here, Blackmon asserts that his convictions arose from a pretextual stop and
subsequent search of his person that violated his rights under both the federal
and Indiana constitutions. He argues that he was stopped merely so the officers
could further their ongoing investigation and that Detective Wolfe called for
assistance and then “sought some sort of reason to make the stop.” Appellant’s
Br. p. 15. The Fourth Amendment to the United States Constitution protects
against unreasonable searches and seizures. Likewise, article I, section 11 of
the Indiana Constitution protects citizens from unreasonable searches and
seizures. Despite the similarity of the two provisions, Indiana courts interpret
and apply article I, section 11 independently from the Fourth Amendment.
Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001).
Fourth Amendment
[10] The safeguards of the Fourth Amendment extend to brief investigatory stops of
persons or vehicles that fall short of traditional arrest. Porter v. State, 985
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N.E.2d 348, 353 (Ind. Ct. App. 2013). The burden is on the State to
demonstrate that the measures it used to seize evidence were constitutional. Id.
A traffic stop is a seizure under the Fourth Amendment, and, accordingly, the
police must possess at least a reasonable suspicion that a traffic law has been
violated or that other criminal activity is taking place. Meredith v. State, 906
N.E.2d 867, 869 (Ind. 2009). Such reasonable suspicion must encompass more
than hunches or unparticularized suspicions; that is, an officer must be able to
point to specific facts giving rise to a reasonable suspicion of criminal activity.
Denton v. State, 805 N.E.2d 852, 855 (Ind. Ct. App. 2004), trans. denied. Further,
the subjective intentions of the officer do not factor into the determination of
the reasonableness of the stop under the Fourth Amendment. Osborne v. State,
805 N.E.2d 435, 439 (Ind. Ct. App. 2004), trans. denied.
[11] At both the hearing on the motion to suppress and at trial, the State conceded
that the stop was pretextual but argued that it was also legal. Tr. pp. 15, 95. At
the hearing on Blackmon’s motion to suppress, Sergeant McDonald testified as
follows:
McDonald: They were conducting surveillance of this particular
vehicle and the individuals in it and that they believed that they
were involved in drug trafficking.
Defense Counsel: Okay. Was there any discussion of a traffic
pull over or traffic infractions if you recall?
McDonald: They — yeah. The intent was to stop this vehicle.
Defense Counsel: To stop it for a traffic infraction?
McDonald: Yes.
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Defense Counsel: Okay. Was there — were you given any basis
for an infraction before you pulled them over?
McDonald: Yes.
Defense Counsel: Okay. What was that basis?
McDonald: They were driving the wrong way on the — 21st
Street and didn’t use a turn signal.
Id. at 37-38. And later:
Defense Counsel: Sergeant McDonald, Detective Wolfe asked
you to stop this vehicle before he relayed any information about
the traffic violations, right?
McDonald: I think the goal was to get the vehicle stopped, yes.
But no, he didn’t say, “Stop his car.”
Defense Counsel: The goal of this investigation was to stop the
car. You knew he wanted the car stopped before he had relayed
to you that there were traffic violations?
McDonald: Yeah. If we did observe some violations and had
enough reasonable suspicion to stop this vehicle, yes. He wanted
the car stopped. But it wasn’t until traffic violations were
observed that I did stop the car.
Id. at 40-41.
[12] Likewise at trial, Sergeant McDonald testified that he received a request on his
police radio to stop the Buick that had been observed by Detective Wolfe failing
to signal and driving on the wrong side of the road. Both of these actions
constitute traffic violations. See Ind. Code §§ 9-21-8-25 (1991), 9-21-8-2 (1991).
Moreover, upon locating the Buick, Sergeant McDonald noticed that its
window tinting appeared to be too dark in violation of Indiana Code section 9-
19-19-4(c) (2003). These circumstances indicate that when Sergeant McDonald
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conducted a traffic stop on the Buick, he possessed more than a reasonable
suspicion that three traffic laws had been violated.
Article I, Section 11
[13] Concluding that the traffic stop did not violate Blackmon’s Fourth Amendment
rights, we now turn to the separate argument under the Indiana Constitution.
Under Indiana constitutional analysis, we examine the circumstances of each
case to determine whether police behavior was reasonable. Mitchell, 745
N.E.2d at 786. The State bears the burden of showing that the intrusion was
reasonable in light of the totality of the circumstances. Id. “A police stop and
brief detention of a motorist is reasonable and permitted under Section 11 if the
officer reasonably suspects that the motorist is engaged in, or about to engage
in, illegal activity.” Id. “Reasonable suspicion exists if the facts known to the
officer, together with the reasonable inferences arising therefrom, would cause
an ordinarily prudent person to believe that criminal activity has or is about to
occur.” Id.
[14] Moreover, the courts of our state have determined that pretextual stops are not
unreasonable under the Indiana Constitution provided the officer has probable
cause to believe there has been a traffic violation. Osborne, 805 N.E.2d at 439.
Our supreme court explained that:
We find nothing unreasonable in permitting an officer, who may
have knowledge or suspicion of unrelated criminal activity by the
motorist, to nevertheless respond to an observed traffic violation.
It is likewise not unreasonable for a motorist who commits a
traffic law violation to be subject to accountability for said
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violation even if the officer may have an ulterior motive of
furthering an unrelated criminal investigation.
Mitchell, 745 N.E.2d at 787.
[15] Here, Sergeant McDonald received information from Detective Wolfe that the
occupants of the Buick had been involved in a possible hand-to-hand
transaction. Detective Wolfe asked the officers, including Sergeant McDonald,
to stop the Buick, and told them that he had observed two different traffic
violations — failure to signal and driving on the wrong side of the road. Upon
stopping the Buick, Sergeant McDonald identified a third violation regarding
the window tint. All three of these violations are completely independent of
any possible drug transaction, and all three constitute traffic violations. Thus,
while the stop may have been pretextual, we conclude that Sergeant McDonald
had reasonable suspicion of traffic violations to conduct a traffic stop of the
Buick.
Conclusion
[16] For the reasons stated, we conclude that the traffic stop of the Buick did not
violate Blackmon’s constitutional rights. Accordingly, the trial court did not
abuse its discretion in admitting at trial the evidence seized as a result of the
stop.
[17] Affirmed.
[18] Baker, J., and May, J., concur.
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