FILED
Feb 06 2017, 8:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brooke N. Russell Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, February 6, 2017
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1606-CR-1271
v. Appeal from the Marion Superior
Court
James Parrott, The Honorable Jose D. Salinas,
Appellee-Defendant Judge
Trial Court Cause No.
49G14-1511-F6-40302
Crone, Judge.
Case Summary
[1] A police officer detected a strong odor of raw marijuana emanating from James
Parrott’s vehicle during a traffic stop. The officer had Parrott exit the vehicle,
handcuffed him, searched him, and found raw marijuana and other contraband
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in his pockets. The State charged Parrot with marijuana possession and other
crimes. Parrott filed a motion to suppress the evidence seized during the
search, arguing that the officer did not have probable cause to conduct a
warrantless search because the officer did not smell marijuana on him after he
exited the vehicle. The trial court granted Parrott’s motion. The State did not
dismiss the charges and appealed the ruling.
[2] Parrott filed a motion to dismiss the State’s appeal, arguing that the State was
required to dismiss the charges before it could appeal the suppression order.
Because the ultimate effect of the order is to preclude further prosecution of the
drug-related charges, at a minimum, we deny Parrott’s motion to dismiss.
[3] The State argues that the trial court erred in granting Parrott’s motion to
dismiss, asserting that the officer had probable cause to arrest Parrott based on
the strong odor of raw marijuana emanating from his vehicle and conduct a
warrantless search incident to that arrest. We agree and therefore reverse and
remand for further proceedings.
Facts and Procedural History
[4] The relevant facts are undisputed. On November 13, 2015, Indianapolis
Metropolitan Police Department Officer Andrew Clark was in his patrol car
and saw a vehicle run a stop sign. Officer Clark stopped the vehicle and
approached the driver’s side. Parrott was the vehicle’s only occupant. The
officer asked Parrott for his registration and ID. As the officer spoke with
Parrott, he detected an “odor of raw marijuana coming from the vehicle” that
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was “pretty strong.” Tr. at 10, 11. According to Officer Clark, raw marijuana
has “no burnt or singed smell” and smells “[k]ind of almost like a plant[,]”
whereas the smell of burnt marijuana is “similar to like a cigarette smell where
it’s something more burned. It’s a more of a singed-in-the-air kind of smell at
least for me.” Id. at 8. The officer did not see any marijuana in plain view.
[5] Officer Clark had Parrott step out of the vehicle, at which point “there was not
a distinguishable odor [of marijuana] from him.” Id. at 19. In Officer Clark’s
experience, “a passenger compartment is confined space. It’s an enclosed area.
So if it’s not exposed to any outside sources, […] that smell is going to linger.”
Id. at 23-24. Also, “the smell from a passenger compartment is obviously
stronger than it would be a smell coming from an actual individual person.” Id.
at 24. Officer Clark handcuffed Parrott and searched him “because of the odor
of marijuana coming from the car .… [w]hen he was in it.” Id. at 19. The
officer found “a half burnt marijuana cigarette and a yellow baggie” with crack
cocaine in Parrott’s right pants pocket and a “small baggie of a green leafy
substance that [the officer] knew to be marijuana” and two Percocet pills in his
left pants pocket. Id. at 12-13. The officer put the contraband in an envelope
and put Parrott in his patrol car. Two backup officers arrived, and Officer
Clark went to search Parrot’s vehicle. Parrott ran away from the backup
officers, who apprehended him. Officer Clark found no contraband in Parrott’s
vehicle.
[6] The State charged Parrott with six counts: level 6 felony cocaine possession,
level 6 felony narcotic drug possession, class B misdemeanor marijuana
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possession, and two counts of class A misdemeanor resisting law enforcement.
Parrott filed a motion to suppress the evidence seized during the search. At a
hearing on the motion, Parrott argued that Officer Clark did not have probable
cause to conduct a warrantless search of his person because the officer did not
smell marijuana on his person after he exited the vehicle.1 The trial court took
the matter under advisement. At a subsequent hearing, the court granted
Parrott’s motion to suppress, stating, “The nuance is that if there’s probable
cause -- if [Parrott] was in the car, you could search him. But by stepping out of
the car, you know, they lose that probable cause to [Parrott].” Id. at 46. The
court also stated, “Based on the facts that I saw, the search of the vehicle was
100 appropriate and legal [sic].” Id. at 48. The court told the State, “[I]f you
want to do an interlocutory [appeal], I’ll be happy to grant that.” Id. at 48.
Defense counsel advised the court, “We do have misdemeanor Resistings that
will remain even with the Court’s ruling.” Id. at 50. The court then set a
pretrial hearing. The State filed a motion to correct error. The trial court issued
a written order in which it granted Parrott’s motion to suppress and
incorporated its oral findings of fact and ruling and also denied the State’s
motion to correct error.
[7] Indiana Code Section 35-38-4-2 provides that the State may take appeals to this
Court in certain cases, including
1
Parrott did not challenge the validity of the traffic stop or Officer Clark’s training and experience in
detecting the odor of raw marijuana.
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(5) From an order granting a motion to suppress evidence, if the
ultimate effect of the order is to preclude further prosecution of
one (1) or more counts of an information or indictment.
(6) From any interlocutory order if the trial court certifies and the
court on appeal or a judge thereof finds on petition that:
(A) the appellant will suffer substantial expense, damage, or
injury if the order is erroneous and the determination thereof is
withheld until after judgment;
(B) the order involves a substantial question of law, the early
determination of which will promote a more orderly disposition
of the case; or
(C) the remedy by appeal after judgment is otherwise inadequate.
[8] Indiana Appellate Rule 5 provides that this Court has jurisdiction in appeals
from final judgments and from interlocutory orders. After the denial of its
motion to correct error, the State filed a motion to stay proceedings and certify
order for interlocutory appeal pursuant to Indiana Code Section 35-48-4-2(5),
asserting that it “cannot proceed on one or more of the charges” as a result of
the suppression ruling. Appellant’s App. at 71. Parrott filed an objection and
argued,
2. IC 35-38-4-2(6) references appeals from interlocutory orders
while IC 35-38-4-2(5) is the specific appeal authority for an
appeal from an order granting suppression. The specific controls
the general.
3. The controlling code section requires that the order effectively
preclude further prosecution on the affected counts which implies
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a dismissal. The proper procedure is to dismiss the affected
counts then take a direct appeal and stay the remaining counts.
Id. at 73. Before the court ruled on its motion to stay, the State filed a notice of
appeal indicating that it was appealing from a final judgment. Indiana
Appellate Rule 2(H)(5) provides that a judgment is a final judgment if “it is
otherwise deemed final by law.”
[9] After the State filed its appellant’s brief, Parrott filed a motion to dismiss the
appeal, arguing that this Court lacks jurisdiction to consider the appeal because
the State did not dismiss any charges.2 The State filed a response, asserting that
the suppression order is a judgment deemed final by Indiana Code Section 35-
38-4-2(5). The appeal was fully briefed in due course.
Discussion and Decision
Section 1 – The State was not required to dismiss the charges
against Parrott before filing a notice of appeal.
[10] We first address Parrott’s motion to dismiss this appeal. “The State’s right to
appeal in a criminal matter is statutory, and the State cannot appeal unless
given that statutory authorization by the legislature. The State’s statutory right
of appeal is in contravention of common law principles and is therefore strictly
construed.” State v. Coleman, 971 N.E.2d 209, 211 (Ind. Ct. App. 2012)
2
Although Parrott does not specifically say so in his motion to dismiss, we presume that his assertion of lack
of jurisdiction is based on the premise that the suppression order is not a final judgment because the State did
not dismiss the charges.
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(citation omitted). That said, we may not read into a statute a restriction that
the legislature did not include. Williams v. State, 952 N.E.2d 317, 319 (Ind. Ct.
App. 2011).
[11] Parrott has not cited any statute, rule, or caselaw that unequivocally requires
the State to dismiss charges before it may appeal from an unfavorable
suppression order. Indeed, Indiana Code Section 35-38-4-2(5) itself does not
require dismissal as a precondition to appeal. In State v. Pease, (Ind. Ct.
App. 1988), another panel of this Court noted that since the enactment of
Indiana Code Section 35-38-4-2(5),
this court has construed I.C. 35-38-4-2(5) as permitting appeals in
those cases where the suppression order has the effect of
precluding further prosecution by the State. Such suppression
orders, when interlocutory, are “tantamount to a dismissal of the action
and therefore appealable as a final judgment under subsection (5) of the
statute.” State v. Williams (1983), Ind. App., 445 N.E.2d 582, 584.
See, e.g. State v. Watkins (1987), Ind. App., 515 N.E.2d 1152, n.1;
State v. Blake (1984), Ind. App., 468 N.E.2d 548, 550.
The State charged Pease with class D felony possession of a
schedule II controlled substance (amphetamine). The State
acquired its evidence of this offense as a consequence of the
illegal search alleged in Pease’s motion to suppress. When the
trial court ordered that the fruits of the search of Pease’s person
were to be excluded, the State lost its ability to prosecute and
dismissed the information the same day.
The order granting Pease’s motion to suppress has become a final order
by virtue of the action’s dismissal. I.C. 35-38-4-2(5) authorizes
appeals from orders suppressing evidence when the effect is to
preclude further prosecution. We are unaware of any principled
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basis for distinguishing between final orders and interlocutory
orders deemed final when both have the effect of precluding
further prosecution.
Id. at 1209 (emphases added).
[12] Notwithstanding any apparent inconsistency between the two italicized
sentences, the plain meaning of Indiana Code Section 35-38-4-2(5) is clear: if
the ultimate effect of an order granting a motion to suppress is to preclude
further prosecution of one or more counts of an information or indictment, the
State may appeal that order as a final judgment. Dismissal of the charges is not
required. At a minimum, the ultimate effect of the trial court’s suppression
order in this case is to preclude further prosecution of the drug-related counts
against Parrott. The State was not required to dismiss those counts before filing
a notice of appeal. Therefore, we deny Parrott’s motion to dismiss this appeal
by separate order issued contemporaneously with this opinion.
Section 2 – The warrantless search of Parrott’s person did not
violate the Fourth Amendment to the U.S. Constitution.
[13] We now address the merits of the State’s appeal. “At the suppression hearing,
the State had the burden of demonstrating the constitutionality of the measures
it used to seize evidence as the result of a warrantless search.” State v. Holley,
899 N.E.2d 31, 33 (Ind. Ct. App. 2008), trans. denied (2009). Thus, the State
appeals from a negative judgment and must show that the trial court’s
suppression ruling was contrary to law. Id. We “will reverse a negative
judgment only when the evidence is without conflict and all reasonable
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inferences lead to a conclusion opposite that of the trial court. We will not
reweigh the evidence or judge witness credibility.” Id. (citation omitted).
[14] The Fourth Amendment to the U.S. Constitution provides,
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
The fundamental purpose of the Fourth Amendment is to protect the legitimate
expectations of privacy that citizens possess in their persons, homes, and
belongings. Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct. App. 2016). This
protection has been extended to the states through the Fourteenth Amendment.
Id. “In general, the Fourth Amendment prohibits searches and seizures
conducted without a warrant that is supported by probable cause.” Id.
As a deterrent mechanism, evidence obtained without a warrant
is not admissible in a prosecution unless the search or seizure
falls into one of the well-delineated exceptions to the warrant
requirement. Where a search or seizure is conducted without a
warrant, the State bears the burden to prove that an exception to
the warrant requirement existed at the time of the search or
seizure.
Id. (citations and quotation marks omitted).
[15] The State essentially concedes that the only basis for upholding the
constitutionality of Officer Clark’s warrantless search of Parrott under the
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Fourth Amendment would be as a search incident to a lawful arrest. See United
States v. Robinson, 414 U.S. 218, 235 (1973) (“A custodial arrest of a suspect
based on probable cause is a reasonable intrusion under the Fourth
Amendment; that intrusion being lawful, a search incident to the arrest requires
no additional justification. It is the fact of the lawful arrest which establishes
the authority to search ….”).3
A suspect is considered under arrest when a police officer
interrupts the freedom of the accused and restricts his liberty of
movement. The fact that a police officer does not inform a
defendant he is under arrest prior to a search does not invalidate
the search incident to arrest exception as long as there is probable
cause to make an arrest.
Fentress v. State, 863 N.E.2d 420, 423 (Ind. Ct. App. 2007) (citation, quotation
marks, and brackets omitted). The State does not try to pinpoint when Parrott
was under arrest, but for purposes of this opinion, we will assume, without
deciding, that he was under arrest when he was handcuffed by Officer Clark.
[16] “An officer may arrest a person without a warrant if the officer has ‘probable
cause to believe the person is committing or attempting to commit a
misdemeanor in the officer’s presence ….’” Haley v. State, 696 N.E.2d 98, 104
(Ind. Ct. App. 1998) (quoting Ind. Code § 35-33-1-1(a)(4)), trans. denied. A
3
The rationale for the rule allowing warrantless searches incident to arrest is “the need to seize weapons and
other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the
destruction of evidence of the crime[.]” Preston v. United States, 376 U.S. 364, 367 (1964).
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person who knowingly possesses pure or adulterated marijuana commits
possession of marijuana, a class B misdemeanor. Ind. Code § 35-48-4-11(a).
“Possession can be either actual or constructive.” Britt v. State, 810 N.E.2d
1077, 1082 (Ind. Ct. App. 2004). “Actual possession occurs when the
defendant has direct physical control over the item, while constructive
possession involves the intent and capability to maintain control over the item
even though actual physical control is absent.” Id.
[17] “Probable cause to arrest exists where the facts and circumstances within the
knowledge of an officer are sufficient to warrant a belief by a person of
reasonable caution that an offense has been committed and that the person to
be arrested committed it.” State v. Stevens, 33 N.E.3d 1200, 1204-05 (Ind. Ct.
App. 2015), trans. denied.
The amount of evidence necessary to meet the probable cause
requirement is determined on a case-by-case basis. It is grounded
in notions of common sense, not mathematical precisions. As
such, the probable cause standard is a practical, nontechnical
conception that deals with the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.
White v. State, 24 N.E.3d 535, 539 (Ind. Ct. App. 2015) (citations and quotation
marks omitted), trans. denied. “The level of proof necessary to establish
probable cause is less than that necessary to establish guilt beyond a reasonable
doubt. Probable cause, in fact, requires only a fair probability of criminal
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activity, not a prima facie showing.” Jellison v. State, 656 N.E.2d 532, 534 (Ind.
Ct. App. 1995) (citation omitted).
[18] “[A]s long as probable cause exists to make an arrest, the fact that a suspect was
not formally placed under arrest at the time of the search incident thereto will
not invalidate the search.” Moffitt v. State, , 247 (Ind. Ct. App. 2004), trans.
denied. “A police officer’s subjective belief as to whether he has probable cause
to arrest a defendant has no legal effect. Instead, the police officer’s actual
knowledge of objective facts and circumstances is determinative.” VanPelt v.
State, 760 N.E.2d 218, 223 (Ind. Ct. App. 2001) (citation omitted), trans. denied
(2002). “The ultimate determination of probable cause is reviewed de novo.”
Bell v. State, 13 N.E.3d 543, 545 (Ind. Ct. App. 2014), trans. denied.
[19] The State argues that Officer Clark had probable cause to arrest Parrott “based
on the odor of raw marijuana emanating from the vehicle of which he was the
driver and sole occupant.” Appellant’s Br. at 10. Over the years, this Court has
decided numerous cases involving the odor of marijuana as the basis for a
warrantless search of a person or vehicle. See, e.g., K.K. v. State, 40 N.E.3d 488,
495 (Ind. Ct. App. 2015) (finding that officer had probable cause to arrest and
conduct warrantless search of vehicle’s backseat passenger based on “strong
odor of burnt marijuana coming from inside the vehicle” and passenger’s
“furtive movements” and nervousness); Bell, 13 N.E.3d at 546 (finding that
officer had probable cause to arrest and conduct warrantless search of vehicle’s
passenger based on “strong odor of raw marijuana coming from both the
vehicle and Bell’s person.”); Edmond v. State, 951 N.E.2d 585, 591-92 (Ind. Ct.
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App. 2011) (finding that officer had probable cause to arrest and conduct
warrantless search of vehicle’s sole occupant based on smell of burnt marijuana
coming from vehicle and occupant’s breath); Meek v. State, 950 N.E.2d 816, 820
(Ind. Ct. App. 2011) (finding that officer had probable cause to conduct
warrantless search of vehicle’s driver, where officers smelled raw marijuana
emanating from vehicle, driver admitted to possessing weapon after initially
denying it, driver “stated that he had previously smoked marijuana that day[,]”
and officers found no marijuana in vehicle or on passenger’s person), trans.
denied; Marcum v. State, 843 N.E.2d 546, 548 (Ind. Ct. App. 2006) (finding that
officers had probable cause to conduct warrantless search of vehicle where one
officer smelled “strong odor of raw marijuana emanating from the vehicle” and
another officer smelled burnt marijuana); Sebastian v. State, 726 N.E.2d 827, 831
(Ind. Ct. App. 2000) (finding that officers had probable cause to arrest and
conduct warrantless search of driver and vehicle based on erratic driving and
“distinctive odor of burnt marijuana emanating from the passenger
compartment.”), trans. denied.
[20] None of these cases is factually on all fours with this case, but they offer some
guidance in determining whether probable cause existed to arrest Parrott and
conduct a warrantless search of his person incident to that arrest. In Bell, we
noted that “the odor of raw marijuana indicates that it has not been smoked
and therefore still may be in the defendant’s possession.” 13 N.E.3d at 546.
According to Officer Clark, the odor of raw marijuana in Parrott’s vehicle was
“pretty strong” and “stronger than it would be” coming from a person. Tr. at
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11, 24. And in K.K., we explained that whether a defendant is alone in a
vehicle “and whether the odor of marijuana—burnt or raw—is also present on
an individual or his breath are factors to be considered in the analysis, not
bright-line prerequisites necessary for probable cause to exist.” 40 N.E.3d at
494.
[21] Although Parrott did not drive erratically or act furtively like the defendants in
Sebastian and K.K., and although he did not smell of marijuana or admit to
smoking marijuana like the defendants in Edmond, Bell, and Meek, we conclude
that the facts and circumstances within Officer Clark’s knowledge were
sufficient to warrant a reasonable belief that Parrott possessed raw marijuana in
his vehicle. Parrott was the sole occupant of the vehicle, and the odor of raw
marijuana emanating from the vehicle was “pretty strong,” from which one
could reasonably infer that raw marijuana was present in the vehicle and that
Parrott had the intent and capability to maintain control over it. Therefore, the
officer had probable cause to arrest Parrott for marijuana possession and
conduct a warrantless search of his person incident to that arrest. See Butler v.
United States, 102 A.3d 736, 742 (D.C. 2014) (finding that officer had probable
cause to arrest and conduct warrantless search of defendant based on strong
odor of “fresh” marijuana emanating from vehicle because (1) “appellant was
the sole occupant of the vehicle, thus making it more likely that any marijuana
present was either on his person or within his exclusive control” and (2) smell
of fresh marijuana “makes it more likely that appellant was presently in
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possession of marijuana.”).4 Parrott cites no authority for his suggestion that
the officer was required to search the vehicle before he could search Parrott’s
person.5 In sum, the search did not violate the Fourth Amendment.
Section 3 – The warrantless search of Parrott’s person did not
violate Article 1, Section 11 of the Indiana Constitution.
[22] Article 1, Section 11 of the Indiana Constitution provides,
The 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 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.
“This Section has long served to protect Hoosiers from unreasonable searches
and seizures.” Garcia v. State, 47 N.E.3d 1196, 1199 (Ind. 2016). “While
almost identical to the wording in the search and seizure clause of the federal
constitution, Indiana’s search and seizure clause is independently interpreted
and applied.” Baniaga v. State, 891 N.E.2d 615, 618 (Ind. Ct. App. 2008).
4
Because the Butler court contrasted fresh and burnt marijuana, 102 A.3d at 741 n.10, we presume that fresh
marijuana is the same as raw marijuana.
5
Parrott argues, “[I]f the odor of raw marijuana coming from the passenger compartment of a vehicle,
standing alone, without searching the vehicle or any other circumstances being present, is enough to arrest
the defendant for possession of marijuana, then it does not matter if marijuana were ever found.” Appellee’s
Br. at 14. We emphasize that “[p]robable cause is only a probability or substantial chance of criminal
activity, not a certainty that a crime was committed.” Keeylen v. State, 14 N.E.3d 865, 871 (Ind. Ct. App.
2014) (citation and quotation marks omitted), clarified on reh’g, 21 N.E.3d 840, trans. denied (2015). Parrott
also raises a “slippery slope” argument based on hypothetical facts not present in this case. Appellee’s Br. at
15.
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“Reasonableness of a search under the Indiana Constitution ‘turns on an
evaluation of the reasonableness of the police conduct under the totality of the
circumstances.’” Garcia, 47 N.E.3d at 1199 (quoting Litchfield v. State, 824
N.E.2d 356, 361 (Ind. 2005)) (emphasis in Garcia). “In considering the totality
of the circumstances, the perspectives of both the investigating officer and
subject of the search are considered.” Id. “Three factors must be balanced: ‘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.’” Id.
(quoting Litchfield, 824 N.E.2d at 361). “The burden is on the State to show
that under the totality of the circumstances, the intrusion was reasonable.”
Baniaga, 891 N.E.2d at 618.
[23] The State first argues, “Because there was probable cause that a violation had
occurred, [i.e., that Parrott possessed marijuana], the degree of suspicion or
knowledge weighs in favor of the State.” Appellant’s Br. at 13. We agree. As
for the degree of intrusion, the State acknowledges that it is “not insignificant”
but asserts that “[t]he trial court’s ruling that the officers could search the
vehicle meant that the intrusion on [Parrott’s] ordinary activities involved in a
search of [his] pockets was only modestly greater than that which [he] would
have experienced anyway from the vehicle search.” Id. at 14. Again, we agree.
And as for the extent of law enforcement needs, the State relies on our
pronouncement in Edmond that “[a] search incident to arrest serves important
purposes, such as ensuring that the arrestee is unarmed, preventing the arrestee
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from bringing contraband into jail, and preventing the destruction of evidence.”
951 N.E.2d at 592. Balancing these three factors, we conclude that the State
has met its burden to show that the warrantless search of Parrott’s person was
reasonable under the totality of the circumstances and therefore did not violate
Article 1, Section 11 of the Indiana Constitution. Consequently, we reverse the
trial court’s suppression order and remand for further proceedings consistent
with this opinion.
[24] Reversed and remanded.
Riley, J., and Altice, J., concur.
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