FILED
08/22/2017, 11:07 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Taccasia Porter, August 22, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1703-CR-572
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven Rubick,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
46G07-1610-CM-40805
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017 Page 1 of 21
[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.
1
Ind. Code § 35-48-4-11(a)(1).
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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.
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[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.
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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.
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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);
Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017 Page 6 of 21
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
2
The State concedes that this finding was clearly erroneous but contends that this error is not enough to
reverse the judgment. We agree, and will continue with the constitutional analysis.
Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017 Page 7 of 21
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
(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 not formally place Porter under arrest until after she found the
marijuana, Officer Wren had the authority to search Porter once she smelled
[the] odor of raw marijuana coming from her person.” Appellant’s Br. p. 12; see
also Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (holding that the smell
of raw marijuana on a person is sufficient to provide probable cause that the
person possesses marijuana); Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App.
2004) (noting that so 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”).
[13] The purposes of a search incident to arrest are to ensure officer safety and to
prevent destruction of evidence. United States v. Robinson, 414 U.S. 218, 227-28
(1973). Even if a search incident to arrest is permissible, it must still be
conducted in a reasonable manner. The United States Supreme Court has
explained that evaluating the reasonableness of a search incident to arrest
requires “a balancing of the need for a particular search against the invasion of
personal rights the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In
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conducting this analysis, there are four factors to consider: (1) the scope of the
particular intrusion, (2) the manner in which it is conducted, (3) the justification
for initiating it, and (4) the place in which it is conducted. Id.
[14] Turning to the instant case, we note that the State has the burden of proving the
reasonableness of a warrantless search. Middleton v. State, 714 N.E.2d 1099,
1101 (Ind. 1999). To establish reasonableness, the State is limited to the
evidence it presented at trial and any reasonable inferences that may be drawn
from that evidence. E.g., L.A.F., 698 N.E.2d at 356.
1. Scope of Intrusion
[15] As to the first Bell factor, the scope of the intrusion, Officer Wren testified that
the second search included the use of force to pull Porter’s jeans away from her
body: “her 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.” Tr. p. 16. Officer Wren first put
her hand inside the front of Porter’s jeans but outside of her underwear, using
the back of her hand to touch Porter’s underwear; then, she put her hand inside
of Porter’s underwear and retrieved the blunt. Id. at 13-14.
[16] It is well established in our culture that “people have a reasonable expectation
not to be unclothed involuntarily, to be observed unclothed or to have their
‘private’ parts observed or touched by others.” Justice v. Peachtree City, 961 F.2d
188, 191 (11th Cir. 1992); see also State v. Battle, 688 S.E.2d 805, 814 (N.C. Ct.
App. 2010) (finding a similar search that included pulling a woman’s
underwear away from her body on the side of a public roadway to be
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“humiliating”). Our General Assembly has also recognized a person’s privacy
interest in the genital area of his or her body. See, e.g., Ind. Code § 35-45-4-
5(a)(3) (defining “private area,” for purpose of voyeurism statute, as “the naked
or undergarment clad genitals, pubic area, or buttocks of an individual”); Ind.
Code § 35-42-4-8 (criminalizing the act of touching a person’s “genitals, pubic
area, buttocks, or female breast” with intent to arouse when the person is
unaware the touching is occurring). It would be hard to contest an assertion
that one’s pubic area is a private area of the body that merits special protections.
[17] We find two cases instructive on this Bell factor. First is Powell v. State, in which
this Court considered an argument that a search incident to arrest was
unreasonable under the Fourth Amendment. 898 N.E.2d 328 (Ind. Ct. App.
2008). In Powell, while searching the defendant incident to his arrest for several
crimes, a police officer felt a hard object in the seat of his underwear. Powell
was wearing very droopy pants that hung below his buttocks, exposing his
underwear. The officer decided to cut the object out of Powell’s underwear,
which he was able to readily access because of the low position in which Powell
was wearing his pants. The object was later determined to be cocaine enclosed
in a fabric pocket. This Court did not find the search to be overly intrusive:
Though the scope of the intrusion seems unreasonable at first
blush, given that Powell was wearing his pants low, thereby
exposing his underwear by his own doing, and the cocaine was
kept in a pocket-type enclosure with material on both sides,
Officer Thompson was able to remove the cocaine from Powell’s
underwear without exposing any of Powell’s skin.
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Id. at 335.
[18] In this case, as in Powell, Officer Wren was able to remove the blunt from
Porter’s underwear without exposing any of her skin. Unlike Powell, however,
the manner in which Porter wore her clothing did not expose her
undergarments or provide easy access to areas underneath her clothing.
[19] The second case we find instructive is Battle, 688 S.E.2d 805, which is
somewhat factually similar to the case before us. In Battle, the police pulled
over a vehicle in which Battle was a passenger. The officers had probable cause
to search Battle incident to arrest based on the statements of a confidential
informant. A female officer instructed Battle to stand between the open doors
of a police SUV parked on the side of the road so she could conduct the search
out of the view of the public. The officer instructed Battle to pull the bottom of
her bra away from her body and shake it; she was not required to remove her
shirt. The officer then conducted a patdown, but did not find anything.
Finally, the officer unzipped Battle’s pants, pulled them open, lowered them to
her hip, and pulled back her underwear, where she found a crack pipe and a
plastic baggie containing heroin. The officer saw the top of Battle’s pubic hair
and buttocks; her underwear and pants were not pulled down. The Battle Court
considered the Bell factors, finding that
the scope of the intrusion relative to Defendant’s person was
great, as any reasonable person would have found it to be a
humiliating experience far beyond that incident to an arrest and
search of Defendant’s outer garments alone. . . . Whether anyone
other than [the police officer] actually saw Defendant’s private
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parts during the search is irrelevant to the Fourth Amendment
analysis in this regard.
Id. at 814. The Battle Court noted that the United States Supreme Court has
held that the Fourth Amendment consequences of a search would not be
analyzed “in a way that would guarantee litigation about who was looking and
how much was seen.” Safford Unified Sch. Dist. No. 1. v. Redding, 557 U.S. 364,
374 (2009).
[20] In the instant case, Officer Wren did not lower Porter’s pants at all or visually
observe any of Porter’s private areas, unlike in Battle. But the officer did
strenuously pull Porter’s pants away from her body, insert her hand between the
pants and underwear, and then insert her hand between the underwear and
Porter’s body. So, while the scope of intrusion was arguably not as great as in
Battle, it was still significant.
2. Manner in which Search was Conducted
[21] The State presented limited evidence about the manner in which the search was
conducted. The record reveals that Officer Wren is a woman. She testified that
she had been trained on performing a search, but she did not testify as to the
content of that training or whether she followed it. Tr. p. 14. And there is no
evidence as to whether she conducted herself professionally, whether she wore
gloves or followed proper procedures, or whether she attempted to protect
Porter from public embarrassment. There were two men—the unnamed male
officer and the male driver of the vehicle—at the scene when Porter’s
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underwear was searched, and there was no evidence that Officer Wren moved
Porter away from the men or otherwise attempted to block their view of Porter
while she was searched. The State has the burden of proving the
reasonableness of the search, and it did not establish that the search was
conducted in a reasonable manner.
3. Justification for Initiating Search
[22] Porter concedes that Officer Wren had probable cause to conduct a search
incident to arrest based on the odor of raw marijuana. But Officer Wren offered
no justification for going steps further than a pat down, up to and including
placing her hand inside Porter’s underwear, aside from her suspicion that Porter
possessed marijuana.
[23] In Powell, the officer testified that he needed to remove the unknown hard
object from the defendant’s underwear prior to transporting him to the police
station for reasons of officer safety. 898 N.E.2d at 335 (noting that Powell was
suspected of felony possession of a gun and had already attempted to flee from
officers earlier in the stop). This Court found the justification to be adequate in
those circumstances. Id. In Battle, in contrast, the Court found that the
justification was inadequate:
The trial court made no findings of fact or conclusions of law
regarding any exigent circumstances that existed warranting the
roadside strip search of Defendant. . . . Detective Curl had
already conducted the normal search incident to arrest, manual
inspection over the top of Defendant’s clothing, as well as
reaching inside Defendant’s pockets, without discovering
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anything suspicious. At the time Detective Curl initiated the
strip search, there were no reasonable grounds to believe
Defendant was concealing any weapon. There was no testimony
indicating a belief that if Defendant was actually concealing
drugs, that she was in a position to destroy or further hide that
evidence. . . . This fails to meet constitutional muster.
688 S.E.2d at 818.
[24] Here, as in Battle, there is nothing in the record regarding any exigent
circumstances. There is no evidence that Porter had made any furtive
movements, that she resisted in any way, or that she presented any threat to the
officers. Officer Wren voiced zero concerns about officer safety, nor did she
testify that she was concerned that if Porter was concealing drugs, she would
have been able to destroy, discard, or further hide that evidence before a full
search could be conducted in a more private area. Officer Wren pulled the
vehicle over for a minor traffic violation and extended the stop based on the
odor of marijuana, which she encounters “almost daily.” Tr. p. 7-8. In other
words, this was a routine encounter with no justification for an invasive
roadside search. See Battle, 688 S.E.2d at 824 (noting that approving an
underwear search for a “run-of-the-mill” stop would allow the police to conduct
invasive searches anytime they “have probable cause to suspect drug activity”);
Paulino v. State, 924 A.2d 308, 314 (Md. 2007) (cautioning that “[w]ithout the
constitutional safeguards of exigent circumstances and reasonableness, every
search incident to arrest could result in a strip search”).
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4. Place in which Search was Conducted
[25] Finally, as for the place in which the search was conducted, the State again
offered limited evidence. The record reveals that the traffic stop and search of
Porter’s person took place on the side of the road in the 2300 block of Lafayette
Road in Indianapolis. There is no evidence regarding time of day, amount of
traffic, presence of pedestrians, type of neighborhood (residential or
commercial), or proximity of buildings to the scene. The record does not reveal
whether it was dark or light outside, but even if it was dark, there is no evidence
about the lighting conditions, such as proximity and/or brightness of street
lights, business lights, or patrol car headlights or spotlights. There is no
evidence that Officer Wren took any precautions to block Porter from the view
of any passersby on the street or sidewalk or the two men at the scene. Simply
put, the evidence presented at trial was that the search took place in a public
place, with no evidence that Porter was shielded from public view.
[26] The State argues that “the record shows that [the] search occurred when it was
dark outside, at 10:00 p.m. on the side of the road in the 2300 block of
Lafayette Road.” Appellee’s Br. p. 13. As noted above, however, the record
establishes neither that it was dark nor that it was 10:00 p.m. The State also
points out that “[n]o one testified that there were vehicles driving by or
pedestrians walking by during the search. Thus, exposure to the public was
minimal.” Id. at 13-14. This argument, however, upends the burden of proof.
As aptly put by Porter, “[b]ecause the State had the burden of establishing the
reasonableness of the search at trial, the absence of evidence about traffic cannot
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be used as affirmative evidence on appeal that there was in fact no traffic.” Reply
Br. p. 7 (emphases original). We agree.
[27] The only evidence in the record about the location of the search was that it was
“out on the side of the road” in the 2300 block of Lafayette Road in
Indianapolis. Tr. p. 14. This is indisputably a public place. Thus, on appeal,
the only evidence supporting the reasonableness of the search is that it occurred
in a public place.
[28] Having examined all of the Bell factors, we are compelled to conclude that this
search was unreasonable under the Fourth Amendment. While there was
probable cause to search Porter incident to arrest and to conduct the initial
search of Porter’s person, when Officer Wren went several steps further by
inserting her hand into Porter’s pants and then under her underwear, in a public
place, with no voiced concerns about officer safety or destruction of evidence,
the search became unreasonable. Therefore, the evidence of the marijuana
found pursuant to the second, more invasive search should have been excluded.
III. Indiana Constitution
[29] Although Article I, Section 11 of the Indiana Constitution shares the same
language as the Fourth Amendment, we interpret and apply the provision
independently. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). We
construe this provision of the state constitution liberally “in favor of protecting
individuals from unreasonable intrusions on privacy,” Rush v. State, 881 N.E.2d
46, 52 (Ind. Ct. App. 2008), applying a totality of the circumstances test “to
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evaluate the reasonableness of the officer’s actions,” Duran v. State, 930 N.E.2d
10, 17 (Ind. 2010). The State bears the burden of showing that the intrusion
was reasonable. Bulington, 802 N.E.2d at 438. In determining reasonableness,
we consider “(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.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).
[30] In Powell, having found that the search passed muster under the Fourth
Amendment, this Court then turned to Article I, Section 11 of the Indiana
Constitution. 898 N.E.2d at 336. The degree of suspicion was high because
Powell was being arrested for numerous crimes, including felony possession of
a gun and resisting law enforcement. Id. The degree of intrusion was lessened
by the fact that Powell wore his pants in a way that exposed his underwear to
the public. Id. Additionally, the officer was able to remove the package of
cocaine without exposing any of Powell’s skin, Powell was shielded from public
view by parked police cars and a building, and the officer testified that no
pedestrians walked by during the search. Id. The law enforcement need was
significant because the officer believed it was necessary to remove the unknown
hard object for officer safety before transporting Powell to another location. Id.
Under these circumstances, this Court found that the search of Powell did not
violate the Indiana Constitution. Id.
[31] In the instant case, Officer Wren undeniably had a valid reason to suspect that
Porter was committing the Class B misdemeanor of possession of marijuana
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based on the odor of raw marijuana emanating from her person. There was no
evidence, however, that Officer Wren ever suspected Porter of a more serious
crime. See Edwards v. State, 759 N.E.2d 626, 627 (Ind. 2001) (holding that
“routine, warrantless strip searches of misdemeanor arrestees, even when
incident to lawful arrests, are impermissible under the Indiana Constitution”).
[32] With regard to the degree of intrusion, we must consider “the nature of the
privacy interest upon which the search intrudes and the character of the
intrusion itself.” Chest v. State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009). As
noted above, the privacy interest in this case—the sanctity of one’s most private
areas—is of the highest degree. As to the character of the intrusion itself,
Officer Wren pulled Porter’s jeans forcibly away from her body and inserted her
hand inside the pants. She then inserted her hand inside of Porter’s underwear.
All of this took place in a public area on the side of a road, with no evidence
that any precautions were taken to protect Porter’s privacy from pedestrian or
vehicular passersby or the two men on the scene. There is also no evidence that
Officer Wren took sanitary precautions, such as using plastic gloves to conduct
the search. Thus, the degree of intrusion was significant.
[33] Finally, as to the extent of law enforcement needs, the State presented no
evidence of an immediate need to search Porter on the side of the road, rather
than taking her to a more private area such as a police vehicle, police station, or
jail. Cf. Powell, 898 N.E.2d at 331 (noting that officer specifically testified that it
“was necessary to remove the unknown object for officer safety before
transporting Powell”) (emphasis added). Officer Wren voiced no concerns about
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officer safety, and there is no evidence that Porter did anything during the stop
to create officer safety concerns. Likewise, there is no evidence that the officer
was concerned that Porter would somehow be able to destroy, hide, or dispose
of the evidence before a search of her person in a more private area could be
conducted.3 Thus, the law enforcement need in this case was limited to the
normal law enforcement task of enforcing Indiana’s misdemeanor laws.
[34] Having considered the three factors, we can only conclude that the search in
this case was unreasonable under the Indiana Constitution. While the officer
had probable cause to believe Porter had committed a misdemeanor and had
the authority to perform a search of her person incident to arrest, her decision to
perform an intrusive search on the side of a public road, without a clear law
enforcement need to do so, was unreasonable under the totality of the
circumstances. Consequently, the admission of this evidence was also
erroneous under the Indiana Constitution.
[35] The judgment of the trial court is reversed.
Bailey, J., concurs.
Altice, J., concurs with a separate opinion.
3
The State mentions in passing “a potential health risk” to Porter had the officer left the marijuana in place
inside Porter’s underwear pending transportation to a more private area for a fuller search. Appellee’s Br. p.
21. But the State does not elaborate on what the health risk may have been, nor is there any evidence
whatsoever in the record supporting such an assertion.
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IN THE
COURT OF APPEALS OF INDIANA
Taccasia Porter, Court of Appeals Case No.
49A02-1703-CR-572
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Altice, Judge, concurring.
[36] The slender record presented by the State below compels the result reached in
this case. Officer Wren smelled a very strong odor of raw marijuana coming
from Porter’s person but had been unable to locate the contraband during a pat
down search. Officer Wren then pulled on the waistband of Porter’s jeans and
reached her hand inside the front, crotch area, between Porter’s legs. Upon
feeling what she believed to be a marijuana blunt, Officer Wren then placed her
hand inside Porter’s underwear and retrieved the contraband.
Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017 Page 20 of 21
[37] Although far from a strip search, I agree that this roadside exploratory search
inside Porter’s pants was particularly intrusive and necessitated a showing that
the search was performed in a reasonable manner or under exigent
circumstances. The State made no such showing. The bare record establishes
merely that the search occurred “out on the side of the road” in the 2300 block
of Lafayette Road and was performed by a female officer with at least two
males present at the scene. Transcript at 14. These facts are not sufficient to
establish that the search was reasonable.
Court of Appeals of Indiana | Opinion 49A02-1703-CR-572 | August 22, 2017 Page 21 of 21