MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 07 2018, 10:36 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frederick Vaiana Stephen R. Creason
Voyles, Vaiana, Lukemeyer, Baldwin Chief Counsel
& Webb
Chandra K. Hein
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Mitzs, December 7, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1048
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable James Snyder,
Appellee-Plaintiff Commissioner
Trial Court Cause No.
49G20-1602-F2-7409
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 1 of 11
Case Summary
[1] Following a traffic stop, Christopher Mitzs was convicted of possession of
cocaine. He now appeals, arguing that the traffic stop violated the Fourth
Amendment to the U.S. Constitution. We affirm.
Facts and Procedural History
[2] On February 21, 2016, Indianapolis Metropolitan Police Department Officers
Jered Hidlebaugh and Zachary Miller were patrolling the city’s north side near
34th and Meridian Streets when they saw a blue Dodge Magnum parked in a
no-parking zone. Officers Hidlebaugh and Miller approached the car and spoke
with the passenger—no driver was in the car. The officers noticed a strong odor
of marijuana “like somebody had been smoking marijuana in the car.” Tr. Vol.
II p. 100. They requested backup, and Officers Christopher Cooper and
Michael Sojka arrived to help search the car and passenger. The officers did not
find any marijuana, so they left the car where it was parked. Officers
Hidlebaugh and Miller notified the other members of the north-district team
that there was a blue Dodge Magnum parked at 34th and Meridian Streets with
no driver, and that “if we see it rolling, and we can get an infraction on it, it
would be a good thing to stop, and try to identify the driver.” Id. at 32.
[3] Twenty minutes later, Officer Miller saw the car moving north on Salem Street.
Officer Miller observed the car “fail to signal two hundred feet prior to
turn[ing]” onto 35th Street and fail to “come to a complete stop at the stop
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 2 of 11
sign” at the intersection of 35th and Salem Streets. Id. at 115-16. Officer Miller
radioed to other officers that he had seen the blue Dodge Magnum commit two
traffic infractions and intended to pull the car over. Officer Miller maneuvered
his patrol car to follow the Dodge Magnum and saw it turn left on Meridian
Street into the opposing lane of traffic—i.e., “driving left of center.” Id. at 118.
Before Officer Miller could activate his patrol car’s lights, another officer
initiated a traffic stop and pulled the Dodge Magnum over. As Officer Miller
and Officer Richard Faulkner (who made the traffic stop) approached the
driver’s side door, there was a “strong smell of marijuana coming from the
vehicle.” Id. at 119. Once Officer Miller “noticed the smell of marijuana” he
asked the driver, later identified as Mitzs, to “step out of the vehicle” and
“placed him in handcuffs.” Id. at 120. The same person (who was searched
just twenty minutes earlier) was in the passenger seat. Id. at 145-46. After
Mitzs was handcuffed, Officer Miller did a pat-down to “make sure [Mitzs]
ha[d] no weapons on him.” Id. at 121. As soon as Officer Miller began to pat
down Mitzs, Mitzs “immediately reached for his . . . right front pocket.” Id.
Officer Miller told Mitzs not to do that again, but Mitzs “reached again” for his
right front pocket. Id. at 122. Officer Miller thought that Mitzs could have
been reaching for a weapon, so he restrained Mitzs’s arm and Officer Cooper
searched Mitzs’s right front pocket. In the pocket, Officer Cooper found a
“digital scale[] with a white powdery substance on it,” a “baggie with more
white powdery substance” (later determined to be 10.42 grams of cocaine), and
“several other empty baggies.” Id. at 123. Officer Cooper also searched the car
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 3 of 11
and found a revolver in “the center console.” Id. at 170. Officer Miller later
discovered that Mitzs had a permit for the gun. Id. at 123.
[4] The State charged Mitzs with Level 2 felony dealing in cocaine and Level 3
felony possession of cocaine (elevated because of the gun).1 Mitzs filed a
motion to suppress “any evidence obtained from the stop” of his car.
Appellant’s App. Vol. II pp. 78-80. Mitzs claimed violations of both the Fourth
Amendment to the U.S. Constitution and Article 1, Section 11 of the Indiana
Constitution. Following a hearing, the trial court denied Mitzs’s motion to
suppress and found that Officer Miller “observed Mitzs commit the traffic
infraction of failure to stop,” and that the odor of marijuana “gave officers
probable cause to search both Mitzs and his vehicle further for contraband.” Id.
at 96. A few weeks later, during the jury trial, the defense objected when the
State presented evidence obtained during the traffic stop. The trial court
admitted the evidence over the defense’s objections and stated that “there was a
valid traffic stop, that being, the failure to stop at a stop sign” and that it also
believed there was a second traffic infraction—that Mitzs “was left of center”
when he turned onto Meridian Street. Tr. Vol. II p. 157. Ultimately, the jury
found Mitzs not guilty of dealing in cocaine but guilty of possession of cocaine.
[5] Mitzs now appeals.
1
Mitzs was also charged with Class A misdemeanor operating a motor vehicle while his driving privileges
were suspended, but the State dismissed that charge before trial.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 4 of 11
Discussion and Decision
[6] Mitzs contends that the traffic stop and subsequent pat-down violated his
federal constitutional rights and that the trial court erred when it admitted into
evidence the items found during the stop. We review de novo a ruling on the
constitutionality of a search or seizure, but we give deference to a trial court’s
determination of the facts, which will not be overturned unless clearly
erroneous. Westmoreland v. State, 965 N.E.2d 163, 165 (Ind. Ct. App. 2012).
I. Traffic Stop
[7] Mitzs contends that the traffic stop violated the protections afforded by the
Fourth Amendment to the U.S. Constitution. The Fourth Amendment
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, the persons or
things to be seized.
U.S. Const. amend. IV. Our jurisprudence reflects two types of police
encounters that implicate Fourth Amendment protection: the investigatory stop
and the custodial stop. State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014). An
investigatory stop is generally brief in duration and is constitutionally
permissible so long as the officer “has a reasonable suspicion supported by
articulable facts that criminal activity may be afoot.” Id. (quotations omitted).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 5 of 11
If an officer observes a driver commit a traffic violation, he has probable
cause—and thus also the lesser included reasonable suspicion—to stop that
driver. Id. As long as there is an observable traffic violation, “the stop is valid
whether or not the police officer would have otherwise made the stop but for
ulterior suspicions or motives.” Doctor v. State, 57 N.E.3d 846, 853 (Ind. Ct.
App. 2016) (quoting Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014)).
[8] Mitzs argues that the bases for the traffic stop—failure stop at a stop sign and
driving left of center—were pretextual. A pretextual traffic stop is a stop that
police instigate under the guise of enforcing the traffic code what they would
like to do for other reasons. Id. Mitzs alleges that officers “wanted to stop” the
car so they “could identify the driver,” and since Officer Miller was the only
one who saw the traffic infractions, “the infractions may very well not have
happened.” Appellant’s Br. pp. 11-12. The trial court heard evidence that
Mitzs committed traffic violations that would permit a lawful traffic stop.
Officer Miller testified that Mitzs did not come to a complete stop at a stop sign
and was driving left of center. The gist of Mitzs’s argument is that Officer
Miller was not credible. Mitzs’s suggestion that Officer Miller did not actually
witness any traffic infractions is a request to judge witness credibility, which we
may not do. See Leonard v. State, 80 N.E.3d 878, 882 (Ind. 2017). Because the
trial court believed Officer Miller’s testimony that Mitzs did not stop at a stop
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 6 of 11
sign and was driving left of center, thus committing two traffic infractions, we
find that reasonable suspicion existed for the traffic stop.2
II. Pat-down
[9] Mitzs next contends that even if the traffic stop was valid, the pat-down
violated the protections afforded by the Fourth Amendment. Appellant’s Br.
pp. 12-14.
[10] In general, the Fourth Amendment prohibits searches and seizures conducted
without a warrant that is supported by probable cause. State v. Parrott, 69
N.E.3d 535, 541 (Ind. Ct. App. 2017), trans. denied. Accordingly, a warrantless
search or seizure is per se unreasonable, and the State bears the burden to show
that one of the well-delineated exceptions to the warrant requirement applies.
M.O. v. State, 63 N.E.3d 329, 331 (Ind. 2016). A search incident to lawful arrest
is an exception to the warrant requirement under the Fourth Amendment. K.K.
v. State, 40 N.E.3d 488, 491 (Ind. Ct. App. 2015). 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.
Parrott, 69 N.E.3d at 542. A 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
2
Mitzs also challenges the traffic stop under Article 1, Section 11 of the Indiana Constitution. Although the
standards are different, his argument is the same: that Officer Miller was not credible. Because the trial court
believed Officer Miller, his challenge under the Indiana Constitution fails.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 7 of 11
constructive. Parrott, 69 N.E.3d at 542. 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.
[11] 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. Id. As long as probable cause exists to make an
arrest, the fact that the suspect was not formally placed under arrest at the time
of the search incident thereto will not invalidate the search. Id. A police
officer’s subjective belief as to whether he has probable cause to arrest a
defendant has no legal effect. K.K., 40 N.E.3d at 491. The ultimate
determination of probable cause is reviewed de novo. Id.
[12] 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 car. See, e.g., id.
(finding that officer had probable cause to arrest and conduct a search incident
to arrest of car’s backseat passenger based on “strong odor of burnt marijuana
emanating” from the car and passenger’s “furtive movements” and
nervousness); Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014), trans.
denied; Edmond v. State, 951 N.E.2d 585, 591-91 (Ind. Ct. App. 2011) (finding
that officer had probable cause to arrest and conduct a search incident to arrest
of car’s sole occupant based on smell of burnt marijuana coming from car and
occupant’s breath); Meek v. State, 950 N.E.2d 816, 820 (Ind. Ct. App. 2011)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 8 of 11
(finding that officer had probable cause to conduct warrantless search of car’s
driver, where officers smelled raw marijuana emanating from car, 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 car 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 car where one officer smelled “strong odor of raw
marijuana emanating” from the car 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 a search incident
to arrest of driver and car based on erratic driving and “distinctive odor of burnt
marijuana emanating from the passenger compartment.”), trans. denied.
[13] Mitzs argues that the logic of Parrott and Bell do not support the pat-down in
this case. See Appellant’s Br. p. 13. In Parrott, the defendant was the sole
occupant of the car, and the odor of raw marijuana emanating from the car was
“pretty strong,” from which one could reasonably infer that raw marijuana was
present in the car and that the defendant had the intent and capability to
maintain control over it. 69 N.E.3d at 544. Therefore, we concluded that the
officer had probable cause to arrest the defendant for marijuana possession and
conduct a warrantless search of his person incident to that arrest. Id. In Bell,
the defendant was a passenger in a car, and the officer smelled raw marijuana
coming from the car and from the defendant’s person. 13 N.E.3d at 544. We
determined that “like the smell of burnt marijuana, the smell of raw marijuana
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 9 of 11
on a person is sufficient to provide probable cause that the person possesses
marijuana.” Id. at 546. As such, we concluded that the officer had probable
cause to arrest the defendant and conduct a search incident to arrest. Id.
[14] Mitzs highlights that unlike the defendant in Parrott, he was not the sole
occupant of the car, and that unlike the defendant in Bell, there was no evidence
that there was an odor of marijuana coming from his person, and therefore the
officers did not have probable cause to search his person. But these are not
strict requirements. As Parrott explains:
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.
69 N.E.3d at 542-43 (quoting White v. State, 24 N.E.3d 535, 539 (Ind. Ct. App.
2015), trans. denied). Put another way, “‘whether a defendant is alone’” in a car
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 the
bright-line prerequisites necessary for probable cause to exist.’” Id. at 544
(quoting K.K., 40 N.E.3d at 494).
[15] Here, the trial court heard evidence that would permit a search incident to
arrest for possession of marijuana. First, Officer Miller testified that when he
approached Mitzs’s car the second time, he noticed a “strong smell of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 10 of 11
marijuana” coming from the car. Tr. Vol. II p. 119. To refute this evidence,
Mitzs again argues that Officer Miller was not credible. Mitzs’s suggestion that
Officer Miller is not credible because he was the only one who testified about
noticing a “strong smell of marijuana” and that ultimately, no marijuana was
ever found, is, again, a request to judge witness credibility, which we may not
do. See Leonard, 80 N.E.3d at 882. Second, Officer Hidlebaugh testified that
only twenty minutes before stopping Mitzs, both the car and passenger were
searched after noticing an odor of marijuana, but the officers did not find any
marijuana. See Tr. Vol. II pp. 32, 88, 100. Therefore, when officers detected
the “strong smell of marijuana” the second time, it would be reasonable to infer
that Mitzs possessed marijuana since he was the only person in the car who had
not been searched. Id. at 119. Applying Parrott’s instruction to determine
probable cause from the perspective of a “reasonable and prudent” person on a
case-by-case basis, grounded in “common-sense,” because Mitzs was the only
unsearched person in the car and the odor of marijuana coming from the car
was “strong,” we find that the officers had probable cause to arrest Mitzs for
possession of marijuana and conduct a warrantless search of his person incident
to that arrest.3 Accordingly, there was no Fourth Amendment violation.
[16] Affirmed.
Riley, J., and Kirsch, J., concur.
3
Mitzs also challenges the pat-down under Article 1, Section 11 of the Indiana Constitution. As with the
traffic stop, his argument hinges on the credibility of Officer Miller and therefore his challenge under the
Indiana Constitution fails.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1048 | December 7, 2018 Page 11 of 11
Christopher Mitzs v. State of Indiana (mem. dec.)
Combined Opinion