Lark v. State

OPINION

FRIEDLANDER, Judge.

Robert Lark, Jr. appeals his convictions of two counts of Resisting Law Enforcement,1 both class D felonies, Driving While Suspended,2 a class A misdemeanor, Possession of Marijuana,3 a class A misdemeanor, and Resisting Law Enforcement,4 a class A misdemeanor. Lark presents the following restated issue for review: Did the trial court err in denying Lark's motion to suppress evidence?

We affirm.

The facts favorable to the judgment of conviction are as follows. At approximately 2:00 am. on August 3, 1997, Officers Times Gremes and John Branson of the Anderson Police Department were on patrol in Anderson when they observed Lark's car stopped in the middle of the street. As the officers approached southbound in their vehicle from behind Lark, they saw a man leaning into the window on the passenger's side of Lark's vehicle. At the same time, another vehicle approaching from the opposite, or northbound, direction was waiting for Lark to move because his car was parked in such a way that traffic could not pass from either direction. The unidentified man walked away from Lark's car when he saw the police car approaching. By this time, Lark's stopped car impeded the movement of both the police car and the aforementioned northbound vehicle. Initially, Lark's vehicle did not move after the unidentified man left. Officer Branson decided to initiate a traffic stop for blocking traffic. Before he could do so, however, Lark drove away. By that time, according to Officer Branson's observation, Lark's vehicle had been stopped in the middle of the street for at least fifteen seconds.

Officers Branson and Gremes followed Lark for several blocks and then executed a traffic stop. As Officer Branson approached Lark's vehicle, he smelled a "very strong odor of burnt marijuana." Record at 1839. When Officer Branson asked to see Lark's driver's license, Lark responded that he did not have one. Officer Branson directed Lark to get out of his vehicle. After Lark complied, Officer Branson performed a pat-down search of Lark's person. During the search, Lark acted "real nervous" and "real tentative." Record at 144. After the pat-down search commenced, Lark shoved Officer Branson away and fled on foot. Officers Branson and Gremes pursued Lark, caught him, and a struggle ensued. Lark was finally subdued after Officer Gremes sprayed him in the face with pepper spray.

After the officers subdued Lark, they placed him under arrest. Officer Branson then conducted a search of Lark's person. *1155He discovered a plastic baggie containing a green, leafy substance that was later determined to be marijuana. Lark was later charged with three counts of resisting law enforcement, possession of marijuana, driving while suspended, and battery. He was convicted as set out above following a jury trial.

At trial, Lark submitted a motion to suppress based upon the argument that the initial stop and subsequent search of his person, and the seizure of the marijuana found in his pocket violated article 1, section 11 of the Indiana Constitution. The trial court denied the motion. Upon appeal, Lark asserts essentially the same argument in support of his claim that the convictions are constitutionally invalid. Specifically, Lark contends that "the police had lost the reasonable grounds to stop Lark once he had proceeded on because there was no longer a valid reason to stop his vehicle, to wit: the sole reason for them stopping him was for blocking traffic, which he had already ceased doing." Appellant's Brief at 11.

Our standard of review in this context is well settled.

The trial court has broad discretion in ruling on the admissibility of evidence. We will reverse a trial court's ruling on the admissibility of evidence only when it has been shown that the trial court abused its discretion. A trial court's decision to deny a motion to suppress is reviewed as a matter of sufficiency. Thus, in reviewing a trial court's decision on a motion to suppress, we do not reweigh the evidence or judge the credibility of witnesses, but determine if there was substantial evidence of probative value to support the trial court's ruling. Therefore, when evaluating determinations of reasonable suspicion, we accept the factual findings of the trial court unless they are clearly erroneous. However, the ultimate determination of reasonable suspicion is reviewed de novo.

Williams v. State, 745 NE.2d 241, 244 (Ind.Ct.App.2001) (citations omitted).

A law enforcement officer may stop a vehicle when the officer observes a minor traffic violation. Ransom v. State, 741 N.E.2d 419 (Ind.Ct.App.2000), trams. denied. Ind.Code Ann. § 85-42-2-4 (West 1998) provides: "(a) A person who recklessly, knowingly, or intentionally obstructs vehicular or pedestrian traffic commits obstruction of traffic, a Class B misdemeanor. (b) The offense described in subsection (a) is: (1) a Class A misdemeanor if the offense includes the use of a motor vehicle[.]"

In the instant case, Officers Branson and Gremes saw Lark's car parked in the middle of the road in such a way that traffic could not pass from either direction. In fact, Lark's stopped car prevented the police car in which the officers were sitting, as well as a car coming from the opposite direction, from proceeding down the street. This action violated the statute set out above and thus constituted a minor traffic violation that would justify a traffic stop.5 Lark contends that the stop was not proper in part because the *1156police officers did not stop his vehicle until he had driven several blocks from the scene of the infraction. We can find no authority for the proposition that police may execute a traffic stop only within a certain proximity to the seene of the violation, nor can we conceive of a rationale for creating such a rule. For purposes of the issue under consideration, it is of no significance that the stop was executed several blocks from the scene of the infraction.

After executing a valid traffic stop, the officers encountered the obvious odor of marijuana emanating from Lark's car as they approached the vehicle. In Kenner v. State, 708 N.E.2d 1122, we held that a police officer's suspicion of illegal activity that was aroused by the detection of the odor of marijuana provided a reasonable suspicion that the vehicle contained nareot-ics, thus permitting a search of the vehicle after the completion of the traffic stop. See also DK. v. State, 786 N.E.2d 758 (Ind.Ct.App.2000). That principle applies with equal force in the instant case.

In summary, the officers were justified in stopping Lark's vehicle because they observed him commit a traffic violation. The odor of marijuana emanating from Lark's vehicle was sufficient to permit Officer Branson to form a reasonable suspicion that illegal activity had occurred or was about to occur. This was sufficient to justify the ensuing search and seizure. Accordingly, the trial court did not err in denying Lark's motion to suppress and permitting the State to introduce the evidence in question.

Judgment affirmed.

SULLIVAN, J., concurs in result with opinion. RILEY, J., dissents with opinion.

. Ind.Code Ann. Supp.2000). § 35-44-3-3(b)(1) (West

. Ind.Code Ann. § 9-24-18-5 (repealed, reco-dified, and reclassified as a class A infraction at IC § 9-24-19-1).

. Ind.Code Ann. § 35-48-4-11 (West 1998).

. IC § 35-44-3-3.

. Even if the stop was pretextual in nature, a fact that we do not concede, such does not convert a valid traffic stop into an unconstitutional stop and search. See, eg., Kenner v. State, 703 N.E.2d 1122, 1129 n. 1 (Ind.Ct. App.1999) ("A lawful stop for a bona fide traffic violation, even if pretextual, does not convert the stop into an unconstitutional search and seizure."), trans. denied; see also State v. Voit, 679 N.E.2d 1360, 1363 (Ind.CtL. App.1997) (the fact that the police officer's "primary motivation in pulling [the defendant] over may have been to investigate drug activity does not convert a valid traffic stop into an unconstitutional search and seizure").