FOR PUBLICATION
Feb 27 2014, 9:32 am
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
GREGORY F. ZOELLER STEVEN E. RIPSTRA
Attorney General of Indiana Ripstra Law Office
Jasper, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Plaintiff, )
)
vs. ) No. 19A05-1310-CR-489
)
MICHAEL E. CUNNINGHAM, )
)
Appellee-Defendant. )
APPEAL FROM THE DUBOIS SUPERIOR COURT
The Honorable Mark R. McConnell, Judge
Cause No. 19D01-1305-FD-460
February 27, 2014
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
The State appeals the trial court’s granting of Michael Cunningham’s motion to
suppress marijuana and a marijuana pipe. We affirm.
Issue
The dispositive issue is whether Cunningham validly consented to a pat-down
search that revealed the presence of marijuana on his person and further led to discovery
of the pipe in his vehicle.
Facts
In the early morning hours of May 17, 2013, Officer Andrew Hammock of the
Huntingburg Police Department pulled over a vehicle driven by Cunningham because
one of the two tail lamps of Cunningham’s vehicle was white, not red, because the red
lens covering was missing. Another officer arrived on the scene soon thereafter to assist
Officer Hammock. After Officer Hammock told Cunningham why he was pulled over,
Cunningham expressed surprise and asked to get out of his vehicle to see the tail lamp for
himself. Officer Hammock responded, “that was fine but I would pat him down for any
weapons just for officer safety issue.” Tr. p. 6. Cunningham answered “that was fine,”
got out of the vehicle, and subjected himself to a pat-down by Officer Hammock. Id.
During the pat-down, Officer Hammock felt what he knew was a pill bottle and asked
Cunningham what was inside of it. Cunningham told Officer Hammock that the bottle
contained marijuana, took it out of his pocket, and gave it to Officer Hammock. Officer
Hammock observed that the bottle contained a green leafy substance that smelled like
marijuana. He then asked Cunningham “if there was anything else on his person that . . .
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I needed to be aware of,” and Cunningham answered that he had a pipe in his vehicle. Id.
at 7. Officer Hammock then gave Cunningham his Miranda warnings, Cunningham
retrieved the pipe, and Officer Hammock placed him under arrest.
The State charged Cunningham with Class A misdemeanor possession of
marijuana and Class A misdemeanor possession of paraphernalia. The State also filed
notice to seek enhanced punishment for Cunningham based on prior convictions for both
offenses. Cunningham filed a motion to suppress the marijuana and the pipe. The trial
court held a hearing on the matter, at which Cunningham challenged both the legality of
the initial stop and the ensuing pat-down search. The trial court granted Cunningham’s
motion to suppress on the basis that the initial stop was illegal. The State now appeals.
Analysis
We generally review a trial court’s ruling on a motion to suppress as a matter of
sufficiency. State v. Shipman, 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013). We will
neither reweigh evidence nor judge witness credibility. Id. “Our role is to determine
whether the record discloses substantial evidence of probative value that supports the trial
court’s decision.” Id. When appealing the granting of a motion to suppress, the State is
challenging a negative judgment and must show that the trial court’s ruling was contrary
to law. Id. Also, although we give deference to a trial court’s factual determinations, we
review de novo its ultimate ruling regarding the constitutionality of a search or seizure.
Belvedere v. State, 889 N.E.2d 286, 287 (Ind. 2008). Consistent with this standard, we
will affirm a trial court’s ruling on a motion to suppress if it is sustainable on any legal
3
theory supported by the record, even if the trial court did not use that theory. Gonser v.
State, 843 N.E.2d 947, 949 (Ind. Ct. App. 2006).
A traffic stop is permissible under the Fourth Amendment to the United States
Constitution when an officer has reasonable suspicion that a traffic law, or other law, has
been violated. Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013). The trial court ruled
that the stop of Cunningham’s vehicle was not supported by any traffic infraction
observed by Officer Hammock. The trial court relied upon Indiana Code Section 9-19-6-
4, which states in part:
(a) Except as otherwise provided in this section:
(1) a motor vehicle, trailer, semitrailer, and pole trailer; and
(2) any other vehicle that is drawn at the end of a train of
vehicles;
must be equipped with at least one (1) tail lamp mounted on
the rear that when lighted as required in this chapter, emits a
red light plainly visible from a distance of five hundred (500)
feet to the rear.
*****
(c) Excluding a truck-tractor semitrailer-semitrailer
combination equipped with a B-train assembly (as defined
in IC 9-13-2-13) governed by section 7 of this chapter, truck-
tractor, motorcycle, or motor-driven cycle:
(1) a motor vehicle, trailer, semitrailer, and pole trailer; and
(2) any other vehicle drawn at the end of a train of vehicles;
that is registered in Indiana and manufactured or assembled
after January 1, 1956, must be equipped with at least two (2)
tail lamps mounted on the rear that, when lighted, complies
with this section.
4
The trial court construed this statute as requiring “only that a motor vehicle be equipped
with at least one (1) tail lamp mounted on the rear that when lighted emits a red light
plainly visible from a distance of five hundred (500) feet to the rear.” App. p. 29. This
construction of the statute apparently relies only upon subsection (a); however,
subsection (c) applies to vehicles manufactured after January 1, 1956, such as
Cunningham’s vehicle undisputedly was, and requires two operating tail lamps. See
Freeman v. State, 904 N.E.2d 340, 342-43 (Ind. Ct. App. 2009) (holding that Section 9-
19-6-4 requires vehicles to have two constantly illuminated tail lamps that emit red light,
that a rear-mounted brake-only red light does not satisfy this requirement, and stop of
vehicle was justified where one of vehicle’s tail lamps was burned out).
We recently re-addressed Section 9-19-6-4 in Kroft v. State, 992 N.E.2d 818 (Ind.
Ct. App. 2013). We again held that the statute required vehicles to have two operating
tail lamps that emit a red light plainly visible from 500 feet. Kroft, 992 N.E.2d at 821.
We also held that the defendant in that case had not violated the statute simply because
the red lens of one of the tail lamps had a dime-sized hole in it that caused some white
light to be emitted along with red light, stating, “[t]here is no requirement about ‘only’
red light being visible from a distance of 500 feet.” Id. at 821-22. Here, by contrast, the
red lens from one of Cunningham’s tail lamps was completely missing, and it was
emitting only white light and no red light. As such, Cunningham’s vehicle was not in
compliance with Section 9-19-6-4, and Officer Hammock was entitled to pull him over
for that violation. See Freeman, 904 N.E.2d at 342-43.
5
Although the trial court erred in concluding that the stop of Cunningham’s vehicle
was illegal, we proceed to address the ensuing discovery of marijuana and the pipe during
that stop, given that we must affirm a motion to suppress ruling if it is supported by any
evidence in the record. See Gonser, 843 N.E.2d at 949. Among other alternative
arguments, Cunningham claims that although he “consented” to being patted down by
Officer Hammock after exiting the vehicle, such consent was “invalid” because it was
merely “acquiescence to police actions and directions . . . .” Appellee’s Br. p. 12. We
agree with Cunningham on this point.
We first note that absent consent by Cunningham, Officer Hammock could not
have legally conducted a pat-down search of Cunningham. Under the Fourth
Amendment, in order to conduct a pat-down search of a person, an officer must have
knowledge of facts that would warrant a reasonably prudent person in the same
circumstances to believe that the officer was in danger. Hill v. State, 956 N.E.2d 174,
177 (Ind. Ct. App. 2011), trans. denied. Although an officer need not be absolutely
certain that an individual is armed, there must be more than an “inchoate and
unparticularized suspicion or ‘hunch’” of possible danger. Terry v. Ohio, 392 U.S. 1, 27,
88 S. Ct. 1868, 1883 (1968). Specific to the situation faced by Officer Hammock, it is
well-settled that police officers are not permitted to conduct pat-down searches of
occupants of vehicles pulled over during a routine traffic stop unless there is reasonable
suspicion to believe that the person to be subjected to the frisk is armed and dangerous.
Arizona v. Johnson, 555 U.S. 323, 327, 129 S. Ct. 781, 784 (2009); see also Mitchell v.
State, 745 N.E.2d 775, 781-82 (Ind. 2001). Although an officer may order an occupant
6
out of the vehicle during a traffic stop as a matter of routine because of officer safety
concerns, the additional, more intrusive step of a pat-down search is not automatically
justified. See id.; Knowles v. Iowa, 525 U.S. 113, 117-18, 119 S. Ct. 484, 488 (1998);
Mitchell, 745 N.E.2d at 781. Even if a person exits a vehicle during a traffic stop without
the officer’s prior permission, a pat-down search is not justified if the person is otherwise
cooperative and does not make furtive or threatening movements. See Jett v. State, 716
N.E.2d 69, 70-71 (Ind. Ct. App. 1999). A generalized suspicion by an officer that
“everyone can be armed” does not authorize a pat-down search. Id. at 71.
Here, there is no evidence of hostility, aggressiveness, furtive movements, or
anything of that nature on Cunningham’s part prior to the pat-down search, or at any time
during the traffic stop for that matter. Cunningham was the only occupant of the vehicle,
and another officer was on the scene backing up Officer Hammock when the pat-down
occurred. Cunningham merely asked to see the broken-out tail lamp because he thought
it was only cracked, not completely broken. There was nothing inherently threatening in
that request, and Officer Hammock did not testify as to feeling threatened. Instead, he
seems to have stated that he would pat down Cunningham if he left the vehicle out of a
generalized concern for “officer safety” without any particular facts that would indicate
such a concern. If Officer Hammock believed it was more dangerous for Cunningham to
be outside of his vehicle than inside of it, he could have taken the less-invasive step of
ordering him to stay inside. There was not sufficient reasonable suspicion that
Cunningham was armed and dangerous that would support a pat-down search in the
absence of Cunningham’s consent.
7
Regarding consent, it is a well-established exception to the requirements of the
Fourth Amendment. Thayer v. State, 904 N.E.2d 706, 711 (Ind. Ct. App. 2009). If the
State relies upon consent to justify a warrantless search, it has the burden of proving that
such consent was freely and voluntarily given. Nowling v. State, 955 N.E.2d 854,
862 (Ind. Ct. App. 2011), aff’d on r’hg, trans. denied. “A valid consent to search is an
exception to the warrant requirement unless it is procured by fraud, duress, fear, or
intimidation, or where it is ‘merely a submission to the supremacy of the law.’” Id.
(quoting Melton v. State, 705 N.E.2d 564, 567 (Ind. Ct. App. 1999)). We must consider
the totality of the circumstances in determining whether consent was validly given for a
search. Id. Consent to a search may be given either expressly or implicitly, by word or
deed. Id. “Consent cannot be conclusively presumed from a verbal expression of assent
unless the court determines, from the totality of the circumstances, that the verbal assent
reflected an understanding, uncoerced, and unequivocal election to grant the officers a
license which the person knows may be freely and effectively withheld.” Hannoy v.
State, 789 N.E.2d 977, 988 (Ind. Ct. App. 2003), aff’d on r’hg, trans. denied.
Additionally, mere acquiescence to a “claim of lawful authority” to search by the police
is not a valid consent; “‘[t]he claim of such a right, though not expressly stated, is
implicit when the police, instead of asking for permission to make the search, say they
have come to search or that they are going to search.’” State v. Jorgensen, 526 N.E.2d
1004, 1007 (Ind. Ct. App. 1988) (quoting W. LaFave, Search & Seizure § 8, 2(a) at 179
(2nd ed. 1987)).
8
We conclude that Officer Hammock clearly did not ask Cunningham for
permission to conduct a pat-down search. Instead, Officer Hammock’s testimony
demonstrates that he gave an ultimatum to Cunningham: if he decided to exit the vehicle
to inspect the tail lamp, “I would pat him down for any weapons just for officer safety
issue.” Tr. p. 6 (emphasis added). Phrased in this way, Cunningham had no choice but to
submit to the pat-down when he exited the vehicle, despite the absence of reasonable
suspicion that he was armed and dangerous. Cummingham’s response to Officer
Hammock, “That was fine,” only represents Cunningham’s mere acquiescence or
submission to Officer Hammock’s claimed right to conduct a pat-down search, even
though the officer had no such right. Id. The State has failed to establish that
Cunningham’s purported consent to the pat-down was constitutionally valid. As such, we
conclude that the discovery of the marijuana in the pill bottle during the illegal pat-down
and the subsequent discovery of the pipe must be suppressed as fruits of the poisonous
tree. See Hill, 956 N.E.2d at 179.
Conclusion
Although Officer Hammock was entitled to pull Cunningham over for having only
one red tail lamp, the ensuing pat-down search of Cunningham violated the Fourth
Amendment and the resulting fruits of that search must be suppressed. We affirm the
granting of the motion to suppress.
Affirmed.
ROBB, J., concurs.
BROWN, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Plaintiff, )
)
vs. ) No. 19A05-1310-CR-489
)
MICHAEL E. CUNNINGHAM, )
)
Appellee-Defendant. )
BROWN, Judge, dissenting
While I concur with the majority’s conclusion that Officer Hammock was entitled
to pull Cunningham over for having only one red tail lamp, I respectfully dissent from the
conclusion that Cunningham’s Fourth Amendment rights were violated when he was
searched. The trial court based its decision entirely on its perceived illegality of the
traffic stop and made no determination as to the validity of Cunningham’s consent to a
pat-down search. The majority concludes that “Cunningham had no choice but to submit
to the pat-down when he exited the vehicle . . . .” Supra at 9. In my view, however, the
circumstances did not necessitate that Cunningham exit his vehicle, and indeed he chose
to do so with full knowledge that, if he exited the vehicle, it would result in a pat-down
search. During a traffic stop, an officer may order a vehicle’s occupant to remain in the
10
vehicle. See Starr v. State, 928 N.E.2d 876, 879 (Ind. Ct. App. 2010) (noting that during
a traffic stop a “passenger who had exited the vehicle and refused to comply with an
officer’s directive to return to it was properly arrested for resisting law enforcement”).
Officer Hammock presented Cunningham with a choice on how to proceed, and in opting
to exit the vehicle, Cunningham consented to the pat-down search, both in his verbal
response to the officer that is was “fine” to be patted down, and in his actions. There was
no element of coercion, “fraud, duress, fear, or intimidation,” or a mere submission to the
supremacy of the law. Nowling v. State, 955 N.E.2d 854, 862 (Ind. Ct. App. 2011), aff’d
on reh’g, trans. denied (quoting Melton v. State, 705 N.E.2d 564, 567 (Ind. Ct. App.
1999)). The officer did not order him out of the vehicle and initiate an illegal search.
Cunningham did not acquiesce to police actions and directives; the police were neither
acting nor directing but rather responding to Cunningham’s request to get out of his
vehicle.
Also, to the extent that Officer Hammock recognized the item in Cunningham’s
pocket to be a pill bottle and not a weapon, Cunningham told the officer that the bottle
contained marijuana, and indeed Cunningham removed the bottle from his own pocket
and handed it to the officer. Further, he informed the officer that he had a pipe in his
vehicle and retrieved it. As the majority notes, we must consider the totality of the
circumstances and under these circumstances, I do not believe that Cunningham’s Fourth
Amendment rights were infringed upon, and thus I respectfully dissent and would reverse
the trial court’s grant of the motion to suppress.
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