Marcus L. Sanders, Appellant,
State of Indiana, Appellee.
Court Case No. 49G10-1601-CM-1539
Loretta H. Rush Chief Justice of Indiana
matter has come before the Indiana Supreme Court on a
petition to transfer jurisdiction, filed pursuant to Indiana
Appellate Rules 56(B) and 57, following the issuance of a
decision by the Court of Appeals. The Court has reviewed the
decision of the Court of Appeals, the submitted record on
appeal, and heard oral argument. All briefs filed in the
Court of Appeals and materials filed in connection with the
request to transfer jurisdiction have been made available to
the Court for review. Each participating member has had the
opportunity to voice that Justice's views on the case in
conference with the other Justices, and each participating
member of the Court has voted on the petition.
the Court is evenly divided on whether to grant or deny
transfer, the petition to transfer is deemed DENIED.
See Ind. Appellate Rule 58(C).
J. and Slaughter, J., vote to deny transfer.
J., dissents to the denial of transfer with separate opinion
in which Rush, C.J., joins.
respectfully dissent from the denial of transfer in this case
because I believe that Sanders' Article 1, Section 11
rights were violated. While the level of intrusion was low,
the degree of concern and law enforcement needs in this case
were equally low. Thus, I would grant transfer and reverse
the trial court, finding it should have granted Sanders'
motion to suppress.
Marion County Sheriff's Deputy was working as a courtesy
officer for an apartment complex in Indianapolis. He watched
a vehicle strike a curb twice while moving from one spot to
another. He decided to do a "welfare check" of the
driver. As he approached the vehicle, Sanders began to exit.
The Deputy ordered him to remain in the vehicle. Sanders
complied and left his door open. The Deputy then noticed a
baggie containing a green leafy substance and he suspected it
was contraband. Later testing confirmed it was marijuana, and
Sanders was charged. During trial, Sanders moved to suppress
the marijuana. The trial court denied Sanders' motion and
found him guilty as charged. He appealed, and our Court of
Appeals affirmed the trial court. I disagree with the lower
text of Article 1, Section 11 of the Indiana Constitution is
similar to that of the Fourth Amendment. However, we conduct
a separate, independent inquiry focusing on whether the
police conduct was "reasonable under the totality of the
circumstances." State v. Washington, 898 N.E.2d
1200, 1205-06 (Ind. 2008). In evaluating reasonableness, we
consider three factors: "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).
admittedly, the level of intrusion to Sanders was low because
his person was not searched and the baggie seems to have been
easily visible without a search of his vehicle. However, this
Court has long held that Section 11 "must be liberally
construed to protect Hoosiers from unreasonable police
activity in private areas of their lives." State v.
Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002) (emphasis
added) (citing Brown v. State, 653 N.E.2d 77 (Ind.
while the Court of Appeals found that the degree of concern
in this case was high because Sanders may have been
impaired and could have returned to the road and put
others at risk, this conclusion is speculative and does not
seem to be supported by the record. Instead, Sanders was
parking his car and exiting it when the Deputy approached
him. Further, it is not clear that hitting the curb, alone,
is indicia of impairment rather than simply poor driving. It
seems to me that the notion that the Deputy was investigating
drunk driving was merely an afterthought. Similarly, it does
not seem that law enforcement needs were high considering
that this all occurred in a private parking lot and Sanders
was exiting his vehicle.
officer instead approached Sanders and asked if everything
was okay and then observed the contraband, we would be in a
different situation. But here, police approached Sanders and
ordered him to remain in his vehicle, transforming the
situation from a consensual encounter to an unlawful seizure.
counsel for Sanders aptly noted: "[i]f striking a curb
twice while pulling into a parking space gives rise to
concern that someone is driving intoxicated, so too would
many other common parking lot driving behaviors such as
stopping abruptly or backing up to take a recently vacated
parking space and the difficulty drivers encounter in