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Hammond v. State

Court of Appeals of Indiana

August 17, 2017

Earl D. Hammond, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Elkhart Superior Court The Honorable Charles Carter Wicks, Judge Trial Court Cause No. 20D05-1511-CM-1792

          ATTORNEY FOR APPELLANT Elizabeth A. Bellin Elkhart, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana.

          PYLE, JUDGE.

         Statement of the Case

         [¶1] Earl D. Hammond ("Hammond") appeals his conviction for Class B misdemeanor possession of marijuana.[1] He argues that the trial court abused its discretion by admitting into evidence the marijuana he possessed because the evidence was obtained pursuant to a warrantless search. He acknowledges that he consented to the search but asserts that his consent was invalid because he was in custody at the time and had not received a Pirtle advisement and waived his right to an attorney. Because we find that Hammond was not in police custody when he consented to the search, we conclude that he was not entitled to a Pirtle advisement or to an attorney, and, thus, validly consented to the search. Accordingly, the search was constitutional, and the trial court did not abuse its discretion in admitting the marijuana.

         [¶2] We affirm.

         Issue

         Whether the trial court abused its discretion in admitting evidence seized pursuant to a warrantless search.

         Facts

         [¶3] On October 14, 2015, Officer Michael Wass ("Officer Wass") and Detective Jeremy Stout ("Detective Stout") with the Elkhart County Sheriff's Department were driving in Elkhart when the car in front of them drove, by "almost a whole-half vehicle, " over the double yellow lines separating the lanes. (Tr. Vol. 2 at 136). The vehicle then drove left of the center lines two more times, prompting Officer Wass to initiate a traffic stop. The vehicle pulled over, and Officer Wass approached the driver's side while Detective Stout approached the passenger's side. In addition to the driver, there were two passengers sitting in the car, one in the front seat and one in the back seat.

         [¶4] Upon reaching the car, Officer Wass saw that the driver-who was later identified as Chevrolet Schrader ("Schrader")-had "bloodshot and glassy" eyes, "lethargic" speech, and "lethargic" movements. (Tr. Vol. 2 at 139). Officer Wass could also smell an "odor of burnt marijuana coming from inside of the vehicle." (Tr. Vol. 2 at 139). From the passenger's side of the car, Detective Stout observed a strong odor of alcoholic beverages and saw a box of beer in the back seat and several beer cans lying around the car.

         [¶5] Officer Wass asked Schrader to step outside of the car and administered a field sobriety test, which revealed that Schrader was impaired. Schrader then admitted that he had smoked marijuana a few hours previously with the two passengers in the car, his father, Bryan Schrader ("Bryan"), and his uncle, Hammond.

         [¶6] Meanwhile, Detective Stout talked to Bryan and Hammond from the passenger's side of the car. At one point, Hammond rolled down his window to give Detective Stout his ID, and Detective Stout was able to smell "the strong odor of burnt marijuana coming from the vehicle." (Tr. Vol. 2 at 201). Detective Stout told Bryan that he would be conducting a search of the vehicle for marijuana because of the odor. He asked Bryan if he ...


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