from the Marion Superior Court No. 46G07-1610-CM-40805 The
Honorable Steven Rubick, Magistrate
Attorney for Appellant Megan Shipley Marion County Public
Defender Agency Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Monika Prekopa Talbot Deputy Attorney General
Taccasia Porter was a passenger in a vehicle that was pulled
over for a routine traffic stop. During the stop, the officer
noticed an odor of marijuana emanating from Porter's
person. An initial search revealed no contraband, so the
officer decided to conduct a more thorough search. Therefore,
on the side of a public road, with no evidence of any
measures taken to protect Porter's privacy or any law
enforcement need to conduct the search right then and there,
the officer pulled Porter's jeans away from her body and
inserted her hand inside Porter's jeans. After feeling an
object inside Porter's underwear, the officer then stuck
her hand inside Porter's underwear, next to her genital
area, and retrieved a marijuana blunt. While the initial
pat-down search was permissible, we find that the subsequent
search ran afoul of both the federal and state constitutions.
Porter appeals her conviction for Class B Misdemeanor
Possession of Marijuana. Porter argues that the trial court
erroneously admitted evidence stemming from an unduly
invasive roadside search of her person by a police officer.
We agree, and reverse.
On October 15, 2016, Indianapolis Metropolitan Police Officer
Tiffany Wren made a traffic stop in the 2300 block of
Lafayette Road for an unspecified headlights violation.
Porter was a passenger in the vehicle that was pulled over.
When Officer Wren approached the vehicle, she smelled the
odor of burnt marijuana. She called for backup and another
officer responded. The officers asked Porter and the driver
to get out of the vehicle.
When Porter exited the vehicle, Officer Wren smelled
marijuana. Initially, Officer Wren could not tell whether the
odor was coming from Porter herself or from "being in
the car." Tr. p. 10. Officer Wren searched Porter by
checking her pockets, around the waistband of her jeans, and
down her legs, but the officer did not find anything. Officer
Wren then searched the vehicle, and did not find anything.
Officer Wren returned to where Porter and the driver were
standing and again smelled "a very, very strong odor of
raw marijuana coming from [Porter's] person."
Id. at 11. Officer Wren then searched Porter a
second time, re-checking all the areas she had already
searched and also checking "the front of [Porter's]
pants." Id. at 13. According to the officer,
Porter's "jeans were really tight so that I recall I
had to really, like pull her jeans out in order to get my
hand in there." Id. at 16. Officer Wren put her
hand inside the front of Porter's jeans but outside of
her underwear. Officer Wren stated, "when I put my hand
in, I felt on the back of my hand something . . . I believed
to be a marijuana blunt." Id. at 13. Officer
Wren then put her hand inside of Porter's underwear, on
the front side, and retrieved a blunt. Porter was then placed
under arrest for possession of marijuana.
On October 16, 2016, the State charged Porter with Class B
misdemeanor possession of marijuana. Porter's bench trial
took place on February 16, 2017. At the bench trial, Porter
moved to suppress the evidence of the marijuana, arguing that
the search was unconstitutional under the federal and state
constitutions. The trial court denied the motion to suppress
and admitted the evidence, ultimately finding Porter guilty
as charged. The trial court sentenced Porter to 180 days in
the Marion County Jail, with 178 days suspended. Porter now
Porter argues that the trial court erroneously admitted the
evidence of the marijuana blunt stemming from Officer
Wren's roadside search of her person. We will only
reverse a trial court's ruling on admission of evidence
if the decision is clearly against the logic and effect of
the facts and circumstances before the court. D.F. v.
State, 34 N.E.3d 686, 688 (Ind.Ct.App. 2015), trans.
denied. In conducting our review, we will neither
reweigh the evidence nor assess witness credibility, but we
apply a de novo standard of review to matters of law.
Id. In other words, when a defendant contends that
the trial court admitted evidence alleged to have been
discovered as the result of an illegal search or seizure, an
appellate court will generally assume the trial court
accepted the evidence as presented by the State and will not
reweigh that evidence, but we owe no deference as to whether
that evidence established the constitutionality of the search
or seizure. Id. at 689.
Trial Court's Findings
The trial court made a brief oral statement explaining its
ruling on Porter's motion to suppress, and she argues
that two of its factual findings were clearly erroneous.
See L.A.F. v. State, 698 N.E.2d 355, 356
(Ind.Ct.App. 1998) (noting that we will accept a trial
court's factual findings unless they are clearly
erroneous; findings are clearly erroneous when the record
lacks any facts or reasonable inferences to support them).
The trial court found as follows:
Motion to suppress is denied. The officer conducted an
initial brief patdown then proceeded to the car. Upon
returning from the car, she noticed a strong odor emanating
directly from Ms. Porter. The initial patdown search-if the
initial patdown search had gone to this extent, I would have
sustained it, the defendant's motion to suppress. But
this was a subsequent search based on the probable cause of
the strong odor clearly emanating from Ms. Porter after the
I understand the defendant's position with respect to the
location, but the evidence before the Court incorporating
the evidence from Officer Wren from the previous trial that
this is at 10:00 o'clock at night, and the officer has
testified that she kept her hands not in the, as I believe
she said, the "private-private" area, but around
The Court finds that the level of intrusion, though greater
than normal, was less of an intrusion on Ms. Porter than
having her taken into custody, transported to the processing
center, and subjected to a full search. The motion to
suppress is denied.
Tr. p. 22 (emphasis added). Porter argues that the trial
court's findings regarding the time of day the search
occurred and the placement of Officer Wren's hands during
the search are clearly erroneous.