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Baxter v. State

Court of Appeals of Indiana

June 26, 2018

Marcus K. Baxter, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable Jose D. Salinas, Judge Trial Court Cause No. 49G14-1607-F6-27648

          Attorney for Appellant Stephen Gerald Gray Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

          BROWN, JUDGE.

         [¶1] In this interlocutory appeal, Marcus K. Baxter appeals the trial court's order denying his motion to suppress evidence. Baxter raises two issues which we consolidate as whether the court erred in denying his motion to suppress. We affirm.[1]

         Facts and Procedural History

         [¶2] On July 17, 2016, the car wash owner or manager of Mike's Carwash on East Washington Street called 911 and stated that two suspicious males[2] were on the property, they were not using the business's services, they looked to be evading the security cameras to the business, and that he wanted the police to "check them out." Transcript Volume 2 at 36. At about 12:54 p.m., Sergeant Frank Wooten of the Indianapolis Metropolitan Police Department ("IMPD") responded to the dispatch and arrived on the scene, followed next by two State troopers. When he arrived, Sergeant Wooten encountered two Hispanic males that had been on his right and one black male that walked from his left to his right. Sergeant Wooten obtained information from each of the three individuals and ran the information for warrants.

         [¶3] When IMPD Officer Thomas Figura arrived on the scene, Sergeant Wooten and the two State troopers were speaking with the three individuals. When Sergeant Wooten released the three individuals because the warrant checks had come back negative, the two Hispanic males entered an "SUV that had been parked on the east end of the parking lot and they left" and "the black male had walked away." Id. at 11. Sergeant Wooten advised Officer Figura that the black male had come from the vicinity of a black Chevrolet with heavy tinting which had its engine on and was parked in the last spot in the northwest corner of the business. Officer Figura approached the parked Chevrolet from the rear and then from the driver's side, where he could see the side window was open to an extent. Before looking inside, Officer Figura could smell the odor of burnt marijuana coming from the inside of the car. When he ordered Baxter, the occupant he saw in the driver's seat, to exit the car, he received no response. Officer Figura commanded Baxter to open the door. When the door was opened, Officer Figura could see what appeared to be marijuana in plastic baggies and what appeared to be a number of white pills in the location where one would "stick [their] hand in to push the door open on the interior of the vehicle." Id. at 40.

         [¶4] On July 19, 2016, the State charged Baxter with possession of a narcotic drug as a level 6 felony and possession of marijuana as a class A misdemeanor. On January 25, 2017, Baxter filed a motion to suppress evidence which argued that "the stop and or detention of the vehicle in which [he] was a passenger occurred without probable cause or reasonable suspicion" and violated the Fourth Amendment of the United States Constitution and the Indiana Constitution. Appellant's Appendix Volume 2 at 17.

         [¶5] At the suppression hearing, Sergeant Wooten testified the dispatch "put out a run for suspicious persons," he saw three individuals on the car wash's "west end on the north side of the exit" when he arrived, and he pulled into the "west end of the car wash" on the exit side "just past the exit." Transcript Volume 2 at 9-10, 17. He indicated that his vehicle did not block the exit of the car wash, would have been parallel to the vending machines on the building wall shown in a photographic exhibit, and would be "up in front of the exit right there angled in from right to left." Id. at 27. He stated, "[w]hen I first started talking to the Hispanic males, the black male started walking towards us" from the direction of Baxter's car and "I didn't have to call him to me." Id. at 24. He testified he obtained the information of the three individuals, the warrant checks "came back negative," and he "then . . . released them at the scene." Id. at 11. When asked what he did after releasing the three individuals, he stated:

I advised Officer Figura where the black male had walked from, the vehicle that was backed in. Officer Figura walked over to that vehicle. And I walked over to the front of that vehicle, probably within three to four feet of the front of that vehicle, and could immediately smell what I believe through my training and experience to be the odor of marijuana coming from that vicinity.

Id. at 11-12. He stated that the vehicle was "backed into the last spot next to the fence" and he could not see inside the vehicle but was able to detect the odor of marijuana because the "window was down a little bit," or approximately "six inches," and "[t]here was a crack." Id. at 12. He testified that the vehicle was "so dark and so tinted" and "we couldn't tell how many were actually in the vehicle at the time." Id. at 13.

         [¶6] During cross-examination, Sergeant Wooten testified that, when he arrived, he was "looking for suspicious people behind the building not knowing how many were there," that the three individuals were not interacting or taking part in illegal activity that he could observe, and that he saw them "on the west end of the north side of the exit" of the car wash. Id. at 17. When Sergeant Wooten was shown a number of photographic exhibits depicting the scene at the car wash, he indicated the "Hispanic males were behind the building" and the "black male was coming from the left side . . . which is where the black vehicle was parked backed in" and marked the locations where he "encountered the two Hispanics" and where he "encountered the one black male," the location of Baxter's car, and the location of his vehicle. Id. at 18, 21.

         [¶7] Officer Figura testified that, from the time of his arrival, the encounter with the first three individuals lasted five minutes and answered, "[t]hat is correct," when asked "[y]ou didn't know [Baxter] was even on the scene when you pulled your car up." Id. at 52. When asked "[a]fter releasing [the three individuals], what did you do next," he answered that Sergeant Wooten had indicated one of the individuals who was released "had come from" a "vehicle which was parked in the last spot in the northwest corner" and that he could "hear that the vehicle was running," the "engine was running," and it "was in operation." Id. at 37. He indicated that he approached Baxter's car from the rear, that he could not see if there was anybody in the vehicle at that time because the vehicle window tinting was heavy, and that he did not see anything in the vehicle. He testified he could see that the driver's side window was slightly cracked open when he approached, he could "smell the odor of marijuana coming from inside of the vehicle outside towards me" before he looked inside, and his face was "pretty much pressed up against the window" when he smelled the marijuana. Id. at 37, 40. He also indicated that, when he received no response from the occupant that he saw in the driver's seat, he forcibly commanded the individual to exit the vehicle, was "concerned for officer safety," and his gun was taken out of its holster and placed at the side of his right leg. Id. at 39. He stated that, as the door came open and Baxter began to exit the vehicle, he could see in "plain view . . . what appeared to be marijuana in plastic baggies and what appeared to be a number of white pills." Id. at 40. After being asked about how close approximately he was to the door handle, Officer Figura stated, "[w]ell, I gave some distance because I didn't know what [Baxter's] intentions were when he exited the vehicle for safety reasons. But I would say between seven to eight feet from that door." Id.

         [¶8] Officer Figura identified State's Exhibits 1, 2, and 3 as photographs taken the day of the incident depicting Baxter's parked car and the driver's interior door handle. During cross-examination, he answered affirmatively when asked if he remembered indicating in his probable cause affidavit that the 911 dispatcher had specified that there "were two suspicious black males . . . walking on the property and talking on their cell phones." Id. at 45. He stated that he could not testify as to how many police cars were there and was only certain that his and Sergeant Wooten's patrol cars were present. He testified that, prior to walking over to the car, he "didn't know [Baxter] was there," and that the distance between the front of his vehicle and the rear of Baxter's car was approximately ten feet and agreed that, when he said approximate, "it's plus or minus." Id. at 49, 51. He answered affirmatively when asked about whether he testified previously in his deposition that he parked his car "somewhat behind" Baxter's car, whether he said that he "pulled up behind" Baxter's car, and whether he recalled his testimony that he believed he was "about ten feet from" Baxter's car. Id. at 47-48. Officer Figura was shown Defendant's Exhibit D, a photographic depiction of the car wash and the spot where Baxter's car had been parked, and drew an oval to indicate the location of his police vehicle.

         [¶9] Baxter testified that he was familiar with Defendant's Exhibit D, answered affirmatively when asked if he saw where Officer Figura depicted the general location of where he was parked next to the red fence, and stated "I'd say that I can't really recall. I just know that he [sic] was shorter than the car length. Like if - I couldn't back up if I wanted to." Id. at 55. After being asked if he would have been able to "cut [his] wheel" and have the "truck [sic] of [the] car moved to the left" or would have had to "come straight back before [he] could move," he testified that he would have had to "come straight back" to "get out of this position." Id. at 56. He testified that he would not have been able to come straight back when asked about his "ability to do that based on where Officer Figura had parked his car." Id. Baxter also testified Sergeant Wooten's vehicle protruded beyond the north edge of the building, that he believed that the "protrusion of his building (verbatim) was obstructing anybody who wanted to drive back behind the car wash at the time," and that state trooper vehicles were "on the other side," or north side, of the building and would have blocked anybody that wanted to exit that direction. Id. at 57-58. He testified he had a driver's license since he was eighteen, was familiar with parallel parking, was aware of how to "cut [his] wheel to get out from a parallel parking situation," and stated "[y]es, I could," when asked if "there's approximately ten feet between you and another car, you could maneuver in a parallel parking situation." Id. at 61. The following exchange occurred between the prosecutor and Baxter:

[Baxter:] But I couldn't - he was right up on me. I couldn't -
[Prosecutor:] I understand that.
[Baxter's Counsel:] Wait. Let him answer the question. I didn't hear the answer. Answer the question, please.
[Baxter:] He said - he asked me was there somebody behind me, was I - basically, he's asking me could I just have backed out and exited. I said, No, because there was an ...

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