United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS
TANYA
WALTON PRATT, JUDGE
This
matter is before the Court on Defendant Ronald Colbert's
(“Colbert”) Motion to Suppress (Filing No.
86). Colbert is charged in Count Two of the Indictment
with Possession with Intent to Distribute Fentanyl in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
Colbert asserts that the search and seizure conducted on
November 14, 2018, violated the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the
Indiana Constitution. For the following reasons,
Colbert's Motion to Suppress is denied.
I.
FINDINGS OF FACT
There
are no factual disputes to be resolved regarding the Motion
to Suppress, so no evidentiary hearing is
necessary.[1] On November 14, 2018, surveillance was
conducted by officers of the Drug Enforcement Administration
(“DEA”) at a suspected drug house in
Indianapolis, Indiana, which was allegedly used by Michael
Edwards, a co-defendant in this case. Law enforcement
officers observed a gray 2005 Pontiac Grand Am (“the
Pontiac”) arrive and park in the driveway of the
suspected drug stash house. Officers observed a Black male
exit the vehicle and walk out of sight toward the front door
of the house. The officers observed the license plate of the
vehicle-AVB688. A search of Indiana Bureau of Motor Vehicles
records revealed that the vehicle was registered to Colbert.
Officers observed an individual exit the garage of the stash
house and enter the Pontiac. They also observed the
taillights of a vehicle parked in the garage light up. The
two vehicles departed the stash house, and officers
maintained surveillance on the Pontiac as it travelled west
on Rockville Road and then south on Ronald Reagan Parkway.
Brownsburg
Police Department Detective Dirk Fentz (“Detective
Fentz”) was notified by DEA Task Force Officer Derek
Heller (“Officer Heller”) that a gray Pontiac had
departed the suspected drug house. Detective Fentz observed
the Pontiac cross the white fog line on two occasions, fail
to maintain its proper lane of travel, and fail to properly
signal a lane change. Detective Fentz initiated a traffic
stop near the intersection of Ronald Reagan Parkway and E
County Road 100 South in Hendricks County, Indiana.
When
Detective Fentz activated his police lights, the Pontiac did
not pull over to the shoulder in a timely manner. While
approaching the passenger window of the Pontiac, Detective
Fentz immediately smelled a strong odor of marijuana.
Detective Fentz advised the driver why he had been stopped
and asked for his driver's license and vehicle
registration. Detective Fentz identified the driver of the
vehicle to be Colbert and asked Colbert to accompany him back
to the police vehicle so that he could issue a written
warning for the traffic violations. Colbert had to be asked
several times before he finally exited his vehicle. Detective
Fentz noticed that Colbert hesitated and looked back at his
car. Detective Fentz also noticed a bulge in Colbert's
pants pocket as he walked to the police vehicle, but he did
not search Colbert's person or clothing at that time.
Once
they were inside the patrol vehicle, Detective Fentz
continued to smell a strong odor of marijuana coming from
Colbert. While preparing the written warning, Detective Fentz
observed Colbert become increasingly nervous. His chest was
rapidly rising and falling in an exaggerated manner, and he
began talking and asking multiple questions. Detective Fentz
radioed Officer Chad Brandon (“Officer Brandon”)
to assist him with the stop because of Colbert's nervous
behaviors. While sitting next to Colbert, Detective Fentz
continued to smell marijuana coming from Colbert and asked
whether Colbert had anything illegal in his vehicle. Colbert
responded that there was not. Detective Fentz asked if
Colbert would consent to a search of his vehicle and Colbert
agreed. Colbert read the form, signed it, and voluntarily
gave Detective Fentz consent to search his vehicle. While
running Colbert's information, Detective Fentz learned
that Colbert had a concealed carry permit.
When
Officer Brandon arrived on the scene, Detective Fentz exited
his patrol vehicle and advised Officer Brandon of the written
consent to search and that he had not yet searched Colbert
for weapons or patted him down, even though he had noticed a
bulge earlier. Detective Fentz requested the pat down because
“it was known at this time that Colbert had a firearm
permit, which can mean that a person with such a permit may
be armed.” Detective Fentz began the search of
Colbert's vehicle, and Officer Brandon approached
Colbert. Officer Brandon also smelled a strong odor of
marijuana coming from Colbert.
Officer
Brandon asked Colbert to step out of the vehicle so that he
could conduct a pat down search. While conducting the pat
down search of Colbert, Officer Brandon felt a bulge in the
pants pocket, and he asked Colbert if he could retrieve the
object, to which Colbert consented. The object was
Colbert's cellular telephone and approximately $400.00 in
cash. Then Officer Brandon felt a hard object in the front of
Colbert's waistband. Thinking it was a firearm, Officer
Brandon asked Colbert what the object was, and Colbert began
to reach for the object. Officer Brandon was able to pull the
object from Colbert's pants, and it was a white-colored
brick of a controlled substance in a clear, plastic
heat-sealed bag.
While
Detective Fentz was searching Colbert's vehicle, he heard
Officer Brandon yell his name multiple times, asking him to
come back to where he was searching Colbert. After Detective
Fentz approached Officer Brandon and Colbert, Officer Brandon
handed him the clear, plastic heat-sealed bag containing the
white-colored brick. Officer Brandon then placed Colbert in
handcuffs and advised Detective Fentz of the events that had
just occurred. Detective Fentz completed the search of
Colbert's vehicle, which uncovered a small amount of cash
and another cellular telephone. After the search, Detective
Fentz contacted Officer Heller and advised him of what had
just occurred. The controlled substance, cash, and both
cellular telephones were seized as a result of the search.
The approximate weight of the controlled substance was 659
grams of Fentanyl, and the total cash seized was $548.00.
II.
CONCLUSIONS OF LAW AND DISCUSSION
The
Fourth Amendment to the United States Constitution provides
that people shall be “secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures.” The United States Supreme Court has
repeatedly emphasized that “searches conducted outside
the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
Amendment -- subject only to a few specifically established
and well-delineated exceptions.” Katz v. United
States, 389 U.S. 347, 357 (1967). “Clearly, the
general requirement that a search warrant be obtained is not
lightly to be dispensed with, and ‘the burden is on
those seeking an exemption from the requirement to show the
need for it . . . .'” Chimel v.
California, 395 U.S. 752, 762 (1969) (quoting United
States v. Jeffers, 342 U.S. 48, 51 (1951)). In other
words, the Government has the burden to establish sufficient
justification for a warrantless search or seizure. See
Vale v. Louisiana, 399 U.S. 30, 34 (1970).
Similar
to the protections afforded by the Fourth Amendment, the
purpose of Article 1, Section 11 of the Indiana Constitution
“is to protect from unreasonable police activity those
areas of life that Hoosiers regard as private.”
Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995). While
Section 11 is virtually identical to the Fourth Amendment,
Section 11 is given its own independent interpretation and
application. Mitchell v. State, 745 N.E.2d 775, 786
(Ind. 2001). When determining whether a search or seizure
violates Section 11, courts evaluate “the
reasonableness of the police conduct under the totality of
the circumstances.” Litchfield v. State, 824
N.E.2d 356, 359 (Ind. 2005). The government bears the burden
of showing that the search was reasonable under the totality
of the circumstances. Mitchell, 745 N.E.2d at 786.
In his
Motion, Colbert asserts that the search and seizure conducted
on November 14, 2018, violated the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the
Indiana Constitution. Colbert asks the Court to suppress all
evidence obtained by the Government as a result of its
warrantless search of his person. Without pointing to any
specific facts, Colbert generally argues that the warrantless
search violated the Fourth Amendment and does ...