United States v. Colbert

          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 ...