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Cleveland v. State

Court of Appeals of Indiana

July 15, 2019

Darnell Cleveland, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Marion Superior Court The Honorable Clayton A. Graham, Judge Trial Court Cause No. 49G07-1711-CM-45511

          ATTORNEY FOR APPELLANT Talisha Griffin Marion County Public Defender Agency Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

          BAKER, JUDGE

         [¶1] Darnell Cleveland appeals his convictions for Class A Misdemeanor Carrying a Handgun Without a License[1] and Class A Misdemeanor Possession of Marijuana, [2] arguing that (1) the trial court should have excluded all evidence obtained from his search and arrest because they were both unlawful; (2) the trial court erred when it ordered the destruction of his handgun post-conviction; and (3) the trial court erred when it ordered him to pay a public defender fee without first conducting an indigency hearing. Finding that the search was lawful and that there was no error regarding the public defender fee, but that there was error regarding the trial court's order to destroy, we affirm in part and reverse and remand in part with instructions.

         Facts[3]

         [¶2] On November 24, 2017, Indianapolis Metropolitan Police Department (IMPD) Officer Eric Parrish was patrolling 38th Street in Indianapolis when his radar detected a Ford Explorer driving by at sixty miles per hour in a thirty-five-mile-per-hour zone. Officer Parrish started following the vehicle. He also ran a search of the vehicle's license plate number and found that the license plate was registered to a Chevrolet. With this information, Officer Parrish initiated a traffic stop in a nearby Walgreens parking lot. Officer Nickolas Smith assisted Officer Parrish with the stop.

         [¶3] As the officers approached both sides of the stopped vehicle, they smelled the strong odor of raw marijuana emanating from the vehicle. Officer Parrish asked all the occupants-the driver, the passenger, and Cleveland, who was sitting in the backseat on the passenger's side-for identification. Officer Parrish then discovered that there was an outstanding warrant for the driver's arrest. Officer Parrish asked the driver to exit the vehicle. The driver complied.

         [¶4] Officer Parrish conducted a pat-down search of the driver to check for weapons. The driver started to resist, so Officer Smith went around to the driver's side to help Officer Parrish detain, handcuff, and arrest the driver. After returning to the passenger's side, Officer Smith saw Cleveland, who had exited the vehicle at some point, walking northbound through the Walgreens parking lot with a gold bag. Officer Smith ordered Cleveland to stop and to put the bag down, which he did. Cleveland was roughly twenty to thirty yards from the vehicle when he was ordered to stop. Officer Smith handcuffed Cleveland and returned him to the vehicle. He also conducted a pat-down search of Cleveland, during which he did not smell marijuana on Cleveland's person nor did he find a gun.

         [¶5] Sometime later, Officer Smith went to retrieve Cleveland's gold bag from the Walgreens parking lot. At some point, Officer Smith detected the smell of marijuana coming from the bag.[4] Officer Smith opened the bag and found a handgun and two individual baggies containing marijuana. Officer Nathan Shell was dispatched to the scene to retrieve the gun, and he noticed that the handgun had seventeen rounds of ammunition inside the magazine and one round loaded inside the chamber. Officer Shell placed Cleveland in the back of the vehicle and read him his Miranda[5] rights. Cleveland admitted that the handgun found inside the bag was his and that he used it for protection. He also testified that he knew about the marijuana but that he had "nothing to do with [it][.]" Tr. Vol. II p. 31.

         [¶6] On November 27, 2017, the State charged Cleveland with one count of Class A misdemeanor carrying a handgun without a license and one count of Class A misdemeanor possession of marijuana. At Cleveland's August 27, 2018, bench trial, Cleveland objected to the State's introduction of the handgun and the marijuana found inside the gold bag, arguing that the evidence was obtained from a search that was unlawful under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The trial court overruled his objection. Later, at the conclusion of trial, Cleveland renewed his objection, arguing that the State lacked probable cause to arrest him in the first place. Once again, the trial court overruled his objection.

         [¶7] The trial court found Cleveland guilty as charged. After a sentencing hearing, the trial court imposed a 365-day aggregate sentence, with 263 days suspended to probation and 90 days suspended to home detention. Additionally, without conducting an indigency hearing, the trial court ordered Cleveland to pay a $50 public defender fee; the trial court also ordered that Cleveland's handgun be destroyed. Cleveland now appeals.

         Discussion and Decision I. Search

         [¶8] First, Cleveland argues that the trial court erroneously admitted evidence in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.[6] Specifically, Cleveland contends that certain evidence-the handgun and the marijuana-should have been excluded because the officers' search of his gold bag was unlawful under the federal and state constitutions.

         [¶9] As a general matter, the Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Article 1, Section 11 of the Indiana Constitution contains nearly identical language and says that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated[.]" Evidence that is the product of an unlawful search is inadmissible under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Hill v. State, 956 N.E.2d 174, 177 (Ind.Ct.App. 2011) (holding that evidence that is obtained from an illegal search is "fruit of the poisonous tree," and therefore, inadmissible in a court of law).

         [¶10] We will not reverse the trial court's decision to admit evidence unless it is clearly against the logic and effect of the facts and circumstances before it. Reed v. Bethel, 2 N.E.3d 98, 107 (Ind.Ct.App. 2014). We will review a trial court's conclusions of law de novo, giving no weight to the legal analysis below. Sanders v. State, 989 N.E.2d 332, 334 (Ind. 2013).

         The Fourth Amendment to the United States Constitution

         [¶11] The Fourth Amendment prohibits warrantless searches unless an exception applies. Black v. State, 810 N.E.2d 713, 715 (Ind. 2004). The automobile exception is well established, allowing officers to conduct a warrantless search of a vehicle where (1) the vehicle was readily mobile or capable of being driven when the police first seized it; and (2) probable cause existed that the vehicle contained contraband or evidence of a crime. Cheatham v. State, 819 N.E.2d 71, 75-76 (Ind.Ct.App. 2004). Probable cause exists "where facts found on a reasonable inquiry would induce a reasonably intelligent and prudent person to believe the accused has committed [a] crime." Street v. Shoe Carnival, Inc., 660 N.E.2d 1054, 1056 (Ind.Ct.App. 1996). "The determination of probable cause is a mixed question of law and fact." Earles v. Perkins, 788 N.E.2d 1260, 1264 (Ind.Ct.App. 2003). Furthermore, the standard for attaining probable cause is the same under both the federal and state constitutions. See, e.g., State v. Gilbert, 997 N.E.2d 414, 417 (Ind.Ct.App. 2013).

         [¶12] Here, it is undisputed that the officers had the authority to invoke the automobile exception to search the Ford Explorer and its contents therein.[7]However, Cleveland contends that the automobile exception did not extend to his person or his gold bag because he had left the vehicle. What is most pertinent to our analysis is the fact that Cleveland and his gold bag were inside the vehicle at the time that the officers suspected the vehicle of containing contraband. By virtue of the bag's presence inside the vehicle, the officers had the constitutional authority to search it from the outset. See Wilkinson v. State, 70 N.E.3d 392, 404 (Ind.Ct.App. 2017) (holding that under the automobile exception, once probable cause is established, officers are permitted to search any items in the vehicle that might conceal controlled substances); see also United States v. Ross, 456 U.S. 798, 825 (1982) (establishing that "if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search[]").

         [¶13] Here, it does not matter that Cleveland left the vehicle with the bag and walked away. The gold bag was inside the vehicle at the time of the initial seizure, and during that time, the officers could have invoked the automobile exception to search it. The probable cause to stop and search the vehicle and its contents was established from the beginning, and said probable cause did not cease the moment Cleveland exited the vehicle and walked away. If this were the case, passengers-even those as compliant, respectful, and non-violent as Cleveland-would have license to abscond with contraband from police presence to avoid any possibility of arrest for themselves or for those still inside the vehicle. Therefore, the search of Cleveland's gold bag did not violate the Fourth Amendment to the United States Constitution.[8]

         Article 1, Section 11 of the Indiana Constitution

         [¶14] Searches by law enforcement require a different review under Article 1, Section 11 of the Indiana Constitution:

Conformity of a search to the Indiana Constitution turns on an evaluation of the "reasonableness" of the conduit of the law enforcement officers, not on the expectation of privacy commonly associated with Fourth Amendment analysis. Relevant considerations in evaluating reasonableness of a search under all the circumstances include the degree to which the search or seizure disrupts the suspect's normal activities, and those facts and observations that support the officer's decision to initiate the search or seizure. . . . [T]he reasonableness of a search or seizure generally turns on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs.

Stark v. State, 960 N.E.2d 887, 892 (Ind.Ct.App. 2012) (internal citations omitted). With this analysis in mind, we find that the search of Cleveland's gold bag did not violate Article 1, Section 11 of the Indiana Constitution, and therefore, any evidence ...


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