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
Darnell Cleveland appeals his convictions for Class A
Misdemeanor Carrying a Handgun Without a
License and Class A Misdemeanor Possession of
Marijuana,  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.
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.
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.
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.
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. 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 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.
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
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.
and Decision I. Search
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. 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.
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).
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).
Fourth Amendment to the United States Constitution
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.
Here, it is undisputed that the officers had the authority to
invoke the automobile exception to search the Ford Explorer
and its contents therein.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
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
1, Section 11 of the Indiana Constitution
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 ...