The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 08 2017, 7:55 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer Curtis T. Hall, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marlon Jackson, August 8, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1701-CR-89
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jose D. Salinas,
Appellee-Plaintiff. Judge
The Honorable John M. Christ,
Commissioner
Trial Court Cause No.
49G14-1603-F6-10184
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Marlon Jackson (Jackson), appeals the trial court’s denial
of his motion to suppress certain evidence.
[2] We affirm.
ISSUES
[3] Jackson presents us with two issues in this interlocutory appeal, which we
restate as:
(1) Whether the trial court erred by denying his motion to suppress evidence
obtained in violation of his Fourth Amendment Rights under the United
States Constitution; and
(2) Whether the trial court erred by denying his motion to suppress evidence
obtained in violation of Article 1, Section 11 of the Indiana Constitution.
FACTS AND PROCEDURAL HISTORY
[4] On July 25, 2016, Jackson filed a motion to suppress, which the trial court set
for an evidentiary hearing on August 4, 2016. Prior to the hearing, the State
dismissed Jackson’s charge of possessing a narcotic drug, a Level 6 felony,
because Jackson presented a valid prescription. At the hearing, the parties
informed the trial court that Jackson had very recently discovered legal
authority which, according to Jackson, would prevent the State from
proceeding with Jackson’s remaining charge of possession of marijuana, a Class
B misdemeanor. Although Jackson had provided this case law to the State
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immediately prior to the hearing, the State requested time to review the case
and to decide whether to proceed. The trial court continued the suppression
hearing to September 1, 2016.
[5] A set of pretrial conferences was conducted respectively on September 1, 2016,
and September 15, 2016. During the latter pretrial conference, the parties
stipulated to the facts contained in the affidavit of probable cause filed by the
arresting officer, which read as follows:
On 3/13/2016 at approx. 1008 [sic] pm I, Officer Bryan M. Zotz
[Officer Zotz] with the IMPD, was sitting northbound on Drexel
Ave at 36th St. I observed a gray Cadillac driving backwards,
westbound on 36th St. I observed the vehicle stop at the stop sign
at 36th St., and then continue westbound on 36th St., driving
backwards. I activated my emergency lights and stopped that
vehicle westbound on 36th St. at Linwood Ave.
I approached the vehicle on the passenger side and observed the
driver, later identified as [Jackson], b/m, d.o.b. . . . take off his
ball cap and place it over the items in the floorboard tray in front
of the center console. Jackson was leaning hard to his right, and
kept repositioning the hat to cover the center tray. I asked
Jackson why he was driving down the street backwards. Jackson
stated that his car would not drive forward, and that he was
headed home to Rural Ave. I asked Jackson for his driver’s
license. Jackson started to look around his person and about the
vehicle. Jackson opened up the center console, and I was able to
observe a digital scale inside. Due to my training and experience
as a police officer, I know a digital scale to be commonly used to
weigh illegal narcotics.
Jackson verbally gave me his identifiers, and I moved to the rear
of the vehicle to have IMPD Control run the IN temporary
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license plate of G242370. As I did so, I observed Jackson and his
front seat passenger start reaching around the floor board tray
area. I then ran both individuals through IMPD
Communications and requested backup.
After Officer Chad Gibbson, A366, had arrived on the scene, I
had Jackson step from the vehicle. When Jackson stepped from
the vehicle, I would smell the odor of raw marijuana coming off
of his person. I moved Jackson to the rear of the vehicle,
performed a pat down of his outer clothing, and had him sit on
the ground. I then performed a search of the driver’s
compartment of the vehicle. I recovered the digital scale from
the center console. I also observed small amounts of marijuana
shake and seeds on the floorboard of the vehicle.
I then went back to Jackson to perform a search of his person. I
asked Jackson if he had any marijuana on his person. He stated
he did, and that it was in his pocket I then searched Jackson, and
found inside his right front pant pocket, a clear bag containing a
green leafy substance that, due to my training and experience as a
police officer, I believed to be marijuana. [Jackson] was arrested
for [p]ossession of marijuana, . . . ., and [p]ossession of
[p]araphernalia, . . .
Jackson was transported to the APC by MCSO. Deputy
Patterson 30679, advised me that when Jackson was received in
the APC, Deputy Ladd, 31153, located a white pill suspected to
be hydrocodone inside the right front undershorts pocket of
Jackson. Deputy Patterson then collected and transported the
white pill back to me. I then transported the pill, suspected
marijuana, and digital scale to the IMPD property room, placed
the items in a heat seal envelope, and into the narcotics box.
Jackson was also arrested for [p]ossession of a [c]ontrolled
[s]ubstance, . . . Vehicle was transported by Auto Return.
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All events occurred in Marion Co., State of IN.
The suspected substance(s) were tested in the IMPD Property
room. The results were as follows: Marijuana 8.49 grams.
(Appellant’s App. Vol. II, pp. 11-12).
[6] On October 6, 2016, the State submitted a memorandum in opposition to
Jackson’s motion to suppress. Jackson’s memorandum in response was
submitted on October 21, 2016. During a hearing on November 3, 2016, the
trial court denied Jackson’s motion to suppress. The trial court granted Jackson
leave to file an interlocutory appeal, which we accepted on February 3, 2017.
[7] Jackson now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Jackson contends that the trial court erred by denying his motion to suppress as
certain evidence was obtained in violation of his Fourth Amendment Rights
under the United States Constitution and Article 1, Section 11 of the Indiana
Constitution.
[9] We review the denial of a motion to suppress in a manner similar to reviewing
the sufficiency of the evidence. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013).
We consider only the evidence favorable to the trial court’s ruling, alongside
substantial uncontradicted evidence to the contrary, to decide if that evidence is
sufficient to support the denial. Id. We review de novo a ruling on the
constitutionality of a search or seizure, but we give deference to a trial court’s
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determination of the facts, which will not be overturned unless clearly
erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).
I. Fourth Amendment
[10] The Fourth Amendment to the United States Constitution protects the privacy
and possessory interests of individuals by prohibiting unreasonable searches and
seizures. “The fundamental purpose of the Fourth Amendment ‘is to protect
the legitimate expectations of privacy that citizens possess in their persons, their
homes, and their belongings.’” Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct.
App. 2016) (quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).
This protection has been extended to the states through the Fourteenth
Amendment to the United States Constitution. Krise v. State, 746 N.E.2d 957,
961 (Ind. 2001). In general, the Fourth Amendment prohibits searches and
seizures conducted without a warrant that is supported by probable cause.
Mullen, 55 N.E.3d at 827. As a deterrent mechanism, evidence obtained
without a warrant is not admissible in a prosecution unless the search or seizure
falls into one of the well-delineated exceptions to the warrant requirements. Id.
“Where a search or seizure is conducted without a warrant, the State bears the
burden to prove that an exception to the warrant requirement existed at the
time of the search or seizure.” Brooks v. State, 934 N.E.2d 1234, 1240 (Ind. Ct.
App. 2010), trans. denied.
[11] One such exception was created in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968), pursuant to which an officer is permitted to “stop and
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briefly detain a person for investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal activity ‘may be afoot,’
even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7,
109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Reasonable suspicion entails some
minimal level of objective justification for making a stop, something more than
an un-particularized suspicion or hunch, but less than the level of suspicion for
probable cause. Polson v. State, 49 N.E.3d 186, 189-90 (Ind. Ct. App. 2015),
trans. denied. What constitutes reasonable suspicion is determined on a case-by-
case basis, and the totality of the circumstances is considered. Id. at 190. As a
result, the reasonable suspicion requirement is satisfied where the facts known
to the officer at the moment of the stop, together with the reasonable inferences
arising from such facts, would cause an ordinarily prudent person to believe
that criminal activity has occurred or is about to occur. Lyons v. State, 735
N.E.2d 1179, 1183-84 (Ind. Ct. App. 2000), trans. denied. In judging the
reasonableness of investigatory stops, courts must strike “a balance between the
public interest and the individual’s right to personal security free from arbitrary
interference by law [enforcement] officers.” Polson, 49 N.E.3d at 190. Indeed,
“there is no ‘bright line’ for evaluating whether an investigative detention is
unreasonable, and ‘common sense and ordinary human experience must govern
over right criteria.’” Reinhart v. State, 930 N.E.2d 42, 46 (quoting United States v.
Sharp, 470 U.S. 675, 685 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985)).
[12] Jackson now contends that Officer Zotz lacked reasonable suspicion to stop
him when the officer observed Jackson “driving backwards at around 10:00
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p.m., stop[ing] at a stop sign, and continu[ing] to drive backwards.”
(Appellant’s Br. p. 15). Analogizing to Ransom v. State, 741 N.E.2d 419 (Ind.
Ct. App. 2000), trans. denied, Jackson asserts that Officer Zotz did not have an
objectively justifiable reason for stopping him. In Ransom, Ransom was driving
his vehicle on a narrow Indianapolis street when he encountered an
approaching police vehicle. Id. at 420. Because of the narrowness of the road
and the presence of parked vehicles on both sides by the road, the two vehicles
could not both fit in the traveled portion of the road. Id. As the police officer
put his vehicle to the side of the road, Ransom put his vehicle in reverse and
backed around the corner. Id. The officer stopped Ransom’s vehicle for
“operating his vehicle in reverse.” Id. A subsequent search of the vehicle
revealed a handgun. Id. at 421. After the trial court denied Ransom’s motion
to suppress, we accepted his interlocutory appeal. On appeal, we reversed the
trial court, noting that as driving in reverse is an activity, that in and of itself, is
not unlawful, and as Ransom did not commit any traffic violation, the officer
lacked reasonable suspicion that justified the stop. Id. at 422.
[13] Although we recognize that our legislature does not prohibit driving in reverse,
nor does it mandate driving forward as a custom, unlike in Ransom, the instant
“set of individually innocent facts, when observed in conjunction, [is] sufficient
to create reasonable suspicion of criminal activity.” Polson, 49 N.E.3d at 190.
At approximately 10:00 p.m., Officer Zotz was sitting northbound on Drexel
Ave at 36th St., where he observed a gray Cadillac driving backwards,
westbound on 36th St. The vehicle came to a stop at the stop sign at 36th St.,
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and then continued westbound on 36th St., driving backwards. Distinguished
from the obstacles and narrow street in Ransom, Jackson drove backwards
unrestrained and over a considerable distance. “Common sense and ordinary
human experience” would qualify this as a most unusual and suspicious
situation. Reinhart, 930 N.E.2d at 46. Therefore, these facts, together with the
reasonable inferences arising from such facts, would cause an ordinary prudent
person to believe criminal activity may be afoot. We conclude that Officer Zotz
was justified in stopping Jackson for investigatory purposes. 1
II. Article I, Section 11
[14] Jackson also argues that the trial court erred in denying his motion to suppress
under Article 1, Section 11 of the Indiana Constitution. Article 1, Section 11 of
the Indiana Constitution is identical to the Fourth Amendment, but is analyzed
differently. Croom v. State, 996 N.E.2d 436, 442 (Ind. Ct. App. 2013), reh’g
denied, trans. denied. The Indiana Constitutional analysis focuses on the
reasonableness of the police conduct under the totality of the circumstances.
Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). We determine
1
We acknowledge that the State also asserted Officer Zotz’ Terry stop was justified based on several traffic
infractions about the required illumination for vehicles. It argued that Jackson’s vehicle violated the
headlamp statute by not having headlamps illuminating the area ahead of his vehicle because he was driving
in reverse. See I.C. §§ 9-19-6-6; -17(b); -24(b). Second, the State claimed that Jackson violated the tail lamp
and stop lamp statutes by not having tail lamps emitting red light visible from the rear of the vehicle and by
not having stop lamps emitting red to amber light visible from the rear of the vehicle because he was driving
in reverse. See I.C. §§ 9-19-6-6; -17(b); -24(b). Third, the State claimed that because Jackson was driving
backward, it is likely his tail lamps were illuminated, displaying a red light in the direction of his travel. See
I.C §§ 9-19-6-6; -17(b); -24(b). Nevertheless, the stipulated facts are silent as to the vehicle’s lamp location,
number, color, operation, or other modifications or additions. Accordingly, the State’s arguments amount to
nothing more than mere speculation.
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reasonableness under the Indiana Constitution by balancing “1) the degree of
concern, suspicion, or knowledge that a violation has occurred, 2) the degree of
intrusion the method of search or seizure impose on the citizen’s ordinary
activities, and 3) the extent of law enforcement needs.” Id. at 361. The State
carries the burden of proving that the search was reasonable under the totality
of the circumstances. Croom, 996 N.E.2d at 442.
[15] A brief investigatory stop may be justified by reasonable suspicion that the
person detained is involved in criminal activity. Id. See also State v. Renzulli, 958
N.E.2d 1143, 1146 (Ind. 2011). Such suspicion “exists where the facts known
to the officer, together with the reasonable inferences arising from such facts,
would cause an ordinarily prudent person to believe that criminal activity is or
is about to occur.” Id.
[16] Office Zotz’ stop was reasonable under the Indiana Constitution. Driving a car
backwards for an extended distance in the late evening created a reasonable
degree of concern that something criminal was occurring. Officer Zotz’ brief
stop of Jackson’s vehicle to investigate why Jackson was driving backwards
imposed a minimal degree of intrusion. Thirdly, the need of law enforcement
to stop and conduct an investigation was reasonable. The only way to
determine the reason for Jackson’s driving style and to dispel Officer Zotz’
concern was to ask Jackson directly. Although the evidence is silent as to any
other vehicles on the road at that time of the evening, Jackson’s driving
backwards created a safety hazard for the public. Balancing the reasonable
degree of concern, the minimal intrusion, and the need of law enforcement, we
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conclude that Officer Zotz had reasonable suspicion under Article 1, Section 11
of the Indiana Constitution. Therefore, we affirm the trial court’s denial of
Jackson’s motion to suppress.
CONCLUSION
[17] Based on the foregoing, we conclude that the trial court properly denied
Jackson’s motion to suppress.
[18] Affirmed.
[19] Najam, J. and Bradford, J. concur
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