M.R., Appellant-Defendant, v. STATE OF INDIANA (2002)

MEMORANDUM DECISION - NOT FOR PUBLICATION

M.R. appeals the trial court's denial of his motion to suppress.¹ He raises four issues, which we consolidate and restate as whether the trial court abused its discretion by denying his motion to suppress. We affirm.

The facts most favorable to the trial court's denial of the motion to suppress and the uncontested facts favorable to M.R. follow. On January 17, 2001, M.R. and his wife, Karen Roller, were driving on State Road 35 in Starke County at approximately 9:00 p.m. Indiana State Police Trooper Greg Biggers was patrolling on State Road 35 and observed that Karen failed to dim her headlights. Trooper Biggers turned his patrol car around, activated his emergency lights, and pulled the M.R.s' vehicle over. Trooper Biggers informed Karen that he pulled her over for failure to use dim headlights for a passing vehicle.

While talking to Karen, Trooper Biggers noticed the smell of burnt marijuana coming from the car. Trooper Biggers asked if anyone had been smoking marijuana in the car, which M.R. and Karen denied. Trooper Biggers then told M.R. a couple of times that if M.R. was honest with him, Trooper Biggers would do everything he could to “work with” M.R. Transcript at 7. M.R. told Trooper Biggers that he had smoked marijuana earlier that evening and had some marijuana in his pocket. Trooper Biggers removed M.R. from the car. M.R. was handcuffed and searched, at which time Trooper Biggers found the marijuana in M.R.'s pocket. M.R. was then placed in Trooper Biggers's vehicle. During a search of the M.R.'s vehicle, other officers found a black bag containing marijuana under the passenger seat.

M.R. was charged with dealing in marijuana, a class D felony,² and possession of marijuana, a class D felony.³ M.R. filed a motion to suppress, which the trial court granted in part and denied in part.⁴ The trial court denied M.R.'s request to suppress M.R.'s admission to Trooper Biggers and the marijuana found in M.R.'s pocket and in the vehicle. Pursuant to M.R.'s request, the trial court certified the interlocutory order for appeal under Ind. Appellate Rule 14(B). We accepted jurisdiction on November 16, 2001.

The sole issue is whether the trial court abused its discretion by denying M.R.'s motion to suppress. We review the denial of a motion to suppress in a manner similar to other sufficiency matters. Taylor v. State, 689 N.E.2d 699, 702 (Ind. 1997). We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, we must also consider the uncontested evidence favorable to the defendant. Fair v. State, 627 N.E.2d 427, 434 (Ind. 1993).

M.R. concedes that Trooper Biggers was justified in making the initial traffic stop because of Karen's failure to dim the vehicle's headlights. Furthermore, M.R. concedes that the smell of marijuana will satisfy the reasonable suspicion requirement to justify an investigatory stop. See, e.g., Kenner v. State, 703 N.E.2d 1122, 1127 (Ind. Ct. App. 1999) (holding that “an officer's detection of the smell of marijuana, together with the reasonable inferences arising therefrom, would permit an ordinary prudent person to believe that criminal activity has or was about to occur”), reh'g denied, trans. denied. M.R. argues that his statement to Trooper Biggers that he had marijuana in his pocket and had smoked marijuana earlier was improperly obtained and, absent such statement, probable cause to arrest M.R. and search the vehicle did not exist. Thus, M.R. argues that his Fourth Amendment rights were violated.⁵

The State first argues that the smell of marijuana alone established probable cause to search the M.R.s' vehicle. Until recently, we have stopped short of deciding whether the smell of marijuana alone is sufficient to establish probable cause for an arrest or a search. See, e.g., Sebastian v. State, 726 N.E.2d 827, 830 (Ind. Ct. App. 2000) (“Even though Indiana has not heretofore expressly determined that the smell of marijuana alone may constitute probable cause for arrest or to search, the majority of courts in other jurisdictions that have considered the issue have so found.”), trans. denied; Kenner, 703 N.E.2d at 1127 (“We reserve for another day the resolution of whether in Indiana the odor of marijuana standing alone constitutes probable cause justifying a search.”). However, we recently held that “when a trained and experienced police officer detects the strong and distinctive odor of burnt marijuana coming from a vehicle, the officer has probable cause to search the vehicle.” State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. pending. Thus, when Trooper Biggers noticed the smell of burnt marijuana coming from the M.R.s' car, Trooper Biggers obtained probable cause and was permitted to search the vehicle and lawfully arrest M.R. See, e.g., id.

Moreover, even assuming arguendo that the smell of marijuana alone did not establish probable cause, M.R.'s statement that he had marijuana in his pocket and had smoked the marijuana earlier was not improperly obtained and, thus, provided probable cause to arrest M.R. M.R. contends that his statement that he had marijuana in his pocket and had smoked marijuana in the vehicle earlier was obtained in violation of his Miranda rights. M.R. specifically takes issue with Trooper Biggers asking if M.R. had marijuana in the car and Trooper Biggers stating that if M.R. was honest with him, he would “work with” M.R. Transcript at 7. M.R. contends that Trooper Biggers's comments were reasonably likely to elicit an incriminating response and, thus, M.R.'s response was improperly obtained.⁶

Miranda warnings are based upon the Self-Incrimination Clause of the Fifth Amendment and were designed to protect an individual from being compelled to testify against himself. State v. Linck, 708 N.E.2d 60, 62 (Ind. Ct. App. 1999), trans. denied. However, a defendant is entitled to receive Miranda warnings only if he is subject to a custodial interrogation. Hurt v. State, 694 N.E.2d 1212, 1217 (Ind. Ct. App. 1998), trans. denied, cert. denied, 525 U.S. 1008, 119 S. Ct. 525 (1998). Interrogation “includes both express questioning and words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Linck, 708 N.E.2d at 62. A defendant is in custody if he is formally arrested or is subjected to restraints on his freedom such that a reasonable person in the defendant's position would believe he is not free to leave. Hurt, 694 N.E.2d at 1217. The State argues that M.R. was “neither under arrest nor in custody” at the time that he made the admission to Trooper Biggers. Thus, according to the State, M.R. was not entitled to Miranda protections. We agree.

We addressed an issue similar to that raised by M.R. in Linck, 708 N.E.2d at 62-63. In Linck, police officers were dispatched to investigate a report of illegal drug use at the defendant's apartment. Id. at 61. The officers informed the defendant that they smelled burnt marijuana and asked “what the problem was.” Id. The defendant responded that he had “just smoked a joint.” Id. We held that the officer's question amounted to an interrogation because the question was reasonably likely to elicit an incriminating response. Id. at 63. Furthermore, we held that the defendant was in custody for purposes of Miranda after he admitted smoking the marijuana. Id. However, the defendant was “not in custody, and therefore was not subject to custodial interrogation, until after he admitted smoking the joint.” Id. at 63, n.2. Therefore, we held that his initial admission should not have been suppressed. Id.

Similarly, M.R. was not in custody until after he admitted having marijuana in his pocket and smoking marijuana earlier in the evening. Thus, he was not entitled to the protections of Miranda at that time. See id. The trial court did not err by denying the motion to suppress M.R.'s initial admission to Trooper Biggers.

If the smell of burnt marijuana alone was insufficient to establish probable cause for M.R.'s arrest, the addition of M.R.'s admission regarding smoking marijuana and possessing marijuana in his pocket provides probable cause for his arrest. “Probable cause for arrest exists where at the time of arrest the officer has knowledge of facts and circumstances which warrant a man of reasonable caution to believe a suspect has committed the criminal act in question.” Santana v. State, 679 N.E.2d 1355, 1359-1360 (Ind. Ct. App. 1997). The smell of burnt marijuana, coupled with M.R.'s admissions that he had smoked marijuana earlier and that he had marijuana in his pocket, certainly provided Trooper Biggers with knowledge that warranted him to believe that M.R. had committed a criminal act. See, e.g., Sebastian, 726 N.E.2d at 830 (“We hold that based upon the totality of the facts and circumstances surrounding this case, including the smell of marijuana emanating from the stopped vehicle and the legal pat-down frisk of Sebastian, the officer had probable cause to arrest Sebastian and the search of his vehicle was proper.”). Thus, M.R.'s arrest was lawful.

We now turn to a discussion of the marijuana found in M.R.'s pocket and in the vehicle. An exception to the requirement of a judicially issued search warrant is a search incident to an arrest. Hollowell v. State, 753 N.E.2d 612, 615 (Ind. 2001). Under this exception, “the arresting officer may conduct a warrantless search of the arrestee's person.” Id. Thus, once Trooper Biggers placed M.R. under arrest, he was permitted to search M.R.'s person pursuant to the lawful arrest. See, e.g., id. at 614-615. As such, the trial court did not err by denying M.R.'s motion to suppress the marijuana found in his pocket.

Additionally, under the search incident to arrest exception, “when officers arrest a defendant who is in an automobile, they are permitted to search the entire passenger compartment of the vehicle.” Id. (quoting New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981), reh'g denied). Such a search may include an examination of the contents of any containers found within the passenger compartment. Leitch v. State, 736 N.E.2d 1284, 1286 (Ind. Ct. App. 2000), reh'g denied, trans. denied. Thus, the police officers were entitled to search M.R.'s vehicle pursuant to his lawful arrest. See, e.g., Hollowell, 753 N.E.2d 612, 614-615. The trial court did not err by denying M.R.'s motion to suppress the marijuana found in the vehicle.

For the foregoing reasons, we affirm the trial court's denial of M.R.'s motion to suppress.

Affirmed.

FOOTNOTES

1.   We direct M.R.'s attention to Ind. App. Rule 46(A)(10) which requires an appellant's brief to “include any written opinion, memorandum of decision or findings of fact and conclusions thereon relating to the issues raised on appeal.”

2.   Ind. Code § 35-48-4-10.

3.   Ind. Code § 35-48-4-11.

4.   After placing the handcuffed M.R. in the police car, Trooper Biggers asked M.R. if there was any more marijuana in the car. M.R. replied that a black bag under the passenger seat contained marijuana. The trial court suppressed the statement made by M.R. regarding the presence of more marijuana in the car after M.R. had been handcuffed because he had not yet been informed of his Miranda rights. The State does not appeal this decision.

5.   M.R. also argues that his rights under Article 1, § 11 of the Indiana Constitution were violated. However, because M.R. presents no authority or independent analysis discussing the separate standard under the Indiana Constitution, any state constitutional claim is waived. See, e.g., Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001), reh'g denied.

6.   M.R. also argues that “Biggers [sic] continued pressure on M.R. ‘to be honest with him,’ that if he was, Biggers could ‘help him out,’ can be likened to an officer seeking consent to search.” Appellant's Brief at 14. To the extent that M.R. is arguing that he did not give consent to search the vehicle, the State concedes that there is no basis for application of the consent exception to the warrant requirement in this case. On the other hand, to the extent that M.R. is attempting to analogize the voluntariness of M.R.'s statement to Trooper Biggers to the voluntariness of a consent to search a vehicle, M.R.'s contention is waived for failure to make a cogent argument. See, e.g., Young v. State, 746 N.E.2d 920, 923 n.1 (Ind. 2001) (holding that defendant's contention was waived for failure to present a cogent argument); see also Ind. Appellate Rule 46(A)(8)(a).

SHARPNACK, Judge

FRIEDLANDER, J., and BROOK, C. J. concur