COA affirms admission of marijuana found in warrantless search

August 17, 2017

A northern Indiana trial court did not abuse its discretion in admitting as evidence marijuana found pursuant to a warrantless search because the defendant in the case validly consented to the search, the Indiana Court of Appeals has ruled.

In Earl D. Hammond v. State of Indiana, 20A03-1612-CR-2948, Elkhart County Sheriff’s Department officer Michael Wass and detective Jeremy Stout were driving in Elkhart when they observed a car in front of them cross the double yellow lines multiple times. The officers initiated a traffic stop and observed that the driver, later identified as Chevrolet Schrader, had bloodshot and glassy eyes, as well as lethargic speech and movements. The officers also observed the odor of marijuana and alcohol in the car.

After he was asked to step out of the car, Schrader failed a field sobriety test and admitted to smoking marijuana a few hours earlier, along with his father and uncle, Earl Hammond, who were passengers. Stout then approached Hammond, who rolled down his window, releasing “the strong odor of burnt marijuana … from the vehicle.”

Hammond told the officers there was no marijuana in the car, and when Stout asked if he could search his pockets, Hammond said “If you want to.” Stout then asked if Hammond had any weapons, and he said he had marijuana in his front left pocket. Hammond was then handcuffed and Stout found the bag of marijuana.

After reading Hammond his Miranda rights, the officers searched Schrader’s car and found various drug paraphernalia and a burnt marijuana cigarette. Hammond was subsequently charged with Class B misdemeanor possession of marijuana, but he filed a pretrial motion to suppress, arguing Stout’s search was unconstitutional under the state and federal constitutions.

Specifically, Hammond argued he was in police custody when Stout asked to search him, so he should have been advised of his right to an attorney under Pirtle v. State, 323 N.E.2d 634 (Ind. 1975). Without that advisement, his consent to the search was invalid, Hammond said.

The Elkhart Superior Court disagreed and denied the motion to suppress, so the state offered the marijuana into evidence over Hammond’s objection at trial. A jury then found him guilty as charged, leading to Hammond’s appeal, where he revived his Pirtle argument.

The Indiana Court of Appeals also disagreed with Hammond on the issue of his Pirtle rights, with Judge Rudolph Pyle writing in a Thursday opinion that Stout did not use any persuasive or coercive techniques to imply that Hammond was under arrest or not free to go at the time he requested to search him. Further, Hammond had not yet been advised of his Miranda rights at the time Stout asked to search him, and Hammond was not handcuffed or otherwise restrained at the time the search was requested.

“In light of these factors, we do not find that Hammond was in custody when Detective Stout requested his consent to search him,” Pyle wrote. “Because he was not in custody, he validly gave his consent to the search without a Pirtle advisement, and the warrantless search was constitutional. Thus, the trial court did not abuse its discretion when it admitted the marijuana seized pursuant to the search.”


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