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Appeals panel affirms denial of drug suppression after vehicle search

June 26, 2018

A man arrested after police ordered him to exit his parked car when officers smelled burned marijuana could not convince the Indiana Court of Appeals that the evidence of drug possession should be suppressed at his criminal trial.

The COA on Tuesday affirmed the Marion Superior Court’s denial of a motion to suppress on interlocutory appeal in Marcus K. Baxter v. State of Indiana, 49A04-1707-CR-1608. 

Marcus Baxter was charged with Level 6 felony possession of a narcotic drug and Class A misdemeanor possession of marijuana after police ordered him to exit the driver’s seat of a car parked in an Indianapolis car wash parking lot. Police had been dispatched to the scene after a car wash employee called to report suspicious men on the premises who were not patronizing the business and who appeared to be evading security cameras. Police talked with two Hispanic men who were released and who left after checks for warrants were negative.

A black male who had been talking with the men had come from the vicinity of Baxter’s Chevrolet with dark-tinted windows, and as police approached that vehicle, the smell of marijuana from an open window caused them to command Baxter to exit. After first refusing, Baxter opened the door, and police saw marijuana in plastic baggies and a number of white pills inside the car.

Baxter moved to suppress the evidence, claiming the stop and his detention were without probable cause or reasonable suspicion, in violation of the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. The trial court denied the motion, and the COA affirmed Tuesday.

“Baxter contends that the degree of concern was almost non-existent given that the original 911 caller did not describe criminal activity and the police did not observe any and that the extent of law enforcement needs was minimal in light of the alleged suspicious activity. Baxter also contends that the degree of intrusion was significant because he was blocked in while police conducted the illegal detention to check for warrants, and asserts, again without citation to the record, that one of the three detained individuals was a passenger from his car,” Judge Cale Bradford wrote for the panel.

But the COA concluded a reasonable person in Baxter’s position would have felt free to leave the scene or approach an officer to ask him to move his vehicle if he felt he could not back out of the space.

Officers also had a strong need to protect themselves, as they could not determine how many people were in the car due to the tinted windows.  

“Reaching the driver’s window which was open to a degree, (an officer) forcibly commanded Baxter to exit after he had already smelled burnt marijuana, received no response, and became concerned for his safety. Under these circumstances, we conclude that Baxter’s rights against unreasonable search and seizure under Article 1, Section 11 of the Indiana Constitution were not violated and the trial court did not err in denying Baxter’s motion to suppress,” the court held.

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