ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID W. HICKMAN JEFFREY A. MODISETT
W. GREGORY COY Attorney General of Indiana
TIMOTHY W. BEAM
Deputy Attorney General
CHRISTOPHER SEBASTIAN, ) ) Appellant-Defendant, ) ) vs. ) No. 78A04-9910-CR-444 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Record at 17-18. After conducting a hearing, the trial court denied the
motion to suppress in an order which stated in pertinent part:
The Court hears evidence and finds:
1. Police Officers noticed a vehicle driven by Defendant driving left of center on
2. The officers stopped the vehicle;
3. The police officers smelled marijuana when the windows of the vehicle were opened;
4. The police officers had probable cause to believe that marijuana was in the
5. The Motion to Suppress Evidence should be denied.
IT IS NOW ORDERED AND ADJUDGED by the Court that the Motion to
Suppress Evidence filed by Defendant is denied.
Record at 20. The trial court entered an order certifying this case
for interlocutory appeal. This court accepted jurisdiction of this appeal pursuant to
Ind. Appellate Rule 4(B)(6).
We review the denial of a motion to suppress in a manner similar to other sufficiency matters. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial courts ruling. 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.
Overstreet v. State, No. 55A01-9904-CR-110 (Ind. Ct. App. February 29, 2000), slip op.
at 3 (citations omitted). When we evaluate the propriety of a warrantless
search under the Fourth Amendment, we accept the trial courts factual findings unless
they are clearly erroneous. Burkett v. State, 691 N.E.2d 1241 (Ind. Ct.
App. 1998), trans. denied. Findings of fact are clearly erroneous where the
record lacks any facts or reasonable inferences to support them. Id.
However, the ultimate determination whether there is probable cause is reviewed de novo.
Sebastian argues in this appeal that the odor of marijuana did not create sufficient reasonable suspicion or probable cause to justify the search of his vehicle. He also argues that the pat-down frisk of his person was illegal. The State argues that the search of Sebastian was a proper search incident to an arrest and that the search of Sebastians automobile was proper pursuant to the automobile exception to the warrant requirement.
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.
Sebastian argues that the searches of his person and his automobile were not incident to an arrest because he was not under arrest at the time of either search. So long as probable cause exists to make an arrest, the fact that a suspect was not formally placed under arrest at the time of the search incident thereto will not invalidate the search. Santana v. State, 679 N.E.2d 1355, 1360 (Ind. Ct. App. 1997). In addition, a police officers subjective belief concerning whether he has probable cause to arrest a defendant has no legal effect. Stevens v. State, 701 N.E.2d 277 (Ind. Ct. App. 1998).
Probable cause to arrest exists where the officer has knowledge of facts and circumstances that would warrant a man of reasonable caution to believe that a suspect has committed the criminal act in question. Santana v. State, 679 N.E.2d 1355. Under the search-incident-to-arrest exception to the warrant requirement, a police officer may conduct a search of the defendants person and the area within his control. Stevens v. State, 701 N.E.2d 277. The search of a defendants automobile under this exception is valid even when the automobile is no longer in the defendants area of control. Id. In addition, where there is probable cause to believe an automobile contains the fruit or instrumentality of a crime, the inherent mobility of the automobile justifies a warrantless search. Kenner v. State, 703 N.E.2d 1122, 1125 (Ind. Ct. App. 1999), trans. denied.
In Shinault v. State, 668 N.E.2d 274 (Ind. Ct. App. 1996), the defendant was charged with possession of marijuana. He filed a motion to suppress evidence, claiming that the pat-down search conducted by a police officer and the subsequent seizure of marijuana exceeded the scope of a valid investigatory stop. This court ultimately did not reach the issue whether there was probable cause to arrest the defendant because that case involved only a limited pat-down search. Nonetheless, this court stated: because [the police officer] detected the strong odor of marijuana coming from Shinaults person, there is also the possibility that probable cause then arose to justify an arrest and a full search incident thereto. Id. at 278 n.5.
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. People v. Kazmierczak, 605 N.W.2d 667 (Mich. 2000) (probable cause to search a vehicle may exist when the odor of marijuana is the only factor indicating the presence of contraband); State v. Secrist, 589 N.W.2d 387 (Wis. 1999), cert. denied 119 S.Ct. 1799 (where the unmistakable odor of marijuana emanating from an automobile may be linked to a specific person or persons, such odor may provide probable cause to arrest and to conduct a warrantless search of the defendants automobile); 2 Wayne R. LaFave, Search and Seizure § 3.6(b) (1996). See also Kenner v. State, 703 N.E.2d 1122 (noting a number of jurisdictions where the odor of marijuana alone can provide the basis for probable cause to search a vehicle); Brunson v. State, 940 S.W.2d 440 (Ark. 1997), cert. denied 522 U.S. 898 (probable cause existed to arrest and search occupants of a validly stopped vehicle where police officers approaching the vehicle detected the odor of marijuana); People v. Stout, 477 N.E.2d 498 (Ill. 1985) (the odor of burning cannabis emanating from a vehicle may provide probable cause to conduct a warrantless search).
Here, the police officers stopped Sebastians vehicle because he was driving erratically. When the officers approached the vehicle, they smelled the distinctive odor of burnt marijuana emanating from the passenger compartment. These facts and circumstances would have warranted a man of reasonable caution to believe that Sebastian had committed a criminal act and provided probable cause for his arrest. Because there was probable cause to arrest, the pat-down search of Sebastians person and the search of his vehicle were therefore proper. The trial court properly denied Sebastians motion to suppress.
GARRARD, Sr.J., and DARDEN, J., concur.