ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE:
Anderson, Indiana Attorney General of Indiana
JOSEPH A. SAMRETA
Deputy Attorney General
ROBERT LARK, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-0011-CR-723 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Williams v. State, 745 N.E.2d 241, 244 (Ind. Ct. App. 2001) (citations omitted).
A law enforcement officer may stop a vehicle when the officer observes a minor traffic violation. Ransom v. State, 741 N.E.2d 419 (Ind. Ct. App. 2000), trans. denied. Ind. Code Ann. § 35-42-2-4 (West 1998) provides: (a) A person who recklessly, knowingly, or intentionally obstructs vehicular or pedestrian traffic commits obstruction of traffic, a Class B misdemeanor. (b) The offense described in subsection (a) is: (1) a Class A misdemeanor if the offense includes the use of a motor vehicle[.]
In the instant case, Officers Branson and Gremes saw Larks car parked in the middle of the road in such a way that traffic could not pass from either direction. In fact, Larks stopped car prevented the police car in which the officers were sitting, as well as a car coming from the opposite direction, from proceeding down the street. This action violated the statute set out above and thus constituted a minor traffic violation that would justify a traffic stop. See footnote Lark contends that the stop was not proper in part because the police officers did not stop his vehicle until he had driven several blocks from the scene of the infraction. We can find no authority for the proposition that police may execute a traffic stop only within a certain proximity to the scene of the violation, nor can we conceive of a rationale for creating such a rule. For purposes of the issue under consideration, it is of no significance that the stop was executed several blocks from the scene of the infraction.
After executing a valid traffic stop, the officers encountered the obvious odor of marijuana emanating from Larks car as they approached the vehicle. In Kenner v. State, 703 N.E.2d 1122, we held that a police officer's suspicion of illegal activity that was aroused by the detection of the odor of marijuana provided a reasonable suspicion that the vehicle contained narcotics, thus permitting a search of the vehicle after the completion of the traffic stop. See also D.K. v. State, 736 N.E.2d 758 (Ind. Ct. App. 2000). That principle applies with equal force in the instant case.
In summary, the officers were justified in stopping Larks vehicle because they observed him commit a traffic violation. The odor of marijuana emanating from Larks vehicle was sufficient to permit Officer Branson to form a reasonable suspicion that illegal activity had occurred or was about to occur. This was sufficient to justify the ensuing search and seizure. Accordingly, the trial court did not err in denying Larks motion to suppress and permitting the State to introduce the evidence in question.
SULLIVAN, J., concurs in result with opinion.
RILEY, J., dissents with opinion.
SULLIVAN, Judge, concurring in result
The facts, as stated in the lead opinion by Judge Friedlander, are those most favorable to the convictions. Such is not inappropriate given our standard of review with regard to a denial of a motion to suppress. Goodner v. State, 714 N.E.2d 638 (Ind. 1999). Certain facts, however, not stated here, would permit a reasonable conclusion that the traffic stop was pretextual in nature.
It is uncontroverted that Larks vehicle was stopped in the traveled portion of the street in order to allow William Davis, his passenger, to exit the vehicle. Lark was transporting Davis so that the latter could pick up his truck which had been parked on the street. It was necessary for the vehicle to briefly stop in the street because bumper-to-bumper parking was being temporarily permitted on both sides of the relatively narrow street during the Black Expo celebration. Ordinarily parking was permitted only on one side of the street. The location was in close proximity to a bar in front of which there were numerous persons congregated. Traffic could pass in opposite directions but only if each vehicle moved as far to the right as possible near parked vehicles. Larks vehicle was stopped only momentarily for approximately fifteen seconds. When the police car pulled behind Larks vehicle it was blocking an oncoming car. The police decision to make a stop and issue a warning to Lark was delayed until Larks car was away from the congested area in front of the bar. During this entire incident up until the traffic stop itself, there was nothing sinister or suspicious in the movements and activities of Davis or Lark other than the momentary blockage of traffic.
Be that as it may, Larks vehicle was indeed blocking traffic even if but for a moment. The fact that the officers waited and followed Lark for four blocks before making the stop does not eliminate the fact that the Class B misdemeanor had already taken place. Accordingly, the traffic stop was not unconstitutional, even though the officers stated that they only intended to issue a warning rather than a traffic citation for the violation. That a traffic citation could have been issued is sufficient to defeat Larks constitutional argument.
For the reasons stated, I concur in affirming the convictions.
COURT OF APPEALS OF INDIANA
RILEY, Judge, dissenting
I respectfully dissent. The Anderson police officers initial stop of Larks vehicle was not supported by a reasonable suspicion in violation of Article I, Section 11 of the Indiana Constitution. Specifically, the evidence leading to his eventual apprehension and arrest flowed from an illegal traffic stop.
Here, the trial court denied Larks motion to suppress on the basis that there was a reasonable articulable basis for the officer to believe that Lark had stopped his vehicle and blocked traffic, which served a legitimate basis for the officers to make an investigatory stop of his vehicle. Because the police officers only observed Larks vehicle stop for ten to fifteen seconds and Lark was not committing a crime there was no evidence to support a reasonable belief that criminal activity was about to occur. The police officers did not have a reasonable articulable suspicion to stop Larks vehicle, and therefore, violated Article I, Section 11 of the Indiana Constitution.
Indiana has adopted the Terry See footnote rationale in determining the legality of investigatory stops under Article I, Section 11 of the Indiana Constitution. Wilson v. State, 670 N.E.2d 27, 29 (Ind. Ct. App. 1996). The reasonable suspicion requirement is satisfied when 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 has or is about to occur. Id.
At the suppression hearing, the arresting officers testified that at approximately 2:00 a.m., when they turned the corner onto Cedar Street in their police car, they saw: a car parked in the street in front of a nightclub; a man standing outside the car, leaning into the car, cars parked on both sides of the street; and a car traveling towards them in the opposite direction. However, the police officers further testified that they observed the car parked in the street for approximately ten or fifteen seconds. Moreover, the record reveals that the police officers did not stop Larks vehicle until he turned from Cedar Street and had drive four blocks from the place where the police officers had observed his vehicle stopped for ten to fifteen seconds. Finally, the police officers testified that when they stopped Larks vehicle, their intention was not to give Lark a citation for obstructing traffic, but instead, to warn Lark not to obstruct traffic. Therefore, I am not persuaded by the majoritys holding that the police officers were justified in stopping Larks vehicle because he had committed a traffic violation. In fact, Lark never received a citation for obstructing traffic. The police officers testified that their intention was to merely give Lark a warning not to obstruct traffic.
Therefore, based upon the facts of this case, I cannot agree that the police officers had a reasonable articulable basis to stop Larks vehicle and there was no evidence to support a reasonable belief that criminal activity was about to occur.
I would reverse the trial courts denial of Larks motion to suppress.