Marquen Coker v. State of Indiana

On April 6, 2015, Coker was driving his mother’s car on Suttenfield Street in

Fort Wayne when he pulled in front of Officer Gary Hensler’s marked squad

car. Officer Hensler followed Coker for approximately one block before Coker

stopped at his brother’s house. Officer Hensler circled the block because he

believed Coker’s behavior of exiting his car quickly and standing in the front

yard of a house was odd. Officer Hensler watched Coker from a distance and

followed Coker when he returned to his car approximately five minutes later.

Officer Hensler then observed Coker use an alley as a throughway, in violation

of a city ordinance. Coker stopped his car in the parking lot of a barber shop

and got out of the car just as Officer Hensler pulled up behind Coker’s car and

activated his emergency lights. Officer Hensler observed that Coker got out of

the car quickly and that Coker looked nervous, fearful, and sweaty.

[4] The area in which Coker was located was a high-crime area, with a high

incidence of gun use and drug activity. Because of this fact and Coker’s

behavior, Officer Hensler instructed Coker to stop, and Coker immediately did

so. Officer Hensler approached Coker, detained him, handcuffed his hands

behind his back, and then conducted a pat down of Coker “for officer safety.”

Tr. at 10. Three or four people came out of the barber shop toward which

Coker had been walking when he was stopped. Another officer, Officer Taylor,

arrived at the scene while Officer Hensler had Coker detained.

[5] During his pat down of Coker, Officer Hensler felt what he believed from his

past experience as a police officer to be two pill bottles in Coker’s pants pocket.

Officer Hensler removed the pill bottles and observed a green, leafy substance in

a transparent, amber-colored pill bottle. Officer Hensler then opened the other

bottle, which was opaque, and discovered marijuana in it. Officer Hensler then

smelled the odor of marijuana coming from the car Coker had been driving. He

then handed over custody of Coker to Officer Taylor, who placed Coker in the

back seat of his squad car while Officer Hensler conducted a search of the

interior of Coker’s car. Officer Hensler found a handgun under the driver’s seat

of the car. Officer Hensler took photographs of the gun, read Coker his Miranda

rights, and asked Coker questions. Coker stated at this point that the car was



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his mother’s car, the gun belonged to his friend, and Coker needed the gun for

protection.

[6] On April 7, 2015, the State charged Coker with carrying a handgun without a

license, as a Class A misdemeanor, and possession of marijuana, as a Class B

misdemeanor. On May 12, 2015, Coker filed a motion to suppress both the

marijuana and the gun on the theory that they had been obtained pursuant to

an unconstitutional search and seizure. Coker waived his right to a jury trial

and, on June 2, 2015, the trial court heard evidence on the motion to suppress

and the criminal charges.

[7] At the bench trial, Officer Hensler testified as the sole witness for the State. The

trial court denied the motion to suppress and proceeded on the criminal

charges. The State admitted into evidence, over Coker’s objections, the pill

bottles and marijuana found on Coker’s person and the handgun found in the

car Coker was driving. The court found Coker guilty on both charges and

sentenced him to an aggregate term of 180 days of home detention. This appeal

ensued.

Discussion and Decision

Issue One: Fourth Amendment and Article 1, Section 11 claims

Standard of Review

[8] Coker argues on appeal that Officer Hensler’s seizure and search of Coker and

the car he drove violated his rights under both the Fourth Amendment to the



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United States Constitution and Article 1, Section 11 of the Indiana

Constitution. He originally challenged the admission of the marijuana and

handgun in a motion to suppress. However, rather than taking an interlocutory

appeal on the denial of his motion, he proceeded to a complete bench trial.

“Thus, the issue is ... appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial.” Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). Our standard of review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pretrial motion to suppress or by trial objection. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind. Ct. App. 2002), trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied. However, we must also consider the uncontested evidence favorable to the defendant. Id. In this sense, the standard of review differs from the typical sufficiency of the evidence case where only evidence favorable to the verdict is considered. Fair v. State, 627 N.E.2d 427, 434 (Ind. 1993).

Widduck v. State, 861 N.E.2d 1267, 1269 (Ind. Ct. App. 2007).

Search and Seizure of Coker

[9] Coker first challenges the constitutionality of Officer Hensler’s seizure and

search of Coker’s person;1 these actions, he claims, went beyond a mere traffic



1 Coker does not challenge Officer Hensler’s initial traffic stop, nor should he. Under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution, “[i]t is well settled that a police officer may stop a vehicle when he observes a minor traffic violation.” Kroft v. State, 992 N.E.2d 818, 821 (Ind. Ct. App. 2013). Here, it is undisputed that Officer Hensler pulled Coker over for using an alley as a throughway,



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stop and, instead, constituted an arrest2 and search incident to arrest without

probable cause. Both federal and state constitutional provisions prohibit a

search without a warrant unless certain narrow exceptions apply. State v.

Cunningham, 26 N.E.3d 21, 25 (Ind. 2015). One such exception is a search

incident to a valid arrest.3 Id.

[10] However, a Fourth Amendment claim is analyzed differently than a claim

under Article 1, Section 11 of the Indiana Constitution. Under the Fourth

Amendment, if a search is conducted without a warrant, the State bears the

burden of proving an exception to the warrant requirement. See, e.g., Swanson v.

State, 730 N.E.2d 205, 208 (Ind. Ct. App. 2000), trans. denied. An officer may

briefly detain an individual without a warrant or probable cause if the officer

observes unusual conduct that leads him to conclude, in light of his experience,

that criminal activity is afoot. Id. at 209 (citing Terry v. Ohio, 392 U.S. 1 (1968)).

However, reasonable suspicion must be based upon specific and articulable

facts, not mere hunches. Id. Under Article 1, Section 11 of the Indiana



in violation of a local ordinance. Such a traffic stop without a warrant is constitutional, provided it is for a short period of time. Id. 2 By handcuffing Coker, Officer Hensley effected an arrest. Although “‘there is no bright line for evaluating whether an investigative detention is unreasonable,’ Mitchell v. State, 745 N.E.2d 775, 782 (Ind. 2001), . . . [o]ur supreme court has held that an arrest occurs ‘when a police officer interrupts the freedom of the accused and restricts his liberty of movement.’ Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996).” Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010). Such was clearly the case here, and neither party argues otherwise.

3 “A search incident to arrest serves important purposes, such as ensuring that the arrestee is unarmed, preventing the arrestee from bringing contraband into jail, and preventing the destruction of evidence.” Edmond v. State, 951 N.E.2d 585, 592 (Ind. Ct. App. 2011).



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Constitution, the State must show that, in the totality of the circumstances of a

detention, the police behavior was reasonable. Id. This analysis is similar to

that set forth in Terry; that is, reasonable suspicion will be found where the facts

known to the officer at the time of the stop and the reasonable inferences drawn

therefrom would cause an ordinarily prudent person to believe that criminal

activity has occurred or is about to occur. Davis v. State, 858 N.E.2d 168, 172

(Ind. Ct. App. 2006).

[11] The prerequisites for conducting a lawful pat-down due to officer safety

concerns are also well-settled. A police officer may conduct a pat-down search

for weapons if the officer reasonably believes, based on specific reasonable

inferences drawn from the facts in light of his experience, that the person is

armed and dangerous. Swanson, 730 N.E.2d at 210. A generalized concern of

officer safety, alone, will not support a lawful frisk. Id. As the Supreme Court

has stated:

The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, [the police officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

Sibron v. New York, 392 U.S. 40, 64 (1968) (citing Terry, 392 U.S. 1).



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[12] Here, the only reasonable suspicion of unlawful activity to have occurred at the

time of the search was a minor traffic violation. Such suspicion clearly justified

the initial stop of Coker, Kroft, 992 N.E.2d at 821. However, a routine traffic

stop “does not automatically justify a non-consensual pat-down without

reasonable suspicion that the subject may be armed and dangerous.”

Cunningham, 26 N.E.3d at 26 (citing Knowles, 525 U.S. at 117-118).

[13] Officer Hensler testified that the reasons he detained and searched Coker were

because of Coker’s nervous behavior and because they were in a high-crime and

high-drug area. However, these reasons do not support a warrantless search of

Coker. “[I]ndividuals who enter these ‘high drug areas’ do not lose their Fourth

Amendment protections; there must be something about the individual or the

situation which causes the officer to reasonably believe that a certain individual

carries a weapon.” Swanson, 730 N.E.2d at 211. Thus, this court held in

Swanson that the facts that the defendant had been detained in a high drug area

and had his hands in his pockets were “not sufficient to cause a reasonable

officer to fear for his safety” and conduct a pat-down. Id. Moreover,

“[b]ecause it is not at all unusual that a citizen may become nervous when

confronted by law enforcement officials, other evidence that a person may be

engaged in criminal activity must accompany nervousness before the

nervousness will evoke suspicion necessary to support detention.” State v.

Quirk, 842 N.E.2d 334, 341 (Ind. 2006). The facts that Coker looked nervous

and was in a high-crime and high-drug area do not support a reasonable

inference that would cause an ordinarily prudent person to believe that Coker



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had engaged in or was about to engage in criminal activity or that he was armed

and dangerous.

[14] However, the trial court found that Officer Hensler also detained and searched

Coker because he had smelled marijuana coming from Coker’s car. In its

decision on the motion to suppress, the trial court stated that “when the

Defendant did stop the car and the Officer approached . . . and I’m quoting

now from the Officer’s testimony, ‘As I was encountering the Defendant, I

noticed a strong odor of burned marijuana coming from the vehicle.’” 4 Tr. at

35. The trial court concluded that Officer Hensler’s testimony was that he

smelled the marijuana coming from the car before handcuffing and searching

Coker, and, based on that conclusion, the trial court denied the motion to

suppress.

[15] But the record shows that the trial court’s conclusion was erroneous because it

took Officer Hensler’s statement out of the context and order of his testimony.

During the State’s direct examination, Officer Hensler testified that, upon

pulling his car up behind Coker’s car in the barbershop parking lot, Coker

exited his car quickly, and he appeared nervous, and they were in a high crime

area. The direct examination of Officer Hensler continued as follows:



4 The trial court misquoted Officer Hensler’s testimony; his actual testimony was as follows: “As I was encountering the Defendant, the door was still open to the vehicle and I smelled a strong odor of marijuana coming from inside the vehicle.” Tr. at 11.



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Q. What happened at that point in time, sir?

A. Because of the way he was acting and this area where I initially observed him, in this area now is a very high crime area of the city, with a lot of narcotics dealing and gun fire, shots fired, homicides are very high in this area. I approached him and I detained him at this point.

Id. at 9-10 (emphases added).

[16] After discussing the weather conditions at the time of the stop and the fact that

Coker was sweating when it was cold outside, the direct examination continued

as follows:

Q. So at that point in time, you said you detained the Defendant?

A. Yes.

Q. How did you proceed at that point, sir?

A. For officer safety[,] I handcuffed him.

Q. Okay, and what did you do next?

A. I patted him down for officer safety.

Id. at 10–11 (emphases added). The State then questioned Officer Hensler

about what he found in his pat-down of Coker. Officer Hensler testified that he



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found pill bottles with what appeared to be marijuana in them. The direct

examination continued as follows:

Q. Did you make any observations regarding the vehicle at that point in time?

A. As I was encountering the Defendant, the door was still open to the vehicle and I smelled a strong odor of marijuana coming from inside the vehicle.

Id. at 11 (emphases added). Officer Henlser then testified about his training and

experience with marijuana, and then the direct examination continued as

follows:

Q. How did you proceed at that point in time, Sir?

A. The Defendant was given over to Officer Taylor, and placed in the back of his squad car for being detained for this investigation, and at that point [I] conducted a Probable Cause search of the interior of the vehicle.

Q. And did you find anything at that point in time?

A. Underneath the driver’s seat, I located a handgun.

Id. at 12 (emphasis added).

[17] At no point did Officer Hensler state that he detained and patted-down Coker

because he had smelled marijuana emanating from Coker’s vehicle. To the

contrary, it is clear from Officer Hensler’s testimony that he handcuffed and



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patted down Coker before he smelled marijuana coming from the car. He

testified that he approached Corker and then he immediately detained, cuffed,

and searched him. The prosecutor then asked Officer Hensler if he made any

observations about the vehicle at that time, that is, after he had searched Coker

and found the pill bottles. The officer testified that the car door was “still” open

and that he smelled marijuana coming from the car. Tr. at 11. At that point,

Coker was already in custody.

[18] Officer Hensler’s use of the word “still” confirms the timing and order of events

as set out in his testimony. The word “still” denotes the passage of time. Here,

the word “still” indicates that it was only after he had arrested Coker that

Officer Hensler turned his attention to the vehicle, found that the door was

“still” open, and smelled the marijuana. Officer Hensler testified that he then

handed Coker over to the other officer to be placed in the squad car while he

searched the vehicle. Thus, there is no conflict in the evidence. Rather, Officer

Hensler’s testimony consistently demonstrates that he had hand-cuffed,

detained, and searched Coker before he smelled marijuana coming from the

vehicle. Viewing this uncontested evidence in favor of the defendant, as we

must, Widduck, 861 N.E.2d at 1269, it is clear that the officer smelled the

marijuana only after he had arrested and searched Coker. Under the Fourth

Amendment, an officer must have reasonable suspicion of criminal activity

before making an investigative stop, and he must have reasonable suspicion that

the suspect is armed and dangerous before conducting a pat down for weapons

under Terry v. Ohio. Arizona v. Johnson, 555 U.S. 323, 327 (2009) (citing Terry,



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392 U.S. 1). Likewise, Article 1, Section 11 only permits a stop and frisk after

the officer has formed reasonable suspicion. Mitchell v. State, 745 N.E.2d 775,

787 (Ind. 2001). And the totality of the circumstances test of Article 1, Section

11 does not mean that the trier of fact in the first instance, or this court on

appeal, can re-order the facts to establish reasonable suspicion for a stop and

frisk after-the-fact.

[19] Further, on the motion to suppress, the State did not argue that Officer Hensler

smelled marijuana before seizing and searching Coker’s person. Rather, in its

closing statement on the motion, the State cited the following evidence as the

grounds for the investigatory stop and pat-down: Coker had exited his vehicle

immediately upon being stopped, he was in a high crime area, he appeared

nervous, and he tried to distance himself from the vehicle. The State then

concluded, “[a]t that point, the reasonable suspicion was certainly there for the

Terry stop for the officer’s safety. At that point, he pulled out the first pill bottle.”

Tr. at 31-32 (emphases added). In arguing the facts which led to Coker’s arrest

the State made no reference to the smell of marijuana.

[20] In sum, Officer Hensler did not testify, and the State did not contend in

opposing the motion to suppress, that the smell of marijuana emanating from

the vehicle was a basis for the detention and the pat-down frisk of Coker.

Neither the trial court nor this court may rely on such extrinsic evidence as a

post hoc justification for the initial Terry stop and search of Coker’s person. See,

e.g., Query v. State, 745 N.E.2d 769, 771 (2001) (noting that neither the trial

court ruling on a motion to suppress nor an appellate court reviewing that



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decision will consider post hoc justifications for a search). Officer Hensler’s

seizure and pat-down of Coker was not supported by reasonable suspicion that

Coker was armed and dangerous or had engaged, or would engage, in criminal

activity. Therefore, the search of his person violated both the federal and state

constitutions.

Search of the Vehicle Coker Drove

[21] Coker also alleges that the search of the car he drove was unconstitutional. He

is mistaken. Rather, regardless of when Officer Hensler smelled marijuana

coming from the car, that smell was sufficient to justify a search of the car.

[W]hen 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. That is true under both the Fourth Amendment of our federal constitution and under Article 1, Section 11 of the Indiana Constitution.

State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002), trans. denied. This is

also true for the smell of raw marijuana. Miller v. State, 846 N.E.2d 1077, 1082

(Ind. Ct. App. 2006), trans. denied. The search of the car driven by Coker was

constitutional.

Suppression of the Evidence

[22] Having determined that the search of Coker’s person violated both the United

States and the Indiana Constitutions, we next turn to whether the evidence



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unconstitutionally seized from Coker’s person must be suppressed.5 We

conclude that, while the Fourth Amendment does not mandate the suppression

of this evidence, Article 1, Section 11, as interpreted by Indiana’s appellate

courts, does mandate the evidence be suppressed.

[23] Under the Fourth Amendment, “the inevitable discovery exception to the

exclusionary rule permits the introduction of evidence that eventually would

have been located had there been no error.” Shultz v. State, 742 N.E.2d 961, 965

(Ind. Ct. App. 2001) (quotations and citations omitted), trans. denied. Because

the search of Coker’s car was constitutional, at the point Officer Hensler found

the gun he would have had probable cause to arrest Coker and search him

incident to that arrest. And, during that legal search, the officer inevitably

would have discovered the marijuana on Coker’s person. Thus, under the

Fourth Amendment, the marijuana would have been admissible because it

eventually would have been located even had there been no original misconduct

by the police. See, e.g., Nix v. Williams, 467 U.S. 431, 444 (1984).

[24] However, “the inevitable discovery doctrine has not been adopted as a matter

of Indiana constitutional law.” Ammons v. State, 770 N.E.2d 927, 935 (Ind. Ct.

App. 2002), trans. denied. Rather, our supreme court has clearly and firmly held

that “our state constitution mandates that the evidence found as a result of a[n

unreasonable] . . . search be suppressed.” Brown v. State, 653 N.E.2d 77, 80



5 Of course, since the search of the vehicle was constitutional, the trial court did not abuse its discretion in the admission of the evidence seized from the vehicle.



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(Ind. 1995). Accordingly, the inevitable discovery doctrine is not available to

validate the evidence of marijuana recovered from Coker’s person as a result of

the unjustified pat-down. Id. And the State does not argue otherwise in this

appeal. Thus, because the search of Coker’s person was unconstitutional, the

marijuana found on his person must be suppressed under Article 1, Section 11

of the Indiana Constitution.

Issue Two: Sufficiency of the Evidence

[25] Coker contends that his conviction for carrying a handgun without a license is

not supported by sufficient evidence. Our standard of review under such claims

is clear and well-settled:

In reviewing the sufficiency of the evidence, we examine only the probative evidence and reasonable inferences that support the verdict. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and

quotation marks omitted).

[26] To prove that Coker carried a handgun without a license in violation of Indiana

Code Section 35-47-2-1 (West 2015), the State had to provide evidence that a

handgun was found in the vehicle and that Coker had control of either the

weapon or of the vehicle with knowledge of the weapon’s presence in the



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vehicle. Thurman v. State, 793 N.E.2d 318, 320 (Ind. Ct. App. 2003) (citing

Klopfenstein v. State, 439 N.E.2d 1181, 1184 (Ind. Ct. App. 1982)). Once the

State demonstrates that a defendant had possession of a handgun on his body or

in a vehicle, it then becomes the defendant’s burden to demonstrate that he had

a valid license to carry the handgun. Wilson v. State, No. 49A02-1409-CR-673,

2015 WL 4496244, *9 (Ind. Ct. App. July 23, 2015).

[27] Here, the evidence shows that Officer Hensler found a gun under the driver’s

seat of the car Coker was driving, and the gun was placed in such a way that a

driver could reach down below the seat to access it. Knowledge of the gun’s

presence in the car “can be inferred from the fact that the item was found in a

place under [the defendant’s] dominion and control.” Klopfenstein v. State, 439

N.E.2d at 1185. Moreover, when Officer Hensler asked Coker about the car

and the gun,6 Coker stated that the car belonged to his mother, the gun

belonged to a friend, and Coker needed the gun for protection. Clearly, Coker

was aware that he was driving a car with a handgun in it. This evidence is

sufficient to prove that a gun was found in the car over which Coker had

control, and he knew of the weapon’s presence in the car, and he intended to

transport the gun in the car. Moreover, Coker provided no evidence that he

had a license to carry a handgun or firearm. Therefore, the evidence was



6 Officer Hensler read Coker his Miranda rights before questioning Coker.



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sufficient to support Coker’s conviction of carrying a handgun without a

license.

[28] Still, Coker claims the evidence was insufficient because the State did not prove

that the item they found was a “handgun” as defined under Indiana law, i.e.,

Indiana Code Section 35-47-1-6 (2015).7 The evidence presented showed that:

1) Officer Hensler, who is familiar with firearms, testified that the gun he found

under the passenger seat of the car Coker drove was a handgun; 2) the handgun

bore a serial number as a unique identifier; 3) a continuity report identified the

item found in the car as a firearm, specifically a .40 caliber Glock; and 4) the

gun itself was shown in court and admitted into evidence. This is sufficient

evidence that the gun found in the car driven by Coker was a handgun pursuant

to Indiana law.

Officer Hensler conducted an illegal pat-down of Coker; therefore, we reverse

the trial court’s admission of the evidence seized from that pat-down and the

conviction that resulted from the admission of that evidence. However, the

search of the car driven by Coker was constitutional; therefore, we affirm the

trial court’s admission of the handgun seized from the car.