Kenner v. State

4(C).3 something bring pursuant does him When defendant to trial to Crim. Rule 4(C). being brought that is inconsistent with year, trial the trial within one date or I would affirm trial court. period accordingly.

time extended should be (Ind. Hurst, State v.

1997). example, For in Burdine v. (Ind.1987), the Indiana

Supreme guilty that a Court held defendant’s

plea pursuant agreement the State subsequent plea

and the withdrawal that

after the trial been date had vacated caused delay chargeable defendant. to the KENNER, Appellant-Defendant, Paul Requesting jury waiving and then trial it delaying the eve of trial oft-used gives tactic which extra a defendant time in Indiana, Appellee-Plaintiff. STATE request two gener- instances. The initial will No. 49A04-9802-CR-89. ally which result a trial date is later than the defendant would have received had he Appeals Court Indiana. trial the outset. bench Subse- Jan. 1999. quent jury trial waiver of the results in fur- delay ther the trial court because has to jury

remove the case from the trial calendar

and reset it on bench trial calendar.

Haward that there was no asserts reason

for the trial alter his trial court to date However, jury

his waiver of trial. trial jury

courts often schedule alternate trials for date, anticipating may

the same that some be

pled out or waived. Alternate trial schedul-

ing jury panel decreases the chance that a naught. Proceeding

will be called for with a jury panel already

bench trial when a has judicial appear told to waste

been would re-

sources. 4(C) protect

Crim. R. is meant a defen- right speedy

dant’s trial —not to be used escape

as an hatch for defendants who suc-

cessfully manipulate scheduling trial to their

advantage. See ex rel. State O’Donnell v. Court, Superior

Cass

(Ind.1984) (recognizing purpose early

the rule is to ensure trials and not to defendants).

discharge A criminal defendant right jury free to to a waive his trial at However, if waits

time. until the trial jurors prospective is set and

date have notified,

been he should be allowed the gaining prior benefit of more time

dual having

trial and count time toward the year period in

one which State has to 4(C) motion, language anticipates delay delay of Crim. R. or the caused his act .. added) (emphasis "where a had on continuance was [defendant’s] (1)

the issues “plain as follows: is the smell” One, test valid under Article Eleven Section Indiana, Constitution did the finding trial court err in total- under the ity of the circumstances the detention Kenner for one hour was reasonable. We affirm. p.m.

At approximately September 16, 1996, Officer Paul McDonald of the India- napolis Department stopped Police a red Ca- city Indianap- maro on 70 in the Interstate traveling sixty per olis. The car was miles fifty per hour in speed mile hour zone. just Officer McDonald had been informed another officer that red Camaro and a tan Celebrity appeared Chevrolet to have been traveling together passing and each other speed. excessive rates of The driver of the Celebrity ultimately stopped by was another officer and Riley. identified as Piere In the approached meantime Officer McDonald driver of the Camaro and identifi- registration. cation and complied The driver produced and a driver’s license in the name of Paul Kenner. The car registered was Riley. the name of Piere At the officer’s request Kenner exited his car. did When he so Officer McDonald smelled what he be- marijuana. lieved to be parties raw The proceeded patrol to the car and once inside Officer McDonald informed he Kenner that going was give Kenner a The break. ticket, officer wrote a warning Kenner re- turned registra- Kenner’s driver’s license and tion, and then Kenner told the traffic was p.m. over. The time was 8:01 Officer McDonald then asked Kenner if he would answering questions. mind fewa Kenner agreed proceeded and McDonald Ken- ask (Jack) Crawford, John F. Crawford & ner a questions including number of where Rader, Indianapolis, Appellant-Defen- going, traveling, whom was he dant. and where he had been. He also asked Kenner if Jeffrey Modisett, illegal there Attorney General, drugs A. were in the car MacDonald, and Kimberly Deputy Kenner answered not to knowl- Attorney Gen- aroused, edge. eral, suspicions His Indianapolis, Mc- Appellee-Plaintiff. Officer requested permission Donald then to search responded ear. Kenner because OPINION him, car belong did not he did not want to RUCKER, Judge. give his consent search. Officer Mc- interlocutory appeal In this Paul Donald Kenner then radioed for a It canine unit. challenges the trial court’s denial of his p.m. mo- now 8:16 The officer informed to suppress tion phrases evidence. Kenner Kenner that he was free to leave however (Ind.1994). fully As more stayed. Approx- we discuss Kenner car had to remain. below, McDonald’s search of Kenner’s imately unit half an hour later the canine sniffing dog drug after a Walking of the Ca- automobile occurred perimeter arrived. illegal presence drugs. dog pres- alerted to the drug sniffing alerted to the maro provided alert of the illegal drugs. Officer McDonald ence of necessary warrant. See to obtain a search and discovered white searched Camaro (10th Brown, 24 F.3d of a sub- bag containing pounds trash twelve Cir.1994) (“[W]hen alerted to marijuana. the canine stance later identified as Lincoln, ‘proba- had charged with Brown’s the authorities subsequently was arrested and vehicle, ... and marijuana felony impound D ble cause’ to possession of as a Class warrant.”). felony. thereafter a search That dealing marijuana as a Class C obtain attempt to obtain a suppress the officer here did not thereafter filed motion to He not as an on hearing. a warrant has been raised issue which was denied after evidence note, however, that where there interlocutory appeal. We appeal This followed. probable cause believe automobile instrumentality of a the fruit or contains I. crime, mobility of the automo- the inherent testimony Referring McDonald’s to Officer justifies a warrantless search. v. bile Green exiting the Camaro that while Kenner was State, 694, (Ind.Ct.App.1995). 696 647 N.E.2d marijuana, raw Kenner the officer smelled testing by a smell trained We also note that one, Article Eleven of contends that Section dog meaning is not a search within the of the prohibits adop- the the Indiana Constitution Watkins, v. 515 Fourth Amendment. State “plain the of he characterizes as tion what (cit- 1152, (Ind.Ct.App.1987) N.E.2d 1154-55 argues alone Kenner that odor smell” test. Place, 696, ing United v. 462 U.S. 103 States probable the for cause provide cannot basis (1983)). Also, 77 110 the S.Ct. L.Ed.2d argu- Continuing a the to search vehicle. prohibit Amendment does not Fourth ment, that the test for Kenner maintains detaining per- from enforcement authorities determining police search violates whether a by a for a sniff test trained property sonal One, Eleven of the Indiana Article Section if detection there is reasonable narcotics applied in different from that Constitution is suspicion property the contains to believe jurisprudence. federal Watkins, N.E.2d at 1155. narcotics. 515 quarrel no with Kenner’s We have proper focus of Ken In event the point. on latter See Brown v. argument this (Ind.1995) State, argument upon is not the (distinguish “plain ner’s smell” 77 653 N.E.2d One, for which the search of Kenner’s automobile Section Eleven and ing between Article of probable had cause after alert war officer question of the Fourth Amendment automobile). However, dog. proper focus Rather of rantless search ultimately stop that culmi investigatory appears the distinc to misconstrue Kenner jurisdiction has nated into a search. This probable justifying cause a between tion determining Terry suspi adopted the rationale and reasonable search on the one hand stops investigatory of under investigatory stop legality justifying an on the cion State, Taylor 639 v. Indiana’s constitution. necessary to demonstrate other. Facts In (Ind.Ct.App.1994). 1054 N.E.2d probable of cause for warrantless existence Ohio, Terry materially from v. S.Ct. different are search (1968), the States Su of L.Ed.2d 889 United authorize the issuance which would those a po rule that established the magistrate. Young preme Court presented if to a warrant person briefly can detain State, (Ind.Ct.App. lice officer tram, if, specific purposes based on 1991), cause” to denied. “Probable facts, reason officer has a articulable the facts and warrant exists where issue activity. This is so criminal reasonably circumstances would lead a and probable under lacks cause if the officer person that a search of even prudent to conclude Terry, 392 U.S. of a the Fourth Amendment. uncover evidence premises will those of rea- State, 1023, 27, 88 S.Ct. 1868. Esquerdo crime. volved, marijuana sonable emanating is satisfied when the facts smelled odor of officer, together defendant, clothing person known to the rea- from with the and offi arising therefrom, sonable would cer had conduct inferences cause to warrant- jacket permit ordinary prudent person less search of that he observed to believe defen off); Gorthy, activity dant take U.S. v. 550 F.2d that criminal has or was about to (5th Cir.1977), (probable cert. Taylor, denied occur. 639 N.E.2d at 1054. patrol agent found where border who detect stopped Here Officer McDonald strong marijuana smell opening ed when speeding. Kenner because was Kenner the side door of home motor pretextual.1 does not contend the checkpoint). border stopped, given warning Once affirming marijua In involving convictions questioned ticket about his activities.2 na court this has taken into consideration Thereafter Kenner was detained for further testimony concerning drug’s smell. In investigation part because Mc Ind.App. Corrao marijuana smell Donald detected the com N.E.2d 484 we held the defen ing Although from Kenner’s automobile.3 knowledge presence marijua dant’s are point,4 there no Indiana cases on note we Bay na could be inferred smell. In its in a jurisdictions number of the odor of 1224 (Ind.Ct.App. marijuana provide alone can the basis 1986) observed police we that a officer’s testi See, probable e.g., a to search vehicle. mony marijuana” the that house “reeked of Harrison, State v. 111 Ariz. P.2d 533 supported the defendant’s conviction. Im (Ariz.1975) (odor marijuana 1143 of emanat plicit foregoing in the is the cases conclusion ing from equip vehicle for traffic or marijuana that the odor of is distinctive and provided probable ment violations alone capable being by of expe detected trained or search); Sandoval, cause for v. State 92 N.M. See, personnel. rienced enforcement People Gremp, P.2d 175 v. Dallas, e.g., v. F.Supp. (1974) Ill.App.3d 312 N.E.2d 716 (S.D.Ind.1987) (observing marijuana that raw (probable cause to conduct warrantless has a distinctive can readily odor that be search existed where officer the detected experience detected with training). and marijuana opening odor of after of door stopped ear in attempt to view Here, vehicle identi Officer McDonald testified number); Cross, Or.App. fication State police that he had been a officer for fifteen (where 543 P.2d 48 police years, trained made had of hundreds arrests involv officer, during investigation of ing marijuana drugs, accident and other spe received present which defendant was in- training through drug but not cific interdiction violation, stop 1. A lawful any marijuana. for a bonafide traffic not He said that he knows of— of, pretextual, stop even if my does convert the into suspicion which drew a little bit. I asked heroin, an unconstitutional and any search seizure. State v. him if or there cocaine or meth- Voit, (Ind.Ct.App.1997). amphetamine anything like that. He said no questions.” to those R. at 157-58. police 2. A officer does not violate the Fourth by detaining questioning Amendment and some (Ind.Ct. 4.In Shinault 668 N.E.2d 274 just one who has a committed traffic violation. App.1996) we observed in a footnote "because Berry (Ind.Ct.App. police strong [the officer] detected the odor of 1991), trans. denied. marijuana coming person, from Shinault's there possibility probable is also the that cause then justify reject arose to an arrest full We and search incident the inference State's that the odor of 3. added) (af (emphasis marijuana thereto." Id. at 278 coupled n. 5 responses with Kenner's firming trial questions provided the court’s denial of Officer McDonald's defendant’s reason- suppress grounds' justifying investigatory stop. motion to that the permissible responses Teny At best did not exceed the a Kenner’s were For bounds of innocuous. example pat-down State, weapons); Cody "I search for See McDonald testified asked him there also if (h any guns (Ind.Ct.App.1998) were and 702 N.E.2d 364 the car he said no. I asked oldi ng any prescription drugs marijuana coupled if him there was car, odor of cash, large Any he said smoking no. amounts evidence that defendant admitted of dollars, marijuana cigarette enough thousands of he said no. I if asked him to establish car, cause). any illegal drugs probable there were in the kind marijuana. schools, the officer detected smell of including a 40 hour course with drug p.m. when Officer McDonald agency and identifi- It was 8:16 drug enforcement detection, formal unit and Kenner and had received canine advised cation and through college police go car had to training in was free to but the day However, academy. investigatory reserve for another stay. We we believe the odor of actually began p.m. of in Indiana the after the stop resolution whether at 8:01 proba- marijuana standing alone constitutes warning officer had written Kenner ticket However, we justifying a search. stop ble cause him “the traffic was over-” and told officer’s detection of persuaded that an point are It was at this that Officer R. marijuana, together with the smell proceeded question McDonald fol- therefrom, arising inferences reasonable illegal activity lowing up on his person ordinary prudent permit an would already which aroused the earli- had been activity has criminal or was believe that marijuana. the odor It is er detection of occur. In essence the smell about shortly presume that after the reasonable to suspi- satisfy reasonable marijuana can McDonald decid- traffic was over Officer justifying an cion The ed that the car would be detained. experi- of Officer McDonald’s stop. Because approxi- record shows the canine unit arrived training qualified to detect he was ence and request mately had one half hour after the marijuana. Having of raw the distinct odor p.m. been issued —sometime around car, marijuana coming from Kenner’s smelled Thus, Amend- purposes of the Fourth suspicion nec- officer had the reasonable approximately ment Kenner was detained detaining for further essary justify the car forty-five minutes. test investigation namely: a sniff — investigatory stop Because presence dog. dog’s alert to the trained cause, its permitted on less than marijuana provided McDonald with Teslim, v. scope also must be limited. U.S. car. to search Kenner’s probable cause (7th Cir.1989). 316, Reasonable F.2d 322 869 investigative suspicion justifying a limited II. give law enforcement officers stop does not next contends arrest, only rights to but all attendant of awaiting the arrival hour detention one right “temporarily to freeze the situation his Fourth Amendment canine unit violated investigative inquiry.” to make in order right against searches and sei unreasonable 222, (Ind.1992). State, 227 Platt v. record does not zures. We first observe the ... paper litmus test for is “[T]here [no] claim that he was detained support Kenner’s determining when a seizure exceeds Fourth purposes For of the for an hour. investigative stop.” Florida v. of an bounds investigatory stop begins Amendment an 1319, 491, 506, Royer, 103 S.Ct. 460 U.S. questioned longer being no person when the (1983). 1329, 229 The United 75 L.Ed.2d free Luster v. 578 remains to leave. adopt a Supreme has refused to States Court 740, (Ind.Ct.App.1991); 744 United permissible limit for a “hard-and-fast time 544, Mendenhall, 553, 446 100 v. U.S. States Sharpe, 470 Terry stop.” United States (1980). 1870, 1871, 64 L.Ed.2d 497 S.Ct. 1568, 1575, 675, 686, 84 105 S.Ct. U.S. person being applies rule where the same Place, 462 at 709 n. 605 U.S. L.Ed.2d property is to leave but his is questioned free 10, 10, n. at 77 L.Ed.2d 103 S.Ct. 2646 Place, 462 United States v. detained. See ‘bright line’ rule would be desir “Much as 2645, 709, 2637, 696, 77 S.Ct. 103 U.S. investigative able, evaluating an whether in (1983) (holding police “when 110 L.Ed.2d unreasonable, common sense and detention custody suspect's ... luggage from the seize govern over ordinary experience must human investigative de applicable to the limitations 685, at 105 Sharpe, 470 U.S. rigid criteria.” per person should define tentions of the at 1575. S.Ct. investigative scope detention missible too assessing In whether detention person’s luggage on less than of the cause.”). justified as an inves- long duration to be In before us Kenner the ease appropriate it to tigative stop, we consider initially p.m. at which time 1128 diligently police pur-

examine whether the in- suspicion justifying able II, investigation stop. sued means of that was I vestigatory Regarding be- Issue likely dispel suspicions to confirm or lengthy their one hour lieve that a detention is too during quickly, which time it was neces- to remain within constitutional confines sary detain the defendant. stop. of an 686, Using Id. at 106 S.Ct. at 1575. test, foregoing upheld courts have detentions I. minutes, forty-five v. Da United States balancing In the reasonableness of investi (7th vies, denied, Cir.,), F.2d 768 893 cert. gatory stops, courts must strike “a balance 1008, 533, 474 106 U.S. S.Ct. 88 L.Ed.2d 464 public between the interest and the individu minutes, (1985); fifty Alpert, United States right personal security al’s free arbi from (4th Cir.1987); minutes, sixty 816 F.2d trary interference offi [enforcement] (8th Large, States v. United 729 F.2d 636 464, cers.” Carter Cir.1984); Campbell, United States v. Texas, (Ind.Ct.App.1997) (quoting Brown v. (D.Alaska 1985), F.Supp. 320 810 F.2d aff'd 99 S.Ct. U.S. 61 L.Ed.2d 357 (9th Cir.1987); minutes, seventy-five (1979)). balancing competing When these (7th Borys, States v. United 766 F.2d 304 contexts, in different interests factual a cen Cir.), cert. denied 474 106 S.Ct. tral is “that an concern individual’s reason (1985). L.Ed.2d Each last expectation privacy subject is not four cases delays cited involved necessitated arbitrary solely invasions at the unfettered efforts to obtain a narcotics sniff Carter, discretion officers in the field.” packages. luggage Brown, 466 (quoting N.E.2d at 443 U.S. In this case the record shows there 2637). Hence, 99 S.Ct. reasonable difficulty obtaining initial was some a ca comprised must be of more than an Apparently assigned nine unit. the units general unparticular- officer’s “hunches” or Indianapolis Department Police were un Ohio, suspicions. Terry ized See requiring available assistance another 1, 27, (1968). 88 S.Ct. 20 L.Ed.2d 889 Department. Eventually a unit dis suspicion” “Reasonable mini- entails some patched Depart from the Greenwood Police objective justification is, mum level of —that Having ment. reasonable something more than unpar- an inchoate and may drugs have present been in Kenner’s “hunch”, ticularized or but consid- vehicle, diligently Officer McDonald acted in erably proof by wrongdoing less than a a in obtaining dispel order to confirm or preponderance of the evidence. D.H. v. suspicion. Obviously his be inevit there will State, 221, 688 N.E.2d 223 (Ind.Ct.App.1997) delay in obtaining dog luggage a to sniff 740, (citing Luster v. packages transported high on interstate If (Ind.Ct.App.1991)). facts known the ways. forty-five Kenner’s detention minute police officer at the time “stop” are in did permissible this case not exceed the such that a man of reasonable caution would an investigatory stop bounds of and thus did the believe that action taken appropri- not the violate Fourth The Amendment. ate, the command the Fourth Amendment trial court did not denying err in Kenner’s Lampkins is satisfied. suppress

motion to evidence. (Ind.1997), other on modified Judgment affirmed. grounds reh’g; Terry, on at U.S. S.Ct. 1868. GARRARD, J., concurs. majority’s apparent adoption The the

RILEY, J., opinion. dissents with “plain exception smell” to the warrant re- RILEY, Judge, dissenting. quirement to, represents sweeping change respectfully I dissent I my opinion unnecessary as to both Issues in an deteriora- I, Regarding of, and II. juris- Issue I do not believe tion our Fourth State’s Amendment alone sufficiently trustworthy prudence. smell change This is a that I am unwill- satisfy ing information which to reason- I the to make. find that the more sound justified only further search would have been additional indicia require to some approach is rely narrowly exceptions if the defined to majority to one of The seems of contraband. requirement proba- were met or experi- the warrant training and McDonald’s Officer justify stop to cause arose after the drugs of illicit as corro- ble in the detection ence arrest and search incident thereto. Officer Mc- Whether borative evidence. does drug interdiction is trained Donald I not Because do think that there was justification that his sole change the fact not justify probable to a warrantless cause leading the stop to investigatory the apply “plain search and I would not the he mari- his belief that smelled search was exception in manner as the same the smell” juana. majority, respectfully I dissent. majority Mc- agree I the that Officer with II. justify to Donald had reasonable investigatory stop of Kenner’s ve- the initial majority The holds that Kenner’s detention issuance of warn- that ended with the stop hicle the the traffic was constitu- scene of however, the disagree, initially I ing disagree. ticket. I Kenner was tional. analysis regarding propriety of majority’s p.m., at 7:49 at which time Officer says subsequent Kenner’s vehicle. the odor of mari- search of McDonald detected dispatch juana. an offi- McDonald investigatory of a citizen did An unit ar- p.m., unit and the that citizen’s constitu- canine until does not violate cer thirty later. When Officer has a reason- rived minutes rights where officer tional unit, canine he in- activity. McDonald suspicion of criminal ably articulable go was free to but Kenner that he Probable formed Lampkins, 682 N.E.2d at 1271. An that the car had to remain. necessary. Id. Once the officer is not cause person being stop begins either when the stop, Terry investigatory or has made a valid longer when is no free to leave or questioned protection, is entitled for his own the officer detained. property-is his United States danger, to fear of if he has a reasonable Mendenhall, S.Ct. 446 U.S. out- carefully limited search of the conduct Place, United States L.Ed.2d suspect attempt clothing of the er L.Ed.2d 110 103 S.Ct. might weapons which be used discover (1983). ap- Hence, Kenner detained for Terry, 392 88 S.Ct. him. assault one hour. proximately exception purpose of this The limited to enable warrant permitting on sus predicate The seizures investigation with- pursue police officer is that picion short addition, there are In fear of violence. out a limited in warrant enforcement interests exceptions war- to the other narrow several security of sus personal trusion on the enable an officer requirement which rant permitted intrusion pect. scope immedi- the detainee’s the area within particular vary to extent with will some California, e.g. See Chimel ate control. of each case. This circumstances facts and 23 L.Ed.2d 89 S.Ct. much, however, investigative de is clear: (Incident arrest, the arrest- to a lawful longer temporary last no must tention be may a warrantless ing officer conduct purpose of necessary to effectuate than is area within person and the the arrestee’s Royer, 460 U.S. stop. Florida control). Mc- immediate his or her 75 L.Ed.2d 103 S.Ct. was fearful not indicate Donald did (Ind. Baker v. safety that he believed 1985). my review weapon. Based possessed a of this and circumstances the facts Under case, I fail see that of this of the facts case, at the hour detention I find that one any fur- to hold Kenner reason existed stop is unreasonable. a traffic scene of Therefore, investigation. Officer Mc- ther the vehicle subsequent search of Donald’s Mc- constitutionally sound. Officer only suspicion justified

Donald’s reasonable A stop Kenner’s vehicle. traffic

the initial

Case Details

Case Name: Kenner v. State

Court Name: Indiana Court of Appeals

Date Published: Jan 6, 1999

Citation: 703 N.E.2d 1122

Docket Number: 49A04-9802-CR-89

Court Abbreviation: Ind. Ct. App.