Lead Opinion
OPINION
Wаyne Meyers appeals his convictions of possession of a schedule IV controlled substance as a Class D felony
FACTS
Meyers’ car was stopped after a police officer who had been following him for some time saw him сross the center line. Meyers agreed to perform a series of sobriety tests and he failed several of them. He then consented to a search of his car, where police found marijuana, hand-rolled cigarettes, and a bottle of pills. Meyers was arrested and a pat-down search revеaled a bottle containing diazepam, a schedule IV controlled substance.
Meyers moved to suppress all physical evidence seized frоm his car and person, and he appeals the denial of that motion. We affirm.
DISCUSSION AND DECISION
Standard of Review
A trial court has broad discretion in ruling on the admissibility of evidence, and on review we will disturb a trial court’s ruling only upon a showing of an abuse of discretion. Camp v. State,
Consent to Search
When a search is conducted without a warrant, the State has the burden of proving that an exсeption to the warrant requirement existed at the time of the search. Arise v. State,
When the State seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent wаs freely and voluntarily given. Lyons v. State,
The “totality of the circumstances” from which the voluntariness of a detainee’s consent is to be determined includes, but is not limited to, the following considerations: (1) whether the defendant was advised of his Miranda rights prior to the request to search; (2) the defendant’s education and intelligence; (3) whether the defendant was advised of his right not to consent; (4) whether the defendant has had previous encounters with law enforcement; (5) whether the officer claimed authority to search without consent; (6) whether the officer was engaged in any illegal action prior to the requеst; (7) whether the defendant was cooperative previously; and (8) whether the officer was deceptive as to his true identity or the purpose of the search. Id.
Meyers asserts his consent was involuntary because it was “merely a submission to the supremacy of the law.” Id. Meyers had not been advised of his Miranda rights prior to the request for the searсh. However, no such advisement was required as Meyers was not yet under arrest and was not being interrogated. Meyers testified he was not told he was under arrest at the time his consent was sought, and the officer who stopped Meyers testified he was not placed in custody until after she found he had marijuana. See Albrecht v. State,
However, other Lyons factors indicate Meyers’ consent was voluntary. He is a high school graduate who has worked for the same employer for 35 years and is therefore presumably of reasonable intelligence. Meyers had had prior encounters with law enforcement officers. He was cooperative during the encounter and the officer did not threaten or deceive him. The record does not reflect the officer made any express or implied claims of authority to search without Meyers’ consent. We thereforе cannot say the trial court erred to the extent it determined Meyers’ consent to the search was voluntary.
Because the search to which Meyers consented revealed marijuana, the officer properly arrested Meyers. Under the search-incident-to-arrest exception to the warrant requirement, a police officer may conduct a search of the defendant’s person
CONCLUSION
Meyers consented to the search that revеaled marijuana, and the diazepam was found during a proper search incident to his' arrest. The trial court did not abuse its discretion when it declined to suрpress that evidence.
Affirmed.
Notes
. Ind.Code § 35-48-4-7.
. Ind.Code§ 35-48-4-11(1).
Concurrence Opinion
concurring in result.
Although I agree with the majority’s result, I would not reach the merits in this case. Even if we assume that Meyers’s continuing objection based on his motion to suppress was proper, it applied only to “any and all evidence found, or seized as a result of the stop occurring on or about thе 22nd day of October, 1999[.]” Appellant’s Br. at 26. Meyers did not seek to suppress testimony that he possessed marijuana and diazepam.
At trial, the following colloquy occurred:
Q Okay. After uh, he complеted the filed sobriety test, um, what happened next?
A Asked him for permission to search his vehicle of which he agreed.
Q And what did you do?
A I started on the passenger side and in the rear. In the passenger seat there was a little glove box and inside there was a, a ziplock, a sandwich container, and inside it was a plastic baggie with greenish brown plant like material. Also inside was a prescription bottle, it was unlabeled, and it had (inaudible) hand rolled cigarettes with plain like materiаl inside and a couple that were partially burnt.
Q Through your training and experience as an officer, have you ever come into contact with Marijuana?
A Yes.
Q Okay. Through your training and experience as an officer and having come into contact with Marijuana in the past, did you form an opinion as to what that greenish brown plant like material was that you found?
A I thought it was Marijuana.
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Q What did you do after you found that?
A Then I just went down and uh, did a custody search of Mr. Meyers.
Q When you say went down ...
A I’m sorry, went back to the back of the car and did a custody search of Mr. Meyers, and in his front pocket found a unlabeled prescription bottle with several different pills inside [which Meyers had stipulated were diazepam] and a uh, soft green zip kind of container that had one pink pill in it.
Tr. at 78-9.
Meyers did not object to the officer’s testimony, which is merely cumulative of the physical evidence he sought to suppress. “Evidence that is merely cumulative is not grounds for reversal.” Tobar v. State,