*1 that, even while held also have We findings are not statutory
recognizing “ of con rights are ‘the involved required, ” “ judgment ‘a magnitude,’ and stitutional relationship between a
terminating the on is to review impossible child
parent and than a mere more nothing if it is
appeal governing conclusions the
recitation ” court to reach.’ requires trial statute (Ind.Ct. M.W., re A.K., 924 N.E.2d (quoting In re
App.2011) dis trans. (Ind.Ct.App.2010),
missed), Pursuant trans. denied.1 31-35-2-8(a), if the Section Code in a allegations finds that the court
trial true, are
petition described Section ter shall be parent-child relationship A in accordance
minated. determination conclusion essentially
with the statute properly In order for the court
of law. law, it must have a conclusion of
reach findings support
made some factual factual reiterate: those
conclusion. We rest clear and convinc
findings must
ing evidence. opin-
Accordingly, original we affirm our
ion. J., J., DARDEN,
BAKER, concur. YANEZ, Appellant-Defendant,
Herbert Indiana, Appellee-Plaintiff.
STATE
No. 49A02-1104-CR-362. Appeals of Indiana.
Court
Feb.
participation]
[parental
find-
with the Amended
M.W.,
1. In
we held that the trial court's
from
ings
supported by
Plan and his imminent release
incarcer-
clear and convinc-
were not
evidence,
ing
given
comply
ation.
marijuana as a Class A misdemeanor. A bench during trial was held which Yanez OPINION moved to suppress based BARTEAU, Judge. Senior the lack of constitutional basis for the
investigatory stop. The trial court denied the motion guilty and found Yanez as STATEMENT OF THE CASE charged. It is from this conviction that Defendant-Appellant Herbert Yanez ap- appeals. Yanez now peals possession his conviction of of mari- juana, a A Class misdemeanor. Ind.Code DISCUSSION AND DECISION (1983). § 35-48^1-11 Yanez rights contends under
We reverse and remand. both the Fourth Amendment to the United Washing circumstances. State v. section and article
States Constitution
ton,
1200, 1206
were violat-
Indiana Constitution
11 of the
totality of the circumstances evalua
Rodriguez stopped The
when
ed
*3
of
requires
tion
consideration
both the de
him at the flea market.
questioned
him and
subject’s
the
into the
ordi
gree
asserts that
trial
of intrusion
Essentially, Yanez
nary
and the basis
which
admitting
of the
activities
evidence
erred
court
subject
the
the officer selected the
of
because it was obtained
at trial
State,
investi-
search or seizure.
824
the unconstitutional
a result of
as
Litchfield
(Ind.2005).
356,
The
have N.E.2d
360
determi
therefore should
stop and
gatory
in nation of the reasonableness of a search
dispositive
Because it is
been excluded.
hinges
11
case,
only
the issue
and seizure under Section
on a
we need
address
this
1)
concern, suspi
grounds.
degree
of:
the
of
balance
on state constitutional
cion,
knowledge
or
that a violation of law
review a
“Although
generally
we
2)
occurred;
degree
has
the
of intrusion
admit
de
decision to
evidence
trial court’s
imposes
the method of search or seizure
suppress
to
under an abuse
spite a motion
3)
activities;
ordinary
on the citizen’s
and
standard,
ultimate deter
the
of discretion
the extent of law enforcement needs.
an officer had reason
mination of whether
Washington,
reasonableness separate opinion. stopping in Yanez. BARNES, Judge, concurring in
Further, result. present- evidence ed on State’s in the behalf form the I concur result agree because I of Officer testimony Humerickhouse also testimony Agent without the Rodriguez, failed establish the reasonableness we are left to wonder triggered what testimony the State’s actions. Her showed *4 approach initial to Yanez other than the speaking Yanez was at a flea market “loud” Yanez talking allegedly en- loudly companion his female and that he gaged in with his female companion. apparently had a tattoo. Officer Humer- more, the in Without State fails its burden Yanez; rather, did not stop ickhouse she However, majority as the describes. I approached the men two after part with company analysis the regarding Agent Rodriguez stopped Yanez and “reasonableness” and the “seizure” Ya- of begun questioning after he had Yanez. nez. presented by The evidence Officer Humer- If solely this case involved Officer Hum- ickhouse is her postulation of what oc- discovery erickhouse and her of marijuana and Special Agent curred between Yanez on person, Yanez’s we would have a much Rodriguez and does not meet the reason- doesn’t, different It case. and this thus Moreover, ableness standard. her discov- Generally, police result. officers are not ery stopped of after prohibited, under either the United States justify cannot the initial seizure of Constitutions, or Indiana from approach- Yanez by Agent Rodriguez. ing persons public places in asking and addition, the of in- although degree questions. them See Powell v. 912 minimal, trusion on Yanez’s activities was 858, 862-63 (Ind.Ct.App.2009). that factor is not sufficient to convert an Where an encounter such as this is “con- stop otherwise unconstitutional into a con- sensual,” anyone the officer has not seized Finally, one. stitutional the of extent the and no there are constitutional implica- investigate officers’ need to was nominal. Moreover, tions. Id. when Officer Humer- occurred, Nothing had other than Yanez Yanez, ickhouse approached she noticed loudly busy in speaking public a flea mar- that he “strongly” smelled of burnt mari- ket, to trigger investigate. a need to 24. juana. p. certainly Tr. This would investigation have warranted further into CONCLUSION possessed marijuana, whether Yanez possi- carry The State did bly including not its burden under even person. search Article Section 11 the Indiana Consti- See Edmond v. 591 tution to establish the reasonableness of (Ind.Ct.App.2011). its actions. We therefore reverse Yanez’s However, Yanez already speaking conviction and for proceed- remand further when she decided ings opinion. consistent with this Yanez; approach the question is whether
Reversed and remanded. Agent Rodriguez had seized him.1 Cir- although Rodriguez I note that is a seems to protec- adhere to the view that the official, federal law enforcement Indiana tions of apply the Indiana Constitution
534 indicate a seizure might
cumstances INC., RE threatening IN INDIANA NEWSPAPERS presence may include officers, Star, display weapon Indianapolis of a several d/b/a officer, touching of the physical an some Appellant-Non-Party, officer, the use of lan- by an or suspect that com- indicating tone of voice guage or Miller, Jeffrey Cynthia M. Miller & S. request might be an officer’s
pliance with Appellees-Plaintiffs, Powell, N.E.2d at 860 compelled. Mendenhall, States (quoting United 544, 554, 100 S.Ct. U.S. Indiana, of Central Junior Achievement (1980)). Agent Rod- Without
L.Ed.2d Inc.; Burk, Individually and Jennifer very it is difficult to riguez’s testimony, Capacity; Official Central her of these circumstances any whether assess Foundation, Inc.; Community Yanez, existed,2 he had seized Individually Payne, in his Brian and, thus, continued to be whether Yanez *5 Capacity, Appellees-Defen Official ap- Humerickhouse Officer seized when directly dants. nothing proached. We know Rodriguez said to Yanez. what 49A02-1103-PL-234. No. seized, it would Even if Yanez had been necessarily an seizure not have been Appeals of Indiana. Court Agent Rodriguez possessed if reasonable probable wrongdoing cause of suspicion or Feb. 2012. at seizure. See id. 859. support testimony, we Agent Rodriguez’s Without question.
cannot assess that of evidence recovered proponent
As the search, it was the
during a warrantless that that search prove
State’s burden to See v. constitutional. Willis 428, 428 Al- (Ind.Ct.App.2002). can that Yanez’s ini-
though speculate we might
tial encounter “consensual,” as
have that word is been law, by case I believe it was the
defined it
State’s burden to establish was. testimony, Agent Rodriguez’s
Without Thus,
State failed to meet that burden. I
concur in result. that there respect 2. Officer Humerickhouse testified of federal officials with actions prosecutions. Moran
state criminal
State,
See
vicinity where
in the
were ''several” officers
og
(Ind.1994),
538-39
being questioned,
abr
but
less than
grounds
on other
ated
p.
Litchfield
five.
Tr.