Meyers v. State

¶1OPINION

¶2Wayne Meyers appeals his convictions of possession of a schedule IV controlled substance as a Class D felony1 and possession of marijuana as a Class A misdemeanor.2 Meyers raises five issues on appeal, which we consolidate and restate as whether he freely and voluntarily consented to a search of his car after he was stopped for a traffic violation. We affirm.

¶3FACTS

¶4Meyers’ car was stopped after a police officer who had been following him for some time saw him cross 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 revealed a bottle containing diazepam, a schedule IV controlled substance.

¶5Meyers moved to suppress all physical evidence seized from his car and person, and he appeals the denial of that motion. We affirm.

¶6DISCUSSION AND DECISION

¶7Standard of Review

¶8A 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, 751 N.E.2d 299, 301 (Ind.CtApp.2001), reh’g denied, trans. denied 774 N.E.2d 505 (Ind. 2002). In reviewing a motion to suppress, we do not reweigh the evidence, but determine if there is substantial evidence of probative value to support the trial court’s ruling. Id.We look to the totality of the circumstances and consider all uncontro-verted evidence together with conflicting evidence that supports the trial court’s decision. Id.If the basis for the ruling on a motion to suppress is unclear, we will uphold the trial court if a reasonable view of the evidence supports the trial court’s decision. Id.We will affirm the judgment of the trial court if it is sustainable on any legal grounds apparent in the record. Id.

¶9Consent to Search

¶10When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. Arise v. State, 746 N.E.2d 957, *172961 (Ind.2001). One well-recognized exception to the warrant requirement is a voluntary and knowing consent to search. Id.

¶11When the State seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was freely and voluntarily given. Lyons v. State, 735 N.E.2d 1179, 1185 (Ind.Ct.App.2000), trans. denied 774 N.E.2d 507 (Ind.2002). The voluntariness of this consent to search is a question of fact to be determined from the totality of the circumstances. Id.A consent to search is valid unless it is procured by fraud, duress, fear, or intimidation, or where it is merely a submission to the supremacy of the law. Id.To constitute a valid waiver of Fourth Amendment rights, a consent must be the intelligent relinquishment of a known right or privilege. Id.Such a waiver cannot be conclusively presumed from a verbal expression of assent unless the court determines, from the totality of the circumstances, that the verbal assent reflected an understanding, un-coerced, and unequivocal election to grant the officers a license the person knows may be freely and effectively withheld. Id.Knowledge of the right to refuse a search is one factor that indicates volun-tariness. Id.

¶12The “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 request; (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.

¶13Meyers 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 search. 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, 737 N.E.2d 719, 727 (Ind.2000) (rights under Miranda apply-only to custodial interrogation). Meyers also was not advised of his right not to consent.

¶14However, other Lyonsfactors 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 therefore cannot say the trial court erred to the extent it determined Meyers’ consent to the search was voluntary.

¶15Because 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 *173and the area within his control. Sebastian v. State, 726 N.E.2d 827, 830 (Ind.Ct.App. 2000), trans. denied 735 N.E.2d 235 (Ind. 2000). The trial court was therefore within its discretion to allow into evidence the controlled substance found in Meyers’ pocket during that pat-down search.

¶16CONCLUSION

¶17Meyers consented to the search that revealed 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 suppress that evidence.

¶18Affirmed.