IN: Defendant ticketed for expired tag couldn’t have backpack searched when he was released

Defendant was ticketed for an expired tag on his car. He’d been handcuffed and his backpack was in the police car. He was unhandcuffed and was free to go, but not until the backpack was searched for weapons for officer safety. The car was inventoried, but nothing criminal was found. The backpack had a little marijuana and paraphernalia in it. The officer smelled marijuana on the defendant. There was no indication of a weapon or cause for the search other than “procedure,” and that’s not enough. Miller v. State, 991 N.E.2d 1025 (Ind. App. 2013):

Unlike Owens and Berry, the traffic stop here terminated with the issuance of a citation. Officer Hasler did not point to any suspicion that criminal activity was afoot, nor any facts in support of “a concern over the possibility of harm [being] reasonably heightened during the stop.” Berry, 704 N.E.2d at 466. Instead, Officer Hasler’s testimony demonstrates that his election to search the backpack was based upon procedure. We conclude that this is insufficient under these circumstances.

In defense of Officer Hasler’s search, the State points to Miller’s erratic behavior prior to and immediately after the stop. As with many search cases and probable cause issues, the timing of events and the officer’s knowledge are critical in determining the validity of the search. Sears v. State, 668 N.E.2d 662, 666 (Ind. 1996), overruled on other grounds, Scisney v. State, 701 N.E.2d 847, 849 (Ind. 1998). Officer Hasler’s issuance of the citation ended the encounter and therefore the Terry stop; Miller had been released from his handcuffs and told that he was free to go. Miller’s erratic behavior was too attenuated to furnish either a suspicion of criminal activity or belief that it posed a safety threat to trigger a new Terry stop after having been released. We therefore conclude that Officer Hasler’s search of Miller’s backpack was impermissible under the Fourth Amendment.

. . .

We have recognized that the odor of marijuana on a person’s breath and emanating from inside a vehicle may give rise to probable cause that a person possesses marijuana. Edmond v. State, 951 N.E.2d 585, 590-91 (Ind. Ct. App. 2011). At the same time, “[b]ecause the odor of burnt marijuana might linger in a vehicle for a period of time, that odor does not necessarily indicate illegal activity by a current occupant.” Id. at 591. Here, there is no evidence that the odor of marijuana emanated from the vehicle. Following Miller’s request, Officer Hasler entered Miller’s vehicle to retrieve the backpack yet he did not testify that the vehicle smelled of marijuana. To the extent that the State argues that Miller’s prior actions supplied probable cause, we again conclude that these circumstances are too attenuated given that Officer Hasler’s patdown found no marijuana and Miller was told that he was free to leave. Because we conclude that Officer Hasler provided no facts and circumstances that would lead a reasonably prudent person to believe that a search would uncover evidence of a crime, probable cause to search Miller’s backpack did not exist. As a result, the automobile exception to the Fourth Amendment cannot be applied to uphold the search. Therefore, the trial court erred by denying Miller’s motion to suppress.