Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
Marion County Public Defender Agency
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
September 15, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
of the supreme court,
court of appeals and
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jose Salinas, Judge
Cause No. 49G14-1007-FD-54231
Sep 15 2011, 10:01 am
Torrien Jefferson appeals his conviction for Class D felony possession of cocaine.
Jefferson raises two issues, which we restate as:
whether his Fourth Amendment rights were violated,
resulting in fundamental error; and
whether the evidence is sufficient to sustain his
On July 11, 2010, at approximately 9:15 p.m., Detective Billy Glenn with the
Indianapolis Metropolitan Police Department was doing surveillance at the McDonald‟s
parking lot on 38th Street due to a high volume of drug trafficking in the area. Detective
Glenn watched two people sit in the parking lot in a maroon Buick Regal and talk on a
cell phone for fifteen to twenty minutes. Jefferson pulled up to the Buick in a green
Chevy Tahoe. Jefferson was also talking on his cell phone and made eye contact with the
passengers of the Buick. Jefferson and the passengers of the Buick nodded to each other,
and then they drove out of the McDonald‟s parking lot. Detective Glenn followed the
vehicles to a nearby Subway parking lot.
In the Subway parking lot, a white male got out of the Buick and got into the
Tahoe on the passenger side. Detective Glenn parked his vehicle and walked up to the
Tahoe‟s driver‟s side. Through the open window, Detective Glenn saw the passenger
with cash in his hand and saw Jefferson in the driver‟s seat with aluminum foil and a
white substance, later identified as cocaine, on his lap.
Detective Glenn ordered Jefferson and the passenger not to move. However,
Jefferson folded the aluminum foil into a ball in his right hand and threw it out the
passenger window of the vehicle. Detective Glenn then recovered the aluminum foil and
cocaine. The State charged Jefferson with possession of cocaine as a Class D felony and
being an habitual substance offender. After a bench trial, the trial court found Jefferson
guilty as charged.
I. Fundamental Error
Jefferson argues that his Fourth Amendment rights were violated because
Detective Glenn had no reasonable belief that criminal activity was occurring and no
reason to follow Jefferson‟s vehicle to the Subway parking lot. Jefferson concedes that
he did not object at trial, but he argues that fundamental error occurred.
A claim that has been waived by a defendant‟s failure to raise a contemporaneous
objection can be reviewed on appeal if the reviewing court determines that a fundamental
error occurred. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). “The fundamental
error exception is „extremely narrow, and applies only when the error constitutes a blatant
violation of basic principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process.‟” Id. (quoting Mathews v.
State, 849 N.E.2d 578, 587 (Ind. 2006)). “The error claimed must either „make a fair trial
impossible‟ or constitute „clearly blatant violations of basic and elementary principles of
due process.‟” Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)). “This
exception is available only in „egregious circumstances.‟” Id. (quoting Brown v. State,
799 N.E.2d 1064, 1068 (Ind. 2003)).
Jefferson first argues that Detective Glenn should not have followed him to the
Subway parking lot. The Fourth Amendment to the Constitution of the United States
protects citizens against unreasonable searches and seizures.
Trimble v. State, 842
N.E.2d 798, 801 (Ind. 2006), adhered to on reh‟g, 848 N.E.2d 278 (Ind. 2006). There are
three levels of police investigation, two of which implicate the Fourth Amendment and
one of which does not. Powell v. State, 912 N.E.2d 853, 859 (Ind. Ct. App. 2009). First,
the Fourth Amendment requires that an arrest or detention that lasts for more than a short
period of time must be justified by probable cause. Id. Second, pursuant to Fourth
Amendment jurisprudence, the police may, without a warrant or probable cause, briefly
detain an individual for investigatory purposes if, based upon specific and articulable
facts, the officer has a reasonable suspicion that criminal activity has or is about to occur.
Id. The third level of investigation occurs when a police officer makes a casual and brief
inquiry of a citizen, which involves neither an arrest nor a stop. Id. This is a consensual
encounter in which the Fourth Amendment is not implicated. Id.
“ʻNot every encounter between a police officer and a citizen amounts to a seizure
requiring objective justification.ʼ” Id. (quoting Overstreet v. State, 724 N.E.2d 661, 663
(Ind. Ct. App. 2000), trans. denied). “A person is „seized‟ only when, by means of
physical force or a show of authority, his or her freedom of movement is restrained.” Id.
(quoting State v. Lefevers, 844 N.E.2d 508, 513 (Ind. Ct. App. 2006), trans. denied). It is
not the purpose of the Fourth Amendment to eliminate all contact between police and the
citizenry. Id. at 860.
Detective Glenn did not stop, detain, or otherwise restrain Jefferson when he
followed Jefferson to the Subway parking lot and approached his vehicle.
Jefferson cites no authority for the proposition that Detective Glenn violated his Fourth
Amendment rights by following him from the McDonald‟s parking lot to the Subway
parking lot. Consequently, we cannot say that Jefferson‟s Fourth Amendment rights were
violated. See Overstreet, 724 N.E.2d at 664 (holding that the Fourth Amendment was not
implicated when the officer followed the defendant to a gas station, approached him,
asked about his action, and asked for his identification).
Next, Jefferson argues that Detective Glenn had “no articulable suspicion that
criminal activity was afoot.” Appellant‟s Br. p. 9. After Detective Glenn approached
Jefferson‟s vehicle, he saw the aluminum foil and cocaine on Jefferson‟s lap. “The
Fourth Amendment does not protect objects, activities, or statements that a citizen has
exposed to the „plain view‟ of outsiders because the individual has expressed no intention
of keeping those activities private.” Trimble, 842 N.E.2d at 801 (quoting Katz v. United
States, 389 U.S. 347, 361, 88 S. Ct. 507, 516 (1967) (Harlan, J., concurring)). Because
the cocaine was in plain view as Detective Glenn was standing near Jefferson‟s vehicle,
Detective Glenn had reasonable suspicion that criminal activity was occurring and could
detain Jefferson. As a result, Jefferson failed to show that his Fourth Amendment rights
were violated, much less that fundamental error occurred.
Jefferson argues that the evidence is insufficient to sustain his conviction for Class
D felony possession of cocaine. When reviewing the sufficiency of the evidence needed
to support a criminal conviction, we neither reweigh evidence nor judge witness
credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the
evidence supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of probative value
such that a reasonable trier of fact could have concluded the defendant was guilty beyond
a reasonable doubt. Id.
To find Jefferson guilty of Class D felony possession of cocaine, the State had to
prove that Jefferson, without a valid prescription or order of a practitioner acting in the
course of the practitioner‟s professional practice, knowingly or intentionally possessed
Ind. Code § 35-48-4-6.
Jefferson argues that the evidence is insufficient
because the cocaine was not on his person and his testimony regarding the events of that
evening was different than Detective Glenn‟s account.
Jefferson claims that the
passenger threw the cocaine out of the window.
Detective Glenn testified that he saw the passenger in Jefferson‟s Tahoe with cash
in his hand and saw Jefferson with aluminum foil and a white substance, later identified
as cocaine, on his lap. Detective Glenn ordered Jefferson and the passenger not to move.
However, Jefferson folded the aluminum foil into a ball in his right hand and threw it out
the passenger window of the vehicle. Jefferson‟s claim that his passenger possessed the
cocaine is merely a request that we reweigh the evidence and judge the credibility of the
witnesses, which we cannot do.
The evidence is sufficient to sustain Jefferson‟s
conviction for possession of cocaine as a Class D felony.
Jefferson‟s Fourth Amendment rights were not violated when Detective Glenn
followed Jefferson to the Subway parking lot. Further, the cocaine was in Detective
Glenn‟s plain view as he stood next to Jefferson‟s vehicle. The evidence is sufficient to
sustain Jefferson‟s conviction. We affirm.
RILEY, J., and DARDEN, J., concur.