Supreme Court divided on marijuana case, denies transfer

A deadlocked decision on whether to hear a case involving Fourth Amendment and similar state rights has led the Indiana Supreme Court to deny transfer to the case, with two justices dissenting on the denial of transfer.

The divided justices denied transfer to the case of Marcus Sanders v. State of Indiana, 49A05-1605-CR-971, last week, with Justices Mark Massa and Geoffrey Slaughter voting to deny transfer. The Indiana Court of Appeals affirmed Marcus Sanders’ conviction of Class A misdemeanor possession of marijuana in a December memorandum opinion.

Sanders was convicted after Marion County Sheriff’s Deputy Brandon Stewart, who was working as a courtesy officer for an Indianapolis apartment complex, observed Sanders strike a curb twice while he moved his vehicle from one parking spot to another. Stewart, believing Sanders may have been intoxicated, approached Sanders, who began to exit the vehicle. However, Stewart told him to remain in the vehicle and then observed a baggie in the seat filled with a substance later identified as marijuana.

The Court of Appeals upheld the conviction under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution, finding that at a state constitutional level, the degree of concern was high because Sanders’ conduct indicated he could be impaired. However, in a dissent to the denial of transfer, Justice Steve David disagreed with that analysis and instead said he believed the degree of intrusion, as proscribed in Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005), was low.

Specifically, David said the conclusion that the degree of intrusion was high was based on the fact that Sanders may have been impaired and could have returned to the road and put others at risk, a conclusion that was “speculative and does not seem to be supported by the record.” Further, because Stewart ordered Sanders to remain in his car, the interaction transitioned from a consensual encounter to an unlawful seizure, David said.

“As counsel for Sanders aptly noted: ‘(i)f striking a curb twice while pulling into a parking space gives rise to concern that someone is driving intoxicated, so too would many other common parking lot driving behaviors such as stopping abruptly or backing up to take a recently vacated parking space and the difficulty drivers encounter in parallel parking,’” David wrote in a dissenting opinion joined by Chief Justice Loretta Rush. “I agree. Bad parking alone is just not enough.”

The four-person high court was similarly split on the question of whether to take the case of Ricky Johnson v. State of Indiana, 79S04-1705-CR-332, and reinstated the Court of Appeals’ decision to reverse Johnson’s gun conviction in an order last week. Current Wabash Superior Judge Christopher Goff will join the high court on July 24, bringing the bench to its full capacity of five justices.