May, J.
Andrece Tigner appeals the trial court’s order denying his motion to suppress. He raises two issues on appeal, but we find one to be dispositive and restate it as: whether the search of Tigner incident to his arrest was supported by probable cause as required by the Fourth Amendment to the United States Constitution. We reverse and remand.
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At the suppression hearing, Officer Nickels testified that at the time Officer Wren conducted her search, Tigner was being arrested for visiting a common nuisance. A person commits the crime of visiting a common nuisance by “knowingly or intentionally” visiting a “building, structure, vehicle, or other place” used for the use, manufacture, or sale of illegal drugs. Ind. Code § 35- 45-1-5. Tigner argues the police did not have probable cause to arrest him for visiting a common nuisance at that time because there was no evidence Williams’ apartment was a place where “continuous or recurrent prohibited activity [took] place.” Leatherman v. State, 101 N.E.3d 879, 884 (Ind. Ct. App. 2018).
The State argues evidence of the apartment being a place of repeated drug use can be inferred from the facts that the apartment belonged to Williams and that community corrections arrived at Williams’ apartment based on information that Williams was using drugs. However, the plain language of the common nuisance statute requires that the visitor know the apartment was being used for the consumption, manufacture, or sale of illegal drugs. A visitor may not know the person he is visiting is subject to community corrections or that law enforcement suspects the person has recently used drugs,
Further, the State contends Tigner’s presence as a visitor in Williams’ apartment, combined with the evidence discovered during the search of the apartment, shows a fair probability Tigner knew the apartment was regularly used for the consumption or sale of illegal drugs. However, the duffel bag containing hundreds of grams of marijuana was found inside a closet that a visitor would not be able to readily observe. The smell of burnt marijuana and a small amount of marijuana in plain view would denote to a visitor an isolated instance of drug use, but it does not show the apartment was being used on a continuous basis for the distribution or consumption of marijuana. Thus, the officers lacked probable cause to arrest Tigner for visiting a common nuisance at the time Officer Wren conducted her search incident to arrest. See Leatherman, 101 N.E.3d at 884 (holding there was insufficient evidence to support conviction for maintaining a common nuisance when the State failed to prove the defendant’s vehicle was used on more than one occasion for the sale of an illegal substance).
The State also argues there was probable cause to arrest Tigner for possession of marijuana. It is illegal for a person to knowingly or intentionally possess marijuana. Ind. Code § 35-48-4-11. In order to commit the offense of possession of marijuana, the arrestee must have either actual possession or constructive possession of marijuana. Matter of J.L., 599 N.E.2d 208, 212 (Ind. Ct. App. 1992), trans. denied.
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Here, Tigner did not have an exclusive possessory interest in the apartment. He did not live there. See Gregory v. State, 885 N.E.2d 697, 704 (Ind. Ct. App. 2009) (holding visitor to property had no interest in the property searched and therefore could not challenge the constitutionality of the search), trans. denied. He was visiting Williams’ apartment at the time of the community corrections. visit. The State argues Tigner was close enough to the marijuana found in plain view that his capability to maintain dominion and control over the contraband may be inferred. However, at the time of the search incident to arrest, officers knew Tigner was in an apartment where marijuana had been consumed, but marijuana was not found in the bedroom where Tigner was located when officers entered the apartment. Thus, Tigner did not constructively possess the marijuana found in plain view because he was not in proximity to it, there is no evidence Williams’ apartment was used for the manufacture of drugs, Tigner did not make any incriminating statements, nor were items he owned intermingled with contraband. Therefore, officers lacked probable cause to arrest Tigner for possession of marijuana at the time Officer Wren conducted the search incident to arrest. See Hardister v. State, 849 N.E.2d 563, 574 (Ind. 2006) (holding visitor did not constructively possess firearms when the visitor was arrested in house’s attic and guns were found in the house’s basement and living room). Officer Wren’s search of Tigner incident to Tigner’s arrest violated Tigner’s Fourth Amendment rights against unlawful search and seizure.
Conclusion
The search of Tigner incident to arrest was unconstitutional because the officers lacked probable cause to arrest Tigner for a crime as required by the Fourth Amendment. Therefore, we reverse the trial court’s denial of Tigner’s motion to suppress and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Baker, J., and Bailey, J., concur.