 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,                     May 16 2013, 8:23 am
 collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

JEFFREY A. BALDWIN                                   GREGORY F. ZOELLER
TYLER D. HELMOND                                     Attorney General of Indiana
Voyles Zahn & Paul
Indianapolis, Indiana                                J.T. WHITEHEAD
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

GREGORY JOHNSON,                                     )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 49A02-1209-CR-709
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable Peggy Ryan Hart, Master Commissioner
                             Cause No. 49G20-1104-FA-027007


                                            May 16, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Gregory Johnson appeals his convictions for Class A felony dealing in cocaine and

Class A felony dealing in a narcotic drug. He contends that the trial court erred in

admitting the drugs found in his car into evidence because they were the result of an

unconstitutional search and seizure. Finding that the search and seizure did not violate

the Indiana or United States constitution, we affirm.

                             Facts and Procedural History

       In the weeks leading up to April 18, 2011, James McCune, a loss-prevention

officer at K-Mart at 7425 East Washington Street in Indianapolis, noticed a black Camaro

with the same driver in the parking lot about two or three times per week. Tr. p. 150,

170-71. The same man would also approach and enter the car each time, leaving in under

a minute.   Id. at 153.   Indianapolis Metropolitan Police Department Officer Joseph

Beasley, a friend of McCune, was at the K-Mart to investigate a shoplifting before April

18, 2011, and also observed the black Camaro in the parking lot. He saw the same man

approach and enter the car as well. He saw a hand-to-hand exchange between the driver

and the man, and then after one to two minutes, the man left. Id. at 85. Officer Beasley

was unable to investigate the car because of the shoplifting he was there to investigate, so

he told McCune to call him on his cell phone if he ever saw the black Camaro return and

the same man get into the car. Id. at 86.

       On April 18, 2011, McCune saw the black Camaro in the K-Mart parking lot again

and called Officer Beasley to notify him. Officer Beasley asked for assistance on a

narcotics investigation over his police radio, and IMPD Patrol Officer Stacie Riojas was

                                             2
dispatched to the scene to assist him. At the scene, the same man entered the black

Camaro, and seconds later Officer Beasley arrived in the parking lot. The man, later

identified as Jason Rose, got out of the car approximately thirty seconds after he got into

the car and began to walk away. State’s Ex. 1. Officer Beasley turned on his emergency

lights, and Officer Riojas arrived at the scene. Officer Riojas stopped Rose as he was

walking away, and Officer Beasley ordered the driver out of the black Camaro. The

driver was identified as Johnson, and he was handcuffed and patted down.

       As Officer Riojas stopped Rose, he tossed a package wrapped in aluminum foil

onto the ground underneath her vehicle. Both McCune and another K-Mart security

officer, Lori Sizemore, saw Rose throw the package underneath the vehicle and informed

the officers. Officer Riojas retrieved the package and gave it to Officer Beasley. Based

on his training and experience, Officer Beasley concluded that the package likely

contained heroin; he heat-sealed and collected the package as evidence.

       After handcuffing and patting Johnson down, Officer Beasley informed him of his

Miranda rights and asked if he could search the black Camaro; Johnson refused. Johnson

also said that he understood his rights and that he had no guns or weapons in the car.

Officer Beasley then called for a K-9 officer, and Lawrence Police Department Officer

John Clark responded to the scene with his dog, Rudy, forty minutes later. Rudy is

certified in narcotics and is trained to detect marijuana, cocaine, crack cocaine, heroin,

and methamphetamine.      When Rudy detects one of those controlled substances, he

“alerts” Officer Clark by sitting.    Rudy alerted both by the driver’s door and the

passenger’s door of the black Camaro. Once inside the car, Rudy alerted at a cup holder

                                            3
that held a jewelry box. Officer Clark told the other officers that there was something

inside the jewelry box.           Officer Beasley looked inside the jewelry box and found

individually wrapped foil packages suspected of containing narcotics, similar to the

package that Rose had tossed under Officer Riojas’s vehicle. Officer Beasley then called

in a narcotics detective.

       IMPD Detective Joshua Harpe arrived at the scene and took over as the lead

detective. Officer Beasley informed him that he had read Johnson his Miranda rights,

and Detective Harpe asked Johnson if he was selling drugs. Johnson responded, “it is

what it is,” and also told Harpe that he had some heroin in his coat that was inside the

car.1 Tr. p. 349, 364. The police found a leather jacket inside the car that had three more

bags of narcotics in the pocket. Five hundred and fifty dollars in cash was also found on

Johnson’s person and in his car.

       The amount of narcotics, money, and lack of paraphernalia was determined to be

consistent with someone who was dealing rather than using the drugs. Id. at 355-60. In

total, the drug evidence collected included four packages of drugs—16.9234 grams of

cocaine, 4.0186 grams of heroin, 2.5452 grams of cocaine, and 7.4716 grams of

cocaine—in the black Camaro, and 0.4048 grams of heroin in the foil package dropped

on the ground by Rose. State’s Ex. 14-17.

       The State charged Johnson with Class A felony dealing in cocaine, Class C felony

possession of cocaine, two counts of Class A felony dealing in a narcotic drug, and Class

C felony possession of a narcotic drug. Johnson moved to suppress the drugs that were


       1
           Johnson referred to the heroin by its slang term, “boy.” Tr. p. 352.
                                                      4
found in his car, and the trial court denied the motion after a suppression hearing. A

bench trial was held, and Johnson again objected to the admission of the drug evidence,

arguing that it was the product of an illegal search and seizure. The trial court overruled

his objections and found Johnson guilty of all but one count of Class A felony dealing in

a narcotic drug. The trial court merged the convictions to avoid double-jeopardy issues

and entered judgment on one Class A felony dealing in cocaine count and one Class A

felony dealing in a narcotic drug count. The trial court sentenced Johnson to thirty years

on each count, to run concurrently.

       Johnson now appeals.

                                  Discussion and Decision

       Johnson contends that the trial court abused its discretion by admitting the drug

evidence at trial.   A trial court has broad discretion in ruling on the admission or

exclusion of evidence. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009).

The trial court’s ruling on the admissibility of evidence will be disturbed on review only

upon a showing of an abuse of discretion. Id. An abuse of discretion occurs when the

trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id.

Error may not be predicated upon a ruling that admits or excludes evidence unless a

substantial right of the party is affected. Ind. Evidence Rule 103.

       Johnson contends that the trial court abused its discretion in admitting the drug

evidence because it was the product of an unconstitutional search and seizure, in violation

of both the Fourth Amendment of the United States Constitution and Article 1, Section

11 of the Indiana Constitution.

                                             5
       We first note that we are confining our analysis to the few minutes between when

Johnson was asked to exit his car and was handcuffed and patted down by Officer

Beasley and when Rose tossed the package wrapped in aluminum foil onto the ground

underneath Officer Riojas’s vehicle. Once Rose tossed the package on the ground,

Officer Beasley had probable cause to conduct a warrantless search of the vehicle. Due

to his experience and training as a police officer, Officer Beasley believed that the

aluminum foil package contained narcotics, specifically heroin, so he had probable cause

to believe that a crime had just taken place. We therefore only must determine if Officer

Beasley’s initial stop, pat-down, and seizure of Johnson ran afoul of the Fourth

Amendment or Article 1, Section 11 of the Indiana Constitution.

                               I. United States Constitution

       The Fourth Amendment to the United States Constitution provides that

       [t]he right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated,
       and no Warrants shall issue, but upon probable cause, supported by Oath or
       affirmation, and particularly describing the place to be searched, and the
       person or things to be seized.

The Fourth Amendment is made applicable to the States via the Due Process Clause of

the Fourteenth Amendment.        Mapp v. Ohio, 367 U.S. 643, 656 (1961).        Evidence

obtained in violation of a defendant’s Fourth Amendment rights may not be introduced

against him at trial. Id. at 648-60.

       Johnson contends that he was arrested when Officer Beasley ordered him out of

his car and handcuffed him. He argues that there was no probable cause for the arrest, so

he was the subject of an unconstitutional search and seizure. We disagree.

                                            6
       “Searches performed by government officials without warrants are per se

unreasonable under the Fourth Amendment, subject to a ‘few specifically established and

well-delineated exceptions.’” Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006) (quoting

Katz v. United States, 389 U.S. 347, 357 (1967)).         When a warrantless search is

conducted, the State must show that an exception to the warrant requirement existed at

the time of the search. Patterson v. State, 958 N.E.2d 478, 482 (Ind. Ct. App. 2011).

       One such exception to the warrant requirement is a Terry stop, during which a

police officer may conduct an investigatory stop if he has a “reasonably articulable

suspicion of criminal activity.” State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind. 2011)

(citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion necessitates that

there is “some objective manifestation that the person stopped is, or is about to be,

engaged in criminal activity.” Woodson v. State, 960 N.E.2d 224, 227 (Ind. Ct. App.

2012) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). There is not a set rule

as to what constitutes “reasonable suspicion,” but we “look at the totality of the

circumstances of each case to see whether the detaining officer has a particularized and

objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266,

273 (2002) (citing Cortez, 449 U.S. at 417-18). Johnson argues that Officer Beasley’s

actions were an arrest and not a Terry stop, and he points to the fact that he was

handcuffed. While handcuffing a person may turn an investigatory stop into an arrest, we

again must examine the totality of the circumstances to determine how to classify the

officer’s actions. Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010).




                                            7
       As part of a valid Terry stop, a police officer may take steps to ensure his own

safety, including ordering a person out of his vehicle, id., and conducting a warrantless

search for weapons. Wright v. State, 766 N.E.2d 1223, 1232 (Ind. Ct. App. 2002). “The

officer need not be absolutely certain that the individual is armed, but only that a

reasonably prudent person in the same circumstances would be warranted in the belief

that his safety or that of another was in danger.” Id. In this case, Officer Beasley

believed that he was coming across a drug deal that had just taken place. He and

McCune both had seen the same car with the same people involved in a hand-to-hand

transaction in the same location before. Each time, the man entered the black Camaro for

a short period of time and immediately got out of the car. Based on his experience,

Officer Beasley understood the situation to be a drug deal. The Seventh Circuit has

called drug dealing “a ‘crime infused with violence,’” United States v. Brown, 188 F.3d

860, 865 (7th Cir. 1999) (quoting United States v. Gambrell, 178 F.3d 927, 929 (7th Cir.

1999)), so it was not unreasonable for Officer Beasley to conduct a Terry stop for his

own safety in this situation.

       As far as Johnson being handcuffed, “the Seventh Circuit, along with other states

that have addressed this exact issue, have determined, that after considering all of the

surrounding circumstances the mere use of handcuffs does not convert a Terry stop into a

full arrest so as to require probable cause.”   Wright, 766 N.E.2d at 1233; see also

Reinhart, 930 N.E.2d at 47; Willis v. State, 907 N.E.2d 541, 546 (Ind. Ct. App. 2009).

Given the fact that Officer Beasley reasonably believed that he was witnessing a drug

deal, which is a potentially violent crime, we find that based on the totality of the

                                           8
circumstances, placing Johnson in handcuffs did not rise to the level of an arrest. Officer

Beasley was acting in a reasonable way to ensure his safety in the situation while he

conducted a permissible Terry stop.

       We therefore find that Officer Beasley conducted a Terry stop of Johnson and he

had the reasonable suspicion necessary to do so in this situation. He was not required to

have probable cause to conduct the pat-down, only reasonable suspicion, and placing

Johnson in handcuffs was, in this instance, reasonable to ensure police officer safety.

This conduct did not violate the Fourth Amendment, and as a result, the trial court did not

err by admitting the drugs found in Johnson’s car into evidence.

                                II. Indiana Constitution

       Johnson also argues that Officer Beasley’s search and seizure violated Article 1,

Section 11 of the Indiana Constitution, which provides:

       The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable search or seizure, shall not be violated; and no
       warrant shall issue, but upon probable cause, supported by oath or
       affirmation, and particularly describing the place to be searched, and the
       person or thing to be seized.

The language of this provision tracks the Fourth Amendment almost verbatim; however,

the analysis differs from the Fourth Amendment analysis. Webster v. State, 908 N.E.2d

289, 291-92 (Ind. 2009).     The legality of a governmental search under the Indiana

Constitution turns on an evaluation of the reasonableness of the police conduct under the

totality of the circumstances. Id. at 292. Although we recognize there may be other

relevant considerations under the circumstances, we have explained the reasonableness of

a search or seizure under the Indiana Constitution as turning on a balance of: “1) the

                                             9
degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of

intrusion that the method of the search or seizure imposes on the citizen’s ordinary

activities, and 3) the extent of law enforcement needs.” Id.

       In this case, we find that Officer Beasley’s initial search and seizure of Johnson

was reasonable under the totality of the circumstances.        The degree of concern or

suspicion that a violation, specifically a drug deal, had occurred was high. Officer

Beasley was aware that the same car, with the same man approaching and entering the

car, and the same suspected driver had previously been in the K-Mart parking lot before

and conducted a suspected drug deal. Tr. p. 245-52. The same people were seen

engaging in the same behavior in the same parking lot again, so Officer Beasley

suspected that he was witnessing another drug deal. Id. Finally, Rose left the scene

when Officer Beasley arrived with his emergency lights activated. Id. at 250-51. All of

these facts, taken together, show that there was a high degree of concern that a violation

was taking place.

       We also find the degree of intrusion into Johnson’s ordinary activities to be

reasonable for the facts of the situation as known by Officer Beasley. Officer Beasley

handcuffed Johnson and conducted a pat-down for weapons for officer safety when he

believed that he had come across a drug deal taking place. Id. at 252-53. Johnson was

only detained for a few minutes before Rose tossed the aluminum package under Officer

Riojas’s car and provided probable cause to search Johnson’s vehicle. State’s Ex. 11. A

short intrusion for a pat-down when a police officer believed he had witnessed a drug

deal was a reasonable intrusion into Johnson’s ordinary activities.

                                            10
       Finally, we also find that Johnson’s search and seizure was reasonable in light of

law enforcement’s needs. Officer Beasley was stopping an individual he suspected of

conducting a drug deal. Tr. p. 252. Officer Beasley ordered Johnson out of his car and

patted him down, actions that we find to be reasonable for a police officer to take when

he believes that he has come across an individual who has just committed a crime.

       After viewing all of the circumstances and balancing the relevant factors, we find

that Officer Beasley’s initial detention of Johnson was reasonable and did not violate

Article 1, Section 11 of the Indiana Constitution. The trial court therefore did not err by

admitting the drugs found in Johnson’s car into evidence.

       Affirmed.

KIRSCH, J., concurs.

PYLE, J., dissents without opinion.




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