                                                                       FILED
                                                                  Dec 19 2019, 9:22 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Paul J. Podlejski                                         Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Courtney L. Staton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Michael D. Johnson,                                       December 19, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-975
        v.                                                Appeal from the Madison Circuit
                                                          Court
State of Indiana,                                         The Honorable Angela G.
Appellee-Plaintiff.                                       Warner Sims, Judge
                                                          Trial Court Cause No.
                                                          48C01-1602-F5-402



Bailey, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019                       Page 1 of 10
                                             Case Summary
[1]   Michael D. Johnson (“Johnson”) appeals his conviction for Dealing in a Look-

      a-like Substance, as a Level 5 felony.1 Johnson presents the sole issue of

      whether the trial court abused its discretion in admitting evidence obtained in

      violation of his Fourth Amendment right to be free from an unreasonable

      search and seizure.2 We reverse.



                                Facts and Procedural History
[2]   On November 8, 2015, Brett Eversole (“Eversole”) was a gambling patron at

      the Hoosier Park Casino in Anderson, Indiana. Eversole reported to a security

      officer that a black male wearing a white hat had approached him at a gambling

      machine and asked if he “wanted to buy white girl.” (Tr. Vol. II, pg. 89.)

      Eversole assumed “white girl” meant cocaine. The security officer notified shift

      supervisor Matt Miller (“Miller”), who notified Gaming Enforcement Agent




      1
          Ind. Code § 35-48-4-4.6(a)(5).
      2
        Johnson briefly references Article 1, Section 11 of the Indiana Constitution, Indiana’s search and seizure
      clause, which is to be interpreted and analyzed independent of the Fourth Amendment to the United States
      Constitution. Baniaga v. State, 891 N.E.2d 615, 618 (Ind. Ct. App. 2008). However, Johnson does not
      develop a corresponding argument with respect to the factors to be balanced in determining the
      reasonableness of a search or seizure under the Indiana search and seizure clause. See Litchfield v. State, 824
      N.E.2d 356, 361 (Ind. 2005) (determining that the reasonableness of a search or seizure turns upon a balance
      of (1) the degree of concern, suspicion, or knowledge that a violation had occurred; (2) the degree of intrusion
      the method of the search or seizure imposes on the citizen’s ordinary activities; and (3) the extent of law
      enforcement needs). Pursuant to Indiana Appellate Rule 46, Johnson has waived the issue for review.

      Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019                               Page 2 of 10
      Zach Wilkinson (“Agent Wilkinson”).3 Miller also requested video surveillance

      of the gaming floor.


[3]   Agent Wilkinson reviewed surveillance footage, without audio, and “confirmed

      the interaction” of approximately thirty seconds between Eversole and a black

      male wearing a white hat. Id. at 106. He located Johnson, a black male

      wearing a white hat, and asked that he come to the gaming enforcement

      interview room. When they reached the interview room, Agent Wilkinson

      advised Johnson that he would “need a pat down.” Id. at 111. Agent

      Wilkinson detected and removed from Johnson’s pocket an object that “felt like

      a ball of drugs.” Id. at 113. He placed Johnson in handcuffs and provided a

      Miranda4 warning.


[4]   An Indiana State Police chemist tested the white powder; she identified no drug

      but detected a chemical possibly derived from baking soda. On February 29,

      2016, the State charged Johnson with Dealing in a Look-a-like Substance. On

      April 5, 2017, Johnson filed a motion to suppress the evidence obtained as a

      result of the warrantless search of his pocket. On April 24, 2017, the trial court

      conducted a hearing on the motion to suppress and the parties agreed to submit




      3
       Agent Wilkinson testified that a gaming enforcement agent has full police powers, including authority to
      make an arrest.
      4
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019                            Page 3 of 10
      briefs regarding their respective positions on admissibility. On October 4, 2017,

      the trial court denied Johnson’s motion to suppress.


[5]   Johnson was brought to trial before a jury on January 23, 2019, and he objected

      to the admission of evidence garnered in the search of his pocket. Agent

      Wilkinson testified as follows: Johnson “voluntarily came back” to the

      interview room; Agent Wilkinson informed Johnson that he would need to

      submit to a pat-down; Johnson was “free to leave” when he submitted to the

      pat-down; Agent Wilkinson detected a bulge “likely some type of drug;” he

      “knew it wasn’t a weapon;” and he handcuffed Johnson after removing the

      item. (Tr. Vol. II, pgs. 128-29.) Johnson took the position that law

      enforcement had unlawfully exceeded the scope of a pat-down. The State

      argued that Agent Wilkinson had probable cause to make an arrest when he

      removed the ball of powder from Johnson’s pocket. The trial court agreed with

      the State that what had transpired was “a search incident to arrest.” Id. at 148.


[6]   Johnson was convicted as charged and sentenced to four years imprisonment,

      with three years suspended to probation. Johnson now appeals.



                                 Discussion and Decision
[7]   The trial court has broad discretion to rule on the admissibility of evidence.

      Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). Generally, evidentiary rulings

      are reviewed for an abuse of discretion and reversed when admission is clearly

      against the logic and effect of the facts and circumstances. Id. However, when


      Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019     Page 4 of 10
      a challenge to an evidentiary ruling is predicated on the constitutionality of a

      search or seizure of evidence, it raises a question of law that is reviewed de

      novo. Id. The State has the burden to demonstrate that the measures it used to

      seize information or evidence were constitutional. State v. Roger, 883 N.E.2d

      136, 139 (Ind. Ct. App. 2008). “When a search is conducted without a warrant,

      the State has the burden of proving that an exception to the warrant

      requirement existed at the time of the search.” Bradley v. State, 54 N.E.3d 996,

      999 (Ind. 2016).


[8]   The Fourth Amendment “regulates all nonconsensual encounters between

      citizens and law enforcement officials.” Thomas, 81 N.E.3d at 625. The Fourth

      Amendment guarantees that:


              The 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 persons
              or things to be seized.


      U.S. Const. amend. IV. Nonconsensual encounters “typically are viewed in

      two levels of detention: a full arrest lasting longer than a short period of time,

      or a brief investigative stop.” Clark v. State, 994 N.E.2d 252, 261 (Ind. 2013).

      The former requires probable cause to be permissible, while the latter requires a

      lower standard of reasonable suspicion. Id. Determining whether there was a

      consensual encounter, or some level of detention turns upon an objective



      Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019        Page 5 of 10
       evaluation of whether, under all the circumstances, a reasonable person would

       feel free to disregard the police and go about his business. Id.


[9]    Agent Wilkinson testified that he asked Johnson to come into the interview

       room to explain “his side of the story” and Johnson “voluntarily came back.”

       (Tr. Vol. II, pg. 111.) Agent Wilkinson explained that Johnson would “need a

       pat-down,” Id. at 112, and Johnson submitted. The initial encounter between

       Johnson and Agent Wilkinson was akin to a Terry5 stop. See Clenna v. State, 782

       N.E.2d 1029 (Ind. Ct. App. 2003) (recognizing that an investigative stop by an

       officer responding to a report of suspicious activity in a drug store was a Terry

       stop).


[10]   It is well-settled Fourth Amendment jurisprudence that a police officer may,

       without a warrant or probable cause, briefly detain an individual for

       investigatory purposes if the officer has a reasonable suspicion that criminal

       activity “‘may be afoot.’” Id. at 1032 (citing Terry v. Ohio, 392 U.S. 1, 27

       (1968)). If the officer possesses a reasonable fear of danger when making a

       Terry stop, he or she may conduct a carefully limited search of the suspect’s

       outer clothing in an attempt to discover weapons that might be used to assault

       the officer. Granados v. State, 749 N.E.2d 1210, 1213 (Ind. Ct. App. 2001).

       Johnson does not argue that Agent Wilkinson lacked a reasonable suspicion of




       5
           Terry v. Ohio, 392 U.S. 1 (1968).


       Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019      Page 6 of 10
       criminal activity and he does not challenge the decision to perform a pat-down

       search.


[11]   But the encounter did not end with a pat-down. Agent Wilkinson reached into

       Johnson’s pocket and retrieved a ball of a powdered substance, which he did

       not suspect to be a weapon. Generally, the Fourth Amendment to the United

       States Constitution prohibits a warrantless search. Berry v. State, 704 N.E.2d

       462, 465 (Ind. 1998). One exception to this rule is a search incident to a lawful

       arrest. Gibson v. State, 733 N.E.2d 945, 953 (Ind. Ct. App. 2000). “Evidence

       resulting from a search incident to a lawful arrest is admissible at trial.” Id.

       However, “[a]n unlawful arrest cannot be the foundation of a lawful search.”

       Id. “Evidence obtained as a direct result of a search conducted after an illegal

       arrest is excluded under the fruit of the poisonous tree doctrine.” Id. at 954.


[12]   The salient inquiry is whether Agent Wilkinson had probable cause to arrest

       Johnson when the search occurred. “Probable cause exists where the facts and

       circumstances within the knowledge of the officer making the search, based on

       reasonably trustworthy information, are sufficient in themselves to warrant a

       person of reasonable caution in the belief that an offense has been or is being

       committed.” Robles v. State, 510 N.E.2d 660, 664 (Ind. 1987). The amount of

       evidence necessary to satisfy the probable cause requirement for a warrantless

       arrest is to be determined on a case-by-case basis. Moffitt v. State, 817 N.E.2d

       239, 246 (Ind. Ct. App. 2004).




       Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019       Page 7 of 10
[13]   Prior to detaining Johnson, Agent Wilkinson had interviewed Eversole, who

       reported a brief encounter in which a black male wearing a white hat tried to

       sell “white girl,” a street term for cocaine. (Tr. Vol. II, pg. 89.) The agent’s

       review of surveillance footage corroborated an encounter but no criminality.6

       However, he later learned that Johnson was in possession of a ball of

       something. Arguably, Eversole’s report of criminal activity coupled with

       Johnson’s apparent possession of contraband established probable cause for an

       arrest. But the very brief testimony elicited from Agent Wilkinson does not

       establish when he obtained the additional knowledge.


[14]   Agent Wilkinson testified on direct examination as follows:


                  Question: Okay and when you entered into the interview room
                  did you inform him that you needed to pat him down?


                  Agent: Yes. [Objection]


                  Court: Sustained.


                  Question: Were there any items that drew your attention?


                  Agent: Yes.


                  Question: Okay – tell us about that.




       6
           There was no audio, and Agent Wilkinson did not see a transfer of anything.


       Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019              Page 8 of 10
               Agent: There was essentially it felt like a giant ball and so that’s
               – and with the information I had with the report of him
               attempting to sell drugs to patrons it felt you know like a ball of
               drugs essentially so that was –


               Question: Okay you’ve had some basic drug recognition
               training?


               Agent: Yes. . . .


               Question: Okay so when you felt this – based on the information
               you already have – had did you remove it from his pocket?


               Agent: Yes.


       (Tr. Vol. II, pgs. 111-114.)7


[15]   The testimony suggests alternative scenarios as to how Agent Wilkinson

       discovered the apparent contraband. The agent may have been conducting “a

       carefully limited search of outer clothing to detect weapons,” Granados, 749

       N.E.2d at 1213, when he discerned characteristics consistent with contraband,

       notwithstanding the fabric barrier. Or Agent Wilkinson, having received

       information of an attempted sale of contraband, may have reached into

       Johnson’s pocket and examined the item before concluding it was likely




       7
         Agent Wilkinson testified in a similar fashion at the suppression hearing. He was asked “what happened
       when you got into the room” and responded: “We got in the room I padded [sic] him down for weapons –
       and in his front, I believe, left pocket there was a giant ball and you know from the information I had and
       also with my training and experience I took that to be drugs or contrabands [sic] so – once that was
       discovered he was then placed under arrest.” (Tr. Vol. 1, pg. 71.)

       Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019                             Page 9 of 10
       contraband. In the first scenario, Agent Wilkinson would arguably have,

       without exceeding the scope of a Terry pat-down for weapons, developed

       probable cause for an arrest. In the second scenario, Agent Wilkinson would

       have conducted the search before having probable cause for an arrest and thus

       the seizure did not take place in a search incident to arrest. It is incumbent

       upon the State to prove that the measures it used to conduct a search and seize

       evidence were constitutional. Roger, 883 N.E.2d at 139. Here, the State failed

       to satisfy its burden; the evidence does not dispel concern that the ball of

       powder retrieved from Johnson’s pocket was obtained in violation of his Fourth

       Amendment right to be free from an unlawful search and seizure.



                                                Conclusion
[16]   The State did not establish that the measures used to seize the challenged

       evidence were constitutional. Accordingly, the trial court abused its discretion

       in admitting the evidence.


[17]   Reversed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019     Page 10 of 10
