                                                                                     FILED
                                                                             Mar 29 2018, 10:34 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Kristine Kohlmeier                                        Curtis T. Hill, Jr.
      Bedford, Indiana                                          Attorney General of Indiana
                                                                Caryn N. Szyper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Daniel J. Glasgow,                                       March 29, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               47A04-1708-CR-1820
              v.                                               Appeal from the Lawrence Superior
                                                               Court.
                                                               The Honorable William G. Sleva,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               47D02-1611-F6-1442




      Sharpnack, Senior Judge


                                      Statement of the Case
[1]   Daniel Glasgow surrendered a syringe to a police officer in response to a

      question posed prior to a patdown search for weapons. He was charged with,




      Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018                           Page 1 of 15
                                                                                 1
      among other things, Level 6 felony unlawful possession of a syringe.

      Following a bench trial, he was found guilty. On appeal, he challenges the

      admission of the syringe, contending that it was obtained as the result of an

      unlawful search and seizure. Finding that the trial court properly admitted the

      syringe, we affirm.


                                                      Issue
[2]   Glasgow raises one issue for review, which we restate as whether the trial court

      abused its discretion in admitting the syringe into evidence.


                                  Facts and Procedural History
[3]   Around midnight on November 18, 2016, Officer Logan Smoot, who was

      assigned to the Lawrence County Sheriff’s Department, was driving north on

      State Road 37 when he observed two vehicles parked one behind the other on

      the shoulder. One of the vehicles had its flashers on and appeared to be broken

      down. Glasgow and Gordon Hunt were standing near the vehicles. Officer

      Smoot stopped behind the vehicles and activated the emergency lights on his

      mirrors to warn passing traffic. As the officer approached Glasgow and Hunt

      on foot to offer his assistance, Glasgow walked quickly toward the officer. The

      officer determined that the rear vehicle belonged to Glasgow and that Hunt had




      1
          Ind. Code § 16-42-19-18 (2015).


      Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018       Page 2 of 15
      driven the other vehicle to the scene. Officer Smoot recognized Glasgow from

      prior interactions but was not familiar with Hunt.


[4]   Glasgow told Officer Smoot that he had a flat tire and that Hunt had come to

      assist him. The officer then asked Glasgow and Hunt for their driver’s licenses.

      Glasgow did not have a driver’s license but provided the officer with an

      identification card. Hunt did not have any form of identification with him, so

      he provided his name and date of birth. Officer Smoot contacted a police

      dispatcher and was informed that both Glasgow and Hunt had suspended

      driver’s licenses. Officer Smoot also learned that Glasgow’s vehicle was
                                                                                               2
      uninsured and the license plate was registered to another vehicle.


[5]   Instead of arresting the men, Officer Smoot asked Glasgow and Hunt if they

      could arrange for a ride from someone and if they needed a tow truck for the

      vehicles. Hunt contacted his girlfriend to pick him up. Glasgow’s cell phone

      battery was too low to make a call.


[6]   Approximately five minutes after Officer Smoot arrived at the scene, Officer

      Timothy Butcher, who was driving by on patrol, stopped to see if Officer Smoot

      needed assistance. Officer Butcher recognized both Glasgow and Hunt from

      previous interactions.




      2
       The police dispatcher initially advised Officer Smoot that Hunt had an active warrant for his arrest but
      shortly thereafter indicated that the warrant had expired.

      Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018                          Page 3 of 15
[7]    While the officers were waiting for Glasgow and Hunt to arrange rides home,

       Officer Smoot stood and talked with Glasgow near the open passenger side

       door of Hunt’s vehicle. Hunt stood near the open passenger side door of

       Glasgow’s car. Officer Butcher was standing near Hunt. The open car door

       was between Hunt and Officer Butcher such that the officer’s view of Hunt was

       partially obstructed.


[8]    At some point, Officer Butcher saw Hunt bend down. Officer Butcher asked

       Hunt what he was doing, and Hunt responded that he was tying his shoe.

       Officer Butcher walked to the area where Hunt had bent down and discovered a

       black jewelry box, underneath a rock, about one and a half feet from the

       vehicle’s front tire. Officer Butcher opened the box and saw a clear bag that

       contained a white powdery substance. He believed the substance was heroin.

       Officer Butcher asked Hunt if the box was his. Hunt responded that it was not.

       Officer Butcher handcuffed Hunt and placed him in his patrol car.


[9]    While Officer Butcher was tending to Hunt, Glasgow was standing with Officer

       Smoot in the open doorway of the passenger side door of Hunt’s car, charging

       his cell phone so that he could call for a ride home. Officer Smoot saw Officer

       Butcher escort Hunt to a patrol car. At the time, however, Officer Smoot was

       unaware of what Officer Butcher had found because he had not heard the

       exchange between Officer Butcher and Hunt concerning the jewelry box.


[10]   After placing Hunt into his patrol car, Officer Butcher walked toward Glasgow

       and Officer Smoot. Officer Butcher asked Glasgow if the jewelry box belonged


       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 4 of 15
       to him. Glasgow said it did not. Before patting Glasgow down, Officer

       Butcher asked Glasgow if he had any needles or weapons on him that would

       “poke us or stick us.” Tr. p. 86. Officer Butcher testified that Glasgow

       “[s]eemed very uneasy” . . . as if “he didn’t want [the officers] there.” Id.

       Glasgow told the officers he had a syringe; he pulled the syringe from his left

       front jacket pocket; and, in response to Officer Butcher’s command, he placed

       the syringe on the hood of the car. The syringe appeared to have residue inside.

       Officer Butcher then asked Glasgow to empty the contents of his pockets onto

       the hood of the car, and Glasgow complied.


[11]   Officer Smoot began patting Glasgow down. As he did so, he asked Glasgow if

       he had any drugs on his person. Glasgow indicated that he did, pointed to a

       folded piece of paper he already had placed on the hood of the car, and told the

       officers that the paper contained heroin.


[12]   After the patdown was complete, the officers handcuffed Glasgow and placed

       him into Officer Smoot’s patrol car. Glasgow was transported to jail. Hunt

       was released from the scene.


[13]   On November 18, 2016, the State charged Glasgow with Level 6 felony

       possession of a narcotic drug and Level 6 felony unlawful possession of a

       syringe. The State later amended the charging information to add an habitual

       offender enhancement. On January 31, 2017, Glasgow filed a motion to

       suppress, seeking to suppress the syringe and the heroin found on his person.

       The trial court granted the motion as to the heroin that Glasgow had placed on


       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 5 of 15
       the hood after being instructed to empty his pockets but denied the motion as to

       the syringe. The trial court later clarified that it did not suppress the heroin

       found in the jewelry box. After a bench trial, the trial court found Glasgow not

       guilty of possession of a narcotic drug but guilty of unlawful possession of a

       syringe. Glasgow subsequently pleaded guilty to the habitual offender

       enhancement, and the trial court sentenced him to an agreed aggregate term of

       four years in the Indiana Department of Correction.


[14]   Glasgow now appeals.


                                     Discussion and Decision
[15]   Glasgow contends that the trial court erred in admitting into evidence the

       syringe that he produced prior to being searched. He maintains that the

       admission of the syringe into evidence violated his constitutional rights against

       unreasonable search and seizure under the Fourth Amendment to the United

       States Constitution and article I, section 11 of the Indiana Constitution because

       the officers were not justified in effecting a stop and conducting a patdown.


[16]   A trial court is afforded broad discretion in ruling on the admissibility of

       evidence, and we will reverse such a ruling only upon a showing of an abuse of

       discretion. Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). An

       abuse of discretion involves a decision that is clearly against the logic and effect

       of the facts and circumstances before the court. Id. We will not reweigh the

       evidence, and we consider conflicting evidence in the light most favorable to the

       trial court’s ruling, but we also consider any uncontested evidence favorable to

       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 6 of 15
       the defendant. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans.

       denied. When, as in the instant case, the admissibility of evidence turns on

       questions of constitutionality relating to the search and seizure of that evidence,

       our review is de novo. Jacobs v. State, 76 N.E.3d 846, 849 (Ind. 2017).


                                                  I. The Stop
                                            A. Fourth Amendment

[17]   We first address whether Officer Butcher’s stop of Glasgow violated his rights

       under the Fourth Amendment to the United States Constitution. The Fourth

       Amendment’s protection against unreasonable search and seizure has been

       extended to the states through the Fourteenth Amendment. See Berry v.

       State, 704 N.E.2d 462, 464-65 (Ind. 1998). “As a general rule, the Fourth

       Amendment prohibits a warrantless search. 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.” Id. at 465 (citations

       omitted).


[18]   One exception to the warrant requirement was recognized by the United States

       Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889

       (1968). In Terry, the Supreme Court held that “where a police officer observes

       unusual conduct which leads him reasonably to conclude in light of his

       experience that criminal activity may be afoot” the officer may briefly stop the

       suspicious person and make “reasonable inquiries” to confirm or dispel those

       suspicions. Id. at 30, 88 S. Ct. at 1884. We have held that a consideration of


       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 7 of 15
       the totality of circumstances should be utilized in determining whether the

       police had reasonable suspicion to believe there was criminal activity

       afoot. Wilson v. State, 670 N.E.2d 27, 31 (Ind. Ct. App. 1996). This necessarily

       includes a determination of whether the defendant’s own actions were

       suspicious. Carter v. State, 692 N.E.2d 464, 467 (Ind. Ct. App. 1997). While

       nervousness alone is not enough to support reasonable suspicion, nervousness

       can constitute reasonable suspicion supporting an investigatory stop when

       combined with other factors. Campos v. State, 885 N.E.2d 590, 597 n.2 (Ind.

       2008) (citing Finger v. State, 799 N.E.2d 528, 534-35 (Ind. 2003)).


[19]   If a police officer has a reasonable fear of danger when making a Terry stop, he

       may conduct a carefully limited search of the suspect’s outer clothing in an

       attempt to discover weapons that might be used to assault him. Shinault v.

       State, 668 N.E.2d 274, 277 (Ind. Ct. App. 1996). In determining whether the

       officer acted reasonably under the circumstances, “due weight must be given,

       not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific

       reasonable inferences which he is entitled to draw from the facts in light of his

       experience.” Terry, 392 U.S. at 27, 88 S. Ct. at 1883.


[20]   Some encounters between law enforcement officers and public citizens do not

       implicate the protections of the Fourth Amendment. Clark v. State, 994 N.E.2d

       252, 261 (Ind. 2013). For example, consensual encounters in which a citizen

       voluntarily interacts with an officer do not compel Fourth Amendment

       analysis. Id; Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L.

       Ed. 2d 389 (1991). Nonconsensual encounters do, though, and typically are

       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 8 of 15
       viewed in two levels of detention: a full arrest lasting longer than a short period

       of time, or a brief investigative stop. Clark, 994 N.E.2d at 261. The former of

       these requires probable cause to be permissible; the latter, a Terry stop, requires

       a lower standard of reasonable suspicion. Id.


[21]   Here the initial encounter between Glasgow, Hunt, and the officers was

       consensual. Officer Smoot observed Glasgow and Hunt stranded on the side of

       the road. The officer stopped to determine if the men were okay and to lend

       assistance. Officer Butcher stopped shortly thereafter to lend assistance.

       Although the officers determined that both Glasgow and Hunt had suspended

       licenses the officers did not arrest the men. Instead, the officers merely waited

       with them while they arranged for rides. However, during the consensual

       encounter, Hunt bent down to the ground in a suspicious manner. Officer

       Butcher investigated and found a jewelry box near where Hunt had knelt that

       contained a substance Officer Butcher determined to be heroin based upon his

       training and experience. Hunt was handcuffed and placed into a patrol car.

       Officer Butcher testified that Glasgow was, at that time, not free to leave the

       scene.


[22]   Thus, upon the discovery of the heroin, the consensual encounter became a

       nonconsensual encounter, a Terry stop, that implicated the protections of the

       Fourth Amendment. Id. (determining whether encounter was consensual or

       involved some level of detention turns on evaluation, under all circumstances,

       of whether reasonable person would feel free to disregard police and go about

       his business). As such, we must determine whether under the totality of the

       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 9 of 15
       circumstances, Officer Butcher had reasonable suspicion to believe that criminal

       activity was afoot such that the Terry stop of Glasgow was justified.


[23]   Glasgow and Hunt were stopped along the side of a road around midnight.

       Officer Butcher testified that Glasgow appeared very uneasy, as if he did not

       want the officers present. While the officers stood with the men, Hunt bent

       down in a suspicious manner behind an open car door that partially blocked

       Officer Butcher’s view of him. Officer Butcher looked around the area where

       Hunt had knelt and discovered the jewelry box nearby. The box contained

       heroin. Although both Glasgow and Hunt denied ownership of the box,

       considering the totality of the circumstances, we find that Officer Butcher had

       reasonable suspicion to believe that criminal activity involving Hunt and

       Glasgow was afoot and that further investigation was necessary. The Terry stop

       was not a violation of Glasgow’s Fourth Amendment rights. See, e.g., United

       States v. Bailey, 743 F.3d 322, 337 (2d Cir. 2014) (“persons suspected of

       discarding criminal evidence are regularly detained pursuant to Terry while

       police search for the discarded item to confirm or dispel their suspicions”); see

       also United States v. Vasquez, 638 F.2d 507, 523-24 (2d Cir. 1980) (approving

       restraint of fidgety suspect to search shopping bag dropped at his feet and

       suspected of containing weapon); United States v. Caruthers, 458 F.3d 459, 468-69

       (6th Cir. 2006) (upholding Terry stop while police searched area where detainee

       “was observed in a position suggesting that he was discarding what . . . might

       have been a gun”); United States v. Soto-Cervantes, 138 F.3d 1319, 1323 (10th Cir.

       1998) (upholding Terry stop while police searched nearby area where detainee’s

       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 10 of 15
       furtive movements “could support an inference that the man had left to hide

       something upon spotting the officers”); United States v. Robinson, 30 F.3d 774,

       784 (7th Cir. 1994) (approving Terry stop for twenty to thirty minutes while

       police searched area for discarded contraband); cf. Michigan v. Summers, 452

       U.S. 692, 700 n.12, 101 S. Ct. 2587, 2593, 69 L. Ed. 2d 340 (“If the purpose

       underlying a Terry stop – investigating possible criminal activity – is to be

       served, the police must under certain circumstances be able to detain the

       individual . . . ‘while it is determined if in fact an offense has occurred in the

       area, a process which might involve checking certain premises, locating and

       examining objects abandoned by the suspect . . .’”) (quoting 3 LaFave, Search

       and Seizure § 9.2, at 36-37 (1st ed. 1978)).


                                           B. Indiana Constitution

[24]   We next determine whether the officer’s stop of Glasgow violated his rights

       under article I, section 11 of the Indiana Constitution. Article I, section 11

       provides for the “right of the people to be secure in their persons, houses,

       papers, and effects, against unreasonable search or seizure. . . .” Despite the

       fact that the text of article I, section 11 is nearly identical to the Fourth

       Amendment, Indiana courts interpret and apply it “independently from federal

       Fourth Amendment jurisprudence.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind.

       2001). In conducting analysis under this provision, we focus on whether the

       officer’s conduct “was reasonable in light of the totality of the circumstances.”

       Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006). In making this determination,

       we balance: (1) the degree of concern, suspicion, or knowledge that a violation

       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018    Page 11 of 15
       has 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. Id. When police conduct is challenged as violating section

       11, the burden is on the State to show that the search or seizure was reasonable

       under the totality of the circumstances. State v. Washington, 898 N.E.2d 1200,

       1206 (Ind. 2008).


[25]   Glasgow argues that Officer Butcher’s concern, suspicion, or knowledge was

       based upon Glasgow’s nervousness; that there was a high degree of

       intrusiveness imposed upon Glasgow’s activities; and that, although there was

       “some moderate law enforcement need in the temporary detention of Glasgow,

       this need was heavily outbalanced by the lack of reasonable suspicion and

       degree of intrusion imposed on him.” Appellant’s Br. p. 22. The State

       contends that Officer Butcher had a “justifiably high degree of concern or

       knowledge that a violation . . . had occurred after he discovered the heroin;”

       that the degree of intrusion was minimal because the officer “merely questioned

       Glasgow and did not impede his ordinary activities in any way;” and the law

       enforcement needs weigh in favor of the officers’ actions because “they did not

       do more than what was reasonably required to investigate the heroin they

       discovered.” Appellee’s Br. p. 11.


[26]   The record established that the officers stopped to lend assistance to Glasgow

       and Hunt when they saw the two men standing on the side of the road with

       their vehicles. Although the officers noticed that the men appeared nervous and

       that they had suspended licenses, the officers did not arrest the men for the

       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 12 of 15
       violations. Instead, the officers allowed the men to arrange for rides. While the

       officers waited with Glasgow and Hunt, Hunt behaved in a suspicious manner

       by bending down as if to tie his shoe. When Officer Butcher used his flashlight

       to inspect the area near where Hunt knelt, he discovered a jewelry box and

       determined that the box contained heroin.


[27]   Based upon these facts, the officers had a high degree of suspicion that a

       violation had occurred. Regarding the degree of intrusion, it was minimal.

       Until the box containing heroin was found, the encounter with the officers was

       consensual. Once the heroin was discovered, the officers, shortly thereafter,

       secured Glasgow and Hunt and placed them in the patrol cars. Finally, the

       extent of law enforcement needs after the discovery of the heroin was high

       because the officers needed to determine whether Glasgow and Hunt were

       involved in illegal drug activity. We conclude that under the totality of the

       circumstances, Officer Butcher did not act unreasonably in effecting a stop of

       Glasgow to further investigate whether he was engaging in illegal drug activity.

       There was no violation of Glasgow’s rights under article I, section 11 of the

       Indiana Constitution.


                                           II. Patdown Search
[28]   Having found that the stop of Glasgow was lawful, we next address the

       patdown search. Under the Terry stop exception to the warrant requirement, “if

       [an officer] has reasonable fear of danger, he may conduct a carefully limited

       search of the outer clothing of the suspect in an attempt to discover weapons

       that might be used to harm him.” Williams v. State, 754 N.E.2d 584, 588 (Ind.
       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 13 of 15
       Ct. App. 2001), trans. denied. To conduct a patdown during a Terry stop, an

       “officer need not be absolutely certain that the individual is armed; the issue is

       whether a reasonably prudent man in the circumstances would be warranted in

       the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27,

       88 S. Ct. at 1883.


[29]   Glasgow contends that Officer Butcher’s patdown search was not based upon a

       reasonable concern for officer safety. As such, the admission of the syringe into

       evidence violated his constitutional rights against unreasonable search and

       seizure under the Fourth Amendment to the United States Constitution.

       Ordinarily we would address Glasgow’s contention by examining whether

       Officer Butcher was justified in believing that his and Officer Smoot’s safety

       was in danger at the time the search was conducted; however, under the

       circumstances of this case, we do not reach this question because the syringe

       was not the product of a search but, instead, was produced in response to a

       question.


[30]   As part of the investigation as to whether Glasgow and Hunt were involved in

       illegal drug activity, and prior to conducting the patdown, Officer Butcher asked

       Glasgow if he had any needles or weapons. The question was asked during a

       lawful stop; the question was justified by the officer’s legitimate concern about

       being stabbed or poked with a used needle (see, e.g., Lockett v. State, 747 N.E.2d

       539, 543 (Ind. 2001) (holding that the Fourth Amendment does not prohibit

       police from routinely inquiring about presence of weapons)); and the

       questioning did not materially extend the duration of the stop or the nature of

       Court of Appeals of Indiana | Opinion 47A04-1708-CR-1820 |March 29, 2018   Page 14 of 15
       the intrusion (see Finger, 799 N.E.2d at 535 (“‘an investigative detention must be

       temporary and last no longer than is necessary to effectuate the purpose of the

       stop’”) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L.

       Ed. 2d 229 (1983)).


                                                 Conclusion
[31]   For the reasons stated above, the trial court properly admitted the syringe into

       evidence, and the judgment of the trial court is affirmed.


[32]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




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