MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Mar 27 2019, 10:25 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott H. Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Maurice Patterson,                                       March 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2024
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1707-F6-685



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019                Page 1 of 11
[1]   Maurice Patterson appeals his drug possession convictions and asserts the trial

      court admitted evidence in violation of the Fourth Amendment and the Indiana

      Constitution. We affirm.


                                         Facts and Procedural History

[2]   At approximately 2:30 a.m. on July 26, 2017, a person who worked part-time as

      security at an apartment building in South Bend called 911 and reported a

      vehicle which he thought might be involved in drug dealing. The police

      responded to the location at approximately 2:47 a.m., but the vehicle had

      already left the area. At approximately 3:21 a.m., the security guard again

      called 911 and reported that the vehicle was back and that he thought the

      occupants were dealing and the vehicle was involved in a possible hit and run.

      South Bend Police Officer Michael Stuk arrived at the location, 1 exited his

      patrol vehicle, 2 and began to walk toward the apartment building. As Officer

      Stuk walked between a pickup truck and a silver four-door silver sedan in the

      parking lot, the security guard pointed to the sedan next to the officer. Officer

      Stuk saw Patterson seated in the front passenger seat and another person laying

      down in the rear. The front driver and passenger windows were down, and the

      rear windows were up. Officer Stuk did not have his firearm displayed or in his




      1
       The security guard testified the first officer arrived at the scene approximately three minutes after he called
      911. When asked “if the dispatch records say unit SBP 314 dispatched 4:13:21,” Officer Stuk testified
      “[t]here could be a time lag between dispatch actually putting me on scene and me being on scene.”
      Transcript Volume I at 203.
      2
       When asked “if your lights were on, or off” and “Let me rephrase. Not your headlights but your red and
      blue sirens,” Officer Stuk replied “Off.” Transcript Volume I at 175.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019                       Page 2 of 11
      hands. He immediately noticed a bag containing a green leafy substance which

      he believed was marijuana hanging out of the left front pocket of Patterson’s

      shirt. Upon observing the bag, Officer Stuk reached in, grabbed the bag from

      Patterson’s pocket, placed it on top of the vehicle, and asked Patterson to exit

      the vehicle. Officer Stuk observed Patterson slowly reach up and remove

      another bag from the right pocket of his shirt, and Officer Stuk grabbed the bag

      from Patterson and placed it on top of the vehicle. Patterson exited the vehicle,

      and Officer Stuk asked Officer Anthony Dawson who had arrived at the

      location to handcuff Patterson.


[3]   Officer Dawson instructed Patterson to place his hands behind his back, and

      Patterson turned and charged toward Officer Dawson. Patterson and Officer

      Dawson went to the ground, Officer Dawson deployed his Taser but it was

      knocked from his hand, other officers became involved, and Officer Dawson

      sprayed Patterson with pepper spray at which point Patterson became

      compliant. The bag which had been in Patterson’s left shirt pocket contained a

      synthetic cannabinoid, and the bag which had been in his right shirt pocket

      contained Oxycodone tablets, heroin, and cocaine.


[4]   The State alleged in an amended information that Patterson committed: Count

      I, possession of cocaine as a level 6 felony; Count II, possession of narcotic

      drug hydrocodone as a level 6 felony; Count III, possession of narcotic drug

      heroin as a level 6 felony; Count IV, resisting law enforcement as a class A

      misdemeanor; Count V, possession of narcotic drug heroin as a level 5 felony;

      and Count VI, possession of a synthetic drug as a class A misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019   Page 3 of 11
[5]   On June 8, 2018, the court held a hearing on a motion to suppress filed by

      Patterson and denied the motion. At Patterson’s bench trial, Officer Stuk

      testified that the security guard pointed to the four-door silver sedan, that he

      used his flashlight to aid his view, and “I was looking to see if it was occupied

      as I was walking by it at that time.” Transcript Volume I at 199. When asked

      “how long did it take when you were looking at Mr. Patterson to notice

      something suspicious about him,” Officer Stuk replied “[m]atter of seconds.”

      Id. at 179. He testified that Patterson turned towards him, that he saw a bag

      hanging from Patterson’s left shirt pocket which contained a green leafy

      substance, and that he believed the substance was marijuana. When asked

      “[u]pon seeing marijuana, what did you do,” Officer Stuk testified “I reached in

      and grabbed it out of his pocket and put it on top of the vehicle.” Id. at 180.

      Officer Stuk indicated he had been to the apartment address numerous times

      related to drugs, overdoses, and fights. The court admitted the drugs found on

      Patterson over his objection and found him guilty under Counts I through IV

      and VI and not guilty under Count V. Patterson was sentenced to eighteen

      months suspended for each of his convictions under Counts I through III and

      twelve months suspended for each of his convictions under Counts IV and VI.

      The court ordered the sentences under Counts I, II, III, and VI to be served

      concurrently and the sentence under Count IV to be served consecutively for an

      aggregate sentence of thirty months suspended, and that Patterson be placed on

      probation for thirty months.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019   Page 4 of 11
                                                  Discussion

[6]   The issue is whether the trial court abused its discretion in admitting the

      evidence found on Patterson. Although Patterson originally moved to suppress

      the evidence, he now challenges the admission of the evidence at trial. Thus,

      the issue is appropriately framed as whether the trial court abused its discretion

      by admitting the evidence. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).

      Because the trial court is best able to weigh the evidence and assess witness

      credibility, we review its rulings on admissibility for abuse of discretion and

      reverse only if a ruling is clearly against the logic and effect of the facts and

      circumstances and the error affects a party’s substantial rights. Carpenter v. State,

      18 N.E.3d 998, 1001 (Ind. 2014). The ultimate determination of the

      constitutionality of a search or seizure is a question of law that we consider de

      novo. Id. In ruling on admissibility following the denial of a motion to

      suppress, the trial court considers the foundational evidence presented at trial.

      Id. If the foundational evidence at trial is not the same as that presented at the

      suppression hearing, the trial court must make its decision based upon trial

      evidence and may consider hearing evidence only if it does not conflict with

      trial evidence. Guilmette, 14 N.E.3d at 40 n.1.


[7]   Patterson argues that his encounter with police was not consensual and the

      police did not have reasonable suspicion of criminal activity, the police action

      was unreasonable, and as such the evidence seized from him should not have

      been admitted. The State responds that no constitutional violation occurred

      and the court properly admitted the evidence.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019   Page 5 of 11
[8]   The Fourth Amendment to the United States Constitution guarantees the right

      to be secure against unreasonable search and seizure. Powell v. State, 912

      N.E.2d 853, 859 (Ind. Ct. App. 2009). There are three levels of police

      investigation, two of which implicate the Fourth Amendment and one of which

      does not. Id. First, the Fourth Amendment requires that an arrest or detention

      that lasts for more than a short period of time must be justified by probable

      cause. Id. Second, pursuant to Fourth Amendment jurisprudence, the police

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

      investigatory purposes if, based upon specific and articulable facts, the officer

      has a reasonable suspicion that criminal activity has or is about to occur. Id.

      The third level of investigation occurs when a police officer makes a casual and

      brief inquiry of a citizen, which involves neither an arrest nor a stop. Id. This is

      a consensual encounter in which the Fourth Amendment is not implicated. Id.


[9]   Not every encounter between a police officer and a citizen amounts to a seizure

      requiring objective justification. Id. A person is seized only when, by means of

      physical force or a show of authority, his or her freedom of movement is

      restrained. Id. It is not the purpose of the Fourth Amendment to eliminate all

      contact between police and citizens. Id. at 860. What constitutes a restraint on

      liberty prompting a person to conclude that he or she is not free to leave will

      vary depending upon the particular police conduct at issue and the setting in

      which the conduct occurs. Id. Examples of circumstances that might indicate a

      seizure where the person did not attempt to leave would be the threatening

      presence of several officers, the display of a weapon by an officer, some physical

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019   Page 6 of 11
       touching of the person, or the use of language or tone of voice indicating

       compliance with the officer’s request might be compelled; if such evidence is

       lacking, otherwise inoffensive contact between a member of the public and the

       police does not amount to a seizure of that person. Id.


[10]   In R.H. v. State, a police officer responded to a dispatch reporting a suspicious

       vehicle parked in front of a caller’s residence. 916 N.E.2d 260, 262 (Ind. Ct.

       App. 2009), trans. denied. The officer parked and activated his emergency lights.

       Id. The officer approached the suspicious vehicle, observed heavy smoke

       inside, and knocked on a rear window. Id. The window rolled down, and the

       officer immediately recognized the smell of burnt marijuana. Id. The officer

       had the occupants exit the vehicle. Id. at 263. The officer observed two bags

       containing what appeared to be marijuana in the front passenger footwall. Id.

       R.H. argued on appeal the seizure of the marijuana violated the Fourth

       Amendment. Id. We observed the officer had received a dispatch late at night

       regarding a report of a suspicious vehicle, the vehicle was parked in front of the

       caller’s residence, and the officer found a vehicle matching the description given

       already stopped and parked, activated his emergency lights, and then

       approached the vehicle to ask the occupants some questions or request their

       identification. Id. at 264-265. We held “these are all procedures that an officer

       would be expected to do upon finding an occupied vehicle parked on the street

       late at night, and do not indicate to a reasonable motorist that the officer

       intends to detain him.” Id. (internal quotation marks and citations omitted).

       We held the officer’s approach and initial contact with R.H. did not constitute a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019   Page 7 of 11
       seizure or an investigatory stop, we thus did not need to address whether the

       officer had reasonable suspicion to conduct an investigatory stop, and the trial

       court did not abuse its discretion in admitting the evidence. Id. at 266.


[11]   In Powell v. State, an officer noticed a vehicle parked on the side of the street,

       pulled behind the vehicle in his squad car but did not activate his emergency

       lights, and exited his squad car and approached the vehicle. 912 N.E.2d at 856-

       857. Upon his initial approach, the officer observed the vehicle’s windows were

       down, a spent shell casing in the back seat, and an open bottle of vodka in the

       vehicle. Id. at 857. Officers eventually had the occupants exit the vehicle for

       safety reasons, one of the officers observed in plain view baggies containing a

       green leafy substance which appeared to be marijuana on the floorboard, and

       the defendant was placed in handcuffs. Id. at 857-858. Powell argued on

       appeal that the officer’s initial approach towards the vehicle constituted an

       investigatory stop and an illegal seizure under the Fourth Amendment. Id. at

       859. We first noted that law enforcement’s approach to a parked vehicle does

       not in itself constitute an investigatory stop or a seizure for purposes of the

       Fourth Amendment. Id. at 861-862 (collecting federal and state cases). We

       then observed that the vehicle in which Powell was seated was parked on the

       side of a street, the officer was in police uniform but did not activate his squad

       vehicle’s emergency lights, and the record did not reflect that the officer

       displayed a weapon as he approached the vehicle or used any language or spoke

       in a tone of voice which mandated compliance. Id. at 862. We concluded that

       the officer’s approach to the parked vehicle and initial contact with Powell did


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019   Page 8 of 11
       not constitute an investigatory stop or a seizure under the Fourth Amendment

       and that therefore the officer did not have to possess reasonable suspicion of

       wrongdoing in order to park behind or approach Powell’s vehicle in order to

       ask him his purpose for being in the area. Id. We held the trial court did not

       abuse its discretion in admitting the evidence. Id. at 864.


[12]   Here, the record reveals that Officer Stuk was dispatched to an apartment

       building in the early morning in response to a report by a security guard

       regarding a vehicle near the building and that the security guard thought the

       occupants were dealing. As Officer Stuk was walking toward the apartment

       building, the security guard pointed to the specific vehicle in which Patterson

       was an occupant. The record does not reflect that Officer Stuk, in initially

       approaching the vehicle, displayed a show of authority. His approach to the

       parked vehicle and initial encounter with Patterson did not constitute an

       investigatory stop or a seizure and thus he did not have to possess reasonable

       suspicion of wrongdoing in order to approach the vehicle. See R.H., 916 N.E.2d

       at 264-266; Powell, 912 N.E.2d at 857-862. As soon as Patterson turned toward

       him, the officer observed the bag containing what he believed to be marijuana

       hanging out of one of Patterson’s shirt pockets. When the bag and its contents

       became visible to Officer Stuk, seizure of the bag was proper pursuant to the

       plain view doctrine. See Powell, 912 N.E.2d at 863 (“When the small baggies

       containing marijuana in the vehicle became visible to the officers, seizure of the

       marijuana was proper pursuant to the ‘plain view doctrine.’”); Crabtree v. State,

       762 N.E.2d 217, 218-221 (Ind. Ct. App. 2002) (holding a baggie containing


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019   Page 9 of 11
       green leafy vegetation hanging from the front pouch of the defendant’s

       sweatshirt was immediately apparent to an officer and the plain view doctrine

       supported the seizure of the marijuana from the defendant).


[13]   With respect to Article 1, Section 11 of the Indiana Constitution, we focus on

       whether the officer’s conduct was reasonable in light of the totality of the

       circumstances. Powell, 912 N.E.2d at 863. In making this determination, we

       balance: the degree of concern, suspicion, or knowledge that a violation has

       occurred; the degree of intrusion the method of the search or seizure imposes on

       the citizen’s ordinary activities; and the extent of law enforcement needs. Id.

       Officer Stuk approached the vehicle in which Patterson was seated on foot in

       response to a call during the early morning by a security guard at an apartment

       building. The security guard thought the occupants were dealing drugs, Officer

       Stuk had been to the apartment building numerous times, and Officer Stuk did

       not display a weapon when he approached the vehicle. We conclude in light of

       the totality of the circumstances that Officer Stuk’s approach and initial contact

       with Patterson did not violate Article 1, Section 11 of the Indiana Constitution.

       See Powell, 912 N.E.2d at 863 (holding the officer simply approached the vehicle

       on foot and did not display a weapon as he approached and that the officer’s

       approach and initial contact with the defendant constituted a consensual

       encounter which did not violate his rights against unreasonable search or

       seizure under Article 1, Section 11 of the Indiana Constitution). The trial court

       did not abuse its discretion in admitting the evidence found on Patterson.


[14]   For the foregoing reasons, we affirm Patterson’s convictions.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019   Page 10 of 11
[15]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019   Page 11 of 11
