ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Joel M. Schumm                                            Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana         Jun 23 2015, 9:20 am




                                            IN THE
    COURT OF APPEALS OF INDIANA

LaQuantis Johnson,                                        June 23, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A05-1409-CR-409
        v.                                                Appeal from the Marion Superior
                                                          Court

State of Indiana,                                         The Honorable Peggy Ryan Hart,
                                                          Master Commissioner
Appellee-Plaintiff.                                       Case No. 49G20-1311-FB-74491




Brown, Judge.




Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015                     Page 1 of 16
[1]   LaQuantis Johnson appeals his conviction for unlawful possession of a firearm

      by a serious violent felon (“SVF”), a class B felony. Johnson raises one issue

      which we revise and restate as whether the trial court abused its discretion by

      admitting evidence obtained following a pat down of Johnson. We affirm.


                                       Facts and Procedural History

[2]   On November 17, 2013, City of Lawrence Police Officer Ralph Bridgeforth was

      working as an off-duty security guard inside the Indianapolis Greyhound bus

      station and wearing a partial police uniform. At 2:00 a.m., Officer Bridgeforth

      observed Johnson and J.D. Sanders enter the main entrance of the bus terminal

      without luggage. Sanders was stumbling all over the place and showing signs of

      intoxication, and there was a general odor of alcohol coming from the area of

      Sanders and Johnson. Officer Bridgeforth motioned for Johnson and Sanders

      to approach him.


[3]   Officer Bridgeforth detected a strong odor of alcohol coming from the general

      area of the men, and asked them for identification and whether they were

      traveling by bus to determine if they were trespassing. Both of the men said

      that they were not traveling by Greyhound. Sanders provided Officer

      Bridgeforth with identification, but Johnson stated that he did not have his

      identification with him and placed his left hand into his left front pants pocket.


[4]   Johnson’s act of placing his hand in his pocket increased Officer Bridgeforth’s

      concern for his safety because of “the possibility that he could have had a

      weapon on him and that is how several officers are killed in this country every


      Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015    Page 2 of 16
      year.” Transcript at 33. Officer Bridgeforth asked Johnson at least two times to

      remove his hand from his pocket, but Johnson did not comply. Officer

      Bridgeforth took Johnson’s left arm, ordered him to place his hands behind his

      back, and continued to do a pat down search for weapons.


[5]   During the pat down, Officer Bridgeforth “felt what appeared to be a handgun”

      in Johnson’s left waistband beyond his back and behind the pocket where

      Johnson had placed his hand. Id. at 32. He then placed Johnson in handcuffs

      and removed a .45 caliber handgun from him.


[6]   On November 21, 2013, the State charged Johnson with unlawful possession of

      a firearm by an SVF, a class B felony, and disorderly conduct as a class B

      misdemeanor. On May 5, 2014, Johnson filed a motion to suppress evidence

      and asserted that the stop violated his right to privacy under the Fourth

      Amendment of the United States Constitution and Article 1, Section 11 of the

      Indiana Constitution.


[7]   On June 26, 2014, the court held a bench trial. During Officer Bridgeforth’s

      testimony, defense counsel moved to suppress any evidence found as a result of

      the pat down search under the Fourth Amendment of the United States

      Constitution and Article 1, Section 11 of the Indiana Constitution. The court

      took the motion under advisement. After the State rested, defense counsel

      renewed his motion to suppress. Defense counsel conceded that he thought

      Officer Bridgeforth was “probably personally prudent in doing what he did that

      day,” but that “[t]here’s no particular reason to believe [Johnson] was armed


      Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015      Page 3 of 16
      and dangerous which means the patdown wasn’t appropriate . . . .” Id. at 62-

      63. The court took the matter under advisement.


[8]   On July 9, 2014, the court found that the initial encounter was a proper

      investigatory stop and that the pat down was reasonable based upon the facts.

      The court also commented that it believed that Officer Bridgeforth’s safety was

      threatened. The court admitted the evidence, ultimately found Johnson guilty

      of unlawful possession of a firearm by an SVF and not guilty of disorderly

      conduct, and sentenced him to eleven years in the Department of Correction

      with two years suspended.


                                                    Discussion

[9]   The issue is whether the court abused its discretion by admitting evidence of the

      handgun obtained following a pat down of Johnson. We review the trial

      court’s ruling on the admission or exclusion of evidence for an abuse of

      discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We

      reverse only where the decision is clearly against the logic and effect of the facts

      and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g

      denied. Even if the trial court’s decision was an abuse of discretion, we will not

      reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d

      957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied. Also, we may affirm a

      trial court’s decision to admit evidence seized as a result of a search based on

      any legal theory supported by the record. Edwards v. State, 724 N.E.2d 616,

      620-621 (Ind. Ct. App. 2000), trans. denied. We review de novo a ruling on the

      constitutionality of a search or seizure, but we give deference to a trial court’s
      Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015     Page 4 of 16
       determination of the facts, which will not be overturned unless clearly

       erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).


[10]   Johnson does not challenge the constitutionality of the initial encounter or

       investigatory stop. However, he does claim that the pat down was illegal under

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

       11 of the Indiana Constitution.


[11]   We begin by addressing the Fourth Amendment claim. Johnson argues that the

       officer’s pat down was justified only by concern that Sanders was intoxicated

       and his refusal to remove his hands from his pockets after he failed to produce

       identification. Johnson asserts that Officer Bridgeforth agreed on cross-

       examination that he had no particular reason to believe that Johnson had a gun

       and no particular reason to believe that he had any contraband, and that the

       facts do not support a reasonable belief that he was armed and dangerous. The

       State argues that the trial court properly found that Officer Bridgeforth had a

       reasonable belief that his safety was threatened.


[12]   The Fourth Amendment to the United States Constitution provides:

               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.


[13]   In Terry v. Ohio, the United States Supreme Court held:



       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015        Page 5 of 16
        The scheme of the Fourth Amendment becomes meaningful only
        when it is assured that at some point the conduct of those charged with
        enforcing the laws can be subjected to the more detached, neutral
        scrutiny of a judge who must evaluate the reasonableness of a
        particular search or seizure in light of the particular circumstances.
        And in making that assessment it is imperative that the facts be judged
        against an objective standard: would the facts available to the officer at
        the moment of the seizure or the search ‘warrant a man of reasonable
        caution in the belief’ that the action taken was appropriate?


392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968) (footnote omitted). The Court

permitted

        a reasonable search for weapons for the protection of the police officer,
        where he has reason to believe that he is dealing with an armed and
        dangerous individual, regardless of whether he has probable cause to
        arrest the individual for a crime. The 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.


Id. at 27, 88 S. Ct. at 1883. The Court held that “in determining whether the

officer acted reasonably in such 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.” Id. In other words, the Court concluded 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 and that the persons with whom he is dealing may be
        armed and presently dangerous, where in the course of investigating
        this behavior he identifies himself as a policeman and makes
        reasonable inquiries, and where nothing in the initial stages of the
        encounter serves to dispel his reasonable fear for his own or others’

Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015             Page 6 of 16
               safety, he is entitled for the protection of himself and others in the area
               to conduct a carefully limited search of the outer clothing of such
               persons in an attempt to discover weapons which might be used to
               assault him.


       Id. at 30, 88 S. Ct. at 1884-1885.


[14]   The Fourth Amendment allows privacy interests protected by the Fourth

       Amendment to be balanced against the interests of officer safety. Wilson v.

       State, 745 N.E.2d 789, 792 (Ind. 2001) (citing Terry, 392 U.S. at 23-27, 88 S. Ct.

       at 1881-1883). “An officer’s authority to conduct a pat-down search is

       dependent upon the nature and extent of his particularized concern for his

       safety and that of others.” Id. (citing Mitchell v. State, 745 N.E.2d 775, 781 (Ind.

       2001)).


[15]   To the extent Johnson asserts that the pat down search was no more justified

       than in Swanson v. State, 730 N.E.2d 205 (Ind. Ct. App. 2000), trans. denied, we

       disagree. In that case, police observed Swanson, who had been driving, pull

       into a parking place, exit his vehicle, and place alcoholic beverages on top of

       the car. 730 N.E.2d at 207. An officer approached Swanson, whose hands

       were in his pockets, and asked him to remove his hands with the understanding

       that the officer was going to conduct a pat down search of Swanson for

       weapons. Id. Swanson complied with the request, removed his hands, and

       placed them by his side. Id. As he removed his hands, a small object dropped

       from his hand and landed on the ground next to his feet. Id. One of the officers

       observed the object fall, then saw that the item was a two-by-two piece of brown


       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015            Page 7 of 16
       paper bag, crumpled up in a ball. Id. Although the officer was not able to

       identify the object, he knew it was not a weapon. Id. Before the officer seized

       the item, he allowed another officer to conduct a pat down of Swanson’s outer

       clothing. Id. The officer then picked up the piece of crumpled paper, opened it

       and observed four rock-like substances that appeared to be and later tested

       positive to be crack cocaine. Id. A jury convicted Swanson of possession of

       cocaine as a class B felony. Id.


[16]   On appeal, this court held that presence in a “high drug area” and the

       defendant having his hands in his pockets were not facts sufficient to cause a

       reasonable officer to fear for his safety under the circumstances. Id. at 211. The

       court also observed that “although Swanson had his hands in his pockets when

       the officers approached, there was no indication that he placed them there in

       reaction to the officers’ approach or made any other furtive movements.” Id.

       The court stated there was no threat of possible violent behavior due to alcohol

       consumption as the officer testified that Swanson did not appear intoxicated.

       Id. The court also stated that Swanson was cooperative and complied with the

       officers’ requests at all times. Id. The court concluded that, under the

       circumstances, an officer could not have reasonably believed that Swanson was

       armed and dangerous. Id.


[17]   Unlike in Swanson, Johnson entered the Greyhound bus station at 2 a.m. with a

       stumbling and intoxicated Sanders, indicated that he was not traveling by

       Greyhound, and placed his hand in his pocket after he informed Officer

       Bridgeforth that he did not have his identification. Further, Johnson refused

       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015     Page 8 of 16
       Officer Bridgeforth’s multiple commands to remove his hand from his pocket.

       Officer Bridgeforth testified that Johnson’s act of placing his hand in his pocket

       increased his concern for his safety because of “the possibility that he could

       have had a weapon on him and that is how several officers are killed in this

       country every year.” Transcript at 33.


[18]   Johnson cites the following exchange from the cross-examination of Officer

       Bridgeforth:

               Q You didn’t have any particular reason to believe that he had a gun
               or a weapon, is that correct?
               A Not that I know of. Correct.
               Q Okay. And you had no particular reason to believe that he had any
               contraband, substance, or anything of that nature, is that correct?
               A Well, I wouldn’t know. So that’s correct.
               Q Okay. You then proceeded to do your patdown search, is that
               right?
               A After asking him to remove his hands from his pockets twice,
               correct. Or at least twice.


       Id. at 47. This testimony demonstrates only that Officer Bridgeforth did not

       know for certain that Johnson was armed. On direct examination, Officer

       Bridgeforth indicated that Johnson’s act of placing his hand in his pocket after

       stating that he did not have an ID increased his concern for officer safety.

       When asked on cross-examination whether his level of concern was raised

       when Johnson put his hands in his pockets, Officer Bridgeforth answered

       affirmatively.



       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015         Page 9 of 16
[19]   Under the circumstances, we conclude that a reasonably prudent man would be

       warranted in the belief that his safety was potentially in danger, and we cannot

       say that the search violated the Fourth Amendment. See Williams v. State, 754

       N.E.2d 584, 588 (Ind. Ct. App. 2001) (observing that, in spite of repeatedly

       being told to remove his hands from his pocket and waistband area, the

       defendant kept putting his hands in his pocket and holding that defendant’s

       behavior warranted the officer’s reasonable fear for his safety and the

       subsequent pat down search of the defendant), trans. denied.


[20]   Article 1, Section 11 of the Indiana Constitution 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.


[21]   “Although this language tracks the Fourth Amendment verbatim, we proceed

       somewhat differently when analyzing the language under the Indiana

       Constitution than when considering the same language under the Federal

       Constitution.” Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006), adhered to on

       reh’g, 848 N.E.2d 278 (Ind. 2006). “Instead of focusing on the defendant’s

       reasonable expectation of privacy, we focus on the actions of the police officer,

       concluding that the search is legitimate where it is reasonable given the totality

       of the circumstances.” Id. “We will consider the following factors in assessing

       reasonableness: ‘1) the degree of concern, suspicion, or knowledge that a

       violation has occurred, 2) the degree of intrusion the method of the search or

       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015       Page 10 of 16
       seizure imposes on the citizen’s ordinary activities, and 3) the extent of law

       enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind.

       2005)).


[22]   Johnson asserts that only Sanders was believed to be intoxicated and that

       Officer Bridgeforth had no reasonable belief that he had committed any offense

       or was in possession of a firearm. He contends that the degree of intrusion on

       his ordinary activities was not insubstantial when Officer Bridgeforth grabbed

       his arm, ordered him to put his hands behind his back, and performed a pat

       down search for weapons in a public bus terminal. Lastly, he asserts that the

       extent of law enforcement needs was non-existent because the officer lacked

       reasonable suspicion that he was armed and dangerous.


[23]   The State contends that the degree of suspicion that a violation had occurred

       was moderate, the degree of intrusion of an outer-clothing pat down is minimal,

       and that the extent of law enforcement needs was high in this situation.


[24]   We begin by considering “the degree of concern, suspicion, or knowledge that a

       violation has occurred.” Litchfield, 824 N.E.2d at 361. At 2:00 a.m., Johnson

       and Sanders entered the main entrance of the bus terminal without luggage,

       Sanders was stumbling all over the place and showing signs of intoxication, and

       there was a general odor of alcohol coming from the area of Sanders and

       Johnson. Officer Bridgeforth asked them for identification and whether they

       were traveling by bus to determine if they were trespassing, and Johnson and

       Sanders said they were not traveling by Greyhound. Johnson stated that he did


       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015   Page 11 of 16
       not have his identification with him and placed his left hand into his left front

       pants pocket. Johnson then refused multiple commands from Officer

       Bridgeforth to remove his hand from his pocket, all of which increased Officer

       Bridgeforth’s concern for his safety. We conclude that the degree or concern,

       suspicion, or knowledge that a violation had occurred was high. Next,

       regarding the degree of intrusion, the record reveals that Officer Bridgeforth

       took Johnson’s left arm, ordered him to place his hands behind his back, and

       continued to do a pat down search of him for weapons at 2:00 a.m. in the bus

       station. Under these circumstances, this degree of intrusion was not high.

       Finally, the extent of law enforcement needs was strong given the

       circumstances leading to the pat down. Under the totality of the circumstances,

       we conclude that the pat down was reasonable and did not violate Johnson’s

       rights under Article 1, Section 11 of the Indiana Constitution.


                                                    Conclusion

[25]   For the foregoing reasons, we affirm Johnson’s conviction.


       Pyle, J., concurs.


       Crone, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015   Page 12 of 16
                                                     IN THE
            COURT OF APPEALS OF INDIANA

       LaQuantis Johnson,                                           Court of Appeals Case No.
                                                                    49A05-1409-CR-409
       Appellant-Defendant,

                v.

       State of Indiana,
       Appellee-Plaintiff.




       Crone, Judge, dissenting

[26]   Being mindful that we not only must articulate the proper standard for reviewing

       the constitutionality of a patdown under the Fourth Amendment but also adhere

       to that standard, I respectfully dissent from the majority’s decision to affirm

       Johnson’s conviction.1


[27]   The U.S. Supreme Court has repeatedly emphasized that in order “[t]o justify a




       1
          Our supreme court has recently admonished this Court for correctly stating but incorrectly applying the
       proper standard of review. See, e.g., Civil Commitment of T.K., 27 N.E.3d 271, 274 (Ind. 2015) (disapproving
       line of cases reciting but not applying clear and convincing standard of proof in civil commitment cases); see
       also Brummett v. State, 24 N.E.3d 965, 966 (Ind. 2015) (clarifying that standard when reviewing for
       fundamental error has not changed despite Court of Appeals’ potentially confusing reference to standard
       “now” to be used when reviewing for fundamental error).

       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015                            Page 13 of 16
       patdown … of a pedestrian reasonably suspected of criminal activity, the police

       must harbor reasonable suspicion that the person subjected to the frisk is armed

       and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327 (2009) (emphasis added).

       “Reasonable suspicion entails something more than an inchoate and

       unparticularized suspicion or hunch[.]” Crabtree v. State, 762 N.E.2d 241, 246

       (Ind. Ct. App. 2002). In other words, the suspicion must be particularized

       concerning the suspect, not merely a general concern about people with

       weapons. Hill v. State, 956 N.E.2d 174, 179 (Ind. Ct. App. 2011), trans. denied

       (2012).


[28]   Officer Bridgeforth initiated the detention because he suspected that the

       obviously inebriated Sanders and the possibly inebriated Johnson were violating

       bus station policies2 prohibiting loitering and intoxication.3 With respect to

       Johnson specifically, there was no evidence that he was committing the crime

       of public intoxication. See Ind. Code § 7.1-5-1-3(a) (requiring a showing of

       breach of the peace, endangerment, harassment, annoyance, or alarm). He

       may or may not have been drinking and was simply walking through the bus

       station with his inebriated friend, without a ticket. This leaves me wondering

       why the officer did not merely admonish Johnson to leave the station and take




       2
         To the extent that the State cites Johnson’s lack of identification as an articulable fact supporting a
       patdown, we note the officer’s testimony that the identification information was important in determining
       whether either of the two men was on the premises without having a ticket or otherwise “utilizing the
       services.” Tr. at 46.
       3
         The officer testified that Greyhound policy prohibits an intoxicated person from boarding a bus or even
       being inside the terminal.

       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015                         Page 14 of 16
       Sanders with him.


[29]   The issue comes down to whether Johnson putting his hand in his pants pocket

       and refusing to remove it created a reasonable suspicion that he was armed and

       dangerous. I think not. A hand in a pocket is not evidence that a person is

       armed and dangerous. The majority emphasizes Officer Bridgeforth’s direct-

       examination testimony that his safety concern increased when Johnson placed

       his hand in his pocket.4 When asked why his concern increased, the officer

       answered in terms of possibilities and general concerns: “Because of the

       possibility that he could have a weapon on him and that is how several officers

       are killed in this country every year.” Tr. at 33. Notwithstanding, during cross

       examination, the officer agreed that he “didn’t have any particular reason to

       believe that [Johnson] had a gun or a weapon.” Id. at 47. I believe that the

       latter testimony more specifically addresses the Fourth Amendment standard of

       proof and disagree with the majority’s conclusion that “[t]his testimony

       demonstrates only that Officer Bridgeforth did not know for certain that

       Johnson was armed.” Slip op. at 9.


[30]   Undoubtedly, officer safety is a significant priority, and in many cases, a

       patdown is not unreasonably intrusive. However, we must adhere to the

       Fourth Amendment standard as articulated by the U.S. Supreme Court.

       Johnson’s behavior was disrespectful and disobedient, maybe even arrogant,




       4
         “Q. Okay …. Did Mr. Johnson’s decision to put his hand in his pocket increase or decrease your officer
       safety concern?’ A. Increased.” Tr. at 33.

       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015                        Page 15 of 16
       but the articulated standard requires a particularized suspicion that he was

       “armed and dangerous.” If our supreme court wishes to interpret the Fourth

       Amendment as allowing a hand-in-the-pants-pocket exception to the rule that a

       police officer must harbor a reasonable and particularized suspicion that a

       person is armed and dangerous before the officer may perform a lawful

       patdown search, it is certainly free to do so. As a practical matter, such an

       exception might be justified based on officer safety concerns, especially in light

       of the current tensions surrounding police-citizen interactions. In my view,

       carving out an exception would be a more appropriate jurisprudential approach

       than engaging in legal fiction in order to circumvent the “armed and

       dangerous” standard. Until then, however, I believe we must adhere to the

       currently articulated standard, which contains no such exception.


[31]   In short, I believe that the patdown of Johnson constituted an unlawful search

       under the Fourth Amendment. Because the firearm was the product of that

       search, it should have been excluded. See Hill, 956 N.E.2d at 179 (explaining

       that “fruit of the poisonous tree doctrine” bars evidence directly obtained or

       derivatively gained from unlawful search or seizure). On that basis, I would

       reverse his conviction for possession of a firearm by an SVF.




       Court of Appeals of Indiana | Opinion 49A05-1409-CR-409| June 23, 2015   Page 16 of 16
