MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Dec 07 2018, 10:54 am
court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Talisha Griffin                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Appellate Division
                                                        James B. Martin
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles Richardson,                                     December 7, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1533
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Amy M. Jones,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable David Hooper,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G08-1611-CM-44422



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018            Page 1 of 21
[1]   Charles Richardson appeals his conviction for possession of a handgun without

      a license as a class A misdemeanor. He raises two issues on appeal which we

      consolidate and restate as whether the trial court abused its discretion in

      admitting certain evidence. We affirm.


                                          Facts and Procedural History

[2]   On November 16, 2016, the State charged Richardson with carrying a handgun

      without a license as a class A misdemeanor. On April 25, 2017, Judge Amy M.

      Jones held a hearing, and Richardson’s counsel made an oral motion to

      suppress based upon the Fourth Amendment and asserted that “there would

      not be a reasonable articulable suspicion that there was grounds to do a [T]erry

      stop and frisk prior to a pat down being conducted in this situation.” 1

      Transcript Volume II at 6. The prosecutor indicated that she was ready to

      move forward with a suppression hearing. Indianapolis Metropolitan Police

      Officer Shane Nicholsen testified that he was in the area of 16th and Arlington

      in Marion County on November 15, 2016, ran the license plate of the vehicle in




      1
          The Transcript lists:

                                                         Bench Trial
                                     Before the Honorable David Hooper & Amy Jones
                              Magistrate of the Marion County Superior Court, Criminal Court 8
                                      Date: April 25, 2017, May 30, 2017, June 8, 2018

      Transcript Volume II at 2 (capitalization omitted). While the Transcript does not reveal the specific judicial
      officer, an entry dated April 25, 2017, in the chronological case summary (“CCS”) lists Amy M. Jones as the
      judicial officer.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018                  Page 2 of 21
      front of him, and found that the registration was expired. He testified that he

      asked the driver, Richardson, to step out of his vehicle and Richardson

      complied, “began to face” him, and “turned his back to like the wedge between

      the door and the vehicle facing” Officer Nicholsen. Id. at 10. He stated that he

      asked Richardson if he had anything on him and Richardson “just kept

      questioning like, ‘Well, why do you need to know this?’” Id. He testified that

      Richardson changed his position when he asked him if he could pat him down

      and Richardson also “kind of had like a stance trying to get closer to the car and

      away from me.” Id. at 11. He stated that Richardson’s failure to answer him

      caused him concern for his safety; and that he and another officer told

      Richardson to place his hands on the vehicle to do a pat-down, Richardson

      eventually complied, and the officers felt a hard object between Richardson’s

      hip and his appendix area which turned out to be a “ruger forty caliber.” Id. at

      12. Officer Nicholsen stated that between thirty seconds and a minute passed

      from the time of the stop until he asked Richardson if he had anything on him,

      and that the area was a high crime drug trafficking area.


[3]   On cross-examination, Officer Nicholsen indicated that Richardson was fully

      cooperative when he was in the car, had a valid license, and immediately exited

      the vehicle when asked. When asked if the only reason why he asked

      Richardson to exit the vehicle was so he could tow it due to the expired plates,

      Officer Nicholsen answered: “I actually hadn’t even made my mind up if I was

      going to tow it. I just wanted to talk to him about the vehicle and see where to

      go from there.” Id. at 14. When asked if he had any reason to believe


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 3 of 21
Richardson was armed or dangerous when he asked him to do the pat down,

Officer Nicholsen answered: “Not initially. No.” Id. He testified that

Richardson did not move towards him in a threatening manner. The following

exchange then occurred:


        Q He wasn’t staring you down or anything like that. Correct? I
        should clarify. He wasn’t staring you down. Correct?

        A I mean he was looking at me.

        Q Okay.

        A So I don’t know if staring me down.

        Q In an aggressive manner?

        A He was nervous, I mean, I wouldn’t say.

                                             *****

        Q Is it fair to say that his argument with you and him moving
        away from you are the two reasons that you wanted to do the pat
        down?

        A I would argue that – I would just say that based upon his
        positioning in the wedge of the vehicle kind of wanting to stay
        away from me along with the constant questioning of why we
        needed to check him. It’s just been in my experience that if he
        didn’t have anything on him and he didn’t mean any harm to
        anything then he would just go ahead and just check real quick
        and then we can talk.


Id. at 16. On redirect examination, Officer Nicholsen testified that he initially

asked Richardson if he had anything on him, and Richardson did not “answer

the question yes or no.” Id. at 18.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 4 of 21
[4]   On May 30, 2017, Judge Jones continued with the hearing.2 Indianapolis

      Metropolitan Police Officer Michael McWhorter testified that he arrived at the

      scene to back up Officer Nicholsen, that Officer Nicholsen informed him that

      Richardson’s license plate was expired and that he was going to go back to

      Richardson’s vehicle to speak to him about it, and that Richardson complied

      when asked to step out of the vehicle. The following exchange occurred:


                 Q Did [Richardson] do any – make any actions?

                 A What I recall is the defendant bladed his body to his right side
                 near the entrance of his vehicle. Like if you’re standing at the car
                 facing the officer, his right side was still inside the door way.

                 Q And you’ve been an officer for four years. Is that correct?

                 A That’s correct.

                 Q Is there a way that you would describe if someone is
                 positioning themselves like that? What would that tell you as an
                 officer?

                 A Usually that’s a fighting stance for me. So I’m trained in
                 fighting skills. If someone blades their body, most people are
                 right handed in this world. So that’s taking a fighting stance for
                 me personally.

                 Q So what happened next?

                 A Officer Nicholsen asked the defendant again if he could pat
                 him down for any weapons and he told the gentlemen [sic] to




      2
          A CCS entry dated May 30, 2017, lists Amy M. Jones as the judicial officer.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 5 of 21
              turn around and put his hands on top of the vehicle, which he
              advised us that he would not do that.

              Q What did Officer Nicholsen do after the defendant advised
              him he would not turn around and put his hands on the hood?

              A He asked him several more times to do it. At that point, I
              looked at Officer Nicholsen and he looked at me and we decided
              that he was going to have to ask him one more time that physical
              means were going to be taken at that point.

              Q And did you have to resort to physical means?

              A We did not.

              Q So the defendant eventually complied?

              A Yes, he did.


      Id. at 30.


[5]   On cross-examination, Officer McWhorter testified that the conversation

      discussing the pat-down was over the course of about thirty seconds to a minute

      and that he did not recall any yelling. The court took the matter under

      advisement.


[6]   On June 29, 2017, the court entered an order denying Richardson’s motion to

      suppress. Specifically, the order, which was signed by Judge Jones, states in

      part:


              3. Because there was no other occupant in the car, and the
              expired nature of the license plate and registration, Officer




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 6 of 21
           Nicholson[3] asked [Richardson] to exit the vehicle. [Richardson]
           stepped out of the vehicle and remained standing between the
           open driver’s side door and the driver’s side of the vehicle.
           Officer Nicholson testified that [Richardson’s] movement was
           such that it suggested he was trying to stay away from the officer
           and appeared to present himself in a “fighting stance”.

           Officer Nicholson testified that whenever he has someone exit a
           vehicle, he conducts a pat down search for officer safety. Officer
           Nicholson had not yet made a decision as to whether or not to
           tow the vehicle when he asked [Richardson] to step out of the car
           to discuss the matter further. When Officer Nicholson asked
           [Richardson] if he could proceed with the pat down and whether
           or not he had anything on his person that might harm the officer,
           [Richardson] did not initially respond, appeared nervous and
           began questioning the officer as to why he needed to conduct a
           pat down search. Officer Nicholson testified that he asked to
           perform the pat down at least three (3) times. The first time,
           [Richardson] responded with “no”, and each subsequent time,
           [Richardson] argued about why the pat down was necessary.

           4. Officer Nicholson testified that [Richardson’s] argumentative
           behavior as well as what the officer perceived as an attempt by
           [Richardson] to avoid contact with the officer, heightened the
           officer’s concern for his personal safety. Additionally, the officer
           testified that the area in which the traffic stop was made is known
           to be a high crime area. At this time, Officer Nicholson told
           [Richardson] to put his hands on the car to which [Richardson]
           complied. A pat down search of [Richardson] produced a
           handgun located on his hip. [Richardson] did not have a license
           to carry the handgun.

           5. Officer Michael McWhorter, arrived on scene at the traffic
           stop and served in a back-up capacity. He testified as to



3
    The spelling of the officer’s name in the trial court’s order differs from the transcript.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018                 Page 7 of 21
              [Richardson’s] positioning of himself inside the wedge of the
              driver’s doorway in an attempt to “blade” himself in what
              appeared to be a “fighting stance”. Officer McWhorter also
              testified regarding [Richardson’s] denial of consent to a pat down
              search as well as him being nonresponsive to Officer Nicholson.

                                                   *****

              9. In reviewing the totality of the circumstances in this case,
              Officer Nicholson testified that whenever he has someone exit a
              vehicle, he conducts a pat down search for officer safety.
              However, in this instance, the Court further considers the
              following factors described by the officer: [Richardson’s] overall
              nervous demeanor including his refusal to answer questions, his
              argumentative responses and evasive positioning of his body
              away from the officer in what was described as a “fighting
              stance”. The Court finds that the additional observations made
              by the officer constitute the requisite articulable facts to support
              his reasonable belief that [Richardson] was armed and dangerous
              under the circumstances. Therefore, the Court finds that the
              officer acted reasonably under the circumstances and that a pat
              down search of [Richardson] was appropriate and the subsequent
              finding of the handgun on [Richardson’s] person was lawful.


      Appellant’s Appendix Volume II at 58-62.


[7]   On June 8, 2018, Judge David Hooper held a bench trial. At the beginning of

      the trial, the court asked the parties if they had any preliminary matters, and

      Richardson’s counsel stated: “No, Your Honor. Just to let the Court know that

      I think this Trial will be very quick because it’s already been heard on a

      suppression issue that has already been denied and we’re just going to move to

      incorporate that.” Transcript Volume II at 40. The court stated: “Go off the

      record briefly.” Id. The court and parties went “OFF RECORD,” then back

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 8 of 21
      “ON RECORD,” and the court stated: “All right. Back on . . . Richardson. It

      sounds like both parties are ready to go. State, call your first witness.” Id.


[8]   Officer Nicholsen testified that he conducted a BMV check of a license plate,

      found that the registration was expired, conducted a traffic stop, and met

      Richardson. He testified that he obtained Richardson’s license, went back to

      his car, and ran his information, “still trying to check to make sure the vehicle is

      still expired through different channels. It was.” Id. at 42. He testified that he

      and Officer McWhorter asked Richardson to step out of his car, Richardson

      complied but “kind of became a little argumentative and questioning the reason

      for the stop and things of that such,” which was “[n]ot necessarily” an

      uncommon conversation. Id. at 43. He stated that Richardson positioned

      himself between the door and the doorframe. Officer Nicholsen stated that he

      asked Richardson if he had any weapons on him and if he cared if he conducted

      a pat-down. When asked about Richardson’s response, Officer Nicholsen

      answered: “I mean just kind of – I can’t recall exactly, but didn’t really answer

      the question and was asking me questions about stuff.” Id. at 44. He testified

      that he conducted a pat-down search. Richardson’s counsel then objected,

      asserted that Richardson’s rights were violated under both the Indiana

      Constitution and the United States Constitution, and moved to incorporate the

      testimony form the suppression hearing that was held on “April 30th, 2017.”4




      4
          The suppression hearings were held on April 25, 2017, and May 30, 2017.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 9 of 21
      Id. The court stated: “Incorporating stuff because it was the presiding Judge

      that did it and I’m the magistrate. Is there something that came out in the

      suppression that you want on the record besides what I’ve already heard?” Id.

      at 45. Richardson’s counsel stated: “I would like to move to incorporate

      because I think that there were things that were said at the suppression hearing I

      don’t know that they’ll necessarily be the same things that are answered today.

      That suppression hearing was taken over a year ago and I think the testimony at

      that time was a lot more fresh in the officers [sic] mind.” Id. The court stated:

      “Well, like I said this is Bench – we’re showing Bench Trial here and I can’t

      incorporate what I didn’t hear in making my decision. So what I’ll do is I’ll let

      you ask preliminary questions and you can make.” Id.


[9]   Upon questioning by defense counsel, Officer Nicholsen indicated that he did

      not have any reason to believe Richardson was armed while he was in the

      vehicle, Richardson was fully cooperative with him, he had a valid driver’s

      license, he had not made any furtive movements while he was in the vehicle, he

      did not agree to the pat-down, and he took one step back towards the wedge of

      the door, but did not make any furtive movements with his hands. When asked

      if he was arguing with him for about thirty seconds before Richardson took that

      step back, Officer Nicholsen answered: “Roughly, yeah.” Id. at 48. Defense

      counsel asked: “You weren’t going to take no for an answer?” Officer

      Nicholsen answered: “At that point, it was concerning. I’d rather be safe.” Id.

      Officer Nicholsen testified that “we asked him and told him and then we kind

      of helped guide him and put his hands on the car and then we just kind of did


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 10 of 21
       the pat down really quick and then at that point the gun was felt.” Id. at 49.

       The court overruled Richardson’s objection and denied the motion to suppress.


[10]   Upon questioning by the prosecutor, Officer Nicholsen testified that he

       conducted a pat-down of Richardson’s outer layer of clothing and felt a gun at

       his hip. Officer Nicholsen stated that he placed Richardson in handcuffs,

       removed the gun, walked back towards his car, and read Richardson a Miranda

       warning. Officer Nicholsen indicated that he asked Richardson if he had a

       valid gun permit and Richardson stated that he did not.


[11]   After the questioning of Officer Nicholsen, the following exchange occurred:


               [Defense Counsel]: . . . I would just – I think we forgot to also
               address moving to final decision on incorporating the evidence
               from the suppression hearing regarding the officer in the
               suppression hearing.

               THE COURT: Okay. I will incorporate it, but I can only make
               a INAUDIBLE interpretation of what I’m hearing –

               [Defense Counsel]: I understand, Judge.

               THE COURT: - today, but for whatever that means then it will
               be incorporated.

               [Defense Counsel]: Thank you.


       Id. at 55-56. The court found Richardson guilty as charged.


                                                   Discussion

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

       testimony and evidence regarding the gun. Generally, we review the trial
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 11 of 21
       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 when 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. We may affirm a trial court’s decision regarding the admission of

       evidence if it is sustainable on any basis in the record. Barker v. State, 695

       N.E.2d 925, 930 (Ind. 1998), reh’g denied. We review de novo a ruling on the

       constitutionality of a search or seizure, but we give deference to a trial court’s

       determination of the facts, which will not be overturned unless clearly

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

       State, 18 N.E.3d 998, 1001 (Ind. 2014) (holding that the ultimate determination

       of the constitutionality of a search or seizure is a question of law that we

       consider de novo).


[13]   Generally, in ruling on admissibility following the denial of a motion to

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

       Carpenter, 18 N.E.3d at 1001. 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 v. State, 14 N.E.3d 38, 40 n.1

       (Ind. 2014). It also considers the evidence from the suppression hearing that is

       favorable to the defendant only to the extent it is uncontradicted at trial.

       Carpenter, 18 N.E.3d at 1001.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 12 of 21
[14]   We note that the State points to testimony from the suppression hearing and the

       trial. In his reply, Richardson argues that the State improperly relies on

       evidence not incorporated or admitted at trial to form the basis of its argument.

       Even assuming that Richardson did not waive this argument by raising it for the

       first time in his reply brief, we cannot say reversal is warranted.


[15]   In Magley v. State, which is cited by Richardson, the St. Joseph Circuit Court

       overruled a motion to suppress the defendant’s statement. 263 Ind. 618, 626,

       335 N.E.2d 811, 816 (1975), overruled on other grounds by Smith v. State, 689

       N.E.2d 1238 (Ind. 1997). At the trial in the Marshall Circuit Court, the

       defendant objected to the introduction of his statement, and the court

       conducted a hearing outside the presence of the jury and ruled the statement

       was admissible. Id. at 626, 335 N.E.2d at 816-817. On appeal, the Indiana

       Supreme Court addressed both the pre-trial ruling and the in-trial ruling. Id. at

       626-639, 335 N.E.2d at 817-823. The Court set forth guidance for the trial

       judge who is faced with a trial objection to a confession previously determined

       to be admissible:


               As a backdrop to proper consideration of this matter, it should be
               kept in mind that, in these situations, the State has already
               successfully met the issues raised in the challenge and shown
               beyond a reasonable doubt the voluntariness of the waiver and
               statement. When a simple objection for the purpose of
               preserving appellate rights is made, the trial judge should
               consider the pre-trial determination res judicata and binding




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 13 of 21
         upon him and overrule the objection.[5] If, however, the trial
         objection is based upon new factual or legal matter, a simple
         overruling of the objection would not be appropriate. In that
         instance, the trial judge may expect, and indeed require, that he
         be provided with an accurate summary description of such new
         matter. Thereafter, either of two levels of judicial response is
         appropriate. The trial judge may summarily overrule the
         objection if the new matter could in no event result in a
         determination of inadmissibility. This summary disposition may
         be made upon consideration of counsel’s description, or, in the
         discretion of the judge, after having permitted the defense to call
         witnesses, to present its new matter. On the other hand, if the
         trial judge deems such new matter to be of sufficient substance,
         he may conduct a hearing on the motion to suppress, having a
         scope appropriate under the circumstances, and reconsider the
         issue of admissibility. Gasaway v. State (1967), 249 Ind. 241, 231
         N.E.2d 513. In Rouse v. U.S., 123 U.S. App. D.C. 348, 359 F.2d
         1014, (1966), the D.C. Court of Appeals identified the nature of
         new matter which would call for a further hearing, as matter first
         appearing at trial which casts ‘reasonable doubt on the pre-trial
         ruling.’

         Where, as in the case at bar, the judge who conducts the trial is
         not the judge who conducted and determined the pre-trial
         motion, obstacles to a full and fair reconsideration at trial exist.
         The trial judge is not acquainted with the evidence presented in
         the pre-trial hearing. Consequently, he is unable to weigh the old
         evidence with the new. This problem does not arise, of course,
         where the trial judge makes a summary denial of the objection
         based upon an inadequate showing of substantial new matter.



5
  In Joyner, the Indiana Supreme Court discussed the statement in Magley that “the trial judge should consider
the pre-trial determination res judicata and binding upon him and overrule the objection.” 678 N.E.2d at 392
(quoting Magley, 263 Ind. at 634-635, 335 N.E.2d at 821-822). The Joyner Court held that this statement was
not intended to be literally applied and “was used to succinctly inform trial judges that they need not
necessarily rehear evidence and arguments relating to admissibility issues previously heard and determined
during pre-trial proceedings.” Id. at 393.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018                Page 14 of 21
               Neither does the problem arise when the new matter would
               provide an independent and sufficient ground for suppression, as
               in the case at bar. The problem would exist, where the trial judge
               deemed it appropriate to reopen an issue litigated and finally
               determined at the pre-trial stage, for, in such instances,
               reweighing of the new and old evidence as a body would be
               required. In such extreme cases, re-litigation of the motion to
               suppress is indicated. A transcript of the pre-trial hearing may or
               may not be used in such re-litigation, depending upon, for
               instance, whether the credibility of a single witness or existence
               of a single fact is undermined by the new matter. In such cases,
               the balance of the transcript, unrelated to that witness or that
               fact, might well serve in lieu of the live testimony of the State’s
               suppression witnesses.


       Id. at 634-635, 335 N.E.2d at 821-822.


[16]   Here, at the beginning of the trial, the court asked the parties if they had any

       preliminary matters, and Richardson’s counsel stated: “No, Your Honor. Just

       to let the Court know that I think this Trial will be very quick because it’s

       already been heard on a suppression issue that has already been denied . . . .”

       Transcript Volume II at 40. We note that, contrary to Richardson’s assertion

       that the testimony at the suppression hearing was not incorporated or admitted

       at trial, Richardson’s trial counsel brought up the issue of incorporating the

       evidence from the suppression hearing and the trial court ultimately stated that

       it would incorporate it. We also note that the court had the benefit of the June

       29, 2017 order denying Richardson’s motion to suppress. Under these

       circumstances, we conclude that this Court may consider the evidence from the

       suppression hearing that does not conflict with trial evidence.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 15 of 21
[17]   Richardson does not challenge the initiation of the traffic stop or Officer

       Nicholsen’s request that he exit his vehicle. Rather, he challenges the

       prolonging of the traffic stop and the pat-down under the Fourth Amendment

       and the pat-down under Article 1, Section 11 of the Indiana Constitution.


       A. Fourth Amendment


[18]   Richardson argues that Officer Nicholsen unlawfully prolonged the traffic stop

       beyond the time reasonably required to complete the mission of the stop. He

       also argues that, although an officer is allowed to ask a driver to exit a vehicle

       during a traffic stop, Officer Nicholsen did not have a reasonable suspicion that

       he was armed and dangerous. The State argues that Richardson waived any

       challenge to the stop itself because he made no such argument to the trial court

       and that specific and articulable facts warranted Officer Nicholsen’s reasonable

       concern for officer safety.


[19]   The Fourth Amendment to the United States Constitution provides, in

       pertinent part: “[t]he right of people to be secure in their persons, houses,

       papers, and effects, against unreasonable searches and seizures, shall not be

       violated . . . .” U.S. CONST. amend. IV.


[20]   To the extent Richardson asserts that Officer Nicholsen unlawfully prolonged

       the stop, we note that Richardson did not object at trial on this basis and did

       not respond in his reply brief to the State’s argument that he has waived this

       argument. We conclude that Richardson has waived this argument. See Mullins

       v. State, 646 N.E.2d 40, 44 (Ind. 1995) (“In order to preserve a claim of trial

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 16 of 21
       court error in the admission or exclusion of evidence, it is necessary at trial to

       state the objection together with the specific ground or grounds therefor at the

       time the evidence is first offered. . . . Failure to state the specific basis for

       objection waives the issue on appeal.”) (internal quotation and citations

       omitted).


[21]   Waiver notwithstanding, we cannot say reversal is warranted. In Rodriguez v.

       United States, ___ U.S. ___, 135 S. Ct. 1609, (2015), the United States Supreme

       Court held that “a police stop exceeding the time needed to handle the matter

       for which the stop was made violates the Constitution’s shield against

       unreasonable seizures.” 135 S. Ct. at 1612. Indiana Code § 34-28-5-3 provides

       that an officer may detain a person for a time sufficient to inform the person of

       the alleged infraction and obtain the person’s personal information, including

       name, address, date of birth, and identification, if any. Ind. Code § 9-18.1-11-2

       provides that “a person that owns or operates a vehicle may not operate or

       permit the operation of a vehicle that: (1) is required to be registered under this

       chapter; and (2) has expired license plates.”


[22]   When asked how long it took from the time he stopped Richardson to when he

       asked him to see what was on him, Officer Nicholsen answered between thirty

       seconds and a minute. When asked if the only reason why he asked

       Richardson to exit the vehicle was so he could tow it due to the expired plates,

       Officer Nicholsen answered: “I actually hadn’t even made my mind up if I was

       going to tow it. I just wanted to talk to him about the vehicle and see where to

       go from there.” Transcript Volume II at 14. We conclude the officer did not

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 17 of 21
       extend the stop beyond the duration necessary to investigate the infraction.

       Richardson has failed to demonstrate a Fourth Amendment violation on this

       basis.


[23]   As for Richardson’s second argument, to conduct a pat-down 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 v.

       Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). “In addition, a police officer

       ‘justified in believing that the individual whose suspicious behavior he is

       investigating at close range is armed and presently dangerous to the officer or to

       others,’ is entitled to conduct a limited patdown [sic] search of the suspect’s

       outer clothing to search for a weapon.” Jackson v. State, 669 N.E.2d 744, 747

       (Ind. Ct. App. 1996) (quoting Terry, 392 U.S. at 24, 88 S. Ct. 1868).


[24]   The record reveals that Officer Nicholsen testified at trial that Richardson did

       not answer his question regarding the pat-down, did not agree to the pat-down,

       and instead asked him questions. Richardson’s counsel asked Officer

       Nicholsen, “This was basically during a confrontation when he just stepped out

       of the vehicle?” Transcript Volume II at 47. Officer Nicholsen answered

       affirmatively. Officer Nicholsen also testified that Richardson took one step

       back and his demeanor was argumentative. No evidence at the bench trial

       conflicted with Officer Nicholsen’s testimony at the suppression hearing that

       Richardson was nervous or that the area was a high crime drug trafficking area.

       Richardson does not point to any evidence conflicting with Officer

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 18 of 21
       McWhorter’s testimony at the suppression hearing that Richardson “bladed his

       body” which constituted a “fighting stance.” Id. at 30.


[25]   Under these circumstances, we conclude the pat-down was not a violation

       under the Fourth Amendment and the court did not err in admitting evidence

       discovered as a result of the pat-down. See Lockett v. State, 747 N.E.2d 539, 543

       (Ind. 2001) (holding that an officer’s question of whether the defendant had any

       weapons was justified by police safety concerns and it did not materially extend

       the duration of the stop or the nature of the intrusion and the officer’s questions

       were not unreasonable under the Fourth Amendment), reh’g denied.


       B. Indiana Constitution


[26]   Richardson argues that the evidence was obtained in violation of his rights

       under Article 1, Section 11 of the Indiana Constitution. The State argues that

       Richardson waived this issue because he presented no argument or separate

       analysis under the Indiana Constitution to the trial court. It also argues that,

       waiver notwithstanding, the pat-down was reasonable. In reply, Richardson

       asserts the he did not waive his argument because he raised the Indiana

       Constitution before the trial court and asserted that the search was unlawful

       because the officer lacked reasonable suspicion under the Indiana Constitution

       and the trial court noted his objection under the Indiana Constitution.


[27]   Even assuming Richardson did not waive this issue, we cannot say reversal is

       warranted. Article 1, Section 11 of the Indiana Constitution provides:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 19 of 21
               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.


[28]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       Section 11 of our Indiana Constitution separately and independently. Robinson

       v. State, 5 N.E.3d 362, 368 (Ind. 2014). “When a defendant raises a Section 11

       claim, the State must show the police conduct ‘was reasonable under the

       totality of the circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d

       1200, 1205-1206 (Ind. 2008), reh’g denied). Generally, “[w]e consider three

       factors when evaluating 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 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)).


[29]   With respect to the degree of suspicion, we observe that Richardson does not

       challenge the initial stop, he refused to answer Officer Nicholsen’s question

       regarding the pat-down, stepped back, was nervous and argumentative, and

       bladed his body. The intrusion into Richardson’s privacy was minimal as it

       was merely a pat-down of his “outer layer of clothing and feel for weapons . . .

       .” Transcript Volume II at 50. Finally, the law enforcement needs were high

       given the circumstances leading to the pat-down. Under the totality of the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1533 | December 7, 2018   Page 20 of 21
       circumstances, we conclude that the search was reasonable and did not violate

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


                                                   Conclusion

[30]   For the foregoing reasons, we affirm Richardson’s conviction.


[31]   Affirmed.


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




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