                                                         FILED
                                                       Apr 17 2012, 9:08 am
FOR PUBLICATION
                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS                              GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              MICHAEL GENE WORDEN
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

CHARLES WESTMORELAND,                         )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A04-1107-CR-356
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


        INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Jose D. Salinas, Judge
                     Cause No. 49G14-1012-CM-090092


                                    April 17, 2012

                             OPINION - FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Charles Westmoreland was a passenger in a vehicle that police stopped for a

routine traffic violation. After a police officer determined that there were outstanding

warrants for the driver, the officer arrested the driver while another officer removed

Westmoreland from the car, handcuffed him, and patted him down for officer safety,

finding a baggie of marijuana in his front pocket. Westmoreland now appeals the trial

court’s denial of his motion to suppress the marijuana, arguing that the pat down was

illegal because the officers did not reasonably believe that he was armed and dangerous.

In light of the United States Supreme Court’s opinion in Arizona v. Johnson, 555 U.S.

323 (2009), which considered the authority of police officers to pat down vehicle

passengers during a routine traffic stop, we conclude that the trial court erred in denying

Westmoreland’s motion to suppress the marijuana because the officers did not reasonably

believe that he was armed and dangerous.

                              Facts and Procedural History

       Around 6:00 or 7:00 p.m. on December 1, 2010, Indianapolis Metropolitan Police

Department Officer Robert Hicks was patrolling the southside of Indianapolis.            He

observed a vehicle driven by Deborah Day commit traffic infractions, including failure to

signal, and initiated a traffic stop. Officer Hicks approached the driver side of the vehicle

and asked Deborah for her driver’s license and registration. Deborah gave Officer Hicks

an Indiana identification card.     Upon running the card, Officer Hicks learned that

Deborah had warrants out of both Marion and Johnson counties. Accordingly, Officer




                                             2
Hicks called for assistance and then “pulled [Deborah] out of the car, placed handcuffs on

her, [and] placed her [i]n the back seat of [his] vehicle.” Tr. p. 7.

       Westmoreland was the sole passenger in Deborah’s vehicle, and Officer Hicks

also obtained his identification. Westmoreland did not have any outstanding warrants.

About this same time, a second officer, Officer Ethan Forrest, arrived on the scene.

Officer Hicks told Officer Forrest that he “had a wanted person [Deborah] and asked him

if he would pull the passenger out of the vehicle” because he “was going to tow [it].” Id.

at 8-9. Officer Forrest then removed Westmoreland from the vehicle and performed a pat

down. Officer Forrest also placed Westmoreland in handcuffs, but he was not sure

whether he did so before or after the pat down. Although Officer Forrest said that he

performed a pat down “for officer safety issues,” id. at 13, he did not observe “any furtive

movements” from Westmoreland, id. at 14. During the pat down, Officer Forrest found a

“plastic baggie with marijuana substance inside of it, in [Westmoreland’s] front pocket.”

Id. at 13. Officer Forrest explained that a “corner piece” of the baggie, which revealed

marijuana residue, was “sticking out” of Westmoreland’s front pocket. Id. Officer

Forrest removed the baggie and gave it to Officer Hicks.

       The following day, the State charged Westmoreland with Class A misdemeanor

possession of marijuana. Westmoreland filed a motion to suppress the marijuana because

the “search and seizure of Defendant’s person, the bag within [D]efendant’s pocket, and

the marijuana within the bag, violated [his] rights under the 4th [A]mendment and

[A]rticle 1 § 11.” Appellant’s App. p. 23. Following a hearing, the trial court denied

Westmoreland’s motion to suppress the marijuana. Tr. p. 24-28.


                                               3
         This discretionary interlocutory appeal now ensues.

                                      Discussion and Decision

         Westmoreland contends that the trial court erred in denying his motion to suppress

the marijuana. Our standard of review for the denial of a motion to suppress evidence is

similar to other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct. App.

2003), trans. denied. We determine whether substantial evidence of probative value

exists to support the denial of the motion. Id. We do not reweigh the evidence, and we

consider conflicting evidence that is most favorable to the trial court’s ruling.                      Id.

However, the review of a denial of a motion to suppress is different from other

sufficiency matters in that we must also consider uncontested evidence that is favorable

to the defendant. Id. 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).

         Westmoreland specifically argues that his pat down was illegal under both the

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

Indiana Constitution because the officers did not reasonably believe that he was armed

and dangerous.1 Finding the federal constitutional argument dispositive, we address only

that.

         The Fourth Amendment provides:


         1
          We note that Westmoreland does not challenge the initial traffic stop. Indeed, it is well settled
that a police officer may stop a vehicle upon observing a minor traffic violation. Reinhart v. State, 930
N.E.2d 42, 45 (Ind. Ct. App. 2010).

                                                    4
        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.

Unless one of several established exceptions applies, police officers must obtain a

warrant based on probable cause before executing a search or a seizure. State v. Hobbs,

933 N.E.2d 1281, 1284 (Ind. 2010). One such exception was established in Terry v.

Ohio, in which the United States Supreme Court held that a police officer may, with or

without probable cause, briefly detain a person for investigatory purposes if, based on

specific and articulable facts, the officer reasonably believes that criminal activity “may

be afoot.”2 392 U.S. 1, 30 (1968). In addition to detainment, Terry permits a police

officer to conduct a limited search of the individual’s outer clothing for weapons if the

officer reasonably believes that the individual is armed and dangerous. Id. A generalized

suspicion that an individual presents a threat to an officer’s safety is insufficient to

authorize a pat-down search; rather, “there must exist articulable facts to support an

officer’s reasonable belief that the particular individual is armed and dangerous.”

Patterson v. State, 958 N.E.2d 478, 486 (Ind. Ct. App. 2011).

        A unanimous United States Supreme Court has already addressed the issue before

us, although neither party cites it, in Arizona v. Johnson, 555 U.S. 323 (2009). In



        2
          We note that the State argues that a different exception applies, that is, the search-incident-to-
arrest exception. Specifically, the State argues that Officer Forrest had probable cause to arrest
Westmoreland for possession of marijuana because he saw a corner of a baggie with marijuana residue
sticking out of Westmoreland’s front pocket. However, because the evidence shows that Officer Forrest
spotted the marijuana during the pat down and not before, we find no merit to this argument. See Tr. p.
13 (Officer Forrest testifying that he found a plastic baggie “when” he patted down Westmoreland), 19
(prosecutor stating at motion to suppress hearing that Officer Forrest saw the baggie “[d]uring” the pat
down).
                                                     5
Johnson, the Supreme Court considered “the authority of police officers to ‘stop and

frisk’ a passenger in a motor vehicle temporarily seized upon police detection of a traffic

violation.” Id. at 326. In arriving at an answer, the Supreme Court relied on three of its

prior decisions.

       First, the Supreme Court in Johnson cited Pennsylvania v. Mimms, 434 U.S. 106

(1977). Johnson, 555 U.S. at 331. In Mimms, the Supreme Court held that “once a motor

vehicle has been lawfully detained for a traffic violation, the police officers may order the

driver to get out of the vehicle without violating the Fourth Amendment’s proscription of

unreasonable searches and seizures.” 434 U.S. at 111 n.6. The Supreme Court explained

that the government’s “legitimate and weighty” interest in officer safety outweighs the

“de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit

the vehicle. Id. at 110-11. The Supreme Court further held once a driver is outside the

stopped vehicle, the driver may be patted down for weapons if the officer reasonably

concludes that the driver “might be armed and presently dangerous.” Id. at 112.

       Second, the Supreme Court in Johnson cited Maryland v. Wilson, 519 U.S. 408

(1997). Johnson, 555 U.S. at 331. Wilson held that the Mimms rule applies to passengers

as well as drivers. Id. Specifically, the Supreme Court instructed that “an officer making

a traffic stop may order passengers to get out of the car pending completion of the stop.”

Wilson, 519 U.S. at 415. The Supreme Court recognized that that “the same weighty

interest in officer safety is present regardless of whether the occupant of the stopped car

is a driver or passenger.” Id. at 413.




                                             6
       Finally, the Supreme Court in Johnson cited Brendlin v. California, 551 U.S. 249

(2007). Johnson, 555 U.S. at 332. In Brendlin, the Supreme Court observed that for the

duration of a traffic stop, the officer effectively seizes “everyone in the vehicle, not just

the driver.” 551 U.S. at 255. That is, a passenger is seized, just like a driver, “from the

moment [a car stopped by police comes] to a halt on the side of the road.” Id. at 263.

       Based on these three decisions, the Supreme Court in Johnson held that, in a

traffic-stop setting,

       the first Terry condition—a lawful investigatory stop—is met whenever it
       is lawful for police to detain an automobile and its occupants pending
       inquiry into a vehicular violation. The police need not have, in addition,
       cause to believe any occupant of the vehicle is involved in criminal activity.
       To justify a patdown of the driver or a passenger during a traffic stop,
       however, just as in the case 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.

555 U.S. at 327.

       We now apply Johnson to this case.3 Because Officer Hicks lawfully pulled over

Deborah for a traffic violation, the officers did not need to have cause to believe that

Westmoreland was involved in criminal activity. However, to justify the pat down of

Westmoreland, which led to the discovery of marijuana, the officers must have had

reasonable suspicion that he was armed and dangerous. But no evidence was presented at


       3
          We note that the State advocates for a slightly different test. That is, the State argues that
because the officers were going to tow the vehicle, a pat down was warranted. The State asserts that
Westmoreland likely would have been mulling about the area during this process, which would have
“place[d] the officers in possible danger and would reasonably heighten apprehension for their safety.”
Appellee’s Br. p. 7. However, as noted above, the State did not cite Johnson on appeal. Because Johnson
sets forth the applicable test, which plainly requires the officers to harbor reasonable suspicion that
Westmoreland was armed and dangerous, we decline to apply the State’s variation. In addition, because
we ultimately find that the officers did not reasonably believe that Westmoreland was armed and
dangerous, dangerousness would not automatically develop just because a car is towed.

                                                   7
the suppression hearing to support a reasonable belief that Westmoreland was armed and

dangerous. Although Officer Forrest testified that he patted down Westmoreland for

officer safety, Officer Forrest conceded that Westmoreland did not make any furtive

movements.    In addition, neither officer testified that Westmoreland was hostile,

belligerent, or even uncooperative during the traffic stop. But most compelling is the

State’s concession on appeal that “Officer Forrest did not have any particularized

articulable facts for believing that [Westmoreland] was armed and dangerous.”

Appellee’s Br. p. 7. We therefore conclude that the officers did not have reasonable

suspicion that Westmoreland was armed and dangerous.          Because Officer Forrest

performed an illegal pat down on Westmoreland, the trial court erred in denying his

motion to suppress the marijuana found as a result of that pat down. And without this

marijuana, there is simply no evidence to support the possession of marijuana charge

against Westmoreland. We therefore reverse the trial court and remand with instructions

for the court to dismiss Westmoreland’s possession of marijuana charge.

      Reversed and remanded.

ROBB, C.J., and NAJAM, J., concur.




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