                                                                            FILED
                                                                        Dec 27 2019, 8:48 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General
Brooklyn, Indiana
                                                          Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Shane E. O’Keefe,                                         December 27, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1733
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court
State of Indiana,                                         The Honorable David D. Kiely,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          82C01-1807-F4-4879



Crone, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019                           Page 1 of 10
                                                   Case Summary
[1]   Shane E. O’Keefe appeals his convictions, following a bench trial, for level 4

      felony possession of methamphetamine and class C misdemeanor possession of

      paraphernalia. 1 He asserts that the trial court abused its discretion in admitting

      evidence obtained as a result of the patdown search of his person during a valid

      traffic stop. He claims that the search violated his rights under the Fourth

      Amendment to the United States Constitution. 2 Finding no constitutional

      violation, and therefore no abuse of discretion, we affirm.


                                      Facts and Procedural History
[2]   On July 16, 2018, Lieutenant Brent Hoover of the Evansville Police

      Department was traveling eastbound on Diamond Avenue in a fully marked

      patrol vehicle. He observed a black Harley Davidson motorcycle with two

      occupants traveling with no visible license plate. Lieutenant Hoover activated

      his emergency lights and sirens and initiated a traffic stop of the motorcycle. At

      the time of the stop, Lieutenant Hoover was off duty and was not wearing his

      police uniform.




      1
          The trial court also entered judgment against O’Keefe for two traffic infractions.
      2
        O’Keefe also asserts that the search violated his rights under Article 1, Section 11 of the Indiana
      Constitution, but he presents no separate argument with respect to the Indiana Constitution, instead
      conceding that Indiana has adopted the same rationale as applied in Fourth Amendment cases in deciding
      the reasonableness of an investigatory stop and subsequent patdown search. Holbert v. State, 996 N.E.2d 396,
      400 (Ind. Ct. App. 2013), trans. denied. Thus, we will likewise not address the federal and state constitutional
      provisions separately.



      Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019                               Page 2 of 10
[3]   The motorcycle was being operated by O’Keefe, and a female passenger,

      Megan Schmitt, was with him. When Lieutenant Hoover approached O’Keefe

      and Schmitt, he observed that Schmitt was extremely nervous. Lieutenant

      Hoover also observed a large knife bag attached to the motorcycle and observed

      that the motorcycle appeared to be freshly painted. Lieutenant Hoover took

      custody of the knife attached to the motorcycle and asked O’Keefe if he had any

      other weapons.3 O’Keefe stated that he did not.


[4]   Upon Lieutenant Hoover’s request, O’Keefe and Schmitt provided

      identification. O’Keefe produced an Indiana driver’s license with no motorcycle

      endorsement. Schmitt produced an Indiana identification card. O’Keefe was

      unable to produce proof of insurance. After receiving the identification,

      Lieutenant Hoover returned to his patrol vehicle, ran the information, and

      verified that Schmitt had an active misdemeanor arrest warrant. While

      Lieutenant Hoover was still in his patrol vehicle, he observed Schmitt on her

      cell phone, and then saw her start “walking away.” Tr. Vol. 2 at 9. When

      Lieutenant Hoover then exited the patrol car, Schmitt “actually ran.” Id. For

      the purposes of civilian and officer safety, Lieutenant Hoover placed handcuffs

      on O’Keefe and informed him that he was being detained and not arrested.

      Lieutenant Hoover “didn’t know what was taking place, why [Schmitt had fled]

      … hadn’t been able to determine ownership of the motorcycle or any of those



      3
       Lieutenant Hoover stated that the pouch on the motorcycle had what he refers to as “a shove knife” in it.
      Tr. Vol. 2 at 9.



      Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019                           Page 3 of 10
      things at that point.” Id. at 10. Because Lieutenant Hoover observed that

      O’Keefe was wearing a motorcycle vest with several large bulges, he did a brief

      patdown search of O’Keefe for weapons. He located a sharpening stone for a

      knife in one of O’Keefe’s vest pockets and removed it.


[5]   Evansville Police Department Detective Nathan Hassler just happened to be

      driving by the scene when he observed Lieutenant Hoover on the side of the

      road, not in uniform, with a “subject detained.” Id. at 19. Detective Hassler

      stopped to see if Lieutenant Hoover needed assistance. 4 Lieutenant Hoover

      advised Detective Hassler that another “subject had fled from the stop,” and he

      asked Detective Hassler to “take custody of Mr. O’Keefe at that time while he

      went to search for the subject that had fled.” Id. Lieutenant Hoover then left to

      pursue Schmitt.


[6]   Detective Hassler, who was now alone with O’Keefe, immediately noticed that

      O’Keefe “had a lot of bulky items in his motorcycle vest.” Id. In addition to

      the fact that O’Keefe’s passenger had just fled the scene, Detective Hassler

      found it concerning that O’Keefe “had a large number of garments on for that

      time of year, temperature wise,” not to mention that it appeared that his outer

      vest “pockets were packed full of stuff,” which alerted Detective Hassler to an

      “obvious safety issue in terms of what could be [accessed] by O’Keefe.” Id. at



      4
        The record indicates that although Lieutenant Hoover had radioed for assistance, Detective Hassler had his
      radio tuned to an encrypted channel, so he did not hear Lieutenant Hoover’s requests for assistance and
      simply stopped at the scene based upon his observation.



      Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019                           Page 4 of 10
      20. Unaware of whether Lieutenant Hoover had already conducted a patdown

      search, Detective Hassler conducted a patdown search to make “sure that Mr.

      O’Keefe was safe for [Detective Hassler] to be around, and that included a pat

      down of his person due to the bulges in his pockets.” Id. at 19-20.


[7]   During the patdown, Detective Hassler immediately felt what he recognized to

      be a large knife in O’Keefe’s pocket. Because his pockets were “so packed full

      of items[,]” in order to get to the knife, Detective Hassler had to first remove a

      cloth “sheath” from O’Keefe’s pocket. Id. at 20. Due to the “flimsy material”

      of the sheath, and without needing to “manipulate the [sheath] in any way,” it

      was immediately apparent to Detective Hassler upon grabbing it that it

      contained a pipe commonly used to consume methamphetamine. Id. Detective

      Hassler removed the pipe from the sheath and observed burnt residue inside the

      pipe. At that point, Detective Hassler placed O’Keefe under arrest, read him

      his Miranda rights, and asked him if he had any other items on his person.

      O’Keefe stated that he had “dope,” specifically “an 8 ball” of

      methamphetamine. 5 Id. at 21. While conducting his search incident to arrest,

      Detective Hassler discovered three individually wrapped baggies containing a

      total of 9.5 grams of methamphetamine on O’Keefe’s person. O’Keefe then

      revealed to Detective Hassler that he had struggled with addiction his entire life.




      5
       Detective Hassler testified that an “8 ball” is approximately 3.5 grams of methamphetamine. Tr. Vol. 2 at
      21.



      Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019                           Page 5 of 10
[8]    On July 18, 2018, the State charged O’Keefe with level 4 felony possession of

       methamphetamine and class C misdemeanor possession of paraphernalia. The

       State also charged O’Keefe with two class C traffic infractions; improper

       motorcycle license endorsement and operating a motorcycle without

       registration and display of registration. On February 20, 2019, O’Keefe filed a

       motion to suppress evidence obtained during the traffic stop. Among other

       things, O’Keefe argued that Detective Hassler’s patdown search violated his

       constitutional rights. Following a hearing, the trial court denied O’Keefe’s

       motion to suppress.


[9]    A bench trial was held on May 31, 2019. During trial, O’Keefe lodged a

       continuing objection based upon his motion to suppress and accompanying

       memoranda. At the conclusion of trial, the court found O’Keefe guilty as

       charged. The court sentenced O’Keefe to concurrent sentences of seven years

       for the level 4 felony and ninety days for the class C misdemeanor. This appeal

       ensued.


                                       Discussion and Decision
[10]   We begin by noting that O’Keefe does not challenge the validity of his initial

       traffic stop, nor could he, as “[i]t is unequivocal under our jurisprudence that

       even a minor traffic violation is sufficient to give an officer probable cause to

       stop the driver of a vehicle.” Tinker v. State, 129 N.E.3d 251, 255 (Ind. Ct. App.

       2019) (quoting Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013)), trans. denied.

       Rather, he challenges only the patdown search of his person by Detective

       Hassler, asserting that the search was conducted without reasonable suspicion
       Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019      Page 6 of 10
       that he was armed and dangerous, and therefore the trial court abused its

       discretion in admitting any evidence obtained thereafter. 6


[11]   The trial court has broad discretion to rule on the admissibility of evidence.

       Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). Generally, evidentiary rulings

       are reviewed for an abuse of discretion and reversed when admission is clearly

       against the logic and effect of the facts and circumstances. Id. Conflicting

       evidence is viewed in the light most favorable to the trial court’s ruling.

       Hansbrough v. State, 49 N.E.3d 1112, 1114 (Ind. Ct. App. 2016), trans. denied.

       However, we consider “afresh any legal question of the constitutionality of a

       search and seizure.” Id. (citing Meredith v. State, 906 N.E.2d 867, 869 (Ind.

       2000)).


[12]   The Fourth Amendment to the United States Constitution protects citizens

       against unreasonable searches and seizures by prohibiting them without a

       warrant supported by probable cause. U.S. CONST. amend. IV. To deter state

       actors from violating that prohibition, evidence obtained in violation of the

       Fourth Amendment generally is not admissible in a prosecution of the citizen

       whose right was violated. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013); see Hill

       v. State, 956 N.E.2d 174, 177 (Ind. Ct. App. 2011) (holding that evidence




       6
         We note that O’Keefe assumes “for the sake of argument that Lieutenant Hoover had reasonable suspicion
       that O’Keefe was armed and dangerous,” and he develops no argument regarding the reasonableness of
       Lieutenant Hoover’s patdown search. Appellant’s Br. at 12. Accordingly, we decline to address the
       propriety of that search, as any such challenge would be waived for failure to make cogent argument as
       required by Indiana Appellate Rule 46(A)(8).



       Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019                        Page 7 of 10
       obtained from an illegal search is “fruit of the poisonous tree” and therefore

       inadmissible in a court of law); Segura v. United States, 468 U.S. 796, 804 (1984)

       (noting that exclusionary rule encompasses both “primary evidence obtained as

       a direct result of an illegal search or seizure” and any “evidence later discovered

       and found to be derivative of an illegality.”). The State has the burden of

       demonstrating the admissibility of evidence collected during a seizure or search.

       Clark, 994 N.E.2d at 260.


[13]   An officer may perform a patdown of a driver or passenger of a stopped vehicle

       when the officer has reason to believe that he is dealing with an armed and

       dangerous individual, regardless of whether there is probable cause to arrest the

       individual for a crime. Terry v. Ohio, 392 U.S. 1, 27 (1968). The purpose of a

       Terry protective search “is not to discover evidence of crime, but to allow the

       officer to pursue his investigation without fear of violence.” Minnesota v.

       Dickerson, 508 U.S. 366, 373 (1993). “[T]here 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). 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.” Berry v. State, 121

       N.E.3d 633, 637 (Ind. Ct. App. 2019), trans. denied. To determine whether an

       officer acted reasonably, we consider the specific, reasonable inferences that the

       officer is entitled to draw from the facts in light of his experience. Patterson, 958

       N.E.2d at 486.

       Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019       Page 8 of 10
[14]   Here, Detective Hassler arrived at what had become a chaotic scene of a traffic

       stop. Lieutenant Hoover informed him that the female passenger had just fled

       on foot, and he asked Detective Hassler to secure O’Keefe while he pursued the

       female. Detective Hassler quickly observed that O’Keefe was wearing

       significantly more clothing than the weather called for, which included a thin

       outer leather vest with bulging pockets. Based upon these facts, Detective

       Hassler had “a significant safety concern” regarding O’Keefe and was fearful

       that something more than a routine traffic stop was occurring. Tr. Vol. 2 at 32.

       He stated that he believed that one of the obvious large bulges in O’Keefe’s vest

       could be a weapon, so he conducted a patdown search for officer safety. 7

       Detective Hassler indicated that he was not aware of whether Lieutenant

       Hoover had already conducted a patdown search for weapons, and Detective

       Hassler, who was now alone at the scene, felt that he needed to ensure that

       O’Keefe was “safe … to be around … due to the bulges in his pockets.” Id. at

       19-20. 8




       7
         Although neither party belabors this point, we note that O’Keefe’s hands were cuffed behind his back at the
       time of Detective Hassler’s patdown search. Detective Hassler acknowledged this fact but stated that in his
       training and experience he believed that O’Keefe, who he believed might be concealing a weapon, was “still a
       danger to police officers.” Hearing Tr. Vol. 2 at 40. Detective Hassler vividly described that the vest was
       loose and “not attached in the front” so “the side of the [vest] was able to freely move back and forth.” Id.
       He further stated that he had “seen video of offenders shooting officers with guns after they’ve already been
       handcuffed behind their back.” Id.
       8
         O’Keefe states that Detective Hassler “observed Lieutenant Hoover perform a patdown search of O’Keefe.”
       Appellant’s Br. at 12. The record does not support this statement. To the extent that there is conflicting
       evidence on this point, we remind O’Keefe that we observe conflicting evidence in the light most favorable to
       the trial court’s evidentiary ruling. Hansbrough, 49 N.E.3d at 1114.



       Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019                            Page 9 of 10
[15]   Based upon the admittedly thin record before us, we think that a reasonably

       prudent man in Detective Hassler’s position would be warranted in the belief

       that his safety or that of others was in danger, justifying his patdown search of

       O’Keefe. Specifically, the chaotic scene that Detective Hassler happened upon,

       coupled with his observations of large bulges in O’Keefe’s vest that he believed

       could be weapons, formed an objectively reasonable basis for a patdown search.

       Accordingly, we conclude that Detective Hassler’s patdown search did not run

       afoul of the Fourth Amendment, and therefore the trial court did not abuse its

       discretion in admitting evidence obtained as a result, including evidence

       obtained directly as well as derivatively from the search. We affirm O’Keefe’s

       convictions.


[16]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019   Page 10 of 10
