MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jul 15 2016, 8:43 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Oliver Furnell Clemmons,                                 July 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A01-1512-CR-2226
        v.                                               Appeal from the Jackson Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard W.
Appellee-Plaintiff                                       Poynter, Judge
                                                         Trial Court Cause No.
                                                         36C01-1403-FA-8



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016            Page 1 of 15
                                            Case Summary
[1]   Oliver Furnell Clemmons appeals his convictions for class A felony dealing in a

      narcotic drug and class A misdemeanor marijuana possession. He challenges

      the trial court’s denial of his motion to suppress and subsequent admission of

      evidence that he claims was seized in violation of the Fourth Amendment to the

      U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. He

      also challenges the sufficiency of the evidence to support his convictions.

      Finding that Clemmons was not subjected to an unlawful search and that the

      evidence is sufficient to support his convictions, we affirm.


                              Facts and Procedural History
[2]   On March 22, 2014, Indiana State Trooper Matthew Holley was patrolling

      traffic on Interstate 65 in Jackson County when he observed a 1997 Infiniti

      sedan with an Alabama license plate following less than one car length behind

      an SUV. Trooper Holley pulled onto the interstate and followed the Infiniti,

      noting that it had passed the SUV and was traveling faster than the posted

      seventy-miles-per-hour speed limit. The officer initiated a traffic stop, exited his

      patrol car, and approached the Infiniti. He noticed that the driver, Clemmons,

      appeared unusually nervous and fidgety and had several items sitting on his lap.

      Clemmons gave the officer an identification card and also provided the vehicle

      registration, which the officer had not requested. Clemmons spoke fast,

      blurting out that his driver’s license had been suspended and that he was on his

      way to Alabama.


      Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 2 of 15
[3]   Trooper Holley returned to his patrol car and ran a check on Clemmons’s

      information and the information on the license plate. He verified Clemmons’s

      license suspension and found that the vehicle was registered to Clemmons’s

      father. During this process, the officer observed an unusual amount of

      movement by Clemmons inside his vehicle. Concluding that “something was

      not right” and “[Clemmons] was not normal,” the officer called for backup,

      knowing that he would have to get Clemmons out of the vehicle due to his

      suspended license. Tr. at 21.


[4]   As Trooper Holley approached the vehicle for the second time, he saw

      Clemmons hanging his arms out the driver’s side window. Id. at 18-21. He

      notified Clemmons that although he could arrest him for driving while

      suspended, he would instead issue him a citation and drive him to a nearby

      restaurant to arrange his own transportation. The officer also arranged for the

      Infiniti to be towed from the side of the interstate.


[5]   Trooper Holley ordered Clemmons to exit the Infiniti to be patted down for

      weapons as a safety precaution before entering the patrol car. As Clemmons

      exited, the officer was startled by a “small explosion sound,” which turned out

      to be Clemmons’s lighter exploding as it hit the ground. Id. at 27. During the

      patdown, the officer felt a large, hard object beneath Clemmons’s testicles that

      he knew was not a body part. He inquired about it, and Clemmons said that it

      was marijuana. Trooper Holley handcuffed Clemmons, put on gloves, and

      performed a more thorough search, during which Clemmons volunteered that

      he was a heroin addict and that the hard object also contained heroin. The

      Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 3 of 15
      officer retrieved the fist-sized, egg-shaped object from underneath Clemmons’s

      testicles and found it to consist of two airtight vacuum bags taped together, one

      containing heroin and the other marijuana.


[6]   Trooper Holley also discovered a heat-sealed package of white powder under

      the driver’s seat of the Infiniti. 1 Clemmons told him that the powder was a

      cutting agent. The officer also found loose inner door panels and a missing

      back cover on the front passenger’s seat. Subsequent laboratory tests showed

      that the seized packages contained ten grams of heroin, 27.74 grams of

      marijuana, and 132.95 grams of the cutting agent.


[7]   The State charged Clemmons with class A felony dealing in a narcotic drug,

      class C felony possession of a narcotic drug, and class A misdemeanor

      possession of marijuana. The parties stipulated to the chain of custody of the

      seized packages. Clemmons filed a pretrial motion to suppress the evidence

      seized during the traffic stop. The trial court held a hearing immediately before

      the start of Clemmons’s bench trial and denied the motion. The court

      incorporated the testimony from the hearing into the bench trial record, and the

      seized contraband was admitted over Clemmons’s objection. The trial court

      found Clemmons guilty as charged and entered judgment on class A felony

      dealing in a narcotic drug and class A misdemeanor marijuana possession.




      1
        Clemmons suggests that the search of the Infiniti was illegal but fails to present cogent argument on this
      point as required by Indiana Appellate Rule 46(A)(8).

      Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016               Page 4 of 15
[8]    Clemmons now appeals. Additional facts will be provided as necessary.


                                    Discussion and Decision
[9]    Because Clemmons appeals the denial of his motion to suppress evidence

       eventually admitted during his bench trial, the issue is more accurately framed

       as a request to review the trial court’s ruling on its admissibility. Guilmette v.

       State, 14 N.E.3d 38, 40 (Ind. 2014). We review a trial court’s rulings on

       admissibility of evidence for an abuse of discretion. Id. An abuse of discretion

       occurs where the trial court’s ruling is clearly against the logic and effect of the

       facts and circumstances before it and the error affects a party’s substantial

       rights. Id. However, where the issue concerns the constitutionality of the

       search and seizure of the evidence, it presents a question of law, which we

       review de novo. Id. at 40-41.


              Section 1 – Police did not violate Clemmons’s Fourth
                               Amendment rights.
[10]   Clemmons asserts that the drugs were seized pursuant to an unconstitutional

       search under the Fourth Amendment to the United States Constitution, which

       guarantees “[t]he right of the people to be secure in their persons … against

       unreasonable searches and seizures.” The Fourth Amendment’s safeguards

       “extend to brief investigatory stops of persons or vehicles that fall short of

       traditional arrest.” L.W. v. State, 926 N.E.2d 52, 55 (Ind. Ct. App. 2010). The

       stop involved in this case was an investigatory or “Terry stop,” based on Terry v.

       Ohio, 392 U.S. 1 (1968). In conducting a Terry stop, “a police officer may


       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 5 of 15
       briefly detain a person for investigatory purposes without a warrant or probable

       cause if, based upon specific and articulable facts together with rational

       inferences from those facts, the official intrusion is reasonably warranted and

       the officer has a reasonable suspicion that criminal activity ‘may be afoot.’”

       L.W., 926 N.E.2d at 55 (quoting Terry, 392 U.S. at 21-22).


               The “reasonable suspicion” requirement for a Terry stop is
               satisfied when the facts known to the officer, together with the
               reasonable inferences arising from such facts, would cause an
               ordinarily prudent person to believe that criminal activity has
               occurred or is about to occur. Reasonable suspicion entails
               something more than an inchoate and unparticularized suspicion
               or hunch, but considerably something less than proof of
               wrongdoing by a preponderance of the evidence.


       Rich v. State, 864 N.E.2d 1130, 1132 (Ind. Ct. App. 2007).


[11]   Reasonable suspicion sufficient to justify an investigatory stop is also less

       demanding than a showing of probable cause. Ertel v. State, 928 N.E.2d 261,

       264 (Ind. Ct. App. 2010), trans. denied. If the facts known by the police at the

       time of the investigatory stop are such that a person of reasonable caution

       would believe the action taken was appropriate, the Fourth Amendment is

       satisfied. Rich, 864 N.E.2d at 1132. “If a police officer has a reasonable fear of

       danger when making a Terry stop, he may conduct a carefully limited search of

       the suspect’s outer clothing in an attempt to discover weapons that might be

       used to assault him.” Granados v. State, 749 N.E.2d 1210, 1213 (Ind. Ct. App.

       2001), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 6 of 15
                 [I]n 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.


       Arizona v. Johnson, 555 U.S. 323, 327 (2009). “An officer’s inquiries into

       matters unrelated to the justification for the traffic stop … do not convert the

       encounter into something other than a lawful seizure, so long as those inquiries

       do not measurably extend the duration of the stop.” Id. at 333.


[12]   During his first exchange with Clemmons and subsequent verification, Trooper

       Holley became aware that Clemmons was driving on a suspended license, an

       offense for which he could have arrested him and conducted a search incident

       to arrest. Having decided to cite Clemmons and drive him to a safer location,

       he would need to ensure his own safety. Add to this circumstance the fact that

       he was troubled by Clemmons’s gestures and movement, stuttering, blurting out

       information, and unusual placement of items in his lap. See, e.g., Tr. at 13-14

       (“[I]t looked like someone grabbed into their center console and set stuff in their

       lap.”).


[13]   Clemmons characterizes this nervous conduct as typical of most drivers during

       a traffic stop. Yet, Trooper Holley, having conducted approximately 150 traffic


       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 7 of 15
       stops per month for the preceding nine years, was well acquainted with the

       usual nervousness exhibited by a driver during a traffic stop. He testified,

       “[S]omething was not right in the vehicle … I knew I had to get him out of that

       vehicle because he was suspended … I already felt that he was not normal and

       something’s wrong, so I asked another trooper to come and assist in case there

       was a problem.” Id. at 21.


[14]   Clemmons also characterizes Trooper Holley’s decision to transport him as

       mere pretext and asserts that the officer should have allowed him to call for a

       ride and then left him at the sight of the traffic stop to be picked up. In other

       words, he challenges not only Trooper Holley’s credibility but also his

       reasonableness under the circumstances.


[15]   In Wilson v. State, our supreme court addressed the reasonableness of an

       officer’s decision to pat down a driver initially stopped for speeding but

       suspected of intoxication before placing him in his patrol car to administer a

       sobriety test. 745 N.E.2d 789, 792-93 (Ind. 2001). There, the patdown

       produced a handgun for which Wilson did not have a license. Id. Our supreme

       court held that the patdown violated Wilson’s rights because the officer had

       neither a particularized suspicion nor a reasonably necessary basis for placing

       him in the patrol car to administer the sobriety test. Id. However, the Wilson

       court was careful to emphasize the risks attendant to placing a defendant inside

       a patrol car and to envision circumstances where it would be reasonably

       necessary for police to place a detained person in the vehicle:



       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 8 of 15
               When an officer places a person into a patrol car that will be
               occupied by the officer or other persons, there is a significantly
               heightened risk of substantial danger to those in the car in the
               event the detainee is armed …. [I]t is generally reasonable for a
               prudent officer to pat-down persons placed in his patrol car, even
               absent a belief of dangerousness particularized to the specific
               detainee.


       Id. at 792.


[16]   We find the holding in Wilson distinguishable. There, Wilson had not exhibited

       any furtive movements or behavior, and the officer testified that he had a

       personal practice of patting down any person that he intended to place in his

       patrol car. Id. at 791. However, the officer did not establish why he chose to

       place Wilson in his patrol car to conduct a sobriety test that could have been

       administered with Wilson remaining in his own vehicle, thus obviating the need

       for a patdown altogether. Id. at 793.


[17]   In contrast, here, Trooper Holley’s choices were: arrest Clemmons for driving

       on a suspended license, which would result in a patdown incident to arrest;

       issue a citation and pat him down before driving him to a safer location; or

       issue a citation and leave him on the side of the interstate with a vehicle that he

       had driven illegally, pending the arrival of the tow truck, all the while not

       knowing whether Clemmons had a spare key or another means of starting the

       vehicle and driving off. Safety concerns not only for Trooper Holley and

       Clemmons but also for other drivers on the interstate necessitated Clemmons’s

       transport away from the scene.


       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 9 of 15
[18]   Simply put, the fact that Trooper Holley chose not to arrest Clemmons for

       driving while suspended does not erase his probable cause to do so. Even

       having decided to cite rather than to so arrest Clemmons, the officer’s safety

       concerns based on Clemmons’s furtive gestures and other abnormal conduct

       were sufficient to justify the patdown and seizure of the drugs. Thus,

       Clemmons was not denied his protections under the Fourth Amendment. 2


       Section 2 – Police did not violate Clemmons’s rights under the
                            Indiana Constitution.
[19]   Clemmons raises a similar claim of unlawful search and seizure based on

       Article 1, Section 11 of the Indiana Constitution, which states in pertinent part,

       “The right of the people to be secure in their persons … against unreasonable

       search or seizure, shall not be violated.” While the language tracks that of the

       Fourth Amendment, Indiana’s search and seizure clause is subject to a different

       analysis, that is, we evaluate the reasonableness of the police conduct under the




       2
         Without raising it as a separate issue, Clemmons interjects a Fifth Amendment claim concerning his
       admissions made at the scene. Appellant’s Br. at 24. A person who is in custody and subjected to police
       interrogation must be read his Miranda warnings, which include the right to remain silent and the right to
       counsel. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Many of Clemmons’s statements were blurted out,
       and only one was an answer to a direct question. See Tr. at 68, 72 (Clemmons responding to officer’s
       question that object found under his testicles during patdown was marijuana, with officer explaining that he
       would have seized the object no matter what Clemmons said it was and that it was possible that the object
       was a holster). Even if the trial court had abused its discretion in admitting his statements on Fifth
       Amendment grounds, statements obtained in violation of the Constitution are subject to a harmless error
       analysis. Hendricks v. State, 897 N.E.2d 1208, 1215 (Ind. Ct. App. 2008). “If the State has presented other
       overwhelming evidence of the defendant’s guilt, then an erroneously admitted statement may be deemed
       harmless.” Id. (quoting Finney v. State, 786 N.E.2d 764, 768 (Ind. Ct. App. 2003)). The record contains
       overwhelming independent evidence of Clemmons’s guilt, and based on our holding that Clemmons’s
       constitutional protections against unlawful search and seizure were not violated by the patdown which
       produced the large vacuum-sealed package of drugs, as well as the lab test results verifying the presence and
       quantity of the drugs, we conclude that any error in admitting his statements was harmless.

       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016             Page 10 of 15
       “totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359-60 (Ind.

       2005). Subject to other relevant considerations under the circumstances, the

       reasonableness of a search or seizure turns on a balance of: “(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. at 361. The State

       bears the burden of establishing that, in the totality of the circumstances, the

       intrusion was reasonable. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001).


               A police stop and brief detention of a motorist is reasonable and
               permitted under Section 11 if the officer reasonably suspects that
               the motorist is engaged in, or about to engage in, illegal activity.
               Reasonable suspicion exists if the facts known to the officer,
               together with the reasonable inferences arising therefrom, would
               cause an ordinarily prudent person to believe that criminal
               activity has or is about to occur.


       Id. at 786-787 (citations omitted). “[R]easonableness under the totality of

       circumstances may include consideration of police officer safety.” Saffold v.

       State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010), trans. denied (2011).


[20]   The totality of the circumstances shows the following: (1) an initial stop based

       on Trooper Holley’s observations of Clemmons speeding and following too

       close; (2) a high degree of suspicion based on Clemmons’s unusual gestures and

       movements, stuttering and blurting out information, and other behavior during

       the traffic stop; (3) actual knowledge of Clemmons’s criminal activity, that is,

       driving on a suspended license; (4) a high degree of concern that Clemmons


       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 11 of 15
       might drive away in the vehicle during the stop; (5) the necessity of removing

       Clemmons from the vehicle that he had been driving illegally; (6) the necessity

       of removing both Clemmons and the vehicle from the side of the interstate,

       which meant towing the vehicle and transporting Clemmons in the patrol car;

       (7) a relatively low level of intrusion of patting down Clemmons outside his

       clothing; (8) the discovery of a large, hard object underneath Clemmons’s

       testicles during the patdown, which Clemmons said was marijuana,

       precipitating the handcuffing and more thorough search of his person; (9)

       Clemmons’s blurting out that the seized object also contained heroin; and (10)

       the need for law enforcement safety while transporting Clemmons to a safe

       location.


[21]   Clemmons’s conduct and suspended status created the circumstances that

       escalated a simple traffic stop to one involving the search and seizure of the

       contraband. The totality of the circumstances supports Trooper Holley’s search

       of Clemmons and the vehicle, and as such, his actions did not violate

       Clemmons’s rights under the Indiana Constitution.


        Section 3 – The evidence is sufficient to support Clemmons’s
                                convictions.
[22]   Finally, Clemmons maintains that the evidence is insufficient to support his

       convictions. When reviewing a challenge to the sufficiency of evidence, we

       neither reweigh evidence nor judge witness credibility. Drane v. State, 867

       N.E.2d 144, 146 (Ind. 2007). Rather, we consider only the evidence and

       reasonable inferences most favorable to the judgment and will affirm the

       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 12 of 15
       conviction “unless no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt.” Id. It is therefore not necessary that

       the evidence “overcome every reasonable hypothesis of innocence.” Id.


[23]   The trial court entered judgment of conviction against Clemmons for class A

       felony dealing in a narcotic drug and class A misdemeanor marijuana

       possession. See Ind. Code § 35-48-4-1 (“A person who … possesses, with intent

       to … deliver … a narcotic drug, pure or adulterated, classified in schedule I or

       II … commits dealing in … a narcotic drug … a Class A felony if … the

       amount of the drug involved weighs three (3) grams or more”); see also Ind.

       Code § 35-48-4-11 (“A person who … knowingly or intentionally possess (pure

       or adulterated) marijuana … commits possession of marijuana … a Class A

       misdemeanor.”). 3


[24]   First, to the extent that Clemmons predicates his sufficiency challenge on the

       alleged inadmissibility of the contraband seized during the traffic stop, his

       argument lacks merit, as discussed in Sections 1 and 2. As such, we address his

       argument with the evidence as properly admitted, under which circumstances

       he limits his challenge to his conviction for class A felony dealing in a narcotic.


[25]   Clemmons maintains that the State failed to prove that he intended to deliver

       the heroin found on his person. He claims that he was a user who intended to




       3
         These statutes were revised effective July 1, 2014. However, we cite the versions of the statutes in effect on
       the date of Clemmons’s offenses.

       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016              Page 13 of 15
       snort the heroin himself. The laboratory test results show that Clemmons

       possessed ten grams of heroin, well above the three-gram threshold for class A

       felony possession with intent to deliver. “Possession of a substantial amount of

       narcotics constitutes circumstantial evidence of intent to deliver, and if the

       quantity is such that it could not be personally consumed or used, then an

       inference of a predisposition to sell can reasonably be drawn.” Hape v. State,

       903 N.E.2d 977, 997-98 (Ind. Ct. App. 2009) (citation and internal quotation

       marks omitted), trans. denied. 4


[26]   In addition to the heroin and marijuana found on Clemmons’s person, police

       discovered 132.95 grams of a cutting agent underneath the driver’s seat of the

       vehicle that Clemmons was driving. Drug interdiction officer Randall Miller

       testified that traffickers add cutting agents to the drugs to maximize their profits

       and that those who use without also dealing would already have the cutting

       agent mixed in with the drug. He also testified as to other hallmarks of

       trafficking: driving a vehicle owned by a third party; driving a vehicle with

       loose panels for concealment of bulk narcotics; driving long distances without

       luggage; the absence of paraphernalia indicative of personal use; and packaging

       the drugs in large, sealed, airtight packages as opposed to quarter to half-gram

       bindles of heroin wrapped in foil, a baggie, or a balloon. All of these apply in

       this case. Clemmons drove his father’s vehicle and said that he was traveling to




       4
         In Hape, the total quantity of methamphetamine recovered during the search was 8.26 grams. 903 N.E.2d
       at 985.

       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016       Page 14 of 15
       Alabama when he was stopped. Police found no luggage or user paraphernalia

       in the vehicle. They did find loose panels and a torn cover on the back of one

       of the seats. The large package of drugs found underneath Clemmons’s testicles

       consisted of two airtight, vacuum-sealed bags, one containing ten grams of

       heroin and the other containing 27.74 grams of marijuana.


[27]   Moreover, the jail commander and the jail nurse testified concerning their

       experience in dealing with sweaty, shaky, fatigued heroin addicts experiencing

       withdrawal symptoms while incarcerated. Both reported that Clemmons

       appeared robust, had no needle marks, and showed no signs of withdrawal

       during his incarceration. To the extent that Clemmons challenges their

       testimony on the basis of his assertions to Trooper Holley that he snorted rather

       than injected heroin, this matter goes to the weight of the evidence and

       credibility of witnesses. The same may be said about his arguments concerning

       the obvious looseness of the door panels and the absence of plastic bags, scales,

       and other indicia of dealing. In short, he invites us to reweigh evidence and

       reassess witness credibility, which we may not do. Probative, properly

       admitted evidence supports the trial court’s conclusion that he intended to

       deliver the heroin. Based on the foregoing, we conclude that the evidence most

       favorable to the judgment is sufficient to support Clemmons’s convictions.

       Accordingly, we affirm.


[28]   Affirmed.


       Najam, J., and Robb, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 36A01-1512-CR-2226 | July 15, 2016   Page 15 of 15
