MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Aug 16 2019, 8:52 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Edward A. McGlone                                        Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary Allen Brownfield,                                   August 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-323
        v.                                               Appeal from the Vermillion Circuit
                                                         Court
State of Indiana,                                        The Honorable Robert M. Hall,
Appellee-Plaintiff                                       Special Judge
                                                         Trial Court Cause No.
                                                         83C01-1804-F6-52



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-323 | August 16, 2019                Page 1 of 9
[1]   Gary Brownfield brings this interlocutory appeal of the trial court’s order

      denying his motion to suppress certain evidence, arguing that the pat-down

      search violated both the Fourth Amendment to the United States Constitution

      and Article 1, Section 11 of the Indiana Constitution. Finding no violation, we

      affirm.


                                                    Facts
[2]   On April 25, 2018, Clinton City Police Department Officer Brandon Mahady

      was patrolling on Main Street in Vermillion County. Officer Mahady had

      received information from a confidential informant that Brownfield would be

      entering Vermillion County in a red pickup truck. The informant had told

      Officer Mahady that Brownfield “was gonna be coming from Terre Haute to

      Clinton delivering methamphetamine.” Tr. Vol. II p. 8.


[3]   Using his radar gun, Officer Mahady detected a white cargo van driving by at

      thirty-five miles per hour in a twenty-mile-per-hour zone. Officer Mahady also

      noticed that the front windshield had a large crack in it. Officer Mahady then

      activated his police lights and conducted a traffic stop.


[4]   As he approached the vehicle, Officer Mahady came upon a man later

      identified as Brownfield sitting in the driver’s seat. Officer Mahady asked

      Brownfield for his driver’s license and proof of insurance. While Brownfield

      searched for this, Officer Mahady asked Brownfield where he was going, to

      which Brownfield replied that he was going to the informant’s house, pointing


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-323 | August 16, 2019   Page 2 of 9
      at a house down the street. After reviewing Brownfield’s information, Officer

      Mahady recognized Brownfield’s name as the one matching the information

      provided by the informant and noticed that Brownfield appeared “nervous.” Id.

      at 15. Officer Mahady also asked Brownfield if he had any weapons on him, to

      which Brownfield said that he did not have a gun on him but that “there was a

      knife in the van.” Id.


[5]   Fearing that Brownfield might pose a risk to his safety, Officer Mahady asked

      Brownfield to exit the vehicle so that he could conduct a pat-down search to

      check for weapons, to which Brownfield replied “okay.” Defendant’s Ex. 1 at

      03:38:13.1 To confirm just what “okay” meant, Officer Mahady asked the

      question again, and Brownfield responded by saying “yes.” Id. at 03:38:22.

      Brownfield then exited his vehicle, turned around, and put his hands on the

      vehicle without any prompting. As Officer Mahady was patting Brownfield

      down, Officer Mahady wanted to search Brownfield’s pockets and asked, “You

      don’t care if I check?” to which Brownfield responded “no.” Id. at 03:38:46-

      03:38:49; see also Tr. Vol. II p. 31. Officer Mahady found a knife and a baggie of

      a substance that was later determined to be methamphetamine in Brownfield’s

      pockets. Officer Mahady then read Brownfield his Miranda2 rights and had




      1
          This exhibit represents audio recorded from Officer Mahady’s body camera during the traffic stop.
      2
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-323 | August 16, 2019                     Page 3 of 9
      Brownfield perform three field sobriety tests, all of which he failed. Brownfield

      was then arrested.


[6]   On April 27, 2018, the State charged Brownfield with one count of Level 6

      felony possession of methamphetamine and one count of Class C misdemeanor

      operating while intoxicated. On August 14, 2018, Brownfield filed a motion to

      suppress evidence obtained from the pat-down, arguing that the search violated

      both the Fourth Amendment to the United States Constitution and Article 1,

      Section 11 of the Indiana Constitution. Following a November 16, 2018,

      hearing, the trial court took the matter under advisement. Then, on November

      28, 2018, the trial court denied Brownfield’s motion to suppress. Brownfield

      now brings this interlocutory appeal.


                              Discussion and Decision
[7]   Brownfield’s sole argument on appeal is that the trial court erred when it denied

      his motion to suppress certain evidence because the search violated both the

      United States and Indiana Constitutions. Specifically, Brownfield argues that he

      did not consent to Officer Mahady’s request to conduct a pat-down search and

      that the search was not reasonable under a totality of the circumstances.


[8]   As a general matter, the Fourth Amendment to the United States Constitution

      protects citizens from unreasonable searches and seizures. Article 1, Section 11

      of the Indiana Constitution contains nearly identical language and says that

      “[t]he right of the people to be secure in their persons, houses, papers, and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-323 | August 16, 2019   Page 4 of 9
       effects, against unreasonable search or seizure, shall not be violated[.]”

       Evidence that is the product of an unlawful search is inadmissible under both

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

       11 of the Indiana Constitution. Hill v. State, 956 N.E.2d 174, 177 (Ind. Ct. App.

       2011) (holding that evidence obtained from an illegal search is “fruit of the

       poisonous tree,” and therefore, inadmissible in a court of law).


[9]    Brownfield is appealing from a negative judgment, so he has the burden of

       showing that the trial court’s ruling on the suppression motion was contrary to

       law. State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017). We will reverse this

       negative judgment only if the evidence points to a conclusion opposite that

       reached by the trial court. State v. Moriarity, 832 N.E.2d 555, 557-58 (Ind. Ct.

       App. 2005). We review the trial court’s conclusions of law de novo, giving no

       weight to the legal analysis below. Sanders v. State, 989 N.E.2d 332, 334 (Ind.

       2013).


                                  I. Fourth Amendment
[10]   The United States Supreme Court has established that a police officer may

       conduct a pat-down search of a driver after a valid traffic stop if the officer

       reasonably suspects that the driver is armed and dangerous. Pennsylvania v.

       Mimms, 434 U.S. 106, 111-12 (1977). “[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). To

       determine whether an officer acted reasonably, we consider the specific,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-323 | August 16, 2019   Page 5 of 9
       reasonable inferences that the officer is entitled to draw from the facts in light of

       his experience. Id.


[11]   The record shows that Officer Mahady conducted a valid traffic stop after

       detecting that Brownfield was driving almost fifteen miles per hour over the

       speed limit. Officer Mahady then asked Brownfield for his driver’s license and

       insurance information. After learning that this was the same Brownfield whom

       Officer Mahady suspected of trafficking in narcotics, Officer Mahady asked

       Brownfield if he had any weapons. Once Brownfield informed Officer Mahady

       that he had a knife, Officer Mahady testified to the following:


               Based off of—after we—[the informant]—came up in our
               conversation I could tell he was very nervous with, you know,
               there’s a knife—he stated to me there was a knife that could
               potentially be a threat to my safety I had him step out of the van,
               conducted—to conduct a pat down for weapons.


       Tr. Vol. II p. 15 (emphasis added).


[12]   From this information, we find that Officer Mahady had a reasonable belief

       that Brownfield was armed and dangerous, thereby warranting a pat-down

       search to check for weapons. Not only did a “nervous” Brownfield explicitly

       inform Officer Mahady that he had a knife, but Officer Mahady also had prior

       knowledge that this was the Brownfield that had been trafficking in illegal

       narcotics. See Bell v. State, 13 N.E.3d 543, 545-46 (Ind. Ct. App. 2014) (finding

       that an officer may conduct a pat-down if a suspect displays suspicious behavior

       and the arresting officer has concrete knowledge that the suspect is transporting

       drugs). The specific facts and circumstances that Officer Mahady drew on to
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-323 | August 16, 2019   Page 6 of 9
       conclude that his life was in danger independently support the trial court’s

       conclusion that there was no Fourth Amendment violation.


[13]   Consequently, Brownfield cannot claim a constitutional violation, and we need

       not consider any argument about whether Brownfield consented to the pat-

       down search.


                                 II. Article 1, Section 11
[14]   Searches by law enforcement require a different review under Article 1, Section

       11 of the Indiana Constitution:


               Conformity of a search to the Indiana Constitution turns on an
               evaluation of the “reasonableness” of the conduit of the law
               enforcement officers, not on the expectation of privacy commonly
               associated with Fourth Amendment analysis. Relevant
               considerations in evaluating reasonableness of a search under all
               the circumstances include the degree to which the search or
               seizure disrupts the suspect’s normal activities, and those facts and
               observations that support the officer’s decision to initiate the
               search or seizure . . . [T]he reasonableness of a search or seizure
               generally 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.


       Stark v. State, 960 N.E.2d 887, 892 (Ind. Ct. App. 2012) (internal citations

       omitted). With this analysis in mind, we find that Officer Mahady’s pat-down

       search of Brownfield did not violate Article 1, Section 11 of the Indiana




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-323 | August 16, 2019   Page 7 of 9
       Constitution, and therefore, any evidence obtained as a result of the lawful

       search is admissible.3


[15]   First, Officer Mahady had a high degree of concern that some law had been

       violated. He had received information from a confidential informant that

       Brownfield was driving to Clinton to deal methamphetamine. Even though

       Brownfield was driving a white cargo van and not a red pickup truck, Officer

       Mahady quickly figured out that the driver was, in fact, Brownfield.

       Furthermore, Brownfield was driving fifteen miles per hour over the speed

       limit, his windshield was cracked, and Officer Mahady testified that Brownfield

       appeared nervous. All of this information in the aggregate would create a high

       degree of suspicion that some criminal activity was afoot.


[16]   Next, the search of Brownfield and the seizure of his knife and

       methamphetamine imposed minimal intrusion into Brownfield’s ordinary

       activities. It is clear that Officer Mahady had the authority to conduct a Terry4

       stop of Brownfield’s vehicle after detecting the speeding violation and noticing a

       large crack in his windshield. So, the subsequent pat-down did not create an

       excessive intrusion or impede Brownfield’s tasks. It is not logical to say that



       3
         Additionally, Brownfield argues that he was entitled to the presence and advice of counsel pursuant to Pirtle
       v. State, 323 N.E.2d 634 (Ind. 1975). However, this is the first time Brownfield is raising this argument, and at
       the trial court level, Brownfield only argued that consent was not given and that the pat-down search was
       unreasonable. Therefore, Brownfield has waived this argument for appellate review. See Marshall v. State, 621
       N.E.2d 308, 314 (Ind. 1993). We note briefly, however, that even if the argument had been timely raised, it
       would not have changed the result because Brownfield was not in custody at the time he consented to the
       search. See Campos v. State, 885 N.E.2d 590, 601-02 (Ind. 2008).
       4
           Terry v. Ohio, 392 U.S. 1 (1968).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-323 | August 16, 2019                       Page 8 of 9
       Officer Mahady’s actions unreasonably intruded into Brownfield’s ordinary

       activities when Brownfield had already been stopped for a legitimate reason.

       Plus, Brownfield willingly answered all Officer Mahady’s questions, exited his

       vehicle, and placed his hands on his vehicle without prompting. Furthermore,

       Officer Mahady did not conduct a search of Brownfield’s entire body or of his

       most personal possessions.


[17]   Finally, Officer Mahady testified that he had felt that the traffic stop could have

       turned into a precarious situation. He had been informed that Brownfield was

       transporting illegal narcotics, and Brownfield himself told Officer Mahady that

       he had a knife. So, it was not unreasonable for Officer Mahady to believe that

       Brownfield was potentially armed and dangerous. Under these circumstances,

       the extent of law enforcement needs was significant. Moreover, all that Officer

       Mahady requested was Brownfield’s driver’s license, proof of insurance, and to

       check for weapons. Under the totality of the circumstances, Officer Mahady’s

       search of Brownfield was reasonable under Article 1, Section 11 of the Indiana

       Constitution.


[18]   In sum, the trial court did not err when it denied Brownfield’s motion to

       suppress.


[19]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-323 | August 16, 2019   Page 9 of 9
