                                                                        FILED
                                                                    Apr 04 2019, 6:17 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                       Curtis T. Hill, Jr.
Anthony S. Churchward, P.C.                                 Attorney General of Indiana
Fort Wayne, Indiana                                         Angela Sanchez
                                                            Assistant Section Chief
                                                            Caryn N. Szyper
                                                            Evan M. Comer
                                                            Deputy Attorneys General
                                                            Indianapolis, Indiana


                                             IN THE
     COURT OF APPEALS OF INDIANA
Sidney A. Berry,                                            April 4, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-1769
        v.                                                  Appeal from the Allen Superior
                                                            Court
State of Indiana,                                           The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            02D04-1604-F4-29



Mathias, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019                           Page 1 of 11
[1]   This matter presents on interlocutory appeal from the Allen Superior Court’s

      denial of Berry’s motion to suppress evidence he argues was obtained through

      an unlawful and unreasonable search and seizure.1


[2]   We affirm.


                                   Facts and Procedural History

[3]   Around 9:30 p.m. on March 29, 2016, Detective Marc Deshaies of the Fort

      Wayne Police Department (“FWPD”) was patrolling a high-crime residential

      area on the southeast side of Fort Wayne in an unmarked police vehicle. He

      was accompanied by Sergeant Hensler, also with the FWPD. It was dark

      outside, and as Detective Deshaies turned the corner, he observed a group of

      three males in the street near an unoccupied vehicle emitting loud music and

      parked close to the corner. The presence of the men in the street obstructed him

      from “turning the corner and easily continuing on.” Tr. p. 10. He did not

      observe any other traffic that was being obstructed, nor had he received any

      complaints or prior information regarding these men in the street.


[4]   Detective Deshaies had to stop his car because of the position of the men, and

      the men all backed up toward the car near which they had congregated. Each of

      the men was holding a beer bottle and appeared to be drinking. Detective

      Deshaies, along with Sergeant Hensler, wearing their FWPD uniforms,




      1
       We held oral argument on this matter on March 13, 2019 at Cathedral High School. We thank Cathedral
      High School for hosting us and counsel for their excellent advocacy.

      Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019                          Page 2 of 11
      stopped, exited their vehicle, and began to walk toward the group of men

      congregated around the vehicle. Detective Deshaies testified that when they

      exited the police vehicle, “it was decided that we were just going to simply exit

      the car, contact them, maybe speak to them about standing in the middle of the

      street or the violations of loud music or public intoxication for drinking in

      public.” Tr. pp. 9–10.

[5]   Detective Deshaies testified that he did not display his weapon or speak in a

      tone that would mandate compliance. As they approached the group of men,

      Berry looked at Detective Deshaies, appeared to take “great notice” of their

      presence, began to back up, dropped his beer bottle on the ground, and looked

      around to the left and then to the right and back at the officers. Tr. pp. 11–12.

      Berry moved his hands down toward his waist and then placed his hands in his

      pockets. Detective Deshaies testified this behavior led him to believe that Berry

      was “most likely preparing to flee.” Tr. p. 12. Detective Deshaies also observed

      a large bulge at the front left side of Berry’s waist. The Detective understood

      this to be a location where individuals commonly carry firearms, and he

      testified that, at the time, he believed the large bulge on the waist line to be “the

      outline of a handgun handle in his waistline.” Tr. p. 27. As Detective Deshaies

      did not observe significant behavior from the other two men, he decided to

      engage Berry first.


[6]   As Detective Deshaies approached Berry, Berry stared at him and “continued

      to back up.” Tr. p. 13. Once he came within a few feet of Berry, the Detective

      was able to detect the smell of marijuana. Detective Deshaies asked Berry if he

      Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019          Page 3 of 11
      had a weapon, and Berry responded that he did not. The detective then told

      Berry that he was concerned for his safety and informed Berry that he was

      going to conduct a pat-down search for weapons. Berry complied, placing his

      hands on his head, and the Detective began conducting a pat-down search of

      Berry’s clothing. Detective Deshaies did not begin his search with the bulge at

      Berry’s waistline, but rather, he began the standard pat-down search, on the

      right side of his body. As he went over Berry’s pocket, from his training and

      experience, he recognized a bag of marijuana. He indicated to Berry that he was

      not worried about marijuana. As he completed the pat-down, the Detective

      also discovered that the bulge he had observed on Berry’s waistline was an

      iPhone Plus inside a leather cell phone case that had been clipped to Berry’s

      belt. This phone had been concealed under Berry’s clothing.


[7]   Because of the smell of marijuana and because he knew there was marijuana in

      Berry’s pocket, Detective Deshaies placed handcuffs on Berry. After

      handcuffing Berry, the Detective removed two bags from Berry’s pocket. One

      bag contained solely marijuana, and the other contained marijuana, crack

      cocaine, and powder cocaine.

[8]   Berry was charged with Level 4 felony possession of cocaine or narcotic drug

      and a Class B misdemeanor possession of marijuana. Berry moved to suppress

      the drug evidence discovered during his arrest, and on July 9, 2018, the trial

      court held a hearing. Detective Deshaies served as the sole witness. After the

      hearing, the trial court denied Berry’s motion to suppress. Berry then filed, and



      Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019        Page 4 of 11
       we granted, this interlocutory appeal asking for review of the trial court’s

       decision not to suppress the evidence of the drugs obtained from his person.


                                        Discussion and Decision
                                              I. Standard of Review

[9]    A review of a denial of a motion to suppress must examine whether substantial

       evidence of probative value exists to support the trial court’s denial of the

       motion. Taylor v. State, 689 N.E.2d 699, 702 (Ind. 1997). To deter violations of

       the Fourth Amendment’s protections against unreasonable searches and

       seizures, 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). The State has the burden of

       demonstrating the admissibility of the evidence collected during a seizure or

       search. Id.


[10]   The reviewing court must examine not only the evidence favorable to the trial

       court’s judgment but also the uncontested evidence favorable to the defendant.

       Johnson v. State, 829 N.E.2d 44, 47 (Ind. Ct. App. 2005), trans. denied. No

       evidence shall be reweighed upon review, and all conflicting evidence will be

       considered most favorable to the trial court’s ruling. Marlowe v. State, 786

       N.E.2d 751, 753 (Ind. Ct. App. 2003). The trial court’s ruling shall be affirmed

       if it is supported by substantial evidence of probative value. Willingham v. State,

       794 N.E.2d 1110, 1113 (Ind. Ct. App. 2003); Scott v. State, 883 N.E.2d 147, 152

       (Ind. Ct. App. 2008). However, the ultimate determination of reasonable


       Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019         Page 5 of 11
       suspicion to support an investigative stop is reviewed de novo. Guilmette v. State,

       14 N.E.3d 38, 40–41 (Ind. 2014).

                         II. Fourth Amendment to the U.S. Constitution

[11]   The Fourth Amendment to the United States Constitution provides the right of

       the people to be secure in their persons, houses, papers, and effects, against

       unreasonable searches and seizures. U.S. Const. amend. IV. However, officers

       are allowed to conduct seizures in the presence of reasonable suspicion to pat-

       down clothing of individuals for possible weapons. Bell v. State, 81 N.E.3d 233,

       239 (Ind. Ct. App. 2017), trans. denied. Upon review, courts “cannot blind

       ourselves to the need for law enforcement officers to protect themselves and

       other prospective victims of violence in situations where they may lack probable

       cause for an arrest.” Terry v. Ohio, 392 U.S. 1, 24 (1968). This narrowly drawn

       authority “permit[s] a reasonable search for weapons for the protection of the

       police officer, where he has reason to believe that he is dealing with an armed

       and dangerous individual, regardless of whether he has probable cause to arrest

       the individual for a crime.” Id. at 27. 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.” Id.


[12]   The search, however, must be confined “strictly to what [is] minimally

       necessary to learn whether [an individual is] armed and to disarm them” once a

       weapon or weapons are discovered. Id. at 30. “A search for weapons in the

       absence of probable cause to arrest, however, must, like any other search, be
       Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019         Page 6 of 11
       strictly circumscribed by the exigencies which justify its initiation.” Id. at 25–26

       (citing Warden v. Hayden, 387 U.S. 294, 310 (1967)). “[I]n justifying the

       particular intrusion the police officer must be able to point to specific and

       articulable facts which, taken together with rational inferences from those facts,

       reasonably warrant that intrusion.” Id. at 21. “[S]imple ‘good faith on the part

       of the arresting officer is not enough.’” Id. at 22.


[13]   Here, many factors formed Detective Deshaies’s objectively reasonable basis to

       believe that Berry may have been armed and potentially posed a threat to officer

       or public safety. Initially, Berry demonstrated concerning behavior as he was

       approached by uniformed police. He dropped his beer bottle, backed away,

       looked side to side, reached his hands down toward his waist, and placed his

       hands in his pockets. Significantly, the other two men present did not exhibit

       these behaviors. The fact that the men were congregating in the middle of the

       street after dark in a high-crime area known for gun violence, murder, and drug

       activity is also a legitimate factor in the formation of Detective Deshaies’s

       objectively reasonable basis. Additionally, Detective Deshaies observed a large

       bulge that appeared as if it could be the outline of a gun handle at the front left

       side of Berry’s waist. We determine that all of these factors, taken together,

       appropriately formed an objectively reasonable basis for Detective Deshaies to

       perform the pat-down in accordance with the Fourth Amendment.




       Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019           Page 7 of 11
                     III. Article 1, Section 11 of the Indiana Constitution

[14]   Berry also challenges the denial of his motion to suppress under Article 1,

       Section 11 of the Indiana Constitution. Article 1, Section 11 of the Indiana

       Constitution reads:


               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.


[15]   When analyzing Article 1, Section 11 of the Indiana Constitution, “[i]nstead of

       focusing on the defendant’s reasonable expectation of privacy, we focus on the

       actions of the police officer and employ a totality-of-the-circumstances test to

       evaluate the reasonableness of the officer’s actions.” Duran v. State, 930 N.E.2d

       10, 17 (Ind. 2010) (internal citations omitted). Litchfield v. State, 824 N.E.2d 356,

       361 (Ind. 2005) establishes the test for the reasonableness of a search or seizure

       pursuant to Article 1, Section 11 of the Indiana Constitution. The Litchfield test

       balances: 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.

       It is the State’s burden to show its intrusion was reasonable. State v. Bulington,

       802 N.E.2d 435, 438 (Ind. 2004).




       Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019          Page 8 of 11
       A. Degree of Suspicion

[16]   In evaluating the degree of suspicion, courts consider “the reasonableness of the

       officers’ assumptions, suspicions, or beliefs based on the information available

       to them at the time.” Duran v State, 930 N.E.2d at 18.


[17]   The State argues that the Detective’s concern was “high enough” to warrant the

       decision to check for weapons due to Berry’s “fight or flight” behavior, looking

       around nervously, and dropping his hands to his pockets, the unidentified bulge

       at Berry’s waistline, and the other factors argued in conjunction with the federal

       analysis such as his presence in a high-crime area. Although Berry argues that

       he was compliant with the pat-down, followed the detective’s directions to

       place his hands on his head, and did not become angry or use profanity, these

       arguments do not address the factors the State identifies as contributing to the

       reasonableness of the suspicions that led Detective Deshaies to perform the pat-

       down.


       B. Degree of Intrusion

[18]   The degree of intrusion is evaluated from the defendant’s point of view. Duran,

       930 N.E.2d at 18. An “ordinary” pat-down of the outside of a suspect’s clothing

       is a fairly limited intrusion for the purposes of the Indiana Constitution. J.R. v.

       State, 89 N.E.3d 408, 412 (Ind. Ct. App. 2017), trans. granted, summarily aff’d in

       relevant part, 100 N.E.3d 256 (Ind. 2018). We have also previously held that

       police are not required to wait until an individual appears to be reaching for a




       Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019          Page 9 of 11
       weapon in order to ensure his safety and the safety of the others at the scene.

       Wilson v State, 745 N.E.2d 789, 792 (Ind. 2001).


[19]   Here, Detective Deshaies testified that he performed the pat-down in the same

       manner he performs all pat-downs. He also testified that, in his training and

       experience, “weapons can obviously be secretive in several big areas, ankle

       holsters, waistlines, pockets, shoulder holsters[.]” Tr. p. 13. He also testified

       that pat-downs should be conducted in the same manner —or in a very clear

       pattern —so they do not miss any area. Tr. p. 13. There is nothing in the record

       that persuades us that the pat-down at issue was anything other than an

       ordinary pat-down, and the intrusion here was minimal.


       C. Extent of Law Enforcement Needs

[20]   Berry argues that the extent of the law enforcement needs in these

       circumstances was low, largely because there were two officers present.

       However, the State points out that, although there were two officers present,

       and although Berry was the only individual exhibiting unusual behavior prior to

       his pat-down, there were two other men with him. Detective Deshaies testified

       that, while he was engaging Berry, Sergeant Hensler was “[d]ealing with the

       other two males.” Tr. p. 14.

[21]   Weighing the degree of suspicion, the degree of intrusion, and the law

       enforcement needs, we cannot say that the pat-down conducted in this matter

       violated Article 1, Section 11 of the Indiana Constitution.



       Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019         Page 10 of 11
                                                   Conclusion

[22]   Detective Deshaies had sufficient basis under both the Fourth Amendment to

       the United States Constitution and Article 1, Section 11 of the Indiana

       Constitution to perform a safety pat-down of Berry. Accordingly, we uphold the

       trial court’s denial of Berry’s motion to suppress.


[23]   Affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019     Page 11 of 11
