MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Mar 09 2016, 8:37 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                    Gregory F. Zoeller
Crown Point, Indiana                                     Attorney General of Indiana
                                                         Kathrine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Morris Odis Davis, Jr.,                                  March 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1502-CR-64
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1310-FB-98



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016          Page 1 of 19
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Morris Odis Davis, Jr. (Davis), appeals his conviction for

      carrying a handgun without a license, a Class C felony, Ind. Code §§ 35-47-2-1;

      -23(c)(2)(B) (2013).


[2]   We reverse.


                                                    ISSUE

[3]   Davis raises one issue on appeal, which we restate as follows: Whether the trial

      court abused its discretion by admitting evidence that was seized pursuant to a

      warrantless search.


                           FACTS AND PROCEDURAL HISTORY

[4]   On October 16, 2013, Davis accompanied his mother to the Horseshoe Casino

      in Hammond, Lake County, Indiana. Davis was trying his luck on the gaming

      floor when he was approached by Leonard Pegues (Pegues), a man with whom

      Davis had a prior, unfriendly history. A verbal altercation ensued. Before the

      confrontation had a chance to escalate to a physical exchange, the casino’s

      security officers responded to the disturbance and separated Davis and Pegues.

      Davis indicated that he was afraid of Pegues and wanted to leave the casino.


[5]   In order to keep the men separated and to get both sides of the story, the

      casino’s security supervisor, Robert Farrell (Supervisor Farrell), escorted Davis

      to an interview room, located in an area of the casino accessible only to

      employees. Davis was cooperative with Supervisor Farrell and the other

      Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 2 of 19
      security officers as he followed them to the interview room. After Supervisor

      Farrell obtained some basic information from Davis, several agents from the

      Indiana Gaming Commission (IGC), 1 who had been summoned by security

      personnel at the onset of the altercation, arrived and assumed control of the

      investigation.


[6]   IGC Agent Dennis Tracy (Agent Tracy) first spoke with Pegues. Pegues, who

      “was in a state of being very nervous about the situation that had just

      occurred[,]” informed Agent Tracy that he and Davis had previously been

      involved in an altercation of a violent nature. (Tr. p. 108). As a result of their

      prior encounter, Pegues indicated that he believed there was an active warrant

      for Davis’ arrest. During his interview, Pegues was subjected to a pat-down

      search for weapons; none were found.


[7]   After hearing Pegues’ version of events, Agent Tracy went to the interview

      room to discuss the incident with Davis. Davis conceded that he had been

      involved in an altercation with Pegues in November of 2012; however, his

      account was significantly different from Pegues’ report. Namely, Davis denied

      that his prior interaction with Pegues had been violent—i.e., Davis contradicted

      Pegues’ claim that a weapon had been utilized in the incident. Davis also




      1
        Pursuant to Indiana Code section 4-33-4.5-1(c), “a gaming agent may act as an officer for the arrest of
      offenders who violate the laws of Indiana if the gaming agent reasonably believes that a crime has been, is
      being, or is about to be committed or attempted in the gaming agent’s presence.” The agent who detained
      Davis testified he had authority to arrest people, he wore a uniform, and he carried a gun. Conversely, the
      casino’s security officers do not carry firearms and possess no law enforcement authority.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016               Page 3 of 19
      denied Pegues’ allegation that there was a warrant out for Davis’ arrest. Agent

      Tracy informed Davis that they were going to verify the existence of any

      warrant, but he found “the fact that the stories were different [to be] very

      disconcerting.” (Tr. p. 171). Despite Davis’ apparent cooperation with the

      IGC agents and the casino’s security officers throughout the course of the

      inquiry into the incident on the casino floor, Agent Tracy observed that Davis

      “spoke very nervously. His hand gestures[] [and] his eye movement indicated

      to me that there may be deception going on.” (Tr. p. 161). As a result, Agent

      Tracy asked Davis to submit to a pat-down search “for our own safety[,]” and

      Davis complied. (State’s Exh. 1). Agent Tracy discovered a loaded .25-caliber

      semi-automatic handgun in the front pocket of Davis’ pants. Agent Tracy

      removed the firearm and inquired as to whether Davis possessed a permit to

      carry the gun, and Davis admitted that he did not. It was eventually

      determined that Davis did not have an active warrant.


[8]   On October 18, 2013, the State filed an Information, charging Davis with

      unlawful possession of a firearm by a serious violent felon, a Class B felony,

      I.C. § 35-47-4-5(c) (2013). The State subsequently amended the Information on

      April 9, 2014, and again on May 21, 2014, ultimately charging Davis with one

      Count of carrying a handgun without a license, a Class A misdemeanor, I.C. §§

      35-47-2-1; -23(c) (2013). The State also relied on Davis’ prior felony conviction

      for aggravated battery against a police officer (out of Cook County, Illinois) to

      file an enhancement charge that would elevate Davis’ crime from a Class A

      misdemeanor to a Class C felony. I.C. §§ 35-47-2-1; -23(c)(2)(B) (2013).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 4 of 19
[9]    On October 30, 2013, Davis filed a motion to suppress the gun that was

       discovered in his possession, arguing that the pat-down search violated his

       rights under both the Fourth Amendment to the United States Constitution and

       Article 1, Section 11 of the Indiana Constitution. On November 22, 2013, the

       trial court conducted a hearing, and on December 17, 2013, the trial court

       denied Davis’ suppression motion. On January 15, 2014, Davis filed a motion

       to certify the trial court’s order denying the motion to suppress for interlocutory

       appeal, which the trial court granted. On March 21, 2014, this court declined to

       accept jurisdiction for interlocutory appeal.


[10]   On August 25-26, 2014, the trial court conducted a bifurcated jury trial. Prior

       to the introduction of evidence, Davis renewed his motion to suppress, which

       the trial court again denied. At the close of the evidence, the jury returned a

       verdict of guilty of carrying a handgun without a permit, a Class A

       misdemeanor. Thereafter, Davis waived his right to have a jury hear the

       second phase of the trial regarding the charging enhancement, and he stipulated

       to the fact that he had previously been convicted of a felony. Accordingly, the

       trial court entered a judgment of conviction for carrying a handgun without a

       license as a Class C felony. On January 21, 2015, the trial court held a

       sentencing hearing and sentenced Davis to serve six years, with two years

       executed in Lake County Community Corrections and four years suspended to

       probation.


[11]   Davis now appeals. Additional facts will be provided as necessary.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 5 of 19
                                    DISCUSSION AND DECISION

[12]   Davis claims that the trial court abused its discretion by admitting the gun into

       evidence because it was seized during the course of an unlawful search, in

       violation of his rights under the Fourth Amendment to the United States

       Constitution. 2 The admission of evidence is a matter reserved for the discretion

       of the trial court and is subject to reversal only if the trial court abuses that

       discretion. Patterson v. State, 958 N.E.2d 478, 482 (Ind. Ct. App. 2011). On

       review, our court will find that a trial court has abused its discretion “if its

       decision is clearly against the logic and effect of the facts and circumstances

       before the court, or if the court has misinterpreted the law.” Id. Without

       reweighing the evidence, we consider any conflicting evidence in a light most

       favorable to the trial court’s ruling and any uncontested evidence in the

       defendant’s favor. Id.


[13]   The Fourth Amendment to the United States Constitution, which is applicable

       to the states through the Fourteenth Amendment, protects “[t]he right of the

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

       unreasonable searches and seizures.” U.S. CONST. amend IV. In general, a




       2
         Davis also generally asserts that the search was improper under Article 1, Section 11 of the Indiana
       Constitution, the text of which “is identical to the Fourth Amendment.” Stark v. State, 960 N.E.2d 887, 892
       (Ind. Ct. App. 2012), trans. denied. However, a claim under the Indiana Constitution “turns on an evaluation
       of the ‘reasonableness’ of the conduct of the law enforcement officers, not on the expectation of privacy
       commonly associated with Fourth Amendment analysis.” Id. Because it is not until his reply brief that
       Davis sets forth the specific standard utilized in Article 1, Section 11 cases or presents a cogent argument
       regarding the reasonableness of the law enforcement officers’ conduct, we find that he has waived his claim
       under the Indiana Constitution. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016              Page 6 of 19
       search warrant is required as “a prerequisite to a constitutionally proper search

       and seizure.” Danner v. State, 931 N.E.2d 421, 428 (Ind. Ct. App. 2010), trans.

       denied. In fact, warrantless searches “are per se unreasonable under the Fourth

       Amendment, subject to a ‘few specifically established and well-delineated

       exceptions.’” Patterson, 958 N.E.2d at 482 (quoting Katz v. United States, 389

       U.S. 347, 357 (1967)). “As a deterrent mechanism, evidence obtained in

       violation of this rule is generally not admissible in a prosecution against the

       victim of the unlawful search or seizure.” Clark v. State, 994 N.E.2d 252, 260

       (Ind. 2013) (citing Mapp v. Ohio, 367 U.S. 643, 649-55 (1961), reh’g denied).

       Thus, when a search or seizure is conducted in the absence of a warrant, the

       State bears the burden of proving that one of the well-delineated exceptions to

       the warrant requirement existed at the time of the search or seizure. Danner,

       931 N.E.2d at 428.


[14]   One such exception to the warrant requirement was established in Terry v. Ohio,

       392 U.S. 1 (1968), where “the United States Supreme Court held that a police

       officer may briefly detain a person for investigatory purposes if, based on

       specific and articulable facts together with reasonable inferences drawn

       therefrom, an ordinarily prudent person would reasonably suspect that criminal

       activity was afoot.” Patterson, 958 N.E.2d at 482. It is well established that

       “[r]easonable suspicion is determined on a case-by-case basis by examining the

       totality of the circumstances.” Id. Along with temporary detainment for

       investigative purposes, Terry also permits a police officer to conduct a limited

       search of the individual’s outer clothing for weapons if the officer reasonably

       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 7 of 19
       believes that the individual is armed and dangerous. 3 An officer’s authority to

       perform such a pat-down search of a detained individual during a Terry stop is

       dependent upon the nature and extent of the officer’s particularized concern for

       his or her safety.


       Id. at 482-83 (internal citation omitted). “The purpose of this search is to allow

       the officer to pursue his investigation without fear for his safety or the safety of

       others.” Wright v. State, 766 N.E.2d 1223, 1232 (Ind. Ct. App. 2002).


[15]   Accordingly, a Terry stop is a lesser intrusion than an arrest, and the scope of an

       investigatory stop thus involves only “inquiry necessary to confirm or dispel the

       officer’s suspicions.” Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010).

       Nevertheless, a Terry stop may transform into an arrest if it becomes so

       intrusive that “‘it interrupts the freedom of the accused and restricts his liberty

       of movement.’” Id. (quoting Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996))

       (explaining the difference between an investigative stop and an arrest). There is

       no “bright line” test for evaluating whether a stop is investigatory in nature or

       an arrest, and we have held that “common sense and ordinary human

       experience must govern over rigid criteria.” Id. In Terry, the United States




       3
         The dissent finds it “significant[]” that “Agent Tracy knew that ‘[t]he fact that we were called down to the
       gambling floor itself gave us some indication that there was something serious going on. . . . [T]hat alone
       gave us . . . reason to believe that there was a serious event going on. . . . Accordingly, Agent Tracy
       conducted his pat-down search of Davis for safety reasons and discovered the firearm.’” (Slip op. at 18-19).
       We decline to hold that the fact that a police officer has been summoned, without more, indicates the officer
       is facing a “serious event” that threatens his or her safety and necessarily renders reasonable the officer’s
       belief that he or she might be in danger and may therefore conduct a pat down search.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016                 Page 8 of 19
       Supreme Court suggested that a person has been “seized,” or arrested, for

       Fourth Amendment purposes only “when the officer, by means of physical

       force or show of authority, has in some way restrained the liberty of a citizen.”

       Terry, 392 U.S. at 19, n.16. In United States v. Mendenhall, 446 U.S. 544, 554

       (1980), the Supreme Court adhered to this standard, but added that “a person

       has been ‘seized’ within the meaning of the Fourth Amendment only, if in view

       of all of the circumstances surrounding the incident, a reasonable person would

       have believed that he was not free to leave.”


[16]   In this case, both parties agree that Terry and its progeny govern the detainment

       and pat-down search of Davis. The record reflects that the casino’s security

       manager, Christina Herrera (Manager Herrera), responded to a report of a

       “possible” fight. (Tr. p. 57). When Manager Herrera, together with two

       security supervisors encountered Davis on the casino floor, Manager Herrera

       “still didn’t know at that time if anybody had been punched or anything like

       that.” (Tr. p. 60). Davis told her “I just have to get out of here” and “I just

       want to go to my car,” but Manager Herrera, even though she did not know

       whether there had been an altercation, told Davis, “No, hold on,” and led

       Davis to “a back area that’s locked.” (Tr. p. 60). Manager Herrera testified

       that Davis “did nothing out of the ordinary” from the time she was called until

       he was taken to the back room. (Tr. p. 67). Manager Herrera instructed a

       security officer to take Davis to the interview room and to contact the Gaming

       Commission.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 9 of 19
[17]   Agent Tracy was called to the gaming floor and told there was a “disturbance.”

       (Tr. p. 106). He first spoke with Pegues and then went to talk to Davis. At that

       point, Agent Tracy had not seen the surveillance video or talked to any security

       officers who had witnessed what happened between David and Pegues. He was

       not aware that any criminal violation had occurred on the gaming floor. He

       questioned Davis in the interview room and an adjoining room.


[18]   This interview room was the last in a series of three rooms, which included a

       small mail room and a room that housed computers the agents used for

       affidavits and reports. The room Davis was taken to was “a very small odd-

       shaped room.” (Tr. p. 111). Agent Tracy characterized it as an “interrogation

       room” and as the “holding room.” (Tr. pp. 111, 112). Two agents and a

       security supervisor were in the room when Davis was interviewed. There were

       four or five people in the adjacent room.


[19]   Based on the facts before us, we must conclude that Davis was not briefly

       questioned on the gaming floor at the site of the altercation. See id. at 256

       (discussing Dunaway v. New York, 442 U.S. 200, 212 (1979)). Instead, despite

       informing the security officers that he wanted to leave the casino, Davis was

       escorted to an area of the casino accessible only by employees and was placed

       in a small interview room. Furthermore, regardless of the fact that Agent Tracy

       stated that Davis was free to leave at any time he wished, Davis was never

       informed of this fact, and it appears that he could not have exited the secured

       area unless accompanied by an IGC agent or casino employee. Thus, we do

       not find that a reasonable person in Davis’ position would have felt that he was

       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 10 of 19
       free to leave. Rather, it is clear that Davis’ situation fell outside the boundaries

       of a Terry stop and amounted to an arrest as his liberty was restrained. See, e.g.,

       D.Y. v. State, 28 N.E.3d 249, 255 (Ind. Ct. App. 2015).


[20]   Because the officers did not have a warrant for Davis’ arrest, the pat-down

       search was impermissible unless there was probable cause for the search. See,

       e.g. Bell v. State, 13 N.E.3d 543, 545 (Ind. Ct. App. 2014) (“a patdown search

       would have been permissible only if Officer Phillips had probable cause to

       arrest Bell.”), trans. denied. There is probable cause to search when the facts and

       circumstances within the knowledge of the officer making the search, based on

       reasonably trustworthy information, are sufficient to warrant a person of

       reasonable caution in the belief that an offense has been or is being committed.

       Clark v. State, 808 N.E.2d 1183, 1192 (Ind. 2004). The amount of evidence

       necessary to meet the probable cause requirement is determined on a case-by-

       case basis. Decker v. State, 19 N.E.3d 368, 376-77 (Ind. Ct. App. 2014), trans.

       denied. Whether there is probable cause is a fact-sensitive determination. Id. It

       is grounded in notions of common sense, not mathematical precision. Id. The

       evidence required to establish guilt is not necessary for probable cause for an

       arrest. Id.


[21]   In the present case, although Agent Tracy acknowledged that Davis and Pegues

       had given consistent stories regarding the disturbance on the casino floor, he

       offered as a basis for conducting the pat down his concern that Davis and

       Pegues provided contradictory narratives as to their prior history. More

       specifically, Agent Tracy noted that Davis “spoke very nervously” during his

       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 11 of 19
       interview, and “[t]he fact that [Davis] did not make eye contact” indicated to

       Agent Tracy “that there may be deception going on.” (Tr. pp. 160-61).

       According to Agent Tracy:

               My [thirty-one] years of law enforcement experience has taught
               me that when you have two individuals that are both nervous
               and excited about something that’s going on and you have
               different type stories of what was going on out there, you—you
               want to—you want to make sure that the environment is safe and
               you want to make sure that the stories you’re getting are correct.
               So the first thing that I always think about is safety. And, again,
               this room was very small. At the time there were four agents—or
               four people in this room. Outside into the—in the second room
               there was another four or five people. So as being the lead
               agent—I would say not by rank but only by experience—I
               wanted to make sure that the situation was safe, that everyone in
               the room I felt was my responsibility to make sure that they were
               continuing to be safe.


       (Tr. pp. 117-18).


[22]   Here, however, other than believing that Davis’ lack of eye contact indicated

       possible deception, Agent Tracy did not testify how this behavior suggested that

       Davis was armed and dangerous and was committing an offense. See, e.g., Pace

       v. Beto, 469 F.2d 1389, 1390 (5th Cir. 1972) (“Pace’s nervous conduct is not

       surprising in view of the fact that he had just been arrested, and such conduct by

       itself could not give rise to probable cause to believe that he had committed any

       offense other than the traffic violation.”). Moreover, the fact that Agent Tracy

       may have questioned the veracity of Davis’ account of an event that had

       occurred with Pegues nearly a year earlier is not an articulation of a specific fact

       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 12 of 19
       from which it could be inferred that Davis was armed and dangerous at the

       point in time immediately preceding the search. In fact, other than to state that

       “[i]t was the totality of all the circumstances together that just made me feel

       unsecure and unsafe[,]” including the fact that Pegues had indicated that there

       was a an active warrant for Davis’ arrest—which later proved to be untrue—

       Agent Tracy never indicated that he believed, or had reason to believe, that

       Davis was concealing a firearm on his person. (Tr. p. 182).


[23]   Agent Tracy further explained:

               [t]he fact that we were called down to the gambling floor itself
               gave us some indication that there was something serious going
               on. Because the security department does not call us down for
               just any reason. So that alone gave us some—some reason to
               believe that there was a serious event going on.


       (Tr. p. 106). Yet, when the IGC agents arrived to the gaming floor, the

       situation between Davis and Pegues had already been defused, and IGC agents

       did not deem it necessary to immediately search Davis or Pegues. Rather, it

       was not until well after the men had been separated and had provided differing

       accounts of their prior history that Agent Tracy determined that “the volatility

       of the situation” necessitated a search. (Tr. p. 119). Once again, except for a

       general assertion of volatility, Agent Tracy did not testify to facts that would

       support a reasonable, objective belief that Davis was armed and dangerous.


[24]   Instead, Agent Tracy testified that Davis had not, to Agent Tracy’s knowledge,

       committed any criminal offenses while on the casino floor, and Davis was


       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 13 of 19
       cooperative during his interview. Davis did not display any aggressive or

       furtive behaviors in the IGC agents’ presence. Furthermore, Davis was not

       handcuffed, and the IGC agents were never prompted to draw their own

       weapons in response to any actions taken by Davis. Accordingly, based on the

       facts before us, we conclude that Davis’ seizure amounted to an arrest which

       was unsupported by probable cause. As such, the search was impermissible and

       any evidence resulting from this illegal search has been improperly admitted.


                                               CONCLUSION

[25]   Based on the foregoing, we conclude that the trial court abused its discretion by

       admitting the gun into evidence because Davis’ detainment amounted to an

       arrest unsupported by probable cause.


[26]   Reversed.


[27]   May, J. concurs


[28]   Najam, J. dissents with separate opinion




       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 14 of 19
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Morris Odis Davis, Jr.,                                  Court of Appeals Case No.
                                                                45A03-1502-CR-64
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Najam, Judge, dissenting.


[29]   I respectfully dissent from the majority’s conclusion that the trial court abused

       its discretion in the admission of evidence, and I would affirm the trial court’s

       judgment and Davis’ conviction.


[30]   As an initial matter, I cannot agree with the majority’s sua sponte analysis that

       officers unlawfully arrested Davis. Davis did not object in the trial court on the

       grounds that he had been unlawfully arrested, and even if he had briefed that

       issue on appeal it is axiomatic that “[a] defendant may not raise one ground for

       objection at trial and argue a different ground on appeal.” Small v. State, 736

       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 15 of 19
       N.E.2d 742, 747 (Ind. 2000). Whether Davis’ counsel had good reason not to

       argue that the officers arrested him when they escorted a person apparently

       involved in a fight in a public area away from that fight and away from the

       public generally, when that person ran to them asking for assistance and

       voluntarily followed the officers when they offered their assistance, is a question

       I would leave for post-conviction review.


[31]   Because the majority concludes that the officers arrested Davis, the majority

       likewise concludes that Agent Terry needed probable cause to conduct the

       ensuing pat-down search. Again, this is at odds with Davis’ argument in the

       trial court and on appeal, in which he asserted not that Agent Terry lacked

       probable cause but instead that Agent Terry failed to meet the lower burden of

       having had a reasonable and articulable suspicion to conduct the pat-down

       search. For the same reasons I cannot agree with the majority’s analysis that

       officers arrested Davis, I cannot agree with the majority’s sua sponte analysis

       that Agent Terry lacked probable cause to conduct the pat-down search.


[32]   Considering only Davis’ actual argument on appeal, I would hold that the trial

       court did not abuse its discretion when it admitted the evidence seized from the

       pat-down of Davis’ person. As our supreme court has explained:

               Generally, a trial court’s ruling on the admission of evidence is
               accorded a great deal of deference on appeal. Because the trial
               court is best able to weigh the evidence and assess witness
               credibility, we review its rulings on admissibility for abuse of
               discretion and only reverse if a ruling is clearly against the logic



       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 16 of 19
               and effect of the facts and circumstances and the error affects a
               party’s substantial rights.


       Hall v. State, 36 N.E.3d 459, 467 (Ind. 2015) (citations and quotation marks

       omitted). Here, the parties agree that whether the pat-down search was lawful

       turns on whether Agent Terry had a reasonable and articulable suspicion to

       conduct the pat-down search.


[33]   “An officer’s authority to conduct a pat-down search is dependent upon the

       nature and extent of his particularized concern for his safety and that of others.”

       Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001). “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.” Terry v. Ohio, 392 U.S. 1, 27 (1968). In

       turn, this consideration requires that “due weight be given, not to [the officer’s]

       inchoate and unparticularized suspicion or ‘hunch,’ but to specific reasonable

       inferences which he is entitled to draw from the facts in light of his experience.”

       Id.


[34]   “The United States Supreme Court has held that nervous and evasive behavior

       is a pertinent factor in determining whether reasonable suspicion exists” to

       conduct a pat-down search. Howard v. State, 862 N.E.2d 1208, 1210-11 (Ind.

       Ct. App. 2007) (citing Florida v. Rodriguez, 469 U.S. 1, 6 (1984)). This court has

       likewise held that, where a defendant “became very nervous and fidgeted . . . as

       if trying to hide or retrieve something” upon an officer’s approach, “[t]he

       officer’s belief [that he might be in danger and] patdown search for weapons[]
       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 17 of 19
       were reasonable under the circumstances.” Trigg v. State, 725 N.E.2d 446, 449

       (Ind. Ct. App. 2000).


[35]   I cannot say that the trial court erred when it concluded that a reasonably

       prudent person in Agent Tracy’s circumstances would have been warranted in

       the belief that his or another’s safety was in danger prior to the pat-down

       search. Immediately upon arriving on the casino floor, Agent Tracy met with

       Pegues and observed that Pegues was “very irate,” “nervous,” “afraid,”

       “sweating,” and “walking all over the place.” Tr. at 161. Pegues stated that he

       and Davis had had a “violent” encounter about one year prior. Id. at 170.

       Agent Tracy then met with Davis. Agent Tracy immediately learned that Davis

       did not have identification on him while at the casino, which Agent Tracy,

       through his experience, believed to be “a problem” indicating “evasiveness.”

       Id. at 155, 169. Agent Tracy observed that Davis “spoke very nervously,” and

       Agent Tracy knew from his experience that Davis’ “hand gestures” and “eye

       movement indicated . . . deception.” Id. at 161. Upon telling Davis that Pegues

       had reported a previously violent encounter with Davis, Agent Tracy listened as

       Davis told a “different story,” which Agent Tracy found “disconcerting,” and

       Agent Tracy observed that Davis kept his “arms crossed,” which Agent Tracy

       recognized as “defensive body language” that suggested “deception” and

       “evasi[on].” Id. at 170-71, 177-78, 182. And, significantly, Agent Tracy knew

       that “[t]he fact that we were called down to the gambling floor itself gave us

       some indication that there was something serious going on. . . . [T]hat alone

       gave us . . . reason to believe that there was a serious event going on.” Id. at


       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016   Page 18 of 19
       160. Accordingly, Agent Tracy conducted his pat-down search of Davis for

       safety reasons and discovered the firearm.


[36]   Agent Tracy’s pat-down search relied on numerous specific and articulable

       concerns recognized by Agent Tracy prior to the search. 4 These concerns

       included not just permissible inferences from Davis’ “nervous and evasive

       behavior” but also the immediately preceding, “serious” physical altercation

       and Agent Tracy’s knowledge of a prior “violent” physical incident between

       Davis and Pegues. Howard, 662 N.E.2d at 1210-11; Trigg, 725 N.E.2d at 449.

       Agent Tracy was entitled to use his experience to guide his judgment, and we

       are required to give that assessment its due weight. Terry, 392 U.S. at 27. A

       reasonably prudent person in Agent Tracy’s circumstances would have been

       warranted in his belief that his or another’s safety may have been in danger,

       which satisfies the Fourth Amendment’s requirement for a lawful pat-down

       search. 5


[37]   Accordingly, I would affirm the trial court’s admission of the evidence and

       Davis’ conviction.




       4
         The majority criticizes Agent Tracy for waiting to conduct the pat-down until “well after the men had been
       separated.” Slip op. at 13. But it is not clear from the record exactly how much time had passed between
       separating the men and the pat-down. And, in any event, Davis cites no law that requires a pat-down at an
       officer’s first opportunity. To the contrary, it was prudent, if not constitutionally required, of Agent Tracy to
       wait until he had a well-developed, articulable basis for the pat-down before he conducted it.
       5
         I agree with the majority that Davis has not properly raised any claims under Article 1, Section 11 of the
       Indiana Constitution.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016                 Page 19 of 19
