                                                                           FILED
                                                                   Feb 13 2020, 10:12 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John L. Tompkins                                           Curtis T. Hill, Jr.
Tompkins Law                                               Attorney General of Indiana
Indianapolis, Indiana
                                                           Matthew R. Mackenzie
                                                           Megan M. Smith
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William Michael Bean II,                                   February 13, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-225
        v.                                                 Appeal from the Hancock Circuit
                                                           Court
State of Indiana,                                          The Honorable Terry K. Snow,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           30C01-1709-F3-1956



May, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                           Page 1 of 21
[1]   William Michael Bean II appeals his convictions of Level 3 felony dealing in a

      schedule II controlled substance 1 and Level 4 felony dealing in a schedule IV

      controlled substance. 2 Bean raises one issue on appeal, which we expand and

      restate as: (1) whether the officers lawfully initiated a traffic stop, and (2)

      whether the trial court erred in admitting evidence discovered during searches

      of Bean’s person in conjunction with the traffic stop. We also address sua sponte

      whether searches of Bean’s person were justifiable as searches incident to arrest.

      We reverse.



                               Facts and Procedural History                           3




[2]   On September 19, 2017, Detective Jacob Lewis and Detective David Wood,

      who were narcotics investigators with the Hancock County Sheriff’s

      Department, saw Bean at a Speedway gas station located at I-70 and 600

      County Road West. Detective Wood had his police dog in his car. The

      detectives did not observe Bean engage in any suspicious activity at the gas

      station, but they recognized him as a suspected narcotics user and dealer.

      Detective Wood left the gas station and travelled along 500 County Road North

      because he knew that was the road Bean would likely travel in order to drive

      home from the gas station. When Bean left the Speedway station, Detective



      1
          Ind. Code § 35-48-4-2.
      2
          Ind. Code § 35-48-4-3.
      3
       We held oral argument on October 21, 2019, in Montezuma, Indiana. We thank the faculty and staff of
      Riverton Parke High School for their hospitality and commend counsel for their able presentations.

      Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                        Page 2 of 21
      Lewis followed him “to see if he was involved in any narcotics activity that I

      know him to be involved in [sic].” (Tr. Vol. II at 7.)


[3]   When Bean’s vehicle passed where Detective Wood was stationed, Detective

      Wood determined Bean was traveling sixty miles per hour on an unposted

      county roadway, where the speed limit defaults to fifty-five miles per hour.

      Detective Wood notified Detective Lewis of Bean’s infraction, and Detective

      Lewis initiated a traffic stop. Detective Wood and another deputy also arrived

      at the scene of the stop. The officers directed Bean to exit his vehicle and to

      come back to Detective Lewis’ vehicle because the officers knew from previous

      interactions with Bean that he typically carried a weapon. Bean complied with

      the officers’ commands. Detective Lewis decided to perform a pat down

      search, and Bean consented to the search. Detective Lewis did not find any

      weapons and asked Bean for his driver’s license and vehicle registration.

      Detective Lewis then returned to his police vehicle to complete paperwork

      associated with Bean’s traffic infraction.


[4]   Detective Wood asked Bean if he could search Bean’s vehicle, and Bean

      consented. Detective Wood observed what he believed to be marijuana shake 4

      on the passenger seat and floorboard of Bean’s vehicle. Detective Wood did

      not collect the material on the seat or test it to determine if it was in fact




      4
          Detective Wood described marijuana shake as “small marijuana pieces . . . and seeds.” (Tr. Vol. II at 35.)


      Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                               Page 3 of 21
      marijuana. He also did not walk his police dog around Bean’s vehicle to see if

      the dog alerted to the presence of drugs.


[5]   After the vehicle search, Detective Wood reported to Detective Lewis that he

      found marijuana shake inside Bean’s vehicle, and Detective Lewis relayed that

      he observed Bean shifting his weight and “crossing himself or reaching towards

      his groin” while Detective Wood was searching his vehicle. (Id. at 12.) The

      detectives observed that Bean was sweating and breathing heavily, and his

      hands were shaking. The two decided to conduct a further search of Bean’s

      person. Detective Wood asked Bean to remove his shoes, Bean complied, and

      Detective Wood did not find anything illegal in his shoes.


[6]   Detective Wood then conducted a second pat down search of Bean. Detective

      Wood did not ask for Bean’s consent before conducting the second pat down

      search. During this search, Bean pinched his legs together. After additional

      consultation with Detective Lewis, Detective Wood asked Bean to shake out

      his pants. Bean started to jump up and down rather than shake out the front of

      his pants. A bag of pills fell out of Bean’s pants. Detective Lewis recognized

      the bag to contain hydrocodone pills and alprazolam pills, a generic for Xanax,

      because of the markings on the pills. The officers arrested Bean, but they did

      not issue a citation or warning for his speeding infraction.


[7]   The State charged Bean with Level 3 felony dealing in a schedule II controlled

      substance (hydrocodone), Level 4 felony dealing in a schedule IV controlled




      Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020    Page 4 of 21
      substance (alprazolam), and Level 6 felony maintaining a common nuisance. 5

      The State did not charge Bean with possession of marijuana based on the

      alleged shake in the car. On January 4, 2018, Bean filed a motion to suppress

      the evidence obtained during the traffic stop and subsequent searches. The

      court held a hearing on the motion to suppress on February 8, 2018. The court

      denied the motion to suppress on March 5, 2018, and the matter proceeded to a

      bench trial on December 4, 2018.


[8]   At trial, Bean renewed his objection to the search, and the court overruled his

      objection. The State introduced evidence of text messages between Bean and a

      friend in which Bean agreed to sell his friend “dones,” which Detective Lewis

      testified is a slang term for hydrocodone. (Id. at 79-81.) The court found Bean

      guilty of both dealing counts and not guilty of the maintaining a common

      nuisance count. The court sentenced Bean to nine years for dealing in a

      Schedule II controlled substance, with five years executed in the Indiana

      Department of Correction and four years suspended to probation, and five

      years for dealing in a Schedule IV controlled substance. The court ordered the

      sentences to run concurrently.



                                   Discussion and Decision




      5
          Ind. Code § 35-45-1-5.


      Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020    Page 5 of 21
[9]    While Bean moved to suppress the evidence discovered during the traffic stop

       and subsequent searches, his motion was denied, and the case proceeded to

       trial. Therefore, Bean appeals from the admission of the evidence at trial. See

       Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). The trial court has broad

       discretion when ruling on the admissibility of evidence, and we usually review

       such decisions for an abuse of discretion. Id. An abuse of discretion occurs “if

       the ruling is clearly against the logic and effect of the facts, and the error effects

       substantial rights.” Sams v. State, 71 N.E.3d 372, 376 (Ind. Ct. App. 2017).

       However, the constitutionality of a search or seizure is a pure question of law

       that we review de novo. Id.


                                             1.       Traffic Stop
[10]   The Fourth Amendment to the United States Constitution 6 provides that


                  [t]he right of the people to be secure in their persons, houses,
                  papers and effects, against unreasonable searches and seizures,
                  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 persons
                  or things to be seized.


       The protections of the Fourth Amendment have been extended to the states by

       virtue of the Fourteenth Amendment. N.W. v. State, 834 N.E.2d 159, 162 (Ind.

       Ct. App. 2005), trans. denied. Under the Fourth Amendment, “a traffic stop of a




       6
           Bean does not assert a claim under Article 1, Section 11 of the Indiana Constitution.


       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                        Page 6 of 21
        vehicle and temporary detention of its occupants constitutes a ‘seizure.’”

        McLain v. State, 963 N.E.2d 662, 666 (Ind. Ct. App. 2012). Police officers are

        charged with enforcing traffic laws and are authorized to stop drivers they

        observe commit traffic infractions. Datzek v. State, 838 N.E.2d 1149, 1156 (Ind.

        Ct. App. 2005) (holding stop of suspected drunk driver after driver failed to use

        turn signal was lawful), reh’g denied, trans. denied. Therefore, the officer’s traffic

        stop of Bean was lawful because Bean was traveling five miles above the speed

        limit.


       2.    Initial Pat Down Search, Vehicle Search and Second Pat
                                 Down Search
[11]    Generally, the Fourth Amendment protects individuals from warrantless

        searches. Tumblin v. State, 736 N.E.2d 317, 320 (Ind. Ct. App. 2000), trans.

        denied. However, there are several exceptions to the warrant requirement. Id.

        For one, officers can search a person or a vehicle without a warrant if the

        subject consents to the search. Camp v. State, 751 N.E.2d 299, 302 (Ind. Ct.

        App. 2001) (“When an individual gives permission to a search of either his

        person or property, governmental intrusion thereon is presumably not

        unreasonable”), reh’g denied, trans. denied. Additionally, “when the officer has

        reason to believe that he is dealing with an armed and dangerous individual, the

        officer may conduct a limited frisk of the individual detained.” Tumblin, 736

        N.E.2d at 320; see also Terry v. Ohio, 392 U.S. 1, 30 (1968). The officer does not

        need to be certain that a person is armed, but the circumstances must be such

        that a reasonably prudent person would believe either his safety or the safety of

        Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020         Page 7 of 21
       others was in danger. Wright v. State, 766 N.E.2d 1223, 1232 (Ind. Ct. App.

       2002). “In determining whether the officer acted reasonably under the

       circumstances, due weight must be given, not to the officer’s inchoate and

       unparticularized suspicions, but to the specific reasonable inferences that the

       officer is entitled to draw from the facts in light of his experience.” Id.


[12]   Here, Detective Wood testified he had observed Bean carrying a pistol on

       approximately five prior occasions. Detective Lewis testified Bean had a gun at

       a prior traffic stop and there was a “brief standoff.” (Tr. Vol. II at 53.)

       Therefore, Detective Lewis’ initial pat down search of Bean was constitutional

       because Bean consented to the search and because the officers had a reasonable

       belief Bean might be armed and dangerous due to their previous interactions

       with him. Cf. Westmoreland v. State, 965 N.E.2d 163, 166 (Ind. Ct. App. 2012)

       (holding officer did not reasonably believe suspect was armed and dangerous

       before ordering him out of the car and frisking him during routine traffic stop).


[13]   Furthermore, Bean gave officers permission to search his vehicle, and therefore,

       it was constitutional for Detective Wood to do so. See McIlquham v. State, 10

       N.E.3d 506, 514 (Ind. 2014) (search conducted with consent comports with

       Fourth Amendment). However, Bean did not consent to the second pat down

       search, and he removed his shoes and jumped up and down because police

       ordered him to do so. The State argues Bean’s nervousness and movements

       while Detective Wood searched his vehicle justified Detective Wood’s request

       that he submit to a second pat down search, remove his shoes, and shake out

       the front of his pants. The State maintains these additional measures were

       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020          Page 8 of 21
       necessary for officer safety. At trial, Detective Wood testified the second pat

       down search was for “[o]fficer safety based on the . . . movements to his groin

       area and the . . . known history of Mr. Bean carrying a firearm.” (Tr. Vol. II at

       36.)


[14]   However, we note Detective Wood also testified that he ordered Bean to

       remove his shoes because he thought Bean was hiding narcotics in them and

       not for officer safety. 7 Further, Detective Lewis’ initial pat down search of

       Bean did not reveal the presence of any weapons. While Detective Lewis

       testified that his first pat down search was “poor,” he did sweep Bean’s beltline

       and acknowledged Bean’s “weapon has always been on his hip.” (Id. at 55.)

       Also, as Bean’s counsel observed during oral argument, it does not make sense

       to direct a person that is the subject of a search for weapons to manipulate his

       own clothing in the process of the search because doing so could allow the

       person to access the weapon and possibly use it. Considering these facts, the




       7
           The following exchange occurred during Bean’s cross-examination of Detective Wood at trial:
                [Counsel:] . . .[A]s I saw on the video, you went back to Mr. Bean and asked him to remove his
                shoes.
                [Wood:] Yes.
                [Counsel:] And what was the purpose of that?
                [Wood:] . . . I asked Mr. Bean to remove his shoes [because] often times narcotics can be hidden
                in people’s---people’s shoes and socks.
                [Counsel:] Okay. And so what was the reason that you had him remove his shoes?
                [Wood:] To see if he was concealing anything in his---in his shoes.
                [Counsel:] Okay. And that was not for officer safety at that point. Correct?
                [Wood:] Correct.
       (Tr. Vol. II at 45.)

       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                               Page 9 of 21
       officers lacked a reasonable belief that Bean was armed and dangerous when

       they discovered the bags of pills. See Clark v. State, 994 N.E.2d 252, 267 n.19

       (Ind. 2013) (pat down search not justified without specific and articulable facts

       that suspect was armed and dangerous).


                              3.       Search Incident to Arrest
[15]   The dissent would hold that the discovery of marijuana shake in the vehicle

       justified the subsequent searches of Bean’s person as searches incident to arrest.

       See dissent at 3 (“The discovery of the marijuana seeds, the possession of which

       is a crime, on its own is enough to establish probable cause to search Bean.”).

       A search incident to a lawful arrest is an exception to the warrant requirement.

       Wilkinson v. State, 70 N.E.3d 392, 403 (Ind. Ct. App. 2017). An officer may

       conduct a warrantless search of an arrestee’s person and the area in the person’s

       immediate control if the officer has probable cause to make an arrest. Id.

       “Probable cause for an arrest exists if at the time of the arrest the officer has

       knowledge of facts and circumstances which would warrant a man of

       reasonable caution to believe that the suspect has committed the criminal act in

       question.” Id.


[16]   At the hearing on the motion to suppress, Detective Wood testified:


               [Bean’s Counsel]: All right. What happened as a result of the
               [vehicle] search?


               [Wood]: Um—I did observe um—some, what’s referred to as
               marijuana shake, small pieces of marijuana on the passenger seat
               and some seeds I identified to be marijuana seeds.
       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020       Page 10 of 21
        [Counsel: Did you collect those items?


        [Wood]: I did not.


        [Counsel]: Did you test those items to determine if they in fact
        were any type of narcotic?


        [Wood]: I did not.


(Tr. Vol. II at 19.) On direct examination at trial, Detective Wood testified that

when he searched the front passenger seat area, he “did locate some, what is

referred to as marijuana shake, which is small marijuana pieces um, and seeds.”

(Id. at 35.) On cross examination, the following exchange occurred:


        [Bean’s Counsel]: And you told The [sic] Court today that uh,
        you believe that you saw something in the vehicle that may have
        been marijuana shake, which I understand may be very loose
        small particles or leaves on the floorboard. Is that right?


        [Wood]: Correct.


        [Counsel]: And maybe a seed or two in the driver’s seat. Is that
        right?


        [Wood]: Correct.


        [Counsel]: All right. What steps did you take to test those items
        to see if they were in fact a controlled substance like marijuana?


        [Wood]: I did not. They were just identified given my training
        and experience.

Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020       Page 11 of 21
               [Counsel]: Okay. So you did nothing to confirm that one way or
               another.


               [Wood]: Correct.


               [Counsel]: All right. Upon discovering the marijuana shake or
               seed, uh, was Mr. Bean at that point placed under arrest?


               [Wood]: No.


               (Id. at 43.)


[17]   Detective Wood did not recover the suspected marijuana shake from the

       vehicle. The substance was never tested to determine whether it was

       marijuana. Even though Detective Wood had a police dog in his car, he did

       not have the dog sniff Bean’s vehicle to detect the presence of illegal drugs.

       Detective Wood did not testify regarding any distinguishing characteristics of

       the substance that led him to the conclusion that the substance was marijuana.

       Rather, Detective Wood just testified as to his conclusion that the substance

       was marijuana “given [his] training and experience.” (Id.) Probable cause

       cannot be based solely on a conclusory assertion. For example, an affidavit that

       contains only “bare conclusory information, lacking underlying facts, cannot

       suffice as probable cause upon which to base a search warrant.” Bryant v. State,

       655 N.E.2d 103, 108 (Ind. Ct. App. 1995) (holding search warrant affidavit

       containing speculative conclusions did not establish probable cause).




       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020     Page 12 of 21
[18]   The cases cited by the dissent are readily distinguishable from the case at bar.

       In Vasquez v. State, testimony established the police officers were familiar with

       the characteristics of toluene, which routinely is identified based on its smell

       and appearance, and the confiscated substance looked and smelled like toluene.

       741 N.E.2d 1214, 1217 (Ind. 2001). In Yoakum v. State, the officers testified that

       they had experience recognizing synthetic marijuana and that the recovered

       substance looked like synthetic marijuana, smelled like synthetic marijuana,

       and was packaged in a ripped plastic baggie. 95 N.E.3d 169, 175 (Ind. Ct. App.

       2018). In each of these cases, the officers did not simply state the identity of the

       substance; they described characteristics of the substance (i.e. look, smell,

       packaging, etc.) that allowed them to identify it. The State did not elicit any

       similar testimony from Detective Wood. 8


[19]   In Edwards v. State, officers obtained a search warrant based on items they found

       during a search of the defendant’s trash. 832 N.E.2d 1072, 1074 (Ind. Ct. App.

       2005). These items consisted of “balled up plastic wrap which contained

       marijuana particles, empty plastic wrap boxes, bubble wrap, and an empty tape

       roll.” Id. At trial, a detective testified that he had been certified as a drug

       recognition expert, that he was able to recognize marijuana when he saw it, and

       “that he believed the discovery of the plastic wrap was significant because

       individuals will receive shipments of marijuana in large packages and then



       8
         In contrast, Detective Lewis testified that he was able to identify the pills found on Bean’s person by the
       markings on the pills. He explained that in his training and experience as a narcotics detective he had
       identified pills based on their markings multiple times in the past.

       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                               Page 13 of 21
       repackage it in smaller increments for sale.” Id. at 1078. In Boggs v. State,

       sufficient evidence supported the defendant’s conviction for possession of

       marijuana because two officers testified “the green, leafy substance found was

       consistent with marijuana,” one of the officers stated he “had ‘no doubt’ that

       the substance was marijuana,” and the defendant admitted he possessed a small

       amount of marijuana and used cigarette tubes found in his home to smoke it.

       928 N.E.2d 855, 867 (Ind. Ct. App. 2010), trans. denied.


[20]   In each of these cases, unlike in the instant case, there was evidence beyond the

       officer’s bare assertion that a substance was a prohibited substance. 9 We

       accordingly hold the officers did not have probable cause to arrest Bean for

       marijuana possession after the search of his vehicle 10 and the search incident to

       arrest exception does not apply in this circumstance. See Wilson v. State, 96

       N.E.3d 655, 660 (Ind. Ct. App. 2018) (holding officer lacked probable cause to

       arrest suspect when the suspect exited a car parked in a high crime area then

       reached back into the vehicle), trans. denied.




       9
         The dissent also references Danner v. State, 931 N.E.2d 421, 431 (Ind. Ct. App. 2010) (holding observation
       of marijuana in plain view on the passenger seat of vehicle was sufficient to provide probable cause to
       conduct warrantless vehicle search), trans. denied, and State v. Hawkins, 766 N.E.2d 749, 751-52 (Ind. Ct. App.
       2002) (holding odor of burnt marijuana gave officer probable cause to conduct warrantless search of
       automobile), trans. denied. However, these cases are distinguishable from the case at bar because they involve
       vehicle searches rather than searches incident to arrest. Vehicles are readily mobile, and people possess a
       lower expectation of privacy regarding their contents. Myers v. State, 839 N.E.2d 1146, 1151 (Ind. 2005).
       10
          In fact, Detective Lewis referred to the shake as “basically irrelevant” because the officers “didn’t do
       anything with it.” (Tr. Vol. II at 67.) The trial court found the search incident to arrest exception did not
       justify the shoe search, second pat-down search, or the request for Bean to shake out the front of his pants
       because Bean was not under arrest at that point.




       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                               Page 14 of 21
[21]   We hold Bean’s right under the Fourth Amendment to the United States

       Constitution to be free from unreasonable search and seizure was violated by

       the second pat down search of Bean, the request that Bean remove his shoes,

       and the order that Bean shake out the front of his pants. Therefore, the

       evidence obtained during the same should not have been admitted at trial. See

       Sanchez v. State, 803 N.E.2d 215, 221 (Ind. Ct. App. 2004) (“fruit of the

       poisonous tree” doctrine bars illegally obtained evidence from admission), trans.

       denied. 11



                                              Conclusion
[22]   After conducting one pat down search and searching Bean’s vehicle, the officers

       lacked a reasonable belief Bean was armed and dangerous, and they should not

       have continued searching him. We reverse the trial court’s admission of the

       evidence obtained as a result of Bean jumping up and down and remand for

       further proceedings consistent with this opinion.


[23]   Reversed and remanded.


       Robb, J., concurs.


       Baker, J., dissents with opinion.




       11
          Bean also argues that the detectives unconstitutionally extended the duration of the traffic stop. See Wilson
       v. State, 847 N.E.2d 1064, 1068 (Ind. Ct. App. 2006) (holding officer did not have reasonable suspicion to
       detain driver after traffic stop was concluded). However, we need not address the constitutionality of the
       duration of the stop because we hold the shoe search and all subsequent searches were unlawful.

       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                              Page 15 of 21
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       William Michael Bean II,                                   Court of Appeals Case No.
                                                                  19A-CR-225
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Baker, Judge, dissenting.


[24]   I respectfully dissent. I agree with the majority to the extent that the series of

       non-consensual searches of Bean—the second pat-down search, the request to

       remove his shoes, and the order to shake out the front of his pants—cannot be

       justified as a frisk for weapons. But, as the majority acknowledges, a pat-down

       search for weapons to protect officer safety is not the only exception to the

       Fourth Amendment warrant requirement. Rather than review the non-

       consensual searches as frisks for weapons under a Terry analysis, I would

       instead find that the series of non-consensual searches that the majority finds


       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                   Page 16 of 21
       unconstitutional to fall squarely under the search incident to arrest exception to

       the Fourth Amendment warrant requirement.


[25]   Because the non-consensual searches were conducted following the discovery of

       marijuana shake, an illegal substance, 12 in Bean’s car, the deputies had probable

       cause to conduct the warrantless searches as a search incident to arrest. Under

       the Fourth Amendment, warrantless searches of a person are reasonable

       intrusions if the search is incident to a lawful custodial arrest. E.g., Easley v.

       State, 166 Ind. App. 316, 319, 335 N.E.2d 838, 840 (Ind. Ct. App. 1975).

       Importantly, “even when a police officer does not tell a defendant that he or she

       is under arrest prior to a search, that fact does not invalidate a search incident to

       an arrest as long as there is probable cause to make an arrest.” Moffitt v. State,

       817 N.E.2d 239, 246 (Ind. Ct. App. 2004). That is, the relevant question is

       “whether [an officer] had probable cause to arrest the defendant at the time he

       searched him,” regardless of whether the search preceded or followed the arrest

       itself. Easley, 166 Ind. App. at 319, 335 N.E.2d at 840. “Probable cause

       adequate to support a warrantless arrest exists when, at the time of the arrest,

       the officer has knowledge of facts and circumstances that would warrant a

       person of reasonable caution to believe that the suspect committed a criminal

       act.” Moffitt, 817 N.E.2d at 246.




       12
            See I.C. § 35-48-4-11.


       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020        Page 17 of 21
[26]   Here, the facts known to Deputy Wood at the time he conducted the

       warrantless, non-consensual search of Bean were sufficient to establish probable

       cause to justify the intrusion. During the consensual search of Bean’s vehicle,

       Deputy Wood found seeds and stems that he identified, based on his training

       and experience, to be marijuana shake. Deputy Lewis also informed Deputy

       Wood that he had observed Bean during that search to be visibly nervous—

       rapidly shifting his feet, crossing himself, and grabbing at his groin—exhibiting

       behaviors that Deputy Lewis testified as being “generally associated with

       concealment of some type of contraband, whether it be a weapon or . . .

       narcotics.” Tr. Vol. II p. 54.


[27]   The discovery of the marijuana seeds, the possession of which is a crime, on its

       own is enough to establish probable cause to search Bean. Under Indiana Code

       section 35-48-1-19, “marijuana” is defined to include “any part of the plant

       genus Cannabis whether growing or not; the seeds thereof; . . . [and] any

       compound, manufacture, salt, derivative, mixture, or preparation of the plant,

       its seeds or resin.” (Emphases added); see also Edwards v. State, 832 N.E.2d 1072,

       1080 (Ind. Ct. App. 2005) (finding that search warrant was properly based upon

       probable cause where marijuana seeds were found in defendant’s trash and “the

       possession of marijuana seeds itself is a crime”).


[28]   The majority dismisses the relevance of the marijuana primarily because the

       identity of the discovered plant material was neither sniffed and verified by the

       police dog in Deputy Wood’s car nor tested later on. But the majority’s

       conclusion on the matter—that the deputy’s identification of a substance based

       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020        Page 18 of 21
       on his training and experience cannot, without more, establish probable

       cause—runs directly counter to prior case law. Our Supreme Court has held,

       and this Court has routinely reiterated, that “[t]he opinion of someone

       sufficiently experienced with [a] drug may establish its identity, as may other

       circumstantial evidence.” Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001);

       see also, e.g., Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009); Yoakum v. State,

       95 N.E.3d 169, 175 (Ind. Ct. App. 2018); Boggs v. State, 928 N.E.2d 855, 865

       (Ind. Ct. App. 2010). “Although chemical analysis is one way, and perhaps the

       best way, to establish the identity of a compound, persons experienced in the

       area may be able to identify cigarette smoke, marijuana, and [other drugs].”

       Vasquez, 741 N.E.2d at 1216-17.


[29]   In Edwards v. State, this Court found that marijuana seeds and stems discovered

       in a trash search were properly relied upon to provide probable cause, even

       though the substance was never tested: “That they did not have the material

       tested to be sure that it was marijuana is not fatal because they were able to

       identify the material as marijuana based upon their training and experience.” 832

       N.E.2d at 1079-80 (emphasis added). Similarly, in Danner v. State, this Court

       held that an officer’s observation of marijuana through a car window alone was

       enough to provide the officer with probable cause. 931 N.E.2d 421, 431 (Ind.

       Ct. App. 2010); see also State v. Hawkins, 766 N.E.2d 749, 751-52 (Ind. Ct. App.

       2002) (holding that the smell of burnt marijuana alone, if detected by a trained

       and experienced police officer, supports probable cause).




       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020       Page 19 of 21
[30]   At trial, Deputy Wood testified that he identified the shake found in Bean’s

       vehicle to be marijuana “given my training and experience.” Tr. Vol. II p. 43.

       In light of our own Court’s previous decisions involving officer identification of

       marijuana, this testimony is sufficient to uphold the series of non-consensual

       searches as supported by probable cause. The fact that Deputy Lewis separately

       testified, as the majority points out, that the discovery of the marijuana shake

       “[was] basically irrelevant” and that the officers “didn’t do anything with it,” id.

       at 67, does not undermine the existence of probable cause. Even if the

       marijuana was never seized nor was the basis of any charge against Bean, the

       facts and circumstances known to the officers at the time of the non-consensual

       searches—namely, that an illegal substance was discovered in Bean’s vehicle—

       nonetheless give rise to the reasonable belief that a criminal act had been

       committed. 13


[31]   Furthermore, Bean’s nervous behavior and adjusting of his groin area, when

       known in conjunction with the marijuana discovery, merely added to the facts

       upon which Deputy Wood reasonably concluded Bean had committed a

       criminal act, thus establishing the necessary probable cause. See, e.g., Easley, 166




       13
          The only case cited by the majority in support of its conclusion that the search incident to arrest exception
       cannot apply here is Wilson v. State, 96 N.E.3d 655, 660 (Ind. Ct. App. 2018), trans. denied, for its holding that
       an officer lacked probable cause (as well as reasonable suspicion) to arrest when suspect had merely been
       observed exiting his vehicle in a high crime area and reaching back into the vehicle. But the case is readily
       distinguishable from Bean’s in that it does not deal with marijuana possession or identification, nor the
       knowledge of any other specific illegal conduct (i.e., observation of an illegal substance), or specific
       suspicious behavior (i.e., visible nervousness, rapid shifting of the feet, and so on) prior to conducting the
       search.

       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020                                Page 20 of 21
       Ind. App. at 319-20, 335 N.E.2d at 840-41 (listing the facts known to the

       arresting officer, and that established probable cause, as including observation

       of green plant material that the officer identified as marijuana in the back seat of

       the vehicle and “certain suspicious movements” made by defendant trying to

       hide something around his belt).


[32]   Had no marijuana been discovered prior to the series of non-consensual

       searches of Bean, I would readily agree that the non-consensual searches were

       unconstitutional and that reversal is warranted. But given all the facts and

       circumstances known to the officers at the time they conducted those searches,

       and in light of how similar facts and circumstances have been treated in

       numerous prior decisions, I would affirm the trial court’s decision.


[33]   Therefore, I respectfully dissent.




       Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020     Page 21 of 21
