MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any
                                                                       Sep 27 2019, 7:45 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Jay Ellis,                                        September 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-462
        v.                                               Appeal from the Lagrange
                                                         Superior Court
State of Indiana,                                        The Honorable Lisa M. Bowen-
Appellee-Plaintiff                                       Slaven, Judge
                                                         Trial Court Cause No.
                                                         44D01-1711-F4-20



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019              Page 1 of 12
[1]   Jeremy Ellis appeals his convictions and sentence for Level 4 Felony

      Manufacturing Methamphetamine,1 Level 6 Felony Possession of

      Methamphetamine,2 and Level 6 Felony Possession of Precursors.3 Ellis argues

      (1) that the trial court erroneously admitted evidence discovered pursuant to an

      allegedly illegal search, and (2) that the sentence is inappropriate in light of the

      nature of the offenses and his character. Finding no error and that the sentence

      was not inappropriate, we affirm.


                                                     Facts
[2]   At around 4:00 A.M. on November 15, 2017, LaGrange County Sheriff’s

      Deputy Matthew Schwartz was dispatched to the LaGrange Public Library

      following a report of a suspicious male who appeared to be sleeping by the

      library’s front entrance. Upon arrival at the library, Schwartz found Ellis, who

      was homeless at the time, sitting and leaning against a pillar by the front door,

      with a duffel bag and trash bag within arm’s reach.


[3]   Deputy Schwartz approached Ellis and began talking with him about why he

      was there. During this conversation, Ellis kept reaching into his pants pockets.

      Schwartz asked Ellis to remove his hands from his pockets and Ellis initially

      complied, but continued putting his hands back in his pockets. Schwartz then




      1
          Ind. Code § 35-48-4-1.1.
      2
          I.C. § 35-48-4-6.1(a).
      3
          I.C. § 35-48-4-14.5(e).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 2 of 12
      asked Ellis if he had any weapons. Ellis responded that he had a knife, so

      Schwartz conducted a pat-down search for weapons, during which Schwartz

      felt a cylindrical object in Ellis’s left pants pocket. Thinking that it “could have

      been a knife,” tr. vol. II p. 204, Schwartz retrieved the object and saw that it

      was a plastic baggie containing a hollowed-out pen, resembling a straw, with a

      white powdery residue visible inside the pen shell. Deputy Schwartz testified

      that, based on his experience as a police officer, he “immediately” recognized

      the pen shell as an object used to consume methamphetamine. Id. at 8, 204.


[4]   Deputy Schwartz then handcuffed Ellis and placed him under arrest. During a

      search incident to arrest, the deputy found a piece of tin foil inside Ellis’s wallet,

      which Ellis admitted he used for consuming methamphetamine. Deputy

      Schwartz also found a small plastic baggie containing a white powdery

      substance that was later determined to be methamphetamine. Police later

      searched Ellis’s duffel bag and trash bag, finding multiple items used in the

      “one pot” method of methamphetamine production. Tr. Vol. II p. 168.


[5]   On November 15, 2017, the State charged Ellis with Level 4 felony

      manufacturing methamphetamine, Level 6 felony possession of

      methamphetamine, and Level 6 felony possession of precursors. On November

      27, 2017, Ellis filed a motion to suppress, which the trial court denied at a

      hearing held on February 28, 2018.


[6]   A jury trial was held January 16-17, 2019, at the conclusion of which the jury

      found Ellis guilty as charged. On February 11, 2019, the trial court imposed an


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 3 of 12
      eight-year sentence for the Level 4 felony conviction and concurrent one and

      one-half year sentences for each of the two Level 6 felony convictions, for a

      total of eight years imprisonment. The trial court recommended Ellis for

      placement in the Purposeful Incarceration Program and stated that it would

      consider a sentence modification upon Ellis’s successful completion of the

      Program. Ellis now appeals.


                                   Discussion and Decision
                                   I. Admission of Evidence
[7]   Ellis’s first argument on appeal is that the trial court improperly admitted

      evidence obtained from an illegal search. Admission or exclusion of evidence is

      within the trial court’s sound discretion and is given great deference on appeal.

      E.g., Ennik v. State, 40 N.E.3d 868, 877 (Ind. Ct. App. 2015). We will reverse a

      trial court’s ruling on admissibility only if the decision is clearly against the

      logic and effect of the facts and circumstances or if the trial court has

      misinterpreted the law. Id. However, to the extent that admissibility of evidence

      turns on the constitutionality of the search that discovered the evidence, our

      review is de novo. Jacobs v. State, 76 N.E.3d 846, 849 (Ind. 2017).


[8]   Ellis argues that the pat-down search that culminated in the discovery of the

      pen exceeded the permissible scope of a pat-down search under both the Fourth

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

      Constitution. Ellis further contends that because the initial search was illegal,



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 4 of 12
       all subsequently obtained evidence was the result of an unconstitutional act and

       was improperly admitted.


                                      A. Fourth Amendment
[9]    The Fourth Amendment to the U.S. Constitution provides that “[t]he right of

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

       unreasonable search and 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

       searched.”


[10]   One exception to the Fourth Amendment search warrant requirement provides

       that officers may conduct 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.” Terry v. Ohio, 392 U.S. 1, 27 (1968). The

       officer need not be absolutely certain that the individual is armed; instead, the

       issue is whether a reasonably prudent person in the circumstances would be

       warranted in the belief that his or her safety or that of others was in danger. Id.

       In determining whether the officer acted reasonably, due weight must be given

       to “specific reasonable inferences which he is entitled to draw from the facts in

       light of his experience.” Id.


[11]   Here, Deputy Schwartz appropriately conducted the pat-down search of Ellis

       because Ellis’s statement that he had a knife gave Schwartz reason to believe he

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 5 of 12
       was dealing with an armed individual. See Harris v. State, 878 N.E.2d 534, 538

       (Ind. Ct. App. 2007) (holding that officer’s pat-down search and removal of

       object was permissible under Terry where defendant had told officer he had a

       pocket knife; officer “needed to ensure he removed all potentially dangerous

       items”). Ellis argues that Schwartz had no reason to believe Ellis was a threat or

       that he had a weapon on his person, as opposed to in his duffel bag, where the

       knife was eventually found. However, when Ellis stated that he had a knife, he

       did not specify where the knife was, but rather just stated that he had one.

       Nothing about Ellis’s statement would sufficiently dispel any concern that a

       knife may have been located on Ellis’s person, especially when considered in

       conjunction with Ellis’s repeated insertion of his hands into his pockets.

       Schwartz’s subsequent pat-down search was therefore valid.


[12]   Ellis further argues that even if initiation of the pat-down search was justified,

       the scope of the search was unconstitutional because Deputy Schwartz “should

       have known the object in Mr. Ellis’s pants pocket was just a writing utensil

       when he felt the pen through Mr. Ellis’s clothing” and that the object “clearly

       was not a knife,” and therefore should not have been retrieved. Appellant’s Br.

       p. 17.


[13]   We find this argument unconvincing. Because the purpose of a pat-down search

       for weapons is to protect officer safety, “police may remove an item whose

       identity is not immediately discernable by touch and that might be used as a

       weapon.” Harris, 878 N.E.2d at 538 (holding removal of a pill bottle during pat-

       down search for weapons was proper); see also, e.g., Shinault v. State, 668 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 6 of 12
       274 (Ind. Ct. App. 1996) (holding removal of object during a pat-down search

       was proper when officer felt cylindrical bulge in defendant’s pocket; even

       though the object turned out to be a bag of marijuana, the officer “was unable

       to immediately eliminate the possibility that the tightly rolled plastic bag of

       marijuana was not some sort of dangerous weapon”). Here, Deputy Schwartz

       testified that he thought the object he felt in Ellis’s pocket could potentially be a

       weapon. We agree with the State that a small knife could be the size of a pen,

       and that “it would not necessarily be immediately apparent that a hard,

       cylindrical object was a hollow part of a pen rather than a small knife.”

       Appellee’s Br. p. 19; see also Clanton v. State, 977 N.E.2d 1018, 1026 (Ind. Ct.

       App. 2012) (upholding removal of sharp item from defendant’s pocket that

       turned out to be a pen cap).


[14]   Once an item suspected to be a weapon is removed, “if an officer determines

       that an item is not a weapon and the officer cannot immediately ascertain

       whether or not the item is contraband, then the search of that item must stop.”

       Clanton, 977 N.E.2d at 1025; see also Granados v. State, 749 N.E.2d 1210, 1215

       (Ind. Ct. App. 2001) (holding that an illegal search occurred where officer

       found cocaine only after he unfolded a five-dollar bill that had fallen from

       defendant’s sock during a pat-down search, because once on the ground, the bill

       posed no legitimate threat). But when an item is removed during a valid pat-

       down for weapons and its illicit nature is immediately apparent, then no Fourth

       Amendment violation has occurred and the item may be properly be used as

       evidence. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (stating


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 7 of 12
       nature of object as contraband must be immediately apparent by either sight or

       touch to justify seizure without probable cause); Bratcher v. State, 661 N.E.2d

       828, 833 (Ind. Ct. App. 1996) (“Because the officer discovered the bag of

       marijuana during a search for weapons and the incriminating character was

       immediately apparent . . . the search was authorized under Terry and, thus,

       seizure of the marijuana was valid under the United States Constitution.”); cf.

       Clanton, 977 N.E.2d at 1025-26 (finding removal of pen cap from pocket was

       permissible but subsequent search inside the cap to find baggie of cocaine was

       not); Harris, 878 N.E.2d at 538-39 (holding that search of interior of pill bottle

       found during pat-down for weapons was beyond scope of Terry because illicit

       nature of its contents was discovered only after opening it and shining a light

       inside).


[15]   Here, Deputy Schwartz testified that, upon removing the hollowed-out pen

       from Ellis’s pocket, he “immediately recognized it to be an item . . . used to

       consume methamphetamine,” tr. vol. II p. 8 (emphasis added), and was able to

       recognize it as such “because of [his] training and experience as a law

       enforcement officer,” tr. vol. II p. 204. The presence of a “light residue,” tr. vol.

       II p. 8, on the inside of the pen was also plainly visible to Deputy Schwartz

       without having to manipulate the object in any way or take any additional

       steps. As such, the nature of the item as paraphernalia was immediately

       apparent to Deputy Schwartz. Thus, the search was constitutional—and

       evidence was properly admitted—under the Fourth Amendment.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 8 of 12
                                         B. Article 1, Section 11
[16]   Under Article 1, Section 11 of the Indiana Constitution, the legality of a search

       “turns on an evaluation of the reasonableness of the police conduct under the

       totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.

       2005). Whether a search or seizure is reasonable focuses on the actions of the

       officer, rather than on the defendant’s reasonable expectation of privacy, and

       “turn[s] on a balance of: 1) the degree of concern, suspicion, or knowledge that

       a violation has occurred, 2) the degree of intrusion the method of the search or

       seizure imposes on the citizen’s ordinary activities, and 3) the extent of law

       enforcement needs.” Id.4


[17]   First, with regards to the degree of suspicion, we look at “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 10, 18 (Ind. 2010).

       Both Ellis’s statement that he had a knife and the repeated placement of his

       hands in his pockets despite commands to stop created a high degree of

       suspicion that Ellis may have been armed. See Johnson v. State, 38 N.E.3d 658,

       664 (Ind. Ct. App. 2015) (finding degree of suspicion factor weighed heavily in




       4
         The State argues that Ellis waived this argument because he neglected to raise it before the trial court. Ellis
       did not specifically mention the Indiana Constitution in his arguments before the trial court, but neither did
       he mention the Fourth Amendment—rather, he alleged generally that the search was “illegal.” Appellant’s
       App. Vol. II. p. 23-25; Tr. Vol. II. p. 10-24. Given our preference to resolve cases on their merits, we choose
       to address it.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019                     Page 9 of 12
       favor of the State where defendant placed his hand in his pocket and ignored

       multiple commands to remove his hand).


[18]   Next, we agree with both parties that the degree of intrusion was slight. We

       have previously held that an “ordinary” pat-down search of a suspect’s clothing

       is a “fairly limited intrusion” under the Indiana Constitution. Berry v. State, 121

       N.E.3d 633, 639 (Ind. Ct. App. 2019). No evidence suggests that the pat-down

       conducted by Deputy Schwartz was anything but an ordinary, routine pat-down

       for weapons.


[19]   Lastly, with respect to the extent of law enforcement needs, we find that

       Deputy Schwartz’s needs, given Ellis’s statement that he had a knife, were

       sufficiently high to reasonably conduct the pat-down search. See, e.g., Bell v.

       State, 81 N.E.3d 233, 238-39 (Ind. Ct. App. 2017) (holding that law

       enforcement needs were high enough to justify pat-down search where

       defendant had a bulge in his pocket and did not respond to officer’s questions

       regarding what it was). Deputy Schwartz also acted reasonably in removing the

       cylindrical object from Ellis’s pocket to confirm whether it was a knife.


[20]   Because we find the pat-down search of Ellis and the resulting discovery of the

       hollowed-out pen to be lawful under both the federal and state constitutions, the

       trial court did not err by admitting the evidence found as a result of the pat-

       down search.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 10 of 12
                                              II. Sentencing
[21]   Ellis’s second argument on appeal is that the sentence imposed by the trial court

       is inappropriate in light of the nature of the offenses and his character.


[22]   Indiana Appellate Rule 7(B) provides that this Court may revise a statutorily

       authorized sentence “if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In conducting this review, “substantial

       deference” must be given to the trial court’s decision, “since the ‘principal role

       of [our] review is to attempt to leaven the outliers,’ and not to achieve a

       perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[23]   For Level 4 felony manufacturing methamphetamine, Ellis faced a term of two

       to twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5.

       For each of the Level 6 felonies, Ellis faced a term of six months to two and

       one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7. The trial

       court imposed an eight-year sentence for the Level 4 felony and one and one-

       half year sentences for each of the Level 6 felonies, all to be served

       concurrently, for an aggregate eight-year term.


[24]   With respect to the nature of the offenses, Ellis engaged in the manufacture of

       methamphetamine, possessed some of the drug he manufactured, and possessed

       all necessary materials to allow him to continue manufacturing

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 11 of 12
       methamphetamine. We do not find anything particularly egregious about these

       circumstances.


[25]   With respect to Ellis’s character, however, we note that Ellis has an extensive

       criminal history, including convictions for three felony offenses and three

       misdemeanor offenses, all of which are either drug- or alcohol-related offenses

       or property crimes. Ellis also has had multiple prior charges for possession of

       precursors or possession of methamphetamine. See Rutherford v. State, 866

       N.E.2d 867, 874 (Ind. Ct. App. 2007) (holding that we may consider a

       defendant’s history of arrests as a reflection of his character).


[26]   Ellis argues that a revision to the advisory sentence would be sufficient to

       rehabilitate his substance abuse problems and that his status as an addict should

       not weigh against his good character. The trial court’s sentencing decision

       already takes into account Ellis’s substance abuse issues by recommending Ellis

       for the Purposeful Incarceration Program. If Ellis demonstrates that he is able to

       successfully address his substance abuse issues through that program in a

       shorter period of time, as he claims is probable, then he will be eligible at that

       time for a sentence modification.


[27]   We do not find the sentence imposed by the trial court to be inappropriate in

       light of the nature of the offenses and Ellis’s character.


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


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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019   Page 12 of 12
