Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                Feb 03 2014, 8:32 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

KURT A. YOUNG                                               GREGORY F. ZOELLER
Nashville, Indiana                                          Attorney General of Indiana

                                                            IAN MCLEAN
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIAM RINEHART,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 49A05-1305-CR-236
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Steven R. Eichholtz, Judge
                         The Honorable Michael S. Jensen, Magistrate
                              Cause No. 49G20-1211-FC-79887


                                         February 3, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                         Case Summary

          As a result of a handgun found during a police pat-down search in the course of a

traffic stop for failure to use a signal, William Rinehart (“Rinehart”) was convicted of

Possession of a Handgun Without a License, as a Class C felony.1 He presents the issue of

whether the pat-down search was conducted in violation of the Fourth Amendment. We

reverse.

                                 Facts and Procedural History

          On November 25, 2012, around 5:30 p.m., Indianapolis Metropolitan Police Officer

John Gedig (“Officer Gedig”) observed a vehicle leave its curb-side parking space and enter

the southbound flow of traffic on Clifton Street, without use of a traffic signal. When the

vehicle reached 30th Street, Officer Gedig initiated a traffic stop. He was joined by Officer

Jason Norman (“Officer Norman”).

          Officer Gedig, having been signaled by Officer Norman that he “smelled something,”

asked the three occupants of the vehicle “about drugs or weapons.” (Tr. 25.) The driver and

front passenger immediately answered “no” but there was a “slight hesitation” on the part of

Rinehart, the back seat passenger. (Tr. 26.) Rinehart also appeared to avoid eye contact with

the officers.

          Officer Gedig asked the occupants to exit the vehicle, Rinehart first. Rinehart, but not

the female passengers, was patted down. In his waistband was a handgun for which he did

not have a license. Officer Gedig arrested Rinehart. He did not search the vehicle for drugs.


1
    Ind. Code § 35-47-2-1.

                                                 2
       On March 13, 2013, Rinehart was tried in a bench trial on the charge of Possession of

a Handgun Without a License. Rinehart objected to the admissibility of evidence obtained in

the pat-down search and the parties agreed that the admissibility issue would be argued and

ruled upon at the conclusion of the trial. The parties submitted written briefs after the

presentation of evidence. The trial court ruled that evidence of the handgun was admissible

and Rinehart was found guilty of the charge against him. He admitted that he had a prior

conviction for the same offense, elevating the instant offense to a Class C felony. Rinehart

was sentenced to two years imprisonment. He now appeals.

                                  Discussion and Decision

                                     Standard of Review

       The instant appeal presents a challenge to the admissibility of evidence. “Where a

defendant does not perfect an interlocutory appeal from a trial court’s ruling on a motion to

suppress, but objects to the admission of the evidence at trial, the issue on appeal is more

appropriately framed as whether the trial court abused its discretion by admitting the

evidence at trial.” Danner v. State, 931 N.E.2d 421, 426 (Ind. Ct. App. 2010), trans. denied.

A trial court has discretion in the admission of evidence and the appellant bears the burden of

establishing that the trial court abused its discretion. Patterson v. State, 958 N.E.2d 478, 484-

85 (Ind. Ct. App. 2011).

                                           Analysis

       Here, the trial court admitted evidence that was seized from Rinehart’s person after a

traffic stop led to a search. The Fourth Amendment to the United States Constitution states,


                                               3
in relevant part, 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[.]” U.S. Const.

amend. IV. This federal right to be free of unreasonable searches and seizures applies to the

states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 650 (1961). As a

general rule, searches and seizures conducted without a warrant supported by probable cause

are prohibited by the Fourth Amendment. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013).

As a deterrent mechanism, evidence obtained in violation of the rule is generally not

admissible in a prosecution against the victim of the unlawful search or seizure absent

evidence of a recognized exception. Id. It is the State’s burden to prove that one of the well-

delineated exceptions is satisfied. Id.

       We review de novo a trial court’s ruling on the constitutionality of a search or seizure.

Patterson, 958 N.E.2d at 485 (citing Belvedere v. State, 889 N.E.2d 286, 287 (Ind. 2008)).

Nonetheless, we defer to a trial court’s determination of the facts, which will not be

overturned unless clearly erroneous. Id. We do not reweigh the evidence, but consider

conflicting evidence most favorable to the trial court’s ruling. Id. “The State bears the

burden of demonstrating the constitutionality of the measures it uses in securing

information.” State v. Murray, 837 N.E.2d 223, 225 (Ind. Ct. App. 2005), trans. denied.

       Encounters between law enforcement officers and public citizens take a variety of

forms, some of which do not implicate the protections of the Fourth Amendment and some of

which do. Clark, 994 N.E.2d at 261 (citing Finger v. State, 799 N.E.2d 528, 532 (Ind.

2003)). Consensual encounters do not compel Fourth Amendment analysis; however,


                                               4
nonconsensual encounters do. Id. A detention is typically one of two levels: a full arrest

lasting longer than a short period of time, or a brief investigative stop. Id. The former

requires probable cause to be permissible and the latter requires the lower standard of

reasonable suspicion. Id.

          “A traffic stop is a seizure under the Fourth Amendment, [and] police may not initiate

a stop for any conceivable reason, but must possess at least reasonable suspicion that a traffic

law has been violated or that criminal activity is taking place.” Meredith v. State, 906 N.E.2d

867, 869 (Ind. 2009) (citing Whren v. United States, 517 U.S. 806, 809-10 (1996)). An

objective basis must exist for suspecting legal wrongdoing. See State v. Atkins, 834 N.E.2d

1028, 1032 (Ind. Ct. App. 2005), trans. denied.

          A routine traffic stop is more analogous to a so-called “Terry stop” than to a formal

arrest. Wilson v. State, 745 N.E.2d 789, 791 (Ind. 2001) (citing Knowles v. Iowa, 525 U.S.

113 (1998)). The principal issue is whether the police action in question was reasonable

under all the circumstances, and involves a dual inquiry: whether the officer’s action was

justified at its inception, and whether it was reasonably related in scope to the circumstances

which justified the interference in the first place. Id. at 792. Rinehart does not challenge the

propriety of the initial traffic stop, but only the subsequent pat-down search. He claims that

the officers failed to articulate any fact to support a reasonable belief that he was armed and

dangerous; rather, they conducted a routine search of a male on general grounds of officer

safety.




                                                5
       The Fourth Amendment allows privacy interests protected by that amendment to be

balanced against the interests of officer safety. Id. “[T]o subject the stopped motorist to a

frisk for weapons is permissible only if ‘a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of others was in danger.’” Id. (quoting

Terry v. Ohio, 392 U.S.1, 27 (1968)). “Police may not frisk for weapons ‘on less than

reasonable belief or suspicion directed at the person to be frisked.’” Id. (quoting Ybarra v.

Illinois, 444 U.S. 85, 94 (1979). Accordingly, an officer’s authority to conduct a pat-down

search depends upon the nature and extent of his particularized concern for his safety and

that of others. Id.

       “In addition to detainment, Terry permits a police officer to conduct a limited search

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

is armed and dangerous.” Howard v. State, 862 N.E.2d 1208, 1210 (Ind. Ct. App. 2007).

“[G]enerally, the officer issuing a traffic citation faces a safety threat that is a good deal less

than that present in the case of a custodial arrest.” Tumblin v. State, 736 N.E.2d 317, 322

(Ind. Ct. App. 2000), trans. denied.

       In determining whether an officer acted reasonably under the circumstances, we look

to see if there existed articulable facts and reasonable inferences drawn therefrom in light of

the officer’s experience in order to support a reasonable belief that the individual was armed

and dangerous. Clenna v. State, 782 N.E.2d 1029, 1033 (Ind. Ct. App. 2003). A generalized

suspicion that the individual may be dangerous does not authorize a pat-down search. Id.




                                                6
(citing Tumblin, 736 N.E.2d at 322). We review findings of reasonable suspicion de novo;

this is necessarily a fact-sensitive inquiry. Clark, 994 N.E.2d at 264.

       Officer Gedig testified that he conducted a pat-down of Rinehart because “the area is

very high in crime-related drugs and weapons. The hesitation, the brief hesitation in

answering my question about [the] presence of a weapon by the defendant, and it was simply

for officer safety.” (Tr. 28.) He later acknowledged that the smell of marijuana was a basis

for the pat-down and also acknowledged that he had a “standard procedure,” that is, “if I am

having a male occupant of a vehicle exit a vehicle on one of my stops, I pat them down for

weapons.” (Tr. 33.) When asked if Rinehart had “statements or actions that caused you

concern for your safety,” Officer Gedig responded, “No.” (Tr. 34.) He also denied that he

smelled marijuana “on” Rinehart. (Tr. 34.)

       Officer Norman testified:

       Answer: He wouldn’t make eye contact. He was – he was across the vehicle,
       inside the vehicle from me and he was kind of leaning toward the door, that
       side of the vehicle.

       Question: Did you notice anything else about his movement?

       Answer: No.

       Question: So what happened after they denied having drugs and weapons?

       Answer: At that point Officer Gedig got Mr. Rinehart out of the vehicle.

       Question: And would this be standard procedure for you guys?

       Answer: Yes, sir.      ***

       Question: Did Mr. Rinehart make any movements with his body that caused
       you to fear for your safety?


                                              7
       Answer: To fear for my safety, as far as movements, no.

       Question: So you are saying his hesitation in answering caused you to fear for
       your safety; is that what you are saying?

       Answer: No, I didn’t say that.


(Tr. 41-42, 44.) As such, the officers denied that Rinehart’s slight hesitation or aversion of

eyes was something that caused a particularized concern for officer safety, but acknowledged

acting in accordance with a standard procedure. Their testimony did not establish a

reasonable belief that Rinehart was “armed and dangerous.” Howard, 862 N.E.2d at 1210.

“A vague and general characterization of demeanor such as ‘nervousness’ does not rise to the

level of reasonable suspicion.” Tumblin, 736 N.E.2d at 322.

       Despite the officers’ testimony suggesting that the decision to perform a pat-down

search was more motivated by routine than suspicion of the individual, the State insists that

much emphasis must be placed on the evidence of the smell of marijuana and Officer Gedig’s

testimony that the neighborhood of the encounter was a “high crime area.” (Tr. 28.) The

State points out that an officer’s knowledge of crime in the neighborhood is a relevant

consideration, particularly where the subject appears to be in possession of an illegal drug.

First, the State directs our attention to Adams v. Williams, 407 U.S. 143, 147-48 (1972)

(noting that presence in a high-crime area late at night contributes to justification for a frisk)

and Bridgewater v. State, 793 N.E.2d 1097, 1100 (Ind. Ct. App. 2003) (“presence in a high-

crime area can be considered as a factor in the totality of the circumstances confronting an

officer at the time of a stop”), trans. denied.



                                                  8
       Next, the State approvingly quotes a rule from United States v. Sakyi, 160 F.3d 164,

169 (4th Cir. 1998), specifically: “[W]hen the officer has a reasonable suspicion that illegal

drugs are in the vehicle, the officer may, in the absence of factors allaying his safety

concerns, order the occupants out of the vehicle and pat them down briefly for weapons to

ensure the officer’s safety and the safety of others.” The State acknowledges that our Indiana

Supreme Court has not adopted this rule. Indeed, our jurisprudence demands that the State

must justify intrusions into a citizen’s liberty and our review is conducted on a case-by-case

basis. Bridgewater, 793 N.E.2d at 1100.

       In Patterson v. State, 958 N.E.2d at 486-87, a panel of this Court found that the

evidence supported “a determination that Officer Dotson held a reasonable belief that

Patterson was armed and dangerous at the time of the pat down search” where the officer was

conducting a traffic stop late at night in a high-crime area known for drug activity and gun

violence, she detected the odor of burnt marijuana, and she testified to a belief that “guns go

hand in hand with drugs.”

       On the other hand, in Rybolt v. State, 770 N.E.2d 935, 941 (Ind. Ct. App. 2002), trans.

denied, a panel of this Court found the pat-down search of the defendant unjustified where

the officer testified that he was the sole officer on the scene, he believed that individuals who

use narcotics also carry weapons, and he admitted that he “almost always” conducts a pat-

down search when he suspects the commission of a drug offense. The Court observed that

the officer had not testified that Rybolt’s actions made him nervous or caused him to fear for

his safety. Id.


                                               9
        Here, the encounter took place in the afternoon with two officers present. The

officers’ testimony did not suggest that either had heightened anticipation of a weapon

because of the smell of marijuana in the vehicle, the strength of which was not described.2

For reasons unknown, the officers did not search the vehicle for marijuana.3 They also did

not pat-down the female occupants. In short, the officers did not assert a nexus between the

marijuana smell and dangerousness. Indeed, both officers denied Rinehart’s actions had

caused them concern for their safety, and Officer Gedig testified that he did not smell

marijuana on Rinehart. For these reasons, we find the instant case more akin to Rybolt than

Patterson.

        The State also posits that, even if the officers’ justifications for the pat-down of

Rinehart are inadequate, this is not determinative of constitutional infirmity because the

search is objectively reasonable. The State’s position is akin to rendering the officer’s

subjective perceptions irrelevant. It is true that a pat-down search is to be supported by an

“objectively reasonable fear for the officer’s safety.” See Jett v. State, 716 N.E.2d 69, 70

(Ind. Ct. App. 1999). Although an officer’s reasons are to be objectively reasonable, his or

her subjective reasons are not immaterial. They provide the articulable facts under

examination by the trial court and, in turn, this Court, to establish reasonable suspicion. See

Clark, 994 N.E.2d at 252 (observing “reasonable suspicion must be based on specific and

2
 We do not know, based upon the officers’ testimony, if the smell was faint and suggested a prior contact with
marijuana or if the smell was pungent enough to raise suspicion that the drug was in the vehicle. We do know
that the officers did not search the vehicle for marijuana other than “the immediate area where [Rinehart] was
sitting in the vehicle.” (Tr. 34.)

3
 The smell of burnt marijuana emanating from a vehicle window would provide a trained officer with probable
cause sufficient to justify searching “at least the open interior of the car.” Clark, 994 N.E.2d at 260.

                                                     10
articulable facts – an objective manifestation – and not an officer’s unparticularized hunch”)

(emphasis added).

       Here, the testimony does not disclose specific facts that caused Officers Gedig or

Norman to entertain a reasonable fear for their safety in issuing a traffic citation for failure to

use a turn signal. Instead, it appears that the pat-down search was a routine matter of course

when a male was asked to exit a vehicle during a traffic stop. We conclude there was not

adequate justification for a pat-down search.

                                          Conclusion

       The pat-down search was conducted in violation of Rinehart’s Fourth Amendment

rights. Accordingly, the trial court abused its discretion by admitting evidence obtained in

that search.

       Reversed.

FRIEDLANDER, J., concurs.

KIRSCH. J., dissents with separate opinion.




                                                11
                             IN THE
                   COURT OF APPEALS OF INDIANA

WILLIAM RINEHAFT,                              )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )      No. 49A05-1305-CR-236
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )



KIRSCH, Judge, dissenting.

      I respectfully dissent.

      While I agree with my colleagues that a police officer’s “standard practice” is a

not sufficient basis to justify the pat down search, I believe that here there were

objective factors justifying the search. The concern for officer safety, the evidence of

the presence of illegal drugs in the car, and the officer’s observations are sufficient

grounds for the warrantless search and the seizure of the gun.




                                          12
