      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                                FILED
      Memorandum Decision shall not be
                                                                            Aug 28 2018, 9:58 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                               CLERK
                                                                             Indiana Supreme Court
      the defense of res judicata, collateral                                   Court of Appeals
                                                                                  and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ellen M. O’Connor                                          Curtis T. Hill, Jr.
      Victoria L. Bailey                                         Attorney General of Indiana
      Marion County Public Defender Agency -
                                                                 Jesse R. Drum
      Appellate Division                                         Deputy Attorney General
      Indianapolis, Indiana
                                                                 Indianapolis, Indiana




                                                  IN THE
           COURT OF APPEALS OF INDIANA

      Corey Day,                                                 August 28, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-103
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Alicia A. Gooden,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 49G21-1607-F2-028483



      Mathias, Judge.


[1]   Corey Day (“Day”) was convicted in the Marion Superior Court of Level 2

      felony dealing in a narcotic drug between five and ten grams and found to be an

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018                 Page 1 of 14
      habitual offender. Day was ordered to serve an aggregate sentence of twenty

      years with eighteen years executed in the Department of Correction (“DOC”)

      and two years in Marion County Community Corrections. Day appeals and

      raises two issues for our review, which we consolidate and restate as, whether

      the trial court abused its discretion when it admitted evidence obtained during a

      search incident to Day’s arrest.


      We affirm.


                                 Facts and Procedural History
[2]   Around 2:00 p.m. on July 22, 2016, Indianapolis Metropolitan Police

      Department (“IMPD”) Officer James Perry (“Officer Perry”) observed Day

      failing to activate his turn signal 200-feet before changing lanes and initiated a

      traffic stop. The stop occurred on the east side of Indianapolis on Washington

      Street, which has two lanes of traffic traveling in both directions. The officer

      pulled Day over in the far-right lane of the two west-bound lanes.


[3]   Officer Perry approached the driver side door, and, as he began talking to Day,

      he smelled raw and burnt marijuana. Day voluntarily admitted that he had

      recently smoked marijuana. Officer Perry returned to his marked police car and

      requested assistance from another officer. An unnamed officer arrived, and

      Officer Perry “gave the run-down of what [] was going on and informed them

      that I needed to get [Day] out of the vehicle.” Tr. p. 97. Officer Perry asked Day

      to exit the car, and Day complied.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 2 of 14
[4]   Before Officer Perry searched the car, he informed Day that he was going to

      conduct a pat-down to ensure that Day did not have any weapons on his

      person. Officer Perry testified that the driver’s door was open and shielded Day

      from any individuals walking by who could potentially witness the search. Just

      after the officer began the pat-down, he had to stop because Day “began

      reaching with his right hand towards his waistband . . . two or three times[.]”

      Id. at 99. Officer Perry told Day to stop reaching for his waist, and when Day

      did not comply, Officer Perry placed Day in handcuffs to ensure officer safety.

      Id. He then “immediately went to pat down [Day’s] waistline in that area since

      that’s what he was reaching for.” Id. at 100.


[5]   Officer Perry did not “feel anything readily [] bumping out.” Id. But because of

      “the way that [Day] was reaching and how intent he was[,]” he pulled Day’s

      shorts approximately two inches away from his body. Id. Officer Perry looked

      into Day’s shorts and saw a brown bag of heroin “tucked between [Day’s]

      upper thigh and his testicles.” Id. The officer returned to his marked police car

      to put on gloves, but as he was putting the gloves on, “Day shifted. And as he

      shifted the heroin actually fell out of his shorts and onto the ground.” Id. at 101.

      Officer Perry retrieved the heroin from the ground and “placed [it] into a plastic

      evidence envelope or bag.” Id. Once the heroin was in an evidence bag, Officer

      Perry conducted a search of Day’s car. Officer Perry found flakes of marijuana

      in the car’s glove compartment. He also found $1,600 cash in Day’s front

      pockets and multiple cell phones in the car.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 3 of 14
[6]   Thereafter, Officer Perry contacted the East District Narcotics Detective unit,

      and IMPD Officer Craig McElfresh (“Officer McElfresh”) arrived at the scene.

      Officer McElfresh Mirandized Day, and he asked Day what kind of narcotics

      were retrieved at the scene. Day admitted he possessed approximately six grams

      of heroin. The officer asked Day if the heroin was his, and Day claimed that it

      was not his, that he was delivering the heroin to another location, and that he

      would be receiving a cut for the delivery.1 Id. at 177.


[7]   On July 25, 2016, the State charged Day with Level 2 felony dealing in a

      narcotic drug between five and ten grams and Level 4 felony possession of a

      narcotic between five and ten grams. Day was also alleged to be an habitual

      offender. On November 15, 2017, Day filed a motion to suppress. At a

      suppression hearing, Day argued that the evidence obtained from Officer

      Perry’s search should have been suppressed because the search violated his

      Fourth Amendment rights. The trial court took the matter under advisement

      and on November 22, 2017, denied Day’s motion to suppress.


[8]   A jury trial was held on November 28, 2017, and the jury found Day guilty of

      Level 2 felony dealing in a narcotic drug between five and ten grams and Level

      4 felony possession of a narcotic drug between five and ten grams. At

      sentencing, the court merged the Level 4 felony with the Level 2 felony and

      found Day to be an habitual offender. Day was ordered to serve an aggregate



      1
       Officer McElfresh testified that “a cut” is street terminology for receiving payment for the delivery of drugs.
      Tr. p. 177.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018                      Page 4 of 14
       sentence of eighteen years executed in the DOC and two years in Marion

       County Community Corrections. Day now appeals.


                                          Standard of Review
[9]    Our review of a denied motion to suppress following a completed trial at which

       the challenged evidence was admitted is properly a review of the trial court’s

       decision to admit the evidence. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.

       2014). We review the trial court’s ruling on admissibility for abuse of discretion,

       reversing only if the ruling is clearly against the logic and effect of the facts, and

       the error affects substantial rights. Id. The constitutionality of a search or

       seizure is a pure question of law we review de novo. Id.


                                                     I. Waiver

[10]   We initially note that the State alleges that “Day waived his argument that the

       trial court should have excluded the heroin evidence by not timely objecting at

       trial.” Appellee’s Br. at 8. It is well established that “[a] contemporaneous

       objection at the time the evidence is introduced at trial is required to preserve

       the issue for appeal[.]” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).

       However, Indiana Rule of Evidence 103(b) states that “[o]nce the court rules

       definitively on the record at trial a party need not renew an objection or offer of

       proof to preserve a claim on appeal.”


[11]   Here, before the start of the jury trial, the trial court reviewed preliminary

       instructions with counsel. The jurors were removed from the courtroom, and

       the following conversation transpired:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 5 of 14
               [Trial Court]:            One thing I forgot to mention, just for
                                         purposes of the record, based on the motion
                                         to suppress, I’m going to treat the denial as a
                                         defendant overruling under Evidence Rule
                                         103b. So now as part of the trial, you don’t …
                                         have to continuously object to [preserve it]
                                         for appeal.


               [Day’s Counsel]:          Sure.


               [Trial Court]:            So, I mean, obviously if you want to make
                                         some other motion or whatever at some
                                         point. But in terms of just the continuous
                                         objections, I think that relieves you from
                                         doing that.


               [Day’s Counsel]:          Thank you.


       Tr. p. 79.


[12]   The trial court instructed Day’s counsel that Day’s objection to the admission

       of the evidence found during the search raised in his motion to suppress was

       preserved for the purposes of appeal. The trial court’s ruling was proper under

       Rule 103(b), and Day did not waive the issue by failing to object during Officer

       Perry’s trial testimony. See Vehorn v. State, 717 N.E.2d 869, 872–73 (Ind. 1999)

       (holding that an exception to the rule requiring contemporaneous objections

       exists when the trial judge explicitly provides assurance during a pre-trial




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 6 of 14
       hearing that counsel need not object at trial, and the objection is preserved for

       purposes of appeal).2


                                            II. Fourth Amendment

[13]   Day argues that Officer Perry’s roadside search violated his Fourth Amendment

       rights, and therefore the trial court erroneously admitted the evidence of heroin

       stemming from the search.3 The Fourth Amendment to the United States

       constitution, made applicable to the states through the Fourteenth Amendment,

       provides in pertinent part that “[t]he right of people to be secure in their

       persons, houses, papers, and effects, against unreasonable searches and

       seizures, shall not be violated[.]” W.H. v. State, 928 N.E.2d 288, 294 (Ind. Ct.

       App. 2010) (citing Mapp v. Ohio, 367 U.S. 643, 656 (1961)), trans. denied. And it

       is well-settled that a search conducted without a warrant is per se unreasonable

       unless it falls within a few well-delineated exceptions to the warrant

       requirement. Porter v. State, 82 N.E.3d 898, 903 (Ind. Ct. App. 2017) (citing Katz

       v. United States, 389 U.S. 347, 357 (1967)). One of those exception is a search

       incident to arrest.


[14]   The search incident to arrest exception “derives from interests in officer safety

       and evidence preservation that are typically implicated in arrest situations.”




       2
        We acknowledge that Vehorn was decided prior to the 2014 amendment of Indiana Rule of Evidence
       103(b). However, the rationale is still applicable, and Rule 103(b) was satisfied here.
       3
        While we do not express an opinion on the matter, we note that Day does not raise the issue of the search
       under Indiana Constitution Article 1, Section 11. Therefore, it is waived for review on appeal.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018                  Page 7 of 14
       Arizona v. Gant, 556 U.S. 332, 338 (2009). “[S]o long as probable cause exists to

       make an arrest, ‘the fact that a suspect was not formally placed under arrest at

       the time of the search incident thereto will not invalidate the search.’” Porter, 82

       N.E.3d at 903 (quoting Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App.

       2004)). Officer Perry’s roadside search of Day falls into the search incident to

       arrest exception because he smelled marijuana emanating from Day’s car. See

       Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (holding that the smell of

       burnt marijuana is sufficient to provide probable cause to arrest and conduct a

       search incident to arrest), trans. denied.


[15]   However, “[e]ven if a search incident to arrest is permissible, it must still be

       conducted in a reasonable manner.” Porter, 82 N.E.3d at 903. The United States

       Supreme Court has provided four factors that courts must consider when

       evaluating the reasonableness of a search incident to arrest: (1) the scope of the

       intrusion, (2) the manner in which the search is conducted, (3) the justification

       for initiating the search, and (4) the place where the search is conducted. Bell v.

       Wolfish, 441 U.S. 520, 559 (1979) (“Wolfish”).


[16]   This court analyzed the four Wolfish factors in Porter v. State and determined that

       under the circumstances present in that case, the search was unreasonable. In

       Porter, a police officer initiated a traffic stop on a vehicle in which Porter was

       the passenger. After approaching the vehicle, the officer smelled a strong odor

       of marijuana on Porter and determined that she had probable cause to conduct

       a search incident to arrest. During the pat-down, the officer did not feel

       anything of concern. After searching the vehicle and finding nothing, the officer

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 8 of 14
       returned to Porter and continued to smell a strong odor of marijuana emanating

       from her person. The officer then conducted a pat-down of Porter a second

       time, but this time she inserted her hand into the front of Porter’s jeans and felt

       an object inside of Porter’s underwear. The officer then placed her hand into

       Porter’s underwear and retrieved a marijuana blunt. Porter appealed the

       roadside search arguing that “the trial court erroneously admitted the evidence

       of the marijuana blunt stemming from [the officer’s] roadside search of the

       person.” Porter, 82 N.E.3d at 901.


[17]   A panel of this court considered the reasonableness of the search of Porter in

       light of the factors established in Wolfish. The Porter court first concluded that

       the scope of intrusion was unreasonable because the officer “strenuously

       pull[ed] Porter’s pants away from her body” and inserted her hand between

       Porter’s underwear and her body. 82 N.E.3d at 905. The court next determined

       that the State did not meet its burden to prove the reasonableness of the search

       because it “presented limited evidence about the manner in which the search

       was conducted[,]” and “there [was] no evidence as to whether [the officer]

       conducted herself professionally, whether she wore gloves or followed proper

       procedures, or whether she attempted to protect Porter from public

       embarrassment.” Id. We acknowledged the justification for the initial search,

       however, we concluded that there was “no justification for going steps further

       than a [pat-down], up to and including [the officer] placing her hand inside

       Porter’s underwear, aside from her suspicion that Porter possessed marijuana.”

       Id. And relating to the place where the search was conducted, we concluded


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 9 of 14
       that the evidence at trial established “that the search took place in a public

       place, with no evidence that Porter was shielded from public view.” Id. at 906.


[18]   After analyzing the four Wolfish factors, the Porter court stated:


               While there was probable cause to search Porter incident to arrest
               and to conduct the initial search of Porter’s person, when [the
               officer] went several steps further by inserting her hand into
               Porter’s pants and then under her underwear, in a public place,
               with no voiced concerns about officer safety or destruction of
               evidence, the search became unreasonable.


       Id. at 907. Thus, we held that the officer’s roadside search of Porter violated her

       Fourth Amendment rights. Id. Because Day relies on this court’s decision in

       Porter v. State in support of his argument that Officer Perry’s roadside search was

       unreasonable, we will analyze each of the Wolfish factors in order.


       1. Scope of Intrusion


[19]   As to the first factor in Wolfish, the scope of intrusion, Day asserts that the

       “genital revealing [pat-down]” was “invasive” and “egregious and

       humiliating.” Appellant’s Br. at 18. However, Officer Perry testified that he did

       not touch Day’s testicles or penis, and the heroin fell to the ground because Day

       moved before it could be retrieved from his person. See Tr. pp. 18, 38. Mere

       observation, while invasive, is not equivalent to the manual manipulation of

       genitalia that occurred in Porter. Here, Officer Perry simply pulled Day’s shorts

       approximately two inches away from his body, and he did not put his hands in

       Day’s shorts. Tr. p. 35.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 10 of 14
[20]   Officer Perry did not physically manipulate Day’s genitalia and did not subject

       Day to public humiliation. He simply pulled Day’s pants away from his body.

       Therefore, the scope of intrusion was significantly less invasive than the search

       in Porter.


       2. The Manner of Conducting the Search


[21]   Day argues that the manner in which the search was conducted was intrusive

       and invasive. However, the State presented sufficient evidence that the manner

       in which the search was conducted was reasonable. Officer Perry testified that

       when conducting a pat-down it is routine practice that he would “start on the

       left side, [he’ll] go to the right side. And that’s when [he’ll] go to [] waistbands

       and go further [from] there if [needed].” Tr. p. 133. Officer Perry began to

       conduct a pat-down, but he never completed the pat-down because Day

       reached toward the center of his waist “two or three times.” Id. at 99. As a

       result, Officer Perry placed Day in handcuffs and conducted a subsequent

       search to check for weapons. Officer Perry followed proper procedures, and he

       attempted to protect Day from public embarrassment by keeping “him near the

       driver’s door using [Day’s car] as kind of a barrier[.]”Id. at 98; Cf. Porter, 82

       N.E.3d at 906 (finding the manner of the search unreasonable when evidence

       did not show whether officer did anything to protect Porter from the view of

       two men nearby or the public). Therefore, the manner in which Officer Perry

       conducted the search was reasonable under the circumstances in the present

       case.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 11 of 14
       3. Justification for Initiating the Search


[22]   Day argues that Officer Perry’s roadside search was unjustified because no

       weapons were found on Day’s person. But Officer Perry pulled Day over for a

       traffic violation and detected the smell of burnt marijuana. Day admitted that

       he had recently smoked marijuana, and Officer Perry had probable cause to

       conduct a search incident to arrest. See Bell, 13 N.E.3d at 546.


[23]   Moreover, unlike the officer in Porter, who never voiced concern for officer

       safety, Officer Perry testified that he was concerned for his safety because “as

       [he] was starting to do the pat-down, [Day] began reaching to . . . the center

       area of his waist[,]” and he “put [Day] in handcuffs[,] for obvious safety

       reasons. [Officer Perry] didn’t know what he was reaching for. There was the

       potential for somebody reaching for a weapon.” Tr. p. 9. At this point in time,

       Officer Perry was concerned “for officer safety reasons. . . . [Day] had been very

       cooperative up to that point, and then suddenly was wanting to make some

       other movements besides what we wanted him to. So out of fear for [the

       officers’] own safety, we felt [Day] needed to be restrained.” 4 Id. at 99. Officer

       Perry’s decision to look inside Day’s shorts for a weapon was a reasonable and

       justified split-second decision given the circumstances. See Chimel v. California,




       4
         Officer Perry recounted that in his experience, he’s “come across people that have tried to hide knives[.]”
       Tr. p. 16. He has also learned “about people hiding handcuff keys, which is also [] a safety issue because if
       somebody is able to get their cuffs off, then that defeats [the purpose of the cuffs].” Id. Further, Officer Perry
       testified that he searched for weapons because he knew “there have been cases where people who are
       handcuffed have actually pulled handguns out and shot at police officers, pulled weapons out[, and]
       destroyed evidence.” Id. at 137.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018                       Page 12 of 14
       395 U.S. 752, 763 (1969) (A search incident to an arrest is justified in order “to

       remove any weapons that the [arrestee] might seek to use in order to resist

       arrest or effect his escape . . . [or] to search for and seize any evidence on the

       arrestee’s person in order to prevent its concealment or destruction.”).

       4. The Place the Search Was Conducted


       Finally, as for the place in which it was conducted, the State presented

       sufficient evidence to show the search took place at approximately 2:00 p.m.,

       on East Washington Street in the near-east area of Downtown Indianapolis.

       The search occurred during the daylight hours and on a busy street, but Officer

       Perry used the driver’s door of Day’s car as a shield from oncoming traffic and

       public eye by keeping Day behind the driver’s door for the duration of the

       search. Cf. Porter, 82 N.E.3d at 906 (where there was no evidence the officer

       took any precautions to protect Porter from public view and humiliation).

       While Porter instructs us that the place where the search was conducted is

       relevant, we decline to hold that a search is unreasonable simply because it

       occurred during the daylight and on a busy street. Doing so would allow

       individuals higher protection to conduct illegal activities when these

       circumstances are present.


[24]   Having examined all of the Wolfish factors, we conclude that this search was

       reasonable under the Fourth Amendment because Officer Perry had probable

       cause to search Day incident to arrest based on the detection and admission of

       burnt marijuana. Further, Officer Perry looked into Day’s shorts to check for a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 13 of 14
       weapon, which was reasonable because Day kept reaching for his waist.

       Additionally, the search was justified because there was genuine concern for

       officer safety. And although it occurred in a public place, Day’s exposure to the

       public was minimal.


                                                 Conclusion
[25]   Based on the facts and circumstances before us, we conclude that the search

       incident to arrest did not violate Day’s Fourth Amendment rights, and the trial

       court did not abuse its discretion in admitting the evidence seized during the

       search.


[26]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018   Page 14 of 14
