MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Mar 20 2017, 9:27 am

this Memorandum Decision shall not be                                    CLERK
                                                                     Indiana Supreme Court
regarded as precedent or cited before any                               Court of Appeals
                                                                          and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon Jones,                                           March 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1610-CR-2349
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D05-1604-F2-8



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019        Page 1 of 7
[1]   Brandon Jones appeals his convictions for Dealing in Cocaine, a Level 2

      Felony;1 Possession of a Narcotic, a Level 6 Felony;2 Possession of a Controlled

      Substance, a Class A Misdemeanor;3 and Carrying a Handgun Without a

      License, a Class A Misdemeanor.4 He argues that the trial court erred when it

      admitted evidence found on Jones after an officer conducted a pat-down search.

      Finding no error, we affirm.


                                                    Facts
[2]   Around 11:24 a.m. on April 11, 2016, Fort Wayne Police Department

      Detective George Nicklow was driving northbound on a street when he

      observed a silver Chrysler Pacifica driving southbound on the same street. The

      speed limit was thirty miles an hour; Detective Nicklow estimated that the

      vehicle was traveling at about forty or forty-five miles per hour. The vehicle

      crossed the center line, forcing the detective to swerve to get out of the way.

      Detective Nicklow turned his vehicle around and attempted to conduct a traffic

      stop on the vehicle for leaving its lane. He activated his emergency lights and

      siren, but the vehicle continued about two blocks before stopping. In the

      detective’s experience, vehicles usually pull over within half a block.




      1
          Ind. Code § 35-48-4-1(e).
      2
          I.C. § 35-48-4-6(a).
      3
          I.C. § 35-48-4-7(a).
      4
          Ind. Code § 35-47-2-1(a).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019   Page 2 of 7
[3]   Once the vehicle stopped, Detective Nicklow approached the car with Detective

      Robert Hollo, who had arrived at the scene. Detective Shannon Hughes also

      arrived. Two people were inside the car, including Jones, who had been

      driving, and Brianna Brown, a passenger. Jones appeared nervous; his hands

      were shaking and he avoided eye contact. Jones could not provide a driver’s

      license or proof of insurance; Detective Nicklow verified through his squad car

      computer that Jones did not have an Indiana driver’s license, and at the same

      time, he noted that Jones did not have a permit to carry a handgun. The

      detective then asked Jones to exit the vehicle because neither Jones nor Brown,

      who also did not have proof of insurance, would be able to legally drive the

      vehicle away from the scene.


[4]   Detective Nicklow decided to conduct a pat-down of Jones. Because of Jones’s

      nervous behavior, the length of time that it took Jones to stop his vehicle, and

      their location in a high-crime area, Detective Nicklow feared that Jones

      “possibly had a weapon on him.” Suppression Hearing Tr. p. 22. He advised

      Jones that he would conduct a pat-down for officer safety and instructed him to

      put his hands on top of his head. As Detective Nicklow began the pat-down,

      Jones twice moved his hands down toward his waist. Detective Nicklow

      advised him to not do that or else he would place Jones in handcuffs. When

      the detective started the pat-down again, Jones moved his hands again, and the

      detective put him in handcuffs. During the pat-down, Detective Nicklow

      discovered a semi-automatic handgun inside Jones’s left front sweatpants

      pocket. He asked Jones whether Jones had a permit to carry, and Jones


      Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019   Page 3 of 7
      answered that the gun belonged to his brother. Detective Nicklow placed Jones

      under arrest for carrying a handgun without a license.


[5]   As the detective continued the pat-down, he observed a purple Crown Royal

      bag in Jones’s right front sweatpants pocket. Detective Nicklow removed the

      bag; inside were five plastic baggies that contained cocaine, a small glass vial

      that contained cocaine, a plastic baggie that contained heroin, and several

      alprazolam pills. The detective also discovered a digital scale and $445.


[6]   The State charged Jones with dealing in cocaine, a Level 2 felony; possession of

      a narcotic, a Level 6 felony; possession of a controlled substance, a Class A

      misdemeanor; and carrying a handgun without a license, a Class A

      misdemeanor. Before trial, Jones moved to suppress the evidence found during

      the pat-down. At the suppression hearing, the trial court denied his motion. A

      bench trial took place on August 10, 2016, and the trial court found Jones guilty

      as charged. The trial court sentenced Jones to concurrent terms of eighteen

      years for dealing in cocaine, with eleven years executed and seven suspended to

      be served on probation; two years for possession of a narcotic; one year for

      possession of a controlled substance, and one year for carrying a handgun

      without a license. He now appeals.


                                   Discussion and Decision
[7]   Jones argues on appeal that the trial court erred when it did not grant his

      motion to suppress evidence. We initially observe that, because Jones is

      appealing after a completed trial, the issue is properly framed as whether the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019   Page 4 of 7
      trial court erred in admitting the challenged evidence at trial. Lindsey v. State,

      916 N.E.2d 230, 238 (Ind. Ct. App. 2009). A trial court has broad leeway in

      ruling on the admissibility of evidence and we will disturb its rulings only where

      the court erred in its ruling. Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind.

      2012). An error occurs when the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before it. Id.


[8]   Jones contends that his pat-down was unreasonable pursuant to the Fourth and

      Fourteenth Amendments to the United States Constitution.5 Jones does not

      challenge the validity of the traffic stop or whether Detective Nicklow had a

      reasonable basis for having Jones exit the vehicle; instead, he argues that

      Detective Nicklow’s pat-down of him was unreasonable because there was no

      reasonable suspicion that he was armed and dangerous. The State responds

      that the search was legal under the search incident to arrest exception to the

      Fourth Amendment’s warrant requirement.


[9]   The Fourth Amendment protections against unreasonable search and seizure

      have been extended to the states through the Fourteenth Amendment. Wilson v.

      State, 754 N.E.2d 950, 954 (Ind. Ct. App. 2001). Searches and seizures that

      occur without prior judicial authorization in the form of a warrant are per se

      unreasonable, unless an exception to the warrant requirement applies. Conwell v.




      5
        Jones does not make an argument regarding the constitutionality of the pat-down search under the Indiana
      Constitution. Therefore, Jones has waived this argument and we will only address the constitutionality of
      the search pursuant to the Fourth Amendment.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019           Page 5 of 7
       State, 714 N.E.2d 764, 766 (Ind. Ct. App. 1999). The State bears the burden of

       proving that a warrantless search falls within one of the narrow exceptions to

       the warrant requirement. State v. Friedel, 714 N.E.2d 1231, 1237 (Ind. Ct. App.

       1999). One such exception is the search incident to arrest, which provides that

       a police officer may conduct a search of the arrestee's person and the area

       within his or her control. Stevens v. State, 701 N.E.2d 277, 280 (Ind. Ct. App.

       1998) (citation omitted).


[10]   It is well settled that a search is “incident” to an arrest when it can be said that

       it “is substantially contemporaneous with the arrest and is confined to the

       immediate vicinity of the arrest.” VanPelt v. State, 760 N.E.2d 218, 222 (Ind.

       Ct. App. 2001). “The critical issue is not when the arrest occurs but whether

       there was probable cause to arrest at the time of the search.” Id. at 223

       (emphasis original). As long as probable cause existed to make the 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.” Id. Probable cause to arrest

       exists when an officer “has knowledge of facts and circumstances that would

       warrant a man of reasonable caution to believe that a suspect has committed

       the criminal act in question.” Id. An officer’s actual knowledge of objective

       facts and circumstances determines whether the officer has probable cause. Id.


[11]   Here, Detective Nicklow had probable cause to arrest Jones prior to the search

       of his person. After Detective Nicklow observed Jones driving at a high rate of

       speed and crossing the center line, he stopped Jones’s vehicle and asked him for

       identification. When Jones could not provide a driver’s license or proof of

       Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019   Page 6 of 7
       insurance, Detective Nicklow verified through his squad car computer that

       Jones did not have an Indiana driver’s license. Indiana Code section 9-24-18-1

       provides that operating a vehicle without a license is at least a Class C

       misdemeanor. Indiana Code section 35-33-1-1(a)(4) provides that Indiana

       police officers may arrest individuals whom they have probable cause to believe

       committed a misdemeanor in their presence. The fact that Jones was driving

       without a license would have warranted a man of reasonable caution to believe

       that Jones had committed a misdemeanor and provided probable cause for his

       arrest. Accordingly, Detective Nicklow had probable cause to arrest Jones due

       to Jones driving without a license, making Jones’s arrest and Detective

       Nicklow’s pat-down of Jones legal.


[12]   Because the pat-down search was lawful under the Fourth and Fourteenth

       Amendments and the evidence seized from it was legally obtained, the trial

       court did not err in admitting the evidence.


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


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019   Page 7 of 7
