                                                                         FILED
                                                                     Aug 15 2019, 8:54 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                       Curtis T. Hill, Jr.
Clark County Public Defender’s Office                      Attorney General of Indiana
Jeffersonville, Indiana                                    Evan Matthew Comer
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jarvis Peele,                                              August 15, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-313
        v.                                                 Appeal from the Clark Circuit
                                                           Court
State of Indiana,                                          The Honorable Bradley B. Jacobs,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           10C02-1703-F6-621



Bailey, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019                           Page 1 of 13
                                                  Case Summary
[1]   Jarvis Peele (“Peele”) appeals his convictions for Possession of

      Methamphetamine, as a Level 6 felony,1 Possession of Marijuana, as a Class B

      misdemeanor,2 and Possession of a Controlled Substance, as a Class A

      misdemeanor.3 He presents the sole issue of whether the trial court erred by

      admitting evidence from a search that exceeded the proper scope of a Terry

      search.4 We reverse.



                                 Facts and Procedural History
[2]   On March 30, 2017, Jeffersonville Police Officers Levi James (“Officer James”)

      and Matthew Bauer (“Officer Bauer”) stopped a vehicle for failure to signal a

      turn. Officer Bauer interacted with the driver and eventually placed him under

      arrest on an open warrant. Officer James interacted with Peele, the front seat

      passenger.


[3]   According to Officer James, Peele’s behavior led to the belief that Peele was

      “possibly armed.” (Tr. Vol. I, pg. 72.) That is:


                 [I] observed several indictors, criminal indicators, that aren’t
                 consistent with the innocent motoring public, specifically his



      1
          Ind. Code § 35-48-4-6.1(a).
      2
          I.C. § 35-48-4-11(a)(1).
      3
          I.C. § 35-48-4-7(a). Peele was also adjudicated a habitual offender.
      4
          See Terry v. Ohio, 392 U.S. 1 (1968).


      Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019            Page 2 of 13
              carotid artery in his throat was throbbing, he avoid[ed] eye
              contact with me as he spoke, he rubbed his palms on his
              sweatpants multiple times, making furtive hand movements,
              patting his jacket and pants pockets. And then he began to reach
              in the area of the center front armrest retrieving metal tools, a
              pair of pliers, a ratchet, from an area that I couldn’t see and
              placed them on his lap. He then raised his entire body and
              turned and looked in that area, the area of the center armrest,
              and underneath his person. And these behaviors aren’t
              consistent with the innocent motoring public through my training
              and experience.


      Id. at 57. Based upon these observations, Officer James asked Peele to exit the

      vehicle and submit to a patdown search for officer safety. During the patdown,

      Officer James felt “a large object in the front of [Peele]’s waistband that wasn’t

      consistent with the human anatomy” and Officer James “believed it to

      immediately be or immediately be apparent that it was contraband.” Id. at 58.

      Officer James began to move Peele, in handcuffs, to the trunk of the vehicle.

      Officer Bauer notified Officer James that a sock had rolled out of Peele’s right

      pant leg.


[4]   Officer James retrieved the potato-shaped sock and searched its contents. The

      sock contained several baggies, the contents of which were later tested and

      identified as methamphetamine and marijuana, and several pills, some of which

      were later tested and identified as buprenorphine.


[5]   Peele was charged with possession of methamphetamine, marijuana, and a

      controlled substance, and was granted leave to represent himself. Peele moved

      to suppress the physical evidence gained in the traffic stop, and the trial court

      Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019        Page 3 of 13
      conducted a suppression hearing on December 17, 2018. After hearing the

      officers’ testimony, the trial court denied Peele’s motion to suppress, reasoning

      that “the sock fell out, it was not removed by [the officers] so that search wasn’t

      a search.” Id. at 97. Peele asked that the order be certified for interlocutory

      appeal, and the trial court declined to do so, saying “I’m not going to give you

      the Interlocutory today. The case will be over by Wednesday.” Id. at 100.


[6]   Peele was tried before a jury on December 18 and 19, 2018. He was convicted

      of each charged offense, and found to be a habitual offender. On January 10,

      2019, Peele was sentenced to two years imprisonment for Possession of

      Methamphetamine, enhanced by four years due to his status as a habitual

      offender. He received concurrent sentences of 180 days for Possession of

      Marijuana and one year for Possession of a Controlled Substance. He now

      appeals.



                                  Discussion and Decision
                                         Standard of Review
[7]   The trial court has broad discretion to rule on the admissibility of evidence.

      Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). Generally, evidentiary rulings

      are reviewed for an abuse of discretion and reversed when admission is clearly

      against the logic and effect of the facts and circumstances. Id. However, when

      a challenge to an evidentiary ruling is predicated on the constitutionality of a

      search or seizure of evidence, it raises a question of law that is reviewed de

      novo. Id. The State has the burden to demonstrate that the measures it used to
      Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019        Page 4 of 13
      seize information or evidence were constitutional. State v. Rager, 883 N.E.2d

      136, 139 (Ind. Ct. App. 2008). “When a search is conducted without a warrant,

      the State has the burden of proving that an exception to the warrant

      requirement existed at the time of the search.” Bradley v. State, 54 N.E.3d 996,

      999 (Ind. 2016).


                                                    Waiver
[8]   At the outset, we address the State’s contention that “Peele waived any issue as

      to the admissibility of the contents of the sock by failing to raise a timely

      objection to the admission of that evidence at trial.” Appellee’s Brief at 14.

      The State argues that, although Peele objected to the admission of the actual

      physical exhibits (methamphetamine, marijuana, and buprenorphine), these

      exhibits were “merely cumulative of the un-objected-to testimony from the two

      police officers.” Id. at 16.


[9]   Officer James, but not Officer Bauer, testified prior to admission of the physical

      exhibits. Officer James testified:


              Officer Bauer observed a sock roll out from Mr. Peele’s right pant
              leg that was subsequently collected and discovered to contain 11
              individual baggies containing approximately 1 gram of a green-
              leafy substance, which I believed to be marijuana packaged for
              sale, a bag containing a clear crystal-like substance, which I
              believed to [be] methamphetamine, with a gross approximate
              weight, or a bag weight, of 1.8 grams, a bag containing three, and
              I apologize, ladies and gentlemen of the jury, I have a really hard
              time pronouncing this word[.]



      Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019         Page 5 of 13
       (Tr. Vol. I, pg. 114.) Thus, without a contemporaneous objection from Peele,

       Officer Bauer conveyed to the jury his opinion or “belief” as to the contents of

       the sock. However, opinion testimony and physical exhibits are not alike. The

       admission of the physical exhibits – over Peele’s objection – provided the

       foundation for subsequent expert testimony as to results of scientific testing of

       those items. The State elicited testimony from Indiana State Police analyst

       Rebecca Nichols to identify the character of each seized item. When he lodged

       his objection, Peele was not merely objecting to cumulative evidence.


[10]   As the State has observed, a contemporaneous objection affords the trial court

       the opportunity to make a final ruling on the matter in the context in which the

       evidence is introduced. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). But

       Peele was discouraged from making repetitive objections, with the trial court

       referring to the suppression proceedings, “we litigated this [objection] already.”

       Id. at 112. The trial court was well aware of the grounds underlying Peele’s

       efforts to suppress evidence obtained in the warrantless search of his sock, that

       is, Peele alleged the seizure was in violation of his Fourth Amendment rights.

       We cannot say that Peele waived his right to raise an issue of admissibility of

       evidence on appeal.




       Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019        Page 6 of 13
                                   Fourth Amendment Claim                            5




[11]   The Fourth Amendment “regulates all nonconsensual encounters between

       citizens and law enforcement officials.” Thomas, 81 N.E.3d at 625. The Fourth

       Amendment guarantees that:


               The 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 Warrants 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.


       U.S. Const. amend. IV.


[12]   “It is unequivocal under our jurisprudence that even a minor traffic violation is

       sufficient to give an officer probable cause to stop the driver of a vehicle.”

       Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). And an officer may perform

       a patdown of a driver or passenger of a stopped vehicle when the officer has

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

       regardless of whether there is probable cause to arrest the individual for a crime.

       Terry v. Ohio, 392 U.S. 1, 27 (1968). The purpose of a Terry protective search “is

       not to discover evidence of crime, but to allow the officer to pursue his

       investigation without fear of violence.” Minnesota v. Dickerson, 508 U.S. 366,




       5
        Peele alleges that his rights under the Fourth Amendment to the United States Constitution were violated;
       he does not develop a separate argument with respect to the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019                             Page 7 of 13
       373 (1993). Accordingly, the Terry search should be confined to its protective

       purpose. Shinault v. State, 668 N.E.2d 274, 277 (Ind. Ct. App. 1996).


[13]   “In addition, the ‘plain-feel doctrine’ approved by Dickerson permits an officer to

       remove non-weapon contraband during a Terry frisk if the contraband is

       detected during an initial patdown for weapons and if the incriminating nature

       of the contraband is immediately ascertained by the officer.” Clanton v. State,

       977 N.E.2d 1018, 1025 (Ind. Ct. App. 2012) (citing Harris v. State, 878 N.E.2d

       534, 538-39 (Ind. Ct. App. 2007), trans. denied). “Merely suspecting the nature

       of an object is insufficient.” Parker v. State, 697 N.E.2d 1265, 1268 (Ind. Ct.

       App. 1998).


[14]   Peele does not challenge the initial stop of the vehicle in which he was a

       passenger. Nor does he challenge the propriety of the patdown for officer

       safety. Rather, he argues “searching the sock exceeded the scope of the Terry

       search that [Officer] James was conducting.” Appellant’s Brief at 10. He

       contends that the search of his sock cannot be justified under the plain feel

       doctrine because the incriminating nature of the sock contents was not

       immediately apparent to Officer James.


[15]   Officer James testified that he patted the waistband of Peele’s pants and

       detected “a large object that wasn’t consistent with human anatomy.” (Tr. Vol.

       I, pg. 112.) He further testified that the waistband area was “commonly used”

       to “carry weapons and contraband.” Id. at 113. On cross-examination, he




       Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019        Page 8 of 13
       defined “contraband” as “anything illegal or a weapon” and explained what he

       meant by contraband in the context of Peele’s patdown:


               At that point, I knew it was contraband and what I mean by
               contraband is possibly a weapon. I had not completely dispelled
               that it was not a weapon or that there was not a weapon in the
               passenger area[.]


       Id. at 141-42 (emphasis added). Officer James did not claim that he could

       detect, from the limited touch, “the incriminating nature” of the object.

       Clanton, 977 N.E.2d at 1025. He suspected the object was something illegal; he

       just did not know what it was in particular and thought it to be “possibly a

       weapon.” Id. at 142. The testimony of possibility is insufficient. See D.D. v.

       State, 668 N.E.2d 1250, 1253-54 (Ind. Ct. App. 1996) (the plain feel doctrine

       was not satisfied by an officer’s general declaration that a bulge “felt like

       contraband” or his initial feel that made him believe the item was “probably

       cocaine or marijuana”). As such, the State did not justify the search of the sock

       on the basis of the plain feel doctrine.


[16]   That said, Officer James’s testimony indicates that his safety concerns had not

       been dispelled when he moved Peele from the side of the vehicle to the back.

       When the sock rolled from Peele’s pants, Officer James had not determined that

       Peele possessed no object capable of being used as a weapon. But if it was

       useful as a weapon, Peele was in handcuffs, and the sock was no longer in

       Peele’s possession or under his control. Thus, the inquiry becomes whether




       Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019         Page 9 of 13
       Terry justified the warrantless search of the sock – no longer on Peele’s person –

       for officer safety.


[17]   As a predicate matter, we consider the State’s contention that Peele abandoned

       the sock and thus had no expectation of privacy in its contents. The State

       directs our attention to Gipson v. State, 459 N.E.2d 366 (Ind. 1984). There, an

       officer observed what he believed to be a drug transaction; the officer ordered

       both parties to “hold it” and ordered Gipson to drop a sack he was holding. See

       id. at 367. Instead, Gipson moved toward a nearby car and threw the sack,

       producing a metallic sound. The officer observed that Gipson was clutching

       something in his right hand; he then saw Gipson move and the movement was

       accompanied by the sound of something plastic hitting the ground. Id. Gipson

       was convicted of Possession of a Controlled Substance and Carrying a

       Handgun without a License. On appeal, he argued that the gun and vial

       containing cocaine and talwin should have been suppressed. The Court

       considered the tossed items to be abandoned, stating: “When the Defendant

       threw the vial and sack to the ground, the items were subject to lawful seizure

       by the police.” Id.


[18]   Here, Peele was handcuffed and did not toss the sock. Despite the State’s

       arguments that the timing of the sock fall is suspicious and Peele must have

       manipulated his body so as to cause the sock to fall, there is no testimony or

       other evidence of Peele’s volition. The evidence does not support the State’s

       theory of abandonment. We turn to our consideration of whether the search of



       Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019      Page 10 of 13
       the sock impermissibly broadened the scope of the Terry search beyond its

       protective purpose.


[19]   In Berry v. State, 704 N.E.2d 462, 466 (Ind. 1998), our Indiana Supreme Court

       held:


               We believe that the reasonable suspicion which gives authority to
               a Terry stop does not, without more, authorize the examination
               of the contents of items carried by the suspicious person. But
               where either the suspicion that criminal activity may be afoot or
               a concern over the possibility of harm is reasonably heightened
               during the stop, the police are authorized to search such items
               within the suspicious person’s immediate control.


       (Emphasis added.)


[20]   Once the sock fell, it was not within Peele’s immediate control. A panel of this

       court had occasion to address a similar situation in Granados v. State, 749

       N.E.2d 1210 (Ind. Ct. App. 2001), trans. denied. There, a police officer

       conducted a warrantless search of a folded bill that fell from a sock during a

       patdown for officer safety. We recognized that the officer could have obviated

       his safety concerns by placing the item out of the defendant’s reach:


               Once the five-dollar bill fell to the ground, [Officer] Cassel could
               have simply covered the bill with his shoe or kicked it out of
               reach and completed his patdown search of Granados without
               fear of being injured by any weapons it might have contained.
               See Berry, 704 N.E.2d at 465 (“As commentators have noted,
               police officers can often protect themselves from any risk that the
               item might contain a weapon by simply putting it out of the
               person’s reach.”). By unfolding the bill to look for “weapons or

       Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019        Page 11 of 13
               anything,” [Officer] Cassel broadened the scope of the Terry
               search beyond its protective purpose. See Johnson, 710 N.E.2d at
               928; see also Terry, 392 U.S. at 25-26, 88 S.Ct. 1868 (“A search for
               weapons in the absence of probable cause to arrest, however,
               must, like any other search, be strictly circumscribed by the
               exigencies which justify its initiation.”); Ybarra v. Illinois, 444
               U.S. 85, 93-94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (“Nothing
               in Terry can be understood to allow a generalized ‘cursory search
               for weapons’ or indeed, any search whatever for anything but
               weapons.”).


       Id. at 1215. See also Harris, 878 N.E.2d at 539 (Terry does not provide

       justification for looking inside a closed pill bottle), trans. denied; Fentress v. State,

       863 N.E.2d 420, 423 (Ind. Ct. App. 2007) (Terry does not authorize unwrapping

       a foil ball removed from a pocket); Barfield v. State, 776 N.E.2d 404, 407 (Ind.

       Ct. App. 2002) (removal of cigarette box from a pocket exceeded Terry frisk

       absent officer testimony of belief the box contained a weapon).


[21]   The State argues that, even though the sock was no longer in Peele’s possession

       or control, Officer James could still reasonably have feared that the sock

       contained “an explosive or incendiary device.” Appellee’s Brief at 30.

       However, there is no testimony suggesting that Officer James suspected or

       believed that Peele had secreted an explosive device in the sock placed in the

       waistband of his sweat pants. And, in any event, a mere suspicion or possibility

       would not justify a warrantless search.


[22]   During a patdown for officer safety, Officer James detected a non-anatomical

       object in Peele’s waistband and came to suspect that he was carrying


       Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019             Page 12 of 13
       “contraband” of some type, “possibly a weapon.” (Tr. Vol. I, pg. 142.) When

       a sock fell from Peele’s person, Officer James was unaware of the nature of its

       contents. But rather than pushing the sock aside and obtaining a warrant,

       Officer James conducted a general search, “possibly” for a weapon or perhaps

       for other contraband. In doing so, he broadened the scope of the Terry search

       beyond its protective purpose.



                                                Conclusion
[23]   The warrantless search of Peele’s sock was conducted in violation of his Fourth

       Amendment rights. Evidence obtained in the search should not have been

       admitted at trial.


[24]   Reversed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-313 | August 15, 2019     Page 13 of 13
