MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 27 2019, 9:17 am

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
Valerie K. Boots                                        Curtis T. Hill, Jr.
Michael R. Fisher                                       Attorney General of Indiana
Marion County Public Defender Agency
                                                        Samuel J. Dayton
Appellate Division                                      Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dax Lee Bailey,                                         November 27, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1239
        v.                                              Appeal from the
                                                        Marion Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Jennifer Prinz Harrison, Judge
                                                        Trial Court Cause No.
                                                        49G20-1809-F3-32561



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019                  Page 1 of 15
[1]   Dax Lee Bailey (“Bailey”) was convicted after a bench trial of dealing in

      methamphetamine1 as a Level 3 felony and found to be a habitual offender.

      Bailey appeals and raises the following restated issue: whether the trial court

      abused its discretion when it admitted evidence discovered during a search

      incident to arrest because the initial detention of Bailey and the subsequent

      search violated his rights under the Fourth Amendment to the United States

      Constitution and Article 1, Section 11 of the Indiana Constitution.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On September 20, 2018, Indianapolis Metropolitan Police Department

      (“IMPD”) Officer Ryan Dienhart (“Officer Dienhart”) was on patrol in the area

      of 1050 East Raymond Street in Indianapolis, Indiana at approximately 8:45

      p.m. Supp. Tr. Vol. II at 5-6. At the time of the suppression hearing, Officer

      Dienhart had been with IMPD for approximately four-and-a-half years and had

      received training in the recognition of narcotics; of that time, Bailey had been

      assigned to the beat that included 1050 East Raymond Street for approximately

      three years.. Id. at 4-6. The area was a “documented high crime area with a

      high social disorder index.” Id. at 6. Within a one-block radius around the

      intersection of Raymond and Shelby Streets there were high rates of reported

      crimes, including “panhandling at the intersection, misdemeanor thefts from




      1
          See Ind. Code § 35-48-4-1.1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 2 of 15
      businesses, robberies of businesses, armed robberies of persons, persons shot,

      persons stabbed, auto thefts[, and] . . . homicides.” Id.


[4]   While on patrol that night, Officer Dienhart and another officer were at a BP

      gas station (“the BP”) at the corner of Raymond and Shelby Streets in response

      to an investigation of suspicious people loitering in the parking lot. Id. at 6-8.

      IMPD and the BP had a “trespass agreement,” which Officer Dienhart

      described as a contract between the private business and IMPD where the

      business gives IMPD permission to “allow officers to become agents of the

      property . . . and identify and trespass persons from that property without

      having to go through an employee of the business.” Id. at 7. The agreement

      between the BP and IMPD had no restrictions regarding who may be

      “trespass[ed]” by IMPD. Id.


[5]   Officer Dienhart and his partner were speaking with some individuals who

      were at the BP when Officer Dienhart noticed an individual running from the

      entrance of the BP to a car parked at a gas pump and then run back to the

      entrance of the BP. Id. at 8. Officer Dienhart noticed that the individual, later

      identified as Bailey, was staggering, “his stride was not steady,” and he

      “seemed to be flailing about.” Id. Based on his experience as an officer, Officer

      Dienhart believed Bailey was “under the influence of some sort of intoxicant,”

      and he remembered looking at his partner as they wondered what Bailey was

      doing and “what was wrong with him.” Id. at 8-9.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 3 of 15
[6]   Officer Dienhart and his partner finished the investigation that had brought

      them to the BP and walked to the car from which they had seen Bailey run back

      and forth. Id. at 9. Officer Dienhart “initiated a consensual encounter with the

      driver of the vehicle” and asked the driver what he was doing at the gas station,

      who the person was who had run back and forth from the car, and, in greater

      detail, what they were doing. Id. The driver was not cooperative at first and

      stated that he did not know the other person’s name and that he was just

      “giving [him] a ride,” which Officer Dienhart found unusual and suspicious

      given the area of high crime. Id. As the conversation continued, the driver

      became more cooperative when Officer Dienhart told the driver “the

      information he was providing” did not make sense and the driver was going to

      be detained. Id.


[7]   As Officer Dienhart was speaking with the driver, he observed in the rear

      passenger’s side seat, in plain view, a black container or case, which had a

      plastic baggie protruding from it. Id. at 10. Officer Dienhart “immediately

      suspected that that container and case contained either illegal paraphernalia

      and/or narcotics.” Id. His suspicions were later confirmed when he searched

      the car with the driver’s consent and found three empty syringes, two baggies of

      spice, which is synthetic marijuana, a half of an unknown pill, and rolling

      papers. Id. While this interaction between Officer Dienhart and the driver was

      happening, Bailey approached the car again, and as he did so, he looked

      “fidgety,” his “eyes were darting all about,” and when he spoke, his speech was

      “staggered and not normal.” Id. at 10-11. Bailey’s appearance furthered


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 4 of 15
      Officer Dienhart’s suspicion that Bailey was under the influence of “some sort

      of intoxicant, which [he] suspected to be some type of narcotic drug.” Id. at 11.

      Officer Dienhart tried to ask Bailey what he was doing, and Bailey’s speech was

      “rambling” and “inconsistent,” making him unable to have a “coherent

      conversation.” Id. Officer Dienhart asked Bailey his identity, and Bailey

      initially provided “deceitful” information. Id. at 11-12.


[8]   From the time that Bailey returned to the car from the BP and Officer Dienhart

      made his observations of Bailey’s demeanor, Officer Dienhart believed Bailey

      was detained and not free to leave. Id. at 13-15. Although it is not clear when

      Bailey was made aware of this, he was placed in handcuffs at some point after

      returning to the car. Id. at 14-15. Officer Dienhart placed Bailey in handcuffs

      based on Officer Dienhart’s concerns that they were in a high crime area, the

      significant safety issues involved with a person being under the influence of an

      unknown intoxicant, and the need to safely conduct an investigation. Id. at 15-

      16.


[9]   Officer Dienhart eventually learned Bailey’s name and birthdate and conducted

      a background search using that information. Id. at 12. Through that search,

      Officer Dienhart discovered that there was an active warrant for Bailey’s arrest

      for felony possession of methamphetamine and placed him under arrest. Id. at

      12. Officer Dienhart performed a search incident to arrest and found what he

      believed to be a bag of methamphetamine. Id. at 12-13. After Officer Dienhart

      read Bailey his Miranda rights, Bailey told the officer that he had obtained the

      bag of methamphetamine from an unknown and unnamed individual earlier

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 5 of 15
       that day as a “gift,” and he was going to give it to someone else in exchange for

       help for his family. Tr. Vol. II at 24. Forensic examination revealed that the

       substance Officer Dienhart found on Bailey during the search incident to arrest

       was methamphetamine. Id. at 26-28.


[10]   On September 25, 2018, the State charged Bailey with dealing in

       methamphetamine as a Level 3 felony and possession of methamphetamine as

       a Level 5 felony. Appellant’s App. Vol. II at 21. On January 14, 2019, Bailey

       filed a motion to suppress the evidence arising out his detention and his

       subsequent search. Id. at 55-56. A hearing was held on the motion to suppress,

       and the trial court subsequently denied the motion. Id. at 57, 61. On March 4,

       2019, the State filed an allegation that Bailey was a habitual offender. Id. at 65-

       66. A bench trial was held, and with the consent of both parties, the trial court

       incorporated the testimony from the suppression hearing as part of the record

       for the bench trial. Tr. Vol. II at 21-22. At the conclusion of the trial, the trial

       court found Bailey guilty as charged but vacated the possession of

       methamphetamine conviction. On May 8, 2019, Bailey was sentenced to

       twelve years for Level 3 felony dealing in methamphetamine, and that sentence

       was ordered enhanced by six years for Bailey’s habitual offender status, for an

       aggregate sentence of eighteen years. Appellant’s App. Vol. II at 13-14. Bailey

       now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 6 of 15
                                      Discussion and Decision
[11]   Bailey argues that the trial court erred when it admitted evidence obtained after

       a search incident to arrest. Because Bailey did not seek an interlocutory appeal

       of the denial of his motion to suppress but proceeded to trial, we review his

       claim as one challenging the admission of evidence at trial. Gerth v. State, 51

       N.E.3d 368, 372 (Ind. Ct. App. 2016) (citing Carpenter v. State, 18 N.E.3d 998,

       1001 (Ind. 2014)). Our standard of review of a trial court’s admission of

       evidence is an abuse of discretion. Mack v. State, 23 N.E.3d 742, 750 (Ind. Ct.

       App. 2014), trans. denied. A trial court abuses its discretion if its decision is

       clearly against the logic and effect of the facts and circumstances before the

       court or if the court misapplies the law. Id.


[12]   Bailey argues that the trial court abused its discretion when it admitted the

       evidence of methamphetamine that was discovered during the search incident

       to arrest. Although he concedes that the search incident to arrest itself did not

       violate any constitutional prohibitions, Bailey contends that the evidence was

       illegally obtained because Officer Dienhart had no reasonable suspicion of

       criminal activity to initially detain him, and the encounter between Bailey and

       Officer Dienhart was not consensual; therefore, the evidence discovered must

       be excluded as the illegal detention violated the Fourth Amendment to the

       United States Constitution. Bailey also argues that the evidence should have

       been excluded because the actions by the police violated Article 1, Section 11 of

       the Indiana Constitution because the actions of the police were not reasonable

       because there was no degree of concern, knowledge, or suspicion that a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 7 of 15
       violation had occurred, his detention was a serious imposition on his ordinary

       activities, and there was no legitimate law enforcement need to detain him

       merely because the officers were in a high crime area.


                                             Fourth Amendment

[13]   The Fourth Amendment to the United States Constitution protects citizens

       against unreasonable searches and seizures by prohibiting them without a

       warrant supported by probable cause. U.S. Const. amend. IV. “‘As a general

       rule, the Fourth Amendment prohibits a warrantless search. 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.’”

       Glasgow v. State, 99 N.E.3d 251, 257 (Ind. Ct. App. 2018) (citing Berry v. State,

       704 N.E.2d 462, 465 (Ind. 1998)).


[14]   “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 v. State, 994 N.E.2d 252, 261 (Ind.

       2013). Consensual encounters in which a citizen voluntarily interacts with a

       police officer do not compel Fourth Amendment analysis. Id. However,

       nonconsensual encounters do require such analysis and typically fall into two

       categories: (1) a full arrest lasting longer than a short time, which requires

       probable cause; and (2) a brief investigative stop, often known as a Terry stop,

       which requires a lower standard of reasonable suspicion. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 8 of 15
[15]   Law enforcement officers may stop and briefly detain a person if the officer has

       reasonable suspicion to believe that criminal activity has occurred or is about to

       occur. Grayson v. State, 52 N.E.3d 24, 27 (Ind. Ct. App. 2016) (citing Holly v.

       State, 918 N.E.2d 323, 325 (Ind. 2009)), trans. denied. Reasonable suspicion

       must be comprised of more than hunches or unparticularized suspicions. Id.

       “Taking into account the totality of the circumstances or the whole picture, the

       detaining officers must have a particularized and objective basis for suspecting

       the particular person stopped of criminal activity.” Id. (citing Clark, 994 N.E.2d

       at 264). In determining whether reasonable suspicion existed, we must

       examine the facts as known to the officer at the moment of the stop. Id.

       Findings of reasonable suspicion are reviewed de novo, and such review is a

       fact-sensitive inquiry. Id.


[16]   In the present case, at the time that Officer Dienhart detained Bailey, the officer

       had reason to believe that Bailey had committed or was committing the offenses

       of possession of a narcotic drug and public intoxication. A person who

       knowingly or intentionally possesses a narcotic drug without a valid

       prescription commits possession of a narcotic drug as a Level 6 felony. Ind.

       Code § 35-48-4-6(a). A person commits public intoxication as a Class C

       misdemeanor when he or she is in a public place in a state of intoxication

       caused by the person’s use of alcohol or a controlled substance if the person

       endangers his or her own life, breaches the peace, or is in imminent danger of

       breaching the peace. Ind. Code § 7.1-5-1-3(a)(1), (a)(3).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 9 of 15
[17]   When Officer Dienhart first noticed Bailey and the car parked by the gas pump

       and its driver, he observed Bailey run from the BP entrance to the car and back,

       and the manner in which Bailey was running caused Officer Dienhart and his

       partner to wonder if something was wrong with him. Supp. Tr. Vol. II at 8.

       Bailey was staggering, “his stride was not steady,” and he “seemed to be flailing

       about.” Id. Based on his training and experience, Officer Dienhart believed

       Bailey was “under the influence of some sort of intoxicant,” and he

       remembered looking at his partner as they wondered what Bailey was doing

       and “what was wrong with him.” Id. at 8-9. When the officers walked over to

       the car parked by the gas pump to inquire into the situation, the driver was

       initially uncooperative and claimed not to know who Bailey was but that he

       was just giving Bailey a ride. Id. at 9. While Officer Dienhart spoke with the

       driver, he observed in the rear passenger’s side seat, in plain view, a black

       container or case, which had a plastic baggie protruding from it. Id. at 10.

       Officer Dienhart “immediately suspected that that container and case contained

       either illegal paraphernalia and/or narcotics,” which was a reasonable

       assumption based on the officer’s training and experience. Id. Bailey’s

       behavior, which was consistent with intoxication, the fact that Bailey had run

       back and forth to the car containing the suspected narcotics and was getting a

       ride from the driver, and the high crime rate of the area all contributed to the

       officer’s reasonable suspicion that criminal activity had occurred or was about

       to occur. It was also reasonable for Officer Dienhart to believe the black case or

       container inside the car belonged to Bailey or was in his possession since he was

       getting a ride from the driver of the car and had recently run back and forth to
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 10 of 15
       the car. Additionally, Bailey’s behavior when Officer Dienhart first made

       contact with him, including being “fidgety,” having his “eyes darting all about,”

       and speaking in a staggered and abnormal way, provided further grounds for

       Officer Dienhart to be suspicious that Bailey was in possession of a narcotic

       drug. Id. at 10-11.


[18]   Officer Dienhart also had reasonable suspicion to believe that Bailey was

       intoxicated in a public place in a manner that endangered his life, was

       breaching the peace, or was in imminent danger of breaching the peace. When

       Officer Dienhart approached the car, he had previously observed Bailey

       staggering and flailing across the parking lot twice and moving in an unsteady

       manner. Id. at 8. Based on his training and experience, Officer Dienhart

       believed Bailey was “under the influence of some sort of intoxicant,” and he

       and his partner wondered what Bailey was doing and “what was wrong with

       him.” Id. at 8-9. Bailey’s actions took place in a busy gas station parking lot at

       nearly 9:00 p.m., and it was reasonable for Officer Dienhart to believe that

       Bailey was acting in a way that placed him in danger from being hit by a vehicle

       whose driver might not see him until it was too late and that Bailey lacked the

       mental or physical capacity to avoid being hit by vehicles in the parking lot. Id.

       at 6. Further, when Bailey approached the car and the officers, his appearance

       deepened Officer Dienhart’s suspicion that Bailey was under the influence of

       “some sort of intoxicant, which [Officer Dienhart] suspected to be some type of

       narcotic drug” because of his “rambling” and “inconsistent” speech that made

       him unable to have a “coherent conversation.” Id. at 11. Likewise, Bailey’s


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 11 of 15
       conduct of “flailing about” could have given rise for Officer Dienhart to suspect

       that Bailey was either breaching the peace or in imminent danger of doing so.

       Id. at 8. When asked questions about his identity, Bailey also provided

       “deceitful” information, which added to the officer’s suspicion that Bailey may

       have been involved in criminal activity. We, therefore, conclude that Officer

       Dienhart had reasonable suspicion to justify the investigatory stop, and Bailey’s

       detention did not violate the Fourth Amendment.


[19]   Further, we conclude that the fact that Bailey was placed in handcuffs during

       the investigatory stop does not elevate it to the level of an arrest requiring

       probable cause. Looking at the totality of the circumstances, we have already

       determined that Officer Dienhart had reasonable suspicion to detain Bailey.

       Additionally, Officer Dienhart testified that he had handcuffed Bailey due to

       the high crime nature of the area and his concern for officer safety due to

       Bailey’s suspected intoxication from some unknown substance. Id. at 15. He

       also stated that he placed Bailey in handcuffs because of the unknown nature of

       Bailey’s intoxication, Bailey’s erratic behavior, and the need to ensure the

       officer’s safety while conducting the investigation. Id. at 15-16. As part of a

       valid Terry stop, the investigating officer is entitled to take reasonable steps to

       ensure his own safety. Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010).

       Based on the totality of the circumstances, we conclude that placing Bailey in

       handcuffs did not elevate the proper investigatory stop into an arrest.


                                            Indiana Constitution

[20]   Article 1, Section 11 of the Indiana Constitution provides:
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 12 of 15
        The right of the people to be secure in their persons, houses,
        papers, and effects, against unreasonable search or 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
        seized.


Although its text mirrors the Fourth Amendment to the United States

Constitution, we interpret Article 1, Section 11 of the Indiana Constitution

separately and independently. Washburn v. State, 121 N.E.3d 657, 662 (Ind. Ct.

App. 2019), trans. denied. In Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), our

Supreme Court “explicitly rejected” the Fourth Amendment’s “expectation of

privacy as a test of the reasonableness of a search or seizure,” emphasizing that

“legality of a governmental search under [Section 11 of] the Indiana

Constitution turns on an evaluation of the reasonableness of the police conduct

under the totality of the circumstances.” Id. at 359 (emphasis added).

Therefore, the reasonableness of search or seizure under Article 1, Section 11, is

governed by the balancing of the following factors: (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. at 361. None of

these factors is dispositive; they must be considered together, considering the

facts of a search, in order to arrive at a conclusion about the reasonableness of

police conduct. Id.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 13 of 15
[21]   Here, the degree of concern, suspicion, or knowledge that a violation had

       occurred was high. Officer Dienhart had twice observed Bailey stagger with an

       unsteady stride and flail about as he ran back and forth from the BP entrance to

       a car in the parking lot. Supp. Tr. Vol. II at 8. Based on his training and

       experience, Officer Dienhart believed Bailey was “under the influence of some

       sort of intoxicant.” Id. When speaking with the driver of the car, the officer

       saw a baggie protruding from a black container in the seat behind the

       passenger’s seat, and the driver’s answers to the officer’s questions increased his

       suspicions that the baggie contained narcotics, which was also heightened due

       to Bailey’s suspected intoxicated state. Id. at 10-11. The concern, suspicion, or

       knowledge that Bailey was engaged in the possession of narcotics was further

       increased when Bailey was “deceitful” in providing identifying information. Id.

       at 11-12. Additionally, Officer Dienhart testified that he had handcuffed Bailey

       due to the high crime nature of the area and his concern for officer safety due to

       the unknown nature of Bailey’s intoxication, Bailey’s erratic behavior, and the

       need to ensure the officer’s safety while conducting the investigation. Id. at 15-

       16.


[22]   Admittedly, the degree of intrusion imposed on Bailey weighed somewhat

       against the State because Bailey was handcuffed, but there was no evidence as

       to how long he was handcuffed before the police learned that he had an active

       warrant for his arrest. As to the extent of law enforcement needs, Officer

       Dienhart had seen Bailey engage in erratic and dangerous conduct, which led

       him to believe that Bailey was intoxicated in a public place, and allowing Bailey


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 14 of 15
       to leave without determining what was causing his behavior may have

       endangered him or others. Additionally, Officer Dienhart had observed

       suspected narcotics in the car in which Bailey was a passenger, and when the

       officer first encountered Bailey, Bailey’s speech was rambling and incoherent,

       and he was not truthful when asked for identifying information, which

       furthered the officer’s suspicion that Bailey was under the influence of some

       type of narcotic drug. Id. at 11. Allowing the driver and Bailey to leave

       without fully investigating whether there were narcotics in the vehicle could

       have led to the destruction of evidence. Therefore, additional investigation was

       necessary before they could be allowed to leave. Bailey asserts that Officer

       Dienhart detained Bailey solely to conduct a search for warrants. Appellant’s Br.

       at 18. However, the evidence showed that Officer Dienhart detained Bailey as

       part of a narcotics investigation and for safety purposes due to his behavior.

       Although we agree that the intrusion into Bailey’s ordinary activities was

       relatively high, balanced against the concern and suspicion that Bailey was

       intoxicated and in possession of narcotics and law enforcement needs to

       investigate the situation before Bailey could endanger himself or others or

       destroy the evidence of drugs, the weight of these factors favors a determination

       that Bailey’s detention was reasonable under the totality of the circumstances.

       We, therefore, conclude that the detention of Bailey was permissible under

       Article 1, Section 11 of the Indiana Constitution.


[23]   Affirmed.


       Baker, J., and Crone, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019   Page 15 of 15
