MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Aug 01 2018, 8:11 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin Wild                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John C. Green,                                           August 1, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-29
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1606-F2-25003



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018                   Page 1 of 14
                                           Case Summary
[1]   John Green (“Green”) appeals his convictions, following a bench trial, for

      dealing in a narcotic drug, as a Level 2 felony;1 possession of a narcotic drug, as

      a Level 3 felony;2 driving while suspended, a Class A misdemeanor;3 and

      possession of marijuana, as a Class B misdemeanor.4


[2]   We affirm.



                                                    Issues
[3]   Green presents the following restated issues:


                 I.        Whether the trial court erred in admitting the heroin into
                           evidence.


                 II.       Whether the trial judge was unfair and partial, thereby
                           denying Green a fair trial.


                                  Facts and Procedural History
[4]   On June 24, 2016, Indianapolis Metropolitan Police Department (“IMPD”)

      Officers Greg Milburn (“Officer Milburn”) and Jason Hitchcock (“Officer




      1
          Ind. Code § 35-48-4-1(a), (e).
      2
          I.C. § 35-48-4-6(a), (d).
      3
          I.C. § 9-24-19-2.
      4
          I.C. § 35-48-4-11(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018      Page 2 of 14
      Hitchcock”) pulled over Green’s vehicle for failure to stop at a stop sign. Before

      Green’s car actually stopped, the officers could see him lean toward the center

      of the vehicle. Once the vehicle stopped and the officers approached it, they

      could smell through the closed windows an overwhelming odor of raw

      marijuana emanating from the vehicle.


[5]   Green told Officer Hitchcock, who was at the driver’s side window, that he did

      not have a driver’s license and that he did not know where the vehicle

      registration document was. Officer Hitchcock checked Green’s driving status

      through the data base in his police vehicle and learned that Green’s driver’s

      license had been suspended. Officer Hitchcock then informed Green that his

      license was suspended. As Green leaned toward the driver’s side window

      toward Officer Hitchcock, Officer Milburn, who was standing by the passenger

      door, saw a handgun in a holster on the right side of Green’s waist. Officer

      Milburn alerted Officer Hitchcock to the presence of the gun and ordered Green

      to keep his hands visible. The officers then ordered Green to stick his hands out

      of the driver’s side window and they handcuffed him. They then instructed

      Green to step outside the vehicle, and they seized his gun. The officers then

      walked Green toward the back of the vehicle.


[6]   As Green was standing at the back of the vehicle with Officer Milburn, the

      officer noticed Green lean his pelvic area against the car. Officer Milburn had

      seen suspects wearing loose clothing lean against vehicles before to stop

      contraband from falling out of their clothes, and he had also seen suspects using

      vehicles “as leverage to push off the car and either assault officers or run away.”

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018   Page 3 of 14
      Tr. at 25. Officer Milburn ordered Green to step away from the vehicle and

      then conducted a pat-down search of Green’s person. During the pat-down,

      Officer Milburn could feel a “good size” rock-like substance inside a plastic bag

      inside Green’s pants. Id. at 26. Officer Milburn believed the substance was

      contraband. At that point, Officers Milburn and Hitchcock asked Green what

      the rock-like substance was. Green responded, “I have dope on me.” Id. at 81.

      Officer Hitchcock then read Green his Miranda rights.5


[7]   The officers asked Green some additional questions about the rock-like

      substance, and Green informed them that it was heroin. Officer Milburn then

      informed Green that the officers “had to retrieve the narcotics,” and they asked

      Green to do that for them, since the narcotics were “down inside [Green’s]

      shorts.” Id. at 28. Green agreed and pulled out two whitish-colored rocks that

      later testing proved to be heroin. Officer Milburn then began an inventory of

      Green’s pockets and discovered two wads of money that were mostly bills of

      small denominations. Officer Milburn knew from his training and experience

      that small denominations indicate street transactions of narcotics. An inventory

      search of the vehicle disclosed a loaded shotgun in the trunk. Inside the car,

      there was a digital scale with a powdery substance on it and various bullets of

      different calibers. The officers also found in the vehicle a marijuana blunt with




      5
        Officers Milburn and Hitchcock gave conflicting testimony regarding whether they questioned Green
      before or after reading him his Miranda warnings. Tr. at 28, 81. However, because Officer Hitchcock was
      the officer who read the warnings, the trial court credited and relied upon his testimony that the officers
      asked Green what the substance was and he responded “dope” before they read him his Miranda rights. Tr.
      at 113.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018                    Page 4 of 14
       green vegetation sticking out of it, which later testing showed to be marijuana.

       There was also a burnt marijuana roach on the floorboard.


[8]    The State charged Green with Count I, Level 2 felony dealing in a narcotic

       drug; Count II, Level 3 felony possession of a narcotic drug; Count III, Level 4

       felony unlawful possession of a firearm by a serious violent felon; Count IV,

       Class A misdemeanor driving while suspended; and Count V, Class B

       misdemeanor possession of marijuana. Green waived his right to a jury trial,

       and his bench trial took place on November 13, 2017.


[9]    At trial, Green objected to the introduction of the heroin, arguing that its

       discovery violated the federal and Indiana Constitutions. The State responded

       that the search was proper because Defendant was under arrest at the time and

       it was a search incident to arrest. The trial court overruled the objection and

       admitted the heroin into evidence. However, the trial court found that the

       police did not provide the Miranda warning until after Green had stated that he

       had “dope” on him; therefore, the trial court suppressed that statement. Tr. at

       113-14.


[10]   Green testified at trial that he was addicted to heroin and that, when the police

       stopped him, he had just obtained heroin. He said he had the scale so that he

       would not be cheated and that the reason he had so much heroin was so that it

       would last a while and he would not have to take the risk of buying more so

       often. Green described himself as someone who used heroin three or four times

       a day and testified that he snorted the heroin because he did not like needles.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018   Page 5 of 14
       He testified that the last day he used heroin was the day he was arrested and

       that he did not enter a rehabilitation program after that because he wanted to go

       “cold turkey.” Tr. at 176.


[11]   After both parties presented their evidence and closing arguments, the trial

       court stated:


               At the end of the day, the Court would just summarily state that
               it does not find Mr. Green’s testimony to be credible. I find it to
               be[,] frankly[,] very convenient. Based on the other officers’
               testimony[,] the Court is aware based on dozens of police officer
               experts that a person can in fact snort heroin. But that testimony
               today is very convenient. In light of all of the other testimony by
               the officers and that the heroin rocks could be crushed as
               opposed to cut with a knife or what have you. All of that though,
               frankly the testimony that Mr. Green gave that very much lends
               itself to the Court’s finding of lack of credibility is his testimony
               that his last use was on the day of arrest and that he never went
               to rehab. By his own testimony, in comparison to what
               Detective Vanoeveren stated[,] he would be a heavy, heavy –
               considered a very heavy user of heroin. This judicial officer[,]
               after twenty some years of being a lawyer and twelve to thirteen
               years of being a judicial officer, two years in this court and nine
               and a half years in family law court where I encountered
               numerous of [sic] folks who have used drugs[,] have yet to see a
               heroin user who has successfully become clean of heroin without
               going to rehabilitation. That[,] the Court finds[,] is not a credible
               statement by Mr. Green. And does not lend itself to someone
               that is a heavy – heavily addicted user of this drug.


       Tr. at 190-91.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018   Page 6 of 14
[12]   The trial court found Green guilty as charged on Counts I, II, IV, and V, and it

       dismissed Count III. The trial court subsequently entered convictions on

       Counts I, IV, and V, and sentenced Green to ten years’ incarceration, with five

       years suspended and two years of probation, on Count I, and sixty-three days

       concurrent on each of Counts IV and V. This appeal ensued.



                                  Discussion and Decision
                          Admission of Heroin Into Evidence
[13]   Green challenges the trial court’s admission of the heroin into evidence, over

       his objection. We review a trial court’s ruling on the admissibility of evidence

       for an abuse of discretion, and whether


               the error affects a party’s substantial rights. But when an
               appellant’s challenge to such a ruling is predicated on an
               argument that impugns the constitutionality of the search or
               seizure of the evidence, it raises a question of law, and we
               consider that question de novo.


       Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014) (quotations and citations

       omitted). Moreover, “we may affirm a trial court’s ruling on admissibility on

       any theory supported by the record, even if the State argued a different theory

       of admissibility at the trial court level.” Leitch v. State, 736 N.E.2d 1284, 1286

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


[14]   Green contends that the admission of the heroin into evidence violated both his

       Fourth Amendment rights under the United States Constitution, and his rights

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018   Page 7 of 14
       under Article 1, Section 11 of the Indiana Constitution. We address each

       constitutional claim in turn.

                                                 Fourth Amendment


[15]   The Fourth Amendment6 prohibits warrantless searches and seizures unless the

       State can prove that an exception to the warrant requirement existed at the time

       of the search. See, e.g., Edmond v. State, 951 N.E.2d 585, 588 (Ind. Ct. App.

       2011). Police may, “without a warrant or probable cause, briefly detain an

       individual for investigatory purposes if, based on specific and articulable facts,

       the officer has a reasonable suspicion that criminal activity ‘may be afoot.’” Id.

       (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). However, an arrest or a

       detention for more than a short period must be justified by probable cause. Id.

       “Probable cause to arrest exists where the facts and circumstances within the

       knowledge of the officers are sufficient to warrant a belief by a person of

       reasonable caution that an offense has been committed and that the person to

       be arrested has committed it.” Id. (citing Brinegar v. United States, 338 U.S. 160,

       175-76 (1949)). An arrest has occurred “when a police officer interrupts the

       freedom of the accused and restricts his liberty of movement.” Fentress v. State,

       863 N.E.2d 420, 423 (Ind. Ct. App. 2007) (citation, quotation marks, and

       brackets omitted). And a search incident to a lawful arrest is an exception to




       6
         The Fourth Amendment states: “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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018                     Page 8 of 14
       the warrant requirement under the Fourth Amendment. State v. Parrott, 69

       N.E.3d 535, 542 (Ind. Ct. App. 2017) (citing and quoting United States v.

       Robinson, 414 U.S. 218, 235 (1973) (“A custodial arrest of a suspect based on

       probable cause is a reasonable intrusion under the Fourth Amendment; that

       intrusion being lawful, a search incident to the arrest requires no additional

       justification. It is the fact of the lawful arrest which establishes the authority to

       search....”)), trans. denied.


[16]   Here, Green admits that the police lawfully stopped him initially because they

       had reasonable suspicion that he had failed to stop at a stop sign. Green also

       admits that the police had probable cause to arrest him after they smelled raw

       marijuana coming from his car and/or they learned that he was driving with a

       suspended license. Green further admits that he was under arrest at the time

       Officer Milburn conducted the pat-down of Green.7 And Green acknowledges

       that the police had the right to search him incident to that arrest.


[17]   However, Green maintains—without citation to supporting authority—that

       Officer Milburn’s pat-down was not done “incident to arrest” because the

       officers said they did the pat-down “for officer safety.” Appellant’s Br. at 13.

       First, the need for officer safety is one of the reasons for the rule allowing

       warrantless searches incident to arrest, Parrott, 69 N.E.3d at 542 n.3; therefore,




       7
          Although there is no evidence that the police formally stated, “You are under arrest,” Green admits there
       was probable cause for the arrest; and, even if he was not formally placed under arrest at the time of the
       search, that does not invalidate the search. See, e.g., Bell v. State, 13 N.E.3d 543, 545 (Ind. Ct. App. 2014),
       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018                        Page 9 of 14
       the officers’ articulation of that reason does not affect the lawfulness of the

       search. Second, an action “‘is reasonable under the Fourth Amendment,

       regardless of the individual officer’s state of mind, as long as the circumstances,

       viewed objectively, justify [the] action.’” J.K. v. State, 8 N.E.3d 222, 235 (Ind.

       Ct. App. 2014) (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006)).

       Because the officers had lawfully arrested Green, the search incident to that

       arrest, and the seizure of items found, were reasonable and required no further

       justification.8 Robinson, 414 U.S. at 235.


                                 Article 1, Section 11 of the Indiana Constitution


[18]   Green also asserts that the pat-down search violated his rights under Article 1,

       Section 11 of the Indiana Constitution.9


                “While almost identical to the wording in the search and seizure
                clause of the federal constitution, Indiana’s search and seizure
                clause is independently interpreted and applied.” Baniaga v.
                State, 891 N.E.2d 615, 618 (Ind. Ct. App. 2008). Under the



       8
          Green erroneously analyzes the pat-down under the “plain feel doctrine.” Appellant’s Br. at 16-19.
       However, that doctrine is only applicable to searches done during “Terry stops,” i.e., stopping an individual
       when there is reasonable suspicion that criminal activity is afoot, but no probable cause to arrest. E.g., Burkett
       v. State, 785 N.E.2d 276, 278 (Ind. Ct. App. 2003). Here, the search was done incident to a lawful arrest.
       Green also erroneously maintains, again without citation to supporting authority, that the officers’ request
       that he retrieve the heroin from his pants himself—rather than the officers retrieving it from him—made the
       search a search pursuant to consent that would require the advisement of the right to counsel prior to the
       search, pursuant to Pirtle v. State, 323 N.E.2d 634 (1975). We disagree. The police never asked Green for his
       consent to search his person, and Green never gave such consent. Rather, the search was clearly conducted
       incident to the valid arrest.
       9
         Article 1, Section 11 states: “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.” Ind. CONST. Art. 1, § 11.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018                        Page 10 of 14
               Indiana Constitution, the legality of a governmental search turns
               on an evaluation of the reasonableness of the police conduct
               under the totality of the circumstances. Litchfield v. State, 824
               N.E.2d 356, 359 (Ind. 2005). Although other relevant
               considerations under the circumstances may exist, our Supreme
               Court has determined that the reasonableness of a search or
               seizure turns on a balance of: 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 citizens’ ordinary activities, and 3) the extent of law
               enforcement needs. Baniaga, 891 N.E.2d at 618. The burden is
               on the State to show that under the totality of the circumstances,
               the intrusion was reasonable. Id.


       Hathaway v. State, 906 N.E.2d 941, 945 (Ind. Ct. App. 2009), trans. denied.


[19]   Here, the degree of suspicion weighs in favor of the State. As our Supreme

       Court noted in Garcia v. State, where a defendant was lawfully placed under

       arrest for driving without a valid driver’s license, a pat-down of his person

       incident to arrest was permissible without the need for additional suspicion. 47

       N.E.3d 1196, 1200-01 (Ind. 2016). The degree of intrusion also weighs in the

       State’s favor. “Although the search of a person’s body is a substantial intrusion,

       a police officer is authorized to conduct a thorough search of an arrestee.”

       Edmond, 951 N.E.2d at 592. Thus, where the police carry out “only a pat-down

       search of [an arrestee’s] clothing … the degree of intrusion [is] minimal….” Id.

       And “a search incident to arrest serves important purposes, such as ensuring

       that the arrestee is unarmed, preventing the arrestee from bringing contraband

       into jail, and preventing the destruction of evidence.” Id. Therefore, law

       enforcement needs also weigh in favor of the State. Id. Officer Milburn’s pat-

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018   Page 11 of 14
       down search and resulting seizure of the heroin did not violate Green’s rights

       under Article 1, Section 11 of the Indiana Constitution.


            Trial Court’s Statements Regarding Green’s Credibility
[20]   Green maintains that the trial court was not fair and impartial—and therefore

       denied him a fair trial—because it relied on facts not in evidence.10 Specifically,

       Green contends that the judge showed bias by relying on her own experience as

       a judge and a lawyer to determine whether Green’s statement that he quit using

       heroin without going to rehabilitation was credible. 11


[21]   We start with a presumption that a judge is unbiased and unprejudiced. Woods

       v. State, 98 N.E.3d 656, 664 (Ind. Ct. App. 2018) (citing Timberlake v. State, 753

       N.E.2d 591, 610 (Ind. 2001)).


                Judges require broad latitude to run their courtrooms and to
                maintain discipline and control. Brown v. State, 746 N.E.2d 63,
                70–71 (Ind. 2001). A defendant asserting judicial bias must show
                that the trial judge’s actions and demeanor showed partiality and
                prejudiced the case. Id. at 71.




       10
          Green also asserts, without analysis, that the trial court “effectively testified in the trial” in violation of
       Indiana Rule of Evidence 605. Appellant’s Br. at 22. He waived that argument by failing to support it with
       cogent reasoning. Ind. Appellate Rule 46(A)(8). Waiver notwithstanding, the trial judge’s comment that,
       based on her experience, she believed Green was not credible was merely “fair comment” on evidence
       already adduced at trial, i.e., testimony that Green was a heavy heroin user yet claimed not to need
       rehabilitation to stop using heroin. See Ferguson v. State, 40 N.E.3d 954, 957-58 (Ind. Ct. App. 2015), trans.
       denied.
       11
          Whether Green’s statement was credible was relevant to whether Green was merely a heroin user in
       possession of heroin, as he claimed, rather than a dealer of heroin, as charged in Count I.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018                          Page 12 of 14
       Id. And a judge’s intemperate comments may not necessarily demonstrate bias.


               [O]pinions formed by the judge on the basis of facts introduced
               or events occurring in the course of the current proceedings, or of
               prior proceedings, do not constitute a basis for a bias or partiality
               motion unless they display a deep-seated favoritism or
               antagonism that would make fair judgment impossible. Thus,
               judicial remarks during the course of a trial that are critical or
               disapproving of, or even hostile to, counsel, the parties, or their
               cases, ordinarily do not support a bias or partiality challenge.


       Id. (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).


[22]   Moreover, when making its determinations, a trier of fact (whether judge or

       jury) may rely on its “common sense and knowledge acquired through

       everyday experiences—indeed, that is precisely what is expected of [it].”

       Clemons v. State, 83 N.E.3d 104, 108 (Ind. Ct. App. 2017) (citing Halsema v.

       State, 823 N.E.2d 668, 673-74 (Ind. 2005)), trans. denied. As our Supreme Court

       has noted,


               Obviously, no juror can or should approach deliberations with an
               entirely clean cognitive slate. Humans can make intelligent
               decisions only by drawing upon their accumulated background
               knowledge and experience. Jurors are not only permitted to
               make decisions in this manner, it is expected of them[.]


       Staton v. State, 853 N.E.2d 470, 475-76 (Ind. 2006) (quoting 27 Charles A.

       Wright & Victor J. Gold, Federal Practice & Procedure § 6075, at 450 (2d ed.

       1990)). That observation applies equally to trial judges making deliberations in

       a bench trial.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018   Page 13 of 14
[23]   Here, the trial judge cited testimony relating to Green’s heavy use of heroin and

       compared that to Green’s contention that he did not go to rehabilitation to help

       him quit using heroin. The judge then applied her years of legal experience

       with heroin users to come to the common sense conclusion that a heavy heroin

       user usually requires rehabilitation in order to quit using heroin and that

       Green’s testimony to the contrary was not credible. This was a permissible and

       reasonable inference based on the evidence and common sense. Green has

       failed to show that the judge’s challenged remarks “display[ed] a deep-seated …

       antagonism that would make fair judgment impossible.” Woods, 98 N.E.3d at

       664.



                                               Conclusion
[24]   The admission of the heroin into evidence did not violate Green’s Fourth

       Amendment or state constitutional rights, as it was seized pursuant to a lawful

       search incident to arrest. And Green has failed to carry his burden of showing

       the trial judge denied him a fair trial due to bias.


[25]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-29 | August 1, 2018   Page 14 of 14
