Charles Westmoreland v. State of Indiana ( 2012 )

FILED
Apr 17 2012, 9:08 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VALERIE K. BOOTS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES WESTMORELAND, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1107-CR-356
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jose D. Salinas, Judge
Cause No. 49G14-1012-CM-090092
April 17, 2012
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Charles Westmoreland was a passenger in a vehicle that police stopped for a
routine traffic violation. After a police officer determined that there were outstanding
warrants for the driver, the officer arrested the driver while another officer removed
Westmoreland from the car, handcuffed him, and patted him down for officer safety,
finding a baggie of marijuana in his front pocket. Westmoreland now appeals the trial
court’s denial of his motion to suppress the marijuana, arguing that the pat down was
illegal because the officers did not reasonably believe that he was armed and dangerous.
In light of the United States Supreme Court’s opinion in Arizona v. Johnson, 555 U.S.
323 (2009), which considered the authority of police officers to pat down vehicle
passengers during a routine traffic stop, we conclude that the trial court erred in denying
Westmoreland’s motion to suppress the marijuana because the officers did not reasonably
believe that he was armed and dangerous.
Facts and Procedural History
Around 6:00 or 7:00 p.m. on December 1, 2010, Indianapolis Metropolitan Police
Department Officer Robert Hicks was patrolling the southside of Indianapolis. He
observed a vehicle driven by Deborah Day commit traffic infractions, including failure to
signal, and initiated a traffic stop. Officer Hicks approached the driver side of the vehicle
and asked Deborah for her driver’s license and registration. Deborah gave Officer Hicks
an Indiana identification card. Upon running the card, Officer Hicks learned that
Deborah had warrants out of both Marion and Johnson counties. Accordingly, Officer
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Hicks called for assistance and then “pulled [Deborah] out of the car, placed handcuffs on
her, [and] placed her [i]n the back seat of [his] vehicle.” Tr. p. 7.
Westmoreland was the sole passenger in Deborah’s vehicle, and Officer Hicks
also obtained his identification. Westmoreland did not have any outstanding warrants.
About this same time, a second officer, Officer Ethan Forrest, arrived on the scene.
Officer Hicks told Officer Forrest that he “had a wanted person [Deborah] and asked him
if he would pull the passenger out of the vehicle” because he “was going to tow [it].” Id.
at 8-9. Officer Forrest then removed Westmoreland from the vehicle and performed a pat
down. Officer Forrest also placed Westmoreland in handcuffs, but he was not sure
whether he did so before or after the pat down. Although Officer Forrest said that he
performed a pat down “for officer safety issues,” id. at 13, he did not observe “any furtive
movements” from Westmoreland, id. at 14. During the pat down, Officer Forrest found a
“plastic baggie with marijuana substance inside of it, in [Westmoreland’s] front pocket.”
Id. at 13. Officer Forrest explained that a “corner piece” of the baggie, which revealed
marijuana residue, was “sticking out” of Westmoreland’s front pocket. Id. Officer
Forrest removed the baggie and gave it to Officer Hicks.
The following day, the State charged Westmoreland with Class A misdemeanor
possession of marijuana. Westmoreland filed a motion to suppress the marijuana because
the “search and seizure of Defendant’s person, the bag within [D]efendant’s pocket, and
the marijuana within the bag, violated [his] rights under the 4th [A]mendment and
[A]rticle 1 § 11.” Appellant’s App. p. 23. Following a hearing, the trial court denied
Westmoreland’s motion to suppress the marijuana. Tr. p. 24-28.
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This discretionary interlocutory appeal now ensues.
Discussion and Decision
Westmoreland contends that the trial court erred in denying his motion to suppress
the marijuana. Our standard of review for the denial of a motion to suppress evidence is
similar to other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct. App.
2003), trans. denied. We determine whether substantial evidence of probative value
exists to support the denial of the motion. Id. We do not reweigh the evidence, and we
consider conflicting evidence that is most favorable to the trial court’s ruling. Id.However, the review of a denial of a motion to suppress is different from other
sufficiency matters in that we must also consider uncontested evidence that is favorable
to the defendant. Id. We review de novo a ruling on the constitutionality of a search or
seizure, but we give deference to a trial court’s determination of the facts, which will not
be overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind.
2008).
Westmoreland specifically argues that his pat down was illegal under both the
Fourth Amendment of the United States Constitution and Article 1, Section 11 of the
Indiana Constitution because the officers did not reasonably believe that he was armed
and dangerous.1 Finding the federal constitutional argument dispositive, we address only
that.
The Fourth Amendment provides:
1
We note that Westmoreland does not challenge the initial traffic stop. Indeed, it is well settled
that a police officer may stop a vehicle upon observing a minor traffic violation. Reinhart v. State, 930
N.E.2d 42, 45 (Ind. Ct. App. 2010).
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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.
Unless one of several established exceptions applies, police officers must obtain a
warrant based on probable cause before executing a search or a seizure. State v. Hobbs,
933 N.E.2d 1281, 1284 (Ind. 2010). One such exception was established in Terry v.
Ohio, in which the United States Supreme Court held that a police officer may, with or
without probable cause, briefly detain a person for investigatory purposes if, based on
specific and articulable facts, the officer reasonably believes that criminal activity “may
be afoot.”2 392 U.S. 1, 30 (1968). In addition to detainment, Terry permits a police
officer to conduct a limited search of the individual’s outer clothing for weapons if the
officer reasonably believes that the individual is armed and dangerous. Id. A generalized
suspicion that an individual presents a threat to an officer’s safety is insufficient to
authorize a pat-down search; rather, “there must exist articulable facts to support an
officer’s reasonable belief that the particular individual is armed and dangerous.”
Patterson v. State, 958 N.E.2d 478, 486 (Ind. Ct. App. 2011).
A unanimous United States Supreme Court has already addressed the issue before
us, although neither party cites it, in Arizona v. Johnson, 555 U.S. 323 (2009). In
2
We note that the State argues that a different exception applies, that is, the search-incident-to-
arrest exception. Specifically, the State argues that Officer Forrest had probable cause to arrest
Westmoreland for possession of marijuana because he saw a corner of a baggie with marijuana residue
sticking out of Westmoreland’s front pocket. However, because the evidence shows that Officer Forrest
spotted the marijuana during the pat down and not before, we find no merit to this argument. See Tr. p.
13 (Officer Forrest testifying that he found a plastic baggie “when” he patted down Westmoreland), 19
(prosecutor stating at motion to suppress hearing that Officer Forrest saw the baggie “[d]uring” the pat
down).
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Johnson, the Supreme Court considered “the authority of police officers to ‘stop and
frisk’ a passenger in a motor vehicle temporarily seized upon police detection of a traffic
violation.” Id. at 326. In arriving at an answer, the Supreme Court relied on three of its
prior decisions.
First, the Supreme Court in Johnson cited Pennsylvania v. Mimms, 434 U.S. 106(1977). Johnson, 555 U.S. at 331. In Mimms, the Supreme Court held that “once a motor
vehicle has been lawfully detained for a traffic violation, the police officers may order the
driver to get out of the vehicle without violating the Fourth Amendment’s proscription of
unreasonable searches and seizures.” 434 U.S. at 111 n.6. The Supreme Court explained
that the government’s “legitimate and weighty” interest in officer safety outweighs the
“de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit
the vehicle. Id. at 110-11. The Supreme Court further held once a driver is outside the
stopped vehicle, the driver may be patted down for weapons if the officer reasonably
concludes that the driver “might be armed and presently dangerous.” Id. at 112.
Second, the Supreme Court in Johnson cited Maryland v. Wilson, 519 U.S. 408(1997). Johnson, 555 U.S. at 331. Wilson held that the Mimms rule applies to passengers
as well as drivers. Id. Specifically, the Supreme Court instructed that “an officer making
a traffic stop may order passengers to get out of the car pending completion of the stop.”
Wilson, 519 U.S. at 415. The Supreme Court recognized that that “the same weighty
interest in officer safety is present regardless of whether the occupant of the stopped car
is a driver or passenger.” Id. at 413.
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Finally, the Supreme Court in Johnson cited Brendlin v. California, 551 U.S. 249(2007). Johnson, 555 U.S. at 332. In Brendlin, the Supreme Court observed that for the
duration of a traffic stop, the officer effectively seizes “everyone in the vehicle, not just
the driver.” 551 U.S. at 255. That is, a passenger is seized, just like a driver, “from the
moment [a car stopped by police comes] to a halt on the side of the road.” Id. at 263.
Based on these three decisions, the Supreme Court in Johnson held that, in a
traffic-stop setting,
the first Terry condition—a lawful investigatory stop—is met whenever it
is lawful for police to detain an automobile and its occupants pending
inquiry into a vehicular violation. The police need not have, in addition,
cause to believe any occupant of the vehicle is involved in criminal activity.
To justify a patdown of the driver or a passenger during a traffic stop,
however, just as in the case of a pedestrian reasonably suspected of criminal
activity, the police must harbor reasonable suspicion that the person
subjected to the frisk is armed and dangerous.
555 U.S. at 327.
We now apply Johnson to this case.3 Because Officer Hicks lawfully pulled over
Deborah for a traffic violation, the officers did not need to have cause to believe that
Westmoreland was involved in criminal activity. However, to justify the pat down of
Westmoreland, which led to the discovery of marijuana, the officers must have had
reasonable suspicion that he was armed and dangerous. But no evidence was presented at
3
We note that the State advocates for a slightly different test. That is, the State argues that
because the officers were going to tow the vehicle, a pat down was warranted. The State asserts that
Westmoreland likely would have been mulling about the area during this process, which would have
“place[d] the officers in possible danger and would reasonably heighten apprehension for their safety.”
Appellee’s Br. p. 7. However, as noted above, the State did not cite Johnson on appeal. Because Johnson
sets forth the applicable test, which plainly requires the officers to harbor reasonable suspicion that
Westmoreland was armed and dangerous, we decline to apply the State’s variation. In addition, because
we ultimately find that the officers did not reasonably believe that Westmoreland was armed and
dangerous, dangerousness would not automatically develop just because a car is towed.
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the suppression hearing to support a reasonable belief that Westmoreland was armed and
dangerous. Although Officer Forrest testified that he patted down Westmoreland for
officer safety, Officer Forrest conceded that Westmoreland did not make any furtive
movements. In addition, neither officer testified that Westmoreland was hostile,
belligerent, or even uncooperative during the traffic stop. But most compelling is the
State’s concession on appeal that “Officer Forrest did not have any particularized
articulable facts for believing that [Westmoreland] was armed and dangerous.”
Appellee’s Br. p. 7. We therefore conclude that the officers did not have reasonable
suspicion that Westmoreland was armed and dangerous. Because Officer Forrest
performed an illegal pat down on Westmoreland, the trial court erred in denying his
motion to suppress the marijuana found as a result of that pat down. And without this
marijuana, there is simply no evidence to support the possession of marijuana charge
against Westmoreland. We therefore reverse the trial court and remand with instructions
for the court to dismiss Westmoreland’s possession of marijuana charge.
Reversed and remanded.
ROBB, C.J., and NAJAM, J., concur.
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