Damien Townsend v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of May 29 2012, 8:38 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NEIL L. WEISMAN GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAMIEN TOWNSEND, )
)
Appellant-Defendant, )
)
vs. ) No. 71A05-1109-CR-471
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jane Woodward Miller, Judge
Cause No. 71D03-1011-FB-163
May 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Damien Townsend appeals his conviction for burglary as a class B felony.1
Townsend raises one issue, which we revise and restate as whether the trial court abused
its discretion by admitting evidence obtained from an investigatory stop. We affirm.
The relevant facts follow. On the morning of November 22, 2010, as Molly
Nichols returned to her home from driving her children to school, she observed a man
whom she had never seen before attempting to enter the front door of her home at the
corner of Donald and Dale streets in South Bend, Indiana. Nichols thought perhaps that
the man “had keys or something.” Transcript at 83. The man asked Nichols for someone
whose name she did not recognize and who did not live at the residence. The man then
walked away, walking south towards Ewing Avenue. Because the man had not been
knocking at the door, Nichols did not believe his story and she called the police within
minutes to report the incident. Nichols provided a detailed description to the police as “a
male of mixed race with a bald shaved head, a goatee and a black hoodie on.” Id. at 104.
A radio dispatch went out requesting officers to “check the area for a male of
mixed race, shaved head, goatee, black hoodie, woman said on her property, couldn’t
explain why there, no further.” Id. at 122. South Bend Police Officer James Dennin
responded to the dispatch and searched the area for a person matching the description
provided by Nichols as well as information that came up on his patrol car computer
containing Nichols’s address and phone number and stating that the individual “was at
caller’s door when she arrived home from taking kids to school, last seen on foot down
Dale towards Ewing.” Id. at 131. Within about ten or fifteen minutes, Officer Dennin
1
Ind. Code § 35-43-2-1 (2004).
2
came upon Townsend, who matched the description, at the corner of Donald and High
streets, which is about three blocks from Nichols’s residence. Officer Dennin exited his
patrol car and approached Townsend on foot. Officer Dennin asked Townsend what his
name was and what he was doing in the area, and Townsend provided his name and
stated that he was walking home from a friend’s house. Officer Dennin asked Townsend
if he had been at a house on Donald Street, and Townsend replied that he was there
looking for a friend. The officer then asked if he had identification, and Townsend
responded that he did not.
Officer Dennin observed that Townsend was carrying “a shoulder bag with a
computer case over his shoulder,” which the officer found suspicious because there was
no mention of a bag in the description from dispatch. Id. at 107. He asked Townsend
what it was, and Townsend replied that it was his computer and that he bought it from a
friend a couple of days earlier. Officer Dennin noticed a tag on the bag which bore the
name Judith Hillers and the address “730 East Altgeld” written on it, which was only a
few blocks from where they were. Id. at 109. In order to read the tag, Officer Dennin
picked up the tag and may have had to turn it over.
Officer Dennin decided to drive Townsend to the address listed on the tag, but
before doing so he patted Townsend down for weapons and as a result discovered a
digital camera in the pocket of his hoodie. Without handcuffing him, Officer Dennin
placed Townsend in the back seat of his vehicle, placed the computer case and the camera
in the front seat, and proceeded to the Altgeld Street address. Upon their arrival, Officer
Dennin noticed fresh pry marks by the door, although the door was locked and secure.
3
The residents were not home, and a neighbor provided Officer Dennin and Corporal
Kevin Gibbons, who was also on the scene, with the phone number of Robert Hillers, and
Corporal Gibbons contacted Robert who stated that he would return home. While the
officers waited for Hillers to return, Townsend rolled down the window of the patrol car
and escaped but was eventually recaptured.
When Robert returned home, he informed the officers that the pry marks had not
been present when he left in the morning. Inside the home, Robert noted for the officers
that the lock on a filing cabinet located in the bedroom had been forced open, a digital
camera was missing from the bedroom, and a computer and case were missing from the
living room. The officers showed Robert the camera and computer case recovered from
Townsend and he identified them as his.
On November 24, 2010, the State charged Townsend with burglary as a class B
felony. On March 17, 2011, Townsend filed a motion to suppress the evidence obtained
during the stop and search. On June 3, 2011, the court held a suppression hearing in
which the State argued that the encounter between Officer Dennin and Townsend was an
investigatory stop based upon reasonable suspicion, and the court ultimately denied the
motion.
On July 19, 2011, a jury trial commenced in which evidence consistent with the
foregoing was presented. At the outset, Townsend reasserted his motion to suppress, and
he also objected to Officer Dennin’s testimony regarding the stop and the search. Robert
testified that he had never met Townsend and did not give Townsend permission to enter
his home or take his belongings. Corporal Gibbons testified that, at a normal pace, it
4
takes approximately five minutes to walk from Nichols’s house to the Hillers’ house and
about three minutes to walk from the Hillers’ house to the location where Officer Dennin
encountered Townsend. On July 20, 2011, the jury found Townsend guilty as charged.
On August 18, 2011, the court sentenced Townsend to twelve years with six years to be
served through community corrections and six years suspended, with three years to be
served on probation.
The issue is whether the trial court abused its discretion by admitting evidence
obtained from an investigatory stop. The admission and exclusion of evidence falls
within the sound discretion of the trial court, and we review the admission of evidence
only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An
abuse of discretion occurs “where the decision is clearly against the logic and effect of
the facts and circumstances” before the court. Smith v. State, 754 N.E.2d 502, 504 (Ind.
2001). In making this determination, this court does not reweigh evidence and considers
conflicting evidence in a light most favorable to the trial court’s ruling. Cole v. State,
878 N.E.2d 882, 885 (Ind. Ct. App. 2007). However, we must also consider the
uncontested evidence favorable to the defendant. Joyner v. State, 678 N.E.2d 386, 390
(Ind. 1997), reh’g denied. Even if the trial court’s decision was an abuse of discretion,
we will not reverse if the admission constituted harmless error. Id. Further, this court
considers evidence from the trial as well as evidence from the suppression hearing that is
not in direct conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.
Ct. App. 2005).
5
Townsend argues that the stop and search were illegal under: (A) the Fourth
Amendment; and (B) Article 1, Section 11 of the Indiana Constitution.
A. Fourth Amendment
We begin by addressing Townsend’s Fourth Amendment claims. The Fourth
Amendment to the United States Constitution provides, in pertinent part: “[t]he right of
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated. . . .” U.S. CONST. amend. IV. The Fourth
Amendment’s protection against unreasonable searches and seizures has been extended to
the states through the Fourteenth Amendment. See Berry v. State, 704 N.E.2d 462, 464-
465 (Ind. 1998).
Townsend challenges the propriety of: (1) the initial stop; and (2) the search.2 We
address each of Townsend’s arguments separately.
1. The Stop
As a general rule, the Fourth Amendment prohibits a warrantless search. Id. at
465. 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. Id. One of
the recognized exceptions is the Terry investigatory stop. Carter v. State, 692 N.E.2d
464, 466 (Ind. Ct. App. 1997).
In Terry v. Ohio, the United States Supreme Court established the standard for
determining the constitutionality of investigatory stops. 392 U.S. 1, 88 S. Ct. 1868(1968). The Court ruled that the police may, without a warrant or probable cause, briefly
2
Townsend does not challenge Officer Dennin’s decision to transport him to the Hillers’ home.
6
detain an individual for investigatory purposes if, based on specific and articulable facts,
the officer has a reasonable suspicion of criminal activity. Id. at 27, 88 S. Ct. at 1883; see
also Jackson v. State, 669 N.E.2d 744, 747 (Ind. Ct. App. 1996) (“In Terry, the Supreme
Court held that ‘where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot’ the
officer may briefly stop the suspicious person and make ‘reasonable inquiries’ to confirm
or dispel those suspicions.”) (quoting Terry, 392 U.S. at 30, 88 S. Ct. at 1884).
Reasonable suspicion exists if the facts known to the officer at the moment of the stop,
together with the reasonable inferences arising from such facts, would cause an ordinarily
prudent person to believe that criminal activity has occurred or is about to occur. Powell
v. State, 841 N.E.2d 1165, 1167 (Ind. Ct. App. 2006). In judging the reasonableness of
investigatory stops, courts must strike “a balance between the public interest and the
individual’s right to personal security free from arbitrary interference by law
[enforcement] officers.” Carter, 692 N.E.2d at 466 (quoting Brown v. Texas, 443 U.S.
47, 50, 99 S. Ct. 2637, 2640 (1979)). When balancing these competing interests in
different factual contexts, a central concern is “that an individual’s reasonable
expectation of privacy is not subject to arbitrary invasions solely at the unfettered
discretion of officers in the field.” Id. (citing Brown, 443 U.S. at 51, 99 S. Ct. at 2640).
Therefore, in order to pass constitutional muster, reasonable suspicion must be comprised
of more than an officer’s general “hunches” or unparticularized suspicions. Terry, 392
U.S. at 27, 88 S. Ct. at 1883. Whether an investigatory stop is justified is determined on
a case by case basis. Williams v. State, 745 N.E.2d 241, 245 (Ind. Ct. App. 2001). In
7
making this determination, we consider the totality of the circumstances. Id. “Judicial
interpretation of what constitutes ‘reasonable suspicion’ is fact-sensitive.” Bridgewater
v. State, 793 N.E.2d 1097, 1100 (Ind. Ct. App. 2003), trans. denied.
Townsend argues that “Officer Dennin never spoke directly with the caller and
was looking for the individual based only on the dispatch and had no further
information.” Appellant’s Brief at 10. Townsend argues that Officer Dennin observed
someone matching the description and initiated a stop based upon the description, but he
was not aware that a crime had been committed and was not investigating a crime.
Townsend argues that Officer Dennin’s stop was based solely “on an unparticularized
dispatch” and thus he did not have a reasonable suspicion that criminal activity had
occurred or was about to occur and was therefore unconstitutional under Terry. Id. at 11.
Townsend emphasizes that, when Officer Dennin came upon him, Townsend was merely
walking down a sidewalk with his hood down, not attempting to conceal his identity, and
he did not turn or walk away and was cooperative. The State argues that the stop, in
which Townsend was observed near the area of Nichols’s home approximately fifteen to
twenty minutes after the phone call in which Nichols reported that she observed a man
closely matching Townsend’s appearance at her front door without an explanation, was
supported by reasonable suspicion.
The United States Supreme Court has observed that “wholly lawful conduct might
justify the suspicion that criminal activity was afoot.” U.S. v. Sokolow, 490 U.S. 1, 9,
109 S. Ct. 1581, 1586 (1989). The Court noted that “[i]ndeed, Terry itself involved ‘a
series of acts, each of them perhaps innocent’ if viewed separately, ‘but which taken
8
together warranted further investigation.’” Id. at 9-10, 109 S. Ct. at 1587 (quoting Terry,
392 U.S. at 22, 88 S. Ct. at 1881). The Court noted that “innocent behavior will
frequently provide the basis for a showing of probable cause,” that “[i]n making a
determination of probable cause the relevant inquiry is not whether particular conduct is
‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of
noncriminal acts,” and that this “principle applies equally well to the reasonable
suspicion inquiry.” Id. at 10, 109 S. Ct. at 1587 (quoting Illinois v. Gates, 462 U.S. 213,
243-244 n.13, 103 S. Ct. 2317, 2335 n.13 (1983), reh’g denied).
Here, the record reveals that Officer Dennin had reasonable suspicion to stop
Townsend. In so holding, we note that Nichols identified herself to the 911 dispatch
officer and was not an anonymous tipster. She identified herself as the owner of the
home she observed Townsend attempt to enter and provided both her address and phone
number. She provided a detailed description of the individual she observed at her door
which Townsend, who Officer Dennin encountered a mere few blocks from Nichols’s
residence, matched.3 See State v. Renzulli, 958 N.E.2d 1143, 1149 (Ind. 2011) (noting
that officers had reasonable suspicion to initiate an investigatory stop based on a phone
call from “an identified informant or concerned citizen” and not “an anonymous tip,” in
which the caller identified himself and provided a detailed description of a vehicle); State
v. Eichholtz, 752 N.E.2d 163, 166-167 (Ind. Ct. App. 2001) (noting that, unlike in cases
involving anonymous tips, here the informant “willingly informed the 9-1-1 operator of
3
To the extent that the State argues that the initial encounter between Officer Dennin and
Townsend was consensual and thus did not implicate the Fourth Amendment, we need not address this
argument because we conclude that the stop was supported by reasonable suspicion.
9
his name and the description of his car,” and that as such the caller “could be held legally
responsible if [the police] investigation indicated that [the caller] filed a false police
report”).
2. The Search
Townsend next challenges the propriety of the pat down search and search of the
computer bag. An “exception to the warrant requirement is: when a police officer makes
a Terry stop, if he has reasonable fear of danger, he may conduct a carefully limited
search of the outer clothing of the suspect in an attempt to discover weapons that might
be used to harm him.” Williams v. State, 754 N.E.2d 584, 588 (Ind. Ct. App. 2001),
trans. denied. The United States Supreme Court, in Terry, explained that police officers
may employ investigative techniques short of arrest on less than probable cause without
violating Fourth Amendment interests. Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001).
The principal issue is whether the police action in question was reasonable under all the
circumstances. Id. (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330,
332 (1977)).
The Indiana Supreme Court has noted that Terry permits a:
reasonable search for weapons for the protection of the police officer,
where he has reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether he has probable cause to arrest
the individual for a crime. The officer need not be absolutely certain that
the individual is armed; the issue is whether a reasonably prudent man in
the circumstances would be warranted in the belief that his safety or that of
others was in danger.
Id. (citing Terry, 392 U.S. at 27, 88 S. Ct. at 1883). An officer’s authority to conduct a
pat down search is dependent upon the nature and extent of his particularized concern for
10
his safety. Id. “[A]n individual stopped may not be frisked or patted down for weapons,
unless the officer holds a reasonable belief that the particular individual is armed and
dangerous.” Swanson v. State, 730 N.E.2d 205, 210 (Ind. Ct. App. 2000) (quoting State
v. Pease, 531 N.E.2d 1207, 1211 (Ind. Ct. App. 1988)), trans. denied.
Townsend argues that Officer Dennin did not identify particularized facts
underlying a belief that he feared for his safety to justify a pat down search under Terry.
Townsend also argues that because the stop and search were unconstitutional, the
evidence discovered by the search is inadmissible as the “fruit of the poisonous tree.”
Appellant’s Brief at 12. Specifically regarding the computer bag, Townsend argues that
the State’s assertion at the suppression hearing that he did not have standing to contest
the search was incorrect because “society would find it reasonable that a person walking
down the street carrying a computer bag, briefcase, purse, or any other item has an
expectation of privacy in the item possessed sufficient to invoke the protections of the
Fourth Amendment . . . .” Id. at 20.
We begin by addressing an issue raised by the State, namely, whether Townsend
had standing to challenge the search of the computer bag, in which Officer Dennin
observed the Hillers’ address on an identification tag attached to the bag and testified that
he may have turned the tag over in order to do so. As noted by the State, “[i]llegally
seized evidence is excludable only if the person complaining has standing to challenge its
admissibility.” Barnes v. State, 269 Ind. 76, 79, 378 N.E.2d 839, 842 (1978). “One who
is aggrieved by an illegal search and seizure only through the introduction of damaging
evidence secured by a search of a third person’s premises or property has not had any of
11
his Fourth Amendment rights infringed.” Covelli v. State, 579 N.E.2d 466, 472 (Ind. Ct.
App. 1991) (citing Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425 (1978), reh’g
denied), trans. denied. “Only those defendants whose Fourth Amendment rights have
been violated are permitted to benefit from the protections of the exclusionary rule.” Id.“It is not enough that the defendant is the ‘target’ of the police search, if he has no
legitimate expectation of privacy in the searched premises or property.” Id.; see also
Buza v. State, 529 N.E.2d 334, 338 (Ind. 1988) (“It is well-founded that the privilege
against unlawful search and seizure is personal, and cannot be asserted to challenge the
search or seizure of another person’s property.”); Sisk v. State, 785 N.E.2d 271, 274 (Ind.
Ct. App. 2003) (noting that in order to establish a violation of Fourth Amendment rights,
a defendant must demonstrate that he personally has an expectation of privacy in the
place searched and that his expectation is reasonable).
In Covelli, defendant Covelli, on direct appeal from a conviction for dealing in
cocaine as a class A felony, raised a claim of ineffective assistance of counsel for failure
to raise a Fourth Amendment objection to the admission of cocaine and paraphernalia
which were seized by the police. 579 N.E.2d at 469. The relevant facts were that Covelli
and his girlfriend were returning to their hotel room which was being surveilled by police
pursuant to a tip by the hotel management. Id. Both Covelli and his girlfriend were
carrying several bags when they were returning to the room, and the police searched the
bags and discovered approximately 205 grams of uncut cocaine which led to their arrests.
Id. On appeal, this court addressed the “threshold question” of “whether Covelli has
standing to raise the illegality of the search.” Id. at 472. The court noted that “there is at
12
least some evidence in the record that the bags were commonly owned” and that “[a]s
such, Covelli would have a legitimate interest of privacy in the bags.” Id.Here, the record reveals that Townsend did not own the computer bag and indeed,
that he had recently stolen the bag from the Hillers’ residence. Therefore, Townsend did
not have standing to challenge the admission of the stolen property into evidence as he
had no legitimate expectation of privacy or interest in the stolen property. See also
Chappel v. State, 591 N.E.2d 1011, 1016 (Ind. 1992) (holding that a defendant has no
standing to object to the search of another person’s property).
As noted above, based upon Officer Dennin’s observation of the Hillers’ address
on the tag and his knowledge that a man matching Townsend’s appearance had recently
been observed at the front door of another address without explanation, Officer Dennin
decided to drive to the address listed, which was only a few blocks away. Before placing
Townsend in his vehicle, however, Officer Dennin conducted a pat down for weapons
whereupon he discovered a digital camera.4 Based upon the record, we conclude that a
4
As the State observes in its brief, at the suppression hearing the evidence presented was
“slightly more ambiguous with respect to whether the pat-down occurred before or after the officer
looked at the computer tag.” Appellee’s Brief at 13 n.1. However, to the extent that this testimony
conflicts with what was presented at trial, we note that the evidence presented at trial revealed that Officer
Dennin observed the computer bag, found the presence of the bag suspicious because it was not
mentioned in the description provided by Nichols, observed the address which was not Townsend’s
address on the tag, and searched Townsend after making the decision to drive to the address found on the
tag.
Moreover, we note that even if the search of Townsend occurred prior to Officer Dennin’s
decision to transport Townsend to the Altgeld address, as argued by the State “[t]he discovery of the
digital camera was largely incidental to this whole investigation, and everything would have proceeded
exactly the same even if it had not been discovered.” Appellee’s Brief at 18. The State notes that
“[w]holly apart from the pat-down, Officer Dennin would have looked at the identification tag . . . and
would have seen the information,” that “he would have gone to the Altgeld address and checked with the
owner to determine whether [Townsend] was telling the truth that the computer had been given to him,”
that “he would have discovered the pry marks,” that “Hillers would have confirmed that his wife’s
13
reasonably prudent person in these circumstances would be warranted in believing that
his or her safety or that of others was in danger. See Hailey v. State, 521 N.E.2d 1318,
1320 (Ind. 1988) (holding that the officer was justified in conducting a search of the
defendant for his own safety where the officer knew that the defendant was an identified
suspect in a burglary investigation).5
Finally, to the extent that Townsend asserts that the evidence recovered by the
search or patdown constitutes the “fruit of the poisonous tree,” we disagree. “The ‘fruit
of the poisonous tree’ doctrine is one facet of the exclusionary rule of evidence which
bars the admissibility in a criminal proceeding of evidence obtained in the course of
unlawful searches and seizures.” Nowling v. State, 955 N.E.2d 854, 864 (Ind. Ct. App.
computer was missing” and “would have identified the computer found in [Townsend’s] possession as the
one stolen from their house.” Id. Also, “once Hillers confirmed the taking of his computer, [Townsend]
would have been arrested, and the digital camera would have been discovered in the search incident to
that arrest.” Id. Thus, the admission of the camera was harmless at most. See Fleener v. State, 656
N.E.2d 1140, 1141 (Ind. 1995) (“Errors in the admission or exclusion of evidence are to be disregarded as
harmless error unless they affect the substantial rights of a party.”) (citations omitted).
5
To the extent that Townsend argues that the search was unconstitutional because it concerned
Townsend’s identification, we note that the United States Supreme Court has observed:
Our decisions make clear that questions concerning a suspect’s identity are a routine and
accepted part of many Terry stops. See United States v. Hensley, 469 U.S. 221, 229, 105
S. Ct. 675, 83 L.Ed.2d 604 (1985) (“[T]he ability to briefly stop [a suspect], ask
questions, or check identification in the absence of probable cause promotes the strong
government interest in solving crimes and bringing offenders to justice”); Hayes v.
Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 84 L.Ed.2d 705 (1985) (“[I]f there are
articulable facts supporting a reasonable suspicion that a person has committed a criminal
offense, that person may be stopped in order to identify him, to question him briefly, or to
detain him briefly while attempting to obtain additional information”); Adams v.
Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L.Ed.2d 612 (1972) (“A brief stop of a
suspicious individual, in order to determine his identity or to maintain the status quo
momentarily while obtaining more information, may be most reasonable in light of the
facts known to the officer at the time”).
Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cnty., 542 U.S. 177, 186, 124 S. Ct. 2451, 2458
(2004), reh’g denied.
14
2011) (quoting Morales v. State, 749 N.E.2d 1260, 1268 (Ind. Ct. App. 2001)), clarified
on reh’g, 961 N.E.2d 34 (Ind. Ct. App. 2012), trans. denied. “When applied, the [fruit of
the poisonous tree] doctrine operates to bar not only evidence directly obtained, but also
evidence derivatively gained as a result of information learned or leads obtained during
an unlawful search or seizure.” Id. (quoting Adams v. State, 762 N.E.2d 737, 745 (Ind.
2002)). “To invoke the doctrine, a defendant must show that challenged evidence was
obtained by the State in violation of the defendant’s Fourth Amendment rights.” Id.(quoting Morales, 749 N.E.2d at 1268). Here, because we conclude that there was no
Fourth Amendment violation, the evidence cannot be considered the fruit of a poisonous
tree.
B. Indiana Constitution
Townsend also cites to Article 1, Section 11 of the Indiana Constitution, which
provides for the “right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable search or seizure . . . .” Despite the fact that the text of
Article 1, Section 11 is nearly identical to the Fourth Amendment, Indiana courts
interpret and apply it “independently from federal Fourth Amendment jurisprudence.”
Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001). In conducting analysis under this
provision, we focus on whether the officer’s conduct “was reasonable in light of the
totality of the circumstances.” Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006). In
making this determination, we balance: (1) the degree of concern, suspicion, or
knowledge that a violation has occurred; (2) the degree of intrusion the method of the
15
search or seizure imposes on the citizen’s ordinary activities; and (3) the extent of law
enforcement needs. Id.Here, the record reveals that Officer Dennin received a dispatch and information
on his patrol car computer providing a detailed description of a man that was seen at the
front door of an identified caller, and he began to search the area for someone matching
the description. Officer Dennin came upon Townsend, who matched the description, a
few blocks from where the call originated from, and he approached Townsend on foot
and without a weapon drawn. Upon encountering Townsend and confirming that he had
been at Nichols’s residence, Officer Dennin noticed that he was carrying a bag over his
shoulder and found this to be suspicious because there was no mention of a bag in the
description from dispatch. He asked Townsend what it was to which Townsend replied
that it was his computer and that he had bought it from a friend a couple of days earlier.
Officer Dennin then observed a tag hanging from the bag which had the name Judith
Hillers and the address 730 East Altgeld displayed, which was only a few blocks from
where they were, and Officer Dennin decided to drive to the address with Townsend to
confirm his story. Before doing so, Officer Dennin patted Townsend down for weapons
and discovered a digital camera. Under the circumstances, we conclude that Officer
Dennin’s pat down search of Townsend and the act of turning the tag on the computer
bag did not violate Townsend’s rights under Article 1, Section 11 of the Indiana
Constitution.
16
In summary, we conclude that the trial court did not abuse its discretion in
admitting the evidence challenged by Townsend under the Fourth Amendment or Article
1, Section 11 of the Indiana Constitution.
For the foregoing reasons, we affirm Townsend’s conviction for burglary as a
class B felony.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
17