Sidney A. Berry v. State of Indiana , 121 N.E.3d 633 ( 2019 )

FILED
Apr 04 2019, 6:17 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
Anthony S. Churchward, P.C. Attorney General of Indiana
Fort Wayne, Indiana Angela Sanchez
Assistant Section Chief
Caryn N. Szyper
Evan M. Comer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sidney A. Berry, April 4, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1769
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1604-F4-29
Mathias, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1769 | April 4, 2019 Page 1 of 11
[1] This matter presents on interlocutory appeal from the Allen Superior Court’s
denial of Berry’s motion to suppress evidence he argues was obtained through
an unlawful and unreasonable search and seizure.1
[2] We affirm.
Facts and Procedural History
[3] Around 9:30 p.m. on March 29, 2016, Detective Marc Deshaies of the Fort
Wayne Police Department (“FWPD”) was patrolling a high-crime residential
area on the southeast side of Fort Wayne in an unmarked police vehicle. He
was accompanied by Sergeant Hensler, also with the FWPD. It was dark
outside, and as Detective Deshaies turned the corner, he observed a group of
three males in the street near an unoccupied vehicle emitting loud music and
parked close to the corner. The presence of the men in the street obstructed him
from “turning the corner and easily continuing on.” Tr. p. 10. He did not
observe any other traffic that was being obstructed, nor had he received any
complaints or prior information regarding these men in the street.
[4] Detective Deshaies had to stop his car because of the position of the men, and
the men all backed up toward the car near which they had congregated. Each of
the men was holding a beer bottle and appeared to be drinking. Detective
Deshaies, along with Sergeant Hensler, wearing their FWPD uniforms,
1
We held oral argument on this matter on March 13, 2019 at Cathedral High School. We thank Cathedral
High School for hosting us and counsel for their excellent advocacy.
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stopped, exited their vehicle, and began to walk toward the group of men
congregated around the vehicle. Detective Deshaies testified that when they
exited the police vehicle, “it was decided that we were just going to simply exit
the car, contact them, maybe speak to them about standing in the middle of the
street or the violations of loud music or public intoxication for drinking in
public.” Tr. pp. 9–10.
[5] Detective Deshaies testified that he did not display his weapon or speak in a
tone that would mandate compliance. As they approached the group of men,
Berry looked at Detective Deshaies, appeared to take “great notice” of their
presence, began to back up, dropped his beer bottle on the ground, and looked
around to the left and then to the right and back at the officers. Tr. pp. 11–12.
Berry moved his hands down toward his waist and then placed his hands in his
pockets. Detective Deshaies testified this behavior led him to believe that Berry
was “most likely preparing to flee.” Tr. p. 12. Detective Deshaies also observed
a large bulge at the front left side of Berry’s waist. The Detective understood
this to be a location where individuals commonly carry firearms, and he
testified that, at the time, he believed the large bulge on the waist line to be “the
outline of a handgun handle in his waistline.” Tr. p. 27. As Detective Deshaies
did not observe significant behavior from the other two men, he decided to
engage Berry first.
[6] As Detective Deshaies approached Berry, Berry stared at him and “continued
to back up.” Tr. p. 13. Once he came within a few feet of Berry, the Detective
was able to detect the smell of marijuana. Detective Deshaies asked Berry if he
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had a weapon, and Berry responded that he did not. The detective then told
Berry that he was concerned for his safety and informed Berry that he was
going to conduct a pat-down search for weapons. Berry complied, placing his
hands on his head, and the Detective began conducting a pat-down search of
Berry’s clothing. Detective Deshaies did not begin his search with the bulge at
Berry’s waistline, but rather, he began the standard pat-down search, on the
right side of his body. As he went over Berry’s pocket, from his training and
experience, he recognized a bag of marijuana. He indicated to Berry that he was
not worried about marijuana. As he completed the pat-down, the Detective
also discovered that the bulge he had observed on Berry’s waistline was an
iPhone Plus inside a leather cell phone case that had been clipped to Berry’s
belt. This phone had been concealed under Berry’s clothing.
[7] Because of the smell of marijuana and because he knew there was marijuana in
Berry’s pocket, Detective Deshaies placed handcuffs on Berry. After
handcuffing Berry, the Detective removed two bags from Berry’s pocket. One
bag contained solely marijuana, and the other contained marijuana, crack
cocaine, and powder cocaine.
[8] Berry was charged with Level 4 felony possession of cocaine or narcotic drug
and a Class B misdemeanor possession of marijuana. Berry moved to suppress
the drug evidence discovered during his arrest, and on July 9, 2018, the trial
court held a hearing. Detective Deshaies served as the sole witness. After the
hearing, the trial court denied Berry’s motion to suppress. Berry then filed, and
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we granted, this interlocutory appeal asking for review of the trial court’s
decision not to suppress the evidence of the drugs obtained from his person.
Discussion and Decision
I. Standard of Review
[9] A review of a denial of a motion to suppress must examine whether substantial
evidence of probative value exists to support the trial court’s denial of the
motion. Taylor v. State, 689 N.E.2d 699, 702 (Ind. 1997). To deter violations of
the Fourth Amendment’s protections against unreasonable searches and
seizures, evidence obtained in violation of the Fourth Amendment generally is
not admissible in a prosecution of the citizen whose right was violated. Clark v.
State, 994 N.E.2d 252, 260 (Ind. 2013). The State has the burden of
demonstrating the admissibility of the evidence collected during a seizure or
search. Id.
[10] The reviewing court must examine not only the evidence favorable to the trial
court’s judgment but also the uncontested evidence favorable to the defendant.
Johnson v. State, 829 N.E.2d 44, 47 (Ind. Ct. App. 2005), trans. denied. No
evidence shall be reweighed upon review, and all conflicting evidence will be
considered most favorable to the trial court’s ruling. Marlowe v. State, 786
N.E.2d 751, 753 (Ind. Ct. App. 2003). The trial court’s ruling shall be affirmed
if it is supported by substantial evidence of probative value. Willingham v. State,
794 N.E.2d 1110, 1113 (Ind. Ct. App. 2003); Scott v. State, 883 N.E.2d 147, 152
(Ind. Ct. App. 2008). However, the ultimate determination of reasonable
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suspicion to support an investigative stop is reviewed de novo. Guilmette v. State,
14 N.E.3d 38, 40–41 (Ind. 2014).
II. Fourth Amendment to the U.S. Constitution
[11] The Fourth Amendment to the United States Constitution provides the right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. U.S. Const. amend. IV. However, officers
are allowed to conduct seizures in the presence of reasonable suspicion to pat-
down clothing of individuals for possible weapons. Bell v. State, 81 N.E.3d 233,
239 (Ind. Ct. App. 2017), trans. denied. Upon review, courts “cannot blind
ourselves to the need for law enforcement officers to protect themselves and
other prospective victims of violence in situations where they may lack probable
cause for an arrest.” Terry v. Ohio, 392 U.S. 1, 24 (1968). This narrowly drawn
authority “permit[s] 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.” Id. at 27. 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.
[12] The search, however, must be confined “strictly to what [is] minimally
necessary to learn whether [an individual is] armed and to disarm them” once a
weapon or weapons are discovered. Id. at 30. “A search for weapons in the
absence of probable cause to arrest, however, must, like any other search, be
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strictly circumscribed by the exigencies which justify its initiation.” Id. at 25–26
(citing Warden v. Hayden, 387 U.S. 294, 310 (1967)). “[I]n justifying the
particular intrusion the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Id. at 21. “[S]imple ‘good faith on the part
of the arresting officer is not enough.’” Id. at 22.
[13] Here, many factors formed Detective Deshaies’s objectively reasonable basis to
believe that Berry may have been armed and potentially posed a threat to officer
or public safety. Initially, Berry demonstrated concerning behavior as he was
approached by uniformed police. He dropped his beer bottle, backed away,
looked side to side, reached his hands down toward his waist, and placed his
hands in his pockets. Significantly, the other two men present did not exhibit
these behaviors. The fact that the men were congregating in the middle of the
street after dark in a high-crime area known for gun violence, murder, and drug
activity is also a legitimate factor in the formation of Detective Deshaies’s
objectively reasonable basis. Additionally, Detective Deshaies observed a large
bulge that appeared as if it could be the outline of a gun handle at the front left
side of Berry’s waist. We determine that all of these factors, taken together,
appropriately formed an objectively reasonable basis for Detective Deshaies to
perform the pat-down in accordance with the Fourth Amendment.
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III. Article 1, Section 11 of the Indiana Constitution
[14] Berry also challenges the denial of his motion to suppress under Article 1,
Section 11 of the Indiana Constitution. Article 1, Section 11 of the Indiana
Constitution reads:
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.
[15] When analyzing Article 1, Section 11 of the Indiana Constitution, “[i]nstead of
focusing on the defendant’s reasonable expectation of privacy, we focus on the
actions of the police officer and employ a totality-of-the-circumstances test to
evaluate the reasonableness of the officer’s actions.” Duran v. State, 930 N.E.2d
10, 17 (Ind. 2010) (internal citations omitted). Litchfield v. State, 824 N.E.2d 356,
361 (Ind. 2005) establishes the test for the reasonableness of a search or seizure
pursuant to Article 1, Section 11 of the Indiana Constitution. The Litchfield test
balances: 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.
It is the State’s burden to show its intrusion was reasonable. State v. Bulington,
802 N.E.2d 435, 438 (Ind. 2004).
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A. Degree of Suspicion
[16] In evaluating the degree of suspicion, courts consider “the reasonableness of the
officers’ assumptions, suspicions, or beliefs based on the information available
to them at the time.” Duran v State, 930 N.E.2d at 18.
[17] The State argues that the Detective’s concern was “high enough” to warrant the
decision to check for weapons due to Berry’s “fight or flight” behavior, looking
around nervously, and dropping his hands to his pockets, the unidentified bulge
at Berry’s waistline, and the other factors argued in conjunction with the federal
analysis such as his presence in a high-crime area. Although Berry argues that
he was compliant with the pat-down, followed the detective’s directions to
place his hands on his head, and did not become angry or use profanity, these
arguments do not address the factors the State identifies as contributing to the
reasonableness of the suspicions that led Detective Deshaies to perform the pat-
down.
B. Degree of Intrusion
[18] The degree of intrusion is evaluated from the defendant’s point of view. Duran,
930 N.E.2d at 18. An “ordinary” pat-down of the outside of a suspect’s clothing
is a fairly limited intrusion for the purposes of the Indiana Constitution. J.R. v.
State, 89 N.E.3d 408, 412 (Ind. Ct. App. 2017), trans. granted, summarily aff’d in
relevant part, 100 N.E.3d 256 (Ind. 2018). We have also previously held that
police are not required to wait until an individual appears to be reaching for a
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weapon in order to ensure his safety and the safety of the others at the scene.
Wilson v State, 745 N.E.2d 789, 792 (Ind. 2001).
[19] Here, Detective Deshaies testified that he performed the pat-down in the same
manner he performs all pat-downs. He also testified that, in his training and
experience, “weapons can obviously be secretive in several big areas, ankle
holsters, waistlines, pockets, shoulder holsters[.]” Tr. p. 13. He also testified
that pat-downs should be conducted in the same manner —or in a very clear
pattern —so they do not miss any area. Tr. p. 13. There is nothing in the record
that persuades us that the pat-down at issue was anything other than an
ordinary pat-down, and the intrusion here was minimal.
C. Extent of Law Enforcement Needs
[20] Berry argues that the extent of the law enforcement needs in these
circumstances was low, largely because there were two officers present.
However, the State points out that, although there were two officers present,
and although Berry was the only individual exhibiting unusual behavior prior to
his pat-down, there were two other men with him. Detective Deshaies testified
that, while he was engaging Berry, Sergeant Hensler was “[d]ealing with the
other two males.” Tr. p. 14.
[21] Weighing the degree of suspicion, the degree of intrusion, and the law
enforcement needs, we cannot say that the pat-down conducted in this matter
violated Article 1, Section 11 of the Indiana Constitution.
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Conclusion
[22] Detective Deshaies had sufficient basis under both the Fourth Amendment to
the United States Constitution and Article 1, Section 11 of the Indiana
Constitution to perform a safety pat-down of Berry. Accordingly, we uphold the
trial court’s denial of Berry’s motion to suppress.
[23] Affirmed.
Vaidik, C.J., and Kirsch, J., concur.
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