Michael D. Johnson v. State of Indiana

IN THE
Indiana Supreme Court
Supreme Court Case No. 20S-CR-655 FILED
Dec 01 2020, 9:46 am
Michael D. Johnson CLERK
Indiana Supreme Court
Appellant (Defendant below) Court of Appeals
and Tax Court
–v–
State of Indiana
Appellee (Plaintiff below)
Argued: June 29, 2020 | Decided: December 1, 2020
Appeal from the Madison Circuit Court,
No. 48C01-1602-F5-402
The Honorable Angela G. Warner Sims, Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 19A-CR-975
Opinion by Justice Massa
Chief Justice Rush and Justices David and Goff concur.
Justice Slaughter dissents with separate opinion.
Massa, Justice.
Michael Johnson offered to sell a substance he called “white girl” to a
stranger at Hoosier Park Casino in Anderson. After the solicited patron
reported the incident to security, and the account was verified by video
surveillance, a Gaming Enforcement Agent led Johnson back to an
interview room. Once they entered the room, the agent told Johnson that
he would need to pat him down. Upon this pat-down, the agent
immediately felt what he deemed a “giant ball” in Johnson’s pocket.
Consistent with his training, the agent immediately believed this lump
was packaged drugs, and after removing the baggie containing white
powder from Johnson’s pocket, placed him under arrest.
At his trial, the court admitted, over Johnson’s objection, the evidence
stemming from the pat-down. Because we find that the agent had
reasonable suspicion that criminal activity was afoot (so he could stop
Johnson), that Johnson could be armed and dangerous (so he could pat
Johnson down after entering a confined space), and the lump in Johnson’s
pocket was immediately apparent as contraband (so it could be seized),
we affirm the admission of the evidence because the search and seizure
proceeded within the bounds of the Fourth Amendment.
Facts and Procedural History
After hours of playing quarter slots with a friend at Hoosier Park
Casino in Anderson, Brett Eversole was tired and fighting to stay awake
on November 8, 2015. Just before he began to doze off, Eversole was
approached by a stranger—Michael Johnson, the defendant in this case—
who offered to sell him some “white girl.” Tr. Vol. 2, pp. 87–89. Believing
that this slang referred to cocaine, or less likely in his view a prostitute,
and having no interest in either, Eversole rejected Johnson’s offer.
Rebuffed, Johnson walked away. After consulting with his friend about
what “white girl” might mean, Eversole decided to tell security officers
that a “man approached me when I was sitting at a slot machine and
offered to sell me some drugs, I believe, and he called it white girl.” Id.,
p.92. A security supervisor then sought video surveillance that would
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 2 of 13
show the encounter and “notified the gaming commission[,] who are law
enforcement on the property.” Id., p.100.
After viewing the soundless video and conferring with Eversole,
Gaming Enforcement Agent Zach Wilkinson—who was a thirteen-year
law enforcement veteran specially trained in “issues inside the casino,”
including “drug trends” and “criminal issues”—quickly located Johnson
because the Casino “wasn’t super crowded at that moment” and Johnson
was easy to identify from Eversole’s description and the video’s depiction.
Id., pp. 103–04, 109. Agent Wilkinson then told him that there had been “a
report of him attempting to sell drugs to casino patrons,” and Johnson
“voluntarily [went] back to the [gaming commission’s] interview room.”
Id., p.111.
After entering the room, Agent Wilkinson informed Johnson that he
“needed to pat him down.” 1 Id. Upon this pat-down, Agent Wilkinson
skimmed over a lump that—through his mandated yearly “training for
identification of drug[s] by feel or by sight”—felt like a “ball of drugs.” Id.,
pp. 113–14. After Agent Wilkinson removed a baggie filled with “white
powder” from Johnson’s pocket, he placed him under arrest. Id., p.114.
Although this substance appeared to be cocaine, later testing merely
revealed it to be sodium bicarbonate, also known as baking soda. The
State later charged Johnson with “dealing in a look-a-like-substance,” a
Level 5 felony under Indiana Code section 35-48-4-4.6. After
unsuccessfully moving to suppress the admission of any evidence flowing
from the search, a jury convicted Johnson of the charge, and he appealed,
renewing his argument under the Fourth Amendment.
The Court of Appeals reversed. While stating that “[i]t is incumbent
upon the State to prove that the measures it used to conduct a search and
seize evidence were constitutional,” the panel also implied that the State
must parry every constitutional attack by refuting any claim that
1Although Johnson’s attorney asserted during oral argument that the pat-down occurred
outside the room, Agent Wilkinson repeatedly testified that it occurred inside the room. This
discrepancy does not impact the outcome.
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 3 of 13
“suggests alternative scenarios” for how evidence was obtained. Johnson v.
State, 137 N.E.3d 1038, 1043–44 (Ind. Ct. App. 2019), reh’g denied, vacated.
Ultimately, even though “Agent Wilkinson would arguably have . . .
developed probable cause for an arrest,” the court concluded that “the
evidence does not dispel concern that the ball of powder retrieved from
Johnson’s pocket was obtained in violation of his Fourth Amendment
right to be free from an unlawful search and seizure.” Id. at 1044.
The State sought transfer, which we now grant.
Standard of Review
“The trial court has broad discretion to rule on the admissibility of
evidence.” Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017) (citation
omitted). Ordinarily, we review evidentiary rulings for an abuse of
discretion and reverse only when admission is clearly against the logic
and effect of the facts and circumstances. Id. But when a challenge to an
evidentiary ruling is based “on the constitutionality of the search or
seizure of evidence, it raises a question of law that we review de novo.” Id.Discussion and Decision
“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.2
The Fourth Amendment, then, generally requires warrants for searches
and seizures, and any “warrantless search or seizure is per se
unreasonable.” Jacobs v. State, 76 N.E.3d 846, 850 (Ind. 2017) (quotation
omitted). “As a deterrent mechanism, evidence obtained in violation of
2Although Johnson offhandedly mentioned Article 1, Section 11 of our Indiana Constitution,
he has waived the assertion for lack of specific argument.
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 4 of 13
this rule is generally not admissible in a prosecution against the victim of
the unlawful search or seizure absent evidence of a recognized exception.”
Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). While the State can
overcome this bar to admission by proving “that an exception to the
warrant requirement existed at the time of” a warrantless search, Bradley
v. State, 54 N.E.3d 996, 999 (Ind. 2016) (quotation omitted), it need not
disprove every alternative explanation forwarded by a defendant.
Although the parties and the courts below largely focused on whether
there was probable cause to arrest Johnson at the time of the search
(potentially bringing the seizure within the search-incident-to-arrest
exception to the Fourth Amendment), there is a clearer path to sustaining
the evidence’s admission: “the encounter was along the lines of a Terry
stop.” Appellant’s Br. at 10. To determine, then, whether the evidence here
should be suppressed, we must resolve three issues: (1) whether Agent
Wilkinson had justification to stop Johnson under Terry; (2) whether
Agent Wilkinson could perform a Terry frisk of Johnson; and (3) whether
Agent Wilkinson could seize the baggie felt in Johnson’s pocket.
Answering yes to each in turn, we hold the evidence admissible.
I. Agent Wilkinson was justified in stopping
Johnson under Terry after watching the video and
talking to Eversole.
An officer can stop a person if the officer “observes unusual conduct
which leads him reasonably to conclude in light of his experience that
criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). While
this stop requires less than probable cause, an officer’s reasonable
suspicion demands more than just a hunch: “the police officer must be
able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant [the] intrusion.”
Id. at 21.
Agent Wilkinson knew that Eversole, a disinterested third-party,
informed security officers that Johnson had tried to sell him “white girl,”
which he believed to be cocaine and believed was offered because the
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 5 of 13
stimulating effect of the drug could perk him up when he was nearly
asleep. See Adams v. Williams, 407 U.S. 143, 146 (1972) (“The informant here
came forward personally to give information that was immediately
verifiable at the scene.”). Eversole stayed at the scene, and confirmed this
account with Agent Wilkinson, subjecting himself to false informing if he
concocted the story. See Illinois v. Gates, 462 U.S. 213, 233–34 (1983) (“[I]f an
unquestionably honest citizen comes forward with a report of criminal
activity—which if fabricated would subject him to criminal liability—we
have found rigorous scrutiny of the basis of his knowledge
unnecessary.”); Kellems v. State, 842 N.E.2d 352, 355 (Ind. 2006) (“[T]he
prospect of prosecution for making a false report heightens the likelihood
of the report’s reliability.”), rev’d on reh’g on other grounds; Ind. Code § 35-
44.1-2-3(d) (2015) (“A person who . . . gives a false report of the
commission of a crime or gives false information in the official
investigation of the commission of a crime, knowing the report or
information to be false . . . commits false informing.”). Because
“informants who come forward voluntarily are ordinarily motivated by
good citizenship or a genuine effort to aid law enforcement officers in
solving a crime,” Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010), there is
scant reason to doubt the veracity of Eversole’s account.
And ensuing police work bolstered the impartial tip. Surveillance video
confirmed Eversole’s narrative, and the man in the video matched his
earlier description of Johnson. See McGrath v. State, 95 N.E.3d 522, 528
(Ind. 2018) (holding that an “independent investigation to confirm the
street address, the color of the house, the names of the occupants, and the
bright light” sufficiently augmented an anonymous tip to form probable
cause that a house was being used to grow marijuana). Relatively few
patrons populated the casino, narrowing the field of suspects who could
match the specific description and depiction of Johnson. Abel v. State, 773
N.E.2d 276, 279 (Ind. 2002) (finding reasonable suspicion supported when
suspect “fit the general description of the sought-after person, was in the
general area, and it was the early morning hours”) (quotation omitted).
When “a tip from an identified informant or concerned citizen [is] coupled
with some corroborative police investigation,” an officer has “reasonable
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 6 of 13
suspicion for an investigative stop.” Kellems, 842 N.E.2d at 353. Agent
Wilkinson had reasonable suspicion to stop Johnson under Terry.
II. Agent Wilkinson could perform a Terry frisk of
Johnson after they entered the interview room
because it was reasonable to believe he was armed
and dangerous.
On appeal, Johnson asserted that even if reasonable suspicion
supported a Terry stop, “the pat down search that revealed the substance
exceeded the allowable legal scope” because “there was no evidence in the
record that would have led officers to believe that Johnson was either
armed or dangerous.” Appellant’s Br. at 11–12 (emphasis added). Not so.
After making a Terry stop, an officer may, if he has reasonable fear that a
suspect is armed and dangerous, frisk the outer clothing of that suspect to
try to find weapons. Terry, 392 U.S. at 27. The purpose of this protective
search “is not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence.” Minnesota v. Dickerson,
508 U.S. 366, 373 (1993) (quotation omitted). “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.” Terry, 392 U.S. at 27.
To determine whether an officer acted reasonably, we consider the
specific, reasonable inferences that the officer, in light of his experience,
can draw from the facts. Id. Here, the facts supported the reasonableness
of the pat-down: Agent Wilkinson suspected Johnson of trying to sell
drugs and was about to interview him one-on-one in a small windowless
room early in the morning.
“[C]ourts have often considered evidence of drug involvement as part
of the totality of the circumstances contributing to an officer’s reasonable
belief that a subject is armed and dangerous.” Patterson v. State, 958 N.E.2d
478, 486 (Ind. Ct. App. 2011). While our Court of Appeals has held that
evidence of marijuana use by a driver may not create a reasonable fear
that a suspect is armed, see Rybolt v. State, 770 N.E.2d 935, 941 (Ind. Ct.
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 7 of 13
App. 2002) (holding pat-down unjustified when officer merely believed
“that individuals who use narcotics also carry weapons”), trans. denied,
further evidence of other criminal activity can, see, e.g., Durstock v. State,
113 N.E.3d 1272, 1277 (Ind. Ct. App. 2018) (holding pat-down search
justified when officers, among other things, believed that a suspect “was
involved in drug activity” and other evidence revealed that the situation
could be dangerous—a loaded gun was found in an adjacent bathroom
the suspect had just left), trans. denied. What’s more, “the right to frisk is
automatic whenever the suspect has been stopped upon the suspicion that
he has committed, was committing, or was about to commit a type of
crime for which the offender would likely be armed,” in that case, a
burglary. N.W. v. State, 834 N.E.2d 159, 165–66. (Ind. Ct. App. 2005)
(cleaned up), trans. denied.
Based on the facts of this case, a reasonably prudent officer in Agent
Wilkinson’s position would believe that his safety was potentially in
danger. All information available to Agent Wilkinson suggested that
Johnson, unlike the defendant in Rybolt, was trying to sell drugs—a crime
for which Johnson could possibly be armed—to strangers on a casino
floor. As the Supreme Court has acknowledged, officers know that it is
“common for there to be weapons in the near vicinity of narcotics
transactions.” Illinois v. Wardlow, 528 U.S. 119, 122 (2000); see also Parker v.
State, 662 N.E.2d 994, 999 (Ind. Ct. App. 1996) (“Based on the informant’s
tip, he believed that narcotics would be present. . . . [The officer] knew . . .
that firearms were frequently present in drug transactions.”), trans. denied.
“[F]irearms are ‘tools of the trade.’” United States v. Gilliard, 847 F.2d 21, 25
(1st Cir. 1988) (quoting United States v. Trullo, 809 F.2d 108, 113 (1st Cir.
1987)); see also Swanson v. State, 730 N.E.2d 205, 211 (Ind. Ct. App. 2000)
(acknowledging that “it is not uncommon for drug dealers to carry
weapons”), trans. denied. Agent Wilkinson’s suspicion that Johnson
attempted to sell drugs—supported by Eversole’s statements and
surveillance footage—helped justify the pat-down.
Whether a Terry stop occurs in a confined space can impact the
reasonableness of the subsequent pat-down. See United States v. Post, 607
F.2d 847, 852 (9th Cir. 1979). An experienced officer, “enclosed in a small
room with a man he reasonably suspects to be a dealer in narcotics, [does
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 8 of 13
not have to] be certain that a suspect is armed before he can make a
limited pat-down for weapons.” Id. Here, Agent Wilkinson spoke with
Johnson alone in the “pretty small” windowless interview room. Tr. Vol.
1, p.77. Given his “close proximity” to Johnson as they were about to
discuss the attempted drug sale, it was reasonable for Agent Wilkinson to
pat down Johnson. United States v. $109,179 in U.S. Currency, 228 F.3d
1080, 1086–87 (9th Cir. 2000); see also United States v. $84,000 U.S. Currency,
717 F.2d 1090, 1099 (7th Cir. 1983). The fact that another agent helped
escort Johnson to the room and was, presumably, in the area does not
make Agent Wilkinson’s decision any less reasonable. See Post, 607 F.2d at
852 (finding a pat-down reasonable even after “[f]our agents stopped and
accompanied [the suspect] to the interview room” when only one agent
entered the room with the suspect). The one-on-one nature of the
interview also increased the danger for Agent Wilkinson. See id.; $84,000
U.S. Currency, 717 F.2d at 1099 (finding a pat-down justifiable when
agents were “in a two-on-two situation” in a confined space). In a small
confined space, it would have been easy for a suspect to attack Agent
Wilkinson. Here, being alone with Johnson—suspected of trying to sell
drugs—in the small interview room supports the reasonableness of Agent
Wilkinson’s pat-down.
Courts also consider “the time of day” to evaluate the reasonableness of
a Terry frisk. United States v. Johnson, 921 F.3d 991, 998 (11th Cir. 2019) (en
banc), cert. denied, 140 S. Ct. 376. Whether a frisk occurs early in the
morning may impact its reasonableness. See id. (upholding frisk after
considering that police found the suspect after 4:00 A.M.); Abel, 773 N.E.2d
at 279; N.W., 834 N.E.2d at 166 (a pat-down was justified partially because
“it was early in the morning”). Here, the attempted sale took place a little
before 7:00 A.M., and Agent Wilkinson first learned of it at 7:15 A.M.
Because Agent Wilkinson had limited, if any, knowledge about Johnson’s
activities earlier that morning and the previous evening, it was reasonable
for him to believe Johnson may have been armed and dangerous. Of
course, not every act—nor every suspected crime—that occurs at an early
hour automatically allows for a pat-down. But here, when combined with
the suspected crime of selling drugs and the small interview room, the
time furthers the pat-down’s reasonableness.
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 9 of 13
“[T]o pursue his investigation without fear of violence,” Dickerson, 508
U.S. at 373 (quotation omitted), Agent Wilkinson patted down Johnson
after they entered the interview room. Johnson’s suspected crime, the
small interview room, and the early morning hour all support finding
Agent Wilkinson’s decision to pat down Johnson was reasonable.
III. Agent Wilkinson could seize the baggie when he
immediately identified the lump as contraband
the moment he grazed Johnson’s pocket.
Johnson urged that the “pat down exceeded the scope of a pat down
[u]nder Terry” when Agent “Wilkinson testified that upon feeling the item
in Johnson’s pocket he knew that it was not a weapon.” Appellant’s Br. at
11–12. But this argument ignores later Supreme Court development of
Terry, notably Dickerson. “If a police officer lawfully pats down a suspect’s
outer clothing and feels an object whose contour or mass makes its
identity immediately apparent”—even if that item is not a weapon—
“there has been no invasion of the suspect’s privacy beyond that already
authorized by the officer’s search for weapons.” Dickerson, 508 U.S. at 376.
When, for example, an officer performing a pat-down search for
weapons “felt a ‘tubular object’ in [a suspect’s] pocket that was ‘consistent
with being a syringe,’” it could be seized under Terry because its “identity
was immediately apparent.” Durstock, 113 N.E.3d at 1278. Contraband
was properly seized when officers “testified they immediately recognized
[it], based on their experience and training, to be marijuana based on
its feel.” Holbert v. State, 996 N.E.2d 396, 400 (Ind. Ct. App. 2013), trans.
denied. When an officer during a lawful pat-down “felt an object located in
[a suspect’s] right front pants pocket, which she immediately recognized
as ‘narcotics’ . . . due to its texture, describing it as ‘lumpy’ and ‘wadded,’”
the seizure tracked the Fourth Amendment’s strictures. Patterson, 958
N.E.2d at 487–88. When, during a weapons frisk, an officer “felt an object,
located in [a suspect’s] left front pants pocket, which he recognized, based
on its packaging, shape, and feel to be rock cocaine,” the unlawful nature
of the object was again immediately apparent and its seizure permissible.
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 10 of 13
Wright v. State, 766 N.E.2d 1223, 1233–34 (Ind. Ct. App. 2002). When an
officer “conducted a pat down search for weapons” and “noticed a hard
object” in a suspect’s left front shorts pocket, he “immediately determined
its incriminating character” as cocaine, justifying its seizure. Parker, 662
N.E.2d at 999. And when an officer “determined contemporaneously with
his patdown search for weapons that the item in [a suspect’s] pocket was
marijuana,” its seizure was Terry-authorized. Bratcher v. State, 661 N.E.2d
828, 832 (Ind. Ct. App. 1996).
On the other hand, if an officer must manipulate or further examine an
object before its nature as contraband becomes apparent, the search
exceeds Terry’s scope. See Dickerson, 508 U.S. at 378 (holding search
unreasonable when “the officer determined that the lump was contraband
only after squeezing, sliding and otherwise manipulating the contents of
the defendant’s pocket—a pocket which the officer already knew
contained no weapon”) (quotation omitted). In other words, “the
reasonable suspicion that gives authority to a Terry stop does not, without
more, authorize the examination of the contents of items carried by the
suspicious person.” Berry v. State, 704 N.E.2d 462, 466 (Ind. 1998)
(emphasis added). A seizure violated the Fourth Amendment, for
example, when an officer “did not claim that he could detect, from the
limited touch, the incriminating nature of the object,” but instead just
“suspected the object was something illegal[,] . . . ‘possibly a weapon.’”
Peele v. State, 130 N.E.3d 1195, 1200 (Ind. Ct. App. 2019) (quotation
omitted). An unlawful seizure occurred when an officer felt and removed
a pen cap from a suspect then, “‘upon further investigation and looking at
it,’ he saw a baggie hanging from the pen cap, and based on previous
experiences of finding narcotics in baggies in pen caps, he suspected that
this baggie contained narcotics.” Clanton v. State, 977 N.E.2d 1018, 1026
(Ind. Ct. App. 2012). And a seizure exceeded Terry when an officer
removed a bottle from a suspect’s “pocket during a patdown for weapons,
but the contraband was detected only after [the officer] shined a light into
the bottle and opened it.” Harris v. State, 878 N.E.2d 534, 539 (Ind. Ct. App.
2007), trans. denied.
During the pat-down in the interview room, Agent Wilkinson quickly
encountered something that “felt like a giant ball” in Johnson’s pocket. Tr.
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 11 of 13
Vol. 2, p.113. Agent Wilkinson immediately recognized, consistent with
his training and knowledge of the situation at hand, all the apparent
hallmarks of narcotics packaged for sale: the lump felt “like a ball of
drugs.” Id. Once the contour or mass is at once identified as contraband, as
here, “its warrantless seizure [is] justified.” Dickerson, 508 U.S. at 375–76.
Because Agent Wilkinson discerned the lump to be contraband as soon as
he felt it without further manipulation, he was justified in seizing the
powder-filled baggie from Johnson’s pocket. This “patdown search did
not run afoul of the Fourth Amendment, and therefore the trial court did
not abuse its discretion in admitting evidence obtained as a result.”
O'Keefe v. State, 139 N.E.3d 263, 268 (Ind. Ct. App. 2019).
Conclusion
Agent Wilkinson lawfully removed the baggie from Johnson’s pocket
after immediately identifying it as contraband during the reasonable pat-
down search. Because this seized evidence was properly admitted under
the Fourth Amendment, we need not entertain any alternative
explanations that could theoretically foreclose the baggie’s admission. We
affirm.
Rush, C.J., and David and Goff, JJ., concur.
Slaughter, J., dissents with separate opinion.
ATTORNEYS FOR APPELLANT
Paul J. Podlejski
Law Office of Paul J. Podlejski
Anderson, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Stephen R. Creason
Chief Counsel
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 12 of 13
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 13 of 13
Slaughter, J., dissenting.
The Court holds that the officer’s frisk of defendant, Michael Johnson,
did not violate the Fourth Amendment. I agree with the Court that this is
a close case. But I cannot join the Court’s careful analysis and write briefly
to explain why.
The issue here is when a law-enforcement officer can search a person’s
outer clothing for weapons during an investigative stop—commonly
known as a Terry stop and frisk. In Terry v. Ohio, 392 U.S. 1 (1968), the
Supreme Court struck a fragile balance between a person’s rights under
the Fourth Amendment and legitimate law-enforcement needs. Balancing
these interests, Terry mandates that law enforcement may use a “self-
protective search for weapons”—a frisk—only if an officer can “point to
particular facts from which he reasonably inferred that the individual was
armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64 (1968).
Under this framework, the Court finds that Johnson’s frisk was
permissible for three reasons. One, the officer received a tip that Johnson
offered to sell “white girl”—a street term for cocaine—to a casino patron.
Two, the tip occurred about 7 a.m. Three, the officer was one-on-one with
Johnson in a small room. Ante, at 7. As the Court recognizes, Johnson’s
suspected drug activity is the most suggestive that he might be armed and
dangerous. Id. at 8. But, as the Court also recognizes, this alone is not
enough. Id. at 7–8; United States v. Lopez, 907 F.3d 472, 486 (7th Cir. 2018)
(“The authority to frisk is not automatic in a drug investigation.”).
Unlike the Court, I do not find that Johnson’s suspected drug activity,
in combination with the time of the encounter and the fact that the officer
was alone in a room with Johnson, gives rise to the crucial inference Terry
requires. These facts do not suggest that Johnson was armed and
dangerous. As to the timing, nothing in the record connects the early
morning with any likelihood that Johnson (or any other casino patron)
was armed. For instance, there is no evidence that 7 a.m. is a unique time
when casino patrons, or even drug dealers in casinos, are more likely to be
armed. As to the location, while a weapon may be more dangerous in a
small, closed-off space, this location does not suggest that Johnson was
armed in the first place. Yet that is the necessary inference. Because
neither the time nor the location gives rise to the inference that Johnson
was armed, Terry’s critical link is missing, and this protective weapons
search was unconstitutional.
Admittedly, this is a fine point on which to disagree. But Terry draws
an intentionally fine line—one I do not wish to see eroded. After all, a
frisk is not merely a “petty indignity . . . [but] a serious intrusion upon the
sanctity of the person,” and one that can “inflict great indignity and
arouse strong resentment.” Terry, 392 U.S. at 17. Because law enforcement
provides a vital service, this intrusion will often be worth the cost. But to
protect rights guaranteed under the Fourth Amendment, we must respect
Terry’s limitation.
For these reasons, I respectfully dissent.
Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 2 of 2