FILED
Dec 19 2019, 9:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paul J. Podlejski Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael D. Johnson, December 19, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-975
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Angela G.
Appellee-Plaintiff. Warner Sims, Judge
Trial Court Cause No.
48C01-1602-F5-402
Bailey, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019 Page 1 of 10
Case Summary
[1] Michael D. Johnson (“Johnson”) appeals his conviction for Dealing in a Look-
a-like Substance, as a Level 5 felony.1 Johnson presents the sole issue of
whether the trial court abused its discretion in admitting evidence obtained in
violation of his Fourth Amendment right to be free from an unreasonable
search and seizure.2 We reverse.
Facts and Procedural History
[2] On November 8, 2015, Brett Eversole (“Eversole”) was a gambling patron at
the Hoosier Park Casino in Anderson, Indiana. Eversole reported to a security
officer that a black male wearing a white hat had approached him at a gambling
machine and asked if he “wanted to buy white girl.” (Tr. Vol. II, pg. 89.)
Eversole assumed “white girl” meant cocaine. The security officer notified shift
supervisor Matt Miller (“Miller”), who notified Gaming Enforcement Agent
1
Ind. Code § 35-48-4-4.6(a)(5).
2
Johnson briefly references Article 1, Section 11 of the Indiana Constitution, Indiana’s search and seizure
clause, which is to be interpreted and analyzed independent of the Fourth Amendment to the United States
Constitution. Baniaga v. State, 891 N.E.2d 615, 618 (Ind. Ct. App. 2008). However, Johnson does not
develop a corresponding argument with respect to the factors to be balanced in determining the
reasonableness of a search or seizure under the Indiana search and seizure clause. See Litchfield v. State, 824
N.E.2d 356, 361 (Ind. 2005) (determining that the reasonableness of a search or seizure turns upon a balance
of (1) the degree of concern, suspicion, or knowledge that a violation had 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). Pursuant to Indiana Appellate Rule 46, Johnson has waived the issue for review.
Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019 Page 2 of 10
Zach Wilkinson (“Agent Wilkinson”).3 Miller also requested video surveillance
of the gaming floor.
[3] Agent Wilkinson reviewed surveillance footage, without audio, and “confirmed
the interaction” of approximately thirty seconds between Eversole and a black
male wearing a white hat. Id. at 106. He located Johnson, a black male
wearing a white hat, and asked that he come to the gaming enforcement
interview room. When they reached the interview room, Agent Wilkinson
advised Johnson that he would “need a pat down.” Id. at 111. Agent
Wilkinson detected and removed from Johnson’s pocket an object that “felt like
a ball of drugs.” Id. at 113. He placed Johnson in handcuffs and provided a
Miranda4 warning.
[4] An Indiana State Police chemist tested the white powder; she identified no drug
but detected a chemical possibly derived from baking soda. On February 29,
2016, the State charged Johnson with Dealing in a Look-a-like Substance. On
April 5, 2017, Johnson filed a motion to suppress the evidence obtained as a
result of the warrantless search of his pocket. On April 24, 2017, the trial court
conducted a hearing on the motion to suppress and the parties agreed to submit
3
Agent Wilkinson testified that a gaming enforcement agent has full police powers, including authority to
make an arrest.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019 Page 3 of 10
briefs regarding their respective positions on admissibility. On October 4, 2017,
the trial court denied Johnson’s motion to suppress.
[5] Johnson was brought to trial before a jury on January 23, 2019, and he objected
to the admission of evidence garnered in the search of his pocket. Agent
Wilkinson testified as follows: Johnson “voluntarily came back” to the
interview room; Agent Wilkinson informed Johnson that he would need to
submit to a pat-down; Johnson was “free to leave” when he submitted to the
pat-down; Agent Wilkinson detected a bulge “likely some type of drug;” he
“knew it wasn’t a weapon;” and he handcuffed Johnson after removing the
item. (Tr. Vol. II, pgs. 128-29.) Johnson took the position that law
enforcement had unlawfully exceeded the scope of a pat-down. The State
argued that Agent Wilkinson had probable cause to make an arrest when he
removed the ball of powder from Johnson’s pocket. The trial court agreed with
the State that what had transpired was “a search incident to arrest.” Id. at 148.
[6] Johnson was convicted as charged and sentenced to four years imprisonment,
with three years suspended to probation. Johnson now appeals.
Discussion and Decision
[7] The trial court has broad discretion to rule on the admissibility of evidence.
Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). Generally, evidentiary rulings
are reviewed for an abuse of discretion and reversed when admission is clearly
against the logic and effect of the facts and circumstances. Id. However, when
Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019 Page 4 of 10
a challenge to an evidentiary ruling is predicated on the constitutionality of a
search or seizure of evidence, it raises a question of law that is reviewed de
novo. Id. The State has the burden to demonstrate that the measures it used to
seize information or evidence were constitutional. State v. Roger, 883 N.E.2d
136, 139 (Ind. Ct. App. 2008). “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.” Bradley v. State, 54 N.E.3d 996,
999 (Ind. 2016).
[8] The Fourth Amendment “regulates all nonconsensual encounters between
citizens and law enforcement officials.” Thomas, 81 N.E.3d at 625. The Fourth
Amendment guarantees that:
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. Nonconsensual encounters “typically are viewed in
two levels of detention: a full arrest lasting longer than a short period of time,
or a brief investigative stop.” Clark v. State, 994 N.E.2d 252, 261 (Ind. 2013).
The former requires probable cause to be permissible, while the latter requires a
lower standard of reasonable suspicion. Id. Determining whether there was a
consensual encounter, or some level of detention turns upon an objective
Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019 Page 5 of 10
evaluation of whether, under all the circumstances, a reasonable person would
feel free to disregard the police and go about his business. Id.
[9] Agent Wilkinson testified that he asked Johnson to come into the interview
room to explain “his side of the story” and Johnson “voluntarily came back.”
(Tr. Vol. II, pg. 111.) Agent Wilkinson explained that Johnson would “need a
pat-down,” Id. at 112, and Johnson submitted. The initial encounter between
Johnson and Agent Wilkinson was akin to a Terry5 stop. See Clenna v. State, 782
N.E.2d 1029 (Ind. Ct. App. 2003) (recognizing that an investigative stop by an
officer responding to a report of suspicious activity in a drug store was a Terry
stop).
[10] It is well-settled Fourth Amendment jurisprudence that a police officer may,
without a warrant or probable cause, briefly detain an individual for
investigatory purposes if the officer has a reasonable suspicion that criminal
activity “‘may be afoot.’” Id. at 1032 (citing Terry v. Ohio, 392 U.S. 1, 27
(1968)). If the officer possesses a reasonable fear of danger when making a
Terry stop, he or she may conduct a carefully limited search of the suspect’s
outer clothing in an attempt to discover weapons that might be used to assault
the officer. Granados v. State, 749 N.E.2d 1210, 1213 (Ind. Ct. App. 2001).
Johnson does not argue that Agent Wilkinson lacked a reasonable suspicion of
5
Terry v. Ohio, 392 U.S. 1 (1968).
Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019 Page 6 of 10
criminal activity and he does not challenge the decision to perform a pat-down
search.
[11] But the encounter did not end with a pat-down. Agent Wilkinson reached into
Johnson’s pocket and retrieved a ball of a powdered substance, which he did
not suspect to be a weapon. Generally, the Fourth Amendment to the United
States Constitution prohibits a warrantless search. Berry v. State, 704 N.E.2d
462, 465 (Ind. 1998). One exception to this rule is a search incident to a lawful
arrest. Gibson v. State, 733 N.E.2d 945, 953 (Ind. Ct. App. 2000). “Evidence
resulting from a search incident to a lawful arrest is admissible at trial.” Id.
However, “[a]n unlawful arrest cannot be the foundation of a lawful search.”
Id. “Evidence obtained as a direct result of a search conducted after an illegal
arrest is excluded under the fruit of the poisonous tree doctrine.” Id. at 954.
[12] The salient inquiry is whether Agent Wilkinson had probable cause to arrest
Johnson when the search occurred. “Probable cause exists where the facts and
circumstances within the knowledge of the officer making the search, based on
reasonably trustworthy information, are sufficient in themselves to warrant a
person of reasonable caution in the belief that an offense has been or is being
committed.” Robles v. State, 510 N.E.2d 660, 664 (Ind. 1987). The amount of
evidence necessary to satisfy the probable cause requirement for a warrantless
arrest is to be determined on a case-by-case basis. Moffitt v. State, 817 N.E.2d
239, 246 (Ind. Ct. App. 2004).
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[13] Prior to detaining Johnson, Agent Wilkinson had interviewed Eversole, who
reported a brief encounter in which a black male wearing a white hat tried to
sell “white girl,” a street term for cocaine. (Tr. Vol. II, pg. 89.) The agent’s
review of surveillance footage corroborated an encounter but no criminality.6
However, he later learned that Johnson was in possession of a ball of
something. Arguably, Eversole’s report of criminal activity coupled with
Johnson’s apparent possession of contraband established probable cause for an
arrest. But the very brief testimony elicited from Agent Wilkinson does not
establish when he obtained the additional knowledge.
[14] Agent Wilkinson testified on direct examination as follows:
Question: Okay and when you entered into the interview room
did you inform him that you needed to pat him down?
Agent: Yes. [Objection]
Court: Sustained.
Question: Were there any items that drew your attention?
Agent: Yes.
Question: Okay – tell us about that.
6
There was no audio, and Agent Wilkinson did not see a transfer of anything.
Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019 Page 8 of 10
Agent: There was essentially it felt like a giant ball and so that’s
– and with the information I had with the report of him
attempting to sell drugs to patrons it felt you know like a ball of
drugs essentially so that was –
Question: Okay you’ve had some basic drug recognition
training?
Agent: Yes. . . .
Question: Okay so when you felt this – based on the information
you already have – had did you remove it from his pocket?
Agent: Yes.
(Tr. Vol. II, pgs. 111-114.)7
[15] The testimony suggests alternative scenarios as to how Agent Wilkinson
discovered the apparent contraband. The agent may have been conducting “a
carefully limited search of outer clothing to detect weapons,” Granados, 749
N.E.2d at 1213, when he discerned characteristics consistent with contraband,
notwithstanding the fabric barrier. Or Agent Wilkinson, having received
information of an attempted sale of contraband, may have reached into
Johnson’s pocket and examined the item before concluding it was likely
7
Agent Wilkinson testified in a similar fashion at the suppression hearing. He was asked “what happened
when you got into the room” and responded: “We got in the room I padded [sic] him down for weapons –
and in his front, I believe, left pocket there was a giant ball and you know from the information I had and
also with my training and experience I took that to be drugs or contrabands [sic] so – once that was
discovered he was then placed under arrest.” (Tr. Vol. 1, pg. 71.)
Court of Appeals of Indiana | Opinion 19A-CR-975 | December 19, 2019 Page 9 of 10
contraband. In the first scenario, Agent Wilkinson would arguably have,
without exceeding the scope of a Terry pat-down for weapons, developed
probable cause for an arrest. In the second scenario, Agent Wilkinson would
have conducted the search before having probable cause for an arrest and thus
the seizure did not take place in a search incident to arrest. It is incumbent
upon the State to prove that the measures it used to conduct a search and seize
evidence were constitutional. Roger, 883 N.E.2d at 139. Here, the State failed
to satisfy its burden; 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.
Conclusion
[16] The State did not establish that the measures used to seize the challenged
evidence were constitutional. Accordingly, the trial court abused its discretion
in admitting the evidence.
[17] Reversed.
Kirsch, J., and Mathias, J., concur.
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