FILED
Dec 27 2019, 8:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shane E. O’Keefe, December 27, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1733
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff Judge
Trial Court Cause No.
82C01-1807-F4-4879
Crone, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019 Page 1 of 10
Case Summary
[1] Shane E. O’Keefe appeals his convictions, following a bench trial, for level 4
felony possession of methamphetamine and class C misdemeanor possession of
paraphernalia. 1 He asserts that the trial court abused its discretion in admitting
evidence obtained as a result of the patdown search of his person during a valid
traffic stop. He claims that the search violated his rights under the Fourth
Amendment to the United States Constitution. 2 Finding no constitutional
violation, and therefore no abuse of discretion, we affirm.
Facts and Procedural History
[2] On July 16, 2018, Lieutenant Brent Hoover of the Evansville Police
Department was traveling eastbound on Diamond Avenue in a fully marked
patrol vehicle. He observed a black Harley Davidson motorcycle with two
occupants traveling with no visible license plate. Lieutenant Hoover activated
his emergency lights and sirens and initiated a traffic stop of the motorcycle. At
the time of the stop, Lieutenant Hoover was off duty and was not wearing his
police uniform.
1
The trial court also entered judgment against O’Keefe for two traffic infractions.
2
O’Keefe also asserts that the search violated his rights under Article 1, Section 11 of the Indiana
Constitution, but he presents no separate argument with respect to the Indiana Constitution, instead
conceding that Indiana has adopted the same rationale as applied in Fourth Amendment cases in deciding
the reasonableness of an investigatory stop and subsequent patdown search. Holbert v. State, 996 N.E.2d 396,
400 (Ind. Ct. App. 2013), trans. denied. Thus, we will likewise not address the federal and state constitutional
provisions separately.
Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019 Page 2 of 10
[3] The motorcycle was being operated by O’Keefe, and a female passenger,
Megan Schmitt, was with him. When Lieutenant Hoover approached O’Keefe
and Schmitt, he observed that Schmitt was extremely nervous. Lieutenant
Hoover also observed a large knife bag attached to the motorcycle and observed
that the motorcycle appeared to be freshly painted. Lieutenant Hoover took
custody of the knife attached to the motorcycle and asked O’Keefe if he had any
other weapons.3 O’Keefe stated that he did not.
[4] Upon Lieutenant Hoover’s request, O’Keefe and Schmitt provided
identification. O’Keefe produced an Indiana driver’s license with no motorcycle
endorsement. Schmitt produced an Indiana identification card. O’Keefe was
unable to produce proof of insurance. After receiving the identification,
Lieutenant Hoover returned to his patrol vehicle, ran the information, and
verified that Schmitt had an active misdemeanor arrest warrant. While
Lieutenant Hoover was still in his patrol vehicle, he observed Schmitt on her
cell phone, and then saw her start “walking away.” Tr. Vol. 2 at 9. When
Lieutenant Hoover then exited the patrol car, Schmitt “actually ran.” Id. For
the purposes of civilian and officer safety, Lieutenant Hoover placed handcuffs
on O’Keefe and informed him that he was being detained and not arrested.
Lieutenant Hoover “didn’t know what was taking place, why [Schmitt had fled]
… hadn’t been able to determine ownership of the motorcycle or any of those
3
Lieutenant Hoover stated that the pouch on the motorcycle had what he refers to as “a shove knife” in it.
Tr. Vol. 2 at 9.
Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019 Page 3 of 10
things at that point.” Id. at 10. Because Lieutenant Hoover observed that
O’Keefe was wearing a motorcycle vest with several large bulges, he did a brief
patdown search of O’Keefe for weapons. He located a sharpening stone for a
knife in one of O’Keefe’s vest pockets and removed it.
[5] Evansville Police Department Detective Nathan Hassler just happened to be
driving by the scene when he observed Lieutenant Hoover on the side of the
road, not in uniform, with a “subject detained.” Id. at 19. Detective Hassler
stopped to see if Lieutenant Hoover needed assistance. 4 Lieutenant Hoover
advised Detective Hassler that another “subject had fled from the stop,” and he
asked Detective Hassler to “take custody of Mr. O’Keefe at that time while he
went to search for the subject that had fled.” Id. Lieutenant Hoover then left to
pursue Schmitt.
[6] Detective Hassler, who was now alone with O’Keefe, immediately noticed that
O’Keefe “had a lot of bulky items in his motorcycle vest.” Id. In addition to
the fact that O’Keefe’s passenger had just fled the scene, Detective Hassler
found it concerning that O’Keefe “had a large number of garments on for that
time of year, temperature wise,” not to mention that it appeared that his outer
vest “pockets were packed full of stuff,” which alerted Detective Hassler to an
“obvious safety issue in terms of what could be [accessed] by O’Keefe.” Id. at
4
The record indicates that although Lieutenant Hoover had radioed for assistance, Detective Hassler had his
radio tuned to an encrypted channel, so he did not hear Lieutenant Hoover’s requests for assistance and
simply stopped at the scene based upon his observation.
Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019 Page 4 of 10
20. Unaware of whether Lieutenant Hoover had already conducted a patdown
search, Detective Hassler conducted a patdown search to make “sure that Mr.
O’Keefe was safe for [Detective Hassler] to be around, and that included a pat
down of his person due to the bulges in his pockets.” Id. at 19-20.
[7] During the patdown, Detective Hassler immediately felt what he recognized to
be a large knife in O’Keefe’s pocket. Because his pockets were “so packed full
of items[,]” in order to get to the knife, Detective Hassler had to first remove a
cloth “sheath” from O’Keefe’s pocket. Id. at 20. Due to the “flimsy material”
of the sheath, and without needing to “manipulate the [sheath] in any way,” it
was immediately apparent to Detective Hassler upon grabbing it that it
contained a pipe commonly used to consume methamphetamine. Id. Detective
Hassler removed the pipe from the sheath and observed burnt residue inside the
pipe. At that point, Detective Hassler placed O’Keefe under arrest, read him
his Miranda rights, and asked him if he had any other items on his person.
O’Keefe stated that he had “dope,” specifically “an 8 ball” of
methamphetamine. 5 Id. at 21. While conducting his search incident to arrest,
Detective Hassler discovered three individually wrapped baggies containing a
total of 9.5 grams of methamphetamine on O’Keefe’s person. O’Keefe then
revealed to Detective Hassler that he had struggled with addiction his entire life.
5
Detective Hassler testified that an “8 ball” is approximately 3.5 grams of methamphetamine. Tr. Vol. 2 at
21.
Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019 Page 5 of 10
[8] On July 18, 2018, the State charged O’Keefe with level 4 felony possession of
methamphetamine and class C misdemeanor possession of paraphernalia. The
State also charged O’Keefe with two class C traffic infractions; improper
motorcycle license endorsement and operating a motorcycle without
registration and display of registration. On February 20, 2019, O’Keefe filed a
motion to suppress evidence obtained during the traffic stop. Among other
things, O’Keefe argued that Detective Hassler’s patdown search violated his
constitutional rights. Following a hearing, the trial court denied O’Keefe’s
motion to suppress.
[9] A bench trial was held on May 31, 2019. During trial, O’Keefe lodged a
continuing objection based upon his motion to suppress and accompanying
memoranda. At the conclusion of trial, the court found O’Keefe guilty as
charged. The court sentenced O’Keefe to concurrent sentences of seven years
for the level 4 felony and ninety days for the class C misdemeanor. This appeal
ensued.
Discussion and Decision
[10] We begin by noting that O’Keefe does not challenge the validity of his initial
traffic stop, nor could he, as “[i]t is unequivocal under our jurisprudence that
even a minor traffic violation is sufficient to give an officer probable cause to
stop the driver of a vehicle.” Tinker v. State, 129 N.E.3d 251, 255 (Ind. Ct. App.
2019) (quoting Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013)), trans. denied.
Rather, he challenges only the patdown search of his person by Detective
Hassler, asserting that the search was conducted without reasonable suspicion
Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019 Page 6 of 10
that he was armed and dangerous, and therefore the trial court abused its
discretion in admitting any evidence obtained thereafter. 6
[11] 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. Conflicting
evidence is viewed in the light most favorable to the trial court’s ruling.
Hansbrough v. State, 49 N.E.3d 1112, 1114 (Ind. Ct. App. 2016), trans. denied.
However, we consider “afresh any legal question of the constitutionality of a
search and seizure.” Id. (citing Meredith v. State, 906 N.E.2d 867, 869 (Ind.
2000)).
[12] The Fourth Amendment to the United States Constitution protects citizens
against unreasonable searches and seizures by prohibiting them without a
warrant supported by probable cause. U.S. CONST. amend. IV. To deter state
actors from violating that prohibition, 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); see Hill
v. State, 956 N.E.2d 174, 177 (Ind. Ct. App. 2011) (holding that evidence
6
We note that O’Keefe assumes “for the sake of argument that Lieutenant Hoover had reasonable suspicion
that O’Keefe was armed and dangerous,” and he develops no argument regarding the reasonableness of
Lieutenant Hoover’s patdown search. Appellant’s Br. at 12. Accordingly, we decline to address the
propriety of that search, as any such challenge would be waived for failure to make cogent argument as
required by Indiana Appellate Rule 46(A)(8).
Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019 Page 7 of 10
obtained from an illegal search is “fruit of the poisonous tree” and therefore
inadmissible in a court of law); Segura v. United States, 468 U.S. 796, 804 (1984)
(noting that exclusionary rule encompasses both “primary evidence obtained as
a direct result of an illegal search or seizure” and any “evidence later discovered
and found to be derivative of an illegality.”). The State has the burden of
demonstrating the admissibility of evidence collected during a seizure or search.
Clark, 994 N.E.2d at 260.
[13] An officer may perform a patdown of a driver or passenger of a stopped vehicle
when the officer has reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether there is probable cause to arrest the
individual for a crime. Terry v. Ohio, 392 U.S. 1, 27 (1968). The purpose of a
Terry 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). “[T]here 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). 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.” Berry v. State, 121
N.E.3d 633, 637 (Ind. Ct. App. 2019), trans. denied. To determine whether an
officer acted reasonably, we consider the specific, reasonable inferences that the
officer is entitled to draw from the facts in light of his experience. Patterson, 958
N.E.2d at 486.
Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019 Page 8 of 10
[14] Here, Detective Hassler arrived at what had become a chaotic scene of a traffic
stop. Lieutenant Hoover informed him that the female passenger had just fled
on foot, and he asked Detective Hassler to secure O’Keefe while he pursued the
female. Detective Hassler quickly observed that O’Keefe was wearing
significantly more clothing than the weather called for, which included a thin
outer leather vest with bulging pockets. Based upon these facts, Detective
Hassler had “a significant safety concern” regarding O’Keefe and was fearful
that something more than a routine traffic stop was occurring. Tr. Vol. 2 at 32.
He stated that he believed that one of the obvious large bulges in O’Keefe’s vest
could be a weapon, so he conducted a patdown search for officer safety. 7
Detective Hassler indicated that he was not aware of whether Lieutenant
Hoover had already conducted a patdown search for weapons, and Detective
Hassler, who was now alone at the scene, felt that he needed to ensure that
O’Keefe was “safe … to be around … due to the bulges in his pockets.” Id. at
19-20. 8
7
Although neither party belabors this point, we note that O’Keefe’s hands were cuffed behind his back at the
time of Detective Hassler’s patdown search. Detective Hassler acknowledged this fact but stated that in his
training and experience he believed that O’Keefe, who he believed might be concealing a weapon, was “still a
danger to police officers.” Hearing Tr. Vol. 2 at 40. Detective Hassler vividly described that the vest was
loose and “not attached in the front” so “the side of the [vest] was able to freely move back and forth.” Id.
He further stated that he had “seen video of offenders shooting officers with guns after they’ve already been
handcuffed behind their back.” Id.
8
O’Keefe states that Detective Hassler “observed Lieutenant Hoover perform a patdown search of O’Keefe.”
Appellant’s Br. at 12. The record does not support this statement. To the extent that there is conflicting
evidence on this point, we remind O’Keefe that we observe conflicting evidence in the light most favorable to
the trial court’s evidentiary ruling. Hansbrough, 49 N.E.3d at 1114.
Court of Appeals of Indiana | Opinion 19A-CR-1733 | December 27, 2019 Page 9 of 10
[15] Based upon the admittedly thin record before us, we think that a reasonably
prudent man in Detective Hassler’s position would be warranted in the belief
that his safety or that of others was in danger, justifying his patdown search of
O’Keefe. Specifically, the chaotic scene that Detective Hassler happened upon,
coupled with his observations of large bulges in O’Keefe’s vest that he believed
could be weapons, formed an objectively reasonable basis for a patdown search.
Accordingly, we conclude that Detective Hassler’s 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, including evidence
obtained directly as well as derivatively from the search. We affirm O’Keefe’s
convictions.
[16] Affirmed.
May, J., and Pyle, J., concur.
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