Bell v. State

81 N.E.3d 233

Louis BELL, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 49A05-1606-CR-1390

Court of Appeals of Indiana.

July 14, 2017

Attorneys for Appellant : Kimmerly A. Klee, Greenwood, Indiana, Ruth Ann Johnson, Suzy St. John, Marion County Public Defender Agency, Indianapolis, Indiana.

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Caryn Nieman-Szyper, Deputy Attorneys General, Indianapolis, Indiana.

May, Judge.

[1] Louis Bell appeals his convictions of Level 4 felony unlawful possession of a firearm by a serious violent felon,¹ Level 5 felony possession of a narcotic drug,² Level 5 felony possession of cocaine,³ Class B misdemeanor possession of marijuana,⁴ and Class C misdemeanor possession of paraphernalia.⁵ Bell asserts his convictions must be overturned because the trial court admitted evidence that was obtained unconstitutionally.⁶ We affirm.

Facts and Procedural History

[2] On September 7, 2015, around 1:00 a.m., Officer Justin Gough of the Indianapolis Metropolitan Police Department (IMPD) observed a man, later identified as Bell, riding a bike and trailing another bike by holding its handlebars. Bell was "rapidly just kind of looking around the area constantly looking if someone is watching or if someone is coming towards" him. ( Tr. at 73.) Officer Gough explained this behavior is called "scanning." (Id . at 14.) State law requires a bike operated at night have a red rear light and a white front light. Ind. Code § 9-21-11-9. The bike Bell was riding did not have this lighting.⁷ Officer Gough parked down the road in front of Bell and waited for him to approach. When Bell was around twenty feet away, Officer Gough asked Bell, "Hey, do you mind if I talk to you for a minute?" ( Tr. at 79.) Bell replied, "What's up?" and rode over to Officer Gough. (Id. at 80.)

[3] When Bell approached Officer Gough, Bell was "still scanning and looking around, sweating. His heart was beating extremely fast." (Id . at 81.) Officer Gough asked Bell for his name. Officer Gough "r[a]n [Bell's name] through Control" and learned Bell did not have any warrants. (Id. at 115.) Officer Gough asked Bell if he was in possession of anything illegal, and Bell said he was not.

[4] Officer Gough observed a suspicious bulge in Bell's front pocket. When he asked Bell about it, Bell "looked away, started scanning again, and then didn't answer [Officer Gough's] question." (Id. at 90.) For "[o]fficer safety," (id. at 123), Officer Gough "grabbed [Bell's] hands to conduct an outer clothes patdown." (Id. at 90.) The bulge was a gun. Officer Gough asked Bell if he had a permit to carry the gun, and Bell said he did not.

[5] Officer Gough placed Bell under arrest and conducted a search incident to arrest. Officer Gough found a screwdriver with a "removable cap." (Id. at 95.) In the cavity under the cap, Officer Gough found "a white plastic baggie [he] believed to be [sic] cocaine [and] another clear plastic bag with a brown rock-like substance [he] believed to be heroin." (Id. ) In a cigarette pack, Officer Gough found a "glass smoking pipe ... and then two small burnt marijuana cigars." (Id. at 98-99.)

[6] The State charged Bell with Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony possession of a narcotic drug, Level 5 felony possession of cocaine, Class B misdemeanor possession of marijuana, and Class C misdemeanor possession of paraphernalia. Bell filed a motion to suppress the fruits of Officer Gough's search arguing his encounter with Officer Gough was not consensual and, as such, the pat-down violated his rights under the federal and Indiana constitutions. The trial court denied the motion.

Following a bench trial, the court convicted Bell of all charges and sentenced him accordingly.

Discussion and Decision

[7] Bell did not seek interlocutory review of the denial of his motion to suppress but instead appeals following trial. The issue he raises is therefore "appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial." Washington v. State , 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). Our standard of review for rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

[8] "Although a trial court's determination of historical facts is entitled to deferential review, we employ a de novo standard when reviewing the trial court's ultimate determination of reasonable suspicion and probable cause." Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans. denied.

In other words, when a trial court has admitted evidence alleged to have been discovered as the result of an illegal search or seizure, we generally will assume the trial court accepted the evidence presented by the State and will not reweigh that evidence, but we owe no deference as to whether that evidence established the constitutionality of a search or seizure.

Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied.

1. Initial Stop⁸

[9] Bell asserts that although Officer Gough "was within his right to stop Bell for the bicycle violation," (Appellant's Br. at 19), he was actually investigating whether the second bike was stolen.⁹ However, as the State notes, even if the traffic stop was pretext to investigate the possibility the second bike was stolen, Indiana law allows pretextual traffic stops when the officer has observed a traffic violation. See Mitchell v. State , 745 N.E.2d 775, 787 (Ind. 2001) (pretextual traffic stops not unconstitutional "even if the officer may have an ulterior motive of furthering an unrelated criminal investigation").

[10] In Indiana, "[w]henever a law enforcement officer believes in good faith that a person has committed an infraction or ordinance violation, the law enforcement officer may detain that person for a time [.]" Ind. Code § 34-28-5-3. "[A] traffic stop and limited search is permissible where an officer has at least reasonable suspicion that a traffic law, or other law, has been violated." Sanders v. State , 989 N.E.2d 332, 335 (Ind. 2013), reh'g denied .

[11] In the middle of the night, Bell was riding a bike that did not have the lights required by law for a bike to be ridden at night.¹⁰ Officer Gough thus had reasonable suspicion to detain Bell for the traffic violation. See , e.g ., State v. Keck , 4 N.E.3d 1180, 1184 (Ind. 2014) ("If an officer observes a driver commit a traffic violation, he has probable cause—and thus also the lesser included reasonable suspicion [required for a Terry stop]—to stop that driver."); see also State v. Quirk , 842 N.E.2d 334, 340 (Ind. 2006) (even a minor traffic violation "creates probable cause to stop the driver"). Thus, Bell has not demonstrated the trial court erred in determining the initial stop was constitutional.

2. Pat-Down Search

[12] The parties disagree whether Officer Gough's pat-down of Bell violated our federal and state constitutions. We begin with the federal analysis.

A. Fourth Amendment

[13] 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). The State has the burden of demonstrating the admissibility of evidence collected during a seizure or search. Id.

[14] The trial court concluded Officer Gough had reasonable suspicion to pat Bell down for weapons. Bell argues Officer Gough did not have reasonable suspicion to conduct a pat-down search because Bell cooperated with Officer Gough's request to talk. Bell asserts his sweating and fast heart-rate could have been due to his bike-riding. The State asserts the "pat-down was proper under the Fourth Amendment" because Officer Gough had a reasonable belief his safety was in danger. (Appellee's Br. at 16.)

[15] To conduct a pat-down during a Terry stop, an "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 v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "In addition, a police officer ‘justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ is entitled to conduct a limited patdown [sic] search of the suspect's outer clothing to search for a weapon." Jackson v. State , 669 N.E.2d 744, 747 (Ind. Ct. App. 1996) (quoting Terry , 392 U.S. at 24, 88 S.Ct. 1868 ).

[16] Here, the encounter occurred after 1:00 a.m. in a high-crime area, Bell had a suspicious bulge in his pocket, and Bell did not answer Officer Gough's question about the bulge in his pocket. Officer Gough had observed Bell was "still scanning and looking around, sweating [and h]is heart was beating extremely fast." ( Tr. at 81.) Because Bell did not answer Officer Gough's question regarding the bulge in his pocket, Officer Gough believed Bell was "hiding something or being evasive." (Id . at 90.) Under these circumstances, we conclude it was reasonable for Officer Gough to be concerned for his own and the public's safety.¹¹ The pat-down search was not a violation of Bell's Fourth Amendment rights, and the trial court did not err in admitting the...