Brummett v. State

230 N.E.3d 968

Nicholas R. E. BRUMMETT, Appellant-Defendant

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 23A-CR-1298

Court of Appeals of Indiana.

Filed March 12, 2024

Appeal from the Madison Circuit Court, The Honorable Andrew Hopper, Judge, Trial Court Cause No. 48C03-2003-F2-735

Attorney for Appellant: Paul J. Podlejski, Anderson, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Catherine E. Brizzi, Deputy Attorney General, Indianapolis, Indiana

Brown, Judge.

[1] Nicholas R. E. Brummett appeals his conviction for possession of methamphetamine as a level 3 felony.¹ We affirm. Facts and Procedural History

[2] At 8:42 p.m. on March 21, 2020, Anderson Police Officer Brandon Reynolds was patrolling in an area known as a "high traffic area for narcotics" and noticed a silver car drive down an alley, stop at a stop sign, and it "seemed like it wanted to turn one (1) way and then turned another." Transcript Volume I at 57, 81. Officer Reynolds observed that the driver "seemed like [he] was lost or like [he] was looking for something," in an area where "there’s a lot of drug activity," which "caught [Officer Reynolds’s] eye." Id. at 57. He observed that the vehicle turned without properly using the turn signal. Specifically, the vehicle stopped, the driver "then started his turn, and then clicked his turn signal on." Id. at 58. Officer Reynolds observed that the vehicle which had been traveling south ultimately turned back north which "sort of set off another flag" for him. Id. The vehicle then drove south again.

[3] Officer Reynolds initiated a traffic stop. The vehicle stopped, and Officer Reynolds approached Brummett who was the sole occupant and asked him if he had his driver’s license. Brummett handed him an ID card and said he did not have a driver’s license. Officer Reynolds asked Brummett where he was going, and Brummett said he was going to the gas station "that was just up in front of [them] a couple blocks." Id. at 119. Officer Reynolds asked Brummett if he was from Anderson, and Brummett answered affirmatively. Officer Reynolds found Brummett’s answer odd "because pretty much anybody from Anderson knows where thirty-second (32^nd) and Columbus is and that gas station there," Id. at 119-120. Officer Reynolds then asked him where he was coming from and if he was lost, and Brummett said he was coming from "a buddy's house." Id. at 61. Officer Reynolds asked him what his friend’s name was because he knew people in the area and "was going to try to help him out if he’s just a lost guy." Id. Brummett "just like didn’t respond" and "just sort of sat there with his hands on the steering wheel and at that time like he was acting really nervous," which made Officer Reynolds uncomfortable. Id. Officer Reynolds also observed that Brummett’s eyes "were making some pretty furtive movements," id., and that he "just like kind of started freaking out a little bit." Id. at 71.

[4] Due to his safety concerns, Officer Reynolds asked Brummett to exit the vehicle. Officer Reynolds conducted a patdown, ran his hand across the outside of Brummett’s right pocket, felt "an item through plain feel that felt consistent to be a pretty large amount of crystal methamphetamine" and felt the same thing in a smaller quantity in Brummett’s left pocket. Id. at 123. He asked Brummett if he had meth in his pocket, Brummett said he did not know but also said that he could reach in and grab it for him, and Officer Reynolds told Brummett no. Officer Reynolds placed Brummett in handcuffs and retrieved the methamphetamine from his pockets. Officer Sean Brady arrived at the scene.² Officer Reynolds arranged for the vehicle to be towed, and he and Officer Brady conducted an inventory search of the vehicle. Officer Reynolds also ran a license check on Brummett and found that he was an habitual traffic violator.

[5] On March 23, 2020, the State charged Brummett with: Count I, dealing in methamphetamine as a level 2 felony; Count II, possession of methamphetamine as a level 3 felony; Count III, operating a vehicle as an habitual traffic violator as a level 6 felony; Count IV, unlawful possession of a syringe as a level 6 felony; Count V, carrying a handgun without a license as a class A misdemeanor; and Count VI, possession of a controlled substance as a class A misdemeanor.

[6] On February 23, 2022, Brummett filed a motion to suppress. On May 19, 2022, the court held a hearing. Officer Reynolds stated: "[A]t that time like you know he told me he didn’t have a driver’s license, so I was like okay a lot of people don’t have a driver’s license, but we’ll see why and everything else." Id. at 60. On cross-examination, when asked for the reason for conducting a patdown, Officer Reynolds answered: "[I]n order to ensure that there was no type of weapon or anything that would be on his possession. So, safety." Id. at 69. Brummett’s counsel asked: "Had he given you some reason to believe at that point that he would have a weapon on his person?" Id. Officer Reynolds answered: "Um I think it’s very common for most people to carry weapons. I myself almost have at least have a knife on my person and um a lot of people carry weapons." Id. Defense counsel asked: "So, that was the reason you patted him down?" Id. Officer Reynolds answered: "Because well for safety and because um it’s very common for people to carry weapons." Id. On redirect examination, the prosecutor asked if it was correct that Brummett’s behavior also led to the patdown. Officer Reynolds answered: "Oh yeah absolutely." Id. On recross-examination, defense counsel asked if Brummett’s act of no longer talking and nervousness were the reason for the patdown, and Officer Reynolds answered: "Yeah those were things through my experiences … made me believe there might be a safety concern." Id. at 72.

[7] On June 2, 2022, the State filed a brief in opposition to Brummett’s motion to suppress and argued that Officer Reynolds had concern for his safety and he was also aware that Brummett "did not have a valid driver’s license, which in and of itself is an arrestable offense under I.C. 9-24-18-1." Appellant’s Appendix Volume II at 89.

[8] On August 16, 2022, the court entered an order denying Brummett’s motion to suppress and stating that its "analysis turns on the key fact of the defendant’s commission of a crime. Before the defendant was searched the officer had knowledge of the defendant’s criminal activity, subjecting him to arrest and being taken into custody for operating a vehicle without a valid license." Id. at 97. On September 13, 2022, Brummett filed a motion to reconsider the order denying his motion to suppress. On September 28, 2022, the court held a hearing at which it stated that the motion to suppress remained denied. That same day, the court entered an order observing that the motion to suppress remained denied and stating in part:

On direct examination [O]fficer Reynolds testified he asked the defendant if he had his driver’s license to which the defendant responded that he did not have drivers [sic] license. IC 9-24-18-1 states an individual who knowingly or intentionally operates a motor vehicle upon a highway and has never received a valid driver’s license commits a Class C misdemeanor. The Defendant did not inform [O]fficer Reynolds that he had a license that was suspended, he stated he did not have a license. The officer then proceeded to ask the defendant to step out of the vehicle and conduct a search of his person.

Id. at 105.

[9] On April 10, 2023, the court held a bench trial. The prosecutor moved to dismiss Counts I and VI, and the court granted the motion. The court incorporated the record from the suppression hearing. Officer Reynolds testified that the inventory search of the vehicle revealed a pistol, a bag with methamphetamine, pills, and needles. He testified he ran a license check on Brummett and found he had no handgun permit. He further testified that Brummett’s acting uncomfortable was a concern for him and that "[b]ased off my training and experience people who … are acting nervous and uncomfortable as he was … it can likely lead to a vehicle pursuit, a very dangerous situation for … him, for the public, and for myself." Transcript Volume I at 122. After Officer Reynolds testified that he felt methamphetamine in Brummett’s pockets, defense counsel objected to further testimony based on the Fourth Amendment, the Indiana Constitution, and Terry v. Ohio. The court over-ruled the objection. The court also stated that its previous ruling on the motion to suppress was "based on all of the circumstances surrounding the stop." Id. at 143. The court found Brummett guilty of Counts II and III and not guilty of Counts IV and V.

Discussion

[10] Brummett cites the Fourth Amendment and argues that the trial court abused its discretion when it admitted the items seized during the patdown.³ He does not challenge the propriety of the initial traffic stop based upon his failure to properly use his turn signal or Officer Reynolds’s request for him to exit the vehicle. Rather, he challenges only the subsequent patdown. He appears to argue that the search incident to arrest exception did not apply because Officer Reynolds did not have probable cause to believe an offense occurred relating to his driver’s license. He asserts that Officer Reynolds’s statement regarding his license status established that he was curious as to why he did not have a license and without the clear existence of probable cause the encounter was along the lines of a Terry stop. He also asserts that Officer Reynolds could not point to any specific reasonable inferences, or articulable facts that established any basis to perceive him as being armed. He further contends that Officer Reynolds "testified that upon feeling the item in [his] pocket he thought it to be methamphetamine, not a weapon of any kind," and also states that Officer Reynolds "did not provide any...