Durstock v. State

113 N.E.3d 1272

Sebastian DURSTOCK, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 15A01-1711-CR-2718

Court of Appeals of Indiana.

FILED December 4, 2018

Attorney for Appellant: R. Patrick Magrath, Madison, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caryn N. Szyper, Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1] Sebastian Durstock appeals his conviction for dealing in a narcotic drug, a Level 2 felony. This case involves the analysis of the Fourth Amendment and exceptions to the warrant requirement. We affirm.¹

Issues

[2] Durstock raises three issues, which we restate as:

I. Whether the trial court abused its discretion by admitting evidence found during a pat down search of Durstock.

II. Whether the evidence is sufficient to sustain Durstock's conviction for dealing in a narcotic drug, a Level 2 felony.

III. Whether Durstock's sentence is inappropriate.

Facts

[3] On the morning of January 13, 2017, Officer David Schwarz of the Lawrenceburg Police Department was dispatched to an apartment in Lawrenceburg regarding an unconscious female, later identified as Chyanne Thompson. Emergency medical services arrived at the same time as Officer Schwarz. They discovered Candy Gaylord giving Thompson chest compressions. Given Thompson's symptoms, Officer Schwarz suspected that Thompson had overdosed on opiates.

[4] As the emergency medical personnel were assisting Thompson, Officer Schwarz heard water running in the bathroom. Officer Schwarz saw Durstock leave the bathroom and sit on the couch in the living room. Officer Schwarz talked to Gaylord and learned that Gaylord was the resident of the apartment. Gaylord gave Officer Bill Lynam permission to search the bathroom of the apartment, where he located a brown backpack. Gaylord and Durstock denied that the backpack belonged to them, and Gaylord gave the officer permission to search the backpack. Officer Lynam discovered a loaded handgun wrapped in a wet bandana, digital scales, men's clothing, and men's deodorant.

[5] Durstock appeared to be "nervous and shaking and sweaty." Tr. Vol. II p. 102. After learning of the firearm, Officer Troy Cochran decided to perform a pat down search of Durstock for officer safety. Officer Cochran asked Durstock if Durstock "had anything that we needed to be concerned about." Id. at 103. Durstock removed a lighter, cigarettes, a cell phone, and lip balm from his pockets. Durstock put his hand in one of his pockets and removed his hand without removing anything from his pocket. Durstock's movements made Officer Schwarz suspicious, and he asked Durstock to stand for a pat down for weapons.

[6] Officer Schwarz felt a "tubular object" in Durstock's pocket that was "consistent with being a syringe." Id. at 62. Officer Schwarz removed the item from Durstock's pocket and found that it was, in fact, a syringe. Officer Schwarz then arrested Durstock for possession of a hypodermic syringe. See Ind. Code § 16-42-19-18. Durstock was placed in handcuffs, and Officer Schwarz performed a search incident to the arrest. Officer Schwarz found several items in Durstock's pockets, including three bullets and a black bag that contained $331 in cash, rolling papers, and a plastic bag containing a white powder. The white powder was later identified as 6.06 grams of fentanyl.

[7] After several amendments, the State ultimately charged Durstock with dealing in a narcotic drug, a Level 2 felony; possession of a narcotic drug, a Level 4 felony; and possession of a narcotic drug, a Level 5 felony. At Durstock's jury trial, Durstock objected to the admission of evidence found during the pat down search, and the trial court overruled the objection.² During the jury trial, several recorded jail telephone calls made by Durstock were admitted into evidence. In one of the calls, Durstock stated that he had been "hustling," which a detective testified was slang for dealing. Ex. 45. The jury found Durstock guilty as charged.

[8] Due to double jeopardy concerns, the trial court entered judgment of conviction only on dealing in a narcotic drug, a Level 2 felony. The trial court sentenced Durstock to seventeen and one-half years with two and one-half years suspended to probation. Durstock now appeals.

Analysis

I. Admission of Evidence

[9] Durstock argues that the trial court erred by denying his motion to suppress. However, because Durstock appeals from a completed jury trial, the issue is more appropriately framed as whether the trial court properly admitted the evidence at trial. Clark v. State , 994 N.E.2d 252, 259 (Ind. 2013). "The general admission of evidence at trial is a matter we leave to the discretion of the trial court." Id. at 259-60. "We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights." Id. at 260.

[10] Durstock argues that the pat down search was improper because the officers had no reasonable suspicion that Durstock was armed and dangerous. 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.³ U.S. Const. amend. IV. "The fundamental purpose of the Fourth Amendment to the United States Constitution is to protect the legitimate expectations of privacy that citizens possess in their persons, their homes, and their belongings." Taylor v. State , 842 N.E.2d 327, 330 (Ind. 2006). This protection has been "extended to the states through the Fourteenth Amendment." Bradley v. State , 54 N.E.3d 996, 999 (Ind. 2016). "As a deterrent mechanism, evidence obtained in violation of 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 , 994 N.E.2d at 260. "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 , 54 N.E.3d at 999.

[11] In Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court permitted a:

reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. 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. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Terry , 392 U.S. at 27, 88 S.Ct. at 1883 (internal citations and footnote omitted); see also Wilson v. State , 745 N.E.2d 789, 792 (Ind. 2001).

[12] Durstock argues that the officers had "no reasonable suspicion that Durstock was armed and dangerous" and that the "pat-down of Durstock was illegal and any evidence obtained as a result should have been suppressed." Appellant's Br. p. 13. The State argues that the pat down was proper because: (1) officers had indications that Durstock was involved in drug activity and was acting nervous; (2) a loaded handgun was found in a backpack in the restroom, where Durstock had recently been; (3) the backpack also contained men's clothing; and (4) Gaylord, the apartment's female resident, denied ownership of the backpack.

[13] Under the circumstances, we conclude that a reasonably prudent man would be warranted in the belief that his safety was potentially in danger, and we cannot say that the pat down search violated the Fourth Amendment. The officers were aware that a loaded handgun had been found wrapped in a wet bandana in a backpack in the restroom, which Durstock had recently occupied. The backpack contained men's clothing, and the female resident of the apartment denied ownership of the backpack. Durstock, who was acting strangely, was the only male in the apartment. The officers were reasonably concerned that the weapon belonged to Durstock and that their safety was in jeopardy. The pat down search was proper. See, e.g., Johnson v. State , 38 N.E.3d 658, 663 (Ind. Ct. App. 2015) (holding that a pat down search for weapons was proper where the defendant kept placing his hand in his pocket and refused an officer's multiple commands to remove his hand from his pocket), trans. denied .

[14] Durstock next argues that, even if the pat down was proper, the removal of the syringe from his pocket was improper. "The purpose of a protective search authorized by Terry ‘is not to discover evidence of a crime, but rather to allow the officer to pursue his investigation without fear of violence.’ " Clanton v. State , 977 N.E.2d 1018, 1025 (Ind. Ct. App. 2012) (quoting Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993) ). "During this limited search, an officer is permitted to remove an item that feels like a weapon from an individual's outer clothing to determine whether the item is in fact a weapon." Id. "In addition, the ‘plain-feel doctrine’ approved by Dickerson permits an officer to remove non-weapon contraband during a Terry frisk if the contraband is detected during an initial patdown for weapons and if the incriminating nature of the contraband is immediately ascertained by the officer." Id. (citing Harris v. State , 878 N.E.2d 534, 538-39 (Ind. Ct. App. 2007), trans. denied ).

[15] Durstock argues that the "tube" detected by the officer was not immediately ascertainable as contraband. The State contends that the officer...