WILKINS v. STATE (2024)

MEMORANDUM DECISION

[1] Rosco Wilkins appeals his conviction for unlawful possession of a firearm by a serious violent felon as a level 4 felony. He asserts a pat down search of his person was inconsistent with the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We affirm.

Facts and Procedural History

[2] On March 28, 2022, Indianapolis Metropolitan Police Detective Jonathan Phelps and Detective Bill Wogan, both members of the Indiana Crime Gun Task Force, were working together but in separate vehicles. Detective Phelps witnessed a vehicle “making improper turns, straddling two lanes while making the turn” and also heard a loud “exhaust leak coming from the vehicle as it traveled.” Transcript Volume II at 34. Detective Wogan observed the vehicle fail to stop properly at a stop sign.

[3] Detective Phelps, in full uniform and driving a fully marked police car, initiated a traffic stop, and the vehicle stopped. While Detective Chris Smilko approached the driver's side of the vehicle, Detective Phelps approached the passenger side of the vehicle and smelled what he determined to be, based upon his training and experience, burnt and raw marijuana. Detective Phelps observed the vehicle contained a driver, later identified as Diondre Bradley, a front passenger, later identified as Wilkins, and two children in the back seat. Detective Phelps introduced himself, explained the infractions, and asked the driver and passenger for their IDs or driver's licenses. When he interacted with the occupants, “the smell became stronger and appeared to [him] that the odor of marijuana was coming from inside the vehicle.” Id. at 77. He also observed that Wilkins appeared “very nervous,” avoided eye contact, and “was continuously looking around.” Id. at 78. Wilkins and Bradley both provided identification.

[4] Detective Phelps alerted Detective Smilko of the odor, asked Bradley to turn off the vehicle, and asked multiple times for Wilkins to exit the vehicle. While Wilkins was exiting the front seat, he began dipping his left hand towards the crevice between the front seat and the center console area, an area which Detective Phelps knew based upon his training and experience to be a common place where people can hide or place weapons. Detective Phelps asked Wilkins to stop dipping his hand and continue exiting the car. Detective Phelps twice asked Wilkins to place his hands on his head. Wilkins exited the car, and Detective Phelps placed Wilkins in handcuffs and performed a pat down of his “waistband and ․ front pockets area.” Id. at 87. He then walked Wilkins back towards his police vehicle and conducted a further pat down. Detective Phelps felt a blunt object in the chest area that he immediately determined, through his training and experience, to be consistent with a concealed firearm.¹ He retrieved a Taurus 9-millimeter semiautomatic handgun from the front left breast pocket of Wilkins's coat. Detective Phelps ran Wilkins's criminal history and determined that he had a prior conviction for robbery.

[5] On March 30, 2022, the State charged Wilkins with unlawful possession of a firearm by a serious violent felon as a level 4 felony. On April 28, 2023, Wilkins filed a motion to suppress all evidence obtained as a result of his detention on March 28, 2022, and cited the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. After a hearing, the court entered an order denying Wilkins's motion and finding that Detective Phelps reasonably believed that Wilkins was armed and dangerous, which justified the pat down, and that his actions were reasonable under a totality of the circumstances.

[6] At the bench trial, the State presented the testimony of Detectives Phelps and Wogan. The court found Wilkins guilty as charged and sentenced him to eight years with four years suspended.

Discussion

[7] Wilkins does not challenge the “initial stop and pat-down.” Appellant's Brief at 14. Rather, he argues that the “second pat-down” violated the Fourth Amendment because Detective Phelps did not have reasonable suspicion at that time that he was armed and dangerous. Id. at 13. He also asserts that Detective Phelps's actions were unreasonable under Article 1, Section 11 of the Indiana Constitution.

[8] Generally, we review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh'g denied. We reverse only when the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh'g denied. We may affirm a trial court's decision regarding the admission of evidence if it is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh'g denied. We review de novo a ruling on the constitutionality of a search or seizure, but we give deference to a trial court's determination of the facts, which will not be overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008); see also Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (holding that the ultimate determination of the constitutionality of a search or seizure is a question of law that we consider de novo). In ruling on admissibility following the denial of a motion to suppress, the trial court considers the foundational evidence presented at trial. Carpenter, 18 N.E.3d at 1001. If the foundational evidence at trial is not the same as that presented at the suppression hearing, the trial court must make its decision based upon trial evidence and may consider hearing evidence only if it does not conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014). It also considers the evidence from the suppression hearing that is favorable to the defendant only to the extent it is uncontradicted at trial. Carpenter, 18 N.E.3d at 1001.

[9] The Fourth Amendment provides, in pertinent part: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ․” U.S. Const. amend. IV. “As the text makes clear, ‘the ultimate touchstone of the Fourth Amendment is “reasonableness.” ’ ” Riley v. California, 573 U.S. 373, 381, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943 (2006)).

[10] Generally, “[a] routine traffic stop ․ is a relatively brief encounter and ‘is more analogous to a so-called “Terry stop” ․ than to a formal arrest.’ ” Wilson v. State, 745 N.E.2d 789, 791 (Ind. 2001) (quoting Knowles v. Iowa, 525 U.S. 113, 117, 119 S. Ct. 484, 488 (1998) (quoting Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150 (1984))). The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), explained that police officers may employ investigative techniques short of arrest on less than probable cause without violating Fourth Amendment interests. Id. at 792. The principal issue is whether the police action in question was reasonable under all the circumstances. Id. (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S. Ct. 330, 332 (1977)). “To determine whether an investigative stop was reasonable ‘our inquiry is a dual one—whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.’ ” Id. (quoting Terry, 392 U.S. at 19-20, 88 S. Ct. at 1879).

[11] 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, 392 U.S. at 27, 88 S. Ct. at 1883. “To determine whether an officer acted reasonably, we consider the specific, reasonable inferences that the officer, in light of his experience, can draw from the facts.” Johnson v. State, 157 N.E.3d 1199, 1205 (Ind. 2020) (citing Terry, 392 U.S. at 27, 88 S. Ct. 1868), cert. denied, 141 S. Ct. 2681 (2021). “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 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).

[12] The record reveals that Detective Phelps detected the odor of marijuana coming from inside the vehicle. Wilkins appeared “very nervous,” avoided eye contact, and “was continuously looking around.” Transcript Volume II at 78. Detective Phelps asked Wilkins multiple times to exit the vehicle, and Wilkins dipped his left hand towards the crevice between the front seat and the center console area. Detective Phelps also twice asked Wilkins to place his hands on his head.

[13] Detective Phelps testified that he received training on subjects concealing firearms and “overall pre-attack indicators which are behaviors and overall mannerisms that people may display when they're possessing a firearm and/or behaviors they may display before fleeing and/or attacking law enforcement officer, known as pre-attack indicators.” Id. at 74-75. He testified that he encounters a “large amount of firearms” and “a large amount of subjects who are armed or concealing firearms on their person and/or inside their vehicles.” Id. at 75. When asked if “that behavior with dipping his left hand, did that draw your attention in particular,” Detective Phelps answered: “It did extremely.” Id. at 78. When asked why, he stated: “From my training and experience, I've conducted a large amount of investigations where subjects are either trying to hide contraband in that specific crevice and/or on dozens of occasions I, assisting detectives, have located firearms and/or weapons in or near that specific crevice.” Id. at 79. He testified that he was concerned for his safety and the safety of his assisting detectives. He stated that, based on his training and experience, individuals he has removed from a vehicle have tried to reach a weapon that was concealed on their person or have attempted to enter their vehicle to retrieve an item. He further testified that he had previously arrived on a scene as a third officer after two other officers had patted down an individual and the individual had been handcuffed behind their back, and the individual retrieved a handgun from their front pocket. We conclude that a reasonably prudent person in the circumstances would be warranted in the belief that their safety or that of others was in danger, and we cannot say the trial court abused its discretion in admitting evidence following the pat down.

[14] Although the text of Article 1, Section 11 of the Indiana Constitution mirrors the federal Fourth Amendment, we interpret Article 1, Section 11 separately and independently. Robinson v. State, 5 N.E.3d 362, 368 (Ind. 2014). “When a defendant raises a Section 11 claim, the State must show the police conduct ‘was reasonable under the totality of the circumstances.’ ” Id. (quoting State v. Washington, 898 N.E.2d 1200, 1205-1206 (Ind. 2008), reh'g denied). Generally, “[w]e consider three factors when evaluating reasonableness: ‘1) the degree of concern, suspicion, or knowledge that a violation has 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.’ ” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).

[15] With respect to the degree of suspicion, we observe that Wilkins does not challenge the initial stop. Further, as noted above, Detective Phelps detected the odor of marijuana, and Wilkins appeared “very nervous,” avoided eye contact, and “was continuously looking around.” Transcript Volume II at 78. Wilkins also dipped his left hand towards the crevice between the front seat and the center console area. As for the degree of intrusion, Wilkins concedes that the “pat-down of [his] outwear was a mild intrusion.” Appellant's Brief at 19. Finally, the extent of law enforcement needs was high given Wilkins's behavior and Detective Phelps's testimony that Wilkins's “dipping movements toward the left center console area” made him believe that Wilkins may be armed or that he was trying to conceal a firearm. Transcript Volume II at 42. Under the totality of the circumstances, we conclude that the police conduct was reasonable and did not violate Wilkins's rights under Article 1, Section 11 of the Indiana Constitution.

[16] For the foregoing reasons, we affirm Wilkins's conviction.

[17] Affirmed.

FOOTNOTES

1.   At the hearing on Wilkins's motion to suppress, Detective Phelps testified:[D]ue to the time of year this was, I didn't feel comfortable trying to do a full pat-down right next to the vehicle due to the amount of clothing the subject was wearing and just how long it was going to take to actually do a full, safe pat-down, because I don't know what's in that vehicle, I don't know what kind of movements or things he's going to do back towards that vehicle, and they are firearms. So the completion of the pat-down wasn't done until I put him further away from that vehicle and from where my concern was where he was reaching, and just back towards my police vehicle with assisting detectives just as a more safe, secure location.Transcript Volume II at 46-47. During cross-examination at trial, Detective Phelps testified that he performed a pat down of Wilkins's “waistband and ․ front pockets area” immediately after Wilkins exited the vehicle. Id. at 87. When asked if he conducted a second pat down “shortly thereafter,” he answered affirmatively. Id. He also testified that “[i]t was a continuation of the pat down closer to my vehicle in the back of Mr. Bradley's vehicle.” Id. State's Exhibit 1, the video from Detective Phelps's body camera, indicates that the time between Wilkins exiting the vehicle to the discovery of the firearm was approximately seventy-five seconds.

Brown, Judge.

May, J., and Pyle, J., concur.