Brandon Ray Brown, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2026)

MEMORANDUM DECISION

Case Summary

[1] In July 2025, law enforcement officers were preparing to execute a search warrant on a suspected drug house when Brandon Ray Brown was seen leaving the house with a backpack and his bicycle. Officers stopped Brown after he committed an infraction by violating a traffic law that prohibited him from walking his bike in the roadway of a street on which sidewalks were available. Contraband was discovered during the subsequent warrantless search of Brown's backpack, and he was charged with level 2 felony dealing in methamphetamine, class A misdemeanor possession of a controlled substance, and class B misdemeanor possession of marijuana. Brown filed a motion to suppress the evidence, alleging violations of his federal and state constitutional rights. The trial court denied the motion and, at Brown's request, certified the case for interlocutory appeal.

[2] Brown challenges the trial court's denial of his motion to suppress the evidence, arguing that the stop and the subsequent warrantless search of his backpack violated his rights under the Fourth Amendment to the United States Constitution.¹ Finding that Brown's constitutional rights were not violated, we affirm.

Facts and Procedural History

[3] In June 2025, law enforcement officers with the Evansville Police Department learned from a confidential source (CS) that Dwayne Crawford was dealing in methamphetamine. In June and again in July, officers arranged for the CS to conduct two controlled buys of methamphetamine from Crawford at two different locations in Evansville.

[4] The first controlled buy of less than five grams of methamphetamine took place around June 3, at a house located at 501 East Michigan Street. The second controlled buy occurred around July 7, at a house located at 730 East Virginia Street, where Crawford had recently relocated. During that buy, the CS purchased more than five grams of methamphetamine. Both buys were captured on video using covert recording equipment, and Crawford possessed a handgun during each transaction.

[5] In the days following the second controlled buy, Evansville Police Department Detective Chris Goergen conducted several hours of surveillance at the Virginia Street house. On numerous occasions, he observed “short[-]term foot and vehicular traffic” arriving and departing the house in a manner he perceived to be consistent with narcotics trafficking, based on his sixteen years of training and experience. Ex. Vol. III at 11.

[6] At around 9:15 a.m., on July 17, 2025, Detective Goergen began surveilling the Virginia Street house, and he noticed a bicycle leaning “against the front wall” of the house, “right next to the porch.” Tr. Vol. II at 14. An hour later, Crawford, the original target of the investigation, exited the house with several other individuals who had recently arrived. The group, including Crawford, got into a vehicle and left the premises.

[7] Detective Goergen directed other officers to stop and arrest Crawford. He then stopped surveilling the Virginia Street house to help with the pursuit, and another detective, Detective Christopher Seibert, took over the surveillance. Detective Seibert also noticed the bicycle still leaning against the house.

[8] Crawford was arrested a short time later, and officers found approximately $1,300 in cash in his possession, but they did not find a handgun. Because Crawford was not armed during the arrest, Detective Goergen believed that guns remained inside the Virginia Street house and, additionally, that “there [wa]s evidence of dealing methamphetamine at” the Virginia Street address. Ex. Vol. III at 12. Detective Goergen then applied for a search warrant to search the house for “fruits, instrumentalities and evidence” of possession, dealing, and conspiracy to deal in methamphetamine. Id. at 8. A judge granted the search warrant that same day, July 17, at 11:25 a.m.²

[9] Around 11:45 a.m.—approximately twenty minutes after the warrant was signed—Detective Seibert saw a man, later identified as Brown, exit the front door of the Virginia Street house carrying a backpack. Brown approached the bicycle, briefly set the backpack down, then picked the backpack up again.

[10] Brown was then joined by another man (the friend) who had walked over to Brown from the sidewalk. The two men spoke briefly, then left the premises together, with Brown riding the bike and the friend walking beside him. Detective Seibert broadcast this information over the radio to other officers in the area, and Detective Goergen responded that Brown should be “stopped leaving the house if possible.” Tr. Vol. II at 10.

[11] Vanderburgh County Sheriff's Deputy Jerrod Zwilling was in the area, in full uniform—and preparing to execute the search warrant for the house on Virginia Street—when he received the radio broadcast. Around 11:47 a.m.—approximately two minutes after he received Detective Goergen's directive—Deputy Zwilling located Brown “about a block” from the Virginia Street house. Id. at 20. By that time, Brown was walking his bicycle in the roadway of a street that had sidewalks on both sides. Deputy Zwilling, along with Deputy Sheriff Neil Luecke, stopped Brown and the friend because they had violated a traffic law that prohibited them from walking in the street when sidewalks were available and also because Brown had “just left the residence where the search warrant was obtained for.” Id. at 19.

[12] Brown leaned his bike against a telephone pole and set his backpack on the ground. Deputy Zwilling asked Brown whether he had any weapons on his person and if he could search him. Brown consented to a search of his person, and Deputy Zwilling checked Brown's pockets and performed a pat-down. Nothing of consequence was found on Brown. Then Deputy Zwilling asked Brown what was in the backpack. Brown replied that it contained “clothes and stupid [s**t.]” Ex. Vol. III at 28 (State's Ex. 7 at 2:05-3:10). He added that he had been staying at 321 East Virginia Street, a different address from that of the surveilled Virginia Street house, until he “got booted out of th[at] house a couple weeks ago.” Id.

[13] Deputy Zwilling then asked Brown whether the backpack contained any weapons or illegal items. Brown replied, “no” and refused to consent to a search of the backpack. Id. (State's Ex. 7 at 3:10-4:10). When Detective Goergen heard over the police radio that Brown had refused to provide consent, the detective called a deputy prosecutor for guidance. The call took place at around 11:53 a.m.—approximately six or seven minutes after Brown was stopped. The details of Detective Goergen's conversation with the deputy prosecutor are not provided in the record.

[14] Meanwhile, Deputy Zwilling and Deputy Luecke, Brown, and the friend all gathered near the front of a nearby police vehicle. Brown, who had not been handcuffed, leaned against the vehicle. A few minutes later, Deputy Luecke retrieved Brown's backpack and placed it on the vehicle's hood. The deputy opened the backpack, looked inside briefly, and then directed Deputy Zwilling to handcuff Brown. Inside the backpack, Deputy Luecke found what was later determined to be approximately 228 grams of methamphetamine; a digital scale containing residue; marijuana; synthetic marijuana; plastic bags; and approximately $330 in cash. The record indicates that the search warrant was executed that day, “[a] little bit after 1:00, 1:15-ish,” however, the record contains no description of the law enforcement officers’ search of the Virginia Street house or what, if anything, was found inside it. Tr. Vol. II at 8.

[15] On July 21, 2025, the State charged Brown with level 2 felony dealing in methamphetamine, class A misdemeanor possession of a controlled substance, and class B misdemeanor possession of marijuana. On August 4, Brown filed a motion to suppress the evidence found in his backpack, arguing that the stop and the subsequent warrantless search of his backpack violated his federal and state constitutional rights.

[16] At the suppression hearing held on August 22, Brown argued that the stop was unlawful under two United States Supreme Court decisions, namely, Michigan v. Summers, 452 U.S. 692 (1981), and Bailey v. United States, 568 U.S. 186 (2013), because, according to Brown, when the deputies stopped him, he was beyond the “immediate vicinity” of the Virginia Street house—the property that was the subject of the search warrant. Tr. Vol. II at 24. Brown's argument encompassed a Fourth Amendment violation of his rights but did not include a separate analysis regarding a violation of his rights under the Indiana Constitution.

[17] In support of its argument that the stop and search was lawful, the State cited Cleveland v. State, 129 N.E.3d 227 (Ind. Ct. App. 2019), trans. denied, a decision involving the automobile exception to the warrant requirement.³ The State argued that the police were authorized to search Brown's backpack because Brown had exited the Virginia Street house—the property that was subject to the search warrant—and was “stopped a short distance away” while carrying the backpack. Tr. Vol. II at 26.

[18] On September 25, the trial court issued its written order denying Brown's motion to suppress, noting that the matter was a “close question[.]” Appellant's App. Vol. II at 17. In reaching its determination, the court found that:

[Brown] had come out of the residence being searched and was detained approximately two and [a] half blocks away and had been followed immediately by the officers. In addition, the officers had observed [Brown] take a bicycle from the front porch of the residence where one would not ordinarily expect a visitor to park it․

[T]he Court finds that the area of the stop was in the immediate vicinity of the premises in question as that phrase had been interpreted over the years. Probable cause had been found that there was an ongoing conspiracy to deal drugs from this residence that would necessarily implicate multiple defendants. The backpack being carried by [Brown] is the kind of package that is frequently used to transport narcotics and was, in fact, transporting narcotics. The officers’ stop of [Brown], though pretextual, was lawful because he was in violation of ․ the sidewalk ordinance.

Id.⁴

[19] On October 2, 2025, Brown moved to certify the trial court's order for interlocutory appeal, and the trial court granted the motion that same day. This Court accepted jurisdiction on November 14. Brown now brings this interlocutory appeal of the denial of his motion to suppress the evidence seized as a result of his encounter with law enforcement officers.

Discussion and Decision

[20] Brown contends the trial court erred by denying his motion to suppress. Our standard of review for such a claim is as follows:

Trial courts enjoy broad discretion in decisions to admit or exclude evidence. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). When a trial court denies a motion to suppress evidence, we necessarily review that decision “deferentially, construing conflicting evidence in the light most favorable to the ruling.” Id. However, we “consider any substantial and uncontested evidence favorable to the defendant.” Id. We review the trial court's factual findings for clear error, declining invitations to reweigh evidence or judge witness credibility. Id. ․ If the trial court's decision denying “a defendant's motion to suppress concerns the constitutionality of a search or seizure,” then it presents a legal question that we review de novo. [Id].

Marshall v. State, 117 N.E.3d 1254, 1258 (Ind. 2019).

[21] In affirming an evidentiary ruling—even a ruling involving a constitutional question—this Court is not bound by any legal theory for admitting or excluding the evidence. See Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002) (affirming on different constitutional grounds decision to admit evidence from a search); Wilson v. State, 966 N.E.2d 1259, 1263 (Ind. Ct. App. 2012) (same), trans. denied. Rather, “[a]s an appellate court, we may affirm a trial court's judgment on any theory supported by the evidence.” Ratliff, 770 N.E.2d at 809. In other words, so long as the record provides a proper basis for the trial court's ruling, the ruling itself is not erroneous. See id.

Law Enforcement Officers Lawfully Stopped Brown, and the Warrantless Search of Brown's Backpack Did Not Violate the Fourth Amendment to the United States Constitution.

[22] The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV. The “basic purpose of this Amendment ․ is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Carpenter v. United States, 585 U.S. 296, 303 (2018) (internal quotations and citation omitted). Under the Fourth Amendment, any warrantless search or seizure is per se unreasonable, subject only to a handful of recognized exceptions. Johnson v. State, 157 N.E.3d 1199, 1203 (Ind. 2020), cert. denied. Once it is shown that police conducted a search or seizure without a warrant, the burden shifts to the State to show that the search fits within one of the recognized exceptions to the warrant requirement. Jacobs v. State, 76 N.E.3d 846, 850 (Ind. 2017).

Section 1—Law Enforcement Officers Lawfully Stopped Brown.

[23] Brown argues that because Deputy Zwilling stopped him beyond the immediate vicinity of the Virginia Street house, the stop was unlawful under Summers, 452 U.S. 692, as clarified in Bailey, 568 U.S. 186. These decisions address seizures of individuals during the execution of a valid search warrant.

[24] The State, on the other hand, offers three exceptions to the warrant requirement to justify the stop. First, the State relies on Terry v. Ohio, 392 U.S. 1 (1968), contending that the officers were permitted to briefly detain Brown based on his commission of a traffic infraction in their presence. Second, the State argues that the stop was justified because Brown “committed misdemeanor visiting a common nuisance in the presence of police[.]” Appellee's Br. at 10. Third, the State invokes Summers and its progeny, asserting that Brown “was still in the immediate vicinity of the Virginia Street house where the police were executing a search warrant.” Id. Thus, according to the State, under any of these three exceptions, the stop was not unlawful.

[25] We address each of these exceptions in turn. We conclude, however, that the Terry stop that was based on Brown committing the infraction, along with Deputy Zwilling's reasonable suspicion to believe that Brown had just visited a suspected common nuisance, controls our determination that law enforcement officers lawfully stopped Brown and did not violate his rights under the Fourth Amendment to the United States Constitution by doing so.

A. Terry Stop

[26] One exception to the warrant requirement is commonly called a Terry stop. In Terry, the United States Supreme Court held that a police officer may, without a warrant or probable cause, briefly detain a person for investigatory purposes if, based upon specific and articulable facts, the officer has reasonable suspicion that criminal activity may be afoot. 392 U.S. at 30. And it is well-settled that law enforcement officers may initiate a stop when they observe even a minor traffic violation. State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006). See also 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—to stop that driver.”); Ind. Code § 34-28-5-3 (2014) (“Whenever 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[.]”).

[27] Here, it was undisputed that Brown committed a traffic infraction in Deputy Zwilling's presence. Deputy Zwilling observed Brown commit a class C infraction when Brown walked his bicycle in the middle of a roadway where sidewalks were available on both sides of the street. See Ind. Code § 9-21-17-12 (1991) (providing that if “a sidewalk is provided and the sidewalk's use is practicable, a pedestrian may not walk along and upon an adjacent roadway”); see also Ind. Code § 9-21-17-24 (1991) (providing that “[a] person who violates this chapter commits a Class C infraction”). Therefore, Deputy Zwilling possessed the requisite reasonable suspicion to stop Brown. See, e.g., Meredith v. State, 906 N.E.2d 867, 873 (Ind. 2009) (holding that officer had reasonable suspicion to pull over defendant's vehicle for a traffic stop due to a suspected license plate display violation). Therefore, the stop was not unlawful on this ground.

B. Reasonable Suspicion That Brown Had Visited a Common Nuisance

[28] Deputy Zwilling had an additional, independent basis to stop Brown—not because Brown had committed the misdemeanor offense of visiting a common nuisance, as the State alleges—but because the evidence supports that the deputy had a reasonable suspicion that criminal activity was afoot, since Brown had just visited what officers believed to be a common nuisance. A person commits the crime of visiting a common nuisance by “knowingly or intentionally” visiting a “building, structure, vehicle, or other place” used for the use, manufacture, or sale of illegal drugs. Ind. Code § 35-45-1-5(b)(1)(C) (2018).

[29] In this instance, Deputy Zwilling was “preparing” to serve the search warrant at the Virginia Street house when he received instructions from Detective Seibert to locate and stop Brown. Tr. Vol. II at 17. The detective had just seen Brown leave the house, carrying a backpack, and the detective provided this information, along with a description of Brown, on the police radio. When the order to stop Brown was broadcast, the officers involved in the investigation knew that the activity at the house was indicative of drug dealing. And Deputy Zwilling testified that Brown matched the description provided by Detective Seibert and that he had stopped Brown not only because he was “walking in the roadway” but also because Brown had “just left the residence where the search warrant was obtained for.” Id. at 19 (emphasis added). Thus, it was not unlawful for the deputy to stop Brown because the deputy had a reasonable suspicion that criminal activity was afoot based on Brown having just visited a suspected common nuisance.

C. Michigan v. Summers and Bailey v. United States

[30] As noted above, supra ¶ 23, Brown argues that Deputy Zwilling could not legally stop and detain him because, as Brown contends, the deputy stopped him beyond the immediate vicinity of the Virginia Street house. Brown's argument is based on the United States Supreme Court's decision in Summers, 452 U.S. 692, as clarified in Bailey, 568 U.S. 186, and Brown urges this Court to decide this issue on this ground.

[31] In Summers, 452 U.S. at 705, the Supreme Court held that a search warrant supported by probable cause “implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” The Court reasoned that three important law enforcement interests, taken together, justify the detention of an occupant who is on the premises during the execution of a search warrant: (1) officer safety, (2) facilitating the completion of the search, and (3) preventing flight. Id. at 702-03.

[32] However, in Bailey, 568 U.S. at 193-201, the Supreme Court limited its holding in Summers, confining it only to the “immediate vicinity of the premises to be searched.” Id. at 202. In Bailey, the police watched the defendant leave the premises, enter a car, and drive away from the property. After following the car for approximately five minutes, or about one mile, the officers stopped the car. The Bailey Court determined that Bailey was “detained at a point beyond any reasonable understanding of the immediate vicinity of the premises” to be searched. Id. at 201. The Court reasoned that “[o]nce an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe.” Id. The Court instructed that in close cases, courts may consider the lawful limits of the premises, whether the person was within the line of sight of the dwelling, the ease of reentry from the person's location, and other relevant factors. Id.

[33] Brown specifically contends that he was not in the immediate vicinity of the Virginia Street house when Deputy Zwilling stopped him because he was outside the property boundary; outside the line of sight of the dwelling; and walking away from the dwelling—thus, posing no threat of reentry, interference with the search, or risk to officers’ safety. According to the State, the stop was lawful because Brown was still in the immediate vicinity of the Virginia Street house when he was detained. The State maintains that Brown's location was “only about ‘a block away’ ” from the house, “which was close enough that he could return to the Virginia Street house before the police began executing the search warrant.” Appellee's Br. at 15.

[34] We note that during the suppression hearing, Deputy Zwilling testified that the distance between the Virginia Street house and where he stopped Brown was “about a block.” Tr. Vol. II at 20. However, the trial court found in its order denying the motion to suppress that Brown was “approximately two and a half blocks from the residence” when he was stopped, and the evidence supports this finding. Appellant's App. Vol. II at 16. At the suppression hearing, defense counsel asked the deputy to mark on a map the location of the stop in relation to the location of the Virginia Street house. See Tr. Vol. II at 23-24. That distance was depicted on the map as around two and a half blocks. See Ex. Vol. III at 30 (Defendant's Ex. A).

[35] Nevertheless, we do not, and need not, resolve whether Brown was within the “immediate vicinity” of the Virginia Street house under the Summers and Bailey framework, because—as explained above—two independent and legally sufficient grounds supported the stop. And “we may affirm a trial court's judgment on any theory supported by the evidence.” Ratliff, 770 N.E.2d at 809. We have already determined that Brown was lawfully stopped by Deputy Zwilling because he committed an infraction in the deputy's presence and because the deputy had a reasonable suspicion that criminal activity was afoot, as Brown had just visited a suspected common nuisance. We therefore conclude that on these two bases alone, Brown's Fourth Amendment rights were not violated when Deputy Zwilling stopped and detained him.

Section 2—The Warrantless Search of Brown's Backpack Did Not Violate His Rights Under the Fourth Amendment to the United States Constitution.

[36] Next, Brown argues that the warrantless search of his backpack violated his rights under the Fourth Amendment to the United States Constitution because he did not voluntarily consent to the search, and the search did not fall within the scope of a search incident to lawful arrest—a well-established exception to the warrant requirement—as the State alleges. Brown also argues that the search of his backpack cannot be upheld as a search incident to arrest because he was not handcuffed until after the backpack was searched. Additionally, he contends that the search of his backpack was unjustified because the initial stop was based on Brown committing a minor, class C traffic infraction that carried a small fine of no more than $500, see Indiana Code section 34-28-5-4 (2020).

[37] The State argues that law enforcement officers had probable cause to arrest Brown for visiting a common nuisance “based on what they knew from their investigation into Crawford's drug dealing.” Appellee's Br. at 13. Thus, according to the State, the search of the backpack was performed incident to a lawful arrest and, therefore, did not violate Brown's constitutional rights.

[38] The Fourth Amendment generally prohibits a warrantless search or seizure unless a valid exception to the warrant requirement exists. Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013). “One exception to the warrant requirement is the search incident to arrest, which permits ‘a search of the arrestee's person and the area within his or her control.’ ” Durstock v. State, 113 N.E.3d 1272, 1278 (Ind. Ct. App. 2018) (quoting Clark v. State, 994 N.E.2d 252, 261 n.10 (Ind. 2013)), trans. denied. That authority has been extended to a backpack worn or carried by the person being arrested. See State v. Crager, 113 N.E.3d 657, 663-664 (Ind. Ct. App. 2018), trans. denied; see also United States v. Cook, 808 F.3d 1195, 1199-1200 (9th Cir. 2015). The search incident to arrest exception is justified by “the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime,” all “things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control.” VanPelt v. State, 760 N.E.2d 218, 222 (Ind. Ct. App. 2001) (quoting Preston v. United States, 376 U.S. 364, 367 (1964)), trans. denied.

[39] An officer may conduct a search incident to arrest if the officer has probable cause to make an arrest. Curry v. State, 90 N.E.3d 677, 687 (Ind. Ct. App. 2017), trans. denied. A suspect is considered under arrest when a police officer interrupts his freedom and restricts his liberty of movement. Fentress v. State, 863 N.E.2d 420, 423 (Ind. Ct. App. 2007). The fact that a police officer does not inform a defendant that he is under arrest prior to a search does not invalidate the search incident to arrest exception as long as there is probable cause to make an arrest. Id.

[40] Here, the salient inquiry is whether the deputies had probable cause to arrest Brown for visiting a common nuisance when they searched his backpack, not whether Brown was formally handcuffed and arrested before the search. See VanPelt, 760 N.E.2d at 223 (“The critical issue is not when the arrest occurs but whether there was probable cause to arrest at the time of the search. It is well settled that as long as probable cause exists to make the arrest, the fact that a suspect was not formally placed under arrest at the time of the search incident thereto will not invalidate the search.”) (internal citations omitted).

[41] “Probable cause for an arrest exists if at the time of the arrest the officer has knowledge of facts and circumstances which would warrant a man of reasonable caution to believe that the suspect has committed the criminal act in question.” Wilkinson v. State, 70 N.E.3d 392, 403 (Ind. Ct. App. 2017). Probable cause exists “when the totality of the circumstances establishes ‘a fair probability’—not proof or a prima facie showing—of criminal activity, contraband, or evidence of a crime.” Hodges v. State, 125 N.E.3d 578, 582 (Ind. 2019) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (emphasis added); see also United States v. Bullock, 632 F.3d 1004, 1023 (7th Cir. 2011) (“[T]he government need only show that officers had probable cause to make an arrest, which requires only a probability or a substantial chance that criminal activity exists, not a showing of proof beyond a reasonable doubt.”). We review the determination of probable cause de novo, and an officer's subjective belief regarding whether probable cause existed has no legal effect. K.K. v. State, 40 N.E.3d 488, 491 (Ind. Ct. App. 2015).

[42] As we noted supra ¶ 28, to convict a person of visiting a common nuisance as a class B misdemeanor, the State must prove that the person “knowingly or intentionally” visited a “building, structure, vehicle, or other place” used for the use, manufacture, or sale of illegal drugs. Ind. Code § 35-45-1-5(b)(1)(C). “[T]he plain language of the common nuisance statute requires that the visitor know the [building or structure] was being used for the consumption, manufacture, or sale of illegal drugs.” Tigner v. State, 142 N.E.3d 1064, 1069 (Ind. Ct. App. 2020). And to prove the nuisance was a “common” nuisance, the State must have provided evidence that the building or structure was used on more than one occasion for the unlawful use, manufacture, or sale of illegal drugs. See Leatherman v. State, 101 N.E.3d 879, 883 (Ind. Ct. App. 2018) (citing Zuniga v. State, 815 N.E.2d 197, 200 (Ind. Ct. App. 2004) (holding that “the term ‘common nuisance’ as used in the statute requires proof of a continuous or recurrent violation”).

[43] We now turn to the question of whether the deputies had probable cause to arrest Brown for visiting a common nuisance. When Detective Goergen directed officers to stop Brown, the detective knew that Crawford, the target of the investigation, had sold methamphetamine to the CS in the Virginia Street house at least one time, and that Crawford was armed at that time. The detective had personally surveilled the residence for multiple hours on multiple days, including the day the search warrant was obtained. He was aware of the numerous people coming and going, a circumstance he associated with drug dealing, based on his training and experience. And the detective knew that, shortly before he applied for the search warrant, Crawford had been detained, but no handgun had been found on Crawford's person. While this evidence more than supports a fair probability that the Virginia Street house was being used continuously for the distribution or consumption of illegal drugs, it does not show that Brown knew the house was being used for nefarious purposes. See, e.g., Tigner, 142 N.E.3d at 1069 (noting that a visitor may not know that person he is visiting is subject to community corrections or that law enforcement suspects person he is visiting has recently used drugs).

[44] Indeed, when the detective directed the other officers involved in the investigation to locate and detain Brown, Brown was just a person leaving the target premises. Brown was not the target of Detective Goergen's investigation; Crawford was the target. And when the deputies encountered Brown, Brown did not turn away from the deputies or attempt to flee. Also, no evidence was presented that the detective or any of the other officers knew who Brown was or Brown's connection to Crawford's crimes, or that Brown had frequented the house on more than one occasion, or that he had any prior association with the house. Brown had told Deputy Zwilling that he had been living at a different address from that of the Virginia Street house. And, notably, while it appears from the record that the search warrant was executed, the record contains no description of the law enforcement officers’ search of the Virginia Street house or what, if anything, was found inside it. Thus, it cannot be determined whether Brown might have inevitably been arrested—and then searched incident to that arrest—based on incriminating evidence of illegal drug activity that might have been discovered inside the premises.

[45] Still, we are mindful that the State must show only that under the totality of the circumstances, there exists a fair probability of criminal activity. See Hodges, 125 N.E.3d at 582. We have already determined—based on all the facts known to the law enforcement officers at the time that Brown was stopped and his backpack was subsequently searched—that the officers had probable cause to believe that Crawford, the target of the investigation, was selling drugs out of the Virginia Street house. And, notably, no drugs or guns were found on Crawford when he was stopped by the police, leading to an inference that evidence of drug dealing remained in the house and that Brown, who had been left inside the house and was then seen leaving the residence with a backpack, might be carrying that evidence with him. And while the officers could not have been certain that Brown knew that the Virginia Street house was being used for drug dealing, they had probable cause to believe so based on Brown's presence in the house that day.

[46] Furthermore, the deputies had reasonable safety concerns. Brown had just left a suspected drug house, carrying a backpack. After the deputies stopped Brown, they placed the backpack on the hood of a police vehicle close to where Brown stood. And because Brown was not handcuffed and his hands were free at the time of the search, the deputies had objectively reasonable safety concerns that Brown might reach for the backpack.

[47] Based on the foregoing, we conclude that the totality of the circumstances established a fair probability of criminal activity, contraband, or evidence of a crime. Thus, the deputies had probable cause to arrest Brown for visiting a common nuisance at the time they searched his backpack. Accordingly, the warrantless search of the backpack incident to arrest did not violate Brown's rights under the Fourth Amendment to the United States Constitution.

Section 3—Brown Waived His Challenge to the Warrantless Search of His Backpack Under Article 1, Section 11 of the Indiana Constitution. Waiver Notwithstanding, His Rights Under the Indiana Constitution Were Not Violated.

[48] Next, Brown argues that the warrantless search of his backpack violated his rights under the Indiana Constitution. The State contends that Brown waived his Indiana constitutional challenge because he did not raise the claim at the suppression hearing, “seemingly abandon[ing]” it. Appellee's Br. at 19.

[49] Generally, a warrantless search violates the Indiana Constitution unless the search is reasonable under the totality of the circumstances. Isley v. State, 202 N.E.3d 1124, 1131 (Ind. Ct. App. 2023), trans. denied. We consider three non-exhaustive factors when determining the reasonableness of the officers’ actions under the Indiana Constitution: (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. Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).

[50] Indeed, in his arguments to the trial court, Brown provided no analysis under the Indiana Constitution for the trial court to consider, instead confining his argument entirely to federal authority—specifically, the Summers and Bailey decisions. And the trial court's order denying the motion to suppress only addressed Brown's Fourth Amendment claims. Although Brown's written motion to suppress referenced the Indiana Constitution, that cursory mention—which was not developed at the hearing—was insufficient to preserve the claim. See, e.g., Redfield v. State, 78 N.E.3d 1104, 1108 (Ind. Ct. App. 2017) (finding defendant waived article 1, section 11, claim where his arguments in the trial court mentioned state constitutional claim but did not provide any independent analysis for it) (citing Wilkins v. State, 946 N.E.2d 1144, 1147 (Ind. 2011)), trans. denied.

[51] Accordingly, we conclude that Brown has not preserved for appellate review any independent claim under article 1, section 11. See Wilkins, 946 N.E.2d at 1147 (“Because he provides no authority or independent analysis supporting a separate standard under the state constitution, any state constitutional claim is waived.”). Assuming arguendo that Brown preserved a claim under the Indiana Constitution, application of the three-part Litchfield analysis leads us to the conclusion that the search was reasonable under the totality of the circumstances.

Conclusion

[52] Law enforcement officers did not violate Brown's Fourth Amendment rights by stopping him and subsequently searching his backpack. In addition, although Brown waived any argument that the stop and subsequent search of his backpack violated his rights under the Indiana Constitution, the stop and search were nonetheless reasonable. Therefore, we affirm the trial court's denial of Brown's motion to suppress.

[53] Affirmed.

FOOTNOTES

1.   Brown also claims that the warrantless search of his backpack violated his rights under article 1, section 11 of the Indiana Constitution. However, as explained further below, Brown did not preserve for our review an independent analysis under the Indiana Constitution.

2.   The record indicates, variably, that the judge authorized the warrant at either 11:25 a.m. or 11:29 a.m., as it is difficult to decipher the judge's handwriting. In this memorandum decision, we use 11:25 a.m., the time listed in the trial court's order denying Brown's motion to suppress. See Appellant's App. Vol. II at 15.

3.   In Cleveland, 129 N.E.3d 227, under the automobile exception to the warrant requirement, the police, after stopping a speeding vehicle and detecting the odor of marijuana, searched a gold bag that belonged to Cleveland, who was a passenger in the vehicle. Although Cleveland had exited and walked twenty to thirty yards from the vehicle with the bag before being detained, this Court held the search valid because the bag had been inside the vehicle at the time of the initial seizure, and officers had probable cause from the outset to search the vehicle and its contents. Id. at 233.

4.   In its written order denying Brown's motion to suppress, the trial court appeared to analogize Brown's situation to that in Cleveland, 129 N.E.3d 227, reasoning that if probable cause existed to search the Virginia Street house for drugs, then probable cause existed to search Brown's backpack because he had exited the house carrying it. We decline to apply that reasoning here and affirm the trial court's judgment on other grounds.

Crone, Senior Judge.

Bradford, J., and DeBoer, J., concur.