MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 20 2017, 9:27 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon Jones, March 20, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1610-CR-2349 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1604-F2-8
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 1 of 7 [1] Brandon Jones appeals his convictions for Dealing in Cocaine, a Level 2
Felony;1 Possession of a Narcotic, a Level 6 Felony;2 Possession of a Controlled
Substance, a Class A Misdemeanor;3 and Carrying a Handgun Without a
License, a Class A Misdemeanor.4 He argues that the trial court erred when it
admitted evidence found on Jones after an officer conducted a pat-down search.
Finding no error, we affirm.
Facts [2] Around 11:24 a.m. on April 11, 2016, Fort Wayne Police Department
Detective George Nicklow was driving northbound on a street when he
observed a silver Chrysler Pacifica driving southbound on the same street. The
speed limit was thirty miles an hour; Detective Nicklow estimated that the
vehicle was traveling at about forty or forty-five miles per hour. The vehicle
crossed the center line, forcing the detective to swerve to get out of the way.
Detective Nicklow turned his vehicle around and attempted to conduct a traffic
stop on the vehicle for leaving its lane. He activated his emergency lights and
siren, but the vehicle continued about two blocks before stopping. In the
detective’s experience, vehicles usually pull over within half a block.
1 Ind. Code § 35-48-4-1(e). 2 I.C. § 35-48-4-6(a). 3 I.C. § 35-48-4-7(a). 4 Ind. Code § 35-47-2-1(a).
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 2 of 7 [3] Once the vehicle stopped, Detective Nicklow approached the car with Detective
Robert Hollo, who had arrived at the scene. Detective Shannon Hughes also
arrived. Two people were inside the car, including Jones, who had been
driving, and Brianna Brown, a passenger. Jones appeared nervous; his hands
were shaking and he avoided eye contact. Jones could not provide a driver’s
license or proof of insurance; Detective Nicklow verified through his squad car
computer that Jones did not have an Indiana driver’s license, and at the same
time, he noted that Jones did not have a permit to carry a handgun. The
detective then asked Jones to exit the vehicle because neither Jones nor Brown,
who also did not have proof of insurance, would be able to legally drive the
vehicle away from the scene.
[4] Detective Nicklow decided to conduct a pat-down of Jones. Because of Jones’s
nervous behavior, the length of time that it took Jones to stop his vehicle, and
their location in a high-crime area, Detective Nicklow feared that Jones
“possibly had a weapon on him.” Suppression Hearing Tr. p. 22. He advised
Jones that he would conduct a pat-down for officer safety and instructed him to
put his hands on top of his head. As Detective Nicklow began the pat-down,
Jones twice moved his hands down toward his waist. Detective Nicklow
advised him to not do that or else he would place Jones in handcuffs. When
the detective started the pat-down again, Jones moved his hands again, and the
detective put him in handcuffs. During the pat-down, Detective Nicklow
discovered a semi-automatic handgun inside Jones’s left front sweatpants
pocket. He asked Jones whether Jones had a permit to carry, and Jones
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 3 of 7 answered that the gun belonged to his brother. Detective Nicklow placed Jones
under arrest for carrying a handgun without a license.
[5] As the detective continued the pat-down, he observed a purple Crown Royal
bag in Jones’s right front sweatpants pocket. Detective Nicklow removed the
bag; inside were five plastic baggies that contained cocaine, a small glass vial
that contained cocaine, a plastic baggie that contained heroin, and several
alprazolam pills. The detective also discovered a digital scale and $445.
[6] The State charged Jones with dealing in cocaine, a Level 2 felony; possession of
a narcotic, a Level 6 felony; possession of a controlled substance, a Class A
misdemeanor; and carrying a handgun without a license, a Class A
misdemeanor. Before trial, Jones moved to suppress the evidence found during
the pat-down. At the suppression hearing, the trial court denied his motion. A
bench trial took place on August 10, 2016, and the trial court found Jones guilty
as charged. The trial court sentenced Jones to concurrent terms of eighteen
years for dealing in cocaine, with eleven years executed and seven suspended to
be served on probation; two years for possession of a narcotic; one year for
possession of a controlled substance, and one year for carrying a handgun
without a license. He now appeals.
Discussion and Decision [7] Jones argues on appeal that the trial court erred when it did not grant his
motion to suppress evidence. We initially observe that, because Jones is
appealing after a completed trial, the issue is properly framed as whether the
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 4 of 7 trial court erred in admitting the challenged evidence at trial. Lindsey v. State,
916 N.E.2d 230, 238 (Ind. Ct. App. 2009). A trial court has broad leeway in
ruling on the admissibility of evidence and we will disturb its rulings only where
the court erred in its ruling. Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind.
2012). An error occurs when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before it. Id.
[8] Jones contends that his pat-down was unreasonable pursuant to the Fourth and
Fourteenth Amendments to the United States Constitution.5 Jones does not
challenge the validity of the traffic stop or whether Detective Nicklow had a
reasonable basis for having Jones exit the vehicle; instead, he argues that
Detective Nicklow’s pat-down of him was unreasonable because there was no
reasonable suspicion that he was armed and dangerous. The State responds
that the search was legal under the search incident to arrest exception to the
Fourth Amendment’s warrant requirement.
[9] The Fourth Amendment protections against unreasonable search and seizure
have been extended to the states through the Fourteenth Amendment. Wilson v.
State,
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 20 2017, 9:27 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon Jones, March 20, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1610-CR-2349 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1604-F2-8
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 1 of 7 [1] Brandon Jones appeals his convictions for Dealing in Cocaine, a Level 2
Felony;1 Possession of a Narcotic, a Level 6 Felony;2 Possession of a Controlled
Substance, a Class A Misdemeanor;3 and Carrying a Handgun Without a
License, a Class A Misdemeanor.4 He argues that the trial court erred when it
admitted evidence found on Jones after an officer conducted a pat-down search.
Finding no error, we affirm.
Facts [2] Around 11:24 a.m. on April 11, 2016, Fort Wayne Police Department
Detective George Nicklow was driving northbound on a street when he
observed a silver Chrysler Pacifica driving southbound on the same street. The
speed limit was thirty miles an hour; Detective Nicklow estimated that the
vehicle was traveling at about forty or forty-five miles per hour. The vehicle
crossed the center line, forcing the detective to swerve to get out of the way.
Detective Nicklow turned his vehicle around and attempted to conduct a traffic
stop on the vehicle for leaving its lane. He activated his emergency lights and
siren, but the vehicle continued about two blocks before stopping. In the
detective’s experience, vehicles usually pull over within half a block.
1 Ind. Code § 35-48-4-1(e). 2 I.C. § 35-48-4-6(a). 3 I.C. § 35-48-4-7(a). 4 Ind. Code § 35-47-2-1(a).
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 2 of 7 [3] Once the vehicle stopped, Detective Nicklow approached the car with Detective
Robert Hollo, who had arrived at the scene. Detective Shannon Hughes also
arrived. Two people were inside the car, including Jones, who had been
driving, and Brianna Brown, a passenger. Jones appeared nervous; his hands
were shaking and he avoided eye contact. Jones could not provide a driver’s
license or proof of insurance; Detective Nicklow verified through his squad car
computer that Jones did not have an Indiana driver’s license, and at the same
time, he noted that Jones did not have a permit to carry a handgun. The
detective then asked Jones to exit the vehicle because neither Jones nor Brown,
who also did not have proof of insurance, would be able to legally drive the
vehicle away from the scene.
[4] Detective Nicklow decided to conduct a pat-down of Jones. Because of Jones’s
nervous behavior, the length of time that it took Jones to stop his vehicle, and
their location in a high-crime area, Detective Nicklow feared that Jones
“possibly had a weapon on him.” Suppression Hearing Tr. p. 22. He advised
Jones that he would conduct a pat-down for officer safety and instructed him to
put his hands on top of his head. As Detective Nicklow began the pat-down,
Jones twice moved his hands down toward his waist. Detective Nicklow
advised him to not do that or else he would place Jones in handcuffs. When
the detective started the pat-down again, Jones moved his hands again, and the
detective put him in handcuffs. During the pat-down, Detective Nicklow
discovered a semi-automatic handgun inside Jones’s left front sweatpants
pocket. He asked Jones whether Jones had a permit to carry, and Jones
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 3 of 7 answered that the gun belonged to his brother. Detective Nicklow placed Jones
under arrest for carrying a handgun without a license.
[5] As the detective continued the pat-down, he observed a purple Crown Royal
bag in Jones’s right front sweatpants pocket. Detective Nicklow removed the
bag; inside were five plastic baggies that contained cocaine, a small glass vial
that contained cocaine, a plastic baggie that contained heroin, and several
alprazolam pills. The detective also discovered a digital scale and $445.
[6] The State charged Jones with dealing in cocaine, a Level 2 felony; possession of
a narcotic, a Level 6 felony; possession of a controlled substance, a Class A
misdemeanor; and carrying a handgun without a license, a Class A
misdemeanor. Before trial, Jones moved to suppress the evidence found during
the pat-down. At the suppression hearing, the trial court denied his motion. A
bench trial took place on August 10, 2016, and the trial court found Jones guilty
as charged. The trial court sentenced Jones to concurrent terms of eighteen
years for dealing in cocaine, with eleven years executed and seven suspended to
be served on probation; two years for possession of a narcotic; one year for
possession of a controlled substance, and one year for carrying a handgun
without a license. He now appeals.
Discussion and Decision [7] Jones argues on appeal that the trial court erred when it did not grant his
motion to suppress evidence. We initially observe that, because Jones is
appealing after a completed trial, the issue is properly framed as whether the
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 4 of 7 trial court erred in admitting the challenged evidence at trial. Lindsey v. State,
916 N.E.2d 230, 238 (Ind. Ct. App. 2009). A trial court has broad leeway in
ruling on the admissibility of evidence and we will disturb its rulings only where
the court erred in its ruling. Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind.
2012). An error occurs when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before it. Id.
[8] Jones contends that his pat-down was unreasonable pursuant to the Fourth and
Fourteenth Amendments to the United States Constitution.5 Jones does not
challenge the validity of the traffic stop or whether Detective Nicklow had a
reasonable basis for having Jones exit the vehicle; instead, he argues that
Detective Nicklow’s pat-down of him was unreasonable because there was no
reasonable suspicion that he was armed and dangerous. The State responds
that the search was legal under the search incident to arrest exception to the
Fourth Amendment’s warrant requirement.
[9] The Fourth Amendment protections against unreasonable search and seizure
have been extended to the states through the Fourteenth Amendment. Wilson v.
State, 754 N.E.2d 950, 954 (Ind. Ct. App. 2001). Searches and seizures that
occur without prior judicial authorization in the form of a warrant are per se
unreasonable, unless an exception to the warrant requirement applies. Conwell v.
5 Jones does not make an argument regarding the constitutionality of the pat-down search under the Indiana Constitution. Therefore, Jones has waived this argument and we will only address the constitutionality of the search pursuant to the Fourth Amendment.
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 5 of 7 State, 714 N.E.2d 764, 766 (Ind. Ct. App. 1999). The State bears the burden of
proving that a warrantless search falls within one of the narrow exceptions to
the warrant requirement. State v. Friedel, 714 N.E.2d 1231, 1237 (Ind. Ct. App.
1999). One such exception is the search incident to arrest, which provides that
a police officer may conduct a search of the arrestee's person and the area
within his or her control. Stevens v. State, 701 N.E.2d 277, 280 (Ind. Ct. App.
1998) (citation omitted).
[10] It is well settled that a search is “incident” to an arrest when it can be said that
it “is substantially contemporaneous with the arrest and is confined to the
immediate vicinity of the arrest.” VanPelt v. State, 760 N.E.2d 218, 222 (Ind.
Ct. App. 2001). “The critical issue is not when the arrest occurs but whether
there was probable cause to arrest at the time of the search.” Id. at 223
(emphasis original). As long as probable cause existed 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.” Id. Probable cause to arrest
exists when an officer “has knowledge of facts and circumstances that would
warrant a man of reasonable caution to believe that a suspect has committed
the criminal act in question.” Id. An officer’s actual knowledge of objective
facts and circumstances determines whether the officer has probable cause. Id.
[11] Here, Detective Nicklow had probable cause to arrest Jones prior to the search
of his person. After Detective Nicklow observed Jones driving at a high rate of
speed and crossing the center line, he stopped Jones’s vehicle and asked him for
identification. When Jones could not provide a driver’s license or proof of
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 6 of 7 insurance, Detective Nicklow verified through his squad car computer that
Jones did not have an Indiana driver’s license. Indiana Code section 9-24-18-1
provides that operating a vehicle without a license is at least a Class C
misdemeanor. Indiana Code section 35-33-1-1(a)(4) provides that Indiana
police officers may arrest individuals whom they have probable cause to believe
committed a misdemeanor in their presence. The fact that Jones was driving
without a license would have warranted a man of reasonable caution to believe
that Jones had committed a misdemeanor and provided probable cause for his
arrest. Accordingly, Detective Nicklow had probable cause to arrest Jones due
to Jones driving without a license, making Jones’s arrest and Detective
Nicklow’s pat-down of Jones legal.
[12] Because the pat-down search was lawful under the Fourth and Fourteenth
Amendments and the evidence seized from it was legally obtained, the trial
court did not err in admitting the evidence.
[13] The judgment of the trial court is affirmed.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2349 | March 20, 2019 Page 7 of 7