MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be Aug 28 2018, 9:58 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Victoria L. Bailey Attorney General of Indiana Marion County Public Defender Agency - Jesse R. Drum Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Corey Day, August 28, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-103 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1607-F2-028483
Mathias, Judge.
[1] Corey Day (“Day”) was convicted in the Marion Superior Court of Level 2
felony dealing in a narcotic drug between five and ten grams and found to be an
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 1 of 14 habitual offender. Day was ordered to serve an aggregate sentence of twenty
years with eighteen years executed in the Department of Correction (“DOC”)
and two years in Marion County Community Corrections. Day appeals and
raises two issues for our review, which we consolidate and restate as, whether
the trial court abused its discretion when it admitted evidence obtained during a
search incident to Day’s arrest.
We affirm.
Facts and Procedural History [2] Around 2:00 p.m. on July 22, 2016, Indianapolis Metropolitan Police
Department (“IMPD”) Officer James Perry (“Officer Perry”) observed Day
failing to activate his turn signal 200-feet before changing lanes and initiated a
traffic stop. The stop occurred on the east side of Indianapolis on Washington
Street, which has two lanes of traffic traveling in both directions. The officer
pulled Day over in the far-right lane of the two west-bound lanes.
[3] Officer Perry approached the driver side door, and, as he began talking to Day,
he smelled raw and burnt marijuana. Day voluntarily admitted that he had
recently smoked marijuana. Officer Perry returned to his marked police car and
requested assistance from another officer. An unnamed officer arrived, and
Officer Perry “gave the run-down of what [] was going on and informed them
that I needed to get [Day] out of the vehicle.” Tr. p. 97. Officer Perry asked Day
to exit the car, and Day complied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 2 of 14 [4] Before Officer Perry searched the car, he informed Day that he was going to
conduct a pat-down to ensure that Day did not have any weapons on his
person. Officer Perry testified that the driver’s door was open and shielded Day
from any individuals walking by who could potentially witness the search. Just
after the officer began the pat-down, he had to stop because Day “began
reaching with his right hand towards his waistband . . . two or three times[.]”
Id. at 99. Officer Perry told Day to stop reaching for his waist, and when Day
did not comply, Officer Perry placed Day in handcuffs to ensure officer safety.
Id. He then “immediately went to pat down [Day’s] waistline in that area since
that’s what he was reaching for.” Id. at 100.
[5] Officer Perry did not “feel anything readily [] bumping out.” Id. But because of
“the way that [Day] was reaching and how intent he was[,]” he pulled Day’s
shorts approximately two inches away from his body. Id. Officer Perry looked
into Day’s shorts and saw a brown bag of heroin “tucked between [Day’s]
upper thigh and his testicles.” Id. The officer returned to his marked police car
to put on gloves, but as he was putting the gloves on, “Day shifted. And as he
shifted the heroin actually fell out of his shorts and onto the ground.” Id. at 101.
Officer Perry retrieved the heroin from the ground and “placed [it] into a plastic
evidence envelope or bag.” Id. Once the heroin was in an evidence bag, Officer
Perry conducted a search of Day’s car. Officer Perry found flakes of marijuana
in the car’s glove compartment. He also found $1,600 cash in Day’s front
pockets and multiple cell phones in the car.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 3 of 14 [6] Thereafter, Officer Perry contacted the East District Narcotics Detective unit,
and IMPD Officer Craig McElfresh (“Officer McElfresh”) arrived at the scene.
Officer McElfresh Mirandized Day, and he asked Day what kind of narcotics
were retrieved at the scene. Day admitted he possessed approximately six grams
of heroin. The officer asked Day if the heroin was his, and Day claimed that it
was not his, that he was delivering the heroin to another location, and that he
would be receiving a cut for the delivery.1 Id. at 177.
[7] On July 25, 2016, the State charged Day with Level 2 felony dealing in a
narcotic drug between five and ten grams and Level 4 felony possession of a
narcotic between five and ten grams. Day was also alleged to be an habitual
offender. On November 15, 2017, Day filed a motion to suppress. At a
suppression hearing, Day argued that the evidence obtained from Officer
Perry’s search should have been suppressed because the search violated his
Fourth Amendment rights. The trial court took the matter under advisement
and on November 22, 2017, denied Day’s motion to suppress.
[8] A jury trial was held on November 28, 2017, and the jury found Day guilty of
Level 2 felony dealing in a narcotic drug between five and ten grams and Level
4 felony possession of a narcotic drug between five and ten grams. At
sentencing, the court merged the Level 4 felony with the Level 2 felony and
found Day to be an habitual offender. Day was ordered to serve an aggregate
1 Officer McElfresh testified that “a cut” is street terminology for receiving payment for the delivery of drugs. Tr. p. 177.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 4 of 14 sentence of eighteen years executed in the DOC and two years in Marion
County Community Corrections. Day now appeals.
Standard of Review [9] Our review of a denied motion to suppress following a completed trial at which
the challenged evidence was admitted is properly a review of the trial court’s
decision to admit the evidence. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
2014). We review the trial court’s ruling on admissibility for abuse of discretion,
reversing only if the ruling is clearly against the logic and effect of the facts, and
the error affects substantial rights. Id. The constitutionality of a search or
seizure is a pure question of law we review de novo. Id.
I. Waiver
[10] We initially note that the State alleges that “Day waived his argument that the
trial court should have excluded the heroin evidence by not timely objecting at
trial.” Appellee’s Br. at 8. It is well established that “[a] contemporaneous
objection at the time the evidence is introduced at trial is required to preserve
the issue for appeal[.]” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).
However, Indiana Rule of Evidence 103(b) states that “[o]nce the court rules
definitively on the record at trial a party need not renew an objection or offer of
proof to preserve a claim on appeal.”
[11] Here, before the start of the jury trial, the trial court reviewed preliminary
instructions with counsel. The jurors were removed from the courtroom, and
the following conversation transpired:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 5 of 14 [Trial Court]: One thing I forgot to mention, just for purposes of the record, based on the motion to suppress, I’m going to treat the denial as a defendant overruling under Evidence Rule 103b. So now as part of the trial, you don’t … have to continuously object to [preserve it] for appeal.
[Day’s Counsel]: Sure.
[Trial Court]: So, I mean, obviously if you want to make some other motion or whatever at some point. But in terms of just the continuous objections, I think that relieves you from doing that.
[Day’s Counsel]: Thank you.
Tr. p. 79.
[12] The trial court instructed Day’s counsel that Day’s objection to the admission
of the evidence found during the search raised in his motion to suppress was
preserved for the purposes of appeal. The trial court’s ruling was proper under
Rule 103(b), and Day did not waive the issue by failing to object during Officer
Perry’s trial testimony. See Vehorn v. State, 717 N.E.2d 869, 872–73 (Ind. 1999)
(holding that an exception to the rule requiring contemporaneous objections
exists when the trial judge explicitly provides assurance during a pre-trial
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 6 of 14 hearing that counsel need not object at trial, and the objection is preserved for
purposes of appeal).2
II. Fourth Amendment
[13] Day argues that Officer Perry’s roadside search violated his Fourth Amendment
rights, and therefore the trial court erroneously admitted the evidence of heroin
stemming from the search.3 The Fourth Amendment to the United States
constitution, made applicable to the states through the Fourteenth Amendment,
provides in pertinent part that “[t]he right of people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated[.]” W.H. v. State, 928 N.E.2d 288, 294 (Ind. Ct.
App. 2010) (citing Mapp v. Ohio, 367 U.S. 643, 656 (1961)), trans. denied. And it
is well-settled that a search conducted without a warrant is per se unreasonable
unless it falls within a few well-delineated exceptions to the warrant
requirement. Porter v. State, 82 N.E.3d 898, 903 (Ind. Ct. App. 2017) (citing Katz
v. United States, 389 U.S. 347, 357 (1967)). One of those exception is a search
incident to arrest.
[14] The search incident to arrest exception “derives from interests in officer safety
and evidence preservation that are typically implicated in arrest situations.”
2 We acknowledge that Vehorn was decided prior to the 2014 amendment of Indiana Rule of Evidence 103(b). However, the rationale is still applicable, and Rule 103(b) was satisfied here. 3 While we do not express an opinion on the matter, we note that Day does not raise the issue of the search under Indiana Constitution Article 1, Section 11. Therefore, it is waived for review on appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 7 of 14 Arizona v. Gant, 556 U.S. 332, 338 (2009). “[S]o long as probable cause exists to
make an 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.’” Porter, 82
N.E.3d at 903 (quoting Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App.
2004)). Officer Perry’s roadside search of Day falls into the search incident to
arrest exception because he smelled marijuana emanating from Day’s car. See
Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014) (holding that the smell of
burnt marijuana is sufficient to provide probable cause to arrest and conduct a
search incident to arrest), trans. denied.
[15] However, “[e]ven if a search incident to arrest is permissible, it must still be
conducted in a reasonable manner.” Porter, 82 N.E.3d at 903. The United States
Supreme Court has provided four factors that courts must consider when
evaluating the reasonableness of a search incident to arrest: (1) the scope of the
intrusion, (2) the manner in which the search is conducted, (3) the justification
for initiating the search, and (4) the place where the search is conducted. Bell v.
Wolfish, 441 U.S. 520, 559 (1979) (“Wolfish”).
[16] This court analyzed the four Wolfish factors in Porter v. State and determined that
under the circumstances present in that case, the search was unreasonable. In
Porter, a police officer initiated a traffic stop on a vehicle in which Porter was
the passenger. After approaching the vehicle, the officer smelled a strong odor
of marijuana on Porter and determined that she had probable cause to conduct
a search incident to arrest. During the pat-down, the officer did not feel
anything of concern. After searching the vehicle and finding nothing, the officer
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 8 of 14 returned to Porter and continued to smell a strong odor of marijuana emanating
from her person. The officer then conducted a pat-down of Porter a second
time, but this time she inserted her hand into the front of Porter’s jeans and felt
an object inside of Porter’s underwear. The officer then placed her hand into
Porter’s underwear and retrieved a marijuana blunt. Porter appealed the
roadside search arguing that “the trial court erroneously admitted the evidence
of the marijuana blunt stemming from [the officer’s] roadside search of the
person.” Porter, 82 N.E.3d at 901.
[17] A panel of this court considered the reasonableness of the search of Porter in
light of the factors established in Wolfish. The Porter court first concluded that
the scope of intrusion was unreasonable because the officer “strenuously
pull[ed] Porter’s pants away from her body” and inserted her hand between
Porter’s underwear and her body. 82 N.E.3d at 905. The court next determined
that the State did not meet its burden to prove the reasonableness of the search
because it “presented limited evidence about the manner in which the search
was conducted[,]” and “there [was] no evidence as to whether [the officer]
conducted herself professionally, whether she wore gloves or followed proper
procedures, or whether she attempted to protect Porter from public
embarrassment.” Id. We acknowledged the justification for the initial search,
however, we concluded that there was “no justification for going steps further
than a [pat-down], up to and including [the officer] placing her hand inside
Porter’s underwear, aside from her suspicion that Porter possessed marijuana.”
Id. And relating to the place where the search was conducted, we concluded
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 9 of 14 that the evidence at trial established “that the search took place in a public
place, with no evidence that Porter was shielded from public view.” Id. at 906.
[18] After analyzing the four Wolfish factors, the Porter court stated:
While there was probable cause to search Porter incident to arrest and to conduct the initial search of Porter’s person, when [the officer] went several steps further by inserting her hand into Porter’s pants and then under her underwear, in a public place, with no voiced concerns about officer safety or destruction of evidence, the search became unreasonable.
Id. at 907. Thus, we held that the officer’s roadside search of Porter violated her
Fourth Amendment rights. Id. Because Day relies on this court’s decision in
Porter v. State in support of his argument that Officer Perry’s roadside search was
unreasonable, we will analyze each of the Wolfish factors in order.
1. Scope of Intrusion
[19] As to the first factor in Wolfish, the scope of intrusion, Day asserts that the
“genital revealing [pat-down]” was “invasive” and “egregious and
humiliating.” Appellant’s Br. at 18. However, Officer Perry testified that he did
not touch Day’s testicles or penis, and the heroin fell to the ground because Day
moved before it could be retrieved from his person. See Tr. pp. 18, 38. Mere
observation, while invasive, is not equivalent to the manual manipulation of
genitalia that occurred in Porter. Here, Officer Perry simply pulled Day’s shorts
approximately two inches away from his body, and he did not put his hands in
Day’s shorts. Tr. p. 35.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 10 of 14 [20] Officer Perry did not physically manipulate Day’s genitalia and did not subject
Day to public humiliation. He simply pulled Day’s pants away from his body.
Therefore, the scope of intrusion was significantly less invasive than the search
in Porter.
2. The Manner of Conducting the Search
[21] Day argues that the manner in which the search was conducted was intrusive
and invasive. However, the State presented sufficient evidence that the manner
in which the search was conducted was reasonable. Officer Perry testified that
when conducting a pat-down it is routine practice that he would “start on the
left side, [he’ll] go to the right side. And that’s when [he’ll] go to [] waistbands
and go further [from] there if [needed].” Tr. p. 133. Officer Perry began to
conduct a pat-down, but he never completed the pat-down because Day
reached toward the center of his waist “two or three times.” Id. at 99. As a
result, Officer Perry placed Day in handcuffs and conducted a subsequent
search to check for weapons. Officer Perry followed proper procedures, and he
attempted to protect Day from public embarrassment by keeping “him near the
driver’s door using [Day’s car] as kind of a barrier[.]”Id. at 98; Cf. Porter, 82
N.E.3d at 906 (finding the manner of the search unreasonable when evidence
did not show whether officer did anything to protect Porter from the view of
two men nearby or the public). Therefore, the manner in which Officer Perry
conducted the search was reasonable under the circumstances in the present
case.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 11 of 14 3. Justification for Initiating the Search
[22] Day argues that Officer Perry’s roadside search was unjustified because no
weapons were found on Day’s person. But Officer Perry pulled Day over for a
traffic violation and detected the smell of burnt marijuana. Day admitted that
he had recently smoked marijuana, and Officer Perry had probable cause to
conduct a search incident to arrest. See Bell, 13 N.E.3d at 546.
[23] Moreover, unlike the officer in Porter, who never voiced concern for officer
safety, Officer Perry testified that he was concerned for his safety because “as
[he] was starting to do the pat-down, [Day] began reaching to . . . the center
area of his waist[,]” and he “put [Day] in handcuffs[,] for obvious safety
reasons. [Officer Perry] didn’t know what he was reaching for. There was the
potential for somebody reaching for a weapon.” Tr. p. 9. At this point in time,
Officer Perry was concerned “for officer safety reasons. . . . [Day] had been very
cooperative up to that point, and then suddenly was wanting to make some
other movements besides what we wanted him to. So out of fear for [the
officers’] own safety, we felt [Day] needed to be restrained.” 4 Id. at 99. Officer
Perry’s decision to look inside Day’s shorts for a weapon was a reasonable and
justified split-second decision given the circumstances. See Chimel v. California,
4 Officer Perry recounted that in his experience, he’s “come across people that have tried to hide knives[.]” Tr. p. 16. He has also learned “about people hiding handcuff keys, which is also [] a safety issue because if somebody is able to get their cuffs off, then that defeats [the purpose of the cuffs].” Id. Further, Officer Perry testified that he searched for weapons because he knew “there have been cases where people who are handcuffed have actually pulled handguns out and shot at police officers, pulled weapons out[, and] destroyed evidence.” Id. at 137.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 12 of 14 395 U.S. 752, 763 (1969) (A search incident to an arrest is justified in order “to
remove any weapons that the [arrestee] might seek to use in order to resist
arrest or effect his escape . . . [or] to search for and seize any evidence on the
arrestee’s person in order to prevent its concealment or destruction.”).
4. The Place the Search Was Conducted
Finally, as for the place in which it was conducted, the State presented
sufficient evidence to show the search took place at approximately 2:00 p.m.,
on East Washington Street in the near-east area of Downtown Indianapolis.
The search occurred during the daylight hours and on a busy street, but Officer
Perry used the driver’s door of Day’s car as a shield from oncoming traffic and
public eye by keeping Day behind the driver’s door for the duration of the
search. Cf. Porter, 82 N.E.3d at 906 (where there was no evidence the officer
took any precautions to protect Porter from public view and humiliation).
While Porter instructs us that the place where the search was conducted is
relevant, we decline to hold that a search is unreasonable simply because it
occurred during the daylight and on a busy street. Doing so would allow
individuals higher protection to conduct illegal activities when these
circumstances are present.
[24] Having examined all of the Wolfish factors, we conclude that this search was
reasonable under the Fourth Amendment because Officer Perry had probable
cause to search Day incident to arrest based on the detection and admission of
burnt marijuana. Further, Officer Perry looked into Day’s shorts to check for a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 13 of 14 weapon, which was reasonable because Day kept reaching for his waist.
Additionally, the search was justified because there was genuine concern for
officer safety. And although it occurred in a public place, Day’s exposure to the
public was minimal.
Conclusion [25] Based on the facts and circumstances before us, we conclude that the search
incident to arrest did not violate Day’s Fourth Amendment rights, and the trial
court did not abuse its discretion in admitting the evidence seized during the
search.
[26] Affirmed.
Bailey, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-103 | August 28, 2018 Page 14 of 14