MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 27 2019, 9:17 am
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 Valerie K. Boots Curtis T. Hill, Jr. Michael R. Fisher Attorney General of Indiana Marion County Public Defender Agency Samuel J. Dayton Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dax Lee Bailey, November 27, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1239 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Jennifer Prinz Harrison, Judge Trial Court Cause No. 49G20-1809-F3-32561
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 1 of 15 [1] Dax Lee Bailey (“Bailey”) was convicted after a bench trial of dealing in
methamphetamine1 as a Level 3 felony and found to be a habitual offender.
Bailey appeals and raises the following restated issue: whether the trial court
abused its discretion when it admitted evidence discovered during a search
incident to arrest because the initial detention of Bailey and the subsequent
search violated his rights under the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution.
[2] We affirm.
Facts and Procedural History [3] On September 20, 2018, Indianapolis Metropolitan Police Department
(“IMPD”) Officer Ryan Dienhart (“Officer Dienhart”) was on patrol in the area
of 1050 East Raymond Street in Indianapolis, Indiana at approximately 8:45
p.m. Supp. Tr. Vol. II at 5-6. At the time of the suppression hearing, Officer
Dienhart had been with IMPD for approximately four-and-a-half years and had
received training in the recognition of narcotics; of that time, Bailey had been
assigned to the beat that included 1050 East Raymond Street for approximately
three years.. Id. at 4-6. The area was a “documented high crime area with a
high social disorder index.” Id. at 6. Within a one-block radius around the
intersection of Raymond and Shelby Streets there were high rates of reported
crimes, including “panhandling at the intersection, misdemeanor thefts from
1 See Ind. Code § 35-48-4-1.1.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 2 of 15 businesses, robberies of businesses, armed robberies of persons, persons shot,
persons stabbed, auto thefts[, and] . . . homicides.” Id.
[4] While on patrol that night, Officer Dienhart and another officer were at a BP
gas station (“the BP”) at the corner of Raymond and Shelby Streets in response
to an investigation of suspicious people loitering in the parking lot. Id. at 6-8.
IMPD and the BP had a “trespass agreement,” which Officer Dienhart
described as a contract between the private business and IMPD where the
business gives IMPD permission to “allow officers to become agents of the
property . . . and identify and trespass persons from that property without
having to go through an employee of the business.” Id. at 7. The agreement
between the BP and IMPD had no restrictions regarding who may be
“trespass[ed]” by IMPD. Id.
[5] Officer Dienhart and his partner were speaking with some individuals who
were at the BP when Officer Dienhart noticed an individual running from the
entrance of the BP to a car parked at a gas pump and then run back to the
entrance of the BP. Id. at 8. Officer Dienhart noticed that the individual, later
identified as Bailey, was staggering, “his stride was not steady,” and he
“seemed to be flailing about.” Id. Based on his experience as an officer, Officer
Dienhart believed Bailey was “under the influence of some sort of intoxicant,”
and he remembered looking at his partner as they wondered what Bailey was
doing and “what was wrong with him.” Id. at 8-9.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 3 of 15 [6] Officer Dienhart and his partner finished the investigation that had brought
them to the BP and walked to the car from which they had seen Bailey run back
and forth. Id. at 9. Officer Dienhart “initiated a consensual encounter with the
driver of the vehicle” and asked the driver what he was doing at the gas station,
who the person was who had run back and forth from the car, and, in greater
detail, what they were doing. Id. The driver was not cooperative at first and
stated that he did not know the other person’s name and that he was just
“giving [him] a ride,” which Officer Dienhart found unusual and suspicious
given the area of high crime. Id. As the conversation continued, the driver
became more cooperative when Officer Dienhart told the driver “the
information he was providing” did not make sense and the driver was going to
be detained. Id.
[7] As Officer Dienhart was speaking with the driver, he observed in the rear
passenger’s side seat, in plain view, a black container or case, which had a
plastic baggie protruding from it. Id. at 10. Officer Dienhart “immediately
suspected that that container and case contained either illegal paraphernalia
and/or narcotics.” Id. His suspicions were later confirmed when he searched
the car with the driver’s consent and found three empty syringes, two baggies of
spice, which is synthetic marijuana, a half of an unknown pill, and rolling
papers. Id. While this interaction between Officer Dienhart and the driver was
happening, Bailey approached the car again, and as he did so, he looked
“fidgety,” his “eyes were darting all about,” and when he spoke, his speech was
“staggered and not normal.” Id. at 10-11. Bailey’s appearance furthered
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 4 of 15 Officer Dienhart’s suspicion that Bailey was under the influence of “some sort
of intoxicant, which [he] suspected to be some type of narcotic drug.” Id. at 11.
Officer Dienhart tried to ask Bailey what he was doing, and Bailey’s speech was
“rambling” and “inconsistent,” making him unable to have a “coherent
conversation.” Id. Officer Dienhart asked Bailey his identity, and Bailey
initially provided “deceitful” information. Id. at 11-12.
[8] From the time that Bailey returned to the car from the BP and Officer Dienhart
made his observations of Bailey’s demeanor, Officer Dienhart believed Bailey
was detained and not free to leave. Id. at 13-15. Although it is not clear when
Bailey was made aware of this, he was placed in handcuffs at some point after
returning to the car. Id. at 14-15. Officer Dienhart placed Bailey in handcuffs
based on Officer Dienhart’s concerns that they were in a high crime area, the
significant safety issues involved with a person being under the influence of an
unknown intoxicant, and the need to safely conduct an investigation. Id. at 15-
16.
[9] Officer Dienhart eventually learned Bailey’s name and birthdate and conducted
a background search using that information. Id. at 12. Through that search,
Officer Dienhart discovered that there was an active warrant for Bailey’s arrest
for felony possession of methamphetamine and placed him under arrest. Id. at
12. Officer Dienhart performed a search incident to arrest and found what he
believed to be a bag of methamphetamine. Id. at 12-13. After Officer Dienhart
read Bailey his Miranda rights, Bailey told the officer that he had obtained the
bag of methamphetamine from an unknown and unnamed individual earlier
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 5 of 15 that day as a “gift,” and he was going to give it to someone else in exchange for
help for his family. Tr. Vol. II at 24. Forensic examination revealed that the
substance Officer Dienhart found on Bailey during the search incident to arrest
was methamphetamine. Id. at 26-28.
[10] On September 25, 2018, the State charged Bailey with dealing in
methamphetamine as a Level 3 felony and possession of methamphetamine as
a Level 5 felony. Appellant’s App. Vol. II at 21. On January 14, 2019, Bailey
filed a motion to suppress the evidence arising out his detention and his
subsequent search. Id. at 55-56. A hearing was held on the motion to suppress,
and the trial court subsequently denied the motion. Id. at 57, 61. On March 4,
2019, the State filed an allegation that Bailey was a habitual offender. Id. at 65-
66. A bench trial was held, and with the consent of both parties, the trial court
incorporated the testimony from the suppression hearing as part of the record
for the bench trial. Tr. Vol. II at 21-22. At the conclusion of the trial, the trial
court found Bailey guilty as charged but vacated the possession of
methamphetamine conviction. On May 8, 2019, Bailey was sentenced to
twelve years for Level 3 felony dealing in methamphetamine, and that sentence
was ordered enhanced by six years for Bailey’s habitual offender status, for an
aggregate sentence of eighteen years. Appellant’s App. Vol. II at 13-14. Bailey
now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 6 of 15 Discussion and Decision [11] Bailey argues that the trial court erred when it admitted evidence obtained after
a search incident to arrest. Because Bailey did not seek an interlocutory appeal
of the denial of his motion to suppress but proceeded to trial, we review his
claim as one challenging the admission of evidence at trial. Gerth v. State, 51
N.E.3d 368, 372 (Ind. Ct. App. 2016) (citing Carpenter v. State, 18 N.E.3d 998,
1001 (Ind. 2014)). Our standard of review of a trial court’s admission of
evidence is an abuse of discretion. Mack v. State, 23 N.E.3d 742, 750 (Ind. Ct.
App. 2014), trans. denied. A trial court abuses its discretion if its decision is
clearly against the logic and effect of the facts and circumstances before the
court or if the court misapplies the law. Id.
[12] Bailey argues that the trial court abused its discretion when it admitted the
evidence of methamphetamine that was discovered during the search incident
to arrest. Although he concedes that the search incident to arrest itself did not
violate any constitutional prohibitions, Bailey contends that the evidence was
illegally obtained because Officer Dienhart had no reasonable suspicion of
criminal activity to initially detain him, and the encounter between Bailey and
Officer Dienhart was not consensual; therefore, the evidence discovered must
be excluded as the illegal detention violated the Fourth Amendment to the
United States Constitution. Bailey also argues that the evidence should have
been excluded because the actions by the police violated Article 1, Section 11 of
the Indiana Constitution because the actions of the police were not reasonable
because there was no degree of concern, knowledge, or suspicion that a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 7 of 15 violation had occurred, his detention was a serious imposition on his ordinary
activities, and there was no legitimate law enforcement need to detain him
merely because the officers were in a high crime area.
Fourth Amendment
[13] The Fourth Amendment to the United States Constitution protects citizens
against unreasonable searches and seizures by prohibiting them without a
warrant supported by probable cause. U.S. Const. amend. IV. “‘As a general
rule, the Fourth Amendment prohibits a warrantless search. When a search is
conducted without a warrant, the State has the burden of proving that an
exception to the warrant requirement existed at the time of the search.’”
Glasgow v. State, 99 N.E.3d 251, 257 (Ind. Ct. App. 2018) (citing Berry v. State,
704 N.E.2d 462, 465 (Ind. 1998)).
[14] “Encounters between law enforcement officers and public citizens take a variety
of forms, some of which do not implicate the protections of the Fourth
Amendment and some of which do.” Clark v. State, 994 N.E.2d 252, 261 (Ind.
2013). Consensual encounters in which a citizen voluntarily interacts with a
police officer do not compel Fourth Amendment analysis. Id. However,
nonconsensual encounters do require such analysis and typically fall into two
categories: (1) a full arrest lasting longer than a short time, which requires
probable cause; and (2) a brief investigative stop, often known as a Terry stop,
which requires a lower standard of reasonable suspicion. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 8 of 15 [15] Law enforcement officers may stop and briefly detain a person if the officer has
reasonable suspicion to believe that criminal activity has occurred or is about to
occur. Grayson v. State, 52 N.E.3d 24, 27 (Ind. Ct. App. 2016) (citing Holly v.
State, 918 N.E.2d 323, 325 (Ind. 2009)), trans. denied. Reasonable suspicion
must be comprised of more than hunches or unparticularized suspicions. Id.
“Taking into account the totality of the circumstances or the whole picture, the
detaining officers must have a particularized and objective basis for suspecting
the particular person stopped of criminal activity.” Id. (citing Clark, 994 N.E.2d
at 264). In determining whether reasonable suspicion existed, we must
examine the facts as known to the officer at the moment of the stop. Id.
Findings of reasonable suspicion are reviewed de novo, and such review is a
fact-sensitive inquiry. Id.
[16] In the present case, at the time that Officer Dienhart detained Bailey, the officer
had reason to believe that Bailey had committed or was committing the offenses
of possession of a narcotic drug and public intoxication. A person who
knowingly or intentionally possesses a narcotic drug without a valid
prescription commits possession of a narcotic drug as a Level 6 felony. Ind.
Code § 35-48-4-6(a). A person commits public intoxication as a Class C
misdemeanor when he or she is in a public place in a state of intoxication
caused by the person’s use of alcohol or a controlled substance if the person
endangers his or her own life, breaches the peace, or is in imminent danger of
breaching the peace. Ind. Code § 7.1-5-1-3(a)(1), (a)(3).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 9 of 15 [17] When Officer Dienhart first noticed Bailey and the car parked by the gas pump
and its driver, he observed Bailey run from the BP entrance to the car and back,
and the manner in which Bailey was running caused Officer Dienhart and his
partner to wonder if something was wrong with him. Supp. Tr. Vol. II at 8.
Bailey was staggering, “his stride was not steady,” and he “seemed to be flailing
about.” Id. Based on his training and experience, Officer Dienhart believed
Bailey was “under the influence of some sort of intoxicant,” and he
remembered looking at his partner as they wondered what Bailey was doing
and “what was wrong with him.” Id. at 8-9. When the officers walked over to
the car parked by the gas pump to inquire into the situation, the driver was
initially uncooperative and claimed not to know who Bailey was but that he
was just giving Bailey a ride. Id. at 9. While Officer Dienhart spoke with the
driver, he observed in the rear passenger’s side seat, in plain view, a black
container or case, which had a plastic baggie protruding from it. Id. at 10.
Officer Dienhart “immediately suspected that that container and case contained
either illegal paraphernalia and/or narcotics,” which was a reasonable
assumption based on the officer’s training and experience. Id. Bailey’s
behavior, which was consistent with intoxication, the fact that Bailey had run
back and forth to the car containing the suspected narcotics and was getting a
ride from the driver, and the high crime rate of the area all contributed to the
officer’s reasonable suspicion that criminal activity had occurred or was about
to occur. It was also reasonable for Officer Dienhart to believe the black case or
container inside the car belonged to Bailey or was in his possession since he was
getting a ride from the driver of the car and had recently run back and forth to Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 10 of 15 the car. Additionally, Bailey’s behavior when Officer Dienhart first made
contact with him, including being “fidgety,” having his “eyes darting all about,”
and speaking in a staggered and abnormal way, provided further grounds for
Officer Dienhart to be suspicious that Bailey was in possession of a narcotic
drug. Id. at 10-11.
[18] Officer Dienhart also had reasonable suspicion to believe that Bailey was
intoxicated in a public place in a manner that endangered his life, was
breaching the peace, or was in imminent danger of breaching the peace. When
Officer Dienhart approached the car, he had previously observed Bailey
staggering and flailing across the parking lot twice and moving in an unsteady
manner. Id. at 8. Based on his training and experience, Officer Dienhart
believed Bailey was “under the influence of some sort of intoxicant,” and he
and his partner wondered what Bailey was doing and “what was wrong with
him.” Id. at 8-9. Bailey’s actions took place in a busy gas station parking lot at
nearly 9:00 p.m., and it was reasonable for Officer Dienhart to believe that
Bailey was acting in a way that placed him in danger from being hit by a vehicle
whose driver might not see him until it was too late and that Bailey lacked the
mental or physical capacity to avoid being hit by vehicles in the parking lot. Id.
at 6. Further, when Bailey approached the car and the officers, his appearance
deepened Officer Dienhart’s suspicion that Bailey was under the influence of
“some sort of intoxicant, which [Officer Dienhart] suspected to be some type of
narcotic drug” because of his “rambling” and “inconsistent” speech that made
him unable to have a “coherent conversation.” Id. at 11. Likewise, Bailey’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 11 of 15 conduct of “flailing about” could have given rise for Officer Dienhart to suspect
that Bailey was either breaching the peace or in imminent danger of doing so.
Id. at 8. When asked questions about his identity, Bailey also provided
“deceitful” information, which added to the officer’s suspicion that Bailey may
have been involved in criminal activity. We, therefore, conclude that Officer
Dienhart had reasonable suspicion to justify the investigatory stop, and Bailey’s
detention did not violate the Fourth Amendment.
[19] Further, we conclude that the fact that Bailey was placed in handcuffs during
the investigatory stop does not elevate it to the level of an arrest requiring
probable cause. Looking at the totality of the circumstances, we have already
determined that Officer Dienhart had reasonable suspicion to detain Bailey.
Additionally, Officer Dienhart testified that he had handcuffed Bailey due to
the high crime nature of the area and his concern for officer safety due to
Bailey’s suspected intoxication from some unknown substance. Id. at 15. He
also stated that he placed Bailey in handcuffs because of the unknown nature of
Bailey’s intoxication, Bailey’s erratic behavior, and the need to ensure the
officer’s safety while conducting the investigation. Id. at 15-16. As part of a
valid Terry stop, the investigating officer is entitled to take reasonable steps to
ensure his own safety. Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010).
Based on the totality of the circumstances, we conclude that placing Bailey in
handcuffs did not elevate the proper investigatory stop into an arrest.
Indiana Constitution
[20] Article 1, Section 11 of the Indiana Constitution provides: Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 12 of 15 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
Although its text mirrors the Fourth Amendment to the United States
Constitution, we interpret Article 1, Section 11 of the Indiana Constitution
separately and independently. Washburn v. State, 121 N.E.3d 657, 662 (Ind. Ct.
App. 2019), trans. denied. In Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), our
Supreme Court “explicitly rejected” the Fourth Amendment’s “expectation of
privacy as a test of the reasonableness of a search or seizure,” emphasizing that
“legality of a governmental search under [Section 11 of] the Indiana
Constitution turns on an evaluation of the reasonableness of the police conduct
under the totality of the circumstances.” Id. at 359 (emphasis added).
Therefore, the reasonableness of search or seizure under Article 1, Section 11, is
governed by the balancing of the following factors: (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. at 361. None of
these factors is dispositive; they must be considered together, considering the
facts of a search, in order to arrive at a conclusion about the reasonableness of
police conduct. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 13 of 15 [21] Here, the degree of concern, suspicion, or knowledge that a violation had
occurred was high. Officer Dienhart had twice observed Bailey stagger with an
unsteady stride and flail about as he ran back and forth from the BP entrance to
a car in the parking lot. Supp. Tr. Vol. II at 8. Based on his training and
experience, Officer Dienhart believed Bailey was “under the influence of some
sort of intoxicant.” Id. When speaking with the driver of the car, the officer
saw a baggie protruding from a black container in the seat behind the
passenger’s seat, and the driver’s answers to the officer’s questions increased his
suspicions that the baggie contained narcotics, which was also heightened due
to Bailey’s suspected intoxicated state. Id. at 10-11. The concern, suspicion, or
knowledge that Bailey was engaged in the possession of narcotics was further
increased when Bailey was “deceitful” in providing identifying information. Id.
at 11-12. Additionally, Officer Dienhart testified that he had handcuffed Bailey
due to the high crime nature of the area and his concern for officer safety due to
the unknown nature of Bailey’s intoxication, Bailey’s erratic behavior, and the
need to ensure the officer’s safety while conducting the investigation. Id. at 15-
[22] Admittedly, the degree of intrusion imposed on Bailey weighed somewhat
against the State because Bailey was handcuffed, but there was no evidence as
to how long he was handcuffed before the police learned that he had an active
warrant for his arrest. As to the extent of law enforcement needs, Officer
Dienhart had seen Bailey engage in erratic and dangerous conduct, which led
him to believe that Bailey was intoxicated in a public place, and allowing Bailey
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 14 of 15 to leave without determining what was causing his behavior may have
endangered him or others. Additionally, Officer Dienhart had observed
suspected narcotics in the car in which Bailey was a passenger, and when the
officer first encountered Bailey, Bailey’s speech was rambling and incoherent,
and he was not truthful when asked for identifying information, which
furthered the officer’s suspicion that Bailey was under the influence of some
type of narcotic drug. Id. at 11. Allowing the driver and Bailey to leave
without fully investigating whether there were narcotics in the vehicle could
have led to the destruction of evidence. Therefore, additional investigation was
necessary before they could be allowed to leave. Bailey asserts that Officer
Dienhart detained Bailey solely to conduct a search for warrants. Appellant’s Br.
at 18. However, the evidence showed that Officer Dienhart detained Bailey as
part of a narcotics investigation and for safety purposes due to his behavior.
Although we agree that the intrusion into Bailey’s ordinary activities was
relatively high, balanced against the concern and suspicion that Bailey was
intoxicated and in possession of narcotics and law enforcement needs to
investigate the situation before Bailey could endanger himself or others or
destroy the evidence of drugs, the weight of these factors favors a determination
that Bailey’s detention was reasonable under the totality of the circumstances.
We, therefore, conclude that the detention of Bailey was permissible under
Article 1, Section 11 of the Indiana Constitution.
[23] Affirmed.
Baker, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1239 | November 27, 2019 Page 15 of 15