Jeremy Jay Ellis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 27, 2019
• Docket: 19A-CR-462
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 27 2019, 7:45 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeremy Jay Ellis, September 27, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-462 v. Appeal from the Lagrange Superior Court State of Indiana, The Honorable Lisa M. Bowen- Appellee-Plaintiff Slaven, Judge Trial Court Cause No. 44D01-1711-F4-20

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 1 of 12 [1] Jeremy Ellis appeals his convictions and sentence for Level 4 Felony

Manufacturing Methamphetamine,1 Level 6 Felony Possession of

Methamphetamine,2 and Level 6 Felony Possession of Precursors.3 Ellis argues

(1) that the trial court erroneously admitted evidence discovered pursuant to an

allegedly illegal search, and (2) that the sentence is inappropriate in light of the

nature of the offenses and his character. Finding no error and that the sentence

was not inappropriate, we affirm.

Facts [2] At around 4:00 A.M. on November 15, 2017, LaGrange County Sheriff’s

Deputy Matthew Schwartz was dispatched to the LaGrange Public Library

following a report of a suspicious male who appeared to be sleeping by the

library’s front entrance. Upon arrival at the library, Schwartz found Ellis, who

was homeless at the time, sitting and leaning against a pillar by the front door,

with a duffel bag and trash bag within arm’s reach.

[3] Deputy Schwartz approached Ellis and began talking with him about why he

was there. During this conversation, Ellis kept reaching into his pants pockets.

Schwartz asked Ellis to remove his hands from his pockets and Ellis initially

complied, but continued putting his hands back in his pockets. Schwartz then

1 Ind. Code § 35-48-4-1.1. 2 I.C. § 35-48-4-6.1(a). 3 I.C. § 35-48-4-14.5(e).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 2 of 12 asked Ellis if he had any weapons. Ellis responded that he had a knife, so

Schwartz conducted a pat-down search for weapons, during which Schwartz

felt a cylindrical object in Ellis’s left pants pocket. Thinking that it “could have

been a knife,” tr. vol. II p. 204, Schwartz retrieved the object and saw that it

was a plastic baggie containing a hollowed-out pen, resembling a straw, with a

white powdery residue visible inside the pen shell. Deputy Schwartz testified

that, based on his experience as a police officer, he “immediately” recognized

the pen shell as an object used to consume methamphetamine. Id. at 8, 204.

[4] Deputy Schwartz then handcuffed Ellis and placed him under arrest. During a

search incident to arrest, the deputy found a piece of tin foil inside Ellis’s wallet,

which Ellis admitted he used for consuming methamphetamine. Deputy

Schwartz also found a small plastic baggie containing a white powdery

substance that was later determined to be methamphetamine. Police later

searched Ellis’s duffel bag and trash bag, finding multiple items used in the

“one pot” method of methamphetamine production. Tr. Vol. II p. 168.

[5] On November 15, 2017, the State charged Ellis with Level 4 felony

manufacturing methamphetamine, Level 6 felony possession of

methamphetamine, and Level 6 felony possession of precursors. On November

27, 2017, Ellis filed a motion to suppress, which the trial court denied at a

hearing held on February 28, 2018.

[6] A jury trial was held January 16-17, 2019, at the conclusion of which the jury

found Ellis guilty as charged. On February 11, 2019, the trial court imposed an

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 3 of 12 eight-year sentence for the Level 4 felony conviction and concurrent one and

one-half year sentences for each of the two Level 6 felony convictions, for a

total of eight years imprisonment. The trial court recommended Ellis for

placement in the Purposeful Incarceration Program and stated that it would

consider a sentence modification upon Ellis’s successful completion of the

Program. Ellis now appeals.

Discussion and Decision I. Admission of Evidence [7] Ellis’s first argument on appeal is that the trial court improperly admitted

evidence obtained from an illegal search. Admission or exclusion of evidence is

within the trial court’s sound discretion and is given great deference on appeal.

E.g., Ennik v. State, 40 N.E.3d 868, 877 (Ind. Ct. App. 2015). We will reverse a

trial court’s ruling on admissibility only if the decision is clearly against the

logic and effect of the facts and circumstances or if the trial court has

misinterpreted the law. Id. However, to the extent that admissibility of evidence

turns on the constitutionality of the search that discovered the evidence, our

review is de novo. Jacobs v. State, 76 N.E.3d 846, 849 (Ind. 2017).

[8] Ellis argues that the pat-down search that culminated in the discovery of the

pen exceeded the permissible scope of a pat-down search under both the Fourth

Amendment to the U.S. Constitution and Article 1, Section 11 of the Indiana

Constitution. Ellis further contends that because the initial search was illegal,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 4 of 12 all subsequently obtained evidence was the result of an unconstitutional act and

was improperly admitted.

A. Fourth Amendment [9] The Fourth Amendment to the U.S. Constitution provides that “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against

unreasonable search and 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

searched.”

[10] One exception to the Fourth Amendment search warrant requirement provides

that officers may conduct a “reasonable search for weapons for the protection of

the police officer, where he has reason to believe that he is dealing with an

armed and dangerous individual, regardless of whether he has probable cause to

arrest the individual for a crime.” Terry v. Ohio, 392 U.S. 1, 27 (1968). The

officer need not be absolutely certain that the individual is armed; instead, the

issue is whether a reasonably prudent person in the circumstances would be

warranted in the belief that his or her safety or that of others was in danger. Id.

In determining whether the officer acted reasonably, due weight must be given

to “specific reasonable inferences which he is entitled to draw from the facts in

light of his experience.” Id.

[11] Here, Deputy Schwartz appropriately conducted the pat-down search of Ellis

because Ellis’s statement that he had a knife gave Schwartz reason to believe he

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 5 of 12 was dealing with an armed individual. See Harris v. State, 878 N.E.2d 534, 538

(Ind. Ct. App. 2007) (holding that officer’s pat-down search and removal of

object was permissible under Terry where defendant had told officer he had a

pocket knife; officer “needed to ensure he removed all potentially dangerous

items”). Ellis argues that Schwartz had no reason to believe Ellis was a threat or

that he had a weapon on his person, as opposed to in his duffel bag, where the

knife was eventually found. However, when Ellis stated that he had a knife, he

did not specify where the knife was, but rather just stated that he had one.

Nothing about Ellis’s statement would sufficiently dispel any concern that a

knife may have been located on Ellis’s person, especially when considered in

conjunction with Ellis’s repeated insertion of his hands into his pockets.

Schwartz’s subsequent pat-down search was therefore valid.

[12] Ellis further argues that even if initiation of the pat-down search was justified,

the scope of the search was unconstitutional because Deputy Schwartz “should

have known the object in Mr. Ellis’s pants pocket was just a writing utensil

when he felt the pen through Mr. Ellis’s clothing” and that the object “clearly

was not a knife,” and therefore should not have been retrieved. Appellant’s Br.

p. 17.

[13] We find this argument unconvincing. Because the purpose of a pat-down search

for weapons is to protect officer safety, “police may remove an item whose

identity is not immediately discernable by touch and that might be used as a

weapon.” Harris, 878 N.E.2d at 538 (holding removal of a pill bottle during pat-

down search for weapons was proper); see also, e.g., Shinault v. State, 668 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 6 of 12 274 (Ind. Ct. App. 1996) (holding removal of object during a pat-down search

was proper when officer felt cylindrical bulge in defendant’s pocket; even

though the object turned out to be a bag of marijuana, the officer “was unable

to immediately eliminate the possibility that the tightly rolled plastic bag of

marijuana was not some sort of dangerous weapon”). Here, Deputy Schwartz

testified that he thought the object he felt in Ellis’s pocket could potentially be a

weapon. We agree with the State that a small knife could be the size of a pen,

and that “it would not necessarily be immediately apparent that a hard,

cylindrical object was a hollow part of a pen rather than a small knife.”

Appellee’s Br. p. 19; see also Clanton v. State, 977 N.E.2d 1018, 1026 (Ind. Ct.

App. 2012) (upholding removal of sharp item from defendant’s pocket that

turned out to be a pen cap).

[14] Once an item suspected to be a weapon is removed, “if an officer determines

that an item is not a weapon and the officer cannot immediately ascertain

whether or not the item is contraband, then the search of that item must stop.”

Clanton, 977 N.E.2d at 1025; see also Granados v. State, 749 N.E.2d 1210, 1215

(Ind. Ct. App. 2001) (holding that an illegal search occurred where officer

found cocaine only after he unfolded a five-dollar bill that had fallen from

defendant’s sock during a pat-down search, because once on the ground, the bill

posed no legitimate threat). But when an item is removed during a valid pat-

down for weapons and its illicit nature is immediately apparent, then no Fourth

Amendment violation has occurred and the item may be properly be used as

evidence. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (stating

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 7 of 12 nature of object as contraband must be immediately apparent by either sight or

touch to justify seizure without probable cause); Bratcher v. State, 661 N.E.2d

828, 833 (Ind. Ct. App. 1996) (“Because the officer discovered the bag of

marijuana during a search for weapons and the incriminating character was

immediately apparent . . . the search was authorized under Terry and, thus,

seizure of the marijuana was valid under the United States Constitution.”); cf.

Clanton, 977 N.E.2d at 1025-26 (finding removal of pen cap from pocket was

permissible but subsequent search inside the cap to find baggie of cocaine was

not); Harris, 878 N.E.2d at 538-39 (holding that search of interior of pill bottle

found during pat-down for weapons was beyond scope of Terry because illicit

nature of its contents was discovered only after opening it and shining a light

inside).

[15] Here, Deputy Schwartz testified that, upon removing the hollowed-out pen

from Ellis’s pocket, he “immediately recognized it to be an item . . . used to

consume methamphetamine,” tr. vol. II p. 8 (emphasis added), and was able to

recognize it as such “because of [his] training and experience as a law

enforcement officer,” tr. vol. II p. 204. The presence of a “light residue,” tr. vol.

II p. 8, on the inside of the pen was also plainly visible to Deputy Schwartz

without having to manipulate the object in any way or take any additional

steps. As such, the nature of the item as paraphernalia was immediately

apparent to Deputy Schwartz. Thus, the search was constitutional—and

evidence was properly admitted—under the Fourth Amendment.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 8 of 12 B. Article 1, Section 11 [16] Under Article 1, Section 11 of the Indiana Constitution, the legality of a search

“turns on an evaluation of the reasonableness of the police conduct under the

totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.

2005). Whether a search or seizure is reasonable focuses on the actions of the

officer, rather than on the defendant’s reasonable expectation of privacy, and

“turn[s] on a balance of: 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.4

[17] First, with regards to the degree of suspicion, we look at “the reasonableness of

the officers’ assumptions, suspicions, or beliefs based on the information

available to them at the time.” Duran v. State, 930 N.E.2d 10, 18 (Ind. 2010).

Both Ellis’s statement that he had a knife and the repeated placement of his

hands in his pockets despite commands to stop created a high degree of

suspicion that Ellis may have been armed. See Johnson v. State, 38 N.E.3d 658,

664 (Ind. Ct. App. 2015) (finding degree of suspicion factor weighed heavily in

4 The State argues that Ellis waived this argument because he neglected to raise it before the trial court. Ellis did not specifically mention the Indiana Constitution in his arguments before the trial court, but neither did he mention the Fourth Amendment—rather, he alleged generally that the search was “illegal.” Appellant’s App. Vol. II. p. 23-25; Tr. Vol. II. p. 10-24. Given our preference to resolve cases on their merits, we choose to address it.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 9 of 12 favor of the State where defendant placed his hand in his pocket and ignored

multiple commands to remove his hand).

[18] Next, we agree with both parties that the degree of intrusion was slight. We

have previously held that an “ordinary” pat-down search of a suspect’s clothing

is a “fairly limited intrusion” under the Indiana Constitution. Berry v. State, 121

N.E.3d 633, 639 (Ind. Ct. App. 2019). No evidence suggests that the pat-down

conducted by Deputy Schwartz was anything but an ordinary, routine pat-down

for weapons.

[19] Lastly, with respect to the extent of law enforcement needs, we find that

Deputy Schwartz’s needs, given Ellis’s statement that he had a knife, were

sufficiently high to reasonably conduct the pat-down search. See, e.g., Bell v.

State, 81 N.E.3d 233, 238-39 (Ind. Ct. App. 2017) (holding that law

enforcement needs were high enough to justify pat-down search where

defendant had a bulge in his pocket and did not respond to officer’s questions

regarding what it was). Deputy Schwartz also acted reasonably in removing the

cylindrical object from Ellis’s pocket to confirm whether it was a knife.

[20] Because we find the pat-down search of Ellis and the resulting discovery of the

hollowed-out pen to be lawful under both the federal and state constitutions, the

trial court did not err by admitting the evidence found as a result of the pat-

down search.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 10 of 12 II. Sentencing [21] Ellis’s second argument on appeal is that the sentence imposed by the trial court

is inappropriate in light of the nature of the offenses and his character.

[22] Indiana Appellate Rule 7(B) provides that this Court may revise a statutorily

authorized sentence “if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” In conducting this review, “substantial

deference” must be given to the trial court’s decision, “since the ‘principal role

of [our] review is to attempt to leaven the outliers,’ and not to achieve a

perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

citations omitted).

[23] For Level 4 felony manufacturing methamphetamine, Ellis faced a term of two

to twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5.

For each of the Level 6 felonies, Ellis faced a term of six months to two and

one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7. The trial

court imposed an eight-year sentence for the Level 4 felony and one and one-

half year sentences for each of the Level 6 felonies, all to be served

concurrently, for an aggregate eight-year term.

[24] With respect to the nature of the offenses, Ellis engaged in the manufacture of

methamphetamine, possessed some of the drug he manufactured, and possessed

all necessary materials to allow him to continue manufacturing

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 11 of 12 methamphetamine. We do not find anything particularly egregious about these

circumstances.

[25] With respect to Ellis’s character, however, we note that Ellis has an extensive

criminal history, including convictions for three felony offenses and three

misdemeanor offenses, all of which are either drug- or alcohol-related offenses

or property crimes. Ellis also has had multiple prior charges for possession of

precursors or possession of methamphetamine. See Rutherford v. State, 866

N.E.2d 867, 874 (Ind. Ct. App. 2007) (holding that we may consider a

defendant’s history of arrests as a reflection of his character).

[26] Ellis argues that a revision to the advisory sentence would be sufficient to

rehabilitate his substance abuse problems and that his status as an addict should

not weigh against his good character. The trial court’s sentencing decision

already takes into account Ellis’s substance abuse issues by recommending Ellis

for the Purposeful Incarceration Program. If Ellis demonstrates that he is able to

successfully address his substance abuse issues through that program in a

shorter period of time, as he claims is probable, then he will be eligible at that

time for a sentence modification.

[27] We do not find the sentence imposed by the trial court to be inappropriate in

light of the nature of the offenses and Ellis’s character.

[28] The judgment of the trial court is affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-462 | September 27, 2019 Page 12 of 12