Maurice Patterson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 27, 2019
• Docket: 18A-CR-2024
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 27 2019, 10:25 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Maurice Patterson, March 27, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2024 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jane Woodward Appellee-Plaintiff. Miller, Judge Trial Court Cause No. 71D01-1707-F6-685

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 1 of 11 [1] Maurice Patterson appeals his drug possession convictions and asserts the trial

court admitted evidence in violation of the Fourth Amendment and the Indiana

Constitution. We affirm.

Facts and Procedural History

[2] At approximately 2:30 a.m. on July 26, 2017, a person who worked part-time as

security at an apartment building in South Bend called 911 and reported a

vehicle which he thought might be involved in drug dealing. The police

responded to the location at approximately 2:47 a.m., but the vehicle had

already left the area. At approximately 3:21 a.m., the security guard again

called 911 and reported that the vehicle was back and that he thought the

occupants were dealing and the vehicle was involved in a possible hit and run.

South Bend Police Officer Michael Stuk arrived at the location, 1 exited his

patrol vehicle, 2 and began to walk toward the apartment building. As Officer

Stuk walked between a pickup truck and a silver four-door silver sedan in the

parking lot, the security guard pointed to the sedan next to the officer. Officer

Stuk saw Patterson seated in the front passenger seat and another person laying

down in the rear. The front driver and passenger windows were down, and the

rear windows were up. Officer Stuk did not have his firearm displayed or in his

1 The security guard testified the first officer arrived at the scene approximately three minutes after he called 911. When asked “if the dispatch records say unit SBP 314 dispatched 4:13:21,” Officer Stuk testified “[t]here could be a time lag between dispatch actually putting me on scene and me being on scene.” Transcript Volume I at 203. 2 When asked “if your lights were on, or off” and “Let me rephrase. Not your headlights but your red and blue sirens,” Officer Stuk replied “Off.” Transcript Volume I at 175.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 2 of 11 hands. He immediately noticed a bag containing a green leafy substance which

he believed was marijuana hanging out of the left front pocket of Patterson’s

shirt. Upon observing the bag, Officer Stuk reached in, grabbed the bag from

Patterson’s pocket, placed it on top of the vehicle, and asked Patterson to exit

the vehicle. Officer Stuk observed Patterson slowly reach up and remove

another bag from the right pocket of his shirt, and Officer Stuk grabbed the bag

from Patterson and placed it on top of the vehicle. Patterson exited the vehicle,

and Officer Stuk asked Officer Anthony Dawson who had arrived at the

location to handcuff Patterson.

[3] Officer Dawson instructed Patterson to place his hands behind his back, and

Patterson turned and charged toward Officer Dawson. Patterson and Officer

Dawson went to the ground, Officer Dawson deployed his Taser but it was

knocked from his hand, other officers became involved, and Officer Dawson

sprayed Patterson with pepper spray at which point Patterson became

compliant. The bag which had been in Patterson’s left shirt pocket contained a

synthetic cannabinoid, and the bag which had been in his right shirt pocket

contained Oxycodone tablets, heroin, and cocaine.

[4] The State alleged in an amended information that Patterson committed: Count

I, possession of cocaine as a level 6 felony; Count II, possession of narcotic

drug hydrocodone as a level 6 felony; Count III, possession of narcotic drug

heroin as a level 6 felony; Count IV, resisting law enforcement as a class A

misdemeanor; Count V, possession of narcotic drug heroin as a level 5 felony;

and Count VI, possession of a synthetic drug as a class A misdemeanor.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 3 of 11 [5] On June 8, 2018, the court held a hearing on a motion to suppress filed by

Patterson and denied the motion. At Patterson’s bench trial, Officer Stuk

testified that the security guard pointed to the four-door silver sedan, that he

used his flashlight to aid his view, and “I was looking to see if it was occupied

as I was walking by it at that time.” Transcript Volume I at 199. When asked

“how long did it take when you were looking at Mr. Patterson to notice

something suspicious about him,” Officer Stuk replied “[m]atter of seconds.”

Id. at 179. He testified that Patterson turned towards him, that he saw a bag

hanging from Patterson’s left shirt pocket which contained a green leafy

substance, and that he believed the substance was marijuana. When asked

“[u]pon seeing marijuana, what did you do,” Officer Stuk testified “I reached in

and grabbed it out of his pocket and put it on top of the vehicle.” Id. at 180.

Officer Stuk indicated he had been to the apartment address numerous times

related to drugs, overdoses, and fights. The court admitted the drugs found on

Patterson over his objection and found him guilty under Counts I through IV

and VI and not guilty under Count V. Patterson was sentenced to eighteen

months suspended for each of his convictions under Counts I through III and

twelve months suspended for each of his convictions under Counts IV and VI.

The court ordered the sentences under Counts I, II, III, and VI to be served

concurrently and the sentence under Count IV to be served consecutively for an

aggregate sentence of thirty months suspended, and that Patterson be placed on

probation for thirty months.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 4 of 11 Discussion

[6] The issue is whether the trial court abused its discretion in admitting the

evidence found on Patterson. Although Patterson originally moved to suppress

the evidence, he now challenges the admission of the evidence at trial. Thus,

the issue is appropriately framed as whether the trial court abused its discretion

by admitting the evidence. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).

Because the trial court is best able to weigh the evidence and assess witness

credibility, we review its rulings on admissibility for abuse of discretion and

reverse only if a ruling is clearly against the logic and effect of the facts and

circumstances and the error affects a party’s substantial rights. Carpenter v. State,

18 N.E.3d 998, 1001 (Ind. 2014). The ultimate determination of the

constitutionality of a search or seizure is a question of law that we consider de

novo. Id. In ruling on admissibility following the denial of a motion to

suppress, the trial court considers the foundational evidence presented at trial.

Id. If the foundational evidence at trial is not the same as that presented at the

suppression hearing, the trial court must make its decision based upon trial

evidence and may consider hearing evidence only if it does not conflict with

trial evidence. Guilmette, 14 N.E.3d at 40 n.1.

[7] Patterson argues that his encounter with police was not consensual and the

police did not have reasonable suspicion of criminal activity, the police action

was unreasonable, and as such the evidence seized from him should not have

been admitted. The State responds that no constitutional violation occurred

and the court properly admitted the evidence.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 5 of 11 [8] The Fourth Amendment to the United States Constitution guarantees the right

to be secure against unreasonable search and seizure. Powell v. State, 912

N.E.2d 853, 859 (Ind. Ct. App. 2009). There are three levels of police

investigation, two of which implicate the Fourth Amendment and one of which

does not. Id. First, the Fourth Amendment requires that an arrest or detention

that lasts for more than a short period of time must be justified by probable

cause. Id. Second, pursuant to Fourth Amendment jurisprudence, the police

may, without a warrant or probable cause, briefly detain an individual for

investigatory purposes if, based upon specific and articulable facts, the officer

has a reasonable suspicion that criminal activity has or is about to occur. Id.

The third level of investigation occurs when a police officer makes a casual and

brief inquiry of a citizen, which involves neither an arrest nor a stop. Id. This is

a consensual encounter in which the Fourth Amendment is not implicated. Id.

[9] Not every encounter between a police officer and a citizen amounts to a seizure

requiring objective justification. Id. A person is seized only when, by means of

physical force or a show of authority, his or her freedom of movement is

restrained. Id. It is not the purpose of the Fourth Amendment to eliminate all

contact between police and citizens. Id. at 860. What constitutes a restraint on

liberty prompting a person to conclude that he or she is not free to leave will

vary depending upon the particular police conduct at issue and the setting in

which the conduct occurs. Id. Examples of circumstances that might indicate a

seizure where the person did not attempt to leave would be the threatening

presence of several officers, the display of a weapon by an officer, some physical

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 6 of 11 touching of the person, or the use of language or tone of voice indicating

compliance with the officer’s request might be compelled; if such evidence is

lacking, otherwise inoffensive contact between a member of the public and the

police does not amount to a seizure of that person. Id.

[10] In R.H. v. State, a police officer responded to a dispatch reporting a suspicious

vehicle parked in front of a caller’s residence. 916 N.E.2d 260, 262 (Ind. Ct.

App. 2009), trans. denied. The officer parked and activated his emergency lights.

Id. The officer approached the suspicious vehicle, observed heavy smoke

inside, and knocked on a rear window. Id. The window rolled down, and the

officer immediately recognized the smell of burnt marijuana. Id. The officer

had the occupants exit the vehicle. Id. at 263. The officer observed two bags

containing what appeared to be marijuana in the front passenger footwall. Id.

R.H. argued on appeal the seizure of the marijuana violated the Fourth

Amendment. Id. We observed the officer had received a dispatch late at night

regarding a report of a suspicious vehicle, the vehicle was parked in front of the

caller’s residence, and the officer found a vehicle matching the description given

already stopped and parked, activated his emergency lights, and then

approached the vehicle to ask the occupants some questions or request their

identification. Id. at 264-265. We held “these are all procedures that an officer

would be expected to do upon finding an occupied vehicle parked on the street

late at night, and do not indicate to a reasonable motorist that the officer

intends to detain him.” Id. (internal quotation marks and citations omitted).

We held the officer’s approach and initial contact with R.H. did not constitute a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 7 of 11 seizure or an investigatory stop, we thus did not need to address whether the

officer had reasonable suspicion to conduct an investigatory stop, and the trial

court did not abuse its discretion in admitting the evidence. Id. at 266.

[11] In Powell v. State, an officer noticed a vehicle parked on the side of the street,

pulled behind the vehicle in his squad car but did not activate his emergency

lights, and exited his squad car and approached the vehicle. 912 N.E.2d at 856-

857. Upon his initial approach, the officer observed the vehicle’s windows were

down, a spent shell casing in the back seat, and an open bottle of vodka in the

vehicle. Id. at 857. Officers eventually had the occupants exit the vehicle for

safety reasons, one of the officers observed in plain view baggies containing a

green leafy substance which appeared to be marijuana on the floorboard, and

the defendant was placed in handcuffs. Id. at 857-858. Powell argued on

appeal that the officer’s initial approach towards the vehicle constituted an

investigatory stop and an illegal seizure under the Fourth Amendment. Id. at

859. We first noted that law enforcement’s approach to a parked vehicle does

not in itself constitute an investigatory stop or a seizure for purposes of the

Fourth Amendment. Id. at 861-862 (collecting federal and state cases). We

then observed that the vehicle in which Powell was seated was parked on the

side of a street, the officer was in police uniform but did not activate his squad

vehicle’s emergency lights, and the record did not reflect that the officer

displayed a weapon as he approached the vehicle or used any language or spoke

in a tone of voice which mandated compliance. Id. at 862. We concluded that

the officer’s approach to the parked vehicle and initial contact with Powell did

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 8 of 11 not constitute an investigatory stop or a seizure under the Fourth Amendment

and that therefore the officer did not have to possess reasonable suspicion of

wrongdoing in order to park behind or approach Powell’s vehicle in order to

ask him his purpose for being in the area. Id. We held the trial court did not

abuse its discretion in admitting the evidence. Id. at 864.

[12] Here, the record reveals that Officer Stuk was dispatched to an apartment

building in the early morning in response to a report by a security guard

regarding a vehicle near the building and that the security guard thought the

occupants were dealing. As Officer Stuk was walking toward the apartment

building, the security guard pointed to the specific vehicle in which Patterson

was an occupant. The record does not reflect that Officer Stuk, in initially

approaching the vehicle, displayed a show of authority. His approach to the

parked vehicle and initial encounter with Patterson did not constitute an

investigatory stop or a seizure and thus he did not have to possess reasonable

suspicion of wrongdoing in order to approach the vehicle. See R.H., 916 N.E.2d

at 264-266; Powell, 912 N.E.2d at 857-862. As soon as Patterson turned toward

him, the officer observed the bag containing what he believed to be marijuana

hanging out of one of Patterson’s shirt pockets. When the bag and its contents

became visible to Officer Stuk, seizure of the bag was proper pursuant to the

plain view doctrine. See Powell, 912 N.E.2d at 863 (“When the small baggies

containing marijuana in the vehicle became visible to the officers, seizure of the

marijuana was proper pursuant to the ‘plain view doctrine.’”); Crabtree v. State,

762 N.E.2d 217, 218-221 (Ind. Ct. App. 2002) (holding a baggie containing

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 9 of 11 green leafy vegetation hanging from the front pouch of the defendant’s

sweatshirt was immediately apparent to an officer and the plain view doctrine

supported the seizure of the marijuana from the defendant).

[13] With respect to Article 1, Section 11 of the Indiana Constitution, we focus on

whether the officer’s conduct was reasonable in light of the totality of the

circumstances. Powell, 912 N.E.2d at 863. In making this determination, we

balance: the degree of concern, suspicion, or knowledge that a violation has

occurred; the degree of intrusion the method of the search or seizure imposes on

the citizen’s ordinary activities; and the extent of law enforcement needs. Id.

Officer Stuk approached the vehicle in which Patterson was seated on foot in

response to a call during the early morning by a security guard at an apartment

building. The security guard thought the occupants were dealing drugs, Officer

Stuk had been to the apartment building numerous times, and Officer Stuk did

not display a weapon when he approached the vehicle. We conclude in light of

the totality of the circumstances that Officer Stuk’s approach and initial contact

with Patterson did not violate Article 1, Section 11 of the Indiana Constitution.

See Powell, 912 N.E.2d at 863 (holding the officer simply approached the vehicle

on foot and did not display a weapon as he approached and that the officer’s

approach and initial contact with the defendant constituted a consensual

encounter which did not violate his rights against unreasonable search or

seizure under Article 1, Section 11 of the Indiana Constitution). The trial court

did not abuse its discretion in admitting the evidence found on Patterson.

[14] For the foregoing reasons, we affirm Patterson’s convictions.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 10 of 11 [15] Affirmed.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2024 | March 27, 2019 Page 11 of 11