MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 09 2016, 8:37 am this Memorandum Decision shall not be regarded as precedent or cited before any 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 Kristin A. Mulholland Gregory F. Zoeller Crown Point, Indiana Attorney General of Indiana Kathrine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Morris Odis Davis, Jr., March 9, 2016 Appellant-Defendant, Court of Appeals Case No. 45A03-1502-CR-64 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge Trial Court Cause No. 45G01-1310-FB-98
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 1 of 19 STATEMENT OF THE CASE
[1] Appellant-Defendant, Morris Odis Davis, Jr. (Davis), appeals his conviction for
carrying a handgun without a license, a Class C felony, Ind. Code §§ 35-47-2-1;
-23(c)(2)(B) (2013).
[2] We reverse.
ISSUE
[3] Davis raises one issue on appeal, which we restate as follows: Whether the trial
court abused its discretion by admitting evidence that was seized pursuant to a
warrantless search.
FACTS AND PROCEDURAL HISTORY
[4] On October 16, 2013, Davis accompanied his mother to the Horseshoe Casino
in Hammond, Lake County, Indiana. Davis was trying his luck on the gaming
floor when he was approached by Leonard Pegues (Pegues), a man with whom
Davis had a prior, unfriendly history. A verbal altercation ensued. Before the
confrontation had a chance to escalate to a physical exchange, the casino’s
security officers responded to the disturbance and separated Davis and Pegues.
Davis indicated that he was afraid of Pegues and wanted to leave the casino.
[5] In order to keep the men separated and to get both sides of the story, the
casino’s security supervisor, Robert Farrell (Supervisor Farrell), escorted Davis
to an interview room, located in an area of the casino accessible only to
employees. Davis was cooperative with Supervisor Farrell and the other
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 2 of 19 security officers as he followed them to the interview room. After Supervisor
Farrell obtained some basic information from Davis, several agents from the
Indiana Gaming Commission (IGC), 1 who had been summoned by security
personnel at the onset of the altercation, arrived and assumed control of the
investigation.
[6] IGC Agent Dennis Tracy (Agent Tracy) first spoke with Pegues. Pegues, who
“was in a state of being very nervous about the situation that had just
occurred[,]” informed Agent Tracy that he and Davis had previously been
involved in an altercation of a violent nature. (Tr. p. 108). As a result of their
prior encounter, Pegues indicated that he believed there was an active warrant
for Davis’ arrest. During his interview, Pegues was subjected to a pat-down
search for weapons; none were found.
[7] After hearing Pegues’ version of events, Agent Tracy went to the interview
room to discuss the incident with Davis. Davis conceded that he had been
involved in an altercation with Pegues in November of 2012; however, his
account was significantly different from Pegues’ report. Namely, Davis denied
that his prior interaction with Pegues had been violent—i.e., Davis contradicted
Pegues’ claim that a weapon had been utilized in the incident. Davis also
1 Pursuant to Indiana Code section 4-33-4.5-1(c), “a gaming agent may act as an officer for the arrest of offenders who violate the laws of Indiana if the gaming agent reasonably believes that a crime has been, is being, or is about to be committed or attempted in the gaming agent’s presence.” The agent who detained Davis testified he had authority to arrest people, he wore a uniform, and he carried a gun. Conversely, the casino’s security officers do not carry firearms and possess no law enforcement authority.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 3 of 19 denied Pegues’ allegation that there was a warrant out for Davis’ arrest. Agent
Tracy informed Davis that they were going to verify the existence of any
warrant, but he found “the fact that the stories were different [to be] very
disconcerting.” (Tr. p. 171). Despite Davis’ apparent cooperation with the
IGC agents and the casino’s security officers throughout the course of the
inquiry into the incident on the casino floor, Agent Tracy observed that Davis
“spoke very nervously. His hand gestures[] [and] his eye movement indicated
to me that there may be deception going on.” (Tr. p. 161). As a result, Agent
Tracy asked Davis to submit to a pat-down search “for our own safety[,]” and
Davis complied. (State’s Exh. 1). Agent Tracy discovered a loaded .25-caliber
semi-automatic handgun in the front pocket of Davis’ pants. Agent Tracy
removed the firearm and inquired as to whether Davis possessed a permit to
carry the gun, and Davis admitted that he did not. It was eventually
determined that Davis did not have an active warrant.
[8] On October 18, 2013, the State filed an Information, charging Davis with
unlawful possession of a firearm by a serious violent felon, a Class B felony,
I.C. § 35-47-4-5(c) (2013). The State subsequently amended the Information on
April 9, 2014, and again on May 21, 2014, ultimately charging Davis with one
Count of carrying a handgun without a license, a Class A misdemeanor, I.C. §§
35-47-2-1; -23(c) (2013). The State also relied on Davis’ prior felony conviction
for aggravated battery against a police officer (out of Cook County, Illinois) to
file an enhancement charge that would elevate Davis’ crime from a Class A
misdemeanor to a Class C felony. I.C. §§ 35-47-2-1; -23(c)(2)(B) (2013).
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 4 of 19 [9] On October 30, 2013, Davis filed a motion to suppress the gun that was
discovered in his possession, arguing that the pat-down search violated his
rights under both the Fourth Amendment to the United States Constitution and
Article 1, Section 11 of the Indiana Constitution. On November 22, 2013, the
trial court conducted a hearing, and on December 17, 2013, the trial court
denied Davis’ suppression motion. On January 15, 2014, Davis filed a motion
to certify the trial court’s order denying the motion to suppress for interlocutory
appeal, which the trial court granted. On March 21, 2014, this court declined to
accept jurisdiction for interlocutory appeal.
[10] On August 25-26, 2014, the trial court conducted a bifurcated jury trial. Prior
to the introduction of evidence, Davis renewed his motion to suppress, which
the trial court again denied. At the close of the evidence, the jury returned a
verdict of guilty of carrying a handgun without a permit, a Class A
misdemeanor. Thereafter, Davis waived his right to have a jury hear the
second phase of the trial regarding the charging enhancement, and he stipulated
to the fact that he had previously been convicted of a felony. Accordingly, the
trial court entered a judgment of conviction for carrying a handgun without a
license as a Class C felony. On January 21, 2015, the trial court held a
sentencing hearing and sentenced Davis to serve six years, with two years
executed in Lake County Community Corrections and four years suspended to
probation.
[11] Davis now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 5 of 19 DISCUSSION AND DECISION
[12] Davis claims that the trial court abused its discretion by admitting the gun into
evidence because it was seized during the course of an unlawful search, in
violation of his rights under the Fourth Amendment to the United States
Constitution. 2 The admission of evidence is a matter reserved for the discretion
of the trial court and is subject to reversal only if the trial court abuses that
discretion. Patterson v. State, 958 N.E.2d 478, 482 (Ind. Ct. App. 2011). On
review, our court will find that a trial court has abused its discretion “if its
decision is clearly against the logic and effect of the facts and circumstances
before the court, or if the court has misinterpreted the law.” Id. Without
reweighing the evidence, we consider any conflicting evidence in a light most
favorable to the trial court’s ruling and any uncontested evidence in the
defendant’s favor. Id.
[13] The Fourth Amendment to the United States Constitution, which is applicable
to the states through the Fourteenth Amendment, protects “[t]he right of the
people to be secure in their persons, houses, papers, and effects[] against
unreasonable searches and seizures.” U.S. CONST. amend IV. In general, a
2 Davis also generally asserts that the search was improper under Article 1, Section 11 of the Indiana Constitution, the text of which “is identical to the Fourth Amendment.” Stark v. State, 960 N.E.2d 887, 892 (Ind. Ct. App. 2012), trans. denied. However, a claim under the Indiana Constitution “turns on an evaluation of the ‘reasonableness’ of the conduct of the law enforcement officers, not on the expectation of privacy commonly associated with Fourth Amendment analysis.” Id. Because it is not until his reply brief that Davis sets forth the specific standard utilized in Article 1, Section 11 cases or presents a cogent argument regarding the reasonableness of the law enforcement officers’ conduct, we find that he has waived his claim under the Indiana Constitution. See Ind. Appellate Rule 46(A)(8)(a).
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 6 of 19 search warrant is required as “a prerequisite to a constitutionally proper search
and seizure.” Danner v. State, 931 N.E.2d 421, 428 (Ind. Ct. App. 2010), trans.
denied. In fact, warrantless searches “are per se unreasonable under the Fourth
Amendment, subject to a ‘few specifically established and well-delineated
exceptions.’” Patterson, 958 N.E.2d at 482 (quoting Katz v. United States, 389
U.S. 347, 357 (1967)). “As a deterrent mechanism, evidence obtained in
violation of this rule is generally not admissible in a prosecution against the
victim of the unlawful search or seizure.” Clark v. State, 994 N.E.2d 252, 260
(Ind. 2013) (citing Mapp v. Ohio, 367 U.S. 643, 649-55 (1961), reh’g denied).
Thus, when a search or seizure is conducted in the absence of a warrant, the
State bears the burden of proving that one of the well-delineated exceptions to
the warrant requirement existed at the time of the search or seizure. Danner,
931 N.E.2d at 428.
[14] One such exception to the warrant requirement was established in Terry v. Ohio,
392 U.S. 1 (1968), where “the United States Supreme Court held that a police
officer may briefly detain a person for investigatory purposes if, based on
specific and articulable facts together with reasonable inferences drawn
therefrom, an ordinarily prudent person would reasonably suspect that criminal
activity was afoot.” Patterson, 958 N.E.2d at 482. It is well established that
“[r]easonable suspicion is determined on a case-by-case basis by examining the
totality of the circumstances.” Id. Along with temporary detainment for
investigative purposes, Terry also permits a police officer to conduct a limited
search of the individual’s outer clothing for weapons if the officer reasonably
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 7 of 19 believes that the individual is armed and dangerous. 3 An officer’s authority to
perform such a pat-down search of a detained individual during a Terry stop is
dependent upon the nature and extent of the officer’s particularized concern for
his or her safety.
Id. at 482-83 (internal citation omitted). “The purpose of this search is to allow
the officer to pursue his investigation without fear for his safety or the safety of
others.” Wright v. State, 766 N.E.2d 1223, 1232 (Ind. Ct. App. 2002).
[15] Accordingly, a Terry stop is a lesser intrusion than an arrest, and the scope of an
investigatory stop thus involves only “inquiry necessary to confirm or dispel the
officer’s suspicions.” Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010).
Nevertheless, a Terry stop may transform into an arrest if it becomes so
intrusive that “‘it interrupts the freedom of the accused and restricts his liberty
of movement.’” Id. (quoting Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996))
(explaining the difference between an investigative stop and an arrest). There is
no “bright line” test for evaluating whether a stop is investigatory in nature or
an arrest, and we have held that “common sense and ordinary human
experience must govern over rigid criteria.” Id. In Terry, the United States
3 The dissent finds it “significant[]” that “Agent Tracy knew that ‘[t]he fact that we were called down to the gambling floor itself gave us some indication that there was something serious going on. . . . [T]hat alone gave us . . . reason to believe that there was a serious event going on. . . . Accordingly, Agent Tracy conducted his pat-down search of Davis for safety reasons and discovered the firearm.’” (Slip op. at 18-19). We decline to hold that the fact that a police officer has been summoned, without more, indicates the officer is facing a “serious event” that threatens his or her safety and necessarily renders reasonable the officer’s belief that he or she might be in danger and may therefore conduct a pat down search.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 8 of 19 Supreme Court suggested that a person has been “seized,” or arrested, for
Fourth Amendment purposes only “when the officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen.”
Terry, 392 U.S. at 19, n.16. In United States v. Mendenhall, 446 U.S. 544, 554
(1980), the Supreme Court adhered to this standard, but added that “a person
has been ‘seized’ within the meaning of the Fourth Amendment only, if in view
of all of the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.”
[16] In this case, both parties agree that Terry and its progeny govern the detainment
and pat-down search of Davis. The record reflects that the casino’s security
manager, Christina Herrera (Manager Herrera), responded to a report of a
“possible” fight. (Tr. p. 57). When Manager Herrera, together with two
security supervisors encountered Davis on the casino floor, Manager Herrera
“still didn’t know at that time if anybody had been punched or anything like
that.” (Tr. p. 60). Davis told her “I just have to get out of here” and “I just
want to go to my car,” but Manager Herrera, even though she did not know
whether there had been an altercation, told Davis, “No, hold on,” and led
Davis to “a back area that’s locked.” (Tr. p. 60). Manager Herrera testified
that Davis “did nothing out of the ordinary” from the time she was called until
he was taken to the back room. (Tr. p. 67). Manager Herrera instructed a
security officer to take Davis to the interview room and to contact the Gaming
Commission.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 9 of 19 [17] Agent Tracy was called to the gaming floor and told there was a “disturbance.”
(Tr. p. 106). He first spoke with Pegues and then went to talk to Davis. At that
point, Agent Tracy had not seen the surveillance video or talked to any security
officers who had witnessed what happened between David and Pegues. He was
not aware that any criminal violation had occurred on the gaming floor. He
questioned Davis in the interview room and an adjoining room.
[18] This interview room was the last in a series of three rooms, which included a
small mail room and a room that housed computers the agents used for
affidavits and reports. The room Davis was taken to was “a very small odd-
shaped room.” (Tr. p. 111). Agent Tracy characterized it as an “interrogation
room” and as the “holding room.” (Tr. pp. 111, 112). Two agents and a
security supervisor were in the room when Davis was interviewed. There were
four or five people in the adjacent room.
[19] Based on the facts before us, we must conclude that Davis was not briefly
questioned on the gaming floor at the site of the altercation. See id. at 256
(discussing Dunaway v. New York, 442 U.S. 200, 212 (1979)). Instead, despite
informing the security officers that he wanted to leave the casino, Davis was
escorted to an area of the casino accessible only by employees and was placed
in a small interview room. Furthermore, regardless of the fact that Agent Tracy
stated that Davis was free to leave at any time he wished, Davis was never
informed of this fact, and it appears that he could not have exited the secured
area unless accompanied by an IGC agent or casino employee. Thus, we do
not find that a reasonable person in Davis’ position would have felt that he was
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 10 of 19 free to leave. Rather, it is clear that Davis’ situation fell outside the boundaries
of a Terry stop and amounted to an arrest as his liberty was restrained. See, e.g.,
D.Y. v. State, 28 N.E.3d 249, 255 (Ind. Ct. App. 2015).
[20] Because the officers did not have a warrant for Davis’ arrest, the pat-down
search was impermissible unless there was probable cause for the search. See,
e.g. Bell v. State, 13 N.E.3d 543, 545 (Ind. Ct. App. 2014) (“a patdown search
would have been permissible only if Officer Phillips had probable cause to
arrest Bell.”), trans. denied. There is probable cause to search when the facts and
circumstances within the knowledge of the officer making the search, based on
reasonably trustworthy information, are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is being committed.
Clark v. State, 808 N.E.2d 1183, 1192 (Ind. 2004). The amount of evidence
necessary to meet the probable cause requirement is determined on a case-by-
case basis. Decker v. State, 19 N.E.3d 368, 376-77 (Ind. Ct. App. 2014), trans.
denied. Whether there is probable cause is a fact-sensitive determination. Id. It
is grounded in notions of common sense, not mathematical precision. Id. The
evidence required to establish guilt is not necessary for probable cause for an
arrest. Id.
[21] In the present case, although Agent Tracy acknowledged that Davis and Pegues
had given consistent stories regarding the disturbance on the casino floor, he
offered as a basis for conducting the pat down his concern that Davis and
Pegues provided contradictory narratives as to their prior history. More
specifically, Agent Tracy noted that Davis “spoke very nervously” during his
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 11 of 19 interview, and “[t]he fact that [Davis] did not make eye contact” indicated to
Agent Tracy “that there may be deception going on.” (Tr. pp. 160-61).
According to Agent Tracy:
My [thirty-one] years of law enforcement experience has taught me that when you have two individuals that are both nervous and excited about something that’s going on and you have different type stories of what was going on out there, you—you want to—you want to make sure that the environment is safe and you want to make sure that the stories you’re getting are correct. So the first thing that I always think about is safety. And, again, this room was very small. At the time there were four agents—or four people in this room. Outside into the—in the second room there was another four or five people. So as being the lead agent—I would say not by rank but only by experience—I wanted to make sure that the situation was safe, that everyone in the room I felt was my responsibility to make sure that they were continuing to be safe.
(Tr. pp. 117-18).
[22] Here, however, other than believing that Davis’ lack of eye contact indicated
possible deception, Agent Tracy did not testify how this behavior suggested that
Davis was armed and dangerous and was committing an offense. See, e.g., Pace
v. Beto, 469 F.2d 1389, 1390 (5th Cir. 1972) (“Pace’s nervous conduct is not
surprising in view of the fact that he had just been arrested, and such conduct by
itself could not give rise to probable cause to believe that he had committed any
offense other than the traffic violation.”). Moreover, the fact that Agent Tracy
may have questioned the veracity of Davis’ account of an event that had
occurred with Pegues nearly a year earlier is not an articulation of a specific fact
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 12 of 19 from which it could be inferred that Davis was armed and dangerous at the
point in time immediately preceding the search. In fact, other than to state that
“[i]t was the totality of all the circumstances together that just made me feel
unsecure and unsafe[,]” including the fact that Pegues had indicated that there
was a an active warrant for Davis’ arrest—which later proved to be untrue—
Agent Tracy never indicated that he believed, or had reason to believe, that
Davis was concealing a firearm on his person. (Tr. p. 182).
[23] Agent Tracy further explained:
[t]he fact that we were called down to the gambling floor itself gave us some indication that there was something serious going on. Because the security department does not call us down for just any reason. So that alone gave us some—some reason to believe that there was a serious event going on.
(Tr. p. 106). Yet, when the IGC agents arrived to the gaming floor, the
situation between Davis and Pegues had already been defused, and IGC agents
did not deem it necessary to immediately search Davis or Pegues. Rather, it
was not until well after the men had been separated and had provided differing
accounts of their prior history that Agent Tracy determined that “the volatility
of the situation” necessitated a search. (Tr. p. 119). Once again, except for a
general assertion of volatility, Agent Tracy did not testify to facts that would
support a reasonable, objective belief that Davis was armed and dangerous.
[24] Instead, Agent Tracy testified that Davis had not, to Agent Tracy’s knowledge,
committed any criminal offenses while on the casino floor, and Davis was
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 13 of 19 cooperative during his interview. Davis did not display any aggressive or
furtive behaviors in the IGC agents’ presence. Furthermore, Davis was not
handcuffed, and the IGC agents were never prompted to draw their own
weapons in response to any actions taken by Davis. Accordingly, based on the
facts before us, we conclude that Davis’ seizure amounted to an arrest which
was unsupported by probable cause. As such, the search was impermissible and
any evidence resulting from this illegal search has been improperly admitted.
CONCLUSION
[25] Based on the foregoing, we conclude that the trial court abused its discretion by
admitting the gun into evidence because Davis’ detainment amounted to an
arrest unsupported by probable cause.
[26] Reversed.
[27] May, J. concurs
[28] Najam, J. dissents with separate opinion
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 14 of 19 IN THE COURT OF APPEALS OF INDIANA
Morris Odis Davis, Jr., Court of Appeals Case No. 45A03-1502-CR-64 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
Najam, Judge, dissenting.
[29] I respectfully dissent from the majority’s conclusion that the trial court abused
its discretion in the admission of evidence, and I would affirm the trial court’s
judgment and Davis’ conviction.
[30] As an initial matter, I cannot agree with the majority’s sua sponte analysis that
officers unlawfully arrested Davis. Davis did not object in the trial court on the
grounds that he had been unlawfully arrested, and even if he had briefed that
issue on appeal it is axiomatic that “[a] defendant may not raise one ground for
objection at trial and argue a different ground on appeal.” Small v. State, 736
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 15 of 19 N.E.2d 742, 747 (Ind. 2000). Whether Davis’ counsel had good reason not to
argue that the officers arrested him when they escorted a person apparently
involved in a fight in a public area away from that fight and away from the
public generally, when that person ran to them asking for assistance and
voluntarily followed the officers when they offered their assistance, is a question
I would leave for post-conviction review.
[31] Because the majority concludes that the officers arrested Davis, the majority
likewise concludes that Agent Terry needed probable cause to conduct the
ensuing pat-down search. Again, this is at odds with Davis’ argument in the
trial court and on appeal, in which he asserted not that Agent Terry lacked
probable cause but instead that Agent Terry failed to meet the lower burden of
having had a reasonable and articulable suspicion to conduct the pat-down
search. For the same reasons I cannot agree with the majority’s analysis that
officers arrested Davis, I cannot agree with the majority’s sua sponte analysis
that Agent Terry lacked probable cause to conduct the pat-down search.
[32] Considering only Davis’ actual argument on appeal, I would hold that the trial
court did not abuse its discretion when it admitted the evidence seized from the
pat-down of Davis’ person. As our supreme court has explained:
Generally, a trial court’s ruling on the admission of evidence is accorded a great deal of deference on appeal. 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 only reverse if a ruling is clearly against the logic
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 16 of 19 and effect of the facts and circumstances and the error affects a party’s substantial rights.
Hall v. State, 36 N.E.3d 459, 467 (Ind. 2015) (citations and quotation marks
omitted). Here, the parties agree that whether the pat-down search was lawful
turns on whether Agent Terry had a reasonable and articulable suspicion to
conduct the pat-down search.
[33] “An officer’s authority to conduct a pat-down search is dependent upon the
nature and extent of his particularized concern for his safety and that of others.”
Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001). “The officer need not be
absolutely certain that the individual is armed; the issue is whether a reasonably
prudent man in the circumstances would be warranted in the belief that his
safety or that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27 (1968). In
turn, this consideration requires that “due weight be given, not to [the officer’s]
inchoate and unparticularized suspicion or ‘hunch,’ but to specific reasonable
inferences which he is entitled to draw from the facts in light of his experience.”
Id.
[34] “The United States Supreme Court has held that nervous and evasive behavior
is a pertinent factor in determining whether reasonable suspicion exists” to
conduct a pat-down search. Howard v. State, 862 N.E.2d 1208, 1210-11 (Ind.
Ct. App. 2007) (citing Florida v. Rodriguez, 469 U.S. 1, 6 (1984)). This court has
likewise held that, where a defendant “became very nervous and fidgeted . . . as
if trying to hide or retrieve something” upon an officer’s approach, “[t]he
officer’s belief [that he might be in danger and] patdown search for weapons[] Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 17 of 19 were reasonable under the circumstances.” Trigg v. State, 725 N.E.2d 446, 449
(Ind. Ct. App. 2000).
[35] I cannot say that the trial court erred when it concluded that a reasonably
prudent person in Agent Tracy’s circumstances would have been warranted in
the belief that his or another’s safety was in danger prior to the pat-down
search. Immediately upon arriving on the casino floor, Agent Tracy met with
Pegues and observed that Pegues was “very irate,” “nervous,” “afraid,”
“sweating,” and “walking all over the place.” Tr. at 161. Pegues stated that he
and Davis had had a “violent” encounter about one year prior. Id. at 170.
Agent Tracy then met with Davis. Agent Tracy immediately learned that Davis
did not have identification on him while at the casino, which Agent Tracy,
through his experience, believed to be “a problem” indicating “evasiveness.”
Id. at 155, 169. Agent Tracy observed that Davis “spoke very nervously,” and
Agent Tracy knew from his experience that Davis’ “hand gestures” and “eye
movement indicated . . . deception.” Id. at 161. Upon telling Davis that Pegues
had reported a previously violent encounter with Davis, Agent Tracy listened as
Davis told a “different story,” which Agent Tracy found “disconcerting,” and
Agent Tracy observed that Davis kept his “arms crossed,” which Agent Tracy
recognized as “defensive body language” that suggested “deception” and
“evasi[on].” Id. at 170-71, 177-78, 182. And, significantly, Agent Tracy knew
that “[t]he fact that we were called down to the gambling floor itself gave us
some indication that there was something serious going on. . . . [T]hat alone
gave us . . . reason to believe that there was a serious event going on.” Id. at
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 18 of 19 160. Accordingly, Agent Tracy conducted his pat-down search of Davis for
safety reasons and discovered the firearm.
[36] Agent Tracy’s pat-down search relied on numerous specific and articulable
concerns recognized by Agent Tracy prior to the search. 4 These concerns
included not just permissible inferences from Davis’ “nervous and evasive
behavior” but also the immediately preceding, “serious” physical altercation
and Agent Tracy’s knowledge of a prior “violent” physical incident between
Davis and Pegues. Howard, 662 N.E.2d at 1210-11; Trigg, 725 N.E.2d at 449.
Agent Tracy was entitled to use his experience to guide his judgment, and we
are required to give that assessment its due weight. Terry, 392 U.S. at 27. A
reasonably prudent person in Agent Tracy’s circumstances would have been
warranted in his belief that his or another’s safety may have been in danger,
which satisfies the Fourth Amendment’s requirement for a lawful pat-down
search. 5
[37] Accordingly, I would affirm the trial court’s admission of the evidence and
Davis’ conviction.
4 The majority criticizes Agent Tracy for waiting to conduct the pat-down until “well after the men had been separated.” Slip op. at 13. But it is not clear from the record exactly how much time had passed between separating the men and the pat-down. And, in any event, Davis cites no law that requires a pat-down at an officer’s first opportunity. To the contrary, it was prudent, if not constitutionally required, of Agent Tracy to wait until he had a well-developed, articulable basis for the pat-down before he conducted it. 5 I agree with the majority that Davis has not properly raised any claims under Article 1, Section 11 of the Indiana Constitution.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-64 | March 9, 2016 Page 19 of 19