NW v. State

834 N.E.2d 159, 2005 WL 2219114
CourtIndiana Court of Appeals
DecidedSeptember 14, 2005
Docket49A02-0502-JV-102
StatusPublished

This text of 834 N.E.2d 159 (NW v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
NW v. State, 834 N.E.2d 159, 2005 WL 2219114 (Ind. Ct. App. 2005).

Opinion

834 N.E.2d 159 (2005)

N.W., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0502-JV-102.

Court of Appeals of Indiana.

September 14, 2005.
Transfer Denied December 8, 2005.

*160 Patricia Caress McMath, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, for Appellee.

*161 OPINION

SHARPNACK, Judge.

N.W. appeals the juvenile court's adjudication finding him to be a delinquent for committing an act that would be possession of marijuana as a class A misdemeanor[1] if committed by an adult. N.W. raises one issue, which we restate as whether the juvenile court abused its discretion by admitting into evidence the marijuana found during a search of N.W. We affirm.

The relevant facts follow. On September 7, 2004, around 1:30 a.m., Marion County Sheriff Deputy Gary Hadden responded to a report of a burglary in process. A witness reported seeing two white males, one of whom was dressed in dark clothing and a baseball cap, going in and out of a garage window, but "they were scared off by a neighbor who put their porch light on." Transcript at 9. Because the two males had already left by the time Deputy Hadden arrived on the scene, he began to patrol the area looking for the suspects. As Deputy Hadden drove around, he saw two white males, one of whom was fifteen-year-old N.W., walking northbound on Lynhurst Avenue. Both males were wearing dark clothes, and one was wearing a baseball cap. Deputy Hadden turned his vehicle around to investigate whether they were involved in the burglary, and N.W. and the other male turned around and started walking southbound. As Deputy Hadden pulled up alongside of them, a female joined N.W. and the other male, and Deputy Hadden asked them to stop. Deputy Hadden, who testified that he was concerned about his safety, then asked them to place their hands on his car so he could pat them down for weapons. While Deputy Hadden was patting down N.W., N.W. told the deputy that he had a pellet gun in his waistband. As Deputy Hadden was removing the pellet gun from N.W.'s waistband, N.W. put his left hand in his left front pants pocket. Deputy Hadden, who was concerned that N.W. was reaching for a knife, grabbed N.W.'s hand to remove what was in his hand and discovered a bag of marijuana. Deputy Hadden arrested N.W., conducted a further patdown, and found a pack of cigarettes containing marijuana cigarettes.

The State filed a petition alleging N.W. to be a delinquent child for the offense of possession of marijuana as a class A misdemeanor if committed by an adult. During the denial hearing, the State moved to introduce the marijuana into evidence, and N.W. objected based on the ground that the stop and search were illegal under the Fourth Amendment of the United States Constitution. The juvenile court overruled the objection and admitted the marijuana into evidence. The juvenile court made a true finding of the allegation, adjudicated N.W. to be a delinquent, and placed N.W. on probation.

The issue is whether the juvenile court abused it discretion by admitting into evidence the marijuana found during a search of N.W. Because the admission and exclusion of evidence falls within the sound discretion of the trial court, we review the admission of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs "where the decision is clearly against the logic and effect of the facts and circumstances." Smith v. State, 754 N.E.2d 502, 504 (Ind.2001).

N.W. argues that the admission of the marijuana into evidence violated his constitutional rights against unreasonable search and seizure under the Fourth *162 Amendment to the United States Constitution because the deputy was not justified in conducting a patdown.[2] The Fourth Amendment protects persons from unreasonable search and seizure, and this protection has been extended to the states through the Fourteenth Amendment. Berry v. State, 704 N.E.2d 462, 464-465 (Ind.1998). As a general rule, the Fourth Amendment prohibits a warrantless search. Id. at 465. 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. Id. "One such exception to the warrant requirement is: when a police officer makes a Terry stop, if he has reasonable fear of danger, he may conduct a carefully limited search of the outer clothing of the suspect in an attempt to discover weapons that might be used to harm him." Williams v. State, 754 N.E.2d 584, 588 (Ind.Ct.App.2001), trans. denied. The United States Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), explained that police officers may employ investigative techniques short of arrest on less than probable cause without violating Fourth Amendment interests. Wilson v. State, 745 N.E.2d 789, 792 (Ind.2001). The principal issue is whether the police action in question was reasonable under all the circumstances. Id. (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977)).

On appeal, N.W. does not challenge the propriety of the initial stop but only the subsequent patdown search. Our Indiana Supreme Court has noted that Terry permits 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. 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.

Wilson, 745 N.E.2d at 792 (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883). An officer's authority to conduct a patdown search is dependent upon the nature and extent of his particularized concern for his safety. Id. "[A]n individual stopped may not be frisked or patted down for weapons, unless the officer holds a reasonable belief that the particular individual is armed and dangerous." Swanson v. State, 730 N.E.2d 205, 210 (Ind.Ct.App.2000) (quoting State v. Pease, 531 N.E.2d 1207, 1211 (Ind. Ct.App.1988)), trans. denied.

N.W. contends that the patdown search was unconstitutional because "Deputy Hadden did not point to a particularized suspicion to support a belief that N.W. might be armed and dangerous[.]" Appellant's *163 Brief at 3-4. The State argues that the circumstances justified the patdown search because Deputy Hadden conducted the search at night, was alone with N.W. and the other male, and suspected N.W. of committing a burglary.

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Sibron v. New York
392 U.S. 40 (Supreme Court, 1968)
Pennsylvania v. Mimms
434 U.S. 106 (Supreme Court, 1977)
Taylor v. United States
495 U.S. 575 (Supreme Court, 1990)
Abel v. State
773 N.E.2d 276 (Indiana Supreme Court, 2002)
White v. State
772 N.E.2d 408 (Indiana Supreme Court, 2002)
Wilson v. State
765 N.E.2d 1265 (Indiana Supreme Court, 2002)
Smith v. State
754 N.E.2d 502 (Indiana Supreme Court, 2001)
Wilson v. State
745 N.E.2d 789 (Indiana Supreme Court, 2001)
Berry v. State
704 N.E.2d 462 (Indiana Supreme Court, 1998)
State v. Cobbs
711 P.2d 900 (New Mexico Court of Appeals, 1985)
Swanson v. State
730 N.E.2d 205 (Indiana Court of Appeals, 2000)
Rybolt v. State
770 N.E.2d 935 (Indiana Court of Appeals, 2002)
Clenna v. State
782 N.E.2d 1029 (Indiana Court of Appeals, 2003)
Williams v. State
754 N.E.2d 584 (Indiana Court of Appeals, 2001)
Williams v. State
698 N.E.2d 848 (Indiana Court of Appeals, 1998)
State v. Pease
531 N.E.2d 1207 (Indiana Court of Appeals, 1988)
Johnson v. State
710 N.E.2d 925 (Indiana Court of Appeals, 1999)
Hailey v. State
521 N.E.2d 1318 (Indiana Supreme Court, 1988)
Banks v. State
681 N.E.2d 235 (Indiana Court of Appeals, 1997)

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Bluebook (online)
834 N.E.2d 159, 2005 WL 2219114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nw-v-state-indctapp-2005.