Opinion
Court of Appeals Case No. 20A-CR-1354
02-17-2021
Robert Deon KENNEDY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
Attorney for Appellant: Joel M. Schumm, Christopher Goff, Certified Legal Intern, Indiana University Robert H. McKinney, School of Law Appellate Clinic, Indianapolis, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney, General, Indianapolis, Indiana
Attorney for Appellant: Joel M. Schumm, Christopher Goff, Certified Legal Intern, Indiana University Robert H. McKinney, School of Law Appellate Clinic, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney, General, Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[1] Robert Deon Kennedy appeals his convictions, following a jury trial, for level 2 felony dealing in methamphetamine, level 5 felony escape, class A misdemeanor resisting law enforcement, class B misdemeanor possession of marijuana, and class B misdemeanor false informing. He asserts that the trial court abused its discretion in admitting evidence obtained as a result of the patdown search of his person during a valid traffic stop. Specifically, he claims that police lacked reasonable suspicion that he was armed and dangerous, and therefore the patdown search violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. He further challenges the sufficiency of the evidence to support his conviction for dealing in methamphetamine. Finding no constitutional violation, and sufficient evidence to support the challenged conviction, we affirm.
Facts and Procedural History
[2] At approximately 2:00 a.m. on April 4, 2019, Indianapolis Metropolitan Police Department Officer Ryan Salisbury was traveling northbound on Baltimore Avenue when he observed the vehicle ahead of him turn east on 34th Street without signaling. Officer Salisbury initiated a traffic stop of the vehicle near the intersection of 34th and Keystone Avenue, an area he knew from experience to be an "[e]xtremely high crime area." Tr. Vol. 2 at 8. Officer Salisbury observed that the vehicle had three occupants: a female driver, a male front seat passenger, and a male back seat passenger. Office Salisbury approached the driver's window of the vehicle, and as soon as the window was rolled down, he immediately smelled the odor of raw marijuana emanating from the vehicle. Officer Salisbury obtained identification from all the occupants and returned to his police vehicle. The front seat passenger, Kennedy, provided an identification with the name "LaShon Kennedy," which was later determined not to be his name. Id. at 158.
[3] As Officer Salisbury was checking for outstanding warrants on the vehicle's occupants, Officer Jade Pierson arrived at the scene to assist. Officer Salisbury informed Officer Pierson that he had smelled marijuana in the car and that he was planning to remove all three individuals from the vehicle to conduct a search. The two officers approached the vehicle, and Officer Salisbury asked both the driver and the back seat passenger to exit the vehicle. They each "immediately" complied with the request, exited the vehicle, and sat on the curb as instructed. Id. at 12. Officer Pierson asked Kennedy to exit the vehicle, but he did not comply. Instead, he began questioning the officers about why he needed to get out and insisted that he had done nothing wrong. Officer Pierson was especially concerned with Kennedy's behavior and demeanor when compared with the other occupants of the vehicle. In addition to noting that Kennedy was "extremely reluctant to get out of the vehicle," Officer Salisbury became concerned for officer safety after observing that Kennedy was wearing a large "military style canvas jacket" with "numerous" pockets that could easily conceal a weapon. Id. After Kennedy finally exited the vehicle, the officers decided to conduct a patdown search of Kennedy's person for weapons.
[4] As both officers began to conduct the patdown search simultaneously, Kennedy kept moving his arms and trying to turn his body around to face them even though the officers repeatedly told him to stop. When Officer Salisbury patted down Kennedy's right front jacket pocket, he felt a "large cylindrical object" that was approximately four to five inches long and four to five inches in diameter. Id. at 14. Because that object blocked Officer Salisbury from being able to feel what else might be underneath it in the very large pocket, he pulled the object out of the pocket, and it proved to be a mason jar containing a green leafy substance that appeared to be marijuana. Kennedy continued to question the officers and move around, so the officers placed him in handcuffs in order to safely complete the patdown search. As they continued the patdown, Officer Pierson felt what she immediately recognized as the butt of a gun in the waistband of Kennedy's pants. Officer Pierson removed the gun, which was a loaded 9-millimeter Smith and Wesson handgun. Officer Salisbury instructed Kennedy to sit on the curb, but he took off running instead. Officer Salisbury chased after Kennedy while Officer Pierson stayed with the other vehicle occupants. Officer Salisbury eventually caught up with Kennedy and grabbed him, causing Kennedy to lose his balance and fall. Kennedy then declared, "I'm done—I'll stop." Id. at 16.
[5] Officer Salisbury returned with Kennedy to the location of the traffic stop and placed him under arrest for escape. A search of Kennedy's person incident to arrest revealed a digital scale, a clear plastic baggie of marijuana, $97 in cash, and two plastic baggies containing 127 multicolored pills with no pharmaceutical markings. Subsequent tests of a random sampling of the pills revealed that the pills contained methamphetamine. The total weight of the pills was 41.99 grams.
[6] The State charged Kennedy with level 2 felony dealing in methamphetamine, level 3 felony possession of methamphetamine, level 4 felony unlawful possession of a firearm by a serious violent felon, level 5 felony escape, class A misdemeanor resisting law enforcement, class B misdemeanor possession of marijuana, and class B misdemeanor false informing. Prior to trial, Kennedy filed a motion to suppress evidence arguing that the police lacked reasonable suspicion to conduct the patdown search, and therefore all evidence found during and after that search should be suppressed. The trial court denied the motion following an evidentiary hearing. A jury trial began on February 4, 2020. Kennedy renewed his objection to the admission of evidence, which the trial court overruled. The State subsequently dismissed the level 4 felony charge, and the jury found Kennedy guilty on all remaining counts. During sentencing, the trial court merged the possession and dealing convictions and imposed an aggregate sentence of fifteen years with five years suspended to probation. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion in admitting evidence obtained as a result of the patdown search.
[7] We begin by noting that Kennedy does not challenge the validity of his initial traffic stop, nor could he, as "[i]t is unequivocal under our jurisprudence that even a minor traffic violation is sufficient to give an officer probable cause to stop the driver of a vehicle." Tinker v. State , 129 N.E.3d 251, 255 (Ind. Ct. App. 2019) (quoting Austin v. State , 997 N.E.2d 1027, 1034 (Ind. 2013) ), trans. denied. Rather, Kennedy challenges only the initial patdown search of his person by police officers, asserting that the search was conducted without reasonable suspicion that he was armed and dangerous, and therefore the trial court abused its discretion in admitting any evidence obtained during the search or thereafter.
[8] The trial court has broad discretion to rule on the admissibility of evidence. Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017). Generally, evidentiary rulings are reviewed for an abuse of discretion and reversed when admission is clearly against the logic and effect of the facts and circumstances. Id. Conflicting evidence is viewed in the light most favorable to the trial court's ruling. Hansbrough v. State , 49 N.E.3d 1112, 1114 (Ind. Ct. App. 2016), trans. denied. However, we consider "afresh any legal question of the constitutionality of a search and seizure." Id. (citing Meredith v. State , 906 N.E.2d 867, 869 (Ind. 2009) ). It is the State's burden to demonstrate the admissibility of evidence collected during a seizure or search. Clark v. State , 994 N.E.2d 252, 260 (Ind. 2013) ; see Hill v. State , 956 N.E.2d 174, 177 (Ind. Ct. App. 2011) (holding that evidence obtained from an illegal search is "fruit of the poisonous tree" and therefore inadmissible in a court of law), trans. denied (2012); Segura v. United States , 468 U.S. 796, 804 (1984) (noting that the exclusionary rule encompasses both "primary evidence obtained as a direct result of an illegal search or seizure" and any "evidence later discovered and found to be derivative of an illegality.").
1.1 – The officers had reasonable suspicion that Kennedy was armed and dangerous, and therefore the patdown search did not violate the Fourth Amendment.
[9] The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures by requiring a warrant supported by probable cause. U.S. CONST . amend. IV. However, an officer may perform a patdown of a driver or passenger of a stopped vehicle when the officer has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether there is probable cause to arrest the individual for a crime. Terry v. Ohio , 392 U.S. 1, 27 (1968). The purpose of a Terry protective search "is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Minnesota v. Dickerson , 508 U.S. 366, 373 (1993). "[T]here must exist articulable facts to support an officer's reasonable belief that the particular individual is armed and dangerous." Patterson v. State , 958 N.E.2d 478, 486 (Ind. Ct. App. 2011). 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." Berry v. State , 121 N.E.3d 633, 637 (Ind. Ct. App. 2019), trans. denied. To determine whether an officer acted reasonably, we consider the specific, reasonable inferences that the officer is entitled to draw from the facts in light of his experience. Patterson , 958 N.E.2d at 486.
[10] Here, Officer Salisbury initiated a traffic stop of a vehicle in dark early morning hours in an extremely high-crime area. When making initial contact with the vehicle's occupants, Officer Salisbury smelled raw marijuana emanating from the vehicle. Although the driver and the backseat passenger immediately complied with Officer Salisbury's subsequent request to exit the vehicle, Kennedy did not comply with Officer Pierson's simultaneous request. Officer Pierson observed that Kennedy was "very hesitant" about exiting the vehicle, and that he instead became verbally combative with the officers. Tr. Vol. 2 at 25. When Kennedy did finally comply, officers observed that he was wearing a large military style jacket with numerous pockets. Based upon these facts, the officers had a significant safety concern regarding Kennedy and were fearful that he might be concealing a weapon. Accordingly, the officers conducted a patdown search for officer safety.
[11] Based upon the record before us, we think that a reasonably prudent person in either Officer Salisbury's or Officer Pierson's position would be warranted in the belief that his safety or that of others was in danger, justifying a patdown search of Kennedy. The dark early morning traffic stop in a high-crime area, the presence of illegal drugs, and Kennedy's behavior and wardrobe are all facts that when viewed together provided an objectively reasonable basis for the search. Indeed, the United States Supreme Court has repeatedly noted that traffic stops are "especially fraught with danger to police officers." Michigan v. Long , 463 U.S. 1032, 1047 (1983) ; see also Pennsylvania v. Mimms , 434 U.S. 106, 110 (1977) (noting that a significant percentage of murders of police officers occur during traffic stops); Adams v. Williams , 407 U.S. 143, 148 n.3 (1972) (same). Under the facts and circumstances presented here, we conclude that the patdown search was justified by a reasonable concern for officer safety. Patterson , 958 N.E.2d at 487-88 (concluding that officer had reasonable concern for safety during late-night traffic stop in high-crime area when illegal drugs were involved). Accordingly, we conclude that the officers’ patdown search did not run afoul of the Fourth Amendment.
Kennedy concedes that "courts have often considered evidence of drug involvement as part of the totality of the circumstances contributing to an officer's reasonable belief that subject is armed and dangerous." Patterson , 958 N.E.2d at 486. Still, he insists that the detected smell of marijuana is irrelevant in this case because our supreme court recently stated that evidence that an individual is suspected of the crime of selling drugs, as opposed to perhaps just using them, is more likely to support a reasonable belief that the individual is armed and dangerous. Johnson v. State , 157 N.E.3d 1199, 1206 (Ind. 2020) (patdown search justified because officer suspected defendant of trying to sell drugs and was about to interview him one-on-one in a small windowless room early in the morning). However, as discussed above, the suspected presence of marijuana in the vehicle was just one of the several factors contributing to the officers’ reasonable belief that Kennedy was armed and dangerous.
1.2 – The officers’ actions were reasonable under the totality of the circumstances, and therefore the patdown search did not violate Article 1, Section 11 of the Indiana Constitution.
[12] Kennedy also challenges the patdown search under Article 1, Section 11 of the Indiana Constitution. Article 1, Section 11 of the Indiana Constitution, which reads:
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.
When analyzing Article 1, Section 11 of the Indiana Constitution, "[i]nstead of focusing on the defendant's reasonable expectation of privacy, we focus on the actions of the police officer and employ a totality-of-the-circumstances test to evaluate the reasonableness of the officer's actions." Duran v. State , 930 N.E.2d 10, 17 (Ind. 2010) (citations omitted). In Litchfield v. State , 824 N.E.2d 356, 361 (Ind. 2005), our supreme court established the test for the reasonableness of a search or seizure pursuant to Article 1, Section 11. The Litchfield test balances: (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. It is the State's burden to show its intrusion was reasonable. Baniaga v. State , 891 N.E.2d 615, 618 (Ind. Ct. App. 2008).
[13] First, in evaluating the degree of suspicion, courts consider "the reasonableness of the officers’ assumptions, suspicions, or beliefs based on the information available to them at the time." Duran , 930 N.E.2d at 18. As discussed with the federal analysis, the presence of marijuana in the vehicle, the high-crime area, the early-morning hour, Kennedy's hesitant and argumentative behavior when asked to exit the vehicle, and his large jacket easily capable of concealing a weapon all contributed to the reasonableness of the suspicions that led the officers to perform the patdown.
[14] Next, the degree of intrusion is evaluated from the defendant's point of view. Id. An "ordinary" patdown of the outside of a suspect's clothing is a fairly limited intrusion for the purposes of the Indiana Constitution. Berry v. State , 121 N.E.3d 633, 639 (Ind. Ct. App. 2019), trans. denied. Indeed, police are not required to wait until an individual appears to be reaching for a weapon in order to ensure his safety and the safety of the others at the scene. Wilson v. State , 745 N.E.2d 789, 792 (Ind. 2001). Based upon our review of the facts, we think the patdown search here was only slightly more intrusive than an ordinary search for weapons. While it is true that two officers simultaneously conducted the search, this was because Kennedy kept moving around and ignoring repeated commands to cooperate. Similarly, Kennedy's continued obstructive behavior necessitated him being handcuffed partway through the search. We agree with the State that a defendant cannot behave in a manner that necessitates a slightly increased intrusion on his activities, and then complain about the increased intrusion that his behavior, and his behavior alone, caused. Similarly, contrary to Kennedy's assertions, the officers’ quick removal of the mason jar from a large jacket pocket in order to be able to adequately feel beneath it did not make the patdown for weapons significantly more intrusive. In sum, the intrusion here was, and remained, minimal.
[15] Finally, Kennedy argues that the extent of the law enforcement needs in these circumstances was low because two officers were present at the scene, and he and the other occupants of the vehicle were cooperative. We must disagree with Kennedy's characterization of his behavior, either before or during the patdown search, as cooperative. Moreover, the fact remains that the two officers were outnumbered by three vehicle occupants, on the side of the road, at 2:00 a.m., in a high crime area. We would say the extent of law enforcement needs for safety in this situation was quite high. Weighing the degree of suspicion, the degree of intrusion, and the law enforcement needs, we conclude that the officers’ actions were reasonable under the totality of the circumstances, and therefore the search did not violate Article 1, Section 11 of the Indiana Constitution.
1.3 – Kennedy has waived any claim that seizure of the mason jar from his pocket exceeded the scope of the patdown search.
[16] Kennedy maintains that "[e]ven if there was a legal basis for the patdown search," the officers’ seizure of the mason jar from his pocket "went beyond the permissible scope of a Terry search." Appellant's Br. at 32. However, Kennedy's sole argument before the trial court was that officers lacked reasonable suspicion to conduct a patdown search of his person for officer safety. At no time during the hearing on the motion to suppress, or during trial, did he raise any assertion that removal of the mason jar from his pocket in the midst of that search exceeded the scope of the search. Indeed, other than a general objection to the admission of evidence lodged at the beginning of the State's case in chief, Kennedy never once drew the trial court's attention specifically to the mason jar and/or why its removal from his pocket went beyond the permissible scope of a patdown for weapons. Absent a contemporaneous objection that is sufficient to alert the trial court of the legal issues involved, any such argument is waived for our review. Moore v. State , 669 N.E.2d 733, 742 (Ind. 1996) (holding that a defendant waives his suppression claim if he fails to object to the introduction of evidence, makes only a general objection, or objects only on other grounds).
[17] We disagree with Kennedy's assertion that a general "unlawful Terry search" objection should preserve all related grounds for appeal. Reply Br. at 15. Indeed, the purpose of requiring a contemporaneous objection is to afford the trial court an opportunity to make a final ruling on the matter in the context which the evidence is introduced. Orr v. State , 968 N.E.2d 858, 860 (Ind. Ct. App. 2012). "This is why, for example, pointing to a motion to suppress, a hearing thereon, or other similar hearing, does not satisfy this requirement." Id. Requiring a specific and contemporaneous objection at trial allows the trial judge "to consider the issues in light of any fresh developments—in the law, facts of the case, or anything related to the trial itself—as may be appropriate, and to correct any errors in prior rulings on the issues." Id. (citing Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010) ). Kennedy has waived this issue for our review.
We note that these are not the words used by Kennedy's counsel at trial, and that his actual objection was even more general. Counsel simply stated, "Your Honor, at this time I'm going to object. Under the Fourth Amendment to the U.S. Constitution and Article 1, § 11 of the Indiana Constitution and incorporate prior argument." Tr. Vol. 2 at 161. As already stated, his "prior argument" was simply that officers lacked reasonable suspicion that he was armed and dangerous. Appellant's App. Vol. 2 at 89-95.
[18] Based on the foregoing, we conclude that the initial patdown search of Kennedy violated neither the federal nor the state constitution. Therefore, the trial court did not abuse its discretion in admitting evidence obtained as a result, including evidence obtained directly as well as derivatively from the search.
Because we conclude that the initial patdown search was valid, we need not address the State's alternative assertion that the evidence discovered during the subsequent search incident to arrest following Kennedy's escape was properly admitted pursuant to the attenuation doctrine. See Wright v. State , 108 N.E.3d 307, 314-17 (Ind. 2018) (noting that evidence is not excluded as "fruit of the poisonous tree" if it was obtained by a means sufficiently distinguishable to be purged of the primary taint).
Section 2—The State presented sufficient evidence to support Kennedy's conviction for dealing in methamphetamine.
[19] Kennedy challenges only the sufficiency of the evidence supporting his conviction for level 2 felony dealing in methamphetamine. When reviewing the sufficiency of the evidence required to support a criminal conviction, we do not reweigh the evidence or judge the credibility of the witnesses. Bailey v. State , 907 N.E.2d 1003, 1005 (Ind. 2009). Instead, we consider only the evidence supporting the verdict and any reasonable inferences that can be drawn therefrom. Morris v. State , 114 N.E.3d 531, 535 (Ind. Ct. App. 2018), trans. denied. And we consider conflicting evidence most favorably to the verdict. Silvers v. State , 114 N.E.3d 931, 936 (Ind. Ct. App. 2018). "We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt." Bailey , 907 N.E.2d at 1005. It is not necessary for the evidence to overcome every reasonable hypothesis of innocence; it is sufficient if an inference may reasonably be drawn from the evidence to support the verdict. Silvers , 114 N.E.3d at 936.
[20] To convict Kennedy of level 2 felony dealing in methamphetamine, the State was required to prove that he possessed, with intent to deliver, a narcotic drug in an amount of at least ten grams. Ind. Code §§ 35-48-4-1(a)(2)(C), - (e)(1). Kennedy's sole contention is that the State failed to prove he had the requisite intent to deliver. Because intent is a mental state, a trier of fact must generally resort to the reasonable inferences arising from the surrounding circumstances to determine whether the requisite intent exists. McGuire v. State , 613 N.E.2d 861, 864 (Ind. Ct. App. 1993), trans. denied. This Court has held that "[c]ircumstantial evidence showing possession with intent to deliver may support a conviction." Love v. State , 741 N.E.2d 789, 792 (Ind. Ct. App. 2001). Possession of a large amount of narcotics in itself is sufficient to demonstrate possession with intent to deliver. See Davis v. State , 791 N.E.2d 266, 270 (Ind. Ct. App. 2003) ("Evidence of the illegal possession of a relatively large quantity of drugs is sufficient to sustain a conviction for possession with intent to deliver."), trans. denied.
[21] Here, the State presented evidence that Kennedy possessed two baggies containing 127 pills, which weighed a total of 41.99 grams. Although the total amount of pills would be considered a large quantity, Kennedy emphasizes that only thirty-three pills, weighing 10.68 grams, were randomly selected for testing and found to contain methamphetamine. Indiana Code Section 35-48-4-1.1(b) provides that if the amount of narcotic possessed is less than 28 grams, a person may be convicted for possession with intent to deliver "only if there is evidence in addition to the weight of the drug" showing that the person had the intent to deliver. (emphasis added). Assuming, without deciding, that Indiana Code Section 35-48-4-1.1(b) applies under the circumstances presented here, the State presented ample evidence in addition to the weight of the tested pills showing Kennedy's intent to deliver.
Kennedy argues that the State tested only 10.68 grams of pills for methamphetamine, and that while the remaining 31.31 grams of pills could be considered to establish the weight element of the offense, the untested pills cannot be considered to establish the intent element of his crime. See Woodford v. State , 752 N.E.2d 1278, 1282-83 (Ind. 2001) (noting that both untested and tested substances can be used to prove the requisite weight element of a drug offense). Specifically, Kennedy suggests that the State cannot use an inference (that the untested pills also contained methamphetamine) to prove an element of the offense it also seeks to prove by inference (that the intent to deliver can be inferred from possession of a large amount of a drug). Kennedy cites no authority to support this proposition, but the State similarly cites no authority to rebut this proposition. Because we find sufficient circumstantial evidence to establish Kennedy's intent to deliver in addition to his possession of the untested pills, we decline to address this issue.
[22] Narcotics Detective Craig McElfresh testified that each methamphetamine pill had a street value of roughly $20. Thus, thirty-three pills alone would have a street value of $660, which would be much more than a typical user would ever buy or carry on him at one time. Detective McElfresh explained that the "street level drug dealers" are the ones who acquire their drugs "in bulk," not the mere users. Tr. Vol. 2 at 219. Kennedy also possessed $97 in cash. McElfresh explained that most people pay cash for drugs and that with dealers, its either "high product, low money" or "high money, low product." Id. at 222. Kennedy's possession of $97 in cash, coupled with thirty-three methamphetamine pills and ninety-four pills of an unconfirmed substance, supports a reasonable inference that he is in the former category. Kennedy also possessed a digital scale and a loaded handgun. Detective McElfresh testified that it is very "uncommon" for mere drug users to carry scales with them, while it is common for drug dealers to carry both scales and guns. Id. Detective McElfresh stated that in his twenty-five years of being a narcotics detective, he had "never" come across a mere "drug user or addict" who was in possession of a gun. Id. The jury could reasonably infer from the foregoing evidence that Kennedy had the requisite intent to deliver. Sufficient evidence supports Kennedy's conviction for level 2 felony dealing in methamphetamine, and therefore we affirm the conviction.
[23] Affirmed.
Najam, J., and Riley, J., concur.