Bean v. State

• Decision Date: 13 February 2020
• Docket Number: Court of Appeals Case No. 19A-CR-225
• Citation: 142 N.E.3d 456
• Parties: William Michael BEAN II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

142 N.E.3d 456

William Michael BEAN II, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 19A-CR-225

Court of Appeals of Indiana.

FILED February 13, 2020

Attorney for Appellant: John L. Tompkins, Tompkins Law, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Matthew R. Mackenzie, Megan M. Smith, Deputy Attorneys General, Indianapolis, Indiana

May, Judge.

[1] William Michael Bean II appeals his convictions of Level 3 felony dealing in a schedule II controlled substance¹ and Level 4 felony dealing in a schedule IV controlled substance.² Bean raises one issue on appeal, which we expand and restate as: (1) whether the officers lawfully initiated a traffic stop, and (2) whether the trial court erred in admitting evidence discovered during searches of Bean's person in conjunction with the traffic stop. We also address sua sponte whether searches of Bean's person were justifiable as searches incident to arrest. We reverse.

Facts and Procedural History³

[2] On September 19, 2017, Detective Jacob Lewis and Detective David Wood, who were narcotics investigators with the Hancock County Sheriff's Department, saw Bean at a Speedway gas station located at I-70 and 600 County Road West. Detective Wood had his police dog in his car. The detectives did not observe Bean engage in any suspicious activity at the gas station, but they recognized him as a suspected narcotics user and dealer. Detective Wood left the gas station and travelled along 500 County Road North because he knew that was the road Bean would likely travel in order to drive home from the gas station. When Bean left the Speedway station, Detective Lewis followed him "to see if he was involved in any narcotics activity that I know him to be involved in [sic]." (Tr. Vol. II at 7.)

[3] When Bean's vehicle passed where Detective Wood was stationed, Detective Wood determined Bean was traveling sixty miles per hour on an unposted county roadway, where the speed limit defaults to fifty-five miles per hour. Detective Wood notified Detective Lewis of Bean's infraction, and Detective Lewis initiated a traffic stop. Detective Wood and another deputy also arrived at the scene of the stop. The officers directed Bean to exit his vehicle and to come back to Detective Lewis' vehicle because the officers knew from previous interactions with Bean that he typically carried a weapon. Bean complied with the officers' commands. Detective Lewis decided to perform a pat down search, and Bean consented to the search. Detective Lewis did not find any weapons and asked Bean for his driver's license and vehicle registration. Detective Lewis then returned to his police vehicle to complete paperwork associated with Bean's traffic infraction.

[4] Detective Wood asked Bean if he could search Bean's vehicle, and Bean consented. Detective Wood observed what he believed to be marijuana shake⁴ on the passenger seat and floorboard of Bean's vehicle. Detective Wood did not collect the material on the seat or test it to determine if it was in fact marijuana. He also did not walk his police dog around Bean's vehicle to see if the dog alerted to the presence of drugs.

[5] After the vehicle search, Detective Wood reported to Detective Lewis that he found marijuana shake inside Bean's vehicle, and Detective Lewis relayed that he observed Bean shifting his weight and "crossing himself or reaching towards his groin" while Detective Wood was searching his vehicle. (Id . at 12.) The detectives observed that Bean was sweating and breathing heavily, and his hands were shaking. The two decided to conduct a further search of Bean's person. Detective Wood asked Bean to remove his shoes, Bean complied, and Detective Wood did not find anything illegal in his shoes.

[6] Detective Wood then conducted a second pat down search of Bean. Detective Wood did not ask for Bean's consent before conducting the second pat down search. During this search, Bean pinched his legs together. After additional consultation with Detective Lewis, Detective Wood asked Bean to shake out his pants. Bean started to jump up and down rather than shake out the front of his pants. A bag of pills fell out of Bean's pants. Detective Lewis recognized the bag to contain hydrocodone

pills and alprazolam pills, a generic for Xanax, because of the markings on the pills. The officers arrested Bean, but they did not issue a citation or warning for his speeding infraction.

[7] The State charged Bean with Level 3 felony dealing in a schedule II controlled substance (hydrocodone), Level 4 felony dealing in a schedule IV controlled substance (alprazolam), and Level 6 felony maintaining a common nuisance.⁵ The State did not charge Bean with possession of marijuana based on the alleged shake in the car. On January 4, 2018, Bean filed a motion to suppress the evidence obtained during the traffic stop and subsequent searches. The court held a hearing on the motion to suppress on February 8, 2018. The court denied the motion to suppress on March 5, 2018, and the matter proceeded to a bench trial on December 4, 2018.

[8] At trial, Bean renewed his objection to the search, and the court overruled his objection. The State introduced evidence of text messages between Bean and a friend in which Bean agreed to sell his friend "dones," which Detective Lewis testified is a slang term for hydrocodone. (Id . at 79-81.) The court found Bean guilty of both dealing counts and not guilty of the maintaining a common nuisance count. The court sentenced Bean to nine years for dealing in a Schedule II controlled substance, with five years executed in the Indiana Department of Correction and four years suspended to probation, and five years for dealing in a Schedule IV controlled substance. The court ordered the sentences to run concurrently.

Discussion and Decision

[9] While Bean moved to suppress the evidence discovered during the traffic stop and subsequent searches, his motion was denied, and the case proceeded to trial. Therefore, Bean appeals from the admission of the evidence at trial. See Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017). The trial court has broad discretion when ruling on the admissibility of evidence, and we usually review such decisions for an abuse of discretion. Id . An abuse of discretion occurs "if the ruling is clearly against the logic and effect of the facts, and the error effects substantial rights." Sams v. State , 71 N.E.3d 372, 376 (Ind. Ct. App. 2017). However, the constitutionality of a search or seizure is a pure question of law that we review de novo . Id .

1. Traffic Stop

[10] The Fourth Amendment to the United States Constitution⁶ provides that

[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, 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 persons or things to be seized.

The protections of the Fourth Amendment have been extended to the states by virtue of the Fourteenth Amendment. N.W. v. State , 834 N.E.2d 159, 162 (Ind. Ct. App. 2005), trans. denied . Under the Fourth Amendment, "a traffic stop of a vehicle and temporary detention of its occupants constitutes a ‘seizure.’ " McLain v. State , 963 N.E.2d 662, 666 (Ind. Ct. App. 2012). Police officers are charged with enforcing traffic laws and are authorized to stop drivers they observe commit traffic infractions. Datzek v. State , 838 N.E.2d 1149, 1156 (Ind. Ct. App. 2005) (holding stop of suspected drunk driver after driver failed to use turn signal was lawful), reh'g denied , trans. denied . Therefore, the officer's traffic stop of Bean was lawful because Bean was traveling five miles above the speed limit.

2. Initial Pat Down Search, Vehicle Search and Second Pat Down Search

[11] Generally, the Fourth Amendment protects individuals from warrantless searches. Tumblin v. State , 736 N.E.2d 317, 320 (Ind. Ct. App. 2000), trans. denied . However, there are several exceptions to the warrant requirement. Id . For one, officers can search a person or a vehicle without a warrant if the subject consents to the search. Camp v. State , 751 N.E.2d 299, 302 (Ind. Ct. App. 2001) ("When an individual gives permission to a search of either his person or property, governmental intrusion thereon is presumably not unreasonable"), reh'g denied , trans. denied . Additionally, "when the officer has reason to believe that he is dealing with an armed and dangerous individual, the officer may conduct a limited frisk of the individual detained." Tumblin , 736 N.E.2d at 320 ; see also Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officer does not need to be certain that a person is armed, but the circumstances must be such that a reasonably prudent person would believe either his safety or the safety of others was in danger. Wright v. State , 766 N.E.2d 1223, 1232 (Ind. Ct. App. 2002). "In determining whether the officer acted reasonably under the circumstances, due weight must be given, not to the officer's inchoate and unparticularized suspicions, but to the specific reasonable inferences that the officer is entitled to draw from the facts in light of his experience." Id .

[12] Here, Detective Wood testified he had observed Bean carrying a pistol on approximately five prior occasions. Detective Lewis testified Bean had a gun at a prior traffic stop and there was a "brief standoff." (Tr. Vol. II at 53.) Therefore, Detective Lewis' initial pat down search of Bean was constitutional because Bean consented to the search and because the officers had a reasonable belief Bean might be armed and dangerous due to their previous interactions with him. Cf. Westmoreland v. State , 965 N.E.2d 163, 166 (Ind. Ct. App. 2012) (holding officer did not reasonably believe suspect was armed and dangerous before ordering him out of...