Johnson v. State

• Decision Date: 23 June 2015
• Docket Number: No. 49A05–1409–CR–409.,49A05–1409–CR–409.
• Citation: 38 N.E.3d 658
• Parties: LaQuantis JOHNSON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

38 N.E.3d 658

LaQuantis JOHNSON, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1409–CR–409.

Court of Appeals of Indiana.

June 23, 2015.

Joel M. Schumm, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

BROWN

, Judge.

[1] LaQuantis Johnson appeals his conviction for unlawful possession of a firearm by a serious violent felon (“SVF”), a class B felony. Johnson raises one issue which we revise and restate as whether the trial court abused its discretion by admitting evidence obtained following a pat down of Johnson. We affirm.

Facts and Procedural History

[2] On November 17, 2013, City of Lawrence Police Officer Ralph Bridgeforth was working as an off-duty security guard inside the Indianapolis Greyhound bus station and wearing a partial police uniform. At 2:00 a.m., Officer Bridgeforth observed Johnson and J.D. Sanders enter the main entrance of the bus terminal without luggage.

Sanders was stumbling all over the place and showing signs of intoxication, and there was a general odor of alcohol coming from the area of Sanders and Johnson. Officer Bridgeforth motioned for Johnson and Sanders to approach him.

[3] Officer Bridgeforth detected a strong odor of alcohol coming from the general area of the men, and asked them for identification and whether they were traveling by bus to determine if they were trespassing. Both of the men said that they were not traveling by Greyhound. Sanders provided Officer Bridgeforth with identification, but Johnson stated that he did not have his identification with him and placed his left hand into his left front pants pocket.

[4] Johnson's act of placing his hand in his pocket increased Officer Bridgeforth's concern for his safety because of “the possibility that he could have had a weapon on him and that is how several officers are killed in this country every year.” Transcript at 33. Officer Bridgeforth asked Johnson at least two times to remove his hand from his pocket, but Johnson did not comply. Officer Bridgeforth took Johnson's left arm, ordered him to place his hands behind his back, and continued to do a pat down search for weapons.

[5] During the pat down, Officer Bridgeforth “felt what appeared to be a handgun” in Johnson's left waistband beyond his back and behind the pocket where Johnson had placed his hand. Id. at 32. He then placed Johnson in handcuffs and removed a .45 caliber handgun from him.

[6] On November 21, 2013, the State charged Johnson with unlawful possession of a firearm by an SVF, a class B felony, and disorderly conduct as a class B misdemeanor. On May 5, 2014, Johnson filed a motion to suppress evidence and asserted that the stop violated his right to privacy under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution

.

[7] On June 26, 2014, the court held a bench trial. During Officer Bridgeforth's testimony, defense counsel moved to suppress any evidence found as a result of the pat down search under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution

. The court took the motion under advisement. After the State rested, defense counsel renewed his motion to suppress. Defense counsel conceded that he thought Officer Bridgeforth was “probably personally prudent in doing what he did that day,” but that “[t]here's no particular reason to believe [Johnson] was armed and dangerous which means the patdown wasn't appropriate....” Id. at 62–63. The court took the matter under advisement.

[8] On July 9, 2014, the court found that the initial encounter was a proper investigatory stop and that the pat down was reasonable based upon the facts. The court also commented that it believed that Officer Bridgeforth's safety was threatened. The court admitted the evidence, ultimately found Johnson guilty of unlawful possession of a firearm by an SVF and not guilty of disorderly conduct, and sentenced him to eleven years in the Department of Correction with two years suspended.

Discussion

[9] The issue is whether the court abused its discretion by admitting evidence of the handgun obtained following a pat down of Johnson. We review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind.1997)

, reh'g denied. We reverse only where the decision is clearly against the logic and effect of the facts and circumstances.

Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997)

, reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App.1999), reh'g denied, trans. denied. Also, we may affirm a trial court's decision to admit evidence seized as a result of a search based on any legal theory supported by the record. Edwards v. State, 724 N.E.2d 616, 620–621 (Ind.Ct.App.2000), trans. denied. We review de novo a ruling on the constitutionality of a search or seizure, but we give deference to a trial court's determination of the facts, which will not be overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind.2008).

[10] Johnson does not challenge the constitutionality of the initial encounter or investigatory stop. However, he does claim that the pat down was illegal under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution

.

[11] We begin by addressing the Fourth Amendment claim. Johnson argues that the officer's pat down was justified only by concern that Sanders was intoxicated and his refusal to remove his hands from his pockets after he failed to produce identification. Johnson asserts that Officer Bridgeforth agreed on cross-examination that he had no particular reason to believe that Johnson had a gun and no particular reason to believe that he had any contraband, and that the facts do not support a reasonable belief that he was armed and dangerous. The State argues that the trial court properly found that Officer Bridgeforth had a reasonable belief that his safety was threatened.

[12] The Fourth Amendment to the United States Constitution provides:

The 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 warrants 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.

[13] In Terry v. Ohio, the United States Supreme Court held:

The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?

392 U.S. 1, 21–22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)

(footnote omitted). The Court permitted

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.

Id. at 27, 88 S.Ct. at 1883

. The Court held that “in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. In other words, the Court concluded that

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. at 1884–1885

.

[14] The Fourth Amendment allows privacy interests protected by the Fourth Amendment to be balanced against the interests of officer safety. Wilson v. State, 745 N.E.2d 789, 792 (Ind.2001)

(citing Terry, 392 U.S. at 23–27, 88 S.Ct. at 1881–1883 ). “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.” Id. (citing Mitchell v. State, 745 N.E.2d 775, 781 (Ind.2001) ).

[15] To the extent Johnson asserts that the pat down search was no more justified than in Swanson v. State, 730 N.E.2d 205 (Ind.Ct.App.2000)

, trans. denied, we disagree. In that case, police observed Swanson, who had been driving, pull into a parking place, exit his vehicle, and place alcoholic beverages on top of the car. 730 N.E.2d at 207. An officer approached Swanson, whose hands were in his pockets, and asked him to remove his hands with the understanding that the officer was going to conduct a pat down search of Swanson for...