Johnson v. State

• Citation: 157 N.E.3d 1199
• Decision Date: 01 December 2020
• Docket Number: Supreme Court Case No. 20S-CR-655
• Parties: Michael D. JOHNSON, Appellant (Defendant below) v. STATE of Indiana, Appellee (Plaintiff below)
• Court: Indiana Supreme Court

157 N.E.3d 1199

Michael D. JOHNSON, Appellant (Defendant below)

v.STATE of Indiana, Appellee (Plaintiff below)

Supreme Court Case No. 20S-CR-655

Supreme Court of Indiana.

Argued: June 29, 2020

Filed December 1, 2020

On Petition to Transfer from the Indiana Court of Appeals, No. 19A-CR-975

Massa, Justice.

Michael Johnson offered to sell a substance he called "white girl" to a stranger at Hoosier Park Casino in Anderson. After the solicited patron reported the incident to security, and the account was verified by video surveillance, a Gaming Enforcement Agent led Johnson back to an interview room. Once they entered the room, the agent told Johnson that he would need to pat him down. Upon this pat-down, the agent immediately felt what he deemed a "giant ball" in Johnson's pocket. Consistent with his training, the agent immediately believed this lump was packaged drugs, and after removing the baggie containing white powder from Johnson's pocket, placed him under arrest.

At his trial, the court admitted, over Johnson's objection, the evidence stemming from the pat-down. Because we find that the agent had reasonable suspicion that criminal activity was afoot (so he could stop Johnson), that Johnson could be armed and dangerous (so he could pat Johnson down after entering a confined space), and the lump in Johnson's pocket was immediately apparent as contraband (so it could be seized), we affirm the admission of the evidence because the search and seizure proceeded within the bounds of the Fourth Amendment.

Facts and Procedural History

After hours of playing quarter slots with a friend at Hoosier Park Casino in Anderson, Brett Eversole was tired and fighting to stay awake on November 8, 2015. Just before he began to doze off, Eversole was approached by a stranger—Michael Johnson, the defendant in this case—who offered to sell him some "white girl." Tr. Vol. 2, pp. 87–89. Believing that this slang referred to cocaine, or less likely in his view a prostitute, and having no interest in either, Eversole rejected Johnson's offer. Rebuffed, Johnson walked away. After consulting with his friend about what "white girl" might mean, Eversole decided to tell security officers that a "man approached me when I was sitting at a slot machine and offered to sell me some drugs, I believe, and he called it white girl." Id. , p.92. A security supervisor then sought video surveillance that would show the encounter and "notified the gaming commission[,] who are law enforcement on the property." Id. , p.100.

After viewing the soundless video and conferring with Eversole, Gaming Enforcement Agent Zach Wilkinson—who was a thirteen-year law enforcement veteran specially trained in "issues inside the casino," including "drug trends" and "criminal issues"—quickly located Johnson because the Casino "wasn't super crowded at that moment" and Johnson was easy to identify from Eversole's description and the video's depiction. Id. , pp. 103–04, 109. Agent Wilkinson then told him that there had been "a report of him attempting to sell drugs to casino patrons," and Johnson "voluntarily [went] back to the [gaming commission's] interview room." Id. , p.111.

After entering the room, Agent Wilkinson informed Johnson that he "needed to pat him down."¹ Id. Upon this pat-down, Agent Wilkinson skimmed over a lump that—through his mandated yearly "training for identification of drug[s] by feel or by sight"—felt like a "ball of drugs." Id. , pp. 113–14. After Agent Wilkinson removed a baggie filled with "white powder" from Johnson's pocket, he placed him under arrest. Id. , p.114. Although this substance appeared to be cocaine, later testing merely revealed it to be sodium bicarbonate, also known as baking soda. The State later charged Johnson with "dealing in a look-a-like-substance," a Level 5 felony under Indiana Code section 35-48-4-4.6. After unsuccessfully moving to suppress the admission of any evidence flowing from the search, a jury convicted Johnson of the charge, and he appealed, renewing his argument under the Fourth Amendment.

The Court of Appeals reversed. While stating that "[i]t is incumbent upon the State to prove that the measures it used to conduct a search and seize evidence were constitutional," the panel also implied that the State must parry every constitutional attack by refuting any claim that "suggests alternative scenarios" for how evidence was obtained. Johnson v. State , 137 N.E.3d 1038, 1043–44 (Ind. Ct. App. 2019), reh'g denied , vacated . Ultimately, even though "Agent Wilkinson would arguably have ... developed probable cause for an arrest," the court concluded that "the evidence does not dispel concern that the ball of powder retrieved from Johnson's pocket was obtained in violation of his Fourth Amendment right to be free from an unlawful search and seizure." Id. at 1044.

The State sought transfer, which we now grant.

Standard of Review

"The trial court has broad discretion to rule on the admissibility of evidence." Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017) (citation omitted). Ordinarily, we review evidentiary rulings for an abuse of discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances. Id. But when a challenge to an evidentiary ruling is based "on the constitutionality of the search or seizure of evidence, it raises a question of law that we review de novo ." Id.

Discussion and Decision

"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." U.S. Const. amend. IV.² The Fourth Amendment, then, generally requires warrants for searches and seizures, and any "warrantless search or seizure is per se unreasonable." Jacobs v. State , 76 N.E.3d 846, 850 (Ind. 2017) (quotation omitted). "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 absent evidence of a recognized exception." Clark v. State , 994 N.E.2d 252, 260 (Ind. 2013). While the State can overcome this bar to admission by proving "that an exception to the warrant requirement existed at the time of" a warrantless search, Bradley v. State , 54 N.E.3d 996, 999 (Ind. 2016) (quotation omitted), it need not disprove every alternative explanation forwarded by a defendant.

Although the parties and the courts below largely focused on whether there was probable cause to arrest Johnson at the time of the search (potentially bringing the seizure within the search-incident-to-arrest exception to the Fourth Amendment), there is a clearer path to sustaining the evidence's admission: "the encounter was along the lines of a Terry stop." Appellant's Br. at 10. To determine, then, whether the evidence here should be suppressed, we must resolve three issues: (1) whether Agent Wilkinson had justification to stop Johnson under Terry ; (2) whether Agent Wilkinson could perform a Terry frisk of Johnson; and (3) whether Agent Wilkinson could seize the baggie felt in Johnson's pocket. Answering yes to each in turn, we hold the evidence admissible.

I. Agent Wilkinson was justified in stopping Johnson under Terry after watching the video and talking to Eversole.

An officer can stop a person if the officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). While this stop requires less than probable cause, an officer's reasonable suspicion demands more than just a hunch: "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Id. at 21, 88 S.Ct. 1868.

Agent Wilkinson knew that Eversole, a disinterested third-party, informed security officers that Johnson had tried to sell him "white girl," which he believed to be cocaine and believed was offered because the stimulating effect of the drug could perk him up when he was nearly asleep. See Adams v. Williams , 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ("The informant here came forward personally to give information that was immediately verifiable at the scene."). Eversole stayed at the scene, and confirmed this account with Agent Wilkinson, subjecting himself to false informing if he concocted the story. See Illinois v. Gates , 462 U.S. 213, 233–34, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("[I]f an unquestionably honest citizen comes forward with a report of criminal activity—which if fabricated would subject him to criminal liability—we have found rigorous scrutiny of the basis of his knowledge unnecessary."); Kellems v. State , 842 N.E.2d 352, 355 (Ind. 2006) ("[T]he prospect of prosecution for making a false report heightens the likelihood of the report's reliability."), rev'd on reh'g on other grounds ; Ind. Code § 35-44.1-2-3(d) (2015) ("A person who ... gives a false report of the commission of a crime or gives false information in the official investigation of the commission of a crime, knowing the report or information to be false ... commits false informing."). Because "informants who come forward voluntarily are ordinarily motivated by good citizenship or a genuine effort to aid law enforcement officers in solving a crime," Duran v. State , 930 N.E.2d 10, 17 (Ind. 2010), there is scant reason to doubt the veracity of Eversole's account.

And ensuing police work bolstered the impartial tip. Surveillance video confirmed Eversole's narrative, and the man in the video matched his earlier description of Johnson. See McGrath v. State , 95 N.E.3d 522, 528 (Ind. 2018) (holding that an "independent investigation to confirm the street...