Kennedy v. State

• Decision Date: 17 February 2021
• Docket Number: 20A-CR-1354
• Parties: Robert Deon Kennedy, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

Robert Deon Kennedy, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

No. 20A-CR-1354

Court of Appeals of Indiana

February 17, 2021

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Appeal from the Marion Superior Court Trial Court Cause No. 49G21-1904-F2-13526 The Honorable Alicia A. Gooden, Judge

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...