Kennedy v. State
| Decision Date | 17 February 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-1354 |
| Parties | Robert Deon KENNEDY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
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
[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.
[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.
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) (), trans. denied (2012); Segura v. United States , 468 U.S. 796, 804 (1984) ().
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...
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