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.
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
CRAIG PERSINGER
Marion, Indiana
STEVE CARTER
Attorney General of Indiana
MATTHEW D. FISHER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL JEFFREY,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 85A02-0610-CR-899
APPEAL FROM THE WABASH SUPERIOR COURT
The Honorable Christopher Goff, Judge
Cause No. 85D01-0512-FD-926
May 16, 2007
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAKER, Chief Judge
Appellant-defendant Michael Jeffrey appeals his convictions for Possession of
Paraphernalia, 1 a class A misdemeanor, and Possession of Marijuana, 2 a class A
misdemeanor, claiming that the drugs and some “snorting devices” were improperly admitted
into evidence at trial. Appellant’s Br. p. 4, 5. Specifically, Jeffrey contends that a police
officer conducted an illegal pat down search of his person and that the subsequent search of a
tin and the seizure of drugs constituted a violation of the “plain feel” doctrine. Id. at 5.
Concluding that the police officer properly conducted the pat down and finding that the
subsequent search of the tin was proper, we affirm the judgment of the trial court.
FACTS
In the early morning hours of December 21, 2005, Wabash Police Officer Josh Prater
approached a vehicle on Manchester Avenue traveling the opposite direction with its bright
headlights shining. Although Officer Prater signaled the driver to dim the headlights, the
driver failed to do so. As a result, Officer Prater turned his police cruiser around, and
eventually stopped the other vehicle. The vehicle had turned into a driveway and the
driver—Jason Dutton—was attempting to “get into the house quickly” before Officer Prater
ordered him back to the vehicle. Tr. p. 20. Officer Prater determined that Dutton did not
have a valid driver’s license, so he wrote Dutton a citation for the violation.
Shortly thereafter, Wabash County Sheriff’s Deputy Matt Shrider arrived and
deployed his K-9 unit to check for the presence of illegal drugs. The dog alerted the officers
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Ind. Code § 35-48-4-8.3.
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I. C. § 35-48-4-11.
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to the presence of drugs in the vehicle. After Dutton gave the officers permission to search
the vehicle, Officer Prater ordered the passengers—Jessica Dutton and Jeffrey—to exit the
vehicle. Jessica had been sitting in the front passenger seat and Jeffrey was seated directly
behind her. Officer Prater then informed Jeffrey that he was going to be patted down for
weapons. Jeffrey reached into his pocket and handed Officer Prater a pocketknife. During
the pat down, Officer Prater felt a hard object in one of Jeffrey’s coverall pockets. When
Officer Prater asked Jeffrey about the item, Jeffrey removed the object from his pocket,
handed it to Officer Prater, and explained that it was a “mint can.” Id. at 59. Officer Prater
opened the can and found several Vicodin pills, rolling papers, two “snorting devices,” and
some marijuana. Id. at 60, 62.
As a result of the incident, Jeffrey was charged with possession of a controlled
substance, possession of marijuana, and possession of paraphernalia. Prior to trial, Jeffrey
filed a motion to suppress, claiming that the pat down amounted to an unreasonable search
and seizure under the Fourth Amendment to the United States Constitution. Thus, Jeffrey
claimed that all evidence seized following the pat down search could not be admitted at trial.
Following a hearing, the trial court denied Jeffrey’s motion, and the matter proceeded to a
bench trial on September 6, 2006. Jeffrey was found guilty of possession of marijuana and
paraphernalia, but he was acquitted of the controlled substance charge. 3 Jeffrey was
subsequently sentenced, and he now appeals.
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The trial court noted that Jeffrey had a prescription for the Vicodin. Tr. p. 98.
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DISCUSSION AND DECISION
I. Pat Down
Jeffrey first contends that his convictions must be reversed because there was no
justification for the pat down. Thus, Jeffrey maintains that all evidence seized following the
pat down was inadmissible at trial.
In resolving this issue, we initially observe that the Fourth Amendment to the United
States Constitution prohibits warrantless searches. Black v. State, 810 N.E.2d 713, 715 (Ind.
2004). While there are exceptions to the warrant requirement, the burden is on the State to
prove that an exception exists. Id. One well-known exception was announced in Terry v.
Ohio, 392 U.S. 1 (1968), where the United States Supreme Court determined that a police
officer may conduct 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.” Id. at 27.
Moreover, the police officer need not be absolutely certain that the individual is armed;
rather, the issue is whether a reasonable prudent person in the circumstances would be
warranted in the belief that his safety or that of others was in danger. Wilson v. State, 745
N.E.2d 789, 792 (Ind. 2001). A police 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. When a police officer has reason to place a subject in his vehicle, a pat down is
generally reasonable even if the subject has given the officer no particular reason to suspect
that he is dangerous. Id.
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In this case, the evidence showed that Officer Prater received Dutton’s consent to
search the vehicle. Tr. p. 69-70. However, before conducting the search, Officer Prater
properly ordered Jeffrey and Jessica to exit the vehicle to reduce his vulnerability to an
attack. Id. at 78; see Maryland v. Wilson, 519 U.S. 408, 415 (1997) (holding that a police
officer may order passengers from a vehicle during a traffic stop).
When Officer Prater realized that the police dog had alerted to the presence of drugs
in the vehicle, he could very well have been concerned that weapons might also be in the
vicinity. Hence, in light of the increased risk that Officer Prater would have faced during the
vehicle search and the presence of drugs that had already been established, it was reasonable
for Officer Prater to ensure that Jeffrey was not armed. See Wilson, 745 N.E.2d at 792.
Finally, we note that Officer Prater was also justified in conducting the pat down after
Jeffrey had handed him the pocketknife. In our view, the discovery of one weapon justified
the pat down for additional weapons. It would have been unwise for Officer Prater to assume
that Jeffrey had no more weapons on his person even though Jeffrey had voluntarily given
the knife to Officer Prater. As a result, Jeffrey’s claim that the evidence should not have
been admitted into evidence because the pat down search was unlawful fails.
II. Plain Feel Doctrine
Jeffrey also contends that even if the pat down search was justified, the subsequent
seizure of the mint container was unlawful. Specifically, Jeffrey claims that Officer Prater
could not validly search the tin because that object did not feel like a weapon.
As noted above, there are exceptions to the warrant requirement. Black, 810 N.E.2d at
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715. Seizure of contraband detected during a Terry search for weapons is permissible under
the “plain feel doctrine,” which provides that if during a lawful pat down of “the suspect’s
outer clothing,” the officer “feels an object whose contour or mass makes its identity” as
contraband “immediately apparent” to that officer, a warrantless seizure of the object is
justified. Burkett v. State, 785 N.E.2d 276, 278 (Ind. Ct. App. 2003).
Consent to search may also justify a warrantless search. When the State relies upon
this exception to the warrant requirement, it has the burden of proving that the consent was,
in fact, freely and voluntarily given. Lyons v. State, 735 N.E.2d 1179, 1185 (Ind. Ct. App.
2000). Whether a consent to search is voluntary is a question of fact to be determined from
the totality of the circumstances. Id. An individual’s consent to search is valid so long as it
is not procured by fraud, duress, fear, or intimidation or where it is merely a submission to
the supremacy of the law. Martin v. State, 490 N.E.2d 309, 313 (Ind. 1986). Moreover, the
circumstances surrounding the search may demonstrate that the party involved implicitly
consented to the search by word or deed. State v. Jorgensen, 526 N.E.2d 1004, 1006 (Ind.
Ct. App. 1988).
In this case, Officer Prater testified that he did not know the nature of the object when
he felt it. Tr. p. 33. Indeed, Officer Prater admitted that the object “didn’t feel like
contraband.” Id. Hence, Officer Prater was not justified in searching the tin in accordance
with the plain feel doctrine. But the evidence also shows that after Officer Prater asked about
the object, Jeffrey immediately pulled it from his pocket, handed it to Officer Prater, and
indicated that it was a “mint can.” Id. at 59. Moreover, when Jeffrey handed the can to
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Officer Prater, he never stated that Officer Prater should not open it.
Under these
circumstances, it is apparent that Jeffrey demonstrated his intent to cooperate with Officer
Prater, and impliedly consented to the search of the tin. There is no evidence that the consent
was the product of fraud, duress, fear, intimidation, or mere submission to the supremacy of
the law. Additionally, there is no evidence showing that Jeffrey was under arrest at the time.
Moreover, Jeffrey was not handcuffed, and there was no evidence demonstrating that Jeffrey
was threatened or intimidated when he handed the can to Officer Prater. Under these
circumstances, Jeffrey cannot successfully complain that Officer Prater’s search of the mint
can was improper. As a result, we conclude that the trial court did not err in admitting the
marijuana and paraphernalia into evidence.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and CRONE, J., concur.
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