## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : VALERIE K. BOOTS GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

CHARLES WESTMORELAND, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A04

- 1107

- CR

- 356 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Jose D. Salinas, Judge Cause No. 49G14

- 1012

- CM

- 090092

April 17, 2012 OPINION

- FOR PUBLICATION VAIDIK, Judge2 Case Summary
Charles Westmoreland was a passenger in a vehicle that police stopped for a routine traffic violation. After a police officer determined that there were outstanding warrants for the driver, the officer arrested the driver while another officer removed
Westmoreland from the car , handcuffed him, and patted him down f or officer safety, finding a baggie of marijuana in his front pocket. Westmoreland now appeals the trial court’s denial of his motion to suppress the marijuana, arguing that the pat down was illegal because the officers did not reasonabl y belie ve that he was armed and dangerous

. In light of the United States Supreme Court’s opinion in Arizona v. Johnson , 555 U.S. 323 (2009), which considered the authority of police officers to pat down vehicle passengers during a routine traffic stop, we conclude that the trial court erred in denying Westmoreland’s motion to suppress the marijuana because the officers did not reasonably believe that he was armed and dangerous. Facts and Procedural History
A round 6:00 or 7:00 p.m. o n December 1, 2010, I ndianapolis Metropolitan Police Department Officer Robert Hicks was patrol ling the southside of Indianapolis . H e observed a vehicle driven by Deborah Day commit traffic infractions , including failure to signal, and initiated a traffic stop. Officer Hicks approached t he driver side of the vehicle and asked Deborah for her driver’s license and registration. Deborah gave Officer Hicks an Indiana identification card. Upon running the card, Officer Hicks learned that
Deborah had warrants out of both Marion a nd Johnson counties. Accordingly, Officer3

Hicks called for assistance and then “pulled [Deborah] out of the car, placed handcuffs on her, [and] placed her [i]n the back seat of [his] vehicle.” Tr. p. 7.
Westmoreland was the sole passenger in Deborah’s vehicle, and Officer Hicks
also obtained his identification

. Westmoreland did not have any outstanding warrants.
About this same time, a second officer, Officer Ethan Forrest, arrived on the scene. Officer Hicks told Officer Forrest that he “had a wanted person [Deborah] and asked him if he would pull the passenger out of the vehicle” because he “was going to tow [it] .” Id.

at 8

- 9. Officer Forrest then removed Westm oreland from the vehicle and performed a pat down. Officer Forrest also placed Westmoreland in handcuffs, but he was not sure
whether he did so before or after the pat down. Although Officer Forrest said that he performed a pat down “for officer safety i ssues , ” i d. at 13 , he did not observe “ any furtive

movements ” from Westmoreland, i d. at 14. During the pat down, Officer Forrest found a “plastic baggie with marijuana substance inside of it, in [Westmoreland’s] front pocket.”
Id. at 13. Officer Forrest explained that a “corner piece” of the baggie, which revealed marijuana residue, was “sticking out” of Westmoreland’s front pocket. Id. Officer Forrest removed the baggie and gave it to Officer Hicks

. The following day, the State charged Westmoreland w ith Class A misdemeanor possession of marijuana. Westmoreland filed a motion to suppress the marijuana because the “search and seizure of Defendant’s person, the bag within [D]efendant’s pocket, and the marijuana within the bag, violated [his] rights unde r the 4 th [A]mendment and [A]rticle 1 § 11.” Appellant’s App. p. 23. Following a hearing, the trial court denied Westmoreland’s motion to suppress the marijuana

. Tr. p. 24

- 28.4

This discretionary interlocutory appeal now ensues.
Discussion and Decision
Westmoreland contends that the trial court erred in denying his motion to suppress the marijuana

. Our standard of review for the denial of a motion to suppress evidence is similar to other sufficiency issues. Jackson v. State , 785 N.E.2d 615, 618 (Ind. Ct. App. 2003), trans. denied. We determine whether substantial evidence of probative value exists to support the denial of the motion. Id. We do not reweigh the evidence, and we consider conflicting evidence that is mo st favo rable to the trial court’ s ruling. Id. However, the review of a denial of a motion to suppress is different from other sufficiency matters in that we must also consider uncontested evidence that is favorable
to the defendant. Id

. We review de novo a ru ling 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). Westmoreland specifically argues that h is pat down was illegal under both the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the
Indiana Constitution because the officers did not reasonabl y belie ve that he was armed
and dan gerous
. 1 Finding the federal constitutional argument dispositive, we address only
that. The Fourth Amendment provides:

1 We note that Westmoreland does not challenge the initial traffic stop. Indeed, it is well settled that a police officer may stop a vehicle upon observing a minor traffic violation. Reinhart v. State , 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).5

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall n ot 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. Unless one of several established exceptions applies, pol ice officers must obtain a warrant based on probable cause before executing a search or a seizure. State v. Hobbs , 933 N.E.2d 1281, 1284 (Ind. 2010). One such exception was established in Terry v.
Ohio , in which the United States Supreme Court held that a police officer may , with or without probable cause, briefly detain a person for investigatory purposes if, based on specific and articulable facts, the officer reasonably believes that c riminal activity “ may be afoot. ” 2 392 U.S. 1, 30 (1968). In addition to detainment, Terry permits a police
officer to conduct a l imited search of the individual’ s outer clothing for weapons if the officer reasonably believes that the individual is armed and dangerous. Id. A generalized suspicion that an indivi dual presents a threat to an officer’s safety is insufficient to authorize a pat

- down search; rather, “there must exist articulable facts to support an officer’s reasonable belief that the particular individual is armed and dangerous.”
Patterson v. State , 958 N.E.2d 478, 486 (Ind. Ct. App. 2011).
A unanimous United States Supreme Court has already addressed the issue before

us , al though neither party cites it , i n Arizona v. Johnson , 555 U.S. 323 (2009). In

2 We note tha t the State argues that a different exception applies, that is, the search

- incident

- to

arrest exception. Specifically, the State argues that Officer Forrest had probable cause to arrest Westmoreland for possession of marijuana because he saw a corner of a baggie with marijuana residue sticking out of Westmoreland’s front pocket. However, because the evidence shows that Officer Forrest spotted the marijuana during the pat down and not before , we find no merit to this argument. See Tr. p. 13 ( Officer Forr est testifying that he found a plastic baggie “when” he patted down Westmoreland) , 19 (prosecutor stating at motion to suppress hearing that Officer Forrest saw the baggie “[d]uring” the pat down).6

Johnson , the Supreme Court considered “the authority of police officers to ‘stop and frisk’ a passenger in a motor vehicle temporarily seized upon police detection of a traffic
violation. ” Id. at 326

. In arriving at an answer , t he Supreme Court relied on three of its prior decisions.
F irs t , the Supreme Court in Johnson cited Pennsylvania v. Mimms , 434 U.S. 106 (1977). Johnson , 555 U.S. at 331. In Mimms , the Supreme Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” 434 U.S. at 111 n .6. The Supreme Court explained that the government’s “legitimate and weighty” interest in officer safety outw eighs the

“ de minimis ” additional intrusion of requiring a driver, already lawfully stopped, to exit
the vehicle. Id. at 110

- 11. The Supreme Court further held once a driver is outside the stopped vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver “might be armed and presently dangerous.” Id. at 112. Second, the Supreme Court in Johnson cited Maryland v. Wilson , 519 U.S. 408 (1997). Johnson , 555 U.S. at 331. Wilson held that the Mimms rule applies to passengers
as well as drivers. Id. Specifically, the Supreme Court instructed that “ an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”
Wilson , 519 U.S. at 415 . The Supreme Court recogniz ed that that “ the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger

. ” Id. at 413.7

Finally, the Supreme Court in Johnson cited Brendlin v. Califo rnia , 551 U.S. 249 (2007). Johnson , 555 U.S. at 332. In Brendlin , the Supreme Court observed that for the
d uration of a traffic stop, the officer effectively seizes “ everyone in the vehicle, not just
the driver

. ” 551 U.S. at 255

. That is, a passenger is seized, just like a driver, “from the moment [ a car stopped by police comes ] to a halt on the side of the road

. ” Id. at 263.
Based on these three decisions , the Supreme Court in Johnson held that, in a
traffic

- stop setting,
the first Terry condition

— a lawful investigatory stop

— is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is inv olved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subject ed to the frisk is armed and dangerous. 555 U.S. at 327. We now apply Johnson to this case. 3 Because Officer Hicks lawfully pulled over Deborah for a traffic violation, the officers did not need to have cause to believe that Westmoreland was involved in criminal activity. However, to justify the pat down of
Westmoreland , which led to the discovery of marijuana, the officers must have had reasonable suspicion that he was armed and dangerous. But no evidence was presented at

3 We note that the State advocates for a slightly diff erent test. That is , the State argues that because the officers were going to tow the vehicle, a pat down was warranted . The State asserts that Westmoreland likely would have b een mulling about the area during this process, which would have “place[d] the officers in possible danger and would reasonably heighten apprehension for their safety.” Appellee’s Br. p. 7

. However, as noted above, the State did not cite Johnson on appeal . Because Johnson sets forth the applicable test , w hich plainly requires the officers to harbor reasonable suspicion that Westmoreland was armed and dangerous, we decline to apply the State’s variation

. In addition, b ecause we ultimately find that the officers did not reasonably believe that Westmoreland was armed and dangerous, dangerous ness would not automatically develop just because a car is towed.8

the suppression hearing to support a reasonable belief that Westmoreland was armed and dangerous. Although Officer Forrest testified that he patted down Westmoreland for officer safety, Officer Forre st conceded that Westmoreland did not make any furtive

movements. In addition , neither officer testified that Westmoreland was hostile, belligerent, or even uncooperative during the traffic stop. But most compelling is the State’s concession on appeal th at “Officer Forrest did not have any particularized articulable facts for believing that [Westmoreland] was armed and dangerous.” Appellee’s Br. p. 7. W e therefore conclude that the officers did not have reasonable suspicion that Westmoreland was armed a nd dange rous. Because Officer Forrest performed an illegal pat down on Westmoreland , the trial court erred in denying hi s motion to suppress the marijuana found as a result of that pat down

. And w ithout th is marijuana, there is simply no evidence to support the possession of marijuana charge against Westmoreland. We therefore reverse the trial cou rt and remand with instructions
for the court to dismiss Westmoreland’s possession of marijuana charge.
Reversed and remanded.
R OBB, C.J., and NAJAM, J., concur.