Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020 Page 1 of 21

ATTORNEY FOR APPELLANT

John L. Tompkins

Tompkins Law

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew R. Mackenzie

Megan M. Smith

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

William Michael Bean II,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 13, 2020

Court of Appeals Case No.

19A-CR-225

Appeal from the Hancock Circuit 

Court

The Honorable Terry K. Snow, 

Judge

Trial Court Cause No.

30C01-1709-F3-1956

May, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020 Page 2 of 21

[1] William Michael Bean II appeals his convictions of Level 3 felony dealing in a 

schedule II controlled substance1 and Level 4 felony dealing in a schedule IV 

controlled substance.2

 Bean raises one issue on appeal, which we expand and 

restate as: (1) whether the officers lawfully initiated a traffic stop, and (2) 

whether the trial court erred in admitting evidence discovered during searches

of Bean’s person in conjunction with the traffic stop. We also address sua sponte

whether searches of Bean’s person were justifiable as searches incident to arrest. 

We reverse.

Facts and Procedural History3

[2] On September 19, 2017, Detective Jacob Lewis and Detective David Wood, 

who were narcotics investigators with the Hancock County Sheriff’s 

Department, saw Bean at a Speedway gas station located at I-70 and 600 

County Road West. Detective Wood had his police dog in his car. The 

detectives did not observe Bean engage in any suspicious activity at the gas 

station, but they recognized him as a suspected narcotics user and dealer. 

Detective Wood left the gas station and travelled along 500 County Road North 

because he knew that was the road Bean would likely travel in order to drive 

home from the gas station. When Bean left the Speedway station, Detective

1 Ind. Code § 35-48-4-2.

2 Ind. Code § 35-48-4-3.

3 We held oral argument on October 21, 2019, in Montezuma, Indiana. We thank the faculty and staff of 

Riverton Parke High School for their hospitality and commend counsel for their able presentations.
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Lewis followed him “to see if he was involved in any narcotics activity that I 

know him to be involved in [sic].” (Tr. Vol. II at 7.) 

[3] When Bean’s vehicle passed where Detective Wood was stationed, Detective 

Wood determined Bean was traveling sixty miles per hour on an unposted 

county roadway, where the speed limit defaults to fifty-five miles per hour. 

Detective Wood notified Detective Lewis of Bean’s infraction, and Detective 

Lewis initiated a traffic stop. Detective Wood and another deputy also arrived 

at the scene of the stop. The officers directed Bean to exit his vehicle and to 

come back to Detective Lewis’ vehicle because the officers knew from previous 

interactions with Bean that he typically carried a weapon. Bean complied with 

the officers’ commands. Detective Lewis decided to perform a pat down 

search, and Bean consented to the search. Detective Lewis did not find any 

weapons and asked Bean for his driver’s license and vehicle registration. 

Detective Lewis then returned to his police vehicle to complete paperwork 

associated with Bean’s traffic infraction.

[4] Detective Wood asked Bean if he could search Bean’s vehicle, and Bean 

consented. Detective Wood observed what he believed to be marijuana shake4

on the passenger seat and floorboard of Bean’s vehicle. Detective Wood did 

not collect the material on the seat or test it to determine if it was in fact 

4 Detective Wood described marijuana shake as “small marijuana pieces . . . and seeds.” (Tr. Vol. II at 35.)
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marijuana. He also did not walk his police dog around Bean’s vehicle to see if 

the dog alerted to the presence of drugs.

[5] After the vehicle search, Detective Wood reported to Detective Lewis that he 

found marijuana shake inside Bean’s vehicle, and Detective Lewis relayed that 

he observed Bean shifting his weight and “crossing himself or reaching towards 

his groin” while Detective Wood was searching his vehicle. (Id. at 12.) The 

detectives observed that Bean was sweating and breathing heavily, and his 

hands were shaking. The two decided to conduct a further search of Bean’s 

person. Detective Wood asked Bean to remove his shoes, Bean complied, and 

Detective Wood did not find anything illegal in his shoes. 

[6] Detective Wood then conducted a second pat down search of Bean. Detective 

Wood did not ask for Bean’s consent before conducting the second pat down 

search. During this search, Bean pinched his legs together. After additional 

consultation with Detective Lewis, Detective Wood asked Bean to shake out 

his pants. Bean started to jump up and down rather than shake out the front of 

his pants. A bag of pills fell out of Bean’s pants. Detective Lewis recognized 

the bag to contain hydrocodone pills and alprazolam pills, a generic for Xanax, 

because of the markings on the pills. The officers arrested Bean, but they did 

not issue a citation or warning for his speeding infraction.

[7] The State charged Bean with Level 3 felony dealing in a schedule II controlled 

substance (hydrocodone), Level 4 felony dealing in a schedule IV controlled 
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substance (alprazolam), and Level 6 felony maintaining a common nuisance.5

 

The State did not charge Bean with possession of marijuana based on the 

alleged shake in the car. On January 4, 2018, Bean filed a motion to suppress 

the evidence obtained during the traffic stop and subsequent searches. The 

court held a hearing on the motion to suppress on February 8, 2018. The court 

denied the motion to suppress on March 5, 2018, and the matter proceeded to a 

bench trial on December 4, 2018. 

[8] At trial, Bean renewed his objection to the search, and the court overruled his 

objection. The State introduced evidence of text messages between Bean and a 

friend in which Bean agreed to sell his friend “dones,” which Detective Lewis 

testified is a slang term for hydrocodone. (Id. at 79-81.) The court found Bean 

guilty of both dealing counts and not guilty of the maintaining a common 

nuisance count. The court sentenced Bean to nine years for dealing in a 

Schedule II controlled substance, with five years executed in the Indiana 

Department of Correction and four years suspended to probation, and five 

years for dealing in a Schedule IV controlled substance. The court ordered the 

sentences to run concurrently. 

Discussion and Decision

5 Ind. Code § 35-45-1-5.
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[9] While Bean moved to suppress the evidence discovered during the traffic stop 

and subsequent searches, his motion was denied, and the case proceeded to 

trial. Therefore, Bean appeals from the admission of the evidence at trial. See 

Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). The trial court has broad 

discretion when ruling on the admissibility of evidence, and we usually review 

such decisions for an abuse of discretion. Id. An abuse of discretion occurs “if 

the ruling is clearly against the logic and effect of the facts, and the error effects 

substantial rights.” Sams v. State, 71 N.E.3d 372, 376 (Ind. Ct. App. 2017). 

However, the constitutionality of a search or seizure is a pure question of law 

that we review de novo. Id. 

1. Traffic Stop

[10] The Fourth Amendment to the United States Constitution6 provides that 

[t]he 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 warrant 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.

The protections of the Fourth Amendment have been extended to the states by 

virtue of the Fourteenth Amendment. N.W. v. State, 834 N.E.2d 159, 162 (Ind. 

Ct. App. 2005), trans. denied. Under the Fourth Amendment, “a traffic stop of a 

6 Bean does not assert a claim under Article 1, Section 11 of the Indiana Constitution.
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vehicle and temporary detention of its occupants constitutes a ‘seizure.’” 

McLain v. State, 963 N.E.2d 662, 666 (Ind. Ct. App. 2012). Police officers are 

charged with enforcing traffic laws and are authorized to stop drivers they 

observe commit traffic infractions. Datzek v. State, 838 N.E.2d 1149, 1156 (Ind. 

Ct. App. 2005) (holding stop of suspected drunk driver after driver failed to use 

turn signal was lawful), reh’g denied, trans. denied. Therefore, the officer’s traffic 

stop of Bean was lawful because Bean was traveling five miles above the speed 

limit. 

2. Initial Pat Down Search, Vehicle Search and Second Pat 

Down Search

[11] Generally, the Fourth Amendment protects individuals from warrantless 

searches. Tumblin v. State, 736 N.E.2d 317, 320 (Ind. Ct. App. 2000), trans. 

denied. However, there are several exceptions to the warrant requirement. Id.

For one, officers can search a person or a vehicle without a warrant if the 

subject consents to the search. Camp v. State, 751 N.E.2d 299, 302 (Ind. Ct. 

App. 2001) (“When an individual gives permission to a search of either his 

person or property, governmental intrusion thereon is presumably not 

unreasonable”), reh’g denied, trans. denied. Additionally, “when the officer has 

reason to believe that he is dealing with an armed and dangerous individual, the 

officer may conduct a limited frisk of the individual detained.” Tumblin, 736 

N.E.2d at 320; see also Terry v. Ohio, 392 U.S. 1, 30 (1968). The officer does not 

need to be certain that a person is armed, but the circumstances must be such 

that a reasonably prudent person would believe either his safety or the safety of 
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others was in danger. Wright v. State, 766 N.E.2d 1223, 1232 (Ind. Ct. App. 

2002). “In determining whether the officer acted reasonably under the 

circumstances, due weight must be given, not to the officer’s inchoate and 

unparticularized suspicions, but to the specific reasonable inferences that the 

officer is entitled to draw from the facts in light of his experience.” Id. 

[12] Here, Detective Wood testified he had observed Bean carrying a pistol on 

approximately five prior occasions. Detective Lewis testified Bean had a gun at 

a prior traffic stop and there was a “brief standoff.” (Tr. Vol. II at 53.) 

Therefore, Detective Lewis’ initial pat down search of Bean was constitutional 

because Bean consented to the search and because the officers had a reasonable 

belief Bean might be armed and dangerous due to their previous interactions 

with him. Cf. Westmoreland v. State, 965 N.E.2d 163, 166 (Ind. Ct. App. 2012) 

(holding officer did not reasonably believe suspect was armed and dangerous 

before ordering him out of the car and frisking him during routine traffic stop).

[13] Furthermore, Bean gave officers permission to search his vehicle, and therefore, 

it was constitutional for Detective Wood to do so. See McIlquham v. State, 10 

N.E.3d 506, 514 (Ind. 2014) (search conducted with consent comports with 

Fourth Amendment). However, Bean did not consent to the second pat down

search, and he removed his shoes and jumped up and down because police 

ordered him to do so. The State argues Bean’s nervousness and movements

while Detective Wood searched his vehicle justified Detective Wood’s request 

that he submit to a second pat down search, remove his shoes, and shake out 

the front of his pants. The State maintains these additional measures were 
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necessary for officer safety. At trial, Detective Wood testified the second pat 

down search was for “[o]fficer safety based on the . . . movements to his groin 

area and the . . . known history of Mr. Bean carrying a firearm.” (Tr. Vol. II at 

36.) 

[14] However, we note Detective Wood also testified that he ordered Bean to 

remove his shoes because he thought Bean was hiding narcotics in them and 

not for officer safety.7

 Further, Detective Lewis’ initial pat down search of 

Bean did not reveal the presence of any weapons. While Detective Lewis 

testified that his first pat down search was “poor,” he did sweep Bean’s beltline 

and acknowledged Bean’s “weapon has always been on his hip.” (Id. at 55.) 

Also, as Bean’s counsel observed during oral argument, it does not make sense

to direct a person that is the subject of a search for weapons to manipulate his 

own clothing in the process of the search because doing so could allow the 

person to access the weapon and possibly use it. Considering these facts, the 

7 The following exchange occurred during Bean’s cross-examination of Detective Wood at trial:

[Counsel:] . . .[A]s I saw on the video, you went back to Mr. Bean and asked him to remove his 

shoes.

[Wood:] Yes.

[Counsel:] And what was the purpose of that?

[Wood:] . . . I asked Mr. Bean to remove his shoes [because] often times narcotics can be hidden 

in people’s---people’s shoes and socks.

[Counsel:] Okay. And so what was the reason that you had him remove his shoes?

[Wood:] To see if he was concealing anything in his---in his shoes.

[Counsel:] Okay. And that was not for officer safety at that point. Correct?

[Wood:] Correct.

(Tr. Vol. II at 45.)
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officers lacked a reasonable belief that Bean was armed and dangerous when 

they discovered the bags of pills. See Clark v. State, 994 N.E.2d 252, 267 n.19

(Ind. 2013) (pat down search not justified without specific and articulable facts 

that suspect was armed and dangerous).

3. Search Incident to Arrest

[15] The dissent would hold that the discovery of marijuana shake in the vehicle 

justified the subsequent searches of Bean’s person as searches incident to arrest. 

See dissent at 3 (“The discovery of the marijuana seeds, the possession of which 

is a crime, on its own is enough to establish probable cause to search Bean.”). 

A search incident to a lawful arrest is an exception to the warrant requirement. 

Wilkinson v. State, 70 N.E.3d 392, 403 (Ind. Ct. App. 2017). An officer may 

conduct a warrantless search of an arrestee’s person and the area in the person’s 

immediate control if the officer has probable cause to make an arrest. Id. 

“Probable cause for an arrest exists if at the time of the arrest the officer has 

knowledge of facts and circumstances which would warrant a man of 

reasonable caution to believe that the suspect has committed the criminal act in 

question.” Id.

[16] At the hearing on the motion to suppress, Detective Wood testified:

[Bean’s Counsel]: All right. What happened as a result of the 

[vehicle] search?

[Wood]: Um—I did observe um—some, what’s referred to as 

marijuana shake, small pieces of marijuana on the passenger seat 

and some seeds I identified to be marijuana seeds.
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[Counsel: Did you collect those items?

[Wood]: I did not.

[Counsel]: Did you test those items to determine if they in fact 

were any type of narcotic?

[Wood]: I did not.

(Tr. Vol. II at 19.) On direct examination at trial, Detective Wood testified that

when he searched the front passenger seat area, he “did locate some, what is 

referred to as marijuana shake, which is small marijuana pieces um, and seeds.”

(Id. at 35.) On cross examination, the following exchange occurred:

[Bean’s Counsel]: And you told The [sic] Court today that uh, 

you believe that you saw something in the vehicle that may have 

been marijuana shake, which I understand may be very loose 

small particles or leaves on the floorboard. Is that right?

[Wood]: Correct.

[Counsel]: And maybe a seed or two in the driver’s seat. Is that 

right?

[Wood]: Correct.

[Counsel]: All right. What steps did you take to test those items 

to see if they were in fact a controlled substance like marijuana?

[Wood]: I did not. They were just identified given my training 

and experience.
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[Counsel]: Okay. So you did nothing to confirm that one way or 

another.

[Wood]: Correct.

[Counsel]: All right. Upon discovering the marijuana shake or 

seed, uh, was Mr. Bean at that point placed under arrest?

[Wood]: No.

(Id. at 43.) 

[17] Detective Wood did not recover the suspected marijuana shake from the 

vehicle. The substance was never tested to determine whether it was 

marijuana. Even though Detective Wood had a police dog in his car, he did 

not have the dog sniff Bean’s vehicle to detect the presence of illegal drugs. 

Detective Wood did not testify regarding any distinguishing characteristics of 

the substance that led him to the conclusion that the substance was marijuana. 

Rather, Detective Wood just testified as to his conclusion that the substance 

was marijuana “given [his] training and experience.” (Id.) Probable cause 

cannot be based solely on a conclusory assertion. For example, an affidavit that 

contains only “bare conclusory information, lacking underlying facts, cannot 

suffice as probable cause upon which to base a search warrant.” Bryant v. State, 

655 N.E.2d 103, 108 (Ind. Ct. App. 1995) (holding search warrant affidavit

containing speculative conclusions did not establish probable cause).
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[18] The cases cited by the dissent are readily distinguishable from the case at bar. 

In Vasquez v. State, testimony established the police officers were familiar with 

the characteristics of toluene, which routinely is identified based on its smell 

and appearance, and the confiscated substance looked and smelled like toluene. 

741 N.E.2d 1214, 1217 (Ind. 2001). In Yoakum v. State, the officers testified that 

they had experience recognizing synthetic marijuana and that the recovered 

substance looked like synthetic marijuana, smelled like synthetic marijuana, 

and was packaged in a ripped plastic baggie. 95 N.E.3d 169, 175 (Ind. Ct. App. 

2018). In each of these cases, the officers did not simply state the identity of the 

substance; they described characteristics of the substance (i.e. look, smell,

packaging, etc.) that allowed them to identify it. The State did not elicit any 

similar testimony from Detective Wood.8

[19] In Edwards v. State, officers obtained a search warrant based on items they found 

during a search of the defendant’s trash. 832 N.E.2d 1072, 1074 (Ind. Ct. App. 

2005). These items consisted of “balled up plastic wrap which contained 

marijuana particles, empty plastic wrap boxes, bubble wrap, and an empty tape 

roll.” Id. At trial, a detective testified that he had been certified as a drug 

recognition expert, that he was able to recognize marijuana when he saw it, and 

“that he believed the discovery of the plastic wrap was significant because 

individuals will receive shipments of marijuana in large packages and then 

8 In contrast, Detective Lewis testified that he was able to identify the pills found on Bean’s person by the 

markings on the pills. He explained that in his training and experience as a narcotics detective he had 

identified pills based on their markings multiple times in the past.
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repackage it in smaller increments for sale.” Id. at 1078. In Boggs v. State, 

sufficient evidence supported the defendant’s conviction for possession of 

marijuana because two officers testified “the green, leafy substance found was 

consistent with marijuana,” one of the officers stated he “had ‘no doubt’ that 

the substance was marijuana,” and the defendant admitted he possessed a small 

amount of marijuana and used cigarette tubes found in his home to smoke it. 

928 N.E.2d 855, 867 (Ind. Ct. App. 2010), trans. denied. 

[20] In each of these cases, unlike in the instant case, there was evidence beyond the 

officer’s bare assertion that a substance was a prohibited substance.

9

 We 

accordingly hold the officers did not have probable cause to arrest Bean for 

marijuana possession after the search of his vehicle10 and the search incident to 

arrest exception does not apply in this circumstance. See Wilson v. State, 96 

N.E.3d 655, 660 (Ind. Ct. App. 2018) (holding officer lacked probable cause to 

arrest suspect when the suspect exited a car parked in a high crime area then 

reached back into the vehicle), trans. denied.

9 The dissent also references Danner v. State, 931 N.E.2d 421, 431 (Ind. Ct. App. 2010) (holding observation 

of marijuana in plain view on the passenger seat of vehicle was sufficient to provide probable cause to 

conduct warrantless vehicle search), trans. denied, and State v. Hawkins, 766 N.E.2d 749, 751-52 (Ind. Ct. App. 

2002) (holding odor of burnt marijuana gave officer probable cause to conduct warrantless search of 

automobile), trans. denied. However, these cases are distinguishable from the case at bar because they involve 

vehicle searches rather than searches incident to arrest. Vehicles are readily mobile, and people possess a 

lower expectation of privacy regarding their contents. Myers v. State, 839 N.E.2d 1146, 1151 (Ind. 2005).

10 In fact, Detective Lewis referred to the shake as “basically irrelevant” because the officers “didn’t do 

anything with it.” (Tr. Vol. II at 67.) The trial court found the search incident to arrest exception did not 

justify the shoe search, second pat-down search, or the request for Bean to shake out the front of his pants 

because Bean was not under arrest at that point.
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[21] We hold Bean’s right under the Fourth Amendment to the United States

Constitution to be free from unreasonable search and seizure was violated by 

the second pat down search of Bean, the request that Bean remove his shoes, 

and the order that Bean shake out the front of his pants. Therefore, the 

evidence obtained during the same should not have been admitted at trial. See 

Sanchez v. State, 803 N.E.2d 215, 221 (Ind. Ct. App. 2004) (“fruit of the 

poisonous tree” doctrine bars illegally obtained evidence from admission), trans. 

denied.

11

Conclusion

[22] After conducting one pat down search and searching Bean’s vehicle, the officers 

lacked a reasonable belief Bean was armed and dangerous, and they should not 

have continued searching him. We reverse the trial court’s admission of the 

evidence obtained as a result of Bean jumping up and down and remand for 

further proceedings consistent with this opinion.

[23] Reversed and remanded.

Robb, J., concurs.

Baker, J., dissents with opinion.

11 Bean also argues that the detectives unconstitutionally extended the duration of the traffic stop. See Wilson 

v. State, 847 N.E.2d 1064, 1068 (Ind. Ct. App. 2006) (holding officer did not have reasonable suspicion to 

detain driver after traffic stop was concluded). However, we need not address the constitutionality of the 

duration of the stop because we hold the shoe search and all subsequent searches were unlawful.
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IN THE

COURT OF APPEALS OF INDIANA

William Michael Bean II,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

Court of Appeals Case No.

19A-CR-225

Baker, Judge, dissenting.

[24] I respectfully dissent. I agree with the majority to the extent that the series of 

non-consensual searches of Bean—the second pat-down search, the request to 

remove his shoes, and the order to shake out the front of his pants—cannot be 

justified as a frisk for weapons. But, as the majority acknowledges, a pat-down 

search for weapons to protect officer safety is not the only exception to the 

Fourth Amendment warrant requirement. Rather than review the nonconsensual searches as frisks for weapons under a Terry analysis, I would 

instead find that the series of non-consensual searches that the majority finds 
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unconstitutional to fall squarely under the search incident to arrest exception to 

the Fourth Amendment warrant requirement.

[25] Because the non-consensual searches were conducted following the discovery of 

marijuana shake, an illegal substance,12 in Bean’s car, the deputies had probable 

cause to conduct the warrantless searches as a search incident to arrest. Under 

the Fourth Amendment, warrantless searches of a person are reasonable 

intrusions if the search is incident to a lawful custodial arrest. E.g., Easley v. 

State, 166 Ind. App. 316, 319, 335 N.E.2d 838, 840 (Ind. Ct. App. 1975). 

Importantly, “even when a police officer does not tell a defendant that he or she 

is under arrest prior to a search, that fact does not invalidate a search incident to 

an arrest as long as there is probable cause to make an arrest.” Moffitt v. State, 

817 N.E.2d 239, 246 (Ind. Ct. App. 2004). That is, the relevant question is 

“whether [an officer] had probable cause to arrest the defendant at the time he 

searched him,” regardless of whether the search preceded or followed the arrest 

itself. Easley, 166 Ind. App. at 319, 335 N.E.2d at 840. “Probable cause 

adequate to support a warrantless arrest exists when, at the time of the arrest, 

the officer has knowledge of facts and circumstances that would warrant a 

person of reasonable caution to believe that the suspect committed a criminal 

act.” Moffitt, 817 N.E.2d at 246.

12 See I.C. § 35-48-4-11. 
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[26] Here, the facts known to Deputy Wood at the time he conducted the 

warrantless, non-consensual search of Bean were sufficient to establish probable 

cause to justify the intrusion. During the consensual search of Bean’s vehicle, 

Deputy Wood found seeds and stems that he identified, based on his training 

and experience, to be marijuana shake. Deputy Lewis also informed Deputy 

Wood that he had observed Bean during that search to be visibly nervous—

rapidly shifting his feet, crossing himself, and grabbing at his groin—exhibiting 

behaviors that Deputy Lewis testified as being “generally associated with 

concealment of some type of contraband, whether it be a weapon or . . . 

narcotics.” Tr. Vol. II p. 54.

[27] The discovery of the marijuana seeds, the possession of which is a crime, on its 

own is enough to establish probable cause to search Bean. Under Indiana Code 

section 35-48-1-19, “marijuana” is defined to include “any part of the plant 

genus Cannabis whether growing or not; the seeds thereof; . . . [and] any 

compound, manufacture, salt, derivative, mixture, or preparation of the plant, 

its seeds or resin.” (Emphases added); see also Edwards v. State, 832 N.E.2d 1072, 

1080 (Ind. Ct. App. 2005) (finding that search warrant was properly based upon 

probable cause where marijuana seeds were found in defendant’s trash and “the 

possession of marijuana seeds itself is a crime”).

[28] The majority dismisses the relevance of the marijuana primarily because the 

identity of the discovered plant material was neither sniffed and verified by the 

police dog in Deputy Wood’s car nor tested later on. But the majority’s 

conclusion on the matter—that the deputy’s identification of a substance based 
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on his training and experience cannot, without more, establish probable 

cause—runs directly counter to prior case law. Our Supreme Court has held, 

and this Court has routinely reiterated, that “[t]he opinion of someone 

sufficiently experienced with [a] drug may establish its identity, as may other 

circumstantial evidence.” Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001); 

see also, e.g., Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009); Yoakum v. State, 

95 N.E.3d 169, 175 (Ind. Ct. App. 2018); Boggs v. State, 928 N.E.2d 855, 865 

(Ind. Ct. App. 2010). “Although chemical analysis is one way, and perhaps the 

best way, to establish the identity of a compound, persons experienced in the 

area may be able to identify cigarette smoke, marijuana, and [other drugs].” 

Vasquez, 741 N.E.2d at 1216-17. 

[29] In Edwards v. State, this Court found that marijuana seeds and stems discovered 

in a trash search were properly relied upon to provide probable cause, even 

though the substance was never tested: “That they did not have the material 

tested to be sure that it was marijuana is not fatal because they were able to 

identify the material as marijuana based upon their training and experience.” 832 

N.E.2d at 1079-80 (emphasis added). Similarly, in Danner v. State, this Court 

held that an officer’s observation of marijuana through a car window alone was 

enough to provide the officer with probable cause. 931 N.E.2d 421, 431 (Ind. 

Ct. App. 2010); see also State v. Hawkins, 766 N.E.2d 749, 751-52 (Ind. Ct. App. 

2002) (holding that the smell of burnt marijuana alone, if detected by a trained 

and experienced police officer, supports probable cause).
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[30] At trial, Deputy Wood testified that he identified the shake found in Bean’s 

vehicle to be marijuana “given my training and experience.” Tr. Vol. II p. 43. 

In light of our own Court’s previous decisions involving officer identification of 

marijuana, this testimony is sufficient to uphold the series of non-consensual 

searches as supported by probable cause. The fact that Deputy Lewis separately 

testified, as the majority points out, that the discovery of the marijuana shake 

“[was] basically irrelevant” and that the officers “didn’t do anything with it,” id.

at 67, does not undermine the existence of probable cause. Even if the 

marijuana was never seized nor was the basis of any charge against Bean, the 

facts and circumstances known to the officers at the time of the non-consensual 

searches—namely, that an illegal substance was discovered in Bean’s vehicle—

nonetheless give rise to the reasonable belief that a criminal act had been 

committed.13

[31] Furthermore, Bean’s nervous behavior and adjusting of his groin area, when 

known in conjunction with the marijuana discovery, merely added to the facts 

upon which Deputy Wood reasonably concluded Bean had committed a 

criminal act, thus establishing the necessary probable cause. See, e.g., Easley, 166 

13 The only case cited by the majority in support of its conclusion that the search incident to arrest exception 

cannot apply here is Wilson v. State, 96 N.E.3d 655, 660 (Ind. Ct. App. 2018), trans. denied, for its holding that 

an officer lacked probable cause (as well as reasonable suspicion) to arrest when suspect had merely been 

observed exiting his vehicle in a high crime area and reaching back into the vehicle. But the case is readily 

distinguishable from Bean’s in that it does not deal with marijuana possession or identification, nor the 

knowledge of any other specific illegal conduct (i.e., observation of an illegal substance), or specific 

suspicious behavior (i.e., visible nervousness, rapid shifting of the feet, and so on) prior to conducting the 

search.
Court of Appeals of Indiana | Opinion 19A-CR-225 | February 13, 2020 Page 21 of 21

Ind. App. at 319-20, 335 N.E.2d at 840-41 (listing the facts known to the 

arresting officer, and that established probable cause, as including observation 

of green plant material that the officer identified as marijuana in the back seat of 

the vehicle and “certain suspicious movements” made by defendant trying to 

hide something around his belt).

[32] Had no marijuana been discovered prior to the series of non-consensual 

searches of Bean, I would readily agree that the non-consensual searches were 

unconstitutional and that reversal is warranted. But given all the facts and 

circumstances known to the officers at the time they conducted those searches, 

and in light of how similar facts and circumstances have been treated in 

numerous prior decisions, I would affirm the trial court’s decision. 

[33] Therefore, I respectfully dissent.