Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 1 of 21 A TTORNEY FOR A PPELLANT John L. Tompkins Tompkins Law Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Matthew R. Mackenzie Megan M . Smith Deputy Attorney s 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 Ca se 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 | Opinio n 19A

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- 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 substance 1 and Level 4 felony dealing in a schedule IV controlled substance. 2 Bean raises one iss ue on appeal , which we expand and
restate as : (1) whether the officers lawfully initiate d a traffic stop , and (2) whether the trial court erred in admitting evidence discovered during search es 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 History 3
[2] On September 19, 2017, De tective Jacob Lewis and De tective David Wood , who were narcotics investigator s 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 d etectives did not observe Bean engage in any suspicious activity at the gas station, but they reco gnized him as a suspected narcotics user and dealer. Detective Wood left the gas station and travelled along 500 County Road Nort h because he knew that was the road Be an would likely travel in order to drive home from the gas station. When Bean left the Speedway station, D etective

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.Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 3 of 21 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] Whe n 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 Dete ctive Lewis’ vehicle because the officers knew from previous interactions with Bean that he typically carried a weapon. Bean complied with the officers’ commands

. Detective Lew is 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 B ean if he could search Bean’s vehicle, and Bean consented. Detective Wood observed what he believed to be mar ijuana shake 4 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 w as in fact

4 Detective Wood described marijuana shake a s “ small mar ijuana pieces

. . . and seeds. ” (Tr. Vol. II at 35.)Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 4 of 21 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 re layed 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 det ectives observed that Bean was sweating and breathing heavily , and his hands were sha king. 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 th is search, Bean pinched his legs together. After additional consultation with Detective Lewis, Detective Wood asked Bean to shake out hi s 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 ma rkings 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 controlledCourt of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 5 of 21 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 fi led 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
senten ces to run concurrently.


# Discussion and Decision

5 Ind. Code § 35

- 45

- 1

- 5.Court of Appeals of Indiana | Opinio n 19A

- CR

- 225 | February 13, 2020 Page 6 of 21 [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 62 1, 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 Constitution 6 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 Amend ment. N.W. v. State , 834 N.E.2d 159, 162 (Ind. Ct. App. 2005) , trans. d enied

. 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.Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 7 of 21 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 observ e 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 D own Search , Vehicle Search and Second Pat Down Search
[11] G enerally, 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, govern mental 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 f risk 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 eit her his safety or the safety ofCourt of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 8 of 21 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

u nparticularized 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 prio r 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 officer s 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 reas onably 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 M cIlquham v. State , 10 N.E.3d 506, 51 4 (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 wereCourt of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 9 of 21 necessary for officer safety. At trial, Detective Wood testified the second pat down search was for “[o]fficer s afety based on the . . . movements to his groin area and the . . . known history of Mr. Bean carrying a firearm.” (Tr. Vo l . II at 36.)

[14] However, we note Detective Wood also testified that he ordered Bean to remove his shoes because he thought Bean was hi ding 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 d oing 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 [be cause ] often times narcotics c an 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. )Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 10 of 21 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 w as armed and dangerous)

. 

### 3. Search Incident to Arrest
[15] The dissent would hold t hat the discovery of marijuana shake in the vehicle justified the subsequent searches of Bean’s person as searches incident to arrest. See d issent 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 tim e 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 test ified: [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.Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 11 of 21 [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 th at 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.Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 12 of 21 [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 poi nt 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 r egarding 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

w as marijuana “ given [his] training and experience. ” ( Id

. ) Probable cause cannot be based solely on a conclusory assertion. For example, a n 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 contain ing speculative conclusions did not establish probable cause )

.Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 13 of 21 [18] The cases cited by the dissent are readily distinguishable from the case at bar. In Vas que z v. State , testimony established the police officers were familiar with the characteristics of toluene, which routinely is identified based on it s 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 mariju ana and that the recovered substance looked like synthetic marijuana , smelled like synthetic marijuana, and was packaged in a ri pp ed 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 d etective t estified that he had been certified as a drug recognition expert, that he was able to recognize marijua na 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. H e explained that in his training and experience as a narcotics detective he had identified pills based on their markings multiple times in the past.Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 14 of 21 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 marij uana, ” 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 ba re 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 vehicle 10 and the search in cident to arrest exception d oes 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 observati on of marijuana in pla in 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.) T he trial court found the search incident to arrest exception did not justify the shoe search, second pat

- dow n search, or the request for Bean to shake out the front of his pants because Bean was not under arrest at that point.Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 15 of 21 [21] W e 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

. T herefore, the evidence obtained during th e 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 continu e d 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] Reverse d and remand ed

. 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 1 064, 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 s hoe search and all su bsequent searches were unlawful.Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 16 of 21 

### 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 non

consensual searches as frisks for weapons under a Ter ry analysis, I would instead find that the series of non

- consensual searches that the majority findsCourt of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 17 of 21 unconstitutional to fall squarely under the search incident to arrest exception to the Fourth Amendment warrant requirement.

[25] Because the non

- consensual sea rches 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 circumsta nces 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

.Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 18 of 21 [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 Woo d 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 plan t 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 t he 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 basedCourt of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 19 of 21 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, mari juana, 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 sur e 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 e xperienced police officer, supports probable cause).Court of Appeals of Indiana | Opinio n 19A

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- 225 | February 13, 2020 Page 20 of 21 [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 t he 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 fact s 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, B ean’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 probabl e 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 i s 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 dea l 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 | Opinio n 19A

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- 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 off icer, 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 be lt).

[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 th e 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.