ROBERT L. DIXON, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
APPEAL FROM THE VIGO SUPERIOR COURT. The Honorable Michael J. Lewis, Judge. Cause No. 84D06-1106-FA-2054.
ATTORNEY FOR APPELLANT: JESSIE A. COOK, Terre Haute, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ANDREW FALK, Deputy Attorney General, Indianapolis, Indiana.
RILEY, Judge. ROBB, J. concurs. BRADFORD, J. dissents with separate opinion.
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-defendant, Robert L. Dixon (Dixon), appeals the trial court's denial of his motion to suppress certain evidence which was discovered in violation of his Fourth Amendment Rights.
We reverse and remand.
Dixon raises one issue on appeal, which we restate as: Whether Dixon's patdown search following a traffic infraction violated his rights under the Fourth Amendment of the United States Constitution.
FACTS AND PROCEDURAL HISTORY
At approximately 1:00 a.m. on June 16, 2011, Officer Adam Loudermilk of the Terre Haute Police Department (Officer Loudermilk) was on patrol in his marked vehicle when he observed a blue 1998 Chevrolet Cavalier operated by Dixon in the vicinity of First Avenue and 16th Street in Terre Haute, Indiana. Officer Loudermilk had been following the vehicle for three or four blocks when Dixon made a turn without signaling. The Officer decided to stop Dixon and activated his lights. Dixon pulled his vehicle into a parking spot in a residential neighborhood, stopped, and turned off his car. When Officer Loudermilk exited his vehicle, he noticed that Dixon had gotten out of his car and had started walking towards a residence. Officer Loudermilk approached Dixon and told him, " Hey, you need to get back in your car[,]" but Dixon continued to walk away. (Transcript p. 10). After Officer Loudermilk took out his taser and instructed Dixon for a third time to get back into his car, Dixon stopped and asked, " What did I do? What did I do?" (Tr. p. 10). Officer Loudermilk responded, " You just needed to use your turn signal. It's not that big of a deal. Just have a seat in your car and we'll go from there." (Tr. p. 10). Officer Loudermilk walked Dixon back to Dixon's vehicle.
Officer Loudermilk instructed Dixon to sit in the driver's seat with the door open, while the Officer remained standing next to the open door. When Dixon handed the Officer his license and identification, Officer Loudermilk recognized Dixon's name. A week or two previously, Officer Loudermilk was approached by an individual, whom he knew from when this person was an inmate at the county jail, who told him that Dixon was selling narcotics in Terre Haute. Although Officer Loudermilk did not find any irregularities in Dixon's identification or license, he requested the presence of another officer.
After Officer Birchfield arrived, Officer Loudermilk decided to take Dixon out of Dixon's car to pat him down. Officer Loudermilk asked Dixon to place his hands on top of the vehicle and began the patdown
search. Officer Loudermilk felt a baggie " with a rock in there" in Dixon's right front pants' pocket. (Tr. p. 21). When Officer Loudermilk grabbed the baggie, Dixon took his hands off the car and Officer Loudermilk decided to handcuff him as he had not yet checked Dixon's waistband or other pockets. Officer Loudermilk took Dixon's left hand and brought it behind Dixon's back; however, when the Officer took hold of Dixon's left hand, Dixon elbowed him in the nose. Because Dixon attempted to flee, the officers took him to the ground and tased him twice. Officer Loudermilk eventually handcuffed Dixon and found three baggies on his person.
On June 30, 2011, the State filed an Information, charging Dixon with Count I, dealing in cocaine, a Class A felony, Ind. Code § 35-48-4-1; Count II, possession of cocaine, a Class B felony, I.C. § 35-48-4-6; Count III, battery resulting in bodily injury, a Class D felony, I.C. § 35-42-2-1; and Count IV, resisting law enforcement, a Class A misdemeanor, I.C. § 35-44-3-3. On June 4, 2012, Dixon filed a motion to suppress the cocaine found on his person following the patdown search, which was heard by the trial court on December 13, 2012. On May 28, 2013, the trial court, adopting the State's proposed findings of fact and conclusions ...