Appeal from the Marion Superior Court. The Honorable Peggy Ryan Hart, Master Commissioner. Case No. 49G20-1311-FB-74491.
ATTORNEY FOR APPELLANT: Joel M. Schumm, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana.
Brown, Judge. Pyle, J., concurs. Crone, J., dissents with opinion.
[¶1] LaQuantis Johnson appeals his conviction for unlawful possession of a firearm by a serious violent felon (" SVF" ), a class B felony. Johnson raises one issue which we revise and restate as whether the trial court abused its discretion by admitting evidence obtained following a pat down of Johnson. We affirm.
Facts and Procedural History
[¶2] On November 17, 2013, City of Lawrence Police Officer Ralph Bridgeforth was working as an off-duty security guard inside the Indianapolis Greyhound bus station and wearing a partial police uniform. At 2:00 a.m., Officer Bridgeforth observed Johnson and J.D. Sanders enter the main entrance of the bus terminal without luggage.
Sanders was stumbling all over the place and showing signs of intoxication, and there was a general odor of alcohol coming from the area of Sanders and Johnson. Officer Bridgeforth motioned for Johnson and Sanders to approach him.
[¶3] Officer Bridgeforth detected a strong odor of alcohol coming from the general area of the men, and asked them for identification and whether they were traveling by bus to determine if they were trespassing. Both of the men said that they were not traveling by Greyhound. Sanders provided Officer Bridgeforth with identification, but Johnson stated that he did not have his identification with him and placed his left hand into his left front pants pocket.
[¶4] Johnson's act of placing his hand in his pocket increased Officer Bridgeforth's concern for his safety because of " the possibility that he could have had a weapon on him and that is how several officers are killed in this country every year." Transcript at 33. Officer Bridgeforth asked Johnson at least two times to remove his hand from his pocket, but Johnson did not comply. Officer Bridgeforth took Johnson's left arm, ordered him to place his hands behind his back, and continued to do a pat down search for weapons.
[¶5] During the pat down, Officer Bridgeforth " felt what appeared to be a handgun" in Johnson's left waistband beyond his back and behind the pocket where Johnson had placed his hand. Id. at 32. He then placed Johnson in handcuffs and removed a .45 caliber handgun from him.
[¶6] On November 21, 2013, the State charged Johnson with unlawful possession of a firearm by an SVF, a class B felony, and disorderly conduct as a class B misdemeanor. On May 5, 2014, Johnson filed a motion to suppress evidence and asserted that the stop violated his right to privacy under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution.
[¶7] On June 26, 2014, the court held a bench trial. During Officer Bridgeforth's testimony, defense counsel moved to suppress any evidence found as a result of the pat down search under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The court took the motion under advisement. After the State rested, defense counsel renewed his motion to suppress. Defense counsel conceded that he thought Officer Bridgeforth was " probably personally prudent in doing what he did that day," but that " [t]here's no particular reason to believe [Johnson] was armed and dangerous which means the patdown wasn't appropriate . . . ." Id. at 62-63. The court took the matter under advisement.
[¶8] On July 9, 2014, the court found that the initial encounter was a proper investigatory stop and that the pat down was reasonable based upon the facts. The court also commented that it believed that Officer Bridgeforth's safety was threatened. The court admitted the evidence, ultimately found Johnson guilty of unlawful possession of a firearm by an SVF and not guilty of disorderly conduct, and sentenced him to eleven years in the Department of Correction with two years suspended.
[¶9] The issue is whether the court abused its discretion by admitting evidence of the handgun obtained following a pat down of Johnson. We review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh'g denied. We reverse only where the decision is clearly against the logic and effect of the facts and circumstances.
Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App. 1999), reh'g denied, trans. denied. Also, we may affirm a trial court's decision to admit evidence seized as a result of a search based on any legal theory supported by the record. Edwards v. State, 724 N.E.2d 616, 620-621 (Ind.Ct.App. 2000), trans. denied. We review de novo a ruling on the constitutionality of a search or seizure, but we give deference to ...