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Polson v. State

Court of Appeals of Indiana

December 31, 2015

Nathan Polson, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Morgan Superior Court. The Honorable Peter R. Foley, Judge. Trial Court Cause No. 55D01-1409-F5-1458.

         ATTORNEY FOR APPELLANT: Glen E. Koch II, BOREN, OLIVER & COFFEY, LLP, Martinsville, Indiana.

         ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana.

         Mathias, Judge. Baker, J., and Bailey, J., concur.

          OPINION

Page 187

          Mathias, Judge.

         [¶1] Following a jury trial in Morgan Superior Court, Nathan Polson (" Polson" ) was convicted of Level 5 felony carrying a handgun without a license.[1] Polson was ordered to serve four years in the Department of Correction. On appeal, Polson argues that the trial court abused its discretion when it admitted a handgun into evidence because he claims the handgun was seized by police in violation of the Fourth Amendment of the United States Constitution.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] Late in the morning on September 24, 2014, a concerned citizen, T.B., placed a 911 call to report a suspicious person walking westward down Mahalasville Road in Morgan County towards Martinsville, Indiana. The caller identified a gentleman in a black t-shirt who appeared to be " under the influence of something" and was " holding something underneath his shirt with his arm down straight." Tr. pp. 206-08. T.B. described the man, who was later identified as Polson, as about six feet tall and between 175-185 pounds with a " real [sic] bad complexion" on his face. Tr. p. 207. T.B. was concerned because it was " unusual to see somebody walking down Mahalasville Road" as the area was mostly rural farmland with few houses, and especially because the man appeared to have a " pretty sizeable weapon tucked up underneath his shirt." Tr. p. 206.

         [¶4] Sergeant Brad Cooley (" Sergeant Cooley" ) of the Morgan County Sheriff's Department was dispatched to Mahalasville Road in response to the suspicious person report around 11:31 a.m. on September 24, 2014. He arrived at the scene at 11:40 a.m. and observed a man matching the description from the report in a black shirt and blue jeans walking along the rural road at the intersection of Low Gap and Mahalasville Roads. Sergeant Cooley parked his patrol car so he faced Polson but did not activate his emergency lights. As Polson approached, Sergeant Cooley asked Polson to walk toward him and Polson responded, " I haven't done anything

Page 188

wrong." Tr. p. 239. Sergeant Cooley explained to Polson that he had received a suspicious person report and that Polson matched the description. Polson told Cooley that he was walking to a gas station to catch a ride. The closest gas station was two-and-one-half miles away. Tr. p. 247.

         [¶5] At that point, Polson put his hands behind his back, was sweating, and acted " nervous and kind of skittish." Tr. p. 215. This behavior indicated to Sergeant Cooley that Polson was under the influence of " something." Tr. pp. 215-16. Polson was also in the middle of the road at the time, and because a car was approaching, Sergeant Cooley asked Polson to step behind his patrol car. Polson stepped to the right side of the trunk area of the car, and Sergeant ...


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