from the Dearborn Circuit Court The Honorable James D.
Humphrey, Judge Trial Court Cause No. 15C01-1705-F2-7
ATTORNEY FOR APPELLANT R. Patrick Magrath Madison, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Caryn N. Szyper Deputy Attorney General
Sebastian Durstock appeals his conviction for dealing in a
narcotic drug, a Level 2 felony. This case involves the
analysis of the Fourth Amendment and exceptions to the
warrant requirement. We affirm.
Durstock raises three issues, which we restate as:
I. Whether the trial court abused its discretion by admitting
evidence found during a pat down search of Durstock.
II. Whether the evidence is sufficient to sustain
Durstock's conviction for dealing in a narcotic drug, a
Level 2 felony.
III. Whether Durstock's sentence is inappropriate.
On the morning of January 13, 2017, Officer David Schwarz of
the Lawrenceburg Police Department was dispatched to an
apartment in Lawrenceburg regarding an unconscious female,
later identified as Chyanne Thompson. Emergency medical
services arrived at the same time as Officer Schwarz. They
discovered Candy Gaylord giving Thompson chest compressions.
Given Thompson's symptoms, Officer Schwarz suspected that
Thompson had overdosed on opiates.
As the emergency medical personnel were assisting Thompson,
Officer Schwarz heard water running in the bathroom. Officer
Schwarz saw Durstock leave the bathroom and sit on the couch
in the living room. Officer Schwarz talked to Gaylord and
learned that Gaylord was the resident of the apartment.
Gaylord gave Officer Bill Lynam permission to search the
bathroom of the apartment, where he located a brown backpack.
Gaylord and Durstock denied that the backpack belonged to
them, and Gaylord gave the officer permission to search the
backpack. Officer Lynam discovered a loaded handgun wrapped
in a wet bandana, digital scales, men's clothing, and
Durstock appeared to be "nervous and shaking and
sweaty." Tr. Vol. II p. 102. After learning of the
firearm, Officer Troy Cochran decided to perform a pat down
search of Durstock for officer safety. Officer Cochran asked
Durstock if Durstock "had anything that we needed to be
concerned about." Id. at 103. Durstock removed
a lighter, cigarettes, a cell phone, and lip balm from his
pockets. Durstock put his hand in one of his pockets and
removed his hand without removing anything from his pocket.
Durstock's movements made Officer Schwarz suspicious, and
he asked Durstock to stand for a pat down for weapons.
Officer Schwarz felt a "tubular object" in
Durstock's pocket that was "consistent with being a
syringe." Id. at 62. Officer Schwarz removed
the item from Durstock's pocket and found that it was, in
fact, a syringe. Officer Schwarz then arrested Durstock for
possession of a hypodermic syringe. See Ind. Code
§ 16-42-19-18. Durstock was placed in handcuffs, and
Officer Schwarz performed a search incident to the arrest.
Officer Schwarz found several items in Durstock's
pockets, including three bullets and a black bag that
contained $331 in cash, rolling papers, and a plastic bag
containing a white powder. The white powder was later
identified as 6.06 grams of fentanyl.
After several amendments, the State ultimately charged
Durstock with dealing in a narcotic drug, a Level 2 felony;
possession of a narcotic drug, a Level 4 felony; and
possession of a narcotic drug, a Level 5 felony. At
Durstock's jury trial, Durstock objected to the admission
of evidence found during the pat down search, and the trial
court overruled the objection. During the jury trial, several
recorded jail telephone calls made by Durstock were admitted
into evidence. In one of the calls, Durstock stated ...