Sidney A. Berry, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Allen Superior Court No. 02D04-1604-F4-29. The
Honorable Wendy W. Davis, Judge.
Attorney for Appellant Anthony S. Churchward Anthony S.
Churchward, P.C. Fort Wayne, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Angela Sanchez Assistant Section Chief Caryn N.
Szyper Evan M. Comer Deputy Attorneys General Indianapolis,
This matter presents on interlocutory appeal from the Allen
Superior Court's denial of Berry's motion to suppress
evidence he argues was obtained through an unlawful and
unreasonable search and seizure.
and Procedural History
Around 9:30 p.m. on March 29, 2016, Detective Marc Deshaies
of the Fort Wayne Police Department ("FWPD") was
patrolling a high-crime residential area on the southeast
side of Fort Wayne in an unmarked police vehicle. He was
accompanied by Sergeant Hensler, also with the FWPD. It was
dark outside, and as Detective Deshaies turned the corner, he
observed a group of three males in the street near an
unoccupied vehicle emitting loud music and parked close to
the corner. The presence of the men in the street obstructed
him from "turning the corner and easily continuing
on." Tr. p. 10. He did not observe any other traffic
that was being obstructed, nor had he received any complaints
or prior information regarding these men in the street.
Detective Deshaies had to stop his car because of the
position of the men, and the men all backed up toward the car
near which they had congregated. Each of the men was holding
a beer bottle and appeared to be drinking. Detective
Deshaies, along with Sergeant Hensler, wearing their FWPD
uniforms, stopped, exited their vehicle, and began to walk
toward the group of men congregated around the vehicle.
Detective Deshaies testified that when they exited the police
vehicle, "it was decided that we were just going to
simply exit the car, contact them, maybe speak to them about
standing in the middle of the street or the violations of
loud music or public intoxication for drinking in
public." Tr. pp. 9-10.
Detective Deshaies testified that he did not display his
weapon or speak in a tone that would mandate compliance. As
they approached the group of men, Berry looked at Detective
Deshaies, appeared to take "great notice" of their
presence, began to back up, dropped his beer bottle on the
ground, and looked around to the left and then to the right
and back at the officers. Tr. pp. 11-12. Berry moved his
hands down toward his waist and then placed his hands in his
pockets. Detective Deshaies testified this behavior led him
to believe that Berry was "most likely preparing to
flee." Tr. p. 12. Detective Deshaies also observed a
large bulge at the front left side of Berry's waist. The
Detective understood this to be a location where individuals
commonly carry firearms, and he testified that, at the time,
he believed the large bulge on the waist line to be "the
outline of a handgun handle in his waistline." Tr. p.
27. As Detective Deshaies did not observe significant
behavior from the other two men, he decided to engage Berry
As Detective Deshaies approached Berry, Berry stared at him
and "continued to back up." Tr. p. 13. Once he came
within a few feet of Berry, the Detective was able to detect
the smell of marijuana. Detective Deshaies asked Berry if he
had a weapon, and Berry responded that he did not. The
detective then told Berry that he was concerned for his
safety and informed Berry that he was going to conduct a
pat-down search for weapons. Berry complied, placing his
hands on his head, and the Detective began conducting a
pat-down search of Berry's clothing. Detective Deshaies
did not begin his search with the bulge at Berry's
waistline, but rather, he began the standard pat-down search,
on the right side of his body. As he went over Berry's
pocket, from his training and experience, he recognized a bag
of marijuana. He indicated to Berry that he was not worried
about marijuana. As he completed the pat-down, the Detective
also discovered that the bulge he had observed on Berry's
waistline was an iPhone Plus inside a leather cell phone case
that had been clipped to Berry's belt. This phone had
been concealed under Berry's clothing.
Because of the smell of marijuana and because he knew there
was marijuana in Berry's pocket, Detective Deshaies
placed handcuffs on Berry. After handcuffing Berry, the
Detective removed two bags from Berry's pocket. One bag
contained solely marijuana, and the other contained
marijuana, crack cocaine, and powder cocaine.
Berry was charged with Level 4 felony possession of cocaine
or narcotic drug and a Class B misdemeanor possession of
marijuana. Berry moved to suppress the drug evidence
discovered during his arrest, and on July 9, 2018, the trial
court held a hearing. Detective Deshaies served as the sole
witness. After the hearing, the trial court denied
Berry's motion to suppress. Berry then filed, and we
granted, this interlocutory ...