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Berry v. State

Court of Appeals of Indiana

April 4, 2019

Sidney A. Berry, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal 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, Indiana

          MATHIAS, JUDGE.

         [¶1] 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.[1]

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.

         [¶5] 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 first.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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 ...

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