from the Clark Circuit Court The Honorable Bradley B. Jacobs,
Judge, Trial Court Cause No. 10C02-1703-F6-621
Attorney for Appellant Christopher Sturgeon Clark County
Public Defender's Office Jeffersonville, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Evan Matthew Comer Deputy Attorney General
Jarvis Peele ("Peele") appeals his convictions for
Possession of Methamphetamine, as a Level 6 felony,
Possession of Marijuana, as a Class B misdemeanor,
Possession of a Controlled Substance, as a Class A
misdemeanor. He presents the sole issue of whether the
trial court erred by admitting evidence from a search that
exceeded the proper scope of a Terry
search. We reverse.
and Procedural History
On March 30, 2017, Jeffersonville Police Officers Levi James
("Officer James") and Matthew Bauer ("Officer
Bauer") stopped a vehicle for failure to signal a turn.
Officer Bauer interacted with the driver and eventually
placed him under arrest on an open warrant. Officer James
interacted with Peele, the front seat passenger.
According to Officer James, Peele's behavior led to the
belief that Peele was "possibly armed." (Tr. Vol.
I, pg. 72.) That is:
[I] observed several indictors, criminal indicators, that
aren't consistent with the innocent motoring public,
specifically his carotid artery in his throat was throbbing,
he avoid[ed] eye contact with me as he spoke, he rubbed his
palms on his sweatpants multiple times, making furtive hand
movements, patting his jacket and pants pockets. And then he
began to reach in the area of the center front armrest
retrieving metal tools, a pair of pliers, a ratchet, from an
area that I couldn't see and placed them on his lap. He
then raised his entire body and turned and looked in that
area, the area of the center armrest, and underneath his
person. And these behaviors aren't consistent with the
innocent motoring public through my training and experience.
Id. at 57. Based upon these observations, Officer
James asked Peele to exit the vehicle and submit to a patdown
search for officer safety. During the patdown, Officer James
felt "a large object in the front of [Peele]'s
waistband that wasn't consistent with the human
anatomy" and Officer James "believed it to
immediately be or immediately be apparent that it was
contraband." Id. at 58. Officer James began to
move Peele, in handcuffs, to the trunk of the vehicle.
Officer Bauer notified Officer James that a sock had rolled
out of Peele's right pant leg.
Officer James retrieved the potato-shaped sock and searched
its contents. The sock contained several baggies, the
contents of which were later tested and identified as
methamphetamine and marijuana, and several pills, some of
which were later tested and identified as buprenorphine.
Peele was charged with possession of methamphetamine,
marijuana, and a controlled substance, and was granted leave
to represent himself. Peele moved to suppress the physical
evidence gained in the traffic stop, and the trial court
conducted a suppression hearing on December 17, 2018. After
hearing the officers' testimony, the trial court denied
Peele's motion to suppress, reasoning that "the sock
fell out, it was not removed by [the officers] so that search
wasn't a search." Id. at 97. Peele asked
that the order be certified for interlocutory appeal, and the
trial court declined to do so, saying "I'm not going
to give you the Interlocutory today. The case will be over by
Wednesday." Id. at 100.
Peele was tried before a jury on December 18 and 19, 2018. He
was convicted of each charged offense, and found to be a
habitual offender. On January 10, 2019, Peele was sentenced
to two years imprisonment for Possession of Methamphetamine,
enhanced by four years due to his status as a habitual
offender. He received concurrent sentences of 180 days for
Possession of Marijuana and one year for Possession of a
Controlled Substance. He now appeals.