Michael D. Johnson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Madison Circuit Court The Honorable Angela G. Warner
Sims, Judge Trial Court Cause No. 48C01-1602-F5-402
Attorney for Appellant Paul J. Podlejski Anderson, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Courtney L. Staton Deputy Attorney General
Michael D. Johnson ("Johnson") appeals his
conviction for Dealing in a Look- a-like Substance, as a
Level 5 felony. Johnson presents the sole issue of whether
the trial court abused its discretion in admitting evidence
obtained in violation of his Fourth Amendment right to be
free from an unreasonable search and seizure. We reverse.
and Procedural History
On November 8, 2015, Brett Eversole ("Eversole")
was a gambling patron at the Hoosier Park Casino in Anderson,
Indiana. Eversole reported to a security officer that a black
male wearing a white hat had approached him at a gambling
machine and asked if he "wanted to buy white girl."
(Tr. Vol. II, pg. 89.) Eversole assumed "white
girl" meant cocaine. The security officer notified shift
supervisor Matt Miller ("Miller"), who notified
Gaming Enforcement Agent Zach Wilkinson ("Agent
Wilkinson"). Miller also requested video surveillance
of the gaming floor.
Agent Wilkinson reviewed surveillance footage, without audio,
and "confirmed the interaction" of approximately
thirty seconds between Eversole and a black male wearing a
white hat. Id. at 106. He located Johnson, a black
male wearing a white hat, and asked that he come to the
gaming enforcement interview room. When they reached the
interview room, Agent Wilkinson advised Johnson that he would
"need a pat down." Id. at 111. Agent
Wilkinson detected and removed from Johnson's pocket an
object that "felt like a ball of drugs."
Id. at 113. He placed Johnson in handcuffs and
provided a Miranda  warning.
An Indiana State Police chemist tested the white powder; she
identified no drug but detected a chemical possibly derived
from baking soda. On February 29, 2016, the State charged
Johnson with Dealing in a Look-a-like Substance. On April 5,
2017, Johnson filed a motion to suppress the evidence
obtained as a result of the warrantless search of his pocket.
On April 24, 2017, the trial court conducted a hearing on the
motion to suppress and the parties agreed to submit briefs
regarding their respective positions on admissibility. On
October 4, 2017, the trial court denied Johnson's motion
Johnson was brought to trial before a jury on January 23,
2019, and he objected to the admission of evidence garnered
in the search of his pocket. Agent Wilkinson testified as
follows: Johnson "voluntarily came back" to the
interview room; Agent Wilkinson informed Johnson that he
would need to submit to a pat-down; Johnson was "free to
leave" when he submitted to the pat-down; Agent
Wilkinson detected a bulge "likely some type of
drug;" he "knew it wasn't a weapon;" and
he handcuffed Johnson after removing the item. (Tr. Vol. II,
pgs. 128-29.) Johnson took the position that law enforcement
had unlawfully exceeded the scope of a pat-down. The State
argued that Agent Wilkinson had probable cause to make an
arrest when he removed the ball of powder from Johnson's
pocket. The trial court agreed with the State that what had
transpired was "a search incident to arrest."
Id. at 148.
Johnson was convicted as charged and sentenced to four years
imprisonment, with three years suspended to probation.
Johnson now appeals.
The trial court has broad discretion to rule on the
admissibility of evidence. Thomas v. State, 81
N.E.3d 621, 624 (Ind. 2017). Generally, evidentiary rulings
are reviewed for an abuse of discretion and reversed when
admission is clearly against the logic and effect of the
facts and circumstances. Id. However, when a
challenge to an evidentiary ruling is predicated on the
constitutionality of a search or seizure of evidence, it
raises a question of law that is reviewed de novo.
Id. The State has the burden to demonstrate that the
measures it used to seize information or evidence were
constitutional. State v. Roger, 883 N.E.2d 136, 139
(Ind.Ct.App. 2008). "When a search is conducted without