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Johnson v. State

Court of Appeals of Indiana

December 19, 2019

Michael D. Johnson, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal 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 Indianapolis, Indiana

          Bailey, Judge.

         Case Summary

         [¶1] Michael D. Johnson ("Johnson") appeals his conviction for Dealing in a Look- a-like Substance, as a Level 5 felony.[1] 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.[2] We reverse.

         Facts and Procedural History

         [¶2] 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").[3] Miller also requested video surveillance of the gaming floor.

         [¶3] 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 [4] warning.

         [¶4] 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 to suppress.

         [¶5] 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.

         [¶6] Johnson was convicted as charged and sentenced to four years imprisonment, with three years suspended to probation. Johnson now appeals.

         Discussion and Decision

         [¶7] 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 ...


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