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Divided COA: Pat-down search did not violate rights

July 14, 2017

A divided panel of the Indiana Court of Appeals has affirmed a man’s felony and misdemeanor drug and firearm charges after finding the officer who arrested the man did not violate his constitutional rights by stopping him or conducting a pat-down search.

In Louis Bell v. State of Indiana, 49A05-1606-CR-1390, Indianapolis Metropolitan Police Department Officer Justin Gough observed a man, later identified as Louis Bell, riding a bicycle at 1 a.m. and trailing another bike by holding its handlebars. Gough said Bell appeared to be scanning the area to see if someone was watching him.

State law requires bikes operated at night to have a red rear light and white front light, but Bell’s bike did not have the appropriate lighting. Thus, when Bell came near the parked police vehicle, Gough asked if he could talk to him, and Bell rode his bike over to the officer.

Though Bell claimed he was not in possession of anything illegal and a search of his name did not yield any warrants, Gough said Bell’s heart was beating extremely fast and he continued to scan the area as he talked to Gough.  Gough observed a bulge in Bell’s front pocket, and when Bell refused to answer questions about the bulge, the officer conducted a pat-down search and discovered it was a gun.

Bell admitted he did not have a permit to carry the gun, so Gough arrested him and conducted a search incident to arrest. That search led to the discovery of baggies containing substances that Gough believed were cocaine and heroin, a glass pipe and two burnt marijuana cigars.

Bell was charged with various felony and misdemeanor drug and firearm charges, but he filed a motion to suppress the fruits of Gough’s search, arguing the pat-down violated his constitutional rights because his encounter with Gough was non-consensual. The Marion Superior Court denied the motion, and Bell was found guilty as charged.

A majority of a panel of the Indiana Court of Appeals affirmed Bell’s convictions, with Judge Melissa May writing that because Bell was riding a bike in the middle of the night that did not have the required lights, Gough had reasonable suspicion to detain him for a traffic violation.

Further, May wrote for the majority joined by Judge James Kirsch that the pat-down search was permissible under the Fourth Amendment because Bell was behaving nervously and refused to answer questions about the bulge in his pocket, causing Gough to be concerned for his own and the public’s safety. Similarly, Bell’s Article 1 Section 11 rights were not violated because, under Litchfield v. State, 824 N.E.2d 356, 359, the degree of suspicion and law enforcement needs were high, while the intrusion into Bell’s privacy was low, the majority held.

However, dissenting Judge Margret Robb wrote she would hold the pat-down search did violate Bell’s Fourth Amendment rights.

Specifically, Robb wrote she did not believe Gough’s description of Bell’s behavior and his refusal to answer Gough’s question could support reasonable suspicion that he posed a danger. Further, Gough never actually described the bulge in Bell’s pocket, so he did not establish a reasonable belief that Bell was hiding a weapon, she said. Thus, after he learned Bell had no outstanding warrants, Gough should have written a traffic citation and let Bell go on his way, she said.

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