McCloud v. State - 9/26/14

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Friday  September 26, 2014 
1:00 PM  EST

1 p.m. 48A02-1312-CR-1056. Wayne High School, Fort Wayne. On Feb. 25, 2013, Officers Frazier and Boynton of the Anderson Police Department approached three men in a driveway to ask them if they knew of a man the police were searching for. The police believed that this man might be in the apartment complex across the street, an area known for its high drug activity. When the police approached the men, one of them, Marquise McCloud, recognized Officer Frazier and stated aloud, “Damn, Frazier.” Frazier also recognized McCloud as the man he had arrested three days earlier after McCloud had hidden marijuana and a handgun in the attic of a house. McCloud ducked behind a car in the driveway and began to attempt to pull something out of his coat pocket. Concerned that McCloud might be armed, Frazier drew his weapon and ordered McCloud to show his hands.  McCloud initially refused to comply, but eventually raised his hands.  Frazier performed a pat-down on McCloud and felt a large, hard object in McCloud’s front coat pocket, which he believed might be a knife. Upon emptying the contents of McCloud’s pockets, Frazier discovered a plastic bag containing cocaine.
The State charged McCloud with Class A felony dealing in cocaine and Class A felony possession of cocaine within 1,000 feet of a family housing complex.  The trial court denied McCloud’s motion to suppress the evidence found in the pat-down search, and the jury found McCloud not guilty of dealing in cocaine but guilty of possession of cocaine. The trial court sentenced McCloud to 40 years, with 33 years executed, two years on community corrections, and three years probation.
McCloud argues on appeal that: (1) the admission of the evidence seized during the pat-down search was fundamental error because Frazier did not have reasonable suspicion to believe that McCloud was armed; (2) that the trial court abused its discretion in sentencing McCloud; and (3) that McCloud’s sentence is inappropriate in light of the nature of the offense and the character of the offender.

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