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Pat down search at overdose scene not improper, COA says

December 4, 2018

The Indiana Court of Appeals affirmed a man’s conviction and sentence for dealing in a narcotic drug after it concluded his Fourth Amendments rights were not violated, nor was his sentence inappropriate.

In January 2017, Lawrenceburg police responded to an overdose at an apartment where they found three individuals inside, including Sebastian Durstock. After searching a backpack in the apartment containing a loaded handgun, digital scales, men’s clothing and men’s deodorant, officers conducted a pat down search of Durstock.

Upon finding a syringe in one of his pockets, officers arrested Durstock for possession of a hypodermic syringe. They subsequently found bullets, $331 in cash, rolling papers, and a plastic bag containing 6.06 grams of fentanyl on his person.

A trial court ultimately convicted Durstock of Level 2 felony possession of a narcotic drug and sentenced him to 17½ years in prison.

On appeal, Durstock argued that the pat down search was improper because the officers had no reasonable suspicion that he was armed and dangerous. He also argued that the search was illegal and the evidence obtained from it should have been suppressed.

The appellate court found that under the circumstances, and in accord with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), any reasonably prudent person would be warranted in the belief that his safety was potentially in danger. The panel thus concluded the pat down search did not violate Durstock’s Fourth Amendment rights.

Durstock also asserted that even if the pat down was proper, the removal of the syringe from his pocket was not because the tubular object in his pocket was not immediately identifiable as contraband. Again, the appellate court found that the discovery of fentanyl and cash in Durstock’s pocket did not violate his Fourth Amendment. 

The court also found that there was sufficient evidence to support Durstock’s conviction based on his possession of digital scales, a handgun, and $331 in cash, finding that he intended to deliver and deal the fentanyl.

Lastly, Durstock argued his sentence was inappropriate because of his minimal criminal history, struggles with addiction and the support of his family. He also asserted that the fentanyl belonged to someone else.

“Given the significant amount of fentanyl that Durstock possessed, his possession of the handgun, his substance abuse, and the trial court’s statements on Durstock’s dishonesty and lack of remorse, we cannot say that the advisory sentence, which the trial court imposed here, was inappropriate,” Judge Elizabeth Tavitas wrote for the court.

The case is Sebastian Durstock v. State of Indiana, 15A01-1711-CR-2718.

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