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COA rules weapons search that revealed drugs constitutional

April 4, 2019

An Allen County drug possession trial will proceed with evidence obtained from a pat-down search after the Indiana Court of Appeals determined the search was constitutional.

In Sidney A. Berry v. State of Indiana, 18A-CR-1769, Fort Wayne Police Detective Marc Deshaies first encountered Sidney Berry when Deshaies was forced to stop his car because Berry and two other men were blocking his path on the road. The three men were parked near a street corner, listening to loud music and appeared to be drinking.

Deshaies exited his police vehicle and began to approach the three men, at which point Berry began moving in a way that indicated he was going to run away. The detective also noticed a bulge on the side of Berry’s waist and thought he saw the outline of a gun.

As Deshaies got closer to Berry, he smelled marijuana. Berry told the detective he did not have a weapon, but Deshaies told the man he was concerned for his safety and, thus, began conducting a pat-down search for weapons.

The search revealed a bag of marijuana, but the bulge turned out to be an iPhone. Deshaies then handcuffed Berry and discovered two bags of drugs on his person — one containing marijuana and the other containing marijuana and powder and crack cocaine.

Berry was, thus, charged with felony and misdemeanor drug possession, and the Allen Superior Court denied his motion to suppress the evidence found during the pat-down. The Indiana Court of Appeals affirmed on interlocutory appeal Thursday, with Judge Paul Mathias writing that the search did not violate the Fourth Amendment or Article 1, Section 11 of the Indiana Constitution.

Writing for a unanimous appellate panel, Mathias said Deshaies had an “objectively reasonable basis” to think Berry was armed or posed a threat, noting the suspect dropped his beer bottle, backed away and reached his hands toward his waist, among other suspicious behavior. Additionally, the outline of the bulge in Berry’s waist appeared to be a gun handle, he said.

“Significantly,” Mathias wrote, “the other two men present did not exhibit these behaviors.”

Looking next to the Indiana Constitution, the panel determined Deshaies’ pat-down search was reasonable under Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). The degree of intrusion was “high enough” to warrant a search given Berry’s “fight or flight” behavior, while the degree of intrusion was low because Deshaies performed a standard pat-down, and the extent of law enforcement needs was high because Deshaies’ partner that night was dealing with the other two men.

“Detective Deshaies had sufficient basis under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution to perform a safety pat-down of Berry,” the judge concluded. “Accordingly, we uphold the trial court’s denial of Berry’s motion to suppress.”

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