Divided justices affirm lookalike drug conviction in search dispute

A split Indiana Supreme Court has affirmed a man’s drug-related conviction after the Indiana Court of Appeals previously reversed in his favor, finding a search and seizure that resulted in his arrest proceeded within the bounds of the Fourth Amendment.

While playing quarter slots at the Hoosier Park Casino in Anderson in 2015, Brett Eversole was approached by Michael Johnson and asked if he wanted to buy a “white girl,” another name for cocaine.

Eversole reported the encounter to security officers, which made its way to gaming enforcement agent Zach Wilkinson, who “confirmed the interaction” based on surveillance footage that did not have audio. Wilkinson then found Johnson and brought him into an interview room.

In the room, Wilkinson told Johnson he would “need a pat down,” which led Wilkinson to remove what “felt like a ball of drugs” from Johnson’s pocket. Johnson was handcuffed and read his Miranda rights, but subsequent testing revealed the white powder was not a drug. Rather, the substance tested to be sodium bicarbonate, also known as baking soda.

Johnson was charged with Level 5 felony dealing in a lookalike substance and found guilty by a jury. He appealed, renewing his argument under the Fourth Amendment.

The Indiana Court of Appeals reversed, finding insufficient evidence to dispel a claim of a Fourth Amendment violation. But a split Indiana Supreme Court affirmed the trial court in a Tuesday decision, concluding that the search and seizure proceeded within the bounds of the Fourth Amendment.

First, the high court majority concluded that Wilkinson was justified in stopping Johnson under Terry v. Ohio, 392 U.S. 1, 30 (1968) after watching the video and talking to Eversole.

It further found that Wilkinson could perform a Terry frisk of Johnson after they entered the interview room because it was reasonable to believe he was armed and dangerous.

“To determine whether an officer acted reasonably, we consider the specific, reasonable inferences that the officer, in light of his experience, can draw from the facts. Here, the facts supported the reasonableness of the pat-down: Agent Wilkinson suspected Johnson of trying to sell drugs and was about to interview him one-on-one in a small windowless room early in the morning,” Justice Mark Massa wrote for the high court. “… Agent Wilkinson’s suspicion that Johnson attempted to sell drugs — supported by Eversole’s statements and surveillance footage — helped justify the pat-down.”

Finally, the justices confirmed that Wilkinson could seize the baggie when he immediately identified the lump as contraband the moment he grazed Johnson’s pocket.

“Agent Wilkinson lawfully removed the baggie from Johnson’s pocket after immediately identifying it as contraband during the reasonable patdown search,” the majority concluded. “Because this seized evidence was properly admitted under the Fourth Amendment, we need not entertain any alternative explanations that could theoretically foreclose the baggie’s admission.”

But Justice Geoffrey Slaughter dissented in a separate opinion, noting that while he agreed the case was a close call in Michael D. Johnson v. State of Indiana, 20S-CR-655, he could not side with his colleagues.

“Unlike the Court, I do not find that Johnson’s suspected drug activity, in combination with the time of the encounter and the fact that the officer was alone in a room with Johnson, gives rise to the crucial inference Terry requires. These facts do not suggest that Johnson was armed and dangerous. As to the timing, nothing in the record connects the early morning with any likelihood that Johnson (or any other casino patron) was armed. For instance, there is no evidence that 7 a.m. is a unique time when casino patrons, or even drug dealers in casinos, are more likely to be armed. As to the location, while a weapon may be more dangerous in a small, closed-off space, this location does not suggest that Johnson was armed in the first place. Yet that is the necessary inference,” Slaughter opined.

“Because neither the time nor the location gives rise to the inference that Johnson was armed, Terry’s critical link is missing, and this protective weapons search was unconstitutional.”

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