ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
EDWARD C. HILGENDORF STEVE CARTER
South Bend, Indiana Attorney General of Indiana
JAMES A. JOVEN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
CARMEN GRANADOS, )
vs. ) No. 71A03-0011-CR-421
STATE OF INDIANA, )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable William T. Means, Judge
Cause No. 71D08-9908-CF-942
May 24, 2001
OPINION - FOR PUBLICATION
Appellant-defendant Carmen Granados (Granados) appeals his conviction for possession of cocaine
Class D felony. We reverse.
Granados raises one issue for review: whether the trial court erred in
denying his motion to suppress.
Facts and Procedural History
The facts most favorable to the conviction indicate that at approximately midnight on
August 18, 1999, Corporal Aaron Cassel (Cassel) of the South Bend Police Department
responded to a report that someone was blowing things up at the Belleville
Baseball Complex in South Bend, Indiana. When Cassel arrived at the park,
he saw three other police officers approaching a man and a woman standing
by the trunk of a vehicle in the parking lot, which was unilluminated
except for the police vehicles spotlights. One of the officers noticed two
males slouching in the back seat of the vehicle. The officers removed
the two men, one of whom was Granados, from the car and searched
all four persons for weapons to ensure officer safety.
Cassel placed Granados hands on the trunk of the vehicle and conducted a
patdown search of his outer clothing. Cassel ran his hands over Granados
shoulders, ribs, and waist. Cassel patted down Granados left leg and began
to pat down his right leg below the knee when Granados attempted to
turn around. Cassel ordered Granados to face forward and continued to pat
down his leg. As Cassel moved closer to Granados ankle, Granados again
attempted to spin around. Cassel then forcefully put Granados head on the
back of the vehicle, told him not to move anymore, and continued to
search his right leg. Cassel felt a hard object just above Granados
ankle inside his sock. Granados kicked his leg as Cassel opened the
sock, and a folded five-dollar bill fell to the ground. When Cassel
picked up the bill, [f]olded maybe in a quarter of its normal size,
Granados said, Thats not my five-dollar bill. Thats not my sock.
I dont know nothing about this. Cassel opened up the folded bill
and found a white powdery substance later determined to be cocaine. Cassel
then searched Granados shoe and insole and found nothing.
On August 19, 1999, the State charged Granados with possession of cocaine as
a Class D felony. On April 6, 2000, Granados orally waived his
right to a jury trial and stipulated that the substance found during Cassels
search of his person was cocaine. The trial court
then heard testimony and argument on Granados motion to suppress.
24, 2000, the trial court found Granados guilty as charged.
Discussion and Decision
The admissibility of evidence is within the sound discretion of the trial court.
Johnson v. State, 710 N.E.2d 925, 927 (Ind. Ct. App. 1999).
We will not disturb its decision absent a showing of an abuse of
this discretion. See id. In reviewing a trial courts ruling on
a motion to suppress evidence, we examine the evidence most favorable to the
ruling, together with any uncontradicted evidence. Id. We neither reweigh evidence
nor judge witness credibility. Id.
The Fourth Amendments protection against unreasonable search and seizure has been extended to
the states through the Fourteenth Amendment.
See Berry v. State, 704 N.E.2d
462, 464-65 (Ind. 1998). As a general rule, the Fourth Amendment prohibits
a warrantless search. When a search is conducted without a warrant, the
State has the burden of proving that an exception to the warrant requirement
existed at the time of the search. Id. at 465 (citations omitted).
One exception to the warrant requirement was recognized by the United States
Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). See Jackson
v. State, 669 N.E.2d 744, 747 (Ind. Ct. App. 1996). In Terry,
the Supreme Court held that where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience that criminal activity
may be afoot the officer may briefly stop the suspicious person and make
reasonable inquiries to confirm or dispel those suspicions. Id. (quoting Terry, 391
U.S. at 30).
If a police officer has a reasonable fear of danger when making a
Terry stop, he may conduct a carefully limited search of the suspects outer
clothing in an attempt to discover weapons that might be used to assault
him. Shinault v. State, 668 N.E.2d 274, 277 (Ind. Ct. App. 1996).
The purpose of a Terry search is not to discover evidence of
crime, but rather to allow the officer to pursue his investigation without fear
of violence. As such, the Terry search should be confined to its
protective purpose. Id. (citation omitted). The officer need not be absolutely
certain that the suspect is armed; the issue is whether a reasonably prudent
man in the circumstances would be warranted in the belief that his safety
or that of others was in danger. Terry, 392 U.S. at 27.
In determining whether the officer acted reasonably under the circumstances, due
weight must be given, not to his inchoate and unparticularized suspicion or hunch,
but to the specific reasonable inferences which he is entitled to draw from
the facts in light of his experience. Id.
Our inquiry regarding the reasonableness of the stop and search focuses on whether
the officers action was justified at its inception, and whether it was reasonably
related in scope to the circumstances which justified the interference in the first
See id. at 19-20. Granados concedes that Cassel was justified
in conducting a Terry stop and search, but argues that Cassel had no
authority to go into [his] sock, and further had no authority to open
the five-dollar bill once he had gone into [his] sock. We address
each contention in turn.
If an officer finds something that feels like a weapon during a
search, he can reach inside the clothing and check to see if it
is a weapon. See C.D.T. v. State, 653 N.E.2d 1041, 1045 (Ind.
Ct. App. 1995) (citing Terry, 392 U.S. at 29-30 (police officer did not
place his hands in [suspects Terrys and Chiltons] pockets until he had felt
weapons, and then he merely reached for and removed the guns. He
never did invade Katz person beyond the outer surfaces of his clothes, since
he discovered nothing in his patdown which might have been a weapon.)).
Contrary to the States assertion, Cassel did not state that the hard object
in Granados sock felt like a weapon;
instead, Cassel testified that he started
to reach to open the sock to make sure there was no weapons,
you know, to see what it was, you know, to make sure there
was no weapons or anything concealed in the sock (emphasis added). In
fact, only after the bill fell out of Granados sock did Cassel become
concerned that it might contain needles or razor blades. Thus, Cassels removal
of the five-dollar bill from Granados sock exceeded the protective scope of the
Terry search in violation of the Fourth Amendment.
Cassels subsequent search of the folded bill was similarly illegal. Viewing the
facts most favorable to the conviction, Cassel testified that something the size of
the bill could contain needles, razor blades. I mean it could have
weapons. [Granados] was obviously getting very nervous for a reason. I
wanted to eliminate that for a reason just as protocol to make sure
that there wasnt something I would have missed.
In Berry, our supreme
We believe that the reasonable suspicion that gives authority to a
does not, without more, authorize the examination of the contents of items carried
by the suspicious person. But where either the suspicion that criminal activity
may be afoot or a concern over the possibility of harm is reasonably
heightened during the stop, the police are authorized to search such items within
the suspicious persons immediate control.
704 N.E.2d at 466 (emphasis added). In
Berry, a sheriffs deputy heard
a metallic-sounding clunk as she placed the suspicious
defendants very heavy backpack on
her patrol car. Id. at 465-66. The deputy searched both the
defendant and the backpack for officer protection and found a handgun and ammunition
in the backpack. Id. at 466. The Berry court upheld the
search and the trial courts denial of defendants motion to suppress.
The facts of this case compel a different result. Here, Cassel and
three officers responded to a call that someone was blowing things up in
a city park. The officers found Granados and his three companions in
the parking lot, stopped them to investigate, and patted them down for officer
safety. Granados kicked his leg as Cassel attempted to recover an unidentified
hard object from his sock, and a folded five-dollar bill fell to the
ground. Cassel did not suspect that the bill might contain highly combustible
powder that might have been the cause of the reported explosions; instead, he
became concerned that the bill might contain needles or razor blades. While
we acknowledge the serious safety risks that sharp objects can pose to investigating
officers during an arrest or a
Terry stop and search, we cannot conclude
that a suspected needle or razor blade folded securely in a five-dollar bill
out of Granados immediate reach created a reasonably heightened possibility of harm under
Neither can we conclude that Granados nervousness reasonably heightened Cassels suspicion that criminal
activity was afoot. Cassel testified,
So to make sure being [Granados] started getting squirrelly, to make sure
there were no weapons or anything,
just out of habit, I opened [the
five-dollar bill] up to make sure to eliminate that as being the
source of why hes being so nervous, so I can concentrate, you know,
whether it be his shoes or maybe something concealed in his shoes, I
opened it up and thats when I found the white powdery substance.
(Emphasis added.) Cassel did not claim that Granados nervousness caused him to
suspect that any criminal activity was afoot. Rather, Cassel simply unfolded the
bill out of habit to determine if it contained any weapons
Cf. Terry, 392 U.S. at 30 (police officer confined his search strictly
to what was minimally necessary to learn whether the men were armed and
to disarm them once he discovered the weapons. He did not conduct
a general exploratory search for whatever evidence of criminal activity he might find.).
Once the five-dollar bill fell to the ground, Cassel could have simply covered
the bill with his shoe or kicked it out of reach and completed
his patdown search of Granados without fear of being injured by any weapons
it might have contained.
See Berry, 704 N.E.2d at 465 (As commentators
have noted, police officers can often protect themselves from any risk that the
item might contain a weapon by simply putting it out of the persons
reach.). By unfolding the bill to look for weapons or anything, Cassel
broadened the scope of the Terry search beyond its protective purpose. See
Johnson, 710 N.E.2d at 928; see also Terry, 392 U.S. at 25-26 (A
search for weapons in the absence of probable cause to arrest, however, must,
like any other search, be strictly circumscribed by the exigencies which justify its
initiation.); Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) (Nothing in Terry can
be understood to allow a generalized cursory search for weapons or indeed, any
search whatever for anything but weapons.). For the above reasons, we conclude
that the trial court erred in denying Granados motion to suppress and reverse
his conviction for cocaine possession.
RILEY, J., and VAIDIK, J., concur.
See Ind. Code § 35-48-4-6.
We heard oral argument in this case on May 1, 2001,
at LaPorte High School in LaPorte, Indiana. We extend our appreciation to
the faculty, staff, and students of LaPorte High School for hosting the argument,
to the LaPorte City Bar Association for their interest and involvement, and to
counsel for the quality of their preparation and oral presentations.
Footnote: Although the trial court noted that Granados filed a motion
to suppress, the motion itself does not appear in the record. However,
the substance of Granados motion can be gleaned from defense counsels comments at
the conclusion of the hearing:
I understand that [Cassel] is given a certain amount of leeway in these
matters. Its clear that this pat-down was reasonable under the circumstances, but
there wasnt any imminence [
sic] whatsoever to show that at any time there
was any suspicion that there was any weapon to be found here.
The pat-down was reasonable. [Cassel] reached into the sock and what he
found was a five-dollar bill. No indication that there was anything other
than a five-dollar bill, which at that point was not contraband, not illegal.
Its only when he went further to open it up, unfold it, that
our position is and because of all of this, we think this
is purely a legal question since all the facts have already been stipulated
to. Thats the reason we waived the jury and submitted it to
Thus, it appears that Granados challenged only the propriety of Cassels removal of
the folded five-dollar bill from Granados sock and the subsequent opening of the
bill and not the propriety of the investigatory stop and patdown search.
The State contends that [u]pon feeling the hard object hidden at
[Granados] ankle, Corporal Cassel tried to determine if the object was a small,
bladed weapon, such as a knife, needle, or razor blade. When the
State asked Cassel whether it would have been unusual for him to find
any weapons around Granados ankle, he responded that [p]eople stick knives and other
weapons in their socks; however, he did not testify that he thought the
hard object in Granados sock might have been a weapon of any kind.
Footnote: Cassel had previously testified that when he first saw that the
object that fell out of Granados sock was a five-dollar bill, he thought
that [i]t was just a five-dollar bill. Cassel subsequently testified, Because if
[Granados] did have a weapon, I wanted to find it, and so I
kind of picked up the pace a little bit because at first glance
it was just a five-dollar bill, and so you know, it could have
anything in it. (Emphasis added.) Cassel also stated, Because the first
thing [Granados] said was its a five-dollar bill, so I opened it just
to confirm what he was saying and make sure he wasnt lying.
You know, that it could be a weapon or something.
Berry, [f]ollowing a report of a person picking through the
trash cans at a grocery store, a town police officer discovered defendant sleeping
under some bushes. 704 N.E.2d at 465. The defendant was unable
to produce a drivers license and the name and address defendant gave the
officer did not check out. Id. Also, police were unable to
locate a motorcycle that defendant claimed he had crashed on the outskirts of
In a post-briefing submission of additional authority and at oral argument,
the State asserted that Cassel was justified in searching the five-dollar bill because
Granados had abandoned it.
Police need not obtain a warrant in order to lawfully seize abandoned property.
The question of whether property has been abandoned is one of intent.
Intent in such cases can be ascertained from words, acts, and other
objective facts. We will find that an object has been abandoned where
it appears the defendant has relinquished all interest in the property.
State v. Belcher, 725 N.E.2d 92, 95-96 (Ind. Ct. App. 2000), trans. denied.
In Belcher, the defendant was held to have abandoned the gun and
magazine at issue by dropping them onto the curb of a public street
as he ran from the police officers, and before he was seized.
Id. at 96. In the case at bar, the five-dollar bill fell
from Granados sock after Cassel seized him and during a protective patdown search.
However, we need not reach the question of abandonment here: Abandoned
property is not admissible into evidence if the abandonment was precipitated by illegal
police conduct or the threat thereof. Miller v. State, 498 N.E.2d 53,
56 (Ind. Ct. App. 1986), trans. denied (1987). We have already determined
that Cassels removal of the bill from Granados sock was illegal. Thus,
even if we were to determine that Granados abandoned the bill, the cocaine
would not be admissible because the abandonment was precipitated by Cassels illegal removal
of the bill from Granados sock.