Riley, J.
On June 19, 2012, shortly before midnight, Huntington Police Officer Alan Foster (Officer Foster) responded to a dispatch of two juvenile males breaking into vehicles. Upon arriving at the location, Officer Foster observed two males who fit the description provided in the dispatch, Aslinger and Geoffrey Fugate (Fugate), standing near the street. As Officer Foster approached, Aslinger and Fugate began walking away, and Officer Foster saw Aslinger place some items in Fugate’s backpack. Officer Foster asked Aslinger and Fugate to stop and talk to him, but they continued walking. After Officer Foster’s second request, announcing himself as the K-9 Unit, Aslinger and Fugate obeyed. After verifying the men’s identifications, Officer Foster detected a “rolled cigarette/joint” tucked behind Aslinger’s ear. (Tr. #127 p. 91). When questioned, Aslinger explained that “it was a rolled joint of B2.”1 (Appellant’s #127 App. p. 17). Officer Foster then examined the hand-rolled cigarette. Based on its aroma, Officer Foster believed it to be marijuana, which he verified with a field test.
While discussing the results of the field test with Aslinger, who maintained that the substance was B-2, Officer Foster noticed a silver knife in Aslinger’s pocket and requested that Aslinger remove everything from his pockets.2 By this time, Officer Karl Shockome had arrived to assist Officer Foster. In addition to the knife, the Officers removed a glass pipe, a yellow pen barrel, and an electronic scale from Aslinger’s pockets. Officer Foster performed a pat-down on Aslinger and felt “a long slender bulge” in his pocket, which Officer Foster removed to reveal a “pipe that is used for smoking marijuana.” (Tr. #127 p. 94). Officer Foster “then handcuffed [Aslinger] for our safety and his. We checked the watch pocket and found two plastic bags with a white powder.” (Appellant’s #127 App. p. 17). A field test confirmed the white powder was methamphetamine.
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Our nation’s courts have long held that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Finger v. State, 799 N.E.2d 528, 534 (Ind. 2003) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). Here, when Officer Foster arrived on the scene, he saw two males whose ages he could not readily identify. Upon the Officer’s request, Aslinger and Fugate provided their identification cards, which would have verified the men were not juveniles, and, although it is unclear at what point he called the dispatch officer to contact the witnesses, Officer Foster did receive confirmation that Aslinger and Fugate were not the two suspected of the vehicle break-ins. Furthermore, other than his observation that Aslinger had placed something into Fugate’s bag, which was not questioned, Officer Foster noted no other conduct to sustain a suspicion that Aslinger was involved in the break-ins. See Jamerson v. State, 870 N.E.2d 1051, 1058 (Ind. Ct. App. 2007). Once the purpose of an investigatory stop has been satisfied, a police officer is not justified in extending the investigation. See Holly v. State, 918 N.E.2d 323, 326 (Ind. 2009).
Despite the purposes of the stop being seemingly satisfied, Officer Foster nonetheless continued the Terry stop with an investigation of the hand-rolled cigarette and a thorough search of Aslinger’s pockets. As to the seizure of the cigarette, Aslinger claims that Officer Foster exceeded the scope of his authority because “[t]he illegality of the rolled cigarette was not readily apparent to Officer Foster.” (Appellant’s #127 Br. p. 7). Under the plain view doctrine, a police officer who is lawfully in a particular place may seize an item inadvertently discovered, so long as its incriminating nature is “readily apparent.” Lance v. State, 425 N.E.2d 77, 78 (Ind. 1981). When Officer Foster observed the rolled cigarette in plain view behind Aslinger’s ear, the Officer was permissibly on a public street. However, a hand-rolled cigarette is not per se illegal. Based on the Officer’s testimony, it is clear that it was not “immediately apparent or instantaneously ascertainable” to Officer Foster whether the hand-rolled cigarette contained an illicit substance, and merely suspecting that an item is unlawful is not sufficient to conduct a warrantless seizure. Corwin v. State, 962 N.E.2d 118, 122 (Ind. Ct. App. 2011) (discussing plain feel doctrine), trans. denied. Officer Foster reported nothing to merit suspicion that Aslinger had drugs tucked behind his ear, and to even suspect the cigarette was marijuana, Officer Foster had to take it, sniff it, and look inside it to see “green plant material.” (Appellant’s #127 App. p. 17).
With respect to the seizure of paraphernalia, Officer Foster, “without more,” was not permitted by Terry or the plain view doctrine to investigate “the contents of the items” in Aslinger’s pockets. Corwin, 962 N.E.2d at 122. That said, during a permissible Terry stop, if the police officer has “a reasonable fear of danger,” the officer may “conduct a carefully limited search of the [suspect’s] outer clothing” for the distinct purpose of locating weapons. Johnson v. State, 710 N.E.2d 925, 928 (Ind. Ct. App. 1999). Officer Foster’s view of the knife in Aslinger’s pocket certainly gives rise to a reasonable concern for officer safety. Officer Foster testified that after he removed the knife from Aslinger’s pocket and placed it in the police car, he observed another “long slender bulge” in Aslinger’s pocket (Tr. #127 p. 94). Believing it could be another knife or weapon, Officer Foster also removed what turned out to be a pipe for smoking marijuana. Because one weapon had already been removed from Aslinger’s possession, we find Officer Foster was reasonable to believe the knife-shaped pipe may have been a second weapon.
While the removal of the pipe is permissible under a valid Terry stop, it is well-established that an officer’s justification to conduct a pat-down for weapons is limited to just that; it is not an invitation “to discover evidence of a crime.” Johnson, 710 N.E.2d at 928. In this case, Officer Foster testified that also he searched the rest of Aslinger’s pockets and removed another pipe, a square scale, and a pen barrel, as well as two plastic bags filled with white powder from the watch pocket. Officer Foster did not state that he believed these were weapons, and it is insufficient in a pat-down that he “merely suspected” feeling paraphernalia or narcotics. Parker v. State, 697 N.E.2d 1265, 1268 (Ind. Ct. App. 1998). To justify removing this contraband from Aslinger’s pockets, its identity must have been “immediately apparent or instantaneously ascertainable.” Id.
The State’s alternative argument that no warrant was required focuses on the fact that the items from Aslinger’s pockets were seized pursuant to a valid search incident to arrest. Because Officer Foster detected the odor of marijuana, the State contends he had probable cause to arrest Aslinger and conduct a subsequent search. The State references cases such as Edmond, 951 N.E.2d at 585, and Miller v. State, 846 N.E.2d 1077 (Ind. Ct. App. 2006), for the proposition that “the distinctive odor of marijuana . . . yields probable cause that the person possesses marijuana.” (Appellee’s Br. pp. 19-20). The present case is distinct, however, because there was no scent of marijuana emanating from Aslinger’s person or vehicle. The State avers that “Officer Foster not only smelled marijuana but localized the smell’s source to a particular object, the rolled ‘joint’ cigarette that was on Aslinger’s person.” (Appellee’s Br. p. 20). The State is mistaken in its sequence of events; in fact, Officer Foster had to physically take the cigarette from Aslinger and then sniff it to detect any odor. Accordingly, because the seizure of the hand-rolled cigarette was unrelated to the purpose justifying the Terry stop and not subject to seizure under the plain view doctrine, Officer Foster did not have probable cause to make an arrest and conduct an incidental search. We find the trial court abused its discretion in admitting the marijuana joint, methamphetamine, and paraphernalia (with the exception of the second pipe, which was thought to have been a knife) because no warrant or warrant exception authorized their seizure.
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. . . Relying on Indiana Code section 35-48-4-16, Aslinger’s proposed instruction stated:
It is a defense for a person charged with manufacturing methamphetamine that the person was briefly in, on, or within one thousand (1,000) feet of school property, a public park, a family housing[] complex, or a youth program center; and
No person under eighteen (18) years of age at least three (3) years junior to the person was in, on, or within the one thousand (1,000) feet of the school property, public park, family housing complex, or youth program center at the time of the offense.
The defense under this section applies only to the element of the offense that requires proof that the delivery, financing of the delivery, or possession of cocaine, a narcotic drug, methamphetamine, or a controlled substance occurred in, on, or within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center.
(Appellant’s #152 Br. p. 12). The trial court rejected the instruction . . . .
Although it is grounded in manufacturing, the Information precisely charges Aslinger with “dealing in methamphetamine.” (Appellant’s #152 App. p. 9). Per Indiana Code section 35-48-4-1.1, a conviction for dealing in methamphetamine is not contingent on establishing delivery, financing of the delivery, or possession of the drug; it is sufficient for a conviction to knowingly manufacture methamphetamine and to do so within 1,000 feet of a public park. I.C. §§ 35-48-4-1.1(a)(1)(A); -(b)(3)(B)(ii). Additionally, the statutory definition of “[m]anufacture” makes no references to delivery, financing a delivery, or possession but entails only the “production, preparation, propagation, compounding, conversion, or processing of a controlled substance” by means of extraction from natural substances or chemical synthesis. I.C. § 35-48-1-18. We thus find that, because the statutory defense does not apply to Aslinger’s charge, the instruction incorrectly states the law, and the trial court did not abuse its discretion in omitting it.
KIRSCH, J. concurs
ROBB, J. concurs with concurring opinion:
I concur in the majority opinion. However, I write separately regarding the search and seizure in Case #127 because I believe the majority’s statement of law applicable to the plain view doctrine is too broad.
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I believe the majority’s analysis of the “immediately apparent” requirement of the plain view doctrine could be read to impose too high a bar on an officer in general. That the incriminating nature of an object is “immediately apparent” does not mean that the officer “absolutely knows” the item is evidence of a crime. Here, the Officer testified he had been an officer for approximately fourteen years and had conducted an average of fifty drug investigations per year, and he observed a hand-rolled cigarette behind Aslinger’s ear. When the Officer asked what it was, Aslinger responded that it was a “B-2 cigarette” – some formulations of which are legal and some illegal. If the Officer had also testified that in his experience hand-rolled cigarettes are unusual and are often associated with marijuana and other illegal substances, or if he had smelled marijuana before he had already seized the cigarette and smelled it up close, that might have been sufficient to constitute probable cause and meet the “immediately apparent” prong of the plain view doctrine. However, because the Officer testified only that he saw a hand-rolled cigarette – which, as the majority notes, is not inherently illegal – even under the Texas v. Brown clarification of the “immediately apparent” prong, there was no probable cause for seizing the cigarette. I therefore concur.