Brown, J.
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… Johnson entered the Greyhound bus station at 2 a.m. with a stumbling and intoxicated [companion], indicated that he was not traveling by Greyhound, and placed his hand in his pocket after he informed Officer Bridgeforth that he did not have his identification. Further, Johnson refused Officer Bridgeforth’s multiple commands to remove his hand from his pocket. Officer Bridgeforth testified that Johnson’s act of placing his hand in his pocket increased his concern for his safety because of “the possibility that he could have had a weapon on him and that is how several officers are killed in this country every year.” [Record citations omitted throughout.]
Under the circumstances, we conclude that a reasonably prudent man would be warranted in the belief that his safety was potentially in danger, and we cannot say that the search violated the Fourth Amendment. See Williams v. State, 754 N.E.2d 584, 588 (Ind. Ct. App. 2001) (observing that, in spite of repeatedly being told to remove his hands from his pocket and waistband area, the defendant kept putting his hands in his pocket and holding that defendant’s behavior warranted the officer’s reasonable fear for his safety and the subsequent pat down search of the defendant), trans. denied.
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[Under Article 1, Section 11 of the Indiana Constitution,] “Instead of focusing on the defendant’s reasonable expectation of privacy, we focus on the actions of the police officer, concluding that the search is legitimate where it is reasonable given the totality of the circumstances.” …
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We begin by considering “the degree of concern, suspicion, or knowledge that a violation has occurred.” [Citation omitted.] At 2:00 a.m., Johnson and [his companion] Sanders entered the main entrance of the bus terminal without luggage, Sanders was stumbling all over the place and showing signs of intoxication, and there was a general odor of alcohol coming from the area of Sanders and Johnson. Officer Bridgeforth asked them for identification and whether they were traveling by bus to determine if they were trespassing, and Johnson and Sanders said they were not traveling by Greyhound. Johnson stated that he did not have his identification with him and placed his left hand into his left front pants pocket. Johnson then refused multiple commands from Officer Bridgeforth to remove his hand from his pocket, all of which increased Officer Bridgeforth’s concern for his safety. We conclude that the degree or concern, suspicion, or knowledge that a violation had occurred was high. Next, regarding the degree of intrusion, the record reveals that Officer Bridgeforth took Johnson’s left arm, ordered him to place his hands behind his back, and continued to do a pat down search of him for weapons at 2:00 a.m. in the bus station. Under these circumstances, this degree of intrusion was not high. Finally, the extent of law enforcement needs was strong given the circumstances leading to the pat down. Under the totality of the circumstances, we conclude that the pat down was reasonable and did not violate Johnson’s rights under Article 1, Section 11 of the Indiana Constitution.
Pyle, J., concurs.
Crone, J., dissents with opinion.
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Crone, Judge, dissenting
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The issue comes down to whether Johnson putting his hand in his pants pocket and refusing to remove it created a reasonable suspicion that he was armed and dangerous. I think not. A hand in a pocket is not evidence that a person is armed and dangerous. … [D]uring cross examination, the officer agreed that he “didn’t have any particular reason to believe that [Johnson] had a gun or a weapon.” I believe that the latter testimony more specifically addresses the Fourth Amendment standard of proof and disagree with the majority’s conclusion that “[t]his testimony demonstrates only that Officer Bridgeforth did not know for certain that Johnson was armed.”
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… Johnson entered the Greyhound bus station at 2 a.m. with a stumbling and intoxicated [companion], indicated that he was not traveling by Greyhound, and placed his hand in his pocket after he informed Officer Bridgeforth that he did not have his identification. Further, Johnson refused Officer Bridgeforth’s multiple commands to remove his hand from his pocket. Officer Bridgeforth testified that Johnson’s act of placing his hand in his pocket increased his concern for his safety because of “the possibility that he could have had a weapon on him and that is how several officers are killed in this country every year.” [Record citations omitted throughout.]
Under the circumstances, we conclude that a reasonably prudent man would be warranted in the belief that his safety was potentially in danger, and we cannot say that the search violated the Fourth Amendment. See Williams v. State, 754 N.E.2d 584, 588 (Ind. Ct. App. 2001) (observing that, in spite of repeatedly being told to remove his hands from his pocket and waistband area, the defendant kept putting his hands in his pocket and holding that defendant’s behavior warranted the officer’s reasonable fear for his safety and the subsequent pat down search of the defendant), trans. denied.
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[Under Article 1, Section 11 of the Indiana Constitution,] “Instead of focusing on the defendant’s reasonable expectation of privacy, we focus on the actions of the police officer, concluding that the search is legitimate where it is reasonable given the totality of the circumstances.” …
….
We begin by considering “the degree of concern, suspicion, or knowledge that a violation has occurred.” [Citation omitted.] At 2:00 a.m., Johnson and [his companion] Sanders entered the main entrance of the bus terminal without luggage, Sanders was stumbling all over the place and showing signs of intoxication, and there was a general odor of alcohol coming from the area of Sanders and Johnson. Officer Bridgeforth asked them for identification and whether they were traveling by bus to determine if they were trespassing, and Johnson and Sanders said they were not traveling by Greyhound. Johnson stated that he did not have his identification with him and placed his left hand into his left front pants pocket. Johnson then refused multiple commands from Officer Bridgeforth to remove his hand from his pocket, all of which increased Officer Bridgeforth’s concern for his safety. We conclude that the degree or concern, suspicion, or knowledge that a violation had occurred was high. Next, regarding the degree of intrusion, the record reveals that Officer Bridgeforth took Johnson’s left arm, ordered him to place his hands behind his back, and continued to do a pat down search of him for weapons at 2:00 a.m. in the bus station. Under these circumstances, this degree of intrusion was not high. Finally, the extent of law enforcement needs was strong given the circumstances leading to the pat down. Under the totality of the circumstances, we conclude that the pat down was reasonable and did not violate Johnson’s rights under Article 1, Section 11 of the Indiana Constitution.
Pyle, J., concurs.
Crone, J., dissents with opinion.
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Crone, Judge, dissenting
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The issue comes down to whether Johnson putting his hand in his pants pocket and refusing to remove it created a reasonable suspicion that he was armed and dangerous. I think not. A hand in a pocket is not evidence that a person is armed and dangerous. … [D]uring cross examination, the officer agreed that he “didn’t have any particular reason to believe that [Johnson] had a gun or a weapon.” I believe that the latter testimony more specifically addresses the Fourth Amendment standard of proof and disagree with the majority’s conclusion that “[t]his testimony demonstrates only that Officer Bridgeforth did not know for certain that Johnson was armed.”
… If our supreme court wishes to interpret the Fourth Amendment as allowing a hand-in-the-pants-pocket exception to the rule that a police officer must harbor a reasonable and particularized suspicion that a person is armed and dangerous before the officer may perform a lawful patdown search, it is certainly free to do so. As a practical matter, such an exception might be justified based on officer safety concerns, especially in light of the current tensions surrounding police-citizen interactions. In my view, carving out an exception would be a more appropriate jurisprudential approach than engaging in legal fiction in order to circumvent the “armed and dangerous” standard. Until then, however, I believe we must adhere to the currently articulated standard, which contains no such exception.