Bailey, J.
Jarvis Peele (“Peele”) appeals his convictions for Possession of Methamphetamine, as a Level 6 felony, Possession of Marijuana, as a Class B misdemeanor, and Possession of a Controlled Substance, as a Class A misdemeanor. He presents the sole issue of whether the trial court erred by admitting evidence from a search that exceeded the proper scope of a Terry search. We reverse.
On March 30, 2017, Jeffersonville Police Officers Levi James (“Officer James”) and Matthew Bauer (“Officer Bauer”) stopped a vehicle for failure to signal a turn. Officer Bauer interacted with the driver and eventually placed him under arrest on an open warrant. Officer James interacted with Peele, the front seat passenger.
According to Officer James, Peele’s behavior led to the belief that Peele was “possibly armed.” …
Based upon these observations, Officer James asked Peele to exit the vehicle and submit to a patdown search for officer safety. During the patdown, Officer James felt “a large object in the front of [Peele]’s waistband that wasn’t consistent with the human anatomy” and Officer James “believed it to immediately be or immediately be apparent that it was contraband.” Officer James began to move Peele, in handcuffs, to the trunk of the vehicle. Officer Bauer notified Officer James that a sock had rolled out of Peele’s right pant leg.
Officer James retrieved the potato-shaped sock and searched its contents. The sock contained several baggies, the contents of which were later tested and identified as methamphetamine and marijuana, and several pills, some of which were later tested and identified as buprenorphine.
Peele was charged with possession of methamphetamine, marijuana, and a controlled substance, and was granted leave to represent himself. Peele moved to suppress the physical evidence gained in the traffic stop, and the trial court conducted a suppression hearing on December 17, 2018. After hearing the officers’ testimony, the trial court denied Peele’s motion to suppress, reasoning that “the sock fell out, it was not removed by [the officers] so that search wasn’t a search.”
Peele asked that the order be certified for interlocutory appeal, and the trial court declined to do so, saying “I’m not going to give you the Interlocutory today. The case will be over by Wednesday.”
Peele was tried before a jury on December 18 and 19, 2018. He was convicted of each charged offense, and found to be a habitual offender. On January 10, 2019, Peele was sentenced to two years imprisonment for Possession of Methamphetamine, enhanced by four years due to his status as a habitual offender. He received concurrent sentences of 180 days for Possession of Marijuana and one year for Possession of a Controlled Substance. …
….
Peele does not challenge the initial stop of the vehicle in which he was a passenger. Nor does he challenge the propriety of the patdown for officer safety. Rather, he argues “searching the sock exceeded the scope of the Terry search that [Officer] James was conducting.” He contends that the search of his sock cannot be justified under the plain feel doctrine because the incriminating nature of the sock contents was not immediately apparent to Officer James.
… Officer James did not claim that he could detect, from the limited touch, “the incriminating nature” of the object. Clanton, 977 N.E.2d at 1025. He suspected the object was something illegal; he just did not know what it was in particular and thought it to be “possibly a weapon.” The testimony of possibility is insufficient. See D.D. v. State, 668 N.E.2d 1250, 1253-54 (Ind. Ct. App. 1996) (the plain feel doctrine was not satisfied by an officer’s general declaration that a bulge “felt like contraband” or his initial feel that made him believe the item was “probably cocaine or marijuana”). As such, the State did not justify the search of the sock on the basis of the plain feel doctrine.
That said, Officer James’s testimony indicates that his safety concerns had not been dispelled when he moved Peele from the side of the vehicle to the back. When the sock rolled from Peele’s pants, Officer James had not determined that Peele possessed no object capable of being used as a weapon. But if it was useful as a weapon, Peele was in handcuffs, and the sock was no longer in Peele’s possession or under his control. Thus, the inquiry becomes whether Terry justified the warrantless search of the sock – no longer on Peele’s person – for officer safety.
Here, Peele was handcuffed and did not toss the sock. Despite the State’s arguments that the timing of the sock fall is suspicious and Peele must have manipulated his body so as to cause the sock to fall, there is no testimony or other evidence of Peele’s volition. The evidence does not support the State’s theory of abandonment. We turn to our consideration of whether the search of the sock impermissibly broadened the scope of the Terry search beyond its protective purpose.
Once the sock fell, it was not within Peele’s immediate control. …
….
The State argues that, even though the sock was no longer in Peele’s possession or control, Officer James could still reasonably have feared that the sock contained “an explosive or incendiary device.” However, there is no testimony suggesting that Officer James suspected or believed that Peele had secreted an explosive device in the sock placed in the waistband of his sweat pants. And, in any event, a mere suspicion or possibility would not justify a warrantless search.
During a patdown for officer safety, Officer James detected a non-anatomical object in Peele’s waistband and came to suspect that he was carrying “contraband” of some type, “possibly a weapon.” When a sock fell from Peele’s person, Officer James was unaware of the nature of its contents. But rather than pushing the sock aside and obtaining a warrant, Officer James conducted a general search, “possibly” for a weapon or perhaps for other contraband. In doing so, he broadened the scope of the Terry search beyond its protective purpose.
The warrantless search of Peele’s sock was conducted in violation of his Fourth Amendment rights. Evidence obtained in the search should not have been admitted at trial.
Reversed.
Najam, J., and May, J., concur.