Bailey, J.
Michael D. Johnson (“Johnson”) appeals his conviction for Dealing in a Look-a-like Substance, as a Level 5 felony. Johnson presents the sole issue of whether the trial court abused its discretion in admitting evidence obtained in violation of his Fourth Amendment right to be free from an unreasonable search and seizure. We reverse.
On November 8, 2015, Brett Eversole (“Eversole”) was a gambling patron at the Hoosier Park Casino in Anderson, Indiana. Eversole reported to a security officer that a black male wearing a white hat had approached him at a gambling machine and asked if he “wanted to buy white girl.” Eversole assumed “white girl” meant cocaine. The security officer notified shift supervisor Matt Miller (“Miller”), who notified Gaming Enforcement Agent Zach Wilkinson (“Agent Wilkinson”). Miller also requested video surveillance of the gaming floor.
Agent Wilkinson reviewed surveillance footage, without audio, and “confirmed the interaction” of approximately thirty seconds between Eversole and a black male wearing a white hat. He located Johnson, a black male wearing a white hat, and asked that he come to the gaming enforcement interview room. When they reached the interview room, Agent Wilkinson advised Johnson that he would “need a pat down.” Agent Wilkinson detected and removed from Johnson’s pocket an object that “felt like a ball of drugs.” He placed Johnson in handcuffs and provided a Miranda warning.
An Indiana State Police chemist tested the white powder; she identified no drug but detected a chemical possibly derived from baking soda. On February 29, 2016, the State charged Johnson with Dealing in a Look-a-like Substance. On April 5, 2017, Johnson filed a motion to suppress the evidence obtained as a result of the warrantless search of his pocket. On April 24, 2017, the trial court conducted a hearing on the motion to suppress and the parties agreed to submit briefs regarding their respective positions on admissibility. On October 4, 2017, the trial court denied Johnson’s motion to suppress.
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Johnson was convicted as charged and sentenced to four years imprisonment, with three years suspended to probation.
… If the officer possesses a reasonable fear of danger when making a Terry stop, he or she may conduct a carefully limited search of the suspect’s outer clothing in an attempt to discover weapons that might be used to assault the officer. Granados v. State, 749 N.E.2d 1210, 1213 (Ind. Ct. App. 2001). Johnson does not argue that Agent Wilkinson lacked a reasonable suspicion of criminal activity and he does not challenge the decision to perform a pat-down search.
But the encounter did not end with a pat-down. Agent Wilkinson reached into Johnson’s pocket and retrieved a ball of a powdered substance, which he did not suspect to be a weapon. Generally, the Fourth Amendment to the United States Constitution prohibits a warrantless search. Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998). One exception to this rule is a search incident to a lawful arrest. Gibson v. State, 733 N.E.2d 945, 953 (Ind. Ct. App. 2000). “Evidence resulting from a search incident to a lawful arrest is admissible at trial.” Id. However, “[a]n unlawful arrest cannot be the foundation of a lawful search.” Id. “Evidence obtained as a direct result of a search conducted after an illegal arrest is excluded under the fruit of the poisonous tree doctrine.”
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The testimony suggests alternative scenarios as to how Agent Wilkinson discovered the apparent contraband. The agent may have been conducting “a carefully limited search of outer clothing to detect weapons,” Granados, 749 N.E.2d at 1213, when he discerned characteristics consistent with contraband, notwithstanding the fabric barrier. Or Agent Wilkinson, having received information of an attempted sale of contraband, may have reached into Johnson’s pocket and examined the item before concluding it was likely contraband.
In the first scenario, Agent Wilkinson would arguably have, without exceeding the scope of a Terry pat-down for weapons, developed probable cause for an arrest. In the second scenario, Agent Wilkinson would have conducted the search before having probable cause for an arrest and thus the seizure did not take place in a search incident to arrest. It is incumbent upon the State to prove that the measures it used to conduct a search and seize evidence were constitutional. Roger, 883 N.E.2d at 139. Here, the State failed to satisfy its burden; the evidence does not dispel concern that the ball of powder retrieved from Johnson’s pocket was obtained in violation of his Fourth Amendment right to be free from an unlawful search and seizure.
The State did not establish that the measures used to seize the challenged evidence were constitutional. Accordingly, the trial court abused its discretion in admitting the evidence.
Reversed.
Kirsch, J., and Mathias, J., concur.