May, J.
William Michael Bean II appeals his convictions of Level 3 felony dealing in a schedule II controlled substance and Level 4 felony dealing in a schedule IV controlled substance. Bean raises one issue on appeal, which we expand and restate as: (1) whether the officers lawfully initiated a traffic stop, and (2) whether the trial court erred in admitting evidence discovered during searches of Bean’s person in conjunction with the traffic stop. We also address sua sponte whether searches of Bean’s person were justifiable as searches incident to arrest. We reverse.
1. Traffic Stop
Under the Fourth Amendment, “a traffic stop of a vehicle and temporary detention of its occupants constitutes a ‘seizure.’” McLain v. State, 963 N.E.2d 662, 666 (Ind. Ct. App. 2012). Police officers are charged with enforcing traffic laws and are authorized to stop drivers they observe commit traffic infractions. Datzek v. State, 838 N.E.2d 1149, 1156 (Ind. Ct. App. 2005) (holding stop of suspected drunk driver after driver failed to use turn signal was lawful), reh’g denied, trans. denied. Therefore, the officer’s traffic stop of Bean was lawful because Bean was traveling five miles above the speed limit.
2. Initial Pat Down Search, Vehicle Search and Second Pat Down Search
Here, Detective Wood testified he had observed Bean carrying a pistol on approximately five prior occasions. Detective Lewis testified Bean had a gun at a prior traffic stop and there was a “brief standoff.” (Tr. Vol. II at 53.) Therefore, Detective Lewis’ initial pat down search of Bean was constitutional because Bean consented to the search and because the officers had a reasonable belief Bean might be armed and dangerous due to their previous interactions with him. Cf. Westmoreland v. State, 965 N.E.2d 163, 166 (Ind. Ct. App. 2012) (holding officer did not reasonably believe suspect was armed and dangerous before ordering him out of the car and frisking him during routine traffic stop).
Furthermore, Bean gave officers permission to search his vehicle, and therefore, it was constitutional for Detective Wood to do so. See McIlquham v. State, 10 N.E.3d 506, 514 (Ind. 2014) (search conducted with consent comports with Fourth Amendment). However, Bean did not consent to the second pat down search, and he removed his shoes and jumped up and down because police ordered him to do so. The State argues Bean’s nervousness and movements while Detective Wood searched his vehicle justified Detective Wood’s request that he submit to a second pat down search, remove his shoes, and shake out the front of his pants. The State maintains these additional measures were necessary for officer safety. At trial, Detective Wood testified the second pat down search was for “[o]fficer safety based on the . . . movements to his groin area and the . . . known history of Mr. Bean carrying a firearm.”
However, we note Detective Wood also testified that he ordered Bean to remove his shoes because he thought Bean was hiding narcotics in them and not for officer safety. Further, Detective Lewis’ initial pat down search of Bean did not reveal the presence of any weapons. While Detective Lewis testified that his first pat down search was “poor,” he did sweep Bean’s beltline and acknowledged Bean’s “weapon has always been on his hip.” Considering these facts, the officers lacked a reasonable belief that Bean was armed and dangerous when they discovered the bags of pills. See Clark v. State, 994 N.E.2d 252, 267 n.19 (Ind. 2013) (pat down search not justified without specific and articulable facts that suspect was armed and dangerous).
3. Search Incident to Arrest
The dissent would hold that the discovery of marijuana shake in the vehicle justified the subsequent searches of Bean’s person as searches incident to arrest.
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Detective Wood did not recover the suspected marijuana shake from the vehicle. The substance was never tested to determine whether it was marijuana. Even though Detective Wood had a police dog in his car, he did not have the dog sniff Bean’s vehicle to detect the presence of illegal drugs. Detective Wood did not testify regarding any distinguishing characteristics of the substance that led him to the conclusion that the substance was marijuana. Rather, Detective Wood just testified as to his conclusion that the substance was marijuana “given [his] training and experience.” (Id.) Probable cause cannot be based solely on a conclusory assertion.
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We accordingly hold the officers did not have probable cause to arrest Bean for marijuana possession after the search of his vehicle and the search incident to arrest exception does not apply in this circumstance. See Wilson v. State, 96 N.E.3d 655, 660 (Ind. Ct. App. 2018) (holding officer lacked probable cause to arrest suspect when the suspect exited a car parked in a high crime area then reached back into the vehicle), trans. denied.
We hold Bean’s right under the Fourth Amendment to the United States Constitution to be free from unreasonable search and seizure was violated by the second pat down search of Bean, the request that Bean remove his shoes, and the order that Bean shake out the front of his pants. Therefore, the evidence obtained during the same should not have been admitted at trial. See Sanchez v. State, 803 N.E.2d 215, 221 (Ind. Ct. App. 2004) (“fruit of the poisonous tree” doctrine bars illegally obtained evidence from admission), trans. denied.
Conclusion
After conducting one pat down search and searching Bean’s vehicle, the officers lacked a reasonable belief Bean was armed and dangerous, and they should not have continued searching him. We reverse the trial court’s admission of the evidence obtained as a result of Bean jumping up and down and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Robb, J., concurs.
Baker, J., dissents with opinion
Baker, J., dissenting.
I respectfully dissent. I agree with the majority to the extent that the series of non-consensual searches of Bean—the second pat-down search, the request to remove his shoes, and the order to shake out the front of his pants—cannot be justified as a frisk for weapons. But, as the majority acknowledges, a pat-down search for weapons to protect officer safety is not the only exception to the Fourth Amendment warrant requirement. Rather than review the nonconsensual searches as frisks for weapons under a Terry analysis, I would instead find that the series of non-consensual searches that the majority finds unconstitutional to fall squarely under the search incident to arrest exception to the Fourth Amendment warrant requirement.
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Had no marijuana been discovered prior to the series of non-consensual searches of Bean, I would readily agree that the non-consensual searches were unconstitutional and that reversal is warranted. But given all the facts and circumstances known to the officers at the time they conducted those searches, and in light of how similar facts and circumstances have been treated in numerous prior decisions, I would affirm the trial court’s decision.
Therefore, I respectfully dissent