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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: BRYAN LEE CIYOU Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHARLES E. DUMAS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0706-CR-488

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patrick Murphy, Commissioner Cause No. 49G23-0612-FC-246169

March 20, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Charles E. Dumas appeals his conviction for possession of cocaine as a Class C felony. Specifically, Dumas argues that the trial court abused its discretion in admitting the cocaine into evidence because the police obtained the cocaine as the result of a pat down search that violated the Fourth Amendment to the United States Constitution. As a preliminary matter, we conclude Officer Hartman had reasonable suspicion to extend the scope of the initial stop. We further find that Dumas voluntarily consented to the pat down search and, in addition, that Officer Hartman had reasonable suspicion to conduct the search. We therefore affirm the judgment of the trial court. Facts and Procedural History On December 20, 2006, Indianapolis Metropolitan Police Officer Keith Hartman initiated a traffic stop of a vehicle on the exit ramp from I-70 westbound to Emerson Avenue in Marion County, Indiana. Officer Hartman stopped the vehicle because it had been traveling seventy miles per hour in a fifty-five mile per hour zone and because the officer believed that the tint on the vehicle's windows was too dark. When Officer Hartman approached the vehicle, he could see an individual through the open driver's side window, later identified as Dumas, moving around in the back seat. Because he could not see into the other windows due to the tint, Officer Hartman asked the occupants to roll down the back seat window to gain a better view of Dumas. Eventually, Officer Stephanie Humerickhouse arrived on the scene and provided Officer Hartman with additional assistance. Once Officer Humerickhouse arrived,

Officer Hartman asked the driver to get out of the car and come back to his patrol car 2

while he ran the driver's license and registration. While Officer Hartman was checking the driver's information, he asked the driver where he was going. The driver told Officer Hartman that they were going to Lafayette Square Mall. Officer Hartman thought the driver's answer was peculiar because the route that the driver claimed to be taking was a roundabout way to go to that mall. Officer Hartman then asked the driver about the identity of his back seat passenger. The driver claimed that he did not know his name. While speaking with the officer, the driver was not making eye contact and his voice and hands were shaking. While Officer Hartman was talking with the driver, Officer Humerickhouse stayed with the stopped vehicle to observe Dumas and the female front seat passenger, who was later identified as the driver's girlfriend. During this time, Dumas continuously reached down under the seat even after Officer Humerickhouse asked him to stop. According to Officer Humerickhouse, Dumas looked nervous, was overly talkative, and was sweating despite the cold temperature outside. Once Officer Hartman finished securing the driver's information, he returned to the stopped vehicle where Officer Humerickhouse told him that Dumas had been moving around in the car and reaching underneath the back seat despite the officer's request that he stop. Officer Hartman asked Dumas where they were going. Dumas responded, "To Greenwood." Tr. p. 29. Officer Hartman then asked Dumas to get out of the vehicle. After Dumas did, Officer Hartman asked him if he "could pat him down for weapons." Id. at 84. Dumas said "no problem," id. at 84, put his hands up, and said, "You can search me." Id. at 30. Officer Hartman then asked, "I can search you?" Id. Dumas 3

responded, "Yeah. You can search me." Id. While Officer Hartman was conducting a pat down search on Dumas, a clear plastic bag, containing what was later identified as cocaine in excess of three grams, fell out of his pant leg and onto the ground. From the time Officer Hartman initiated the stop to the time when the pat down search began, approximately ten minutes had elapsed. The State charged Dumas with possession of cocaine as a Class C felony.1 During a pre-trial hearing, Dumas moved to suppress the cocaine claiming that Officer Hartman's pat down search was illegal. The trial court denied Dumas's motion. Dumas waived a jury trial, and a bench trial ensued several weeks later. At the conclusion of his bench trial, the court found Dumas guilty as charged. Dumas now appeals. Discussion and Decision On appeal, Dumas contends that the trial court erred in denying his motion to suppress the cocaine because the pat down search violated his rights under the Fourth Amendment to the United States Constitution. Although he originally challenged the admission of the cocaine through a pre-trial motion to suppress, Dumas appeals following a completed bench trial and challenges the admission of such evidence at trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting the cocaine at trial.2 See Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). Our standard of review regarding rulings on the admissibility of evidence is essentially
1

Ind. Code

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