Conviction reversed for would-be drug sale at casino

A man suspected of trying to sell look-alike substances at an Indiana casino has had his drug-related conviction reversed, with the Indiana Court of Appeals finding insufficient evidence to dispel a claim of a Fourth Amendment violation.

The case of Michael D. Johnson v. State of Indiana, 19A-CR-975, began in November 2015, when Brett Eversole was at the Hoosier Park Casino in Anderson. According to a report he gave to a security guard, a black man in a white hat had approached Eversole and asked if he wanted to buy a “white girl,” meaning cocaine.

The report made its way to gaming enforcement agent Zach Wilkinson, who “confirmed the interaction” based on surveillance footage that did not have audio. Wilkinson then found Michael Johnson, a black man wearing a white hat, and brought him into an interview room.

Once in the room, Wilkinson told Johnson he would “need a pat down,” which led Wilkinson to remove what “felt like a ball of drugs” from the suspect’s pocket. Johnson was handcuffed and read his Miranda rights, but subsequent testing revealed the white powder was not a drug. Instead, it contained a chemical possibly deriving from baking soda.

Thus, Johnson was charged with dealing in a look-a-like substance. He moved to suppress the evidence obtained during the pat-down search, but the Madison Circuit Court denied the motion. Johnson then objected at trial to the admission of the evidence found in his pocket, but the trial court determined Wilkinson had completed a search incident to arrest when he removed the item from Johnson’s pocket.

Johnson was then convicted on a Level 5 felony charge and sentenced to four years, with three years suspended to probation. But the Indiana Court of Appeals reversed his conviction Thursday, finding the state failed to prove the search of Johnson’s pocket was constitutional under the Fourth Amendment.

“Johnson does not argue that Wilkinson lacked a reasonable suspicion of criminal activity and he does not challenge the decision to perform a pat-down search,” Judge L. Mark Bailey wrote. “But the encounter did not end with a pat-down.

“…The agent may have been conducting ‘a carefully limited search of outer clothing to detect weapons’ … 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,” Bailey continued. “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.”

Here, the state failed to prove that Wilkinson had probable cause, Bailey said, writing that “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.”

Though Johnson’s conviction was reversed under the Fourth Amendment, in a footnote, Bailey said Johnson also referenced Article 1, Section 11 of the Indiana Constitution. But because he did not develop a corresponding argument, his argument that the search violated the Indiana Constitution was waived.