Dumbsky v. State

• Citation: 508 N.E.2d 1274
• Decision Date: 18 June 1987
• Docket Number: No. 1185S466,1185S466
• Parties: John R. DUMBSKY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 1274

508 N.E.2d 1274

John R. DUMBSKY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1185S466.

Supreme Court of Indiana.

June 18, 1987.

Walter J. Alvarez, Walter J. Alvarez, P.C., Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

This case requires us to decide whether an officer who tries to fit a gas cap on a truck belonging to a defendant whom he is arresting has violated the Fourth Amendment prohibition against unreasonable searches.

Appellant John R. Dumbsky was convicted of robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1985 Repl.). The trial court sentenced him to twelve years.

Besides his Fourth Amendment claim, Dumbsky raises three other issues on appeal. First, whether the verdict was supported by sufficient evidence. Second, whether the photographic array used to identify him was impermissibly suggestive. Third, whether the trial court stated sufficient grounds to impose a twelve year sentence.

The evidence at trial showed that around 11 p.m. on August 26, 1984, a man walked into a Martin gas station in Highland, Indiana, and told cashier Sheila Kipp to give him all the money. The man looked like a truck driver and Kipp thought he was joking. The man yelled a bit louder. He pointed a knife at her. Kipp backed up and touched fellow employee Randal Rodgers on the shoulder.

Rodgers was working at another counter that faced the other way. He heard the man and also thought he was a truck driver playing a joke. When Kipp reached out, Rodgers realized the man was not joking. He tried to bluff the man by saying he could not open the register.

The robber pushed the buttons on the cash register, but it did not open. He said, "You better open it, or I'm going to have to cut you." Rodgers opened the register and gave the man the money. He called the police and then ran after the robber.

Rodgers was joined in the chase by Rodger Nemec, a customer who had just arrived to purchase gas. Nemec noticed the disruption inside the station and saw the robber come out with a knife in his hand. Rodgers then exited and the two chased the man.

The man fled through a vacant lot and onto 81st street. During the chase he turned around, shaking the knife and yelling. The man darted in front of a car and then moved around it. Seconds later Rodgers ran in front of the same car trying to get it to stop. He ran around to the side window, but the driver rolled up her window because she did not know Rodgers.

Brenda Hardison and her sister were in the car. Hardison noticed the first man who ran in front of the car had a knife in his hand and had jumped into the passenger's side of an old red truck. Meanwhile, Nemec saw the man get into a red pickup truck on a side street off of 81st. Nemec went back to the gas station, got gas and watched for a truck to pull out. While pumping gas he found a red gas cap. Nemec's friend, Wayne Ivak, threw it into the back of the pickup. Shortly before the robbery a red truck had stopped for gas at the Martin station.

Nemec drove out of the station and came to 81st street. He saw the red pickup truck pull out and moved up beside it. He saw the man he chased sitting in the passenger's seat and noticed the truck's gas cap was missing. He took down the license number, turned around and went back to the gas station.

The police arrived at the gas station and questioned Kipp and Rodgers, Hardison and her sister, and Nemec and his friend. Nemec reported the license number to the truck and turned over the red gas cap he found. The robber was described by the witnesses as a fairly young, white male with long sandy blonde hair and a full beard. He wore a flannel shirt, baseball cap and sunglasses.

The witnesses went to the police station to view a photographic lineup. Detective Barnes used six pictures in the array. One of the photographs was of Dumbsky, the man who owned the red truck with the license plate reported by Nemec. Barnes placed tape at the bottom of the pictures to preclude the witnesses from knowing the names. They all identified Dumbsky as the man they saw.

Two days later Detective Barnes went to Dumbsky's house with a warrant for his arrest. He saw an old red pickup truck on the driveway. The license plate on the vehicle was the same as the one given earlier in the investigation. Barnes took a photograph of the whole truck. He noticed the gas cap was missing and took a picture of the side of the truck without the gas cap. Barnes had the gas cap which had been given to him two days earlier at the station, and he tried it on the truck. It fit. He photographed the truck with the gas cap.

I. Admission of Photographs of Truck

Appellant argues the trial court erred when it admitted the three photographs of the red pickup truck. One of the pictures shows a full view of the truck. A second photograph is of the side of the truck without the gas cap. The last one pictures the truck with the gas cap found at the gas station. Appellant asserts the photographs are the products of an unreasonable search without a search warrant and therefore the trial court should have granted his motion to suppress.

The first two photographs are indubitably not products of an unreasonable search. "What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967). When a vehicle is parked at some location where it is readily subject to observation by the public, police do not "search" it when they take photographs of the vehicle. Fisher v. State (1973), 259 Ind. 633, 641, 291 N.E.2d 76, 80. Although Fisher dealt with a vehicle in a vacant lot, we find no meaningful distinction when a vehicle is in a private driveway and the police are properly on the property pursuant to an arrest warrant.

The more intriguing question concerns the third picture. Appellant claims that when Detective Barnes tried the gas cap on the truck the Fourth Amendment was violated and the photograph should have been suppressed as the product of an unreasonable search. The search was not incident to arrest, appellant notes, and the warrant for the arrest did not include the making of any experiments. Appellant suggests that the truck could have been watched until the police obtained a search warrant to try the gas cap on the pickup.

We start by determining whether the experiment was a search. The most helpful analogy appears in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). In Cardwell the police were investigating a homicide. The victim had died of gunshot wounds, and his body was found near his car on the banks of a river. The car had gone over an embankment and had come to rest in brush. Foreign paint scrapings were removed from the right rear fender of the victim's car. The police requested the defendant to appear for questioning in connection with the investigation. After questioning, the police placed the defendant under arrest and had his car towed to the police impoundment lot. The next day a technician took a small paint sample from the car and determined it matched paint on the fender of the victim's car. Speaking for a plurality of the court, Justice Blackmun concluded the procedure was not a search. ¹In the present case, nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched or seized and introduced in evidence. With the "search" limited to ... the taking of paint scrapings from the exterior of the vehicle ... we fail to comprehend what expectation of privacy was infringed.

Id. at 591, 94 S.Ct. at 2470, 41 L.Ed.2d at 335 (footnote omitted).

Another analogy is the identification of a car through the use of a key. In United States v. DeBardeleben, 740 F.2d 440 (6th Cir.), cert. denied, 469 U.S. 1028, 105 S.Ct. 448, 83 L.Ed.2d 373 (1984), a Secret Service agent unlocked a car door with a key taken from the suspect. The agent relocked the door without opening it. "The agent ... did not search the Chrysler but merely identified it as belonging to defendant." Id. at 445 (emphasis in original).

We conclude that Detective Barnes did not "search" appellant's truck. Barnes merely identified the gas cap as belonging to the truck. It is hard to identify any expectation of privacy which was infringed. The police were legally on the property, they obtained the gas cap legally, and then they photographed the gas cap in the truck. The experiment with the gas cap was even less intrusive than the removal of paint allowed in Cardwell. The trial court properly admitted the picture of the red truck with the gas cap.

II. Sufficiency of Evidence

Appellant contends the conviction was not supported by sufficient evidence. At trial appellant presented Mark Kittelson who testified that he had a party on August 26, 1984, the night of the robbery, and that the appellant was at his house all night. Kittelson said the appellant allowed a friend to borrow the red truck to buy some beer. The friend was gone from 10 p.m. until midnight. Appellant also called Nemec's friend, Wayne Ivak, who testified he was not positive that Dumbsky was the robber. Appellant specifically challenges the evidence of identification. He claims the testimony of the witnesses who identified him is inherently improbable and does not establish him as the robber beyond a reasonable doubt....