Arcuri v. State
| Decision Date | 13 August 2002 |
| Docket Number | No. 45A03-0110-CR-317.,45A03-0110-CR-317. |
| Citation | 775 N.E.2d 1095 |
| Parties | Michael Paul ARCURI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Mark A. Bates Appellate Public Defender, Crown Point, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Michael Arcuri ("Arcuri") appeals from the Superior Court of Lake County's denial of his Motion to Suppress. In this appeal, Arcuri raises the following two issues:
I. Whether the trial court erred when it determined that the investigative stop of the vehicle in which Arcuri was a passenger was supported by a reasonable suspicion; and,
II. Whether the trial court abused its discretion when it determined that a warrantless search of a residence in which Arcuri claimed to live was constitutional.
We affirm.
The facts most favorable to the trial court's ruling show that at approximately 8:30 p.m. on March 18, 2001, an armed man wearing a ski mask and a hooded, gray sweatshirt robbed a Speedway gas station in Highland, Indiana. The gas station attendant described the robber to the emergency call dispatcher as being about five foot three inches to five foot four inches, wearing a hooded, gray sweatshirt and a ski mask, and carrying a semi-automatic silver revolver. Tr. pp. 3, 4.1
Officer Michael James O'Donnell of the Highland Police Department was on patrol when the robbery information and the robber's description were dispatched. Because of the direction in which the dispatcher said the robber fled, Officer O'Donnell drove his patrol car onto a bicycle path that he believed could have been an easy route for a fleeing robber. In the meantime, other Highland police officers arrived at the gas station and gathered more information from the attendant. At this point, the attendant informed the officers that the robber had an accent. The police at the scene radioed this additional information to Officer O'Donnell. Appellee's App. p. 98.2
After receiving the latest radioed information, Officer O'Donnell pulled out onto a road that intersected the bicycle path and up to a stop sign about two blocks from the Speedway gas station. As his vehicle approached the stop sign, a motor vehicle turned in front of him, away from the direction of the gas station. Officer O'Donnell noticed that the passenger in the vehicle was very short, Hispanic and seemed to be slouching down in the front passenger seat evasively when the vehicle passed his patrol car. Id. at 25, 28. Officer O'Donnell then turned his car around and stopped the motor vehicle. About five minutes had lapsed since Officer O'Donnell received the first dispatch call. Id. at 47.
Officer O'Donnell first spoke with the driver of the motor vehicle, who informed the officer that they had just come from the passenger's residence. Id. at 53. Officer O'Donnell then spoke with the passenger, Arcuri, and determined that he had an Hispanic accent and a slight lisp. Id. at 26. When Arcuri exited the motor vehicle, Officer O'Donnell confirmed that Arcuri was very short. Id. at 52. After another officer arrived at the traffic stop, both the driver and Arcuri were taken into custody. After placing Arcuri into his patrol car, Officer O'Donnell Mirandized him. As Officer O'Donnell was transporting Arcuri back to the Speedway gas station, he asked Arcuri where he lived. Arcuri pointed to a house, the owner of which Officer O'Donnell happened to know. Id. at 32. Once at the Speedway gas station, Arcuri was moved from Officer O'Donnell's patrol car to another officer's car in order to be transported to the police station.
While Arcuri was being transported to the police station, Officer O'Donnell visited the residence in which Arcuri said he lived. Officer O'Donnell had attended several years of school with the owner, Cathy Ferrell ("Ferrell"). He first spoke with Ferrell outside the residence and informed her that he was investigating an armed robbery and that Arcuri was a suspect. Id. at 48. Then he and Ferrell entered the home. Ferrell led Officer O'Donnell to a common area of the residence that was located just at the top of a stairway. He described the area as a "loft area" with a futon, chest of drawers, and clothing tossed about the floor. He said that the area did not have a door and that there was a room off to the side, which was the enclosed bedroom of Ferrell's son that did have a door. Id. at 51-52. A hooded, gray sweatshirt, a ski mask, black gloves, and a .380 semi-automatic handgun were recovered from the area. Appellant's App. p. 18.3 At approximately 9:35 p.m. at the police station, Officer David Allen Calarie of the Highland Police Department, who was also at the Speedway station after the robbery, read a Miranda form to Arcuri for the purpose of advising him of his rights with regard to giving consent to search his living area in the residence at which he stayed. Id. at 112. Officer Calarie testified that he informed Arcuri that he was not required to sign the consent to search form, and that based upon the Miranda form that was read to Arcuri, Arcuri "truthfully signed the consent" form. Id. at 114. Officer Calarie also testified that he read the consent to search form to Arcuri, and Arcuri read it himself before he signed. Id. After Arcuri signed the consent to search form, Officer Calarie took the signed form to Officer O'Donnell at the Ferrell residence.
After reviewing arguments on Arcuri's Motion to Suppress, which was filed on June 14, 2001, the trial court denied the motion on August 8, 2001. The trial court then certified the ruling for interlocutory appeal, and this court accepted jurisdiction of the appeal on October 19, 2001. Additional facts will be provided as necessary.
Our standard of review when a motion to suppress has been denied is similar to our standard of review for claims of insufficient evidence to support a trial court determination. Crabtree v. State, 762 N.E.2d 241, 244 (Ind.Ct.App. 2002). We do not reweigh the evidence but if any evidence is in conflict, we only consider the evidence most favorable to the trial court's determination. Id. Additionally, we must also consider uncontested evidence favorable to the defendant. Id. (). Lastly, review of whether a police officer had a reasonable suspicion to conduct an investigatory stop is reviewed de novo. Id. (citing Burkett v. State, 736 N.E.2d 304, 306 (Ind.Ct.App.2000)).
Arcuri first argues that the trial court erred when it denied his Motion to Suppress because Officer O'Donnell did not have a reasonable suspicion to stop the vehicle in which Arcuri was a passenger. "An officer may stop and briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion of criminal activity even if the officer lacks probable cause to make an arrest." Id. at 245 (citing Lockett v. State, 747 N.E.2d 539, 544 (Ind.2001) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))). We employ a two-part test to determine whether an investigatory stop was reasonable: "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. (quoting Lockett, 747 N.E.2d at 544 (quoting Terry, 392 U.S. at 19-20, 88 S.Ct. 1868)). "Based on the totality of the circumstances, the detaining officer must have a particularized and objective basis for suspecting... criminal activity." State v. Smith, 638 N.E.2d 1353, 1355 (Ind.Ct.App. 1994) (citing State v. Nesius, 548 N.E.2d 1201, 1201 (Ind.Ct.App.1990)).
Arcuri argues that it was not enough that Officer O'Donnell made the stop based on the facts that Arcuri appeared to be short, appeared to be Hispanic, was evasive when the vehicle in which he was riding turned in front of Officer O'Donnell's patrol car, and was near the scene of the robbery. Other important facts not included in his argument, however, are that the car was only two blocks from the scene of the robbery, only about five to seven minutes had passed since the robbery, there were no other cars on the street at the time, and the fact that he appeared short and Hispanic fit the description Officer O'Donnell had received over his police radio. Appellee's App. pp. 22, 40, 47.
Arcuri relies heavily on Indiana cases such as Burkett, 736 N.E.2d at 306, in which a panel of this court held that the totality of the circumstances did not rise to a level of reasonable suspicion justifying an investigatory stop even though defendant was in a neighborhood known for drug dealing at a late hour, the defendant was wearing a hooded sweatshirt in seventy-six degree weather, the defendant turned and walked away from a police officer who had pulled his car up to the corner at which the defendant had been standing, and the defendant's race was the same as the group of men that had been reported as dealing narcotics in the area. Our case is dissimilar from Burkett.
Besides the fact that Arcuri fit the description of the robber, in the case at bar, the robbery was "freshly committed" and Officer O'Donnell believed he was in the area to which the robber was headed based upon the gas station attendant's account of the direction he headed. Under the totality of the facts and circumstances of this case and based upon "[t]he need for swift and effective law enforcement[,]" Officer O'Donnell's stop of the vehicle in which Arcuri was riding was not improper; rather, it was good police work. Marsh v. State, 477 N.E.2d 877, 878 (Ind.1985) (citing Terry, 392 U.S at 1, 88 S.Ct. 1868; Williams v. State, 261 Ind. 547, 307...
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