Barber v. State

• Decision Date: 13 April 1981
• Docket Number: No. 2-880A291,2-880A291
• Citation: 418 N.E.2d 563
• Parties: Phillip L. BARBER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 563

418 N.E.2d 563

Phillip L. BARBER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 2-880A291.

Court of Appeals of Indiana, Fourth District.

April 13, 1981.

Manuel P. Guerrero, Marion, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CHIPMAN, Judge.

Defendant Phillip Lee Barber was convicted by a jury of the September 6, 1979, robbery ¹ of a Marion, Indiana clothing store. Barber now appeals that conviction raising the following issues for our review:

1) whether the trial court properly admitted the defendant's confession,

2) whether the trial court erred by admitting an amended transcript of the defendant's statement, and

3) whether there was sufficient evidence to support the robbery conviction.

We affirm.

I. Admissibility of Confession

On September 11, 1980, Marion police transported defendant Barber to police headquarters for questioning. There he admitted to his involvement in the robbery for which he stands convicted. Barber concedes he was read the warnings required by Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and he does not seek to challenge the voluntariness of his statement for Fifth Amendment purposes. Instead, defendant argues he was arrested without probable cause, and therefore his confession, being the product of an unlawful detention, was inadmissible under Dunaway v. New York, (1979) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824. The State argues Barber voluntarily accompanied the police to headquarters for questioning and therefore no arrest occurred.

The Fourth Amendment to the U.S. Constitution guarantees "(t)he right of the people to be secure in their persons ... against unreasonable searches and seizures ...." Generally, for an arrest or seizure of the person to be reasonable, it must be based upon probable cause. Brinegar v. United States, (1949) 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. ² In Brown v. Illinois, (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, and Dunaway v. New York, supra, the U.S. Supreme Court held that a confession, otherwise voluntary for Fifth Amendment purposes, is inadmissible when the defendant's statement is obtained by exploitation of an illegal arrest. Both Brown and Dunaway have been followed in this state. See Morris v. State, (1980) Ind., 399 N.E.2d 740; Williams v. State, (1976) 264 Ind. 664, 348 N.E.2d 623.

Obviously, not every police-citizen encounter amounts to a "seizure" of the person. In Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, Chief Justice Warren set out a test for determining whether a person has been "seized" for Fourth Amendment purposes:

"Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred."

392 U.S. at 19, n. 16, 88 S.Ct. at 1879, n. 16. The Terry definition of "seizure" was refined somewhat in the recent case of U. S. v. Mendenhall, (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.

One issue in Mendenhall was whether Ms. Mendenhall was arrested or seized when Drug Enforcement Administration officers asked her to accompany them to the DEA office at the Detroit airport for questioning. In Part II-A of his plurality opinion, Justice Stewart wrote "We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled."

446 U.S. at 554, 100 S.Ct. at 1877. ³ Stewart concluded there was evidence to show Mendenhall had voluntarily cooperated with the government agents and therefore no seizure or arrest occurred. This conclusion was not altered by the fact Mendenhall was not expressly told by the DEA officers that she was free to decline to cooperate with their inquiry. Id. at 555, 100 S.Ct. at 1877. Stewart also reasoned that the intent of the officers, i. e. whether they would have restrained Mendenhall had she attempted to leave, was relevant only if that intent was conveyed to the defendant. Id. at 554, n. 6, 100 S.Ct. at 1877.

While the court's reasonable man test for a Fourth Amendment seizure in Mendenhall is ostensibly an objective one, it quite clearly retains a subjective element. For instance, Mendenhall argued that her encounter with the government agents was coercive because of her race, lack of education, sex, her relatively young age, and the presence of white male officers. Justice Stewart found these factors were "not irrelevant, see Schneckloth v. Bustamonte, supra (412 U.S. 218) at 226 (93 S.Ct. 2041 at 2047, 36 L.Ed.2d 854) (but) neither were they decisive, and the totality of the evidence ... was plainly adequate to support the District Court's finding that the respondent voluntarily consented to accompany the officers to the DEA office." 446 U.S. at 558, 100 S.Ct. at 1879.

We conclude that when determining whether a seizure of the person has occurred for Fourth Amendment purposes, the appropriate inquiry should be whether, considering all the circumstances surrounding the police-citizen encounter, the defendant entertained a reasonable belief that he was not free to leave. ⁴ Furthermore, as a court of review we are limited to a determination of whether there was sufficient evidence to support the trial court's conclusion on this issue.

Turning to the facts of the present case, the evidence shows that on September 11, 1979, Marion police received a tip from the defendant's mother that the house where she and her son lived might contain stolen property. The defendant was placed under surveillance for a short period of time that day. Later in the day an unmarked police car driven by detective Paul Biddle pulled up to the curb beside the defendant as he was walking towards his home. Biddle exited the automobile and identified himself by displaying his badge. The detective told defendant Barber that police were investigating several robberies in the community. he then asked the defendant, "Would you come downtown to talk to Captain Mowery?" Defendant Barber knew Mowery and had provided Mowery with information on previous occasions. Detective Biddle and the defendant walked a short distance to the defendant's home, where other police officers were present talking to the defendant's mother and preparing to undertake a search of the premises with her consent. ⁵ Defendant Barber told detective Biddle he would answer questions at the police station, but wanted to change his clothes first. With the defendant's consent, two detectives entered the house to wait inside. From where the men stood they were able to observe the defendant change clothes in the bedroom.

After the defendant changed, he was told that officer Sorrell could drive him to the police station. The defendant walked to Sorrell's marked police car, opened the front passenger door, and entered the front seat. Only officer Sorrell and the defendant rode in the squad car to the station. Other officers remained at the scene to complete their search.

Once at the station, defendant Barber was led to a room in the rear of the building. He was served coffee. After Barber waited alone in the room for approximately ten minutes, Captain Mowery and two other detectives entered. Mowery proceeded to ask the defendant whether he knew anything about several robberies in the community. Eventually Barber interrupted Mowery and told him he knew about the robbery of the Marion Bargain Center. Defendant then gave his statement to police.

Barber maintains he held a reasonable belief that he was under arrest at the time he was transported to police headquarters for questioning. His argument certainly cannot be easily dismissed. Five police officers and numerous police vehicles were present when detective Biddle "requested" that Barber submit to questioning at the police station. Barber relies heavily upon Dunaway v. New York, supra, a case in which the Supreme Court held New York police violated the Fourth Amendment when, without probable cause, they took Dunaway into custody, transported him to a police station, and detained him there for interrogation. In footnote 6 Justice Brennan quoted from a tentative draft of the American Law Institute's Model Code of Pre-Arraignment Procedure § 2.01(3) and commentary, for the proposition that

"(a) request to come to (a) police station 'may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen.' "

442 U.S., at 207 n.6, 99 S.Ct. at 2253 n.6. It is clear, however, that the majority in Dunaway did not attempt to make an independent determination of whether a Fourth Amendment seizure had occurred, but relied for the most part on the state court's finding that Dunaway had been involuntarily detained. Id.

We do not believe Dunaway stands for the proposition that every time police transport an individual to a police station for questioning a Fourth Amendment seizure has occurred. This hard and fast rule would in some instances have absolutely no basis in fact after proper inquiry into the defendant's own perceptions during the incident. Instead, each case must be reviewed in an effort to determine whether, considering all the circumstances surrounding the encounter, the defendant entertained a reasonable belief that he was not free to leave.

In the present case defendant Barber had previously been arrested twice. He testified...