Bogetti v. State

Decision Date03 February 2000
Docket NumberNo. 30A01-9906-CR-194.,30A01-9906-CR-194.
Citation723 N.E.2d 876
PartiesTony T. BOGETTI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Thomas N. Leslie, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BAKER, Judge

Today we consider whether information reported directly to a police officer by a concerned citizen that a driver "may be intoxicated" sufficiently rises to the level of a reasonable suspicion warranting an initial stop of the driver. Appellant-defendant Tony T. Bogetti appeals his conviction for Operating a Motor Vehicle with a Blood Alcohol Content of at least .10 percent,1 a Class C misdemeanor, claiming that the trial court erred in denying his motion to suppress and that the evidence was insufficient to support the conviction.

FACTS

The facts most favorable to the judgment are that on February 8, 1998, at approximately 10:50 p.m., Greenfield police officer John Jester and several fellow officers were dining at a McDonald's restaurant. At some point during the meal, a man approached Officer Jester and informed him that another individual, later identified as Bogetti, who had just exited the restaurant and drove away in a white semi truck, "may be intoxicated." R. at 84. Immediately thereafter, Officer Jester and another officer left the restaurant and entered their patrol cars. As Officer Jester began to follow the white semi, Bogetti drove the truck into a shopping center parking lot. Officer Jester then activated his emergency lights, whereupon Bogetti continued driving through the lot and made a turn as though he was going to stop. Another officer then pulled his police car in front of the truck.

After Bogetti exited the vehicle, he showed Officer Jester his driver's license as requested. Bogetti was unable to produce the truck registration, however, because he had locked his keys in the cab. The officers smelled alcohol on Bogetti's breath, and Bogetti admitted that he had consumed "a couple beers." R. at 136. Officer Jester then directed Bogetti to perform a number of field sobriety tests which he ultimately failed. Bogetti was arrested and transported to the hospital where his urine and blood were tested. Those tests revealed a blood alcohol content of between.127 and .135 grams of alcohol per deciliter of blood. As a result, Bogetti was charged with driving while intoxicated and driving with a blood alcohol content greater than .10 percent.2

Prior to trial, Bogetti moved to suppress all evidence resulting from the stop by the police officers for the reason that there existed no "reasonable suspicion that the defendant was engaged in criminal activity in order to justify the stop." R. at 36. Bogetti's motion was denied, and following a jury trial which commenced on March 9, 1999, Bogetti was found guilty of operating a motor vehicle with a blood alcohol content of .10 percent or more and not guilty of driving while intoxicated. He now appeals.

DISCUSSION AND DECISION
I. Motion to Suppress

Bogetti first claims that the trial court erred in denying his motion to suppress. Specifically, he contends that the stop was not justified because it was based only upon the tip of an unidentified individual who told the officers that he believed that Bogetti may have been intoxicated.

To resolve this issue, we initially observe that an investigatory stop of a citizen by a police officer does not violate that individual's constitutional rights where the officer has a reasonable articulable suspicion of criminal activity. Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind. 1997), modified on other grounds, 685 N.E.2d 698 (Ind.1997)

; see also Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such "reasonable suspicion" is determined on a case by case basis, and the totality of the circumstances is considered. Baran v. State, 639 N.E.2d 642, 644 (Ind.1994); Platt v. State, 589 N.E.2d 222, 226 (Ind.1992). Reasonable suspicion entails some minimum level of objective justification for making a stop; something more than an inchoate and unparticularized suspicion or hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence. Cardwell v. State, 666 N.E.2d 420, 422 (Ind.Ct. App.1996),

trans. denied. In judging the reasonableness of investigatory stops, courts must strike a balance between the public interest and the individual's right to personal security free from arbitrary interference by law enforcement officers. Stalling v. State, 713 N.E.2d 922, 924 (Ind. Ct.App.1999). There are certainly legitimate State concerns in deterring driving while intoxicated and under-age drinking. See State v. Garcia, 500 N.E.2d 158, 161 (Ind.1986),

cert. denied 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496.3

Appropriate circumstances are demonstrated justifying a stop when a police officer is able to point to specific and articulable facts which, when considered together with the rational inferences drawn from those facts, create a reasonable suspicion of criminal conduct on the part of a vehicle's occupants. State v. Nesius, 548 N.E.2d 1201, 1203 (Ind.Ct. App.1990). A reasonable suspicion justifying a limited investigative stop of a vehicle affords a police officer the right to temporarily "freeze" the situation in order to make investigative inquiry. State v. Smith, 638 N.E.2d 1353, 1355 (Ind.Ct.App. 1994). Finally, we note that anonymous or unidentified informants can supply information that gives police reasonable suspicion. A tip will be deemed reliable when an individual provides specific information to police officers such as a vehicle description. See Lampkins, 682 N.E.2d at 1271-72

(tip was deemed reliable when police officers were able to identify a vehicle which matched the description that informant had provided to them); see also Adams v. State, 542 N.E.2d 1362, 1366 (Ind.Ct.App.1989).

In determining whether Officer Jester could lawfully stop Bogetti under these circumstances, we note that the facts here are strikingly similar to those in State v. Springmier, 559 N.E.2d 319 (Ind.Ct. App.1990). In that case, a concerned citizen telephoned the police department regarding a driver who was operating his vehicle erratically on a city street. In response to that report, the police dispatcher informed a deputy sheriff of a possible drunk driver and relayed a description of the vehicle and direction of travel. Id. at 320-21. The officer saw the vehicle, stopped the defendant and ultimately arrested him for driving while intoxicated. Id. at 321. In determining that the trial court erred in granting the defendant's motion to suppress, this court observed that "[t]he information [the deputy] received from the dispatcher provided [the deputy] with reasonable suspicion based upon specific and articulable facts that the Defendant may have been committing a crime. . . ." Id.

As in Springmier, the report received by the police officers from the citizen at McDonald's contained specific information regarding the vehicle that Bogetti was driving. The officers then were able to verify the correctness of this information in light of their immediate response to the report. While Officer Jester did not pause and question the concerned citizen in order to test or verify the accuracy of the report, the circumstances warranting an immediate response are readily apparent here. Moreover, Bogetti makes no claim that he was acquainted with the individual who reported the incident and there is no evidence to suggest that the citizen concocted a false report, told some "tall tale" of Bogetti's suspected intoxication or otherwise acted in a manner which might have placed the citizen's motive or credibility at issue. As a result, the facts presented here and the reasonable inferences arising from those facts would cause an ordinarily prudent person to believe that criminal activity had or was about to occur. The justifications for stopping Bogetti's truck were specific and articulable and we cannot say that Officer Jester's actions were made on a mere hunch. Moreover, the facts possessed by the Officers gave rise to the reasonable suspicion that the truck was being operated by an impaired driver and were sufficient to sustain the legality of the investigatory stop. See Smith, 638 N.E.2d at 1356

. Thus, the stop was reasonable and the trial court did not err in denying Bogetti's motion to suppress. See Lampkins, 682 N.E.2d at 1271-72; Springmier, 559 N.E.2d at 321.

We note, however, that where the circumstances permit, an officer should obtain the name, address and phone number of an informant. Here, in a McDonald's restaurant, the opportunity existed to not only obtain identification information but to inquire about the basis of the informant's determination of Bogetti's condition. Otherwise, the reasonableness of the officer's investigative stop loses its...

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