Bovie v. State
| Decision Date | 17 January 2002 |
| Docket Number | No. 48A04-0105-CR-206.,48A04-0105-CR-206. |
| Citation | 760 N.E.2d 1195 |
| Parties | Ronald L. BOVIE, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Christopher A. Cage, Hulse Lacey Hardacre Austin & Shine, P.C., Anderson, IN, Attorney for Appellant.
Ronald L. Bovie appeals the trial court's revocation of his probation. The court found that Bovie violated his probation by Resisting Law Enforcement,1 a Class A misdemeanor, and by possessing paraphernalia. He presents three issues for our review, only two which we will address:
(1) whether his constitutional rights were violated by an illegal investigatory stop, and
(2) whether he was provided notice of the grounds upon which the trial court relied in revoking his probation.
We reverse. We first note that the State declined to file an appellee's brief. The obligation of controverting arguments presented by the appellant properly remains with the State. Blunt-Keene v. State, 708 N.E.2d 17, 19 (Ind.Ct.App.1999). When the appellee does not submit a brief, the appellant may prevail by making a prima facie case of error—an error at first sight or appearance. Id. However, we are still obligated to correctly apply the law to the facts of the record to determine if reversal is required. Id.
The record reveals that in 1996, Bovie received a ten-year sentence following a guilty plea for the crime of Dealing in Cocaine. He served one year of the ten-year sentence on in-home detention and the remaining nine years were suspended. However, Bovie was placed on probation for the nine years which made up the remainder of the sentence.
On December 5, 2000, Detective Kevin Early of the Anderson Police Department, and a member of the Madison County Drug Task Force, was observing a house, based upon information he had received that drugs were sold and used at the location. At approximately 11:10 p.m., Detective Early witnessed two men walk from the residence, get into a car, and leave. Detective Early, in an unmarked vehicle, followed the car which Bovie was driving. Detective Early noticed a headlight was out on Bovie's car so he called for a uniformed officer in a marked car to make a traffic stop. Before the marked car arrived, Bovie pulled into a gas station and parked. Detective Early approached the vehicle, showing his badge, in order to stop Bovie. The passenger, a known drug user and dealer, told Bovie to "go" as Detective Early approached. Transcript at 53. As Bovie "took off," a marked car pulled in behind him with lights flashing. Transcript at 57. Bovie pulled forward to the entrance to the street before stopping. Bovie was then approached by Detective Early and a uniformed officer. Bovie was arrested, and a subsequent search of his vehicle produced a burnt piece of wire mesh under the passenger seat, which tested positive for cocaine.
Upon appeal, Bovie contends that his Fourth Amendment right to be free from unreasonable searches and seizures was violated by Detective Early. He argues that Detective Early did not have reasonable suspicion to stop him in relation to any drug activity based upon the informant's tip. He also contends that he could not be stopped for a traffic violation because of the restriction of Ind.Code § 9-30-2-2 (Burns Code Ed. Repl.1997).
In a probation revocation setting, the State was required to show by a preponderance of the evidence that Bovie knowingly or intentionally fled from Detective Early after Early had, by visible or audible means, identified himself and ordered Bovie to stop. I.C. § 35-44-3-3. However, before an individual may actually resist law enforcement by fleeing, the individual must have a duty to stop. This duty to stop arises in two of the three levels of police investigation. In Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct. App.2000),reh'g denied, trans. denied, this court noted that the three levels of police investigation are an arrest or detention based upon probable cause, an investigatory stop based upon a reasonable and articulable suspicion, and a consensual encounter in which no Fourth Amendment right is implicated. In this case, we are presented with a situation in which Detective Early was attempting to either make an investigatory stop or to enter into a consensual encounter with Bovie.
In a consensual encounter, the individual remains free to disregard the police officer and to walk away. Id. at 664. Only when an individual no longer remains free to leave does an investigatory stop begin. Luster v. State, 578 N.E.2d 740, 744 (Ind.Ct.App.1991). It follows that Bovie could be found guilty of resisting law enforcement only if he was the subject of an otherwise legal stop. An investigatory stop may be made when a police officer can point to reasonable and articulable facts, and inferences taken from those facts, which would warrant an intrusion upon the constitutionally protected rights of an individual. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Green v. State, 719 N.E.2d 426, 428 (Ind. Ct.App.1999). An investigatory stop is proper if the facts known to the police officer at the time of the stop are such that a man of reasonable caution would believe that the action taken by the officer was appropriate. Green, 719 N.E.2d at 428. Reasonable suspicion is determined on a case-by-case basis. Id.
In the case before us, outside of the headlight violation, the only basis for the stop was that Detective Early witnessed Bovie and his passenger, a known drug user and seller, leave a "known drug house," proceed to a gas station, and stop their vehicle. These facts alone do not rise to the level of the reasonable and articulable suspicion required in order to make an investigatory stop. See Green, 719 N.E.2d at 430
(); see also Johnson v. State, 659 N.E.2d 116 (Ind.1995) (). While Detective Early may have had a "hunch" that something was amiss, a "hunch" is not sufficient to authorize an investigatory stop. Stalling v. State, 713 N.E.2d 922, 925 (Ind.Ct.App.1999).
While we can imagine situations in which Detective Early would have had reasonable and articulable suspicion to make an investigatory stop, we do not see any in the record. Without a reasonable and articulable suspicion to uphold an investigatory stop based upon drug activity, the contact between Bovie and Detective Early was either a consensual encounter in which Bovie was free to leave without any legal repercussions or must be grounded in statutory authority to make a stop.
Indiana Code § 9-30-2-2 provides that in order for an officer to make an arrest or issue a traffic information or summons for a violation of a law regulating operation of a motor vehicle, the officer must be either wearing a uniform and badge, or driving a clearly marked police vehicle. The facts are undisputed that Detective Early only displayed his badge, and that he was not wearing a uniform or driving a marked vehicle. This court has rejected several attempts by the State to seek convictions based upon police officers acting in contravention of this statute. See Miller v. State, 641 N.E.2d 64 (Ind.Ct.App. 1994),
trans. denied; State v. Caplinger, 616 N.E.2d 793 (Ind.Ct.App.1993). But see James v. State, 622 N.E.2d 1303 (Ind. Ct.App.1993) (). Implicit in the language of I.C. § 9-30-2-2 is the purpose behind the statute— to protect drivers from police impersonators and to protect officers from resistance should they not be recognized...
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...The motion was denied, and the evidence was admitted at trial. Initial Stop and Arrest As this court noted in Bovie v. State, 760 N.E.2d 1195, 1197 (Ind.Ct.App. 2002), the three levels of police investigation are an arrest or detention based upon probable cause, an investigatory stop based ......
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