Burkes v. State

• Decision Date: 15 February 2006
• Docket Number: No. 48A02-0507-CR-608.,48A02-0507-CR-608.
• Parties: Jimmie D. BURKES, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

842 N.E.2d 426

Jimmie D. BURKES, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 48A02-0507-CR-608.

Court of Appeals of Indiana.

February 15, 2006.

David W. Stone, IV, Anderson, for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SULLIVAN, Judge.

Following a jury trial, Appellant, Jimmie D. Burkes, was convicted of one count of Dealing in Cocaine as a Class B felony,¹ one count of Possession of a Controlled Substance as a Class D felony,² one count of Possession of Marijuana as a Class A misdemeanor,³ and one count of Carrying a Handgun Without a License as a Class A misdemeanor.⁴ Upon appeal, Burkes claims that the trial court erred in admitting evidence which he claims was obtained through an investigatory stop which was not supported by reasonable suspicion.

We affirm.

The record reveals that on the night of October 15, 2004, Kevin Early, a detective with the Anderson Police Department assigned to the Madison County Drug Task Force, received a tip from an unknown person who informed him that there was a black male with braided hair wearing glasses and an all-black outfit who was at the home of Angela Williams. The anonymous tipster told Detective Early that the man at Williams's house was in possession of a handgun and marijuana and was also selling cocaine. Detective Early informed his partner, Detective Stephon Blackwell, also assigned to the Madison County Drug Task Force, about the tip. Both detectives were familiar with Williams, knowing her to be a crack cocaine user and addict. Detective Early was aware that Williams had an outstanding warrant for her arrest, which fact he confirmed with the police dispatch.⁵ Detectives Early and Blackwell decided to go to Williams's house to arrest her and further investigate the tip.

The detectives parked behind the house and approached the house from the east side. As they went up onto the front porch of the house, they saw through a window Williams and a man, later identified as Burkes, matching the description given by the tipster. Because of the tip that the man at Williams's house had a handgun, the detectives did not immediately attempt to enter the house but instead went to the back of the house and called uniformed officers to the scene for backup. When the backup officers arrived about ten minutes later, the police went back onto the porch and heard voices coming from inside the house. The police forced their way through the door to discover no one inside but a television set left on. Detective Early told the uniformed officers to leave while he and Detective Blackwell tried to fix the doorjamb which was apparently damaged by their forced entry into the house.

While attempting to fix the doorjamb, the detectives heard someone putting a key in the door lock.⁶ Detective Blackwell opened the door, and standing just outside on the front porch were Williams, Burkes, and another individual later identified as Andrew Edwards. Detectives Blackwell and Early, although not wearing police uniforms, did have police badges hanging around their necks. According to Williams, the detectives, with their weapons drawn, stated, "freeze, narcotics unit." Tr. at 248. Burkes, who was standing behind Williams, turned and began to run away. Detective Blackwell chased Burkes down and tackled him before he could leave the porch. Detective Blackwell asked Burkes why he had run away, and Burkes responded by saying that he had "a little weed on him." Tr. at 49, 153. As Detective Blackwell began to perform a pat-down on Burkes, Burkes informed him that he was also in possession of a handgun. Detective Blackwell then handcuffed Burkes and retrieved a .22 caliber handgun and a black film canister from Burkes's pocket. When Detective Blackwell looked inside the canister, he found a substance which later tested to be marijuana and pills which later proved to be alprazolam, i.e. Xanax.

While awaiting for uniformed officers to arrive to transport Burkes and Williams, who was arrested pursuant to the outstanding warrant, Williams told Detective Early that Burkes had cocaine inside the seam of the zipper and waistband of his pants. The detectives then searched Burkes more thoroughly and found in Burkes's pants a substance, which later tested as cocaine, in a plastic bag. Also found in Burkes's pants was a digital scale.

On October 21, 2004, the State charged Burkes as follows: Count I, dealing in cocaine as a Class B felony; Count II, possession of marijuana as a Class A misdemeanor; Count III, possession of a controlled substance as a Class D felony; and Count IV, carrying a handgun without a license as a Class C felony. On January 10, 2005, Burkes filed a motion to suppress the evidence seized from his person, and the trial court held a hearing on the motion on January 12, 2005. The trial court denied the motion at the end of the hearing. A jury trial was held on January 13 and 14, 2005. At trial, Burkes objected to the admission of the evidence seized from his person.

At the conclusion of the trial, the jury found Burkes guilty as charged as to Counts I, II, and III, but guilty as a Class A misdemeanor as to Count IV. On February 2, 2005, the trial court held a sentencing hearing and imposed the following sentences: upon Count I, twenty years; upon Count II, one year; on Count III, three years; and upon Count IV, one year. All the sentences were to run concurrently, for an aggregate sentence of twenty years. Burkes filed a notice of appeal on March 4, 2005.

Our standard of review of rulings on the admissibility of evidence is effectively the same whether the challenge is made by a pre-trial motion to suppress or by a trial objection. Ackerman v. State, 774 N.E.2d 970, 974 (Ind.Ct.App.2002), trans. denied. We look for substantial evidence of probative value to support the trial court's decision. Swanson v. State, 730 N.E.2d 205, 209 (Ind.Ct.App.2000), trans. denied. We consider the evidence most favorable to the court's decision and any uncontradicted evidence to the contrary. Id. See also Kelley v. State, 825 N.E.2d 420, 426 (Ind.Ct.App.2005) (when ruling upon the admissibility of evidence at trial, the court should consider evidence from a motion to suppress hearing which is favorable to the defendant and which has not been countered or contradicted by foundational evidence offered at trial).

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Francis v. State, 764 N.E.2d 641, 644 (Ind.Ct. App.2002). Police officers, however, may briefly detain a person for investigatory purposes if they have a reasonable suspicion that criminal activity may be afoot. Id. (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Reasonable suspicion exists where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising therefrom, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Id. In deciding whether there was reasonable suspicion for a stop, we look to the totality of the circumstances of a given case. Id. The reasonable suspicion inquiry is fact sensitive and is thus determined on a case-by-case basis. Id. We review a trial court's determination regarding reasonable suspicion de novo. Id.

Upon appeal, Burkes claims that the anonymous tip was insufficient to establish reasonable suspicion justifying an investigatory stop. We agree that an anonymous tip, standing alone, is insufficient to establish reasonable suspicion. As explained in Wells v. State, 772 N.E.2d 487, 490 (Ind.Ct.App.2002):

"The United States Supreme Court has held that an anonymous tip is not enough to support the reasonable suspicion necessary for a `Terry' stop. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). An anonymous tip is considered less reliable than a tip from a known informant. Id. Anonymous tips must be accompanied by specific indicia of reliability or must be corroborated by a police officer's own observation in order to pass constitutional muster. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Reasonable suspicion may be established by the totality of circumstances. Id. Thus, although an anonymous tip alone will be insufficient to establish reasonable suspicion, where significant aspects of the tip are corroborated by the observations of police, a subsequent investigatory stop is likely valid. Id."

In the present case, the anonymous tipster informed Detective Early that a black male with braided hair, wearing glasses and an all-black outfit, was at the home of Angela Williams, a known cocaine user, and was in possession of a handgun and marijuana and selling cocaine. From the porch of Williams's house the detectives saw through a window a black male with braided hair, wearing an all-black outfit and glasses. Thus, while this corroborated the tip in certain respects, the information corroborated was easily obtained by standing on Williams's porch and looking through the window. This corroboration consists of easily obtained facts and conditions, none of which predicted future behavior. In other words, the detectives corroborated only "innocent" portions of the tip. The corroborated information did not show that criminal activity had or was about to occur. See Washington v. State, 740 N.E.2d 1241, 1246 (Ind.Ct.App.2000) (stating that federal precedent requires that a tipster be able to predict future behavior, validating the tipster's knowledge as reliable in its assertion of illegality), trans. denied. Thus, at the time the officers observed Burkes through the window of Williams's home, they had no reasonable suspicion to support an investigatory stop of Burkes. But this is not the end of the story.

Williams had an outstanding warrant for her arrest. The detectives were justified in...