C.D.T. v. State

• Decision Date: 26 July 1995
• Docket Number: No. 71A04-9408-JV-320,71A04-9408-JV-320
• Citation: 653 N.E.2d 1041
• Parties: In the Matter of C.D.T., a Child Alleged to be a Delinquent Child, Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 1041

653 N.E.2d 1041

In the Matter of C.D.T., a Child Alleged to be a Delinquent Child, Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.

No. 71A04-9408-JV-320.

Court of Appeals of Indiana.

July 26, 1995.

Louis L. Hegyi, South Bend, for appellant.

Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Respondent-Appellant C.D.T., a juvenile, appeals from a juvenile adjudication finding him to be a delinquent child for possession of cocaine, a class D felony ¹ if committed by an adult.

We reverse and remand with instructions to vacate C.D.T.'s delinquency adjudication.

ISSUE

One issue is presented for our review: Whether the juvenile court properly denied C.D.T.'s motion to suppress evidence and any testimony regarding the evidence obtained in a warrantless search of his person.

FACTS AND PROCEDURAL HISTORY

On the evening of August 9, 1993, South Bend Police Officers Andrews and Jordan were dispatched to the vicinity of Lindsey and Scott Streets to investigate complaints of "open air" drug dealing. (R. 22). While heading southbound on Scott Street, Officer Andrews observed a large, white car stopped in the middle of the street and blocking traffic. Officer Andrews further observed C.D.T. bending into the passenger side of the car with his hands inside the passenger window. Standing behind C.D.T. was an unidentified male.

Officer Andrews became suspicious and pulled up behind the vehicle in his "semi-marked" squad car. ² When Officers Andrews and Jordan exited the squad car, the unidentified male fled, and Officer Jordan chased after him. Officer Andrews then directed C.D.T. to step away from the car window and place his hands on the trunk. Officer Andrews conducted a patdown weapons search of C.D.T.'s outer garments. The search revealed no weapons; however, near C.D.T.'s right front pants pocket, Officer Andrews felt a crumbled plastic bag. Based on his nine years of experience as a police officer, Officer Andrews immediately suspected drug-related activity, so he reached into C.D.T.'s pocket and removed the bag. Inside the plastic bag was a smaller zip-lock bag which Officer Andrews opened and examined. The smaller inside bag contained an off-white colored substance. This substance was later confirmed to be cocaine.

A petition alleging delinquency was filed by the State alleging that C.D.T. committed an act which would be a crime if committed by an adult, to-wit: possession of cocaine, a class D felony. Following the hearing, C.D.T. was adjudged a delinquent and placed on probation for 30 days.

Prior to the delinquency hearing, C.D.T. filed a motion to suppress evidence. Following a suppression hearing, the trial court denied the motion. At trial, Officer Andrews testified as to the evidence he obtained during the search. C.D.T. objected, reiterating his prior arguments and the trial court overruled the objection. Therefore, the issue was properly preserved for our review. C.D.T. appeals.

DISCUSSION AND DECISION

C.D.T. contends that the trial testimony regarding the fruits of the illegal search was improperly admitted. Specifically, C.D.T. argues that Officer Andrews' search exceeded the scope of a lawful Terry ³ stop and frisk.

The trial court has broad discretion in ruling on the admissibility of evidence. We will not disturb its decision absent a showing of abuse of that discretion. Moore v. State (1994), Ind.App., 637 N.E.2d 816, 818, trans. denied, cert. denied in Moore v. Indiana (1995), --- U.S. ----, 115 S.Ct. 1132, 130 L.Ed.2d 1093.

The juvenile code provides that "[i]n cases in which a child is alleged to be a delinquent child, the procedures governing criminal trials apply...." I.C. 31-6-7-1(a) (1988). C.D.T. was adjudicated a delinquent pursuant to the Code which defines a delinquent child as "[one] who commits an act that would be an offense if committed by an adult...." I.C. 31-6-4-1(a)(1) (1993). Having established that the adult criminal procedure rules apply to delinquency cases, we look to search and seizure law.

Our State Constitutional provision against unreasonable search and seizure provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Article I, section 11, Ind. Const. The Indiana provision is virtually identical to the Fourth Amendment to the United States Constitution. Generally, a judicially issued search warrant is a condition precedent to a lawful search. Searches and seizures conducted outside of the judicial process are per se unreasonable under the Fourth Amendment. However, this general rule is subject to a few well-delineated exceptions. Thompson v. Louisiana (1984), 469 U.S. 17, 19-20, 105 S.Ct. 409, 410-11, 83 L.Ed.2d 246; Johnson v. State (1993), Ind.App., 617 N.E.2d 559, 565. The burden of proof is on the State to prove that the warrantless search was conducted within the confines of one of the exceptions to the warrant requirement. Chimel v. California (1969), 395 U.S. 752, 774, 89 S.Ct. 2034, 2046, 23 L.Ed.2d 685; Moore, 637 N.E.2d at 818; Rabadi v. State (1989), Ind., 541 N.E.2d 271, 274. Here, the State seeks refuge under the Terry investigatory stop and frisk exception to the warrant requirement.

I. Terry

Stop and Frisk Exception

A. The "Stop"

It is undisputed that Officer Andrews was justified in his initial "investigatory stop" of C.D.T. One exception to the warrant requirement is an investigatory stop whereby a police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity "may be afoot," even if the officer lacks probable cause. Terry, 392 U.S. at 30, 88 S.Ct. at 1884; Johnson, 617 N.E.2d at 565. The Terry standard is intended to ameliorate the harshness of the strict probable cause requirement and permit police officers to stop on something less than probable cause. However, we note that investigative stops remain a relatively narrow exception to the warrant requirement and cannot be used to provide a haven for unjustified stops. Under these facts, the officers were justified in stopping C.D.T. to determine if he was engaged in criminal activity.

B. The "Frisk"

Having decided that the initial stop of C.D.T. was proper, we next consider whether the subsequent search was permissible. The general exclusionary rule states as follows:

Evidence seized illegally or obtained as a result of an illegal seizure by a government agent is not directly admissible in a criminal or quasi-criminal proceeding against a person whose expectation of privacy was violated by the illegal seizure.

Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

Under the Terry stop and frisk analysis, a police officer is permitted to make a Terry stop without a warrant and without probable cause. Because the suspects may be armed and dangerous, the police officer is entitled for his own protection and for the protection of others in the area, if he has a reasonable fear of danger, to conduct a carefully limited search of the outer clothing of the suspect in an attempt to discover weapons which might be used to assault him. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. Such a search is reasonable under the Fourth Amendment and any weapons seized may properly be introduced into evidence against the accused. Id. at 29-30, 88 S.Ct. at 1884-85. It is undisputed that Officer Andrews was justified in feeling endangered by the situation, so as to permit the frisk.

However, the Terry frisk is a "patdown" of outer garments for concealed weapons strictly. If the officer finds something that feels like a weapon, then he can reach inside the clothing and check to see if it is a weapon. Id. The purpose of the Terry search is not to discover evidence of crime, but rather to allow the officer to pursue his investigation without fear of violence. The Terry search should be confined to its protective purpose. Id. at 27, 88 S.Ct. at 1883. We are asked to consider whether Officer Andrews' search of C.D.T. exceeded the scope of a lawful Terry frisk. The State contends that the so-called "plain feel" doctrine is controlling.

II. The "Plain Feel" Doctrine

The "plain feel" doctrine was articulated by the United States Supreme Court in Minnesota v. Dickerson (1993), 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334, wherein the Court determined that police officers may seize non-threatening contraband detected during a protective patdown search of the sort permitted by Terry, so long as the search stays within the confines of a valid Terry search. Dickerson, 508 U.S. at ----, 113 S.Ct. at 2136.

In Dickerson, after making a valid Terry stop and conducting a valid patdown search which revealed no weapons, the officer felt a small lump in the defendant's jacket pocket. Upon further examining it with his fingers, the officer believed it to be crack cocaine so he reached into the defendant's pocket and seized a small bag of cocaine. The Minnesota Supreme Court found that the officer determined that the lump was contraband only after " 'squeezing, sliding and otherwise manipulating the contents of the defendant's pocket'--a pocket which the officer already knew contained no weapon." Id. at ----, 113 S.Ct. at 2138.

The U.S. Supreme Court affirmed the Minnesota Supreme Court's holding that the seizure was unconstitutional. Id. Specifically, the Court said that

[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the...