Callahan v. State
| Decision Date | 17 November 1999 |
| Docket Number | No. 82A01-9904-CR-128.,82A01-9904-CR-128. |
| Citation | 719 N.E.2d 430 |
| Parties | Charles E. CALLAHAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
David M. Shaw, Evansville, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Michael McLaughlin, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Charles Callahan was found guilty by a jury of dealing in marijuana in excess of ten pounds, a Class C felony. He now appeals his conviction. We affirm.
Callahan raises two issues for our review, which we restate as follows:
1. Whether the trial court properly denied his motion to suppress evidence discovered during a search of his automobile by a drug interdiction officer who had stopped him for a minor traffic offense; and
2. Whether the trial court properly allowed him to proceed pro se at his trial.
The facts most favorable to the verdict are that on April 15, 1997, Evansville City Police Officers Hahn and Pierce stopped Callahan because the vehicle he was driving had improperly tinted windows and a Texas license plate which appeared to have expired in 1994. Officer Hahn issued a "warning" ticket to Callahan for the window violation. At that time, Officer Hahn testified, Callahan was free to go.
Officer Hahn, however, asked Callahan if he would like to step out of the car and stretch his legs because he appeared to have been driving for some time. Callahan exited the vehicle and he and Officer Hahn engaged in conversation, during the course of which Officer Hahn informed Callahan that he was a drug interdiction officer traveling with a canine unit. Officer Hahn testified that he told Callahan he did not have to cooperate, and asked if he could look inside the vehicle for weapons and narcotics. Callahan said, "You can search the inside of my car as much as you like." R. 76. In searching the inside of the vehicle, Officer Hahn discovered a film canister containing what appeared to be marijuana. Officer Hahn then retrieved his canine unit. The dog alerted to the scent of narcotics at the rear of the vehicle. Officer Hahn asked Callahan if he could look at the spare tire carrier under the rear of the car, near where the dog had alerted. Callahan agreed. When Officer Hahn removed the carrier, he found eight bricks of what was ultimately determined to be over thirteen pounds of marijuana. Callahan was then placed under arrest.
Callahan was charged with dealing in marijuana as a Class C felony in violation of Indiana Code section 35-48-4-10. John Clouse and John Brinson were retained by Callahan to represent him, but he later discharged them. Dennis Brinkmeyer then entered his appearance on behalf of Callahan.
Brinkmeyer filed a motion to suppress on Callahan's behalf, seeking to suppress the fruits of the vehicle search, alleging that the search was pretextual, was conducted without probable cause, and was non-consensual. Officer Hahn testified at the hearing that after he gave Callahan a warning ticket, he continued to talk with Callahan and obtained his consent to search the car. Upon finding a small amount of marijuana in the car, Officer Hahn obtained Callahan's consent to getting his dog out to "search" the vehicle. When the dog "alerted" near the rear of the car, Officer Hahn obtained Callahan's permission to look under the car, where he found in excess of thirteen pounds of marijuana hidden in the spare tire. After a hearing, the trial court denied the motion.
A jury trial on this charge was scheduled for May 18, 1998. On the morning the trial was to begin, Callahan requested leave to discharge Brinkmeyer and represent himself. The trial court conducted an inquiry and ultimately determined that the request was untimely. The trial proceeded with Brinkmeyer representing Callahan. However, because the jury was allowed to view an exhibit which had not been admitted into evidence, a mistrial was declared.
After the mistrial was declared, Brinkmeyer was allowed to withdraw his appearance, and David Shaw was appointed to represent Callahan over Callahan's objection. Callahan's trial was reset for August 31, 1998. On July 31, 1998, Callahan appeared in court and again requested that he be allowed to proceed without counsel. Shaw was then relieved of his duties as appointed counsel, but was asked to attend the trial and serve as stand-by counsel. The August 31, 1998, trial ended with a hung jury.
Callahan's third trial, at which he represented himself with Shaw as stand-by counsel, began November 16, 1998, and ended with a guilty verdict. Callahan was sentenced to four years at the Indiana Department of Correction. Shaw has prosecuted this appeal on Callahan's behalf.
Prior to trial, Callahan filed a motion to suppress evidence seized as a result of the search of his car, specifically, the thirteen pounds of marijuana found in the spare tire carrier.2 Callahan contends that the trial court's denial of this motion was in error.
We initially note our standard of review when reviewing a trial court's ruling on the validity of a search and seizure: we consider the evidence most favorable to the ruling and any uncontradicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling. Melton v. State, 705 N.E.2d 564, 566 (Ind.Ct.App.1999). If the evidence is conflicting, we consider only the evidence favorable to the ruling and will affirm if the ruling is supported by substantial evidence of probative value. Id.
Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. In cases involving a warrantless search, the State bears the burden of proving an exception to the warrant requirement. State v. Farber, 677 N.E.2d 1111, 1116 (Ind.Ct.App.1997), trans. denied. A valid consent to search is an exception to the warrant requirement. Id. The theory underlying this exception is that, when an individual gives the State permission to search either his person or property, the governmental intrusion is presumably reasonable. See Jones v. State, 655 N.E.2d 49, 54 (Ind.1995).
During the course of a lawful stop to investigate a traffic violation, Callahan consented to the search of his car. Callahan concedes that the initial stop was lawful and that his subsequent consent to the search was objectively voluntary; however, he takes issue with the practice of drug interdiction officers watching for minor traffic offenses with the actual motive of uncovering a drug or weapons violation during the course of the traffic stop. Accordingly, he contends that his consent was not subjectively voluntary and that his Article I, section 11 privacy right under the Indiana Constitution was infringed by the officer's request that he give consent without either a specific advisement of the right to refuse consent or independent reasonable suspicion of some additional illegal activity.
When the State seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was, in fact, freely and voluntarily given. Thurman v. State, 602 N.E.2d 548, 552 (Ind.Ct.App.1992), trans. denied. The voluntariness of a consent to search is a question of fact to be determined from the totality of the circumstances. Id. A consent to search is valid except where it is procured by fraud, duress, fear, intimidation, or where it is merely a submission to the supremacy of the law. Id. To constitute a valid waiver of Fourth Amendment rights, a consent must be the intelligent relinquishment of a known right or privilege. Id. (quoting United States v. Payne, 429 F.2d 169 (9th Cir.1970)). Such a waiver cannot be conclusively presumed from a verbal expression of assent unless the court determines, from the totality of the circumstances, that the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld. Id. Knowledge of the right to refuse a search is one factor which indicates voluntariness. Id.
The "totality of the circumstances" from which the voluntariness of a detainee's consent is to be determined includes, but is not limited to, the following considerations: (1) whether the defendant was advised of his Miranda rights prior to the request to search; (2) the defendant's degree of education and intelligence; (3) whether the defendant was advised of his right not to consent; (4) whether the detainee has previous encounters with law enforcement; (5) whether the officer made any express or implied claims of authority to search without consent; (6) whether the officer was engaged in any illegal action prior to the request; (7) whether the defendant was cooperative previously; and (8) whether the officer was deceptive as to his true identity or the purpose of the search. State v. Scheibelhut, 673 N.E.2d 821, 824 (Ind.Ct.App.1996).
The evidence most favorable to the trial court's ruling indicates that Officer Hahn did not place Callahan under arrest or restrain his liberty in any way until after he discovered the marijuana in the spare tire carrier. R. 94. Accordingly, Callahan was not advised of his Miranda rights prior to the search. R. 74-75. Officer Hahn observed that Callahan seemed to be a person of normal intelligence, and did not appear to be under the influence of drugs or alcohol. R. 86-87. After Officer Hahn gave Callahan a warning ticket for the tinted windows violation, Hahn told him he was free to go. R. 85. Callahan did not immediately leave, however, and during the ensuing conversation, Hahn told Callahan that he wanted to look inside the vehicle. R. 74. He told Callahan that he did not have to cooperate, but stated that Callahan was "100 percent...
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