Carroll v. State, 26A04-0408-CR-446.

• Decision Date: 28 February 2005
• Docket Number: No. 26A04-0408-CR-446.,26A04-0408-CR-446.
• Parties: Travis J. CARROLL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

822 N.E.2d 1083

Travis J. CARROLL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 26A04-0408-CR-446.

Court of Appeals of Indiana.

February 28, 2005.

Anna Devoy Clutter, Princeton, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Travis J. Carroll brings an interlocutory appeal of the trial court's denial of his motion to suppress. He presents the following restated issue for review: Was the warrantless search of his person proper when he was being detained while officers executed a search warrant on his residence?

We affirm.

Carroll had lived with Jody Miller in an apartment in Princeton, Indiana since April 2004. The apartment was located approximately 450 feet from the Princeton Community Middle School. At the time, Carroll was under investigation by the Princeton Police Department (PPD) for suspicion of illegal drug activity. By June 9, 2004, investigators learned that Carroll had supplied methamphetamine to another person. On that day, Officer Mike Hurt of the PPD obtained a search warrant to search Miller and Carroll's apartment. When police arrived at the residence, Carroll's vehicle was not there, so they waited nearby for Carroll and Miller to return. When Carroll arrived at approximately 10:25 p.m. in what police recognized as his car, police confronted him and his passengers, Miller and Jacob McKendry, who was identified as Carroll's brother, while they were still in the apartment parking lot. The officers identified themselves and informed Carroll and Miller that they had a warrant to search the apartment. Carroll, who is "a pretty big guy," Transcript at 5, became "very belligerent, argumentative, very jerky in his motions." Id. Carroll was sweaty, licking his lips, and his eyes were dilated. After observing Carroll's behavior for a few minutes, Officer Hurt formed the opinion that Carroll was under the influence of methamphetamine. This, in turn, caused Officer Hurt to fear for his safety, so he placed Carroll in handcuffs and patted him down for weapons. After reading Carroll, Miller, and McKendry their advisement of Miranda rights, the officer told Carroll they would remove the handcuffs when he calmed down. Officer moved Carroll, Miller, and McKendry inside the apartment and commenced the search.

Miller accompanied several police officers into the kitchen and soon admitted there was marijuana located under one of the armrests of the couch in the living room. Police checked that location and found a bag containing what tests later revealed was marijuana. By that time, Carroll had calmed down and police had removed his handcuffs. After the marijuana was found, Sergeant Hurt spoke with Carroll. PPD Officer David A. Knowles witnessed the conversation and described it as follows:

At the time we had searched and Sergeant Hurt looked at the defendant and told him, he says, "I know that you — you've got the dope and you probably have it down your pants." And at that time he kind of lowered his head and give [sic] the indication like he was correct in what he was saying. And he was asked to stand up. He said, "I'll get it." and [sic] he walked over to the — by the bathroom and raised up his shirt and at that time Officer Hurt could see the plastic bag and he pulled it out from his beltline.

Id. at 19. The plastic bag that was pulled from Carroll's pants held several smaller baggies containing "an off white rock like substance, powder and rock like." Id. The substance in the plastic bag later tested positive for methamphetamine. Carroll informed Officer Knowles that he had just obtained the substance that evening from another individual in town, and that he was selling it for $50 for a half-gram and $25 for half that quantity. He also informed the officer he had already sold some of it earlier that evening.

On June 10, 2004, a criminal information was filed charging Carroll with dealing methamphetamine within 1000 feet of a school. On July 19, 2004, Carroll filed a motion to suppress, challenging the legality of the search of his person. The trial court denied the motion following a hearing. At Carroll's request, the trial court certified the order for interlocutory appeal. We accepted jurisdiction of the appeal on October 12, 2004, pursuant to Ind. Appellate Rule 14(B). Our standard for reviewing the denial of a motion to suppress is well settled. We review such rulings in a manner similar to other sufficiency matters. Marlowe v. State, 786 N.E.2d 751 (Ind.Ct.App.2003). We do not reweigh the evidence, and we consider conflicting evidence most favorable to the ruling. Id. Unlike typical sufficiency reviews, however, we will consider not only the evidence favorable to the judgment, but also the uncontested evidence favorable to the defendant. Id.

Carroll contends the State failed to demonstrate that one of the exceptions to the warrant requirement applies to the warrantless search of his person. In essence, Carroll argues that police officers illegally detained him during the search of the apartment, and then "bootstrapped" the detention and search of his person to the legal warrant used to search his apartment. It is undisputed that the legality of the search hinges on the legality of the detention Both parties agree this case involves a question of first impression in Indiana, viz., "whether the officers executing a search warrant [have] the authority to require [a person] to re-enter the house and to remain there while they conducted their search[.]" Brief of Appellee at 4. The State adds that although no Indiana court has yet decided the question, the United States Supreme Court has determined in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), that such detentions are permissible under the Fourth Amendment.

The facts in Summers were that the defendant was descending the front steps of his home and preparing to leave when police arrived with a warrant to search his house. The defendant attempted to leave, but police prevented him from doing so. When officers executed the warrant, they discovered a bag containing what appeared to be illegal narcotics. The defendant was placed under arrest and a custodial search of his person revealed a quantity of what appeared to be heroin in his pocket. That heroin formed the basis of a charge of possession of narcotics. The defendant sought to suppress that evidence on the ground that it was the fruit of an illegal search. That contention, in turn, was based upon the argument that his detention while the house was being searched was illegal under the Fourth Amendment. The Michigan Supreme Court agreed with that contention and reversed the conviction. The Michigan Attorney General appealed that decision to the United States Supreme Court, which reversed the Michigan high court's ruling.

The Court concluded in Summers that the legality of the search itself depended entirely upon the legality of the detention. It noted that at the time of the arrest, the officers had developed probable cause to search his person by virtue of the discovery of narcotics in his house. But, were authorities empowered to detain the defendant during the search in the first place? The Court concluded they were. Noting that the detention of an individual under those circumstances constitutes a seizure within the meaning of Fourth Amendment jurisprudence, the court observed the general rule is that a seizure must be supported by probable cause. The court then discussed exceptions to the general rule, specifically a line of cases involving seizures that, although "admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity." Id. at 699, 101 S.Ct. 2587. The court proceeded to an examination of whether the general rule applies in this type of case, or whether an exception should be created. In so doing, the court examined two criteria: (1) the character of the official intrusion, as well as (2) its justification. That discussion, reproduced here, is relevant in the instant case. The court first discussed the nature of the intrusion:

Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondents house for contraband. A neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself. Indeed, we may safely assume that most citizens — unless they intend flight to avoid arrest — would elect to remain in order to observe the search of their possessions. Furthermore, the type of detention imposed here is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search and not through the detention. Moreover, because the detention in this case was in respondents own residence, it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with

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