Castle v. State, 3-1084A295

• Decision Date: 16 April 1985
• Docket Number: No. 3-1084A295,3-1084A295
• Citation: 476 N.E.2d 522
• Parties: Michael Bernard CASTLE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 522

476 N.E.2d 522

Michael Bernard CASTLE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-1084A295.

Court of Appeals of Indiana,

Third District.

April 16, 1985.

John F. Surbeck, Jr., Deputy Public Defender, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Michael Bernard Castle appeals the judgments entered against him for possession of marijuana, IND.CODE Sec. 35-48-4-11, and carrying a handgun without a license, IND.CODE Sec. 35-23-4.1-3. The action was tried before a jury.

The issues presented to this Court for review are as follows:

(1) whether the trial court erred in admitting into evidence items seized by police following a stop for violation of a traffic ordinance;

(2) whether the necessary chain of custody was proved by the State to justify the admission of three bags of marijuana; and

(3) whether the trial court erred in modifying its judgment to reflect a Class A misdemeanor.

On April 12, 1983, Officer Steve Holzworth of the Fort Wayne Police Department observed two men, suspected of armed robbery, traveling in a beige Cadillac, bearing Michigan license plates. Holzworth followed the vehicle, attracting the attention of the occupants. The driver made an illegal right turn and increased his speed slightly. Holzworth called for assistance and followed the vehicle approximately eight miles before bringing it to a stop. Holzworth requested identification from the driver, Alexander Sharp, and instructed the passenger, Castle, to keep his hands on the dashboard of the vehicle. When Castle failed to do as instructed, Holzworth moved to the rear of the vehicle to await the arrival of additional officers.

Fort Wayne police officer, Gary Grant, testified that upon his arrival at the scene, he saw that Castle had his fingertips inside his jacket. Grant ordered Castle to put his hands in plain sight. The two were asked to get out of the vehicle and both were searched. The search of Castle revealed a .38 caliber, Charter Arms revolver and three bags of a substance later identified as marijuana. Sharp and Castle were arrested and taken into custody. The handgun and marijuana were taken by Officer Grant to the Fort Wayne police station, marked for identification purposes, and locked in the department's property room.

Castle asserts that the items taken from him at the scene were improperly admitted into evidence at his trial as they were obtained in an illegal search. Castle does not deny that Officer Holzworth had the right and duty to stop their vehicle after Sharp made an illegal turn. Indeed, police officers have a duty to stop and investigate when they perceive a situation which poses a possible traffic hazard to motor vehicle traffic. Harts v. State (1982), Ind.App., 441 N.E.2d 714. Police may stop a vehicle for erratic driving alone. Johnson v. State (1983), Ind.App., 450 N.E.2d 123.

Castle argues instead that violation of a traffic infraction does not give police probable cause to arrest or search the vehicle's occupants. It is true that not every investigative stop will justify an incidental search. Collett v. State (1975), 167 Ind.App. 185, 338 N.E.2d 286. It is clear, however, that once a vehicle has been stopped for investigative purposes, an officer may conduct a search for weapons, without first obtaining a search warrant, if the officer reasonably believes that he or others may be in danger. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

This Court in Collett v. State, supra, citing Terry states:

"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.... And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." (Citations omitted.) 167 Ind.App. at 193, 338 N.E.2d at 291.

Officer Holzworth testified at the hearing on Castle's motion to suppress, that he had been notified earlier in the day to watch for two men, suspected of armed robbery, driving a large vehicle, possibly a Cadillac or Lincoln Continental, with Michigan license plates. When Holzworth turned his vehicle to follow the vehicle matching the description given him earlier in the day, the driver made an illegal turn and sped up slightly. Holzworth testified at the suppression hearing that he believed the two were trying to "ditch" him. After the vehicle was stopped, Castle refused to keep his hands on the dashboard as instructed, and Officer Grant observed Castle's fingers inside his jacket "fumbling with something." The officers could reasonably have believed that Sharp and Castle were the suspects being sought for armed robbery and the actions of the two men, before and after the stop, reinforced that suspicion. The officers' subsequent search for weapons was fully warranted and the gun and marijuana discovered during the search were properly admitted at trial.

Castle argues the State failed to prove the chain of custody required for admission of the marijuana at trial. Officer Grant testified that he searched Castle, finding two bags of a substance, later identified as marijuana, in Castle's sock and another in the pocket of his jacket. After Castle's arrest, Grant transported the marijuana to the Fort Wayne police station, marked it for...