Clarke v. State

• Decision Date: 26 June 2007
• Docket Number: No. 49S05-0612-CR-496.,49S05-0612-CR-496.
• Citation: 868 N.E.2d 1114
• Parties: Mark CLARKE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

868 N.E.2d 1114

Mark CLARKE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S05-0612-CR-496.

Supreme Court of Indiana.

June 26, 2007.

Michael E. Caudill, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0508-CR-435

BOEHM, J.

We hold that a police officer who neither explicitly nor implicitly communicates that a person is not free to go about his or her business may ask questions of the person to investigate allegations of criminal activity without implicating the Fourth Amendment or requiring the advisement of rights under the Indiana Constitution.

Facts and Procedural Background

On September 16, 2004, Officer Tanya Eastwood of the Indianapolis Police Department was dispatched to 3736 North Meridian Street to investigate an anonymous report that "there was a black car with nice rims in front of the apartment building selling drugs." She arrived at the scene and found a black 1995 Nissan Maxima parked in front of the apartment building with two occupants. Eastwood activated her flashers and placed her spotlight so she could see Mark Clarke in the driver seat and Joshua Taylor in the back seat on the passenger side. When Eastwood approached the driver's side on foot, Clarke had his license and registration "hanging out the window."

Eastwood asked Clarke what he and Taylor were doing and how long they had been parked in front of the apartment. Clarke responded that they had been there about five minutes and that "he was dropping a passenger off at an apartment building down the street" approximately one-half block from their current location. Eastwood obtained Taylor's identification and returned to her car to run driver's license and warrant checks on both Clarke and Taylor. After discovering no outstanding warrants for either, Eastwood returned the information. She then told Clarke that she had received a "report of narcotics activity" and asked Clarke if there was anything illegal in the car. When Clarke said "there was not," Eastwood asked Clarke "if he cared if [she] searched his car," and Clarke responded, "I don't have anything in the car." According to Eastwood, she then asked Clarke "Do you mind if I search it?" and Clarke responded, "No," and "voluntarily opened his door and got out of the car on his own." Eastwood testified that Clarke left his car door open and that his body language indicated that she had permission to search the car. By this time, a second officer, Townsend, had arrived and "watched" Clarke and Taylor on the sidewalk while Eastwood conducted the search. Neither Clarke nor Taylor was physically restrained.

Eastwood found "a large amount of money, divided into several different bundles, divided by denominations" in the center console of the Nissan. She then requested a narcotics canine and was told that Park Ranger K9-1 Officer Phillip Greene would be at the scene within two minutes. In the meantime, Eastwood continued searching the car and "immediately" located a sandwich baggie containing marijuana. Eastwood asked Clarke why he consented to the search if it contained marijuana, and Clarke responded that he "forgot it was in there." Eastwood then placed Clarke under arrest.

Officer Greene and his dog arrived at the scene, and the dog promptly indicated that narcotics were in the vehicle. Officer Greene then located a partially smoked marijuana cigarette and a baggie containing five individually wrapped baggies that the officers suspected contained over three grams of cocaine. Eastwood then Mirandized Clarke and Taylor.

After Taylor denied any knowledge of the drugs in the car or any involvement in drug dealing, Eastwood asked Clarke if there was anything else in the car. Clarke said "no," and Eastwood asked him if he wanted to talk with a detective "to help himself out." Clarke responded, "No. It's all over for me now anyway." While waiting for a police wagon, Clarke attempted to flee and was apprehended a few blocks away after a chase on foot.

The State charged Clarke with dealing in cocaine, possession of cocaine, misdemeanor possession of marijuana, and misdemeanor resisting law enforcement. Clarke moved to suppress the evidence seized from his vehicle. Clarke contended that the seizure violated his rights under the Fourth Amendment and Article I, section 11 of the Indiana Constitution. Both constitutions protect citizens against unreasonable searches and seizures of their "effects." Automobiles are protected effects under both provisions. Brown v. State, 653 N.E.2d 77, 79 (Ind.1995). Clarke argued that Eastwood made an investigatory stop without reasonable suspicion in violation of the Fourth Amendment and that he was not advised of his rights before being asked to consent to the search of his car as the Indiana Constitution requires. The State responded that Clarke voluntarily consented to the search of his car and that he was not in police custody, so the seizure complied with both constitutions. After a hearing, the trial court found that there was no stop because the car was parked when Eastwood arrived and that consent was given to search the car. The trial court therefore denied the motion to suppress but granted Clarke's request to certify the order for interlocutory appeal. The Court of Appeals reversed, concluding the search violated Clarke's rights under the Fourth Amendment. Clarke v. State, 854 N.E.2d 423, 432 (Ind.Ct.App.2006). We granted transfer. Clarke v. State, 860 N.E.2d 599 (Ind.2006).

I. The Fourth Amendment Claim

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) established that a law enforcement officer must have reasonable suspicion of criminal conduct in order to justify a traffic stop, which is a "seizure" for purposes of the Fourth Amendment. An anonymous tip containing no information beyond that available to the general public does not afford reasonable suspicion. Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Jaggers v. State, 687 N.E.2d 180, 182-83 (Ind.1997). Eastwood responded to an anonymous tip alleging narcotics activity but reporting no facts beyond a description of the vehicle. The issue, therefore, is whether a seizure occurred before Officer Eastwood gained additional information sufficient to establish reasonable suspicion. As Terry explained, "not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." 392 U.S. at 20 n. 16, 88 S.Ct. 1868. It is clear that "mere police questioning does not constitute a seizure." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Terry, 392 U.S. at 19, 88 S.Ct. 1868; Sellmer v. State, 842 N.E.2d 358, 362 (Ind. 2006). The Fourth Amendment is not triggered unless an encounter between a law enforcement officer and a citizen "loses its consensual nature." Bostick, 501 U.S. at 434, 111 S.Ct. 2382. The encounter is consensual and reasonable suspicion is not required if a reasonable person would feel free to "disregard the police and go about his business." Id. (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)).

The Court of Appeals concluded that the initial encounter between Clarke and Eastwood was consensual up to the point at which Eastwood returned Clarke's license and registration. The Court of Appeals concluded, however, that the encounter escalated into a seizure based on four facts: (1) Clarke was not affirmatively told he was free to leave; (2) Eastwood asked an "incriminating question"—whether Clarke had anything illegal in his vehicle—which Clarke denied; (3) Eastwood asked to search the car, and Clarke again responded he had nothing illegal; and (4) Eastwood asked if Clarke "minded" if she searched, and Clarke gave an "ambiguous" response of "no." Clarke, 854 N.E.2d at 429-30.

As Bostick explained, summarizing earlier decisions,

even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage—as long as the police do not convey a message that compliance with their requests is required.

501 U.S. at 434-35, 111 S.Ct. 2382 (citing INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); Royer, 460 U.S. at 501, 103 S.Ct. 1319; United States v. Mendenhall, 446 U.S. 544, 557-58, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)).

The meaning of Clarke's response of "no" to whether he would "mind" if his car was searched is for the trial court to resolve. Bostick, 501 U.S. at 432, 111 S.Ct. 2382. Clarke may have misunderstood the question, but, as phrased, a negative answer is a consent to the search. Moreover, Eastwood testified that Clarke's "body language" conveyed a consent, and Clarke made no effort to change his response. Eastwood therefore reasonably accepted Clarke's response as a consent, and the trial court's finding that consent was given is not clearly erroneous and is dispositive of that issue. Under Bostick, the Fourth Amendment permits consensual interrogation "as long as the police do not convey a message that compliance with the requests is required." 501 U.S. at 434-35, 111 S.Ct. 2382. There is no evidence that Eastwood conveyed that message. Her mere presence as a uniformed law enforcement officer does not convert her questions into commands. Id. Accordingly, there was no seizure before Clarke gave consent to...