Collett v. State

• Decision Date: 10 December 1975
• Docket Number: No. 3--774A125,3--774A125
• Citation: 167 Ind.App. 185,338 N.E.2d 286
• Parties: Reid COLLETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 286

338 N.E.2d 286

167 Ind.App. 185

Reid COLLETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3--774A125.

Court of Appeals of Indiana, Third District.

Dec. 10, 1975.

Ronald V. Aungst, Valparaiso, for appellant.

Theodore L. Sendak, Atty. Gen., Robert C. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Collett was found guilty by a jury of carrying a gun without a license, and he was sentenced to not more than six months in the Porter County Jail. Collett raises four issues on appeal:

Issue One: Did the pat-down search of Collett's person revealing a .38 caliber Smith and Wesson revolver violate the Fourth Amendment?

Issue Two: Did the trial court err in excluding informant identification testimony?

Issue Three: Did the trial court err in allowing testimony regarding Collett's prior arrests and convictions for crimes of violence?

Issue Four: Did the trial court err in admitting into evidence a photograph of Collett taken on the day of his arrest?

We affirm.

I. Illegal Search

Collett was convicted of carrying a gun without a license. At trial, Collett attempted to suppress the gun, a .38 caliber revolver, and all testimony pertaining thereto on the ground that the revolver was obtained pursuant to an illegal search of his person and should be suppressed as the fruit of an illegal search. The trial court overruled Collett's trial motion to suppress, and on appeal, Collett contends that the overruling of his motion to suppress was erroneous because the revolver was seized pursuant to an illegal search. ¹ As discussed below, we find that there was sufficient evidence presented at trial to support the trial court's determination that the pat-down search was legal.

When a search is made without a warrant, as in this case, the State has the burden of showing that the search fell within one of the exceptions to the warrant requirement of the Fourth Amendment of the United States Constitution. See also Ind.Const. art. 1, § 11. Elliott v. State (1974) Ind., 317 N.E.2d 173; Johnson v. State (1975), Ind.App., 325 N.E.2d 859. In reviewing the trial court's determination that the search was legal, this Court may not weigh the evidence nor judge the credibility of the witnesses. We must construe all of the evidence and resolve all ambiguities in favor of the trial court's determination. State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874.

At trial, prior to the overruling of Collett's motion to suppress, the State presented the following evidence regarding the warrantless search of Collett's person. At 3:30 A.M. on February 13, 1973, Officers Untch and Shinneman of the Portage Police Department observed a car stop in the middle of an intersection. The car crossed over the centerline when it turned right. The officers further observed the car traveling at approximately 35 miles per hour in a 20 mile per hour zone, and at one point, they observed the car narrowly miss a bridge abutment. Suspecting the driver of the automobile to be intoxicated, they motioned the driver to pull over. Collett, the driver, stopped, got out of his car and started walking back to the police car. He gave his driver's license to Officer Untch and gave Officer Shinneman permission to get the car registration from the glove compartment of his car. Officer Shinneman could not find the registration and asked Collett if he would get the registration from the car. Collett was entirely cooperative and did not make any threatening gestures. However, before Collett entered the car, Officer Shinneman stopped him and said, 'Look, I can't let you go into the car. I got to pat you down.' Officer Shinneman testified that he recognized Collett; he had knowledge that Collett carried a gun; and, for his own protection, he patted Collett down. Before the overruling of Collett's trial motion to suppress, it was clear that Officer Shinneman did not have personal knowledge that Collett carried a gun, but that he had received this information in the course of his duties as a police officer. After the overruling of Collett's trial motion to suppress, Officer Shinneman testified that the pat-down search of Collett for weapons revealed a .38 caliber revolver. Collett did not have a permit for the revolver. Later, on cross- examination of Officer Shinneman, Collett established that Shinneman's gun information came from a subject incarcerated in the Lake County Jail.

On appeal, Collett contends that he was not under custodial arrest at the time of the pat-down search for weapons, and therefore, the revolver was seized pursuant to an illegal search. The State contends that even if Collett was not under custodial arrest at the time of the pat-down search, the revolver was properly admitted into evidence as the product of a lawful protective frisk for weapons. As discussed below, we conclude that the pat-down search of Collett's person for weapons was a valid search incident to a lawful investigative stop.

First of all, we agree with Collett's contention that the search in this case cannot be justified as a search incident to arrest. At the time the officers stopped Collett, they had observed Collett commit a violation of IC 1971, 9--4--1--57 (Burns Code Ed.Supp.1975) (35 m.p.h. in a 20 m.p.h. zone). If the officers had stopped Collett for this minor traffic violation, it is clear that we would have to determine the permissible scope of a search incident to a valid arrest for a minor traffic offense. See Paxton v. State (1970), 255 Ind. 264, 263 N.E.2d 636; Sayne v. State (1972), 258 Ind. 97, 279 N.E.2d 196, but see Frasier v. State (1974), Ind., 312 N.E.2d 77, cert. denied, 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 686 (1975). It is true in Indiana that a search incident to arrest is not rendered invalid merely because it precedes formal arrest or notice of arrest when probable cause for the arrest exists prior to the search. Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; Mann v. State (1973), Ind.App., 292 N.E.2d 635; Sizemore v. State (1974), Ind.App., 308 N.E.2d 400.

The officers, Untch and Shinneman, did not stop Collett to arrest him for speeding. They did not pull Collett's automobile over immediately upon observing the speeding violation but continued to follow Collett's automobile. After observing Collett's automobile nearly collide with a bridge abutment, Officer Shinneman testified that he advised Officer Untch that they had better stop Collett's vehicle to check for the possibility of an intoxicated driver. After the initial stop, the officers determined that Collett was not intoxicated. However, Officer Shinneman testified that he noticed that there were rust rings on the lower portion of Collett's license plate leading Officer Shinneman to believe that the license plate might have been changed. Officer Shinneman stated that it was because of the rust rings that he desired to check Collett's registration and not because he was going to cite Collett for the traffic violation. By Officer Shinneman's own testimony, the officers merely stopped Collett's automobile to determine if the driver was driving under the influence.

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Elkins v. United States (1960), 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669. In Terry v. Ohio, supra, the United States Supreme Court held that not all investigative stops and subsequent patdowns for weapons violate the Fourth Amendment's proscription against unreasonable searches and seizures. See also, e.g., Luckett v. State (1972), 259 Ind. 174, 284 N.E.2d 738; Lloyd v. State (1975), Ind.App., 335 N.E.2d 232; Bryant v. State (1973), Ind.App., 299 N.E.2d 200. See also IC 1971, 35--3--1--1--35--3--1--3 (Burns Code Ed.). As pointed out in Terry, supra, 392 U.S. at 21, 88 S.Ct. 1868, in determining the reasonableness of the initial stop and a subsequent frisk for weapons, a balance must be struck between the need to stop and frisk and the invasion which the stop and frisk entails. The test for determining reasonableness enunciated in Terry, supra, 392 U.S. at 21--22, 88 S.Ct. 1868 is whether the facts available to the officer at the moment of the seizure or the search would warrant a person of reasonable caution in believing that the action taken was appropriate. In reviewing the trial court's determination that the stop and frisk was reasonable, Terry requires this Court to consider: (1) whether the officer had reasonable grounds for approaching and detaining the subject; (2) whether the officer was justified in believing the subject was armed and dangerous; and (3) whether the search exceeded the permissible scope of a search for weapons. ² See Bryant v. State, supra, 299 N.E.2d at 204.

In view of the officers' testimony regarding Collett's erratic driving, there can be no question in this case that a reasonable man would have believed the initial stop was warranted in the interest of protecting the motoring public as well as the suspected intoxicated driver. Under the facts of this case, the limited detention of Collett for the purpose of ascertaining whether he was intoxicated was not an unreasonable stop in violation of the Fourth Amendment.

The more difficult question is whether Officer Shinneman was justified in believing Collett was armed and dangerous. It is not every investigative stop that will support an incidental search for weapons. It is only when the officer has made a valid investigative stop and has reason to believe that the suspect is armed and dangerous that the officer may conduct a limited search for weapons. The purpose of this limited search for weapons after an investigative stop is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear for his safety or the safety of others. Adams v. Williams (1972), ...