Conwell v. State

• Decision Date: 09 August 1999
• Docket Number: No. 49A05-9901-CR-18.,49A05-9901-CR-18.
• Citation: 714 N.E.2d 764
• Parties: Eric CONWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

714 N.E.2d 764

Eric CONWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9901-CR-18.

Court of Appeals of Indiana.

August 9, 1999.

james J. Bell, Amy Brauman, Certified Legal Interns, Lynn McDowell, Indiana University School of Law, Criminal Defense Clinic, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RUCKER, Judge

In this interlocutory appeal, Appellant-Defendant Eric Conwell requests reversal of the trial court's denial of his motion to suppress. Conwell raises two issues for our review which we rephrase as: 1) did probable cause and exigent circumstances exist which justified the warrantless search of Conwell's body, and 2) during their search of Conwell, did the police officers use excessive force in violation of his rights under the Due Process Clause? We reverse and remand.

On September 16, 1998, Conwell was driving his car in the 2100 block of North Carollton when Indianapolis Police Officer Brad Harvey stopped Conwell for traveling at a high rate of speed and for failing to use his turn signal. Officer Harvey asked Conwell to get out of his vehicle. Conwell complied with the request, and Officer Harvey proceeded to handcuff Conwell and his passenger. Prior to exiting the car, Conwell gave Officer Harvey his wallet which contained identification. Upon searching the wallet, Officer Harvey discovered a probation card and asked Conwell why he was on probation. Conwell responded that he was on probation for possession of narcotics. Officer Harvey testified at the suppression hearing that the 2100 block of North Carollton was known to be a "high narcotics area and individuals . . . hide their narcotics either in their mouth or in between the crack of their buttock." R. at 55.

Based on this experience, Officer Harvey then requested Conwell to open his mouth and lift his tongue. Conwell did not reply to Officer Harvey's request. However, Officer Harvey observed Conwell begin to make a "chewing motion." R. at 55. Officer Harvey testified that he neither saw Conwell place anything into his mouth nor did he see Conwell chewing on an object. When Conwell did not respond, Officer Harvey began to choke him so that Conwell could not swallow whatever he was chewing. The pair struggled until Officer Harvey maced Conwell with CS spray. The contents of Conwell's mouth were not expunged after this initial macing. During this time, Officer Smiley arrived and assisted Officer Harvey in spraying a second dose of CS spray on Conwell. After the second dose of CS spray, Conwell expelled a plastic baggy from his mouth.

The baggy and its contents were seized. Testing of the baggy's contents, revealed the items seized to be rock cocaine. Conwell was arrested and taken to the hospital to be treated for the effects of the CS spray. He was later charged with possession of cocaine as a Class D felony.¹ Conwell filed a motion to suppress the introduction of the cocaine as evidence. The motion was denied after a hearing. Afterwards, Conwell was granted permission to proceed with this interlocutory appeal.

Conwell argues that the trial court improperly denied his motion to suppress the drugs seized from the warrantless search of his body. According to Conwell, Officer Harvey did not have probable cause nor did exigent circumstances exist which would justify choking him. We agree.

The trial court has broad discretion in ruling on the admissibility of evidence. Drake v. State, 655 N.E.2d 574, 575 (Ind.Ct. App.1995). We will reverse a ruling on the admissibility of evidence only when it has been shown that the trial court has abused its discretion. Carter v. State, 692 N.E.2d 464, 465 (Ind.Ct.App.1997). The decision of a trial court to deny a motion to suppress is reviewed as a matter of sufficiency. Wilson v. State, 670 N.E.2d 27, 29 (Ind.Ct.App.1996). In doing so, we neither judge the credibility of witnesses nor do we reweigh the evidence. Carter, 692 N.E.2d at 465.

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This guarantee provides that searches and seizures which take place without prior judicial authorization are per se unreasonable pursuant to the Fourth Amendment, subject only to a few, narrow exceptions. Shinault v. State, 668 N.E.2d 274, 276 (Ind.Ct.App. 1996) (citing Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 410-11, 83 L.Ed.2d 246 (1984)). A brief detention is permitted when a police officer believes a person has committed an infraction or an ordinance violation. Peete v. State, 678 N.E.2d 415, 419 (Ind.Ct.App.1997), trans. denied. In the present case, Conwell was stopped for driving beyond the maximum speed limit and for failing to signal when making a turn. Both are violations of Indiana's traffic laws, and the initial stop of Conwell for a brief investigation was permissible.

However, continued detention without a formal arrest and a warrantless search of one's person must be supported by probable cause and authorized by one of the recognized exceptions to the warrant requirement. See Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993)

(stating that protective search which goes beyond that necessary to ascertain whether suspect is armed is invalid). The pertinent inquiry regarding probable cause is whether the facts and circumstances at the time of the arrest would lead a reasonably prudent person to believe that the suspect is committing or has committed a crime. Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972); see also Richard v. State, 482 N.E.2d 282, 285 (Ind.Ct.App.1985) (finding that probable cause must be established prior to the search and not as a result of the search). We further note that the facts necessary to show the existence of probable cause for a warrantless search are not significantly different from those needed for judicial authorization to conduct a search. Kenner v. State, 703 N.E.2d 1122, 1125 (Ind.Ct.App.1999),

reh'g denied.

Officer Harvey did not briefly detain Conwell for further questioning. Rather, he ordered Conwell out of the car and immediately handcuffed him and his passenger.² Officer Harvey placed a choke hold on Conwell in order to prevent him from swallowing "whatever contents" were in his mouth. R. at 57. An assertion that probable cause existed at the time of Officer Harvey's search hinges on Conwell's presence in a high crime area and his being a probationer. These two facts alone did not give Officer Harvey probable cause to search Conwell. See Jackson v. State, 669 N.E.2d 744, 750 (Ind.Ct.App. 1996)

(finding that probable cause did not exist for search where police observed an unidentified individual enter a car upon leaving a well-known crack house and after stopping the car for a traffic violation, noted defendant making "suspicious movements and clench[ing] money in his hand"). In this instance, Officer Harvey never saw Conwell place anything in his mouth, and probable cause was nonexistent without the result of the search. See id. Because we have found that Officer Harvey lacked probable cause for searching Conwell without a warrant, we are not compelled to address the question of whether exigent circumstances existed. Jones v. State, 409 N.E.2d 1254, 1258 (Ind. Ct.App.1980) (stating that exigent circumstances are legally insignificant if the search is conducted without probable cause).

Although we have made the determination that Officer Harvey lacked probable cause to initiate a body search of Conwell and reverse the denial of Conwell's motion to suppress on that ground, we elect to address a second issue which Conwell raises. In his argument, Conwell asserts that his "right to due process of law was violated when the police officer used excessive force and a `choke hold' to search the inside of [his] mouth." Brief of Appellant at 6-7. The State counter argues that the majority of state and federal jurisdictions permit the police to use considerable force in order to prevent a suspect from swallowing the evidence. We find the State's argument unavailing.

The principal case which discusses due process rights when police force is used to extract physical evidence from the body of a nonconsenting individual is Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). However, Rochin was decided before Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Mapp, the U.S. Supreme Court held that the Fourth Amendment is applicable to the states through the Fourteenth Amendment's Due Process Clause. Mapp, 367 U.S. at 660, 81 S.Ct. at 1694. Subsequent to Rochin and Mapp, the United States Supreme Court has analyzed claims of intrusive body searches under the Fourth Amendment. See, e.g., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)

; Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). The reasonableness of the search is one of the threshold determinations to be made in ascertaining the legality of a body search. Schmerber, 384 U.S. 757, 767,

86 S.Ct. 1826, 1834,

16 L.Ed.2d 908 (1966). In Winston, 470 U.S. at 761-62,

105 S.Ct. at 1617-18, a three-part balancing test was announced for determining the reasonableness of a search procedure. Winston requires that the reasonableness of force used in a body search be measured against (1) the extent to which the procedure used may threaten the safety or health of the individual, (2) the extent of the intrusion upon the individual's dignitary interests in personal privacy and bodily integrity, and (3) the community's interest in fairly and accurately determining guilt or innocence. Id. Whether a person's right to be free from unreasonable searches has been violated under...