Elliott v. State, 2--1272A143
| Decision Date | 16 April 1974 |
| Docket Number | No. 2--1272A143,2--1272A143 |
| Citation | 309 N.E.2d 454 |
| Parties | Gleason E. ELLIOTT, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
George A. Purvis, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant appeals from a sentence of five years imprisonment for carrying a revolver without a license. The issue is the admissibility of the testimony of the arresting officer who 'patted down' defendant and took the gun from him. 1
We reverse.
The arresting officer (apparently a plain-clothes narcotics investigator) testified that he and two fellow officers drove to an apartment building at 3504 Evergreen Street, Indianapolis, after having received information that a lieutenant of one Fred Johnson (known to them as the largest narcotic trafficker in the state) was to deliver a narcotic drug at that address. When the officers drove up in front of the building the defendant and two other men (neither of them Fred Johnson) were 'coming away from' the building. Defendant was known to the officers as a narcotics user who had been convicted of a drug offense. His two companions were also known to them as drug users; none of the three was ever said to be, or to be suspected of being, associated with Fred Johnson. The three officers walked up to defendant and his two companions and 'patted them down', which was described by the officer as 'just the feel of the outer garment for weapons such as revolvers and large knives, this type of weapon.' He testified that before the pat-down he had observed a bulge of defendant's jacket and that he had reason to fear for his safety. He did not say whether it was the bulge which induced the fear, or the reputation of the men as drug users, or the information concerning the suspected drug delivery. He did testify that prior to the pat-down he saw nothing on defendant's person or anything other than the bulge which would indicate that he had 'anything' on him.
The pat-down disclosed that the bulge was a .22 caliber revolver in defendant's 'right back pocket'. He was then arrested and searched. (Apparently the search revealed no additional incriminating evidence.)
The State justifies the pat-down and subsequent search and arrest as a 'stop and frisk' permitted by Indiana statutes, Ind.Ann.Stat. §§ 9--1048, 9--1049 (Burns 1973 Supp.), IC 1971, 35--1--3--2, and the case law of such cases as Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Hadley v. State (1968), 251 Ind. 24, 238 N.E.2d 888; State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874; Capps v. State (1967), 248 Ind. 472, 229 N.E.2d 794.
It is the State's contention that:
'When Officer Crawford received information from an informer that there was to be a narcotic drop-off at the particular place, the officer has the authority and the duty to investigate the criminal activity in this circumstance.
'The fact that Officer Crawford noticed a bulge under the Defendant's coat, coupled with the fact that the Defendant came from the building and the Defendant was known to Officer Crawford as a narcotic violator would give a prudent officer reasonable grounds to suspect that the Defendant had committed or was about to commit a felony.'
The defendant-appellant's contention is:
'The only information on which the policeman acted to establish the reasonableness of his action was the fact that he had information (the reliability of which was never established) that there was to be a narcotic drop-off at 3504 Evergreen St. Immediately upon arrival at that address he saw the defendant and two friends coming from the building, which was an apartment building, and he recognized all three persons as narcotic users. There was no other facts upon which the officer acted. Not even the fact that he noticed a bulge in defendant's right back pocket, for it would have been impossible to see such a bulge as the police officer and defendant approached each other. It was apparent the bulge was not noticed until the defendant had been stopped.
'To hold that those facts alone made the stopping of the defendant reasonable would be to place every person suffering from drug abuse subject to being stopped and frisked by narcotic officers whenever they are seen.
'Again, as there was no unusual conduct on the part of the defendant or his friends, there was no reasonable grounds for the stopping and frisking of the defendant.'
The testimony concerning the information which brought the officers to 3504 Evergreen leaves much to be desired. The only officer who testified said merely that 'I have received information (later that 'we were told') that one of Fred Johnson('s . . . lieutenants) was to deliver a narcotic drug' at that address. Nothing was ever said about the informant from whom the information was received, nor by what means it was conveyed to them, nor whether they were told anything in addition to what has been recited. There is no evidence that the informant was known to any of the officers or that he or his information was reliable. There is no evidence that the officers had been told (or had any reason to suspect) which apartment (or whose apartment) of the several apartments at the 3504 address was to be the site of the drop-off. There is no evidence that their information included anything which gave them any reason to believe that defendant or either of his companions had any connection with, or involvement in, the suspected drop-off.
It may be conceded that when a narcotics officer receives information from any informant that there is to be a drop-off at a particular place he has a right to investigate it. It is not so easy to concede, however, that he was a duty to investigate every tip he receives unless he has some reason to believe that there is a reasonable possibility that it is true. And certainly not that the right and/or duty to investigate includes the right to 'stop and frisk'. Mr. Justice Rehnquist said speaking for the majority in Adams v. Williams (1972), supra, (92 S.Ct. at 1924):
'Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely The evidence here does not indicate that any further investigation was made before the defendant and his companions were stopped. It appears that they were stopped as the first step in the investigation of the tip. The officers' initial testimony was:
lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.'
'A. On that date, approximately 4:15 P.M., I had received information that one of Fred Johnson (inaudible) was to deliver a narcotic drug--
(After interruption by an objection which was overruled, the examination continued.)
'Q. Uh, you said that you were in the 3500 block of North Evergreen, and for what reason?
When the revolver was offered into evidence the defendant's attorney asked preliminary questions, including the following:
'Q. No, I--I asked you, you saw them commit no misdemeanor in your presence?
'A. No, sir.
'Q. You didn't have a warrant for their arrest?
'A. No, sir.
'Q. And your only information you said was--was a drop, is that correct? From your informant?
'A. Yes, a drug was to be delivered at that particular address.
'Q. All right, and that--were the other three--the other two individuals searched?
'A. They were patted down for weapons.
'Q. Patted down. Now, the thing about it, you were there on a narcotic deal, right?
'A. We were there--we were investigating--the investigation arose out of information that we received that drugs were to be dropped at--
'Q. Drugs. But you testified on direct examination, that you patted down Mr. Gleason for a gun.
'A. That's correct, yes.
'Q. That prior to the time that you patted him down, you saw nothing on his person or anything else that would indicate he had anything on him, did you?
'A. Not other than the fact I saw a bulge.
'Q. Beg pardon?
'A. Not other than the fact I saw a bulge.
'Q. You saw a bulge where?
And later the prosecutor asked him the following:
'Q. And you said that you noticed a bulge on Mr. Elliott's person?
'A. That is correct, yes.
'Q. And where was this?
'A. From his back pocket--right back pocket.
'Q. At that time, did you have any reason to fear for your safety in any way?
'A. Yes, I did.
Whether it was impossible for the officer to have seen the 'bulge' before the officers stopped the three men to pat them down, as appellant contends, the evidence does not disclose. But the fact is that there is no evidence that he did see the bulge before the stopping. The only evidence is that he saw the bulge 'prior to the time that you patted him down'. And the only evidence that he ever had any reason to fear for his safety was at the time he saw the bulge.
The officer never did testify that they stopped defendant and his companions because he saw...
To continue reading
Request your trial
-
Elliott v. State, 974S181
...to transfer from the Court of Appeals, District 2. The decision and opinion of that Court was filed on April 16, 1974 and appears in 309 N.E.2d 454. Rehearing was denied May 22, The petition to transfer is now granted. The decision of the Court of Appeals, District 2 is hereby vacated, and ......
- Driscoll v. Harrison
-
Walker v. State, 2--1275A356
...32 L.Ed.2d 612 (policeman justified in detaining defendant upon tip from reliable informer that defendant had a gun); Elliott v. State (1974), Ind.App., 309 N.E.2d 454, transfer granted, 262 Ind. 413, 317 N.E.2d 173 (police justified in detaining defendant where he had one conviction and mu......