Finger v. State, No. 49S02-0311-CR-587.

• Docket Nº: No. 49S02-0311-CR-587.
• Citation: 799 N.E.2d 528
• Case Date: November 26, 2003
• Court: Supreme Court of Indiana

799 N.E.2d 528

Gregory FINGER, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below)

No. 49S02-0311-CR-587.

Supreme Court of Indiana.

November 26, 2003.

799 N.E.2d 530

Kathleen M. Sweeney, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

799 N.E.2d 529

BOEHM, Justice

This is an interlocutory appeal from the trial court's denial of a motion to suppress evidence. Finger contends he was subjected to an unlawful detention when an officer investigating his parked car retained his driver's license. The trial court ruled that Finger had not been detained, but the Court of Appeals reversed, holding that the investigating officer's retention of Finger's driver's license constituted detention. We agree that retention of a driver's license can constitute detention, but find that the officer had reasonable suspicion to justify an investigative stop under the facts of this case. We grant transfer and affirm the trial court.

Factual and Procedural Background

At around 10:30 p.m. on September 18, 2000, Officer Richard Young of the Butler University Police Department received a police dispatch relaying the report by a concerned citizen of a suspicious vehicle at the intersection of 56th Street and Meridian Street in Indianapolis. Young found a car with two occupants parked just west of the intersection and partially in a driving lane of 56th street. After placing his university police car behind the vehicle and activating his emergency lights, Young approached the vehicle and found Gregory Finger sitting in the driver's seat and Michael Crosby in the passenger seat.

Young asked "what was happening" and whether Finger needed any assistance. Finger responded that the car was out of fuel and that a passerby would be returning soon with more gasoline. Young knew that a filling station was around the corner, less than two blocks away, and observed that the fuel gauge indicated approximately

799 N.E.2d 531

one eighth of a tank. Young thought Finger seemed nervous, though a stranded motorist would be expected to be relieved to receive the assistance of a police officer. As Young carried on a general conversation with Finger and his passenger, Finger's explanation for his presence changed. Young then asked for and received Finger's and Crosby's driver's licenses and ran warrant and license checks. Both came back negative. Young then continued to carry on a conversation with Finger. As Young testified, Finger "[wasn't] going anywhere" if he was out of fuel. However, Young did not return the driver's licenses and never told Finger or Crosby that they either were or were not free to leave. Young also testified that further conversation with Finger produced inconsistencies in the information Finger was providing, but he did not elaborate what these were on direct or cross-examination. When Young asked about a knife on the back seat and ammunition in the front seat of Finger's vehicle, both in plain view, Finger and Crosby responded that they did not know why these items were in the car or to whom they belonged. Young testified that this explanation made him suspicious, though at that point he did not know that any crime had been committed

Fifteen to twenty minutes after Young first encountered Finger, Young heard a radio report of an armed robbery at a liquor store less than one block from the car. At this point, Young asked the pair to exit the car and read them Miranda rights. Next, based on safety concerns, he retrieved the ammunition and knife from the car. In the meantime, Indianapolis Police Department officers had been sent to the liquor store in response to the robbery call and learned possible suspects were at 56th and Meridian Street. When they arrived at Finger's car, Young turned the situation over to them. After a witness to the robbery identified Crosby as one of the men in the store, Finger and Crosby were handcuffed and taken to the police station.

Finger was eventually charged with the robbery of the liquor store. He was alleged to be the driver of the car for Crosby and another man, both of whom had entered the store. The State charged Finger with conspiracy to commit robbery,¹ two counts of robbery,² and two counts of criminal confinement,³ all class B felonies.

Finger moved to suppress both the statements he made to IPD officers at Police Headquarters and the knife and ammunition seized at the scene.⁴ Finger argued that Young's initial encounter was unjustified as an investigative stop under both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. He claimed further that even if the initial encounter was not an investigative stop, the continued interaction with Young rose to the level of a stop. The trial court denied Finger's motion to suppress, finding that Officer Young's initial approach to Finger's vehicle and his interaction with Finger until the point of the robbery call did not constitute an investigative stop. The court reasoned that the encounter was consensual

799 N.E.2d 532

because Officer Young was attempting to assist a possibly stranded vehicle. The court found that Young did detain Finger after receiving the robbery call. The court determined this detention to be lawful because, at that time, Young knew of specific and articulable facts sufficient to give rise to reasonable suspicion of criminal activity. The court reasoned that reasonable suspicion existed because Young smelled alcohol on Finger's breath, Young heard a radio report that a robbery had been committed at the liquor store less than a block away from Finger's parked car, and Young found inconsistencies in information provided to Young by Finger and Crosby as to what they were doing in the area. The trial court found that no arrest had occurred before the IPD officers arrived at the scene. The ruling was certified for interlocutory appeal and the Court of Appeals reversed, concluding that Young detained Finger when he retained Finger's driver's license and that at that point Young did not have the necessary reasonable suspicion to execute a lawful investigative stop.

I. Finger's Fourth Amendment Claim

A. Young's status as a state actor

We note initially that Young's actions as a Butler University Police Officer are subject to constitutional constraints. A private entity is deemed a state actor when the state delegates to it a traditionally public function. Wade v. Byles, 83 F.3d 902, 905 (7th Cir.1996). By statute the state has conferred "general police powers" on Butler University Police officers. Ind.Code §§ 20-12-3.5-1(1) and -2 (1998). This renders Young a state actor subject to the Fourth Amendment restrictions on searches and seizures. See Henderson v. Fisher, 631 F.2d 1115, 1119 (3d Cir.1980) ("[t]he delegation of police powers, a government function, to the campus police buttresses the conclusion that the campus police act under color of state authority.").

B. Detention

The Fourth Amendment regulates nonconsensual encounters between citizens and law enforcement officials and does not deal with situations in which a person voluntarily interacts with a police officer. A full-blown arrest or a detention that lasts for more than a short period of time must be justified by probable cause. A brief investigative stop may be justified by reasonable suspicion that the person detained is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Fourth Amendment claim turns on whether Young and Finger were initially involved in a consensual encounter or were detained. At the point at which a detention occurred, the issue is whether it was excessive in light of the developments at that point.

Detention turns on an evaluation, under all the circumstances, of whether a reasonable person would feel free to disregard the police and go about his or her business. California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Initially, Finger stated that he had run out of gas. If this were true, it may have been enough to show that Young did not restrain Finger's liberty. If a person's freedom to leave is restricted by something other than police authority, it cannot be said that the police detained the person. See Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); INS v. Delgado, 466 U.S. 210, 218, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). However, it appears that Finger's car was in fact not out of fuel, and Young observed that.

It is debatable whether Finger's claim of lack of gasoline, which the officer believed to be false, is sufficient to render

799 N.E.2d 533

his detention voluntary. We find no relevant authority. The only factor Finger identifies as restraining him after his initial exchange with Young was the fact that Young obtained and then retained Finger's driver's license. Young's other actions, taken together, would not lead a reasonable person to feel that he was not free to leave. Young parked behind Finger's vehicle, activated his emergency lights and proceeded to ask a few...