Frye v. State

• Decision Date: 11 October 2001
• Docket Number: No. 82A04-0102-CR-56.,82A04-0102-CR-56.
• Citation: 757 N.E.2d 684
• Parties: Leonard D. FRYE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

757 N.E.2d 684

Leonard D. FRYE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A04-0102-CR-56.

Court of Appeals of Indiana.

October 11, 2001.

Transfer Denied December 20, 2001.

Jon Aarstad, Vanderburgh County Public Defender Agency, Evansville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Leonard D. Frye appeals his conviction of Possession of Cocaine or Narcotic Drug,¹ a class C felony, Resisting Law Enforcement,² a class A misdemeanor, and Visiting or Maintaining a Common Nuisance,³ a class B misdemeanor. Frye presents the following restated issues for review:

1. Was the cocaine found upon Frye's person inadmissible in evidence because it was obtained as a result of a search that violated Frye's constitutional rights?

2. Was the evidence sufficient to prove that the amount of cocaine found in Frye's possession weighed at least three grams?

3. Was the evidence sufficient to sustain Frye's conviction for visiting a common nuisance?

We affirm.

The facts favorable to the convictions are that on July 27, 2000, Detective Tony Johnson and other members of the Evansville Police Department's narcotics unit were observing houses that they suspected were involved with illegal drug activity. Detective Johnson observed that there were several individuals standing outside one of those houses, a residence located at 1506 S. Governor. He also observed that other people would drive up to the residence, get out of their vehicle, and walk up to the residence. After a few minutes, the individuals would return to their vehicle and drive away. Johnson watched as Steven Epstein followed this pattern, and noted that Epstein's thumb and forefinger were pinched together as he returned to his car. Detective Johnson also saw that Epstein opened his car door using only the other three fingers. As Epstein drove away, Detective Johnson radioed Detective Eric Hackworth, who was located nearby, and advised him of what he had seen and gave him a description of Epstein's vehicle. Detective Hackworth followed Epstein and observed that he was driving erratically and then failed to stop at an intersection. As a result, Detective Hackworth executed a traffic stop.

Detective Hackworth asked Epstein to get out of his vehicle and then sought and received permission to search Epstein's vehicle. During the subsequent search, police discovered cocaine. Upon questioning, Epstein admitted that he had just purchased the cocaine at 1506 S. Governor and he described the man who had sold it to him as a young black male wearing a white t-shirt and blue shorts or sweat pants. Detective Hackworth radioed officers conducting surveillance at 1506 S. Governor and relayed the description of the seller. At that time, Detective Johnson and several other officers decided to approach the house and investigate. Detective Johnson saw two black males standing in the yard, of whom one was later identified as Frye. As the officers approached, they identified themselves as police officers. When they did so, Frye began running toward the house. Detective Johnson ordered Frye to stop, but Frye ignored the command and entered into the house. Two other officers kicked in the back door and followed Frye inside.

Upon entering, the officers encountered several individuals in the living room, including Frye. For their own safety, the officers then went from room to room in order to gather together all of the occupants of the house. While doing so, the officers observed marijuana, marijuana and cocaine pipes, and other drug paraphernalia. Everyone in the house was placed under arrest. At that point, Frye was taken into a bedroom and ordered to remove his clothes and submit to a strip search. During the search, Detective Johnson found a plastic baggie concealed between Frye's buttocks. When Detective reached for a pair of gloves to be used in retrieving the baggie, Frye took the baggie and stuck it in his mouth. After a brief struggle, Detective Johnson retrieved the baggie from Frye's mouth and threw it to the side. Frye continued struggling for a "couple of minutes", after which he was subdued. Record at 181. Tests later determined that the baggie in Frye's mouth contained cocaine. Frye was convicted as set out above following a jury trial.

1.

Frye sought to suppress all evidence flowing from his arrest upon grounds that it was the fruit of an illegal search and seizure.

A claim of illegal search and seizure arises under the Fourth Amendment to the United States Constitution. That provision imposes a standard of reasonableness upon the discretion of law enforcement agents in order to protect individual privacy from arbitrary invasions. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)

. A search conducted without a warrant issued by a judicial officer is per se unreasonable under the Fourth and Fourteenth Amendments unless it falls into one of the recognized exceptions to the warrant requirement. Burkett v. State, 736 N.E.2d 304 (Ind.Ct.App.2000). The State bears the burden of proving that a warrantless search falls within one of the aforementioned exceptions, which our courts strictly construe. Id.

The State contends that the initial stop of Frye was permissible pursuant to the investigative stop exception. Under this exception, "a police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot, even if the officer lacks probable cause." Burkett v. State, 736 N.E.2d at 306 (quoting Santana v. State, 679 N.E.2d 1355, 1359 (Ind.Ct.App.1997)). The facts supporting a reasonable suspicion that criminal activity is afoot must rise to "some minimum level of objective justification" in order for the temporary detention of a person to be valid. Burkett v. State, 736 N.E.2d at 306 (quoting Reeves v. State, 666 N.E.2d 933, 936 (Ind.Ct.App.1996)). We must consider the totality of the circumstances in order to evaluate whether an officer had a reasonable suspicion. Id. Moreover, we are mindful that even if the initial stop under this exception was justified by reasonable suspicion, such only permits the officer to temporarily freeze the situation for inquiry; it does not confer upon the officer all the rights attendant to an arrest. Id. Although we generally review a trial court's decision to admit evidence under an abuse-of-discretion standard, we review de novo the ultimate determination of reasonable suspicion. Id.

Detective Johnson testified that, on the day in question, the house at 1506 S. Governor had been under surveillance for suspicion of illegal drug activity. Police observed as Epstein drove up to the house and thereafter acted in a manner consistent with participation in an illegal drug purchase. When he was stopped shortly after leaving the house, Epstein was searched and found to be in possession of cocaine. Epstein told Detective Hackworth that he had just purchased the cocaine from someone at 1506 S. Governor. He described the man as a tall, slender, young black male wearing a white t-shirt and blue shorts or sweat pants.

When Detective Johnson decided to approach the house after receiving the information from Detective Hackworth, he noted that there were two black males in the yard, one of them wearing a white t-shirt and blue shorts. The police surveillance, combined with the information provided by Epstein through Detective Hackworth, was sufficient to arouse a reasonable suspicion in the officers that criminal activity was afoot at the house at 1506 S. Governor, and thus to justify a brief detention for investigative purposes of the individuals standing outside the residence. See Burkett v. State, 736 N.E.2d 304

.

As Detective Johnson approached, the man in the white t-shirt ran into the house when police officers identified themselves and thereafter refused to stop when ordered to do so by Johnson. We must now determine whether police officers were justified in pursuing Frye into the house.

We note here that, when reviewing a trial court's ruling on the validity of a search and seizure, we consider the evidence most favorable to the ruling and any uncontradicted evidence to the contrary in order to determine whether there is sufficient evidence to support the ruling. Melton v. State, 705 N.E.2d 564 (Ind.Ct. App.1999). If there is a conflict in such evidence, we consider only the evidence favorable to the ruling and will affirm if the ruling is supported by substantial evidence of probative value. Id.

The Fourth and Fourteenth Amendments of the United States Constitution protect persons from unreasonable government intrusions into areas of an individual's life in which he or she has a reasonable expectation of privacy. Shepherd v. State, 690 N.E.2d 318 (Ind.Ct.App. 1997), trans. denied. Exceptions to the requirement of a search warrant include cases in which police are reasonably concerned about the actual or imminent destruction or removal of evidence before a search warrant may be obtained. Harless v. State, 577 N.E.2d 245 (Ind.Ct.App.1991).

After Detective Johnson executed the investigatory stop, Frye fled into a private residence. In so doing, Frye ignored Johnson's command to stay outside the house. Under the circumstances then known to Detective Johnson, this behavior was certainly suspicious and could fairly be characterized as flight in Johnson's eyes. See Platt v. State, 589 N.E.2d 222 (Ind. 1992)

. This act would have served to heighten Detective Johnson's already reasonable suspicion that criminal activity was afoot. Detective Johnson testified that he feared Frye had entered the residence in order to destroy evidence. Under the circumstances, his fear was both objective and reasonable. Such imminent destruction constituted an...