Huey v. State, 2-885A267

• Docket Nº: No. 2-885A267
• Citation: 503 N.E.2d 623
• Case Date: February 02, 1987
• Court: Court of Appeals of Indiana

Page 623

503 N.E.2d 623 Reid Michael HUEY, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 2-885A267. Court of Appeals of Indiana,
Second District. Feb. 2, 1987.

Page 624

J.J. Paul, III, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Presiding Judge.

Huey appeals a conviction of Operating while Intoxicated, a class A misdemeanor. He raises four issues:

1) Whether he was unlawfully seized;

2) whether the corpus delecti of operating while intoxicated includes driving on a public road;

3) whether field sobriety tests require "Miranda warnings";

4) whether the evidence is sufficient to sustain his conviction.

FACTS

Around 1:00 a.m. on November 6, 1984 Indianapolis police officers McGlinsey and Burge "received a radio run to [6201 North Keystone] which is a Shell Station on a small silver car following a yellow cab." Record at 40. Upon their arrival at the station, the officers observed a silver Toyota Corolla stopped, but with its motor running and its lights on, approximately fifteen (15) feet behind the yellow taxi. Huey was alone, sitting behind the wheel in the Toyota. The taxi contained two female fares in addition to the driver. When the officers arrived at the scene the taxi driver "was out of the vehicle--without me asking any questions he stated, 'That man's following me.' " Record at 41. Officer McGlinsey instructed the taxi driver to proceed and walked over by the open window on the driver's side of the Toyota. There he asked Huey why he was following the cab to which Huey responded, "On orders from the treasury department." Record at 91. Officer McGlinsey then asked Huey for some identification. Huey said he "didn't have any." (Record at 91), and Officer McGlinsey smelled an odor of intoxicating beverage on Huey's breath and observed Huey's eyes were glassy. Officer McGlinsey then asked Huey to step from the vehicle. In doing so, Huey stumbled and nearly fell. McGlinsey then patted

Page 625

Huey for weapons. Finding none, McGlinsey "examined" the Toyota. He found a wallet underneath the driver's seat containing Mr. Huey's operator's license and other personal papers. At that time Officer McGlinsey advised Huey he "had reason to believe that he was operating a vehicle while intoxicated and asked him to perform some field sobriety tests." (Record at 93). When, in the officer's opinion, Huey failed the field sobriety tests, the officer offered and Huey agreed to take a chemical breath test. Huey registered .22% blood/alcohol content. DECISION

A.

Huey argues the trial court erred in admitting the field sobriety and breathelyzer test evidence because, at the time he was ordered to perform the field tests, Officer McGlinsey had neither probable cause to believe Huey had committed the offense of drunken driving nor a justifiable suspicion warranting his detention for any purpose.

We disagree. According to Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, a person may be detained on less than probable cause if the officer has a justifiable suspicion the suspect has committed or is about to commit a crime providing the intrusiveness and nature of the seizure is "reasonably related in scope to the justification for [its] initiation. The officer must be able to point to specific and articulable facts which reasonably warrant the intrusion upon the individual's right of privacy." 392 U.S. at 21, 88 S.Ct. at 1880.

And, not all police-citizen encounters implicate Fourth Amendment interests. Florida v. Rodriquez (1984) 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165. In that case, a Florida trial court suppressed evidence on the grounds the police did not have articulable suspicion justifying the initial stop of three individuals first observed standing at an airlines ticket counter in the Miami airport. The officers followed the three through the concourse and up an escalator, at which point one of the suspects apparently became aware of the officers' presence. One of the officers confronted the accused and asked if they might talk, to which the accused agreed. In reversing the trial court ruling which was affirmed by the state court of appeal, the Supreme Court held "[t]he initial contact between the officers and the accused, where they simply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates no Fourth Amendment interest." 469 U.S. at 5-6, 105 S.Ct. at 310-311.

Here, there was no police initiated "stop". Huey was already stopped behind the taxi when...