Irwin v. State
| Citation | 383 N.E.2d 1086,178 Ind.App. 676 |
| Decision Date | 29 December 1978 |
| Docket Number | No. 1-977A209,1-977A209 |
| Parties | Martin Glenn IRWIN, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Court of Appeals of Indiana |
Robert J. Brown, North Vernon, for appellant.
Theo. L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant-defendant Martin Glenn Irwin, Jr., appeals his conviction for possession of less than 30 grams of marijuana, raising these issues for review:
(1) Whether the trial court erred in overruling his pretrial motion to suppress evidence which he alleges was illegally obtained.
(2) Whether the trial court erred in determining that the State had adequately demonstrated a proper chain of possession for the marijuana.
We reverse because the trial judge erred in admitting certain objects into evidence. 1
On April 23, 1976, Dennis Wright, a Brownstown deputy marshall who had held that position for 23 days and whose only other law enforcement experience was one month spent as a part-time deputy marshall, was on special assignment with the Jackson County Sheriff's Department. He accompanied a Jackson County deputy to a spot near Medora in Jackson County on the road known as "old U.S. 50." They had been instructed to set up a roadblock on old U.S. 50 in front of the Carr Township Conservation Club to conduct a routine traffic check of the driver's licenses, registrations, and safety inspection stickers of all drivers reaching the roadblock during a two-hour period beginning at 9 p. m.
The two officers arrived at the site of the planned roadblock before the designated time for its inception. Wright testified that they parked their patrol car in an inconspicuous place at the back of the Conservation Club parking lot to await the designated time to begin their assignment. They were parked approximately one-eighth mile from the driveway into the Conservation Club, a private driveway commonly used by the public as a turnaround.
Sometime before 9 p. m., the officers observed defendant's car driving in a direction away from Medora. It pulled into the driveway of the Conservation Club and began to execute a turn that appeared to be designed to allow it to go back out onto the highway in the direction of Medora. Wright testified that their observations revealed no violation of traffic laws and no evidence of any criminal activity whatsoever. 2
The deputy suggested that they begin their traffic check before its designated starting time and away from its designated location by approaching defendant's car in the driveway, halting its turning maneuver, and checking the defendant's license and registration.
The two officers intercepted defendant's car and Wright got out and approached the driver's side. Irwin was alone in his car. Wright shined his flashlight through the open window and asked to see Irwin's driver's license. Irwin produced his license. Wright noticed the odor of an alcoholic beverage and could see a brown prescription bottle in the center console between the two front seats. He testified that the bottle appeared to contain plant material.
Wright then asked for Irwin's registration. Irwin leaned to his right across the center console and reached with his left hand into the glove compartment. In the process, he was covering the console with his right arm. Irwin handed the registration to Wright. Wright then asked Irwin if he had been drinking beer and he replied that he had.
Wright next asked Irwin to get out of the car and he did. Wright shined his flashlight through the open door into the car and observed an overturned beer bottle on the floorboard in front of the driver's seat. Wright then leaned through the open door into the car to pick up the beer bottle and found, under the front part of the driver's seat, two plastic bags containing what later tests showed to be marijuana. Wright removed the beer bottle, the two plastic bags, and the prescription bottle from the car.
Wright asked Irwin to place his hands on the hood of the car, searched him for weapons, handcuffed him, and told him he was under arrest for public intoxication.
The officers radioed for a vehicle to transport Irwin to jail, inventoried the contents of Irwin's car, and had the car towed away. During the inventory, Wright found a pipe, two unopened bottles of beer, and a package of cigarette papers. Irwin was charged with possession of marijuana in excess of 30 grams.
Wright's initial encounter with Irwin his interception and halting of Irwin's turning maneuver and his check of Irwin's driver's license and registration cannot be classified as an "arrest" which Ind.Code 35-1-17-1 defines as "the taking of a person into custody, that he may be held to answer for a public offense." Wright admits that he had observed nothing wrong with defendant's actions or his vehicle up to the time he approached the car and asked for Irwin's driver's license; therefore, there was no probable cause to arrest Irwin at that time.
Defendant argues that Wright could not halt his movement and question him without probable cause to suspect that criminal activity, at least a traffic violation, was afoot. The State argues that Wright's initial encounter with Irwin was justified by the fact that the police were preparing to institute a roadblock and merely decided to begin their assignment early. The State maintains that Wright's action does not even rise to the level of an investigatory stop.
Our Supreme Court, in Luckett v. State, (1972) 259 Ind. 174, 284 N.E.2d 738, said that the action of police in stopping an automobile amounts to a detention of the person and, thus, in its technical sense, constitutes an arrest. It is not automatically unconstitutional to subject citizens to brief detention under circumstances where probable cause for formal arrest is lacking, the constitutionality of such detention depending solely on the reasonableness of the action taken by the officer. Luckett, supra; Madison v. State, (1976) Ind.App., 357 N.E.2d 911.
In Williams v. State, (1974) 261 Ind. 547, 307 N.E.2d 457, at 460, the Supreme Court said
Consequently, no one questions the right of law enforcement officers to establish a roadblock to conduct a routine traffic check of all vehicles and drivers passing through that point during a given period of time. Whether the police can single out an individual car and halt its movement for such a check at any time or any place with no reason to suspect any wrongdoing is another question. Solely for the sake of argument, we will assume, without deciding, that this would be a reasonable action for the police to take. 3
The question then becomes: Once Irwin produced a valid driver's license and registration, was Wright justified in his further actions or was the basis of his initial inquiry satisfied and no further investigation warranted?
As with the initial stop, we must classify this continued detention of Irwin after the routine traffic check as either an arrest or an investigatory stop.
Wright testified that, in the process of checking the driver's license and registration, he: (1) smelled the odor of alcohol; (2) secured from Irwin an admission that he had recently consumed some beer; (3) thought he saw plant material in the prescription bottle; and (4) thought he saw Irwin trying to hide the prescription bottle as he leaned to retrieve the registration from the glove compartment.
Probable cause for an arrest is defined to be facts and circumstances known to the arresting officer which would warrant a man of reasonable caution and prudence in believing that the accused had committed or was committing a criminal offense. Luckett, supra. Based upon the facts and circumstances known to Wright, would a man of reasonable caution and prudence have believed that Irwin had violated or was violating either the statute proscribing public intoxication or the statute proscribing the possession of marijuana?
Although the statute which creates the offense of public intoxication 4 does not define "intoxication", other sources of definition are available. Ind.Code 9-4-4.5-2, which deals with implied consent to chemical breath testing, defines "intoxication" as:
"an impaired condition of thought and action and the loss of normal control of one's faculties to a marked degree."
Accord, Ind.Code 16-13-6.1-2, Division of Addiction Services statute; Hughes v. State, (1912) 50 Ind.App. 617, at 622, 98...
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...vehicles for safety standards.... Similarly, we have the search of passengers boarding airplanes." Id. at 460. In Irwin v. State, (1978) 178 Ind.App. 676, 383 N.E.2d 1086, a case turning on other matters, the court, citing Williams, supra, "Consequently, no one questions the right of law en......
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