Jackson v. State
| Citation | 890 N.E.2d 11 |
| Decision Date | 11 July 2008 |
| Docket Number | No. 34A02-0802-CR-114.,34A02-0802-CR-114. |
| Parties | Jerome K. JACKSON, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Brent R. Dechert, Howard County Deputy Public Defender, Kokomo, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Marjorie Lawyer-Smith, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Jerome Jackson, Jr. ("Jackson") was convicted in Howard Superior Court of Class B felony possession of cocaine and Class B misdemeanor false informing. Jackson appeals and presents two issues, which we restate as:
I. Whether the trial court erred in admitting evidence obtained as a result of an inventory search of the vehicle in which Jackson was a passenger; and
II. Whether the trial court erred in refusing to give two jury instructions tendered by Jackson.
We affirm.
On January 3, 2007, Kokomo Police Officer Jason Burton ("Officer Burton") was on patrol when he observed the car in front of him run a red light. Officer Burton activated his lights and eventually his siren to get the car to pull over. The car did not immediately stop but traveled two to three blocks before pulling into the parking lot of an apartment complex, where it stopped in a parking space. The parking lot is located within 1,000 feet of a school. After the car had parked, the driver of the car, David Haulcy ("Haulcy"), started to get out of the car. Officer Burton ordered him to stay in the car and approached the driver's side door. As he did, Officer Burton noticed that the license plate on the car had expired. Officer Burton contacted the police dispatch, which confirmed that the plate was expired and further informed him that the car was registered to a Zearlan Whitfield. There was no indication that the car had been stolen. Officer Burton asked for consent to search the car, but Haulcy indicated that he should ask the owner of the car for such consent. Because the car had expired plates, Officer Burton requested a truck to tow the vehicle away.
As Officer Burton spoke with Haulcy, Kokomo Police Officer Brian Hunt ("Officer Hunt") arrived and began to question defendant Jackson, who was in the passenger seat. Officer Hunt asked Jackson for identification, which Jackson claimed not to have on him. Officer Hunt then asked Jackson to step outside the car and asked him what his name was. Jackson then provided Officer Hunt with false information about his identity.
Because the car was being towed, Officer Burton conducted an onsite inventory of the vehicle and found in the open center console a plastic baggie containing what was later confirmed to be over seven grams of cocaine. Officer Burton then informed Jackson that he was being arrested because of the contraband in the car. Officer Hunt then placed Jackson in handcuffs and searched him. This search revealed a driver's license with Jackson's true identity. After a field test indicated that the substance in the car was cocaine, Officer Hunt took Jackson to the jail. While being booked into the jail, another officer found another baggie containing over four grams of cocaine hidden on Jackson's person.
On January 5, 2007, the State charged Jackson with Class A felony dealing in cocaine, Class B felony possession of cocaine, and Class B misdemeanor false informing. On April 11, 2007, Jackson filed a motion to suppress the evidence seized as a result of the stop. Following a hearing, the trial court denied the motion to suppress on June 22, 2007. A jury trial was held on October 26, 29, and 30. At the trial, Jackson tendered two proposed final jury instructions regarding statutory defenses to the charges of possession of cocaine within 1,000 feet of a school. The trial court refused to give these instructions to the jury. The jury found Jackson not guilty of Class A felony dealing in cocaine, but guilty of the remaining two charges. Jackson now appeals.
Jackson first claims that the inventory search of the car in which he was a passenger was improper and that the trial court therefore erred in denying his motion to suppress. We note, however, that Jackson did not file an interlocutory appeal of the trial court's denial of his motion to suppress. He instead appeals following his conviction and sentence. As such, his argument is more properly framed as whether the trial court erred in the introduction of the evidence obtained as a result of the challenged search. See Hirshey v. State, 852 N.E.2d 1008, 1012 (Ind.Ct.App.2006), trans. denied. Our standard of review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection: we do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. at 1012. However, we must also consider the uncontested evidence favorable to the defendant. Id.
As a threshold issue, the State argues that Jackson failed to preserve his claim of error by failing to properly object to the evidence he now claims was improperly admitted. It is well established that a motion to suppress is insufficient to preserve error for appeal. Green v. State, 753 N.E.2d 52, 59 (Ind.Ct.App.2001), trans. denied. A defendant must instead reassert his objection at trial contemporaneously with the introduction of the evidence to preserve the error for appeal. Id.
Here, Jackson did not object to the introduction of the cocaine seized from the car on grounds that the inventory was improper. He did, however, object to Officer Burton's testimony regarding what he found during the inventory of the car, i.e. the plastic baggie containing what was later identified as cocaine. Although we might be justified in saying that Jackson failed to preserve any error with regard to the introduction of the baggie into evidence, this baggie was connected to Jackson through Officer Burton's testimony. We therefore decline to say that Jackson may not now challenge the inventory search.
Jackson first argues that the trial court properly found that he had "standing"1 to challenge the search of the car in which he was only a passenger. The State counters by arguing that, as a passenger in a car owned by another, Jackson cannot now challenge the search of the car. Both parties cite this court's opinion in Campos v. State, 867 N.E.2d 676 (Ind.Ct.App.2007) in support of their arguments. However, after the State filed its appellee's brief in the present case, our supreme court granted transfer in Campos. See Campos v. State, 885 N.E.2d 590, 596 (Ind.2008).
In its decision in Campos, our supreme court addressed the issue of the ability of a passenger in a car to challenge the constitutionality of the search of that car, first noting that standing to challenge the search or seizure under Article 1, Section 11 of the Indiana Constitution differs in some respects from standing to assert a Fourth Amendment claim.2 Id. at 598. Because this difference was not at issue in the question of whether a passenger in a car owned by another could challenge a search of the car, the court held that "federal precedent addressing standing of a passenger asserting an interest in a searched vehicle is equally applicable under the Indiana Constitution." Id. Citing mostly federal cases, the court then wrote:
Passengers in a car driven by the owner do not have standing to challenge a search of the car. Correspondingly, a driver who is not the owner has no standing if the owner is also in the car.... If the owner is absent, a driver with permission of the owner may have standing.... In sum, we agree that [w]here the defendant offers sufficient evidence indicating that he has permission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle.
Campos, 885 N.E.2d at 598-99 (citations and internal quotations omitted). In Campos, the only evidence regarding ownership of the car came from the defendant, who was the passenger, and the driver of the car, both of whom testified that the car belonged to Campos's brother. Id. at 599. The State produced no evidence indicating that the car did not belong to Campos's brother or that Campos did not have permission to use it. Id. "Accordingly," the court held, "Campos has standing to challenge the search of the car." Id.
Here, the only evidence regarding the ownership of the vehicle was that it was registered to Zearlan Whitfield. Unlike Campos, there is no direct evidence either way that either Jackson or Haulcy had permission to use the car. However, there was testimony indicating that Haulcy knew Whitfield and that his use of the car was not without permission, and there is no indication that the car was stolen. We recognize that this is a close case, and that Jackson did not offer direct evidence regarding his permission to use the car. But we also note that the permission to use the car did not appear to be at issue below. Under the facts and circumstances before us, and in light of the intervening holding in Campos, we believe that Jackson may challenge the propriety of the search of the car in which he was a passenger.
Turning to the merits of Jackson's challenge to the inventory search of the car, we first observe that it is undisputed that Officer Burton could properly initiate a stop of the car when he observed it disregard a traffic signal. See State v. Quirk, 842 N.E.2d 334, 340 (Ind.2006) (). At issue here is the inventory search of the car performed by the police after it was determined that the car would be impounded.
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