Jackson v. State

• Decision Date: 23 July 1996
• Docket Number: No. 02A05-9512-CR-482,02A05-9512-CR-482
• Citation: 669 N.E.2d 744
• Parties: Ricardo V. JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 744

669 N.E.2d 744

Ricardo V. JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 02A05-9512-CR-482.

Court of Appeals of Indiana.

July 23, 1996.

Mitchell W. Hicks,, Deputy Public Defender, Fort Wayne, for appellant-defendant.

Pamela Carter, Attorney General, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, for appellee-plaintiff.

SHARPNACK, Chief Judge.

Ricardo Jackson appeals his convictions for possession of cocaine, a class D felony, and possession of marijuana, a class A misdemeanor. Jackson raises three issues for our review which we consolidate into the dispositive issue of whether the trial court abused its discretion by admitting evidence obtained as a direct result of an unlawful arrest. We reverse and remand.

Facts

The facts most favorable to the judgment follow. In the early hours of December 27, 1995, Officers Scott Berning and Jay Thompson of the Fort Wayne Police Department were watching a known crack house on their routine patrol. The officers observed an individual leave the house, enter a car containing other passengers, and drive away. Because the license plate on the car was not illuminated, the officers stopped the car for the traffic infraction.

Upon approaching the car, both officers noticed Jackson in the back seat of the car making movements which led the officers to believe that he was trying to hide or move something. Officer Thompson ordered all of the passengers in the car to put their hands up where they could be seen. While the other passengers immediately complied, Jackson hesitated and then reluctantly complied with the order. However, Jackson kept his right hand clenched. The officers noticed that Jackson was holding money in that hand.

The officers requested identification from all of the passengers. The officers returned to their patrol car to write a traffic ticket for the driver and to perform warrant checks on all of the passengers. While the officers were in their patrol car, they observed Jackson take his hands down and move around as though he was trying to hide or reach something. The officers also noticed Jackson turning around and watching them through the car's rear window. The officers became suspicious and approached the car to ask Jackson to step out.

Officer Thompson ordered Jackson to put his hands on the car. Officer Thompson performed a patdown search "for officer's safety [and] weapons." Record, p. 104. During the search, Officer Thompson felt "some type of container in [Jackson's] pocket." Record, p. 105. Officer Thompson asked Jackson what the container was, and Jackson responded that it was his medicine. Because Officer Thompson believed that the container contained razor blades, he removed the container from Jackson's pocket. Through the partially transparent container, Officer Thompson could see a white chunky substance which he did not believe to be a prescription drug. Officer Thompson opened the container and saw a substance which was later identified as cocaine.

Next, Officer Thompson placed Jackson under arrest for possession of cocaine. Officer Berning then performed a search incident to that arrest. During that search, Officer Berning found a plastic bag containing a green leafy substance later determined to be marijuana. As a result, the officers also arrested Jackson for possession of marijuana.

After a bench trial on July 25, 1995, the trial court found Jackson guilty on both counts. The trial court later sentenced Jackson to three years for possession of cocaine and one and a half years for possession of marijuana, to be served concurrently. Jackson now appeals these convictions.

Discussion

The dispositive issue for our review is whether the patdown search of Jackson prior to his arrest violated Jackson's right against unreasonable search and seizure. Jackson claims the search exceeded the bounds of a lawful Terry search. ¹

The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. Generally, a judicially issued search warrant is a condition precedent to a lawful search. C.D.T. v. State, 653 N.E.2d 1041, 1044 (Ind.Ct.App.1995). Thus, searches conducted "outside the judicial process" are per se unreasonable under the Fourth Amendment, subject to a few well delineated exceptions. Thompson v. Louisiana, 469 U.S. 17, 19-21, 105 S.Ct. 409, 410-411, 83 L.Ed.2d 246 (1984). The State has the burden of demonstrating the existence of one of these exceptions. Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969); Fyock v. State, 436 N.E.2d 1089, 1094 (Ind.1982).

One such exception to the warrant requirement is recognized in Terry, 392 U.S. at 30, 88 S.Ct. at 1884. In Terry, the Supreme Court held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot" the officer may briefly stop the suspicious person and make "reasonable inquiries" to confirm or dispel those suspicions. Id.; see Minnesota v. Dickerson, 508 U.S. 366, 372-73, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993).

In addition, a police officer "justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," is entitled to conduct a limited patdown search of the suspect's outer clothing to search for a weapon. Terry, 392 U.S. at 24, 30, 88 S.Ct. at 1881, 1885. The purpose of the Terry search is not to discover evidence of a crime, but to allow the officer to pursue the investigation without fear. Dickerson, 508 U.S. at 373-75, 113 S.Ct. at 2136. When conducting this search, the officer need not be absolutely certain that the individual is armed, but only that a reasonably prudent person in the same circumstances would be warranted in believing that the officer's safety was in danger. Drake v. State, 655 N.E.2d 574, 575 (Ind.Ct.App.1995). Thus, when the officer finds something that feels like a weapon during the patdown search, the officer can reach inside the clothing and remove the item to see whether it is in fact a weapon. C.D.T., 653 N.E.2d at 1044.

However, the seizure of contraband detected during the lawful execution of a Terry search is also permissible if it remains within the parameters of the "plain feel" doctrine. See Drake, 655 N.E.2d at 576. The "plain feel" doctrine, adopted by the Supreme Court in Dickerson, evolved from the "plain view" doctrine which authorizes a police officer, lawfully in a position to view an object of contraband, to seize the object without a warrant if the incriminating character of the object is readily apparent. Dickerson, 508 U.S. at 375-77, 113 S.Ct. at 2137. Specifically, the Supreme Court held:

"If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context."

Id. (emphasis added).

In Dickerson, police officers ordered the defendant to submit to a patdown search after the officers became suspicious because of the defendant's "seemingly evasive actions" and because the defendant had just left a crack house. Id. at 369, 113 S.Ct. at 2133. During the search, the officer found no weapons, but became interested in a small lump in the defendant's pocket. At trial, the officer testified that he felt the lump in the front pocket of the defendant's jacket and that he examined the lump with his fingers and determined it to be crack cocaine wrapped in cellophane. Id.

The Supreme Court adopted the Minnesota Supreme Court's holding that the search was unconstitutional. The rationale for finding the search unconstitutional was because the officer concluded that the lump was contraband only after " 'squeezing, sliding and otherwise manipulating the contents of the defendant's pocket'--a pocket which the officer already knew contained no weapon." Id. at 378, 113 S.Ct. at 2138. Therefore, despite the officer's lawful right to place his hands on the defendant's jacket pursuant to the Terry exception, the fact that the object's incriminating character was not "immediately apparent" to the officer rendered the search outside the scope of Terry and thereby unconstitutional. Id. at 378-80, 113 S.Ct. at 2139.

Applying these principles to the present case, we find that the officers properly stopped the car and properly initiated a patdown search of Jackson. Further, we find that Officer Thompson properly removed the container from Jackson's pocket. We find, however, that Officer Thompson violated Jackson's fourth amendment rights when he seized the contents of the container, the identity of which was not "immediately apparent" to him.

First, the officers were clearly justified in stopping the car for the traffic infraction. See Black v. State, 621 N.E.2d 368, 370 (Ind.Ct.App.1993) (holding that police officers may stop vehicles when they observe minor traffic violations); Walker v. State, 527 N.E.2d 706, 708 (Ind.1988), cert. denied, 493 U.S. 856, 110 S.Ct. 161, 107 L.Ed.2d 118 (holding that taillight and license plate violations justify investigatory stop of automobile).

Second, the officers were justified in engaging in a limited Terry patdown to search for weapons. Officers Berning and Thompson testified that Jackson displayed suspicious behavior on two occasions. Initially, Jackson complied reluctantly with Officer Thompson's order for the passengers to put their hands up. Then, when the officers went to the...