Johnson v. State

• Decision Date: 18 April 2002
• Docket Number: No. 49A05-0106-CR-269.,49A05-0106-CR-269.
• Citation: 766 N.E.2d 426
• Parties: Antwand JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

766 N.E.2d 426

Antwand JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A05-0106-CR-269.

Court of Appeals of Indiana.

April 18, 2002.

Transfer denied May 23, 2002.

Kathleen M. Sweeney, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Following a jury trial, Antwand Johnson was convicted of Unlawful Possession of a Firearm by a Serious Violent Felon, a Class B felony.¹ He presents one issue for our review: whether the handgun seized from his vehicle was the product of an unconstitutional search and seizure.

On March 19, 2000, at approximately 2:00 a.m., Indianapolis Police Department Officer Charles Pearsey responded to a report of shots fired at a White Castle restaurant. Officer Pearsey spoke to several individuals at the scene, some of whom provided their names but wished to remain unidentified in any reports so they would not have to serve as witnesses. The officer was informed that three vehicles had been involved in the shooting. One of the vehicles was a white Cadillac which was determined to belong to Johnson. The witnesses informed Officer Pearsey that after the shots were fired, the shooter, a black male with braided hair, placed a gun under the hood of the Cadillac. The witnesses also informed Officer Pearsey that the individual then got into the driver's side of the vehicle and fled westbound on 38th Street, with several passengers in the vehicle. Officer Pearsey broadcast this information over the radio.

Officer Fred Carpenter located the Cadillac being driven by Johnson. He, along with several other officers, stopped the vehicle, and ordered Johnson and the other individuals to get out of the car one at a time. Each individual was patted down and handcuffed. Indianapolis Police Sergeant Randall Staab informed Johnson of the reason for the stop and read him his Miranda rights. Sergeant Staab asked Johnson if he would consent to a search of his car, and Johnson told him that he could search it. Sergeant Staab found a .45 caliber Smith and Wesson handgun hidden next to the windshield washer fluid reservoir in the engine compartment of the Cadillac.

Johnson was charged with four counts arising out of the shooting at the White Castle restaurant and the subsequent search of his vehicle. However, three of the counts were dismissed the day of the trial. Before the trial, the trial court held a hearing on a motion to suppress the handgun seized following the search. The motion was denied, and the evidence was admitted at trial.

Initial Stop and Arrest

As this court noted in Bovie v. State, 760 N.E.2d 1195, 1197 (Ind.Ct.App. 2002), the three levels of police investigation are an arrest or detention based upon probable cause, an investigatory stop based upon a reasonable and articulable suspicion, and a consensual encounter. An investigatory stop is proper if the facts known to the officer at the time of the stop are such that a man of reasonable caution would believe that the action of the officer was appropriate. Id. at 1198. Once an officer has formed a reasonable suspicion which justifies a limited investigative stop of a vehicle, the officer may temporarily freeze the situation in order to make an investigative inquiry. Bogetti v. State, 723 N.E.2d 876, 879 (Ind.Ct.App.2000).

Indiana Code § 35-33-1-1 (Burns Code Ed. Supp.2001) provides that a police officer may arrest a person when the officer has probable cause to believe that the person has committed or attempted to commit a felony. An arrest is defined as "the taking of a person into custody, that he may be held to answer for a crime." Ind.Code § 35-33-1-5 (Burns Code Ed. Repl.1998); Gibson v. State, 733 N.E.2d 945, 953 (Ind.Ct.App.2000). When an officer interrupts the freedom of the accused and restricts that individual's liberty of movement, an arrest has occurred. Gibson, 733 N.E.2d at 953. Probable cause for an arrest exists when the facts and circumstances known to the officer at the time of the arrest warrant a man of reasonable caution to believe a suspect has committed the criminal act in question. Id.

Johnson first contends that the stop of his vehicle was unconstitutional because the police officers did not have a reasonable and articulable suspicion to make a stop based upon the tips from anonymous informants. However, in light of the evidence presented at trial, it appears that the stop was made by the officers as merely the means to effectuate the arrest of Johnson. As Officer Staab testified, the first thing he did after the individuals were removed from the car was to explain to Johnson the reason for the stop and to advise him of his Miranda rights. By placing Johnson in custody and advising him of his Miranda rights, Officer Staab was not detaining Johnson for the purpose of making an investigative inquiry; rather, Johnson was taken into custody so that he "may be held to answer for a crime." I.C. § 35-33-1-5. Therefore, the events that took place are more appropriately addressed as an arrest, requiring probable cause, rather than as an investigatory stop, requiring only reasonable and articulable suspicion.

Johnson asserts that the officers could not rely upon the information provided by the witnesses in the White Castle parking lot because they were anonymous informants and that there was no test of the information to determine whether it was reliable. In so arguing, he relies upon several cases which require that before an officer may use information relayed from an anonymous informant to form a reasonable and articulable suspicion to make an investigatory stop, there must be some independent indicia of reliability or officer observed confirmation of the informant's prediction of the defendant's future behavior. See Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)

; Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Washington v. State, 740 N.E.2d 1241 (Ind.Ct.App. 2000),

trans. denied. However, there is also a second class of informants upon which the police may rely. Cooperative citizens include victims of crime and eyewitnesses. Pawloski v. State, 269 Ind. 350, 354, 380 N.E.2d 1230, 1232-33 (1978). Informants of this type are considered to be reliable for the purpose of determining probable cause unless incriminating circumstances exist which cast suspicion upon the informants' reliability. Id; State v. Johnson, 669 N.E.2d 411, 413 n. 2 (Ind.Ct. App.1996),

trans. denied.

While Johnson is correct that the officers would not have been able to rely upon the information had the informants been anonymous, the informants here are not properly designated as anonymous informants. Rather, they should be treated as cooperative citizens. Upon being asked at trial about whether most of the eyewitnesses did not give him their names, Officer Pearsey responded that they did not. He also stated that he was not aware of whether any of the informants knew Johnson, but that no one gave him Johnson's name if they knew it. We draw upon Officer Pearsey's testimony at the suppression hearing for clarification upon what he knew of the informants. At the suppression hearing, Officer Pearsey testified that some of the individuals identified themselves to him, but that he did not give their names to the Prosecutor's Office because they did not want to serve as witnesses. From this, we see that Officer Pearsey likely had enough information to be able to contact these individuals in the future had he needed to, and because some gave him their names, it does not appear that they were hiding their identities in order to protect themselves from the repercussions of fabricating a story or reporting false information. Also, nothing in the record indicates the presence of incriminating circumstances which should have made Officer Pearsey suspicious of these informants. They appear to be no more and no less than individuals who were witnesses to a shooting and who provided reliable information as cooperative citizens upon which the police could rely in order to determine whether probable cause existed for the arrest of Johnson. See State v. Straub, 749 N.E.2d 593 (Ind. Ct.App.2001)

; Bogetti, 723 N.E.2d 876.

In order for the police to determine that probable cause existed, the facts and circumstances related to Officer Pearsey from the cooperative citizens must have been sufficient so that an individual of reasonable caution would believe that the driver of the Cadillac, Johnson, was involved in the shooting. See Gibson, 733 N.E.2d at 953

. The cooperative citizens stated that an individual matching the appearance of Johnson shot the handgun in the parking lot, placed the gun under the hood of a white Cadillac, and then proceeded to drive the car westbound on 38th Street. Based upon the information relayed to Officer Pearsey, the officers who made the stop had probable cause for the arrest of Johnson. See Capps v. State, 248 Ind. 472, 229 N.E.2d 794 (1967) (holding that officers had probable cause to make an arrest based upon information that a robber was driving a certain make, model and color of automobile, was wearing a red and white checked shirt, had long dark hair, and was seen driving away from the scene of the robbery at 2:00 a.m.).

Search and Seizure

The Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution protect against unreasonable searches and seizures. Wilson v. State, 754 N.E.2d 950, 954 (Ind.Ct.App.2001). According to Article 1, Section 11 of the Indiana Constitution, we must determine whether the reliance by the police upon their own information in deciding to conduct a warrantless search of an automobile was reasonable under the totality of the circumstances. Brown v. State, 653 N.E.2d 77, 79-80 (Ind.1995). The ultimate determination of whether probable cause...