Kellems v. State, 62A05-0401-CR-38.

• Citation: 816 N.E.2d 421
• Case Date: October 07, 2004
• Court: Court of Appeals of Indiana

816 N.E.2d 421

Henry Luke KELLEMS, Jr., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 62A05-0401-CR-38.

Court of Appeals of Indiana.

October 7, 2004.

Susan K. Carpenter, Public Defender of Indiana, J. Michael Sauer, Deputy Public

816 N.E.2d 422

Defender, Indianapolis, IN, Attorneys for Appellant

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Henry Luke Kellems, Jr. appeals his conviction for Operating a Vehicle as an Habitual Traffic Offender, as a Class D felony, and the trial court's order finding him in violation of his probation. Kellems raises a single dispositive issue, namely, whether a caller's tip established reasonable suspicion to effectuate a traffic stop under the Fourth Amendment to the United States Constitution.¹

We reverse.

FACTS AND PROCEDURAL HISTORY

On March 20, 2002, a woman who identified herself as "Dodie McDonald" called the Tell City Police Department to report that a man named Luke Kellems was driving from Troy to Tell City without a valid driver's license or insurance. The caller told police that Kellems was intoxicated and had children in the vehicle. She provided a description of Kellems' vehicle and a license plate number.

Sergeant Lynn Wooldridge, who had been on patrol in the area, responded to the dispatch and soon located a truck matching the description the caller had provided. As Sergeant Wooldridge approached the truck, he recognized the driver as Kellems. Before he stopped the vehicle, Wooldridge confirmed that the vehicle's license plate number matched the one the caller had provided.

Sergeant Wooldridge discovered Kellems sitting in the driver's seat, with his wife and child sitting in the passenger seats. Sergeant Wooldridge approached Kellems and requested his driver's license. Kellems produced identification, but not a driver's license. Sergeant Wooldridge ran a computer check with the Bureau of Motor Vehicles, and he administered a portable breath test. Although the breath test results came back negative, the computer check revealed that Kellems was a habitual traffic offender and that his driver's license had been suspended. Sergeant Wooldridge also discovered that Kellems did not have insurance on the vehicle or a valid license plate. Because Kellems was driving with a suspended license, Sergeant Wooldridge arrested him and transported him to the Perry County Jail.

The State charged Kellems with operating a vehicle as a habitual traffic offender, as a Class D felony. Because Kellems was on probation in another case² at the time he allegedly committed the current offense, the State filed a petition alleging he was in violation of his probation. Kellems filed a motion to suppress the evidence obtained as a result of the traffic stop.

816 N.E.2d 423

Following a hearing, the trial court denied Kellems' motion

The trial court scheduled a bench trial for October 23, 2003. Shortly before trial, Kellems' attorney withdrew. The court appointed a new attorney for Kellems, and that attorney filed another motion to suppress. On October 23, the trial court heard evidence on that motion, the charged offense, and the alleged probation violation. The trial court denied Kellems' motion to suppress and found him guilty as charged and in violation of his probation. The trial court sentenced him to three years in the Indiana Department of Correction on the underlying offense and suspended his driving privileges for life. The trial court also revoked his probation on the prior offense and ordered him to serve two years, which had previously been suspended. Kellems filed a motion to correct error, which the court also denied. This appeal ensued.

DISCUSSION AND DECISION

Kellems contends that the trial court erred when it denied his motion to suppress. When reviewing the denial of a motion to suppress, we determine whether there was substantial evidence of probative value to support the trial court's decision. Caudle v. State, 749 N.E.2d 616, 618 (Ind. Ct.App.2001), clarified on reh'g on other grounds, 754 N.E.2d 33 (Ind.Ct.App.2001), trans. denied. We consider the conflicting evidence most favorable to the trial court's ruling and any uncontested evidence favorable to the defendant. Id.

Initially, we note that Sergeant Wooldridge conceded that (1) he did not observe Kellems commit a traffic violation before he stopped the vehicle, and (2) he made the stop based solely on the call received by dispatch. Kellems claims, however, that the call to dispatch did not provide reasonable suspicion to stop his vehicle. According to Kellems, there was no showing that the caller was reliable or that her identity was verified prior to the stop. Kellems also contends that anyone could have obtained the information that was corroborated by the police prior to the stop. We agree with Kellems.

Though the Fourth Amendment protects citizens against unreasonable search and seizure, police officers may briefly detain an individual if they have reasonable suspicion that criminal activity has occurred or is about to occur. State v. Glass, 769 N.E.2d 639, 641-42 (Ind.Ct.App. 2002), trans. denied. Reasonable suspicion exists "where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur." Id. at 642. On appeal, we determine if there was reasonable suspicion for a stop by looking to the totality of the circumstances. Id. We review the trial court's ruling de novo. Id.

The United States Supreme Court has issued several opinions regarding when a tip provides reasonable suspicion for a traffic stop. In Adams v. Williams, 407 U.S. 143, 144-45, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), an informant, who had provided reliable information in the past, approached a police officer and told him that a man sitting in a nearby vehicle was carrying narcotics and a gun. The police officer approached the car identified by the informant and asked the occupant to open the door. Id. at 145, 92 S.Ct. 1921. When the occupant rolled down the window instead of opening the door, the police officer reached inside and retrieved a gun from the occupant's waistband. Id. The Court determined that the tip provided sufficient "indicia of reliability" to briefly detain the occupant. Id. at 147, 92 S.Ct.

816 N.E.2d 424

1921. The Court found compelling that the "informant was known to [the police officer] personally and had provided him with information in the past." Id. at 146, 92 S.Ct. 1921. The Court also found compelling that the informant came forward in person and "might have been subject to immediate arrest for making a false complaint had [the police officer's] investigation proved the tip incorrect." Id. at 147, 92 S.Ct. 1921

The Court was faced with a similar issue in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). However, unlike in Adams, the tipster in Alabama was anonymous. The caller told police that a certain woman would be leaving her apartment at a particular time and driving her car to a particular motel. Id. at 327, 110 S.Ct. 2412. The caller provided a description of the vehicle and indicated that the woman would be in possession of cocaine. Id. The police went to the address provided by the caller and saw a woman leave the particular apartment building and enter a car matching the caller's description. Id. The police followed the vehicle and stopped it just before it reached the destination identified by the caller. Id.

The Court acknowledged that because the tip was anonymous, it was unable to determine whether the caller was honest or reliable. Id. at 329, 110 S.Ct. 2412. The Court also noted that the caller did not provide a basis of knowledge. Id. However, the Court ultimately concluded that the tip contained sufficient indicia of reliability because the tip was corroborated by police investigation. Id. at 331, 110 S.Ct. 2412. In reaching its decision, the Court emphasized that the determination of reasonable suspicion, like probable cause, is made by considering the totality of the circumstances. Id. at...