Luster v. State

• Decision Date: 24 September 1991
• Docket Number: No. 49A02-9101-CR-45,49A02-9101-CR-45
• Citation: 578 N.E.2d 740
• Parties: David G. LUSTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1
• Court: Indiana Appellate Court

Page 740

578 N.E.2d 740

David G. LUSTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9101-CR-45. ¹

Court of Appeals of Indiana,

Fifth District.

Sept. 24, 1991.

Terrence P. Kirby, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

RUCKER, Judge.

David Luster appeals his conviction for dealing in cocaine, ² a Class A felony, and possession of cocaine, ³ a Class C felony for which he received concurrent sentences of 20 years and 5 years respectively. Luster raises two issues for our review which we rephrase as:

1. Whether the evidence admitted against Luster was the product of an unreasonable search and seizure.

2. Was Luster denied effective assistance of counsel.

We affirm.

At 1:35 a.m. on August 21, 1989, Indianapolis Police Officer Thomas Black was patrolling in a squad car near the intersection of 24th and Pennsylvania Street in the City of Indianapolis. The intersection is located in an area of frequent crime, including stealing and stripping of cars and drug trafficking. While patrolling, Officer Black observed a pickup truck, with its lights on, parked behind another car. Both vehicles were located in a parking lot with no adjoining businesses. Officer Black observed the Defendant, later identified as David Luster, standing next to the open door on the driver's side of the truck. Black then drove his marked police car onto the parking lot. Upon seeing Officer Black approach, Luster dived into the truck, laid his body across the front seat and made movements as if he were attempting to hide something. Luster then quickly stepped back out and resumed standing next to the truck on the driver's side.

Officer Black, in full police uniform, exited the police car and walked toward Luster. After telling Luster to place his hands on the bed of the truck, Black looked through the open cab door and into the cab of the truck which was illuminated by an interior dome light. On the driver's seat Officer Black observed a small hand held scale commonly used in illegal drug trafficking. Hanging out of a vent on the passenger side of the truck, where Luster's upper body had been when he dived into the truck, Officer Black also observed a rolled up paper bag. Officer Black then opened the passenger door and retrieved the paper bag. Inside the bag were cash in the amount of $279.00 and eleven separate packages containing a white powdery substance. The Officer seized the scale, the packages and cash, advised Luster of his Miranda rights, and arrested him.

I.

At trial, over timely objection, the scale, white powdery substance identified as cocaine, and the cash were admitted into evidence. Luster challenges their admission arguing the evidence was the product of an illegal search and seizure. Determining whether the evidence was confiscated as a result of an illegal search and seizure requires a step by step analysis of the facts. For purposes of discussion, we approach the analysis by dividing the facts into separate actions: 1) the investigatory stop; 2) the "open view" search; and 3) the search of the paper bag.

The Investigatory Stop

Luster contends that Officer Black did not have sufficient, reasonable and articulable suspicion of criminal activity to warrant the investigatory stop in the parking lot. Luster cites Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, in which the United States Supreme Court indicated, in order to justify a particular intrusion, "a police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id., 392 U.S. at 21, 88 S.Ct. at 1880. Luster points out that he had a right to be present in the parking lot in the early morning hours of August 21. Luster asserts that simply because he was present in a high crime area and that it was 1:30 a.m. did not constitute articulable facts leading to reasonable suspicion that criminal activity was afoot. Id. Luster further contends the evidence of his diving into the truck after seeing the Officer approach represents fruit of an illegal stop and testimony concerning that evidence should not have been admitted at trial.

Whether a particular fact situation justifies an investigatory stop is determined on a case by case basis. However, case law provides helpful general guidelines. An investigatory stop is proper when an officer has reasonable suspicion that a person has been involved in criminal misconduct. Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. A police officer may make an initial investigatory stop when the specific and articulable facts known to the officer would warrant a man of reasonable caution in believing that the investigation is appropriate. Terry, supra. Reasonable suspicion entails some minimum level of objective justification for making a stop--that is, something more than an inchoate and unparticularized suspicion or "hunch," but considerably less than proof of wrongdoing by a preponderance of the evidence. U.S. v. Sokolow (1989) 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1. In evaluating the validity of an investigatory stop, the court must consider "the totality of the circumstances--the whole picture." United States v. Cortez, (1981) 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621. Thus, the issue becomes a narrow one: based on the totality of the circumstances, did Officer Black have the requisite reasonable suspicion to make an investigatory stop of Luster?

As to Luster's claim that he was not "doing anything illegal" before the stop, the United States Supreme Court has held that there could be circumstances when a person's wholly lawful conduct might justify the suspicion that criminal activity was afoot. Reid v. Georgia (1980), 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (per curiam ). A series of acts taken together, each of them perhaps innocent if viewed separately, could warrant investigation. Terry, supra.

Luster claims that the time of day and location of the stop are not to be considered as articulable facts leading to reasonable suspicion of criminality. Although the time of day and location of the stop are factors which, standing alone, do not justify an investigatory stop, courts have held that they are among relevant factors to be considered when measuring the facts available to the officer which lead him "reasonably to conclude in light of his experience that criminal activity may be afoot." Terry, 392 U.S. at 30, 88 S.Ct. at 1884 (emphasis added); United States v. Brignoni-Ponce (1975), 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely); see also, 3 W. LaFave, Search and Seizure Sec. 9.3(c) (2d ed. 1987 & Supp.1991).

Courts have limited the importance accorded to the factors of time of day and location of the stop in reaching suspicion of criminality necessary for an investigative stop. One court aptly stated:

Strictly speaking, the "night-time factor" is not "activity" by a citizen, and this court has warned that this factor should be appraised with caution ... and that it has, at most, 'minimal importance' in evaluating the propriety of an intrusion.

People v. Bower (1979), 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115. In Bower, the court did suggest that there could be an hour which could justify an inference of criminality by concluding that 8:30 p.m. "was simply not a late or unusual hour nor one from which any inference of criminality may be drawn." Id. Likewise, "[t]he fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct." Brown v. Texas (1979), 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357.

Our Supreme Court has indicated that where nothing about a person's activity suggests criminality, even if it is 1:30 a.m. and the defendant was in a "high crime area," an investigatory stop is unjustified. Williams v. State (1985), Ind., 477 N.E.2d 96 (emphasis added). The case at bar can be distinguished from Williams based on the facts.

In Williams, the defendant was walking on a well lit sidewalk at 1:30 a.m. in a high crime area carrying an object under his arm later discovered to be a coat. The detaining officer testified that there was no other suspicious activity. The officer also testified that the object under Williams' arm did not appear to be a concealed weapon or contraband. Like the appellant in Brown, supra, the appellant in Williams was a pedestrian carrying on "an activity no different from other pedestrians in the neighborhood." Brown, 443 U.S. at 52, 99 S.Ct. at 2641.

In contrast, Officer Black observed Luster standing alone by a truck with its front beams and interior lights on in an unused parking lot and he observed Luster diving into the cab as if in an attempt to hide something when the officer approached. Unlike the officers in Williams and Brown, Officer Black had specific and articulable facts on which to rely beyond merely the time of day or the location of the suspect. Thus, while time of day and location of stop, each standing alone, cannot justify an investigatory stop, they will not be ignored by this court as factors to be considered.

The most incriminating specific and articulable fact giving rise to reasonable suspicion of criminality was Luster's action of diving into the cab of the truck as if to hide something as Officer Black approached. Luster contends that this fact is inadmissible as a fruit of an impermissible search because it happened after the Officer made his decision to detain Luster.

An investigatory stop begins, for purposes of the Fourth Amendment, when a person being questioned no longer remains free to leave. Molino v. State (1989), Ind., 546...