M. Stone v. State, 49A02-9603-CR-126

• Court: Court of Appeals of Indiana
• Citation: 671 N.E.2d 499
• Docket Number: No. 49A02-9603-CR-126,49A02-9603-CR-126
• Parties: Jarrod M. STONE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Decision Date: 22 October 1996

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671 N.E.2d 499 Jarrod M. STONE, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 49A02-9603-CR-126. Court of Appeals of Indiana. Oct. 22, 1996.

Page 500

Timothy J. Burns, Indianapolis, for Appellant-Defendant.

Pamela Carter, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Jarrod M. Stone (Stone) appeals the adverse judgment on his motion to suppress evidence.

We affirm.

ISSUES

Stone presents the following issues for review:

1. Whether the court erred in denying defendant's motion to suppress evidence when the evidence was seized as a result of a patdown search in which the defendant was requested to remove his shoes.

2. Whether the finding of the court was sustained by sufficient evidence.

FACTS AND PROCEDURAL HISTORY

On June 22, 1995, Officer Chester Gooch (Officer Gooch) was patrolling on 33rd Street and Elmira Avenue in Indianapolis, Indiana. He observed a man, Byrd, attempting to wave down passing vehicles. Officer Gooch was familiar with the area as one of high drug trafficking. He also believed that Byrd's activities resembled a common method of selling drugs. Officer Gooch called for back-up and then approached Byrd in order to investigate. Stone was a passenger in the car which Byrd was leaning into at the time. Officer Gooch performed a patdown of Byrd while the other three men were still in the car. He found a loaded semi-automatic pistol on Byrd along with cocaine and marijuana. This strengthened Officer Gooch's suspicion that he had interrupted a drug transaction and he was concerned that there may be other weapons involved. He asked the men to exit the car, and he and his partner proceeded to pat them down for weapons.

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Stone was wearing untied high top athletic shoes which were removed as a part of the patdown so that they could also be checked for weapons. In one of Stone's shoes Officer Gooch observed two marijuana cigars. This led to a more thorough search incident to his arrest revealing a small amount of crack cocaine in one of Stone's pants pockets.

Stone was arrested and charged with possession of cocaine, a class D felony ¹, and possession of marijuana, a class A misdemeanor. ² Stone filed a motion to suppress evidence which was denied subsequent to a hearing held August 8, 1995. At trial on November 14, 1995, Officer Gooch testified to the above facts. Stone objected to admission of the evidence, renewing his motion to suppress evidence and preserving it for appeal. The evidence was admitted, and Stone was then convicted on both counts.

DISCUSSION AND DECISION

I. Motion to Suppress

Stone challenges the trial court's denial of his motion to suppress evidence which was attained from a stop and frisk where he was required to remove his shoe, alleging this was an illegal search and seizure. The standard of review for the admissibility of evidence is well established. "The trial court has broad discretion in ruling on the admissibility of evidence. We will not disturb its decision absent a showing of abuse of that discretion." Moore v. State, 637 N.E.2d 816, 818 (Ind.Ct.App.1994), trans. denied, cert. denied, --- U.S. ----, 115 S.Ct. 1132, 130 L.Ed.2d 1093 (1995) (citing Harless v. State, 577 N.E.2d 245, 247 (1991)).

Within the Bill of Rights, Indiana's Constitution contains a strict prohibition against unreasonable search and seizure. "The right of the people to be secure in their persons, ... against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." Ind. Const. art I, § 11. Although the Constitution requires a warrant in order to search a person, there are some well established exceptions to the warrant requirement. A search and seizure is per se unreasonable if it is conducted outside of the judicial system unless the State can show that the search falls within such an exception. In the Matter of C.D.T. v. State, 653 N.E.2d 1041, 1044 (Ind.Ct.App.1995).

The exception used in the present situation is a Terry ³ stop. Pursuant to Terry, an officer may stop a person on the street to investigate the situation and even frisk or patdown their outer clothing for weapons, even though there may be no probable cause for an arrest. 392 U.S. at 30, 88 S.Ct. at 1884. The public interest served by the Terry exception to the warrant requirement is to allow the police officer to assure him or herself that the suspect is not armed with a weapon that could unexpectedly be used against the officer or a bystander. Id. at 23, 88 S.Ct. at 1881. Terry also sets forth the standard used to determine whether it is appropriate for the officer to conduct a stop and frisk of the suspect:

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.... And in determining whether the officer acted reasonably in such circumstances, due weight must be given, ... to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Id. at 27, 88 S.Ct. at 1883.

The court in Terry emphasized that the important considerations in determining the reasonableness of a Terry stop are: the intrusion is limited in scope to effect its purpose; the purpose of the stop and frisk is to discover hidden instruments that may be used to assault the officer, or others, in the least intrusive means possible; and the reasonableness of the officer's fear of assault is

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determined by the surrounding circumstances and the officer's experiences. Id. at 29-30, 88 S.Ct. at 1883-84.

There are three particular stages of Officer Gooch's investigation which are challenged by Stone: the basis of the initial investigation, the basis of the removal of Stone from the car in order to conduct a patdown, and the scope of the patdown.

Beginning with Officer Gooch's initial investigation of the situation, this court has recently held that such an investigation is appropriate in C.D.T., 653 N.E.2d 1041. The court held that the officer had sufficient grounds to investigate a situation where a person was leaning into a stopped car and the police had received reports of open-air drug dealing in the area. Id. That situation is analogous to the one here where a person was waving down cars and then leaning into them, a common form of drug dealing in the area. Therefore, Officer Gooch's investigation of the situation was appropriate.

Next, Stone was subjected to a patdown. Terry confirmed the police's ability to investigate a suspicious situation and, if needed, to patdown those involved to insure everyone's safety. The officer does not need to be absolutely certain that the suspect is armed when conducting a search. The validity of the officer's search is based on whether "a reasonably prudent man in the same circumstances would be warranted in the belief that his safety or that of others is in danger." Drake v. State, 655 N.E.2d 574, 575 (Ind.Ct.App.1995) (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883).

Here, Officer Gooch suspected a drug transaction was underway and was investigating the situation when he discovered a weapon on Byrd. This led him to investigate the situation further, and therefore he needed to insure his safety while doing so. This is the response of a reasonable and prudent person in the given...