Murdock v. State
| Decision Date | 18 March 2014 |
| Docket Number | No. 48A02–1306–CR–565.,48A02–1306–CR–565. |
| Citation | 5 N.E.3d 792 |
| Parties | Donald MURDOCK, Appellant–Respondent, v. STATE of Indiana, Appellee–Petitioner. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Background: The State filed a notice of probation violation. The Circuit Court, Madison County, No. 48C06–1107–FC–1358, Dennis D. Carroll, J., found a violation of probation occurred and imposed previously suspended sentence. Defendant appealed.
Holding: The Court of Appeals, Bradford, J., held that evidence was sufficient to support the revocation of defendant's probation.
Affirmed.
Mathias, J., filed a dissenting opinion.Anthony C. Lawrence, Anderson, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant–Respondent Donald Murdock was found to have violated the terms of his probation when he committed Class A misdemeanor resisting law enforcement after running from a police officer who had told him to stop. Murdock contends that his probation revocation cannot stand because the State failed to establish that the officer had sufficient reason to detain Murdock. Because well-established Indiana precedent holds that a person may not flee from a police officer who has told him to stop, even if the order is unlawful, we affirm the judgment of the trial court.
On November 7, 2011, Murdock pled guilty to Class C felony burglary and Class D felony theft. On December 19, 2011, the trial court sentenced Murdock to eight years of incarceration for burglary and eighteen months for theft, the sentences to be served concurrently, and suspended four years of the sentence to probation. Also on December 19, 2011, the trial court issued an amended sentencing order providing that Murdock would be placed in the Madison County Community Transition Program upon release from incarceration.
On April 3, 2013, Indianapolis Metropolitan Police Officer Vincent Stewart was on duty, in full uniform and driving a marked vehicle. Officer Stewart responded to a call regarding a subject fleeing another officer. Officer Stewart and others establisheda perimeter around an apartment complex. While in a vacant apartment, Officer Stewart observed Murdock running outside of the apartment. Officer Stewart gave chase, identified himself as a police officer, and ordered Murdock to stop. Murdock continued to flee. Officer Stewart caught Murdock in a creek and attempted to grab him, but Murdock shoved Officer Stewart, causing injury and pain to Officer Stewart's left knee. Officer Stewart sprayed Murdock with pepper spray and took him into custody.
On May 9, 2013, the State filed a notice of probation violation, alleging, inter alia, that on or about March 31, 2013, Murdock violated the terms of his probation by committing Class A misdemeanor resisting law enforcement. On June 10, 2013, the trial court held a hearing on the notice and found that he had violated the terms of his probation by committing Class A misdemeanor resisting law enforcement. The trial court ordered that Murdock serve three-and-one-half years of his previously suspended sentence.
Probation is a “matter of grace” and a “conditional liberty that is a favor, not a right.” Marsh v. State, 818 N.E.2d 143, 146 (Ind.Ct.App.2004) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind.1999)). We review a trial court's probation revocation for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind.Ct.App.2005), trans. denied. If the trial court finds that the person violated a condition of probation, it may order the execution of any part of the sentence that was suspended at the time of initial sentencing. Stephens v. State, 818 N.E.2d 936, 942 (Ind.2004). Proof of a single violation of the conditions of probation is sufficient to support the decision to revoke probation. Bussberg v. State, 827 N.E.2d 37, 44 (Ind.Ct.App.2005).
A person resists law enforcement if that person “flees from a law enforcement officer after the officer has, by visible or audible means ... identified himself or herself and ordered the person to stop [.]” Ind.Code § 35–44–3–3(a)(3). Murdock does not dispute that he fled from Officer Stewart after being told to stop but contends that the trial court erred in finding that he committed Class A misdemeanor resisting law enforcement because Officer Stewart allegedly lacked reasonable suspicion to detain him. We disagree.
It is well settled that “[i]n Indiana, an individual may not flee from a police officer who has ordered the person to stop, regardless of the apparent or ultimate lawfulness of the officer's order.” Dandridge v. State, 810 N.E.2d 746, 749 (Ind.Ct.App.2004), trans. denied, see also State v. Howell, 782 N.E.2d 1066, 1067 (Ind.Ct.App.2003); Lashley v. State, 745 N.E.2d 254, 261 (Ind.Ct.App.2001), trans. denied; Corbin v. State, 568 N.E.2d 1064, 1065 (Ind.Ct.App.1991). On several occasions, this Court has noted that the resisting law enforcement statute does not condition the offense upon a lawful order. Alspach v. State, 755 N.E.2d 209, 211 (Ind.Ct.App.2001), trans. denied; Lashley, 745 N.E.2d at 261;Corbin, 568 N.E.2d at 1065 .... Because of the danger flight poses and the fact that a defendant has judicial remedies if he does not flee, the rule in our State is that even if a police officer does not have reasonable suspicion to stop a defendant, the defendant has no right to flee when the officer orders him to stop.
Cole v. State, 878 N.E.2d 882, 886 (Ind.Ct.App.2007). Consequently, even if we assume, arguendo, that Officer Stewart had no legal right to detain Murdock, that fact does not affect the validity of the trial court's finding that Murdock committed resisting law enforcement.1
The judgment of the trial court is affirmed.
I respectfully dissent from the majority's holding that there was evidence that Murdock committed the crime of resisting law enforcement by fleeing.
The Fourth Amendment to the United States Constitution provides, “ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (emphasis added). Article 1, Section 11 of the Indiana Constitution echoes this language, providing, “ The right of the people to be secure in their persons, houses, papers, and effects, 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.” (emphasis added).
Although Article 1, Section 11 tracks the language of the Fourth Amendment, “interpretations and applications vary between them.” Holder v. State, 847 N.E.2d 930, 935 (Ind.2006). Indeed, our supreme court has repeatedly held that “ ‘[t]he Indiana Constitution has unique vitality, even where its words parallel federal language.’ ” Id. (quoting State v. Gerschoffer, 763 N.E.2d 960, 963 (Ind.2002)). Thus, “[w]hen we interpret language in our state constitution substantially identical to its federal counterpart, ‘we may part company with the interpretation of the Supreme Court of the United States or any other court based on the text, history, and decisional law elaborating the Indiana constitutional right.’ ” Id. (quoting Ajabu v. State, 693 N.E.2d 921, 929 (Ind.1998)). Accordingly, Indiana courts have interpreted Article 1, Section 11 to provide protections broader than those provided by the Fourth Amendment. See, e.g., Litchfield v. State, 824 N.E.2d 356, 363 (Ind.2005) ().
One of the seminal cases of Fourth Amendment jurisprudence is Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Only when a law enforcement officer has specific and articulable facts that lead the officer to the reasonable suspicion that criminal activity “may be afoot,” or after one has been “seized,” as that legal term of art has been defined over time, does walking or running away or ignoring a law enforcement officer's order to stop become the crime of resisting law enforcement. See Terry, 392 U.S. at 30, 88 S.Ct. 1868,Litchfield, 824 N.E.2d at 364 ().
I believe that Terry and Litchfield conflict with and supersede the holding in Corbin v. State, 568 N.E.2d 1064, 1065 (Ind.Ct.App.1991), developed in its progeny, that “evidence of flight following a police officer's order to stop is admissible in a prosecution for resisting law enforcement regardless of the lawfulness of the order.” 2 Without the articulable facts and reasonable suspicion required by Terry and Litchfield, Murdock committed no crime under the facts and circumstances before us.
In contrast, both Terry and Litchfield unambiguously endorse the rationale of the opinion of this court in Gaddie v. State, 991 N.E.2d 137 (Ind.Ct.App.2013), trans. granted.3 As noted in Gaddie, if a person is not free to disobey a police officer's order to stop, then that person has been “seized” for purposes of the Fourth Amendment. Id. at 141. To hold otherwise would mean that there can be no such thing as a consensual encounter between a citizen and a law enforcement officer in Indiana. See id. (). Indeed, an encounter with the police could never be consensual if all Hoosiers are subject to the...
To continue reading
Request your trial
-
Murdock v. State
...the evidence was insufficient to support the revocation of his probation. The Court of Appeals affirmed the revocation. Murdock v. State, 5 N.E.3d 792 (Ind.Ct.App.2014). We grant transfer and likewise find the evidence sufficient to prove the elements of Resisting Law Enforcement-but we do ......
- Murdock v. State