N.W. v. State

• Decision Date: 14 September 2005
• Docket Number: No. 49A02-0502-JV-102.,49A02-0502-JV-102.
• Citation: 834 N.E.2d 159
• Parties: N.W., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

834 N.E.2d 159

N.W., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0502-JV-102.

Court of Appeals of Indiana.

September 14, 2005.

Patricia Caress McMath, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SHARPNACK, Judge.

N.W. appeals the juvenile court's adjudication finding him to be a delinquent for committing an act that would be possession of marijuana as a class A misdemeanor¹ if committed by an adult. N.W. raises one issue, which we restate as whether the juvenile court abused its discretion by admitting into evidence the marijuana found during a search of N.W. We affirm.

The relevant facts follow. On September 7, 2004, around 1:30 a.m., Marion County Sheriff Deputy Gary Hadden responded to a report of a burglary in process. A witness reported seeing two white males, one of whom was dressed in dark clothing and a baseball cap, going in and out of a garage window, but "they were scared off by a neighbor who put their porch light on." Transcript at 9. Because the two males had already left by the time Deputy Hadden arrived on the scene, he began to patrol the area looking for the suspects. As Deputy Hadden drove around, he saw two white males, one of whom was fifteen-year-old N.W., walking northbound on Lynhurst Avenue. Both males were wearing dark clothes, and one was wearing a baseball cap. Deputy Hadden turned his vehicle around to investigate whether they were involved in the burglary, and N.W. and the other male turned around and started walking southbound. As Deputy Hadden pulled up alongside of them, a female joined N.W. and the other male, and Deputy Hadden asked them to stop. Deputy Hadden, who testified that he was concerned about his safety, then asked them to place their hands on his car so he could pat them down for weapons. While Deputy Hadden was patting down N.W., N.W. told the deputy that he had a pellet gun in his waistband. As Deputy Hadden was removing the pellet gun from N.W.'s waistband, N.W. put his left hand in his left front pants pocket. Deputy Hadden, who was concerned that N.W. was reaching for a knife, grabbed N.W.'s hand to remove what was in his hand and discovered a bag of marijuana. Deputy Hadden arrested N.W., conducted a further patdown, and found a pack of cigarettes containing marijuana cigarettes.

The State filed a petition alleging N.W. to be a delinquent child for the offense of possession of marijuana as a class A misdemeanor if committed by an adult. During the denial hearing, the State moved to introduce the marijuana into evidence, and N.W. objected based on the ground that the stop and search were illegal under the Fourth Amendment of the United States Constitution. The juvenile court overruled the objection and admitted the marijuana into evidence. The juvenile court made a true finding of the allegation, adjudicated N.W. to be a delinquent, and placed N.W. on probation.

The issue is whether the juvenile court abused it discretion by admitting into evidence the marijuana found during a search of N.W. Because the admission and exclusion of evidence falls within the sound discretion of the trial court, we review the admission of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs "where the decision is clearly against the logic and effect of the facts and circumstances." Smith v. State, 754 N.E.2d 502, 504 (Ind.2001).

N.W. argues that the admission of the marijuana into evidence violated his constitutional rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution because the deputy was not justified in conducting a patdown.² The Fourth Amendment protects persons from unreasonable search and seizure, and this protection has been extended to the states through the Fourteenth Amendment. Berry v. State, 704 N.E.2d 462, 464-465 (Ind.1998). As a general rule, the Fourth Amendment prohibits a warrantless search. Id. at 465. When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. Id. "One such exception to the warrant requirement is: when a police officer makes a Terry stop, if he has reasonable fear of danger, he may conduct a carefully limited search of the outer clothing of the suspect in an attempt to discover weapons that might be used to harm him." Williams v. State, 754 N.E.2d 584, 588 (Ind.Ct.App.2001), trans. denied. The United States Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), explained that police officers may employ investigative techniques short of arrest on less than probable cause without violating Fourth Amendment interests. Wilson v. State, 745 N.E.2d 789, 792 (Ind.2001). The principal issue is whether the police action in question was reasonable under all the circumstances. Id. (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977)).

On appeal, N.W. does not challenge the propriety of the initial stop but only the subsequent patdown search. Our Indiana Supreme Court has noted that Terry permits a:

reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. 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.

Wilson, 745 N.E.2d at 792 (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883). An officer's authority to conduct a patdown search is dependent upon the nature and extent of his particularized concern for his safety. Id. "[A]n individual stopped may not be frisked or patted down for weapons, unless the officer holds a reasonable belief that the particular individual is armed and dangerous." Swanson v. State, 730 N.E.2d 205, 210 (Ind.Ct.App.2000) (quoting State v. Pease, 531 N.E.2d 1207, 1211 (Ind.Ct.App.1988)), trans. denied.

N.W. contends that the patdown search was unconstitutional because "Deputy Hadden did not point to a particularized suspicion to support a belief that N.W. might be armed and dangerous[.]" Appellant's Brief at 3-4. The State argues that the circumstances justified the patdown search because Deputy Hadden conducted the search at night, was alone with N.W. and the other male, and suspected N.W. of committing a burglary.

During the denial hearing, Deputy Hadden testified that he had received a dispatch regarding a burglary and that he had received a "vague description" of the burglary suspects, including that they were white males, that "one [was] in dark clothing in a baseball cap" and that "they were scared off by a neighbor who put their porch light on." Transcript at 9. The deputy further testified that he "began circulating the area looking for possible suspects" when he noticed N.W. and another male walking northbound on Lynhurst. Id. at 8. Deputy Hadden then testified:

A ... As I pulled into a parking lot to turn around to see if, why they were out, if they were possibly, could they possibly be the suspects from the burglary uh they turned around and started walking back southbound again.

* * * * *

Q Okay. After you saw the two individuals what did you do?

A I pulled up along side of them. At that time they were joined by a female. Um as they were walking southbound I asked them to stop and they did. I asked them to uh place their hands on the car for my safety so I could pat them down so they, checked to see if they had any weapons, anything sharp....

Id. at 8-9. On cross-examination, Deputy Hadden testified as follows:

Q Um Officer um Hadden when you uh arrived on the scene you saw [N.W.] and another individual walking down the street, is that correct?

A Yes ma'am. I did.

Q Okay. And before you approached them um or as you approached them did you question them about what their names were or anything like that?

A Not at that time, no.

Q No? Not at that time. So you immediately um went to patting them down?

A Yes I was concerned for my safety.

Q Okay.

A So I, I made contact with them. I told them I was stopping them because we had a burglary in the area and I asked them to put their hands on the car which they did.

Id. at 12-13.

Deputy Hadden testified that he patted down N.W. because he was concerned for his safety. However, generalized concerns of officer safety will not support a lawful frisk. Swanson, 730 N.E.2d at 210 (citing L.A.F. v. State, 698 N.E.2d 355, 356 (Ind.Ct.App.1998)).

The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of self-protective search for weapons, [the police officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

Id. (quoting Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)).

The State contends that the mere fact that Deputy Hadden suspected N.W. of having committed a burglary was "an independent basis to sustain the weapons frisk." Appellee's Brief at 7. To support its contention, the State cites to cases from other jurisdictions, including State v. Cobbs, 103 N.M. 623, 711 P.2d 900 (1985), and State v. Ochoa, 135 N.M. 781, 93 P.3d 1286 (2004).³

In Cobbs, a police officer received a dispatch around 11:40 p.m. regarding a possible residential burglary in progress where the two suspects had been seen sitting in their vehicle behind the residence. Cobbs, 711 P.2d at...