Overstreet v. State, No. 55A01-9904-CR-110.

• Docket Nº: No. 55A01-9904-CR-110.
• Citation: 724 N.E.2d 661
• Case Date: February 29, 2000
• Court: Court of Appeals of Indiana

724 N.E.2d 661

Todd A. OVERSTREET, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 55A01-9904-CR-110.

Court of Appeals of Indiana.

February 29, 2000.

Rehearing Denied May 12, 2000.

724 N.E.2d 662

Stephen Gerald Gray, Indianapolis, Indiana, Attorney for Appellant

Jeffrey A. Modisett, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Todd A. Overstreet appeals his conviction for Driving While Privileges Suspended, as a Class A misdemeanor. The sole issue presented for our review is whether the trial court erred when it denied Overstreet's motion to suppress.

We affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 5:55 a.m. on November 4, 1997, Lieutenant Melvin E. Paris of the Mooresville Police Department observed Overstreet looking into a mailbox and then closing the mailbox door. Overstreet then walked hurriedly toward a parked vehicle and drove away. Lieutenant Paris, who was familiar with newspaper carriers and their vehicles, did not recognize Overstreet or his vehicle. Overstreet drove a short distance before stopping at a Crystal Flash gas station. Lieutenant

724 N.E.2d 663

Paris watched as Overstreet exited his car and began to pump air into one of his automobile tires with an air hose. Lieutenant Paris pulled his marked police vehicle into the gas station behind Overstreet's vehicle. The flashing lights were not activated on the police vehicle. Lieutenant Paris got out of his vehicle, walked up to Overstreet, asked Overstreet what he had been doing at the mailbox and also asked him for identification. Overstreet volunteered that his operator's license was suspended

The State subsequently charged Overstreet with driving while privileges suspended, as a Class D felony. Overstreet filed a motion to suppress and alleged that his constitutional rights were violated as a result of the alleged stop and detention by Lieutenant Paris. Following a hearing, the trial court denied Overstreet's motion. A bench trial was held on November 20, 1998, during which Overstreet renewed his motion to suppress. After hearing evidence, the trial court entered judgment of conviction against Overstreet for driving while privileges suspended, as a Class D felony; however, the trial court subsequently reduced its judgment to a Class A misdemeanor. Overstreet appeals the denial of his motion to suppress.

DISCUSSION AND DECISION

We review the denial of a motion to suppress in a manner similar to other sufficiency matters. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997). We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, we must also consider the uncontested evidence favorable to the defendant. Fair v. State, 627 N.E.2d 427, 434 (Ind.1993).

Overstreet contends that Lieutenant Paris' brief inquiry constituted an "investigatory stop" and, because Paris lacked reasonable suspicion that criminal activity "may be afoot," Overstreet was illegally seized within the meaning of the Fourth Amendment. Thus, Overstreet argues, all evidence obtained as a result of the illegal seizure should have been suppressed. We cannot agree.

We begin by noting that there are three levels of police investigation, two which implicate the Fourth Amendment and one which does not. First, the Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause. Woods v. State. 547" N.E.2d 772, 778 (Ind.1989). Probable cause to arrest exists where the facts and circumstances within the knowledge of the officers are sufficient to warrant a belief by a person of reasonable caution that an offense has been committed and that the person to be arrested has committed it. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Second, it is well-settled Fourth Amendment jurisprudence that police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion that criminal activity "may be afoot." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Accordingly, limited investigatory stops and seizures on the street involving a brief question or two and a possible frisk for weapons can be justified by mere reasonable suspicion. Woods, 547 N.E.2d at 778. Finally, the third level of investigation occurs when a law enforcement officer makes a casual and brief inquiry of a citizen...