Parish v. State

• Decision Date: 14 January 2011
• Docket Number: No. 02A03-1002-CR-74.,02A03-1002-CR-74.
• Citation: 936 N.E.2d 346
• Parties: Anthony A. PARISH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

936 N.E.2d 346 Anthony A. PARISH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 02A03-1002-CR-74. Court of Appeals of Indiana. Nov. 9, 2010. Transfer Denied Jan. 14, 2011.

John C. Bohdan, Deputy Public Defender, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Chief Counsel and Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Following a jury trial, Appellant-Defendant Anthony A. Parish ("Parish") was convicted of murder, Class B felony robbery, and Class A misdemeanor carrying a handgun without a license, and was sentenced to an aggregate term of eighty-six years incarceration. Parish appeals and claims that a protective search of a locked glove box during a traffic stop was constitutionally improper and that the evidence found during the search should have been suppressed. Concluding that the protective search was permissible under the Fourth Amendment, we affirm.

Statement of Facts

In the early morning hours of August 25, 2008, Fort Wayne police found Antoine Woods shot to death in the front seat of his car near "the Dove Shack" bar. Parish had been partying with friends that night at a carwash near the bar and was seen in possession of a .38 caliber handgun. In fact, Parish was videotaped that night holding the handgun. Between 12:30 a.m. and 12:45 a.m., Parish left with some of the people at the carwash to go to the Dove Shack bar. Parish returned approximately one hour later wearing a silver necklace with a round charm that looked identical to a necklace that Woods wore. Parish told his friends, "I did a petty murder." Trial Tr. p. 177.

Nine days after the murder, on September 3, 2008, Fort Wayne Police Officer Raquel Foster ("Officer Foster") was in her patrol car when she observed a vehiclemake a turn without using a turn signal. Officer Foster initiated a traffic stop of the car and, although the windows of the car were darkly tinted, recognized the driver as Parish because the driver's side window was down. Officer Foster immediately called for backup because Fort Wayne police officers were on "high alert" that Parish was armed. Parish was also a suspect in several shootings, including the murder of Woods. And approximately two weeks prior to the stop, an officer in the "gang unit" of the police department had warned other officers that Parish had threatened to kill the next police officer he encountered and claimed that his cocaine or methamphetamine use would numb him to any pain if he got into a shootout with the police.

Before any backup arrived, Officer Foster quickly approached the car and told Parish to step out of the vehicle. Parish did not immediately comply, but asked Officer Parish why she did not want to see his driver's license, vehicle registration, or proof of insurance. Officer Foster told Parish that she knew who he was and repeated her instructions to step out of the car. This time, Parish slowly took off his seat belt and got out of his car. Officer Foster took Parish to the back of his car and began a pat-down search. Before Officer Foster could finish the pat-down search, Officer Drummer arrived on the scene, handcuffed Parish, and started another pat-down search.

While Parish was handcuffed and being patted down by Officer Drummer, Officer Foster began a protective search of Parish's car. At the suppression hearing, Officer Foster explained that she was specifically looking for a handgun because of the reports that Parish was armed. Officer Foster looked under the seats, between the seat and the console, and behind the seats, or as she explained at the suppression hearing, "wherever I could reach." Suppression Tr. p. 11.

When Officer Foster attempted to open the glove box, it was locked. She therefore "immediately" pulled the key from the ignition and unlocked the glove box "without even thinking." Id. at 11-12. Inside, she found a Smith and Wesson revolver, a small scale, and a plastic baggie with a leafy green substance that Officer Foster identified as marijuana. Officer Foster explained her reasons for the search of the glove box by stating that, because she had pulled Parish over for a traffic stop, "I was just, within his reach, anything, because if I put him back into that car, anything that was within his reach." Id. at 12.

Officer Foster confiscated the handgun and contraband from the glove box and informed Officer Drummer of what she had found. They then secured Parish by placing him inside one of the patrol cars. Officer Foster ran a check on Parish's license, the vehicle registration, and the VIN number, which revealed no problems.¹ Despite the fact that she had just found Parish in possession of handgun and marijuana, Officer Foster simply issued a citation to Parish for failure to use a turn signal, put him back into his car, and let him go.

Some time after the traffic stop, Parish told one of his companions that the police had to let him go because "he had a license," but that the police had recovered "[t]he gun, .38 revolver." Trial Tr. p. 178. Eventually, the bullets that were recovered from the murder scene were found to ballistically match the revolver Officer Foster took from Parish's glove box.

Procedural History

On January 8, 2009, four months after the traffic stop, the State charged Parishwith murder, felony murder, Class A felony robbery resulting in serious bodily injury, and Class C felony carrying a handgun without a license, with all charges stemming from the shooting death of Antoine Woods. Parish filed a motion to suppress on May 15, 2009, seeking to exclude the evidence seized during the search of his car. The trial court held a hearing on this motion on June 26, 2009, and denied the motion at the conclusion of the hearing.

A jury trial was held on November 17 and 18, 2009. At the conclusion of the trial, the jury found Parish guilty as charged. At a sentencing hearing held on December 18, 2009, the trial court vacated the felony murder conviction, as it "merged" with the murder conviction, and entered judgment of conviction only on the murder conviction. The trial court entered judgment of conviction for robbery as a Class B felony based on the use of the deadly weapon, and entered judgment of conviction for carrying a handgun without a license as a Class A misdemeanor. The trial court sentenced Parish to sixty-five years on the murder conviction, twenty years on the robbery conviction, and one year on the carrying a handgun without a license conviction, and ordered all sentences to be served consecutively, for an aggregate sentence of eighty-six years. Parish now appeals.²

Standard of Review

Parish claims that the trial court erred in denying his motion to suppress. Because Parish appeals following his conviction and is not appealing the trial court's interlocutory order denying his motion to suppress, the question is properly framed as whether the trial court abused its discretion in admitting the handgun into evidence. See Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003). But whether the challenge is made by a pre-trial motion to suppress or by trial objection, our standard of review of rulings on the admissibility of evidence is essentially the same. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind.Ct.App.2002), trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling, but we also consider the uncontested evidence favorable to the defendant. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied.

Discussion and Decision

On appeal, Parish claims that Officer Foster improperly searched his locked glove box. Specifically, Parish claims that Officer Foster had no reasonable fear for officer safety that would justify a protective search of the passenger compartment of the car. Parish acknowledges that an officer with a reasonable suspicion that a motorist is dangerous and may be able to gain immediate control of weapons may conduct a protective search of the passenger compartment of the vehicle without a warrant. See Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). As set forth in Long:

[P]rotection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusionthat the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. "[T]he 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."

Id. (quoting Terry v. Ohio, 392 U.S. 1, 21, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also Gann v. State, 521 N.E.2d 330, 333 (Ind.1988) ("Once a vehicle has been stopped for investigative purposes, an officer may conduct a search for weapons, without first obtaining a search warrant, if the officer reasonably believes that he or others may be in danger."). But such protective searches must be confined to "those areas in which a weapon may be placed or hidden." Long, 463 U.S. at 1049, 103 S.Ct. 3469. And " '[t]he purpose of a limited search for weapons after an investigative stop is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear for his safety or the safety of others.' " Jackson v. State, 785 N.E.2d 615, 620 (Ind.Ct.App.2003) (quoting ...