Patterson v. State

• Decision Date: 20 March 1979
• Docket Number: No. 578S86,578S86
• Citation: 386 N.E.2d 936,270 Ind. 469
• Parties: Anthony PATTERSON and Michael Hobbs, Appellants (Defendants Below) v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 936

386 N.E.2d 936

270 Ind. 469

Anthony PATTERSON and Michael Hobbs, Appellants (Defendants Below) v. STATE of Indiana, Appellee (Plaintiff Below).

No. 578S86.

Supreme Court of Indiana.

March 20, 1979.

Harriette Bailey Conn, Public Defender, David P. Freund, Marcia L. Dumond, Deputy Public Defenders, Indianapolis, for appellants

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendants (Appellants) were jointly tried by jury on charges stemming from the robbery of the Heights Finance Company. Hobbs was convicted of the commission of a felony while armed, to-wit: robbery, Ind. Code § 35-12-1-1 (Burns 1975), for which he was sentenced to fifteen (15) years imprisonment, and conspiracy to commit a felony, Ind. Code § 35-1-111-1 (Burns 1975), for which he was sentenced to an indeterminate (1) Whether the trial court erred in overruling the defendants' motion to suppress certain items seized during a search of the automobile in which they were riding, and in subsequently admitting the evidence at trial.

term of two (2) to fourteen (14) years imprisonment, the sentences to run concurrently. Patterson was convicted of conspiracy to commit a felony for which he was sentenced to an indeterminate term of two (2) to fourteen (14) years imprisonment. On appeal they raise the following issues:

(2) Whether the trial court erred in failing to suppress an in-court identification of Hobbs.

(3) Whether the trial court erred in refusing to appoint separate counsel for each defendant.

(4) Whether there was sufficient evidence presented to sustain the defendants' convictions.

(5) Whether the trial court erred in sentencing Hobbs on his convictions for conspiracy to commit a felony and for commission of a felony while armed.

ISSUE I

At approximately 10:00 a. m., on February 11, 1977, two men armed with guns, entered the Heights Finance Company demanding money. They ordered one employee into the closing booth, and after taking $550 from a second employee, ordered her into the restroom.

Within a few minutes thereafter, Officer Graff, who was on patrol, received a radio report concerning the robbery, wherein it was stated that the bandits were two black males, about six feet in height, one of whom was wearing a light brown coat. Officer Graff proceeded to the general area of the robbery. He was within a few blocks of the finance company when he saw a brown automobile pull out from the curb. The automobile, bearing out-of-county license plates, turned the corner and accelerated briefly and slowed to a normal speed. Officer Graff decided to stop the automobile, not because any traffic laws had been broken, but because of its plates and because he saw three black men inside. Walking to the car, Officer Graff noticed that the driver, later identified as Defendant-Patterson, was sweating heavily, despite the thirty to forty degree temperature. He asked Patterson for identification and was given identification for Percy Cyrus who was known to Graff and who was sitting in the back seat of the automobile. Defendant-Hobbs was identified as the third passenger. As he was standing by the car, Graff noticed a light brown or tan jacket and a couple of hats in the back seat. At this point in time he was joined by Officers Biddle and Perkins, and it was decided that the suspects should be taken to the police station, since traffic was being blocked. At the station the three suspects were advised of their rights and asked to empty their pockets which contained large sums of money. Thereupon, the suspects were arrested, and Biddle and Perkins made an inventory search of the car, and found two pistols and several items of dark clothing.

Prior to commencement of the trial, the defendants filed a motion to suppress all of the evidence seized as a result of the search of themselves and the automobile. Following a hearing in which the information above related was presented, the trial court denied the motion and subsequently admitted the articles into evidence over the defendants' objections. On appeal, the defendants challenge not only the validity of the initial stop, but the validity of the subsequent searches as well.

" There is nothing automatically unconstitutional in subjecting citizens to a brief detention under circumstances where probable cause for a formal arrest is lacking. (citations omitted). The constitutionality of such detention depends solely upon the reasonableness of the action taken by the police officer." Luckett v. State, (1972) 259 Ind. 174, 284 N.E.2d 738, 741. The facts known to the officer at the time of the stop must be such as to warrant a man of reasonable caution in the belief that an investigation is appropriate. Terry v. Ohio, (1968) In the instant case, the facts known to Officer Graff consisted of information received in a radio report dispatched shortly after the robbery occurred. The suspects were described as two black males of approximately six feet in height, one of which was wearing a tan jacket. Acting solely upon this information within minutes of having received it, and approximately three blocks from the robbery scene, Officer Graff stopped a car bearing out-of-county license plates and carrying three black males.

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, Luckett v. State, supra.

In Williams v. State, (1974) 261 Ind. 547, 307 N.E.2d 457, this Court affirmed a trial court's ruling that a stop which was based upon facts similar to those upon which Graff acted in the instant case, was lawful. There, the officers were informed that a motel had been robbed by two black males who were believed to be heading north. Given those facts, the trial court held that the officers were justified in stopping a single black male driving a car in a northerly direction, fifteen miles from the site of the robbery approximately eighteen minutes after it had occurred.

The majority of this Court found that the facts present in Williams constituted a sufficient basis for an investigatory stop. (Justice Hunter concurring in the result, Justice DeBruler and Justice Prentice dissenting.) The officers' actions in this case, as in Williams, stretch the outer limits of constitutionality, having been based on the bare minimum of facts which when known to the police would warrant further investigation. The police were given no description of an automobile and only a very general description of the suspects. Upon the authority of Williams, the circumstances warranted further investigation.

Having determined that the initial stop was justified by the facts then known to the police, we next determine whether the subsequent search of the car and seizure of evidence were lawful. An automobile may be searched without a warrant where there is probable cause to believe that the automobile contains articles that the officers are entitled to seize. Chambers v. Maroney, (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, probable cause being defined as facts and circumstances known to the arresting officer which would warrant a man of reasonable caution and prudence in believing that the accused had committed a criminal offense. Gaddis v. State, (1977) Ind., 368 N.E.2d 244.

Upon stopping the automobile, Officer Graff could see that Patterson was perspiring profusely despite the cool temperature. Upon request for identification he produced identification which the officer knew was not his own. The clothing which was visible in the back seat matched the description of the clothing which had been worn by the robbers. Upon arriving at the station it was learned that each defendant had a large sum of money upon his person. This evidence, in addition to the factors which justified the initial stop, constituted sufficient probable cause to justify the warrantless search of the automobile which resulted in the officers having found two pistols under the front seat. That the search took place at the station rather than at the scene of the stop is of little consequence. As was stated in Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct. at 1981:

"On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained."

ISSUE II

Approximately one hour after the Heights Finance Company was robbed, an employee, Debbie Axley, was taken to the police station where she was shown three suspects through a one-way mirror. The men were brought in front of the mirror individually at first and made to turn from side to side. Then all three were shown to her at one time. Axley positively identified Hobbs out of the group as one of the robbers. At trial, Hobbs moved to suppress Axley's identification upon the grounds that the pre-trial lineup was unduly suggestive. The trial judge overruled the motion after hearing evidence from Axley.

On appeal, the defendant characterizes the lineup procedure as a one-on-one confrontation. We disagree, however, inasmuch as Axley stated that she was shown three individuals at one time. Although lineups of three or four individuals are not generally considered adequate, Tewell v. State, (1976) 264 Ind. 88, 339 N.E.2d 792, absent any other suggestive factors, we fail to see how the lineup was so suggestive as to prevent a reliable identification.

Regardless, however, of any suggestiveness involved, the trial court did not err in overruling the defendant's motion, since an adequate basis was established for her in-court...