Powell v. State
| Decision Date | 08 September 2009 |
| Docket Number | No. 02A03-0906-CR-241.,02A03-0906-CR-241. |
| Citation | 912 N.E.2d 853 |
| Parties | Jonta A. POWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Donald C. Swanson, Fort Wayne, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Marjorie Lawyer-Smith, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Jonta A. Powell appeals his convictions for possession of marijuana1 and possession of a controlled substance,2 each as class D felonies. Powell raises two issues, which we revise and restate as follows:
I. Whether the trial court abused its discretion by admitting into evidence the marijuana and methamphetamine discovered in the vehicle occupied by Powell; and
II. Whether the evidence was sufficient to support Powell's convictions.
We affirm.
The relevant facts follow. At approximately 2:30 in the afternoon of June 15, 2008, Fort Wayne Police Department Officer Marc Deshaies, a detective with the vice and narcotics division, was patrolling the area of Plaza Avenue in Fort Wayne, Indiana, looking for a subject. While in the area, Officer Deshaies noticed a gray vehicle parked on the side of the street. When Officer Deshaies initially passed by the vehicle, the occupants of the vehicle "turned their faces away" and "got further down in the seat." Transcript at 27. Several minutes later, Officer Deshaies returned to the area and noticed that the occupants were still in the gray vehicle parked on the side of the road. The gray vehicle was properly parked, and the vehicle was "not running." Id. at 21.
Officer Deshaies had "specifically been made aware" that there "had been kind of a rash of burglaries" in the area. Id. at 26. Burglaries were "one of the highest crime rates in the summer" in the area and officers "particularly patrol[ed] those areas looking for persons that might be loitering in the area, looking for persons that might be in between buildings, that might be in activity that would be related to burglaries ..." Id. at 27.
Officer Deshaies's attention was drawn to the gray vehicle because of the high rate of burglaries. He "pulled up behind" the gray vehicle. Officer Deshaies was in full police uniform and was driving a fully marked squad car. He did not activate his squad vehicle's overhead emergency lights. He then exited his squad car and approached the driver's side of the gray vehicle in order "to conduct an investigation to see what their purpose was in the area." Id. at 7. Fort Wayne Police Officer George Nicklow arrived at the scene "[s]everal seconds" after Officer Deshaies. Transcript at 43.
Officer Deshaies was able to observe several items in the gray vehicle "even on initial approach" to the gray vehicle because "it was clear daylight" and because the vehicle's "windows [were] rolled down." Id. at 9. Officer Deshaies observed "a spent .22 shell casing in the back seat, which heightened [his] concern a great deal that there might be a weapon in the car." Id. Officer Deshaies also observed there was "probably a six pack of beer that was half drank in the car" and "[t]here was also an open bottle of vodka in the car." Id.
Officer Deshaies asked Powell, who was sitting in the driver's seat of the gray vehicle, if Powell was waiting for someone in the area. Powell responded that he was "waiting for his friend who had walked off" and "started mumbling." Id. Powell "couldn't clarify where his friend was, who it was or where he went." Id. Powell kept favoring his right side by his thigh area. Officer Deshaies asked Powell not to put his hand there, but Powell kept bringing his hand back to his thigh area. Officer Deshaies did not know whether Powell was "putting something in that area or retrieving something from that area." Id. at 11. Due to his "concerns for weapons possibly being in the vehicle and his muttered statements," Officer Deshaies asked Powell "to step out of the car so [he] could speak to him." Id. at 10. At that point, Powell "put both hands down by the seatbelt area and turned his back to [Officer Deshaies] to exit the car...." Id. Officer Deshaies testified that Powell's actions "really brought up [his] concern for safety" and Officer Deshaies "immediately removed him from the car at that point." Id. Officer Deshaies performed a limited pat-down search of Powell for weapons "due to the presence of the shell casings in the car and his distinct movements around his waist area and towards the middle of the seat." Id. at 12.
Officer Nicklow approached the passenger side of the gray vehicle. As he approached the "rear on the passenger side" of the vehicle, Officer Nicklow observed that the person seated in the passenger seat "slowly move[d] his right arm and hand down towards the space between the door and the passenger seat," which "heightened [Officer Nicklow's] concern for weapons as [he] approached." Id. at 43. Officer Nicklow also observed an open bottle of beer. Officer Nicklow asked the passenger to get out of the vehicle out of a concern for his safety. The person seated in the passenger seat of the vehicle opened the door to exit the vehicle. Officer Nicklow was about two feet away when the passenger opened the door. As the passenger was getting out, Officer Nicklow observed "in plain view three small baggies laying on the floor board on the right side of the passenger seat." Id. at 45. The baggies were "directly under the passenger side lever to tilt the passenger seat, exactly where [Officer Nicklow] saw [the passenger] reach." Id. Officer Nicklow noticed that several of the bags "contained a green leafy like substance that [he] knew from [his] training and experience to be marijuana." Id. at 46. Officer Nicklow also noticed baggies containing pills which had a "stamp of Batman, a Batman symbol on it." Id.
Officer Nicklow then advised Officer Deshaies that there was marijuana in the car, and "at that time, [Officer Deshaies] took Mr. Powell into custody and placed him in handcuffs ...," and Officer Nicklow took the passenger "into custody." Id. at 13-14. After placing Powell in handcuffs, Officer Deshaies "checked the area that [Powell] had been putting his hands in." Id. at 14. Officer Deshaies found a small baggie of marijuana "[r]ight under the front edge of the driver's seat." Id Officer Deshaies also found a "single loose pill" which was "resting pretty much where the center console, the seat belt and the rails for the seat all joined." Id. at 15. Officer Deshaies noticed that the pill was brightly colored and had an imprint on it, which were "common in ecstasy pills." Id. at 38.3 Officer Deshaies "believed [the pill] to be ecstasy ..., methamphetamine or dimethamphetamine," and a field kit test revealed that the pill "tested positive for that." Id.
On June 19, 2008, the State filed information charging Powell with possession of a controlled substance4 as a class D felony and possession of marijuana hash oil or hashish as a class D felony. On October 2, 2008, the State filed amended information for possession of controlled substance.5 On December 2, 2008, Powell waived his right to a jury trial, and on December 16, 2008, the trial court conducted a bench trial.
During his bench trial, the State moved to introduce the marijuana and methamphetamine found by Officer Deshaies, and Powell objected on the grounds that Officer Deshaies had initiated an impermissible investigatory stop under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The trial court stated:
Well, I don't see this as being [an investigatory] stop because it wasn't a stop.... These guys were sitting in a car and the officer came up to them, and I do believe he has the right to do that for anyone without any particularized reason or any suspicion that crime's afoot.
Id. at 32-33. The trial court overruled the objection and admitted the marijuana and methamphetamine into evidence. The trial court found Powell guilty as charged. The trial court sentenced Powell to concurrent terms of one and one-half years for each class D felony conviction to be served in the Indiana Department of Correction.
The first issue is whether the trial court abused its discretion by admitting into evidence the marijuana and methamphetamine discovered in Powell's vehicle. The admission and exclusion of evidence falls within the sound discretion of the trial court, and 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).
Powell argues that the admission of the marijuana and methamphetamine into evidence violated his constitutional rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Specifically, Powell argues that Officer Deshaies's initial approach towards the vehicle in which Powell was seated did not constitute a consensual encounter, but rather constituted an investigatory stop. However, the State argues that Officer Deshaies's initial approach to Powell and his vehicle constituted a consensual encounter which did not implicate the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution. We address Powell's arguments under the federal and state constitutions separately.
Powell first argues that Officer Deshaies's initial approach towards the vehicle in which he was an occupant constituted an investigatory stop and an illegal seizure under the Fourth Amendment, rendering the subsequent search of his vehicle also illegal. The Fourth Amendment to the United States Constitution guarantees the right to be secure against unreasonable search and seizure....
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