Scott v. State
| Decision Date | 03 November 2006 |
| Docket Number | No. 82A01-0603-CR-105.,82A01-0603-CR-105. |
| Citation | 855 N.E.2d 1068 |
| Parties | Dupree SCOTT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
John Andrew Goodridge, Evansville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-defendant Dupree Scott ("Scott") appeals his convictions for possession of cocaine as a Class B felony,1 possession of cocaine as a Class C felony,2 and carrying a handgun without a license as a Class C felony.3 We affirm in part and remand in part with instructions.4
Scott raises one issue, which we restate as whether the trial court abused its discretion by admitting certain evidence at trial, in violation of the United States Constitution.
In addition, we examine, sua sponte, whether Scott's convictions for possession of cocaine as a Class B felony in conjunction with his simultaneous conviction for possession of cocaine while also possessing a handgun as a Class C felony violate the Indiana Constitution's prohibition against double jeopardy.
Officers Jack Spencer ("Officer Spencer") and Jason Cullum ("Officer Cullum"), who were employed by the Evansville Police Department, also worked as off-duty security officers for the Evansville Housing Authority ("EHA"). As EHA officers, Officers Spencer and Cullum were empowered to enforce the rules and regulations of the EHA on the various EHA properties. These rules included restrictions to prevent trespassing, requiring visitors to be with residents at all times while on the property, carry identification, and not to loiter or wander on the property. Notices were posted throughout Erie Homes, an EHA property, informing visitors that loitering and trespassing are prohibited and that visitors are to proceed directly to the unit of the resident they are visiting. Residents of the apartments are given the rules regarding visitors and are required to sign a copy. The EHA had an agreement with the Evansville Police Department that allowed EHA to hire off-duty officers to come onto EHA property to enforce the trespassing rules by requesting identification from individuals loitering on the property. If a person is found violating the no trespassing rule, the officer informs the person of the rule and asks him to leave the property. If the person does not subsequently leave the premises, the officer can arrest the person. Officers are also given a list of individuals who are barred from the property.
On the evening of July 14, 2005, Officers Spencer and Cullum were on patrol in a marked squad car and entered the Erie Homes complex, an EHA property, turning onto Canal Street. The officers observed a group of individuals standing on the north side of Canal Street in the complex, not near any entrance to the complex. Intending to question the group of people and request identification, the officers stopped their car. As soon as the police car pulled into a parking space, the individuals in the group looked up and saw the police car. Immediately, two individuals departed from the group, subsequently splitting up and walking in different directions. Scott was one of these individuals. Scott quickened his pace to a brisk walk as he was leaving the area and continued to glance back at the officers.
The officers exited their car, and Officer Cullum pursued Scott on foot while Officer Spencer pursued the other individual. Officer Cullum called out to Scott to "come back towards me." Transcript at 181. Scott looked back and said, "Who me?", while continuing to walk away from Officer Cullum at a brisk pace. Id. Officer Cullum repeated his request, and Scott complied. After Scott turned towards Officer Cullum, he placed his hands in his front pockets. Officer Cullum testified that he did not observe any bulges in Scott's clothing other than where his hands were in the pockets of his baggy pants.
For safety reasons, Officer Cullum instructed Scott to take his hands out of his pockets, so he could see them. In direct contradiction of the instruction, Scott pushed both of his hands deeper into his pockets. Fearing that Scott may have a weapon, Officer Cullum then put Scott in a chest-to-chest bear hug restraining position to prevent Scott from being able to remove his hands from his pockets. Then Officer Cullum maneuvered Scott to the ground. During the descent, Scott spun so that his back was to Officer Cullum. Upon impact with the ground, a chrome revolver also clattered onto the ground and came to rest to their left.
Officer Cullum yelled, "Gun, gun, gun" to alert his partner, Officer Spencer, of the weapon and then knocked the gun out of reach. At this point, Scott was moving his right arm as if he was throwing something. Officer Cullum grasped Scott's arm and pried open his clenched fist, revealing a tissue containing five to six pieces of what appeared to be cocaine. Placing Scott under arrest, Officer Cullum handcuffed Scott. After a search of the vicinity where Scott and Officer Cullum had landed, additional individually wrapped pieces of what appeared to be cocaine were found. Upon searching Scott after his arrest, a fifty round box of ammunition and some loose rounds were also recovered. The substance suspected to be cocaine found during the incident at Erie Homes was later proven to be cocaine. The entire incident occurred within 1000 feet of Lincoln Elementary School.
In its amended charging information, the State charged Scott with: (1) possession of cocaine as a Class B felony; (2) dealing in cocaine as a Class B felony; (3) possession of cocaine as a Class C felony; (4) carrying a handgun without a license as a Class C felony; and (5) resisting law enforcement as a Class A misdemeanor. On October 19, 2005, Scott filed a Motion to Suppress the physical evidence and any other evidence collected as a result of Scott's detainment and arrest. On October 25, 2005, after holding a hearing the previous day, the trial court denied the motion. During the jury trial, Scott renewed his motion to suppress at the start of the trial and again during the testimony of Officer Spencer and Officer Cullum. After the trial, the jury found Scott guilty of all counts except for the fifth, resisting law enforcement. However, the trial court vacated Count 2, dealing cocaine, because it was a lesser-included offense of Count I, possession of cocaine as a Class B felony. The trial court sentenced Scott to the Indiana Department of Correction for an aggregated sentence of six years. Scott now appeals his convictions.
Scott argues that the trial court erred when it denied his Motion to Suppress and admitted the evidence resulting from the stop and arrest of Scott claiming the initial encounter with Officer Cullum was an illegal seizure under both the United States and Indiana Constitutions. Because Scott did not seek an interlocutory appeal after the denial of his Motion to Suppress, the issue presented is more appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial. Washington v. State, 784 N.E.2d 584, 586-87 (Ind.Ct.App.2003).
A trial court has broad discretion in ruling on the admissibility of evidence. Washington, 784 N.E.2d at 587. Accordingly, we will only reverse a trial court's ruling on admissibility of evidence when the trial court has abused its discretion. Id. An abuse of discretion occurs when a trial court's decision is clearly against the logic and effect of the facts and the circumstances before the court. Id.
On appeal, Scott argues that the trial court erred in admitting evidence obtained by law enforcement officers as a result of an illegal seizure. In particular, Scott contends that the State violated his state and federal constitutional rights to be free of unreasonable searches and seizures because the initial encounter between him and Officer Cullum was not voluntary, based on probable cause, or based on reasonable suspicion. Before proceeding, it is important to clarify that Scott does not dispute that Officer Cullum had probable cause to physically restrain him and then subsequently arrest him upon discovering the weapon and cocaine. Therefore, we limit our review to the narrow issue of whether the event of Officer Cullum requesting Scott to stop was an illegal seizure.
Although Scott frames an issue of illegality under the Indiana Constitution, the arguments of both parties truly only address caselaw on the Fourth Amendment to the U.S. Constitution, so we limit our analysis accordingly. At oral argument, contrary to arguments presented in its brief, the State conceded5 that the initial encounter between Scott and Officer Cullum was not consensual,6 requiring Officer Cullum to have reasonable suspicion for the stop to comply with the Fourth Amendment. Additionally, the State concurred with Scott that the stop occurred when Scott yielded to the request to stop.
Terry set forth the rule that police can briefly detain an individual for investigatory purposes without a warrant if, based on specific and articulable facts, the officer has 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). Reasonable suspicion entails some minimal level of objective justification for making a stop, something more than an unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. Wilson v. State, 670 N.E.2d 27, 29 (Ind.Ct.App.1996) (citing U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Even if the stop is justified, a reasonable suspicion only allows the officer to temporarily freeze the situation for inquiry and does not give him all the rights attendant to an arrest. Burkett v. State, 736...
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