Sears v. State, No. 49S00-9407-CR-608

Docket NºNo. 49S00-9407-CR-608
Citation668 N.E.2d 662
Case DateJuly 09, 1996
CourtSupreme Court of Indiana

Page 662

668 N.E.2d 662
James SEARS, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 49S00-9407-CR-608.
Supreme Court of Indiana.
July 9, 1996.

Page 664

S. Sargent Visher, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.


SULLIVAN, Justice.

On September 14, 1992, defendant James Sears was charged with two counts of Murder 1, Attempted Murder 2 (Class A felony), Robbery 3 (Class A felony), Attempted Robbery 4 (Class A felony), Kidnapping 5 (Class A felony), and Carrying a Handgun Without a License 6 (Class A misdemeanor). On January 27, 1994, the jury found defendant guilty of all charges. Upon sentencing, the trial court merged the two murder convictions and sentenced the defendant to consecutive terms of imprisonment of 60 years for Murder, 50 years for Attempted Murder, 20 years for Robbery, 20 years for Attempted Robbery, and 50 years for Kidnapping. Defendant was also sentenced to one year for Carrying a Handgun Without a License, to be served concurrent to the sentence for murder. Pursuant to Rule 4(A)(7) of Indiana Appellate Procedure, defendant then directly appealed his convictions to this court. We Affirm.


On September 13, 1992, defendant approached Wilbur Colen, Jon Bewley and Joe Shevenell who were playing golf at the Coffin golf course in Indianapolis. Defendant robbed Shevenell at gunpoint. He then approached Bewley. When Bewley told defendant that he did not carry his wallet with him while he was golfing, defendant became angry. Then, while defendant was distracted by Colen, Bewley tried to get the gun from the defendant and a struggle took place.

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During the struggle, Bewley knocked the gun from defendant's hand. It was after this struggle that defendant picked up the gun and shot Colen, killing him.

Soon after the shooting, defendant telephoned Jamie Swanson, his ex-girlfriend and mother of his son, who lived near the golf course. Defendant told her that he wanted to see their son and they agreed to go out to dinner that evening. After dinner, Swanson began driving north away from town. As they drove, defendant began to talk about starting a new life. He also stated that he was wanted by the police. When Swanson asked him what he meant, he told her that he was responsible for the shooting at the golf course. Upon hearing this, Swanson tried to turn around and go home, but defendant pulled out a gun and told her to keep driving. Soon after this, defendant made Swanson switch seats with him so he could drive. While switching seats defendant made Swanson stay inside the car and slide over to the passenger side. At one point as defendant drove, he said that he would shoot Swanson because she wasn't letting him see his son.

In an effort to get help, Swanson told defendant that the baby needed milk and suggested they stop at a fast food restaurant in Pendleton. When they got to the restaurant, Swanson told defendant that she needed to use the rest room and he followed her into the restaurant and waited outside the rest room. While Swanson was in the rest room, a teenage girl came in and Swanson asked the girl for help. Swanson told the girl to call the police or have the manager call the police because her ex-boyfriend had kidnapped her and her son. When Swanson came out of the rest room, she told defendant that they needed to warm the milk and suggested that they go across the street to a gas station/convenience store. While Swanson waited in the car, defendant went into the store part of the gas station and warmed the milk. As he came out and got back into the car, the police arrived. After several searches, to be discussed in greater detail below, the police arrested defendant and took him back to the Madison County jail. Soon after that, they transferred defendant to the Marion County jail where he was charged with murder.


Defendant presents four issues on review: (i) whether it was error to admit evidence seized from defendant's person without a warrant; (ii) whether it was error for the trial court to permit the use of a statement defendant made to the media; (iii) whether the judgment that the defendant committed the crime of kidnapping was error due to insufficient evidence and improper jury instructions; and (iv) whether the 200 year sentence was extreme and disproportionate to the offenses committed.


Officer Moore of the Pendleton Police Department and Deputy Morgan of the Madison County Sheriff's Department had responded to a report of "a man with a gun holding a female against her will." The police had originally gone to the restaurant across the street, and saw no one matching the description they had received. The officers then saw defendant across the street at the gas station/convenience store. They approached the car and asked if defendant had been at the restaurant across the street. Swanson made eye contact with them and asked for help. The officers had defendant step out of the car and they put him in handcuffs. While Officer Moore patted down defendant outside the car, Deputy Morgan talked to Swanson in her car. During this initial search of defendant, Officer Moore found nothing.

While Officer Moore was patting down defendant, Swanson told Deputy Morgan that defendant had a weapon. Deputy Morgan then related this information to Officer Moore who conducted a second pat down search of defendant. This second search revealed a gun in the pouch of defendant's jacket. Officer Moore asked defendant if he had a license to carry the weapon, and he said that he did but that it was at home. Officer Moore then placed defendant in the patrol car. At this time defendant also gave his name as James Jones and gave a birth

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date and Social Security number to Officer Moore.

Officer Moore radioed a request for a warrant check on James Jones using the birth date and Social Security number he had been provided by defendant. While waiting for the response, Officer Moore consulted with Deputy Morgan. Deputy Morgan gave Officer Moore additional information provided by Swanson: that the subject's name was James Sears, and he had a slightly different birth date and Social Security number. She also said that defendant had been involved in a homicide in Indianapolis. It was at that point that Officer Moore conducted the third search. Officer Moore checked defendant's pockets more thoroughly and found a check stub and a driver's license belonging to a Mr. Shevenell.

Officer Moore then radioed back to the state police to find out if they had any information on a Mr. Sears or a Mr. Jones. After a time, Officer Moore was told that there was an active traffic warrant for Sears and that there was no handgun permit issued to a person named Sears with the corresponding information. Officer Moore then read defendant his Miranda rights and transported him to the Madison County jail.

Defendant contends that the trial court improperly admitted the Shevenell driver's license and check stub into evidence. 7 His theory is that these items were the product of a warrantless search. Citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and Murrell v. State, 421 N.E.2d 638 (Ind. 1981), defendant accurately states that a warrantless search is per se unreasonable and the state bears the burden of establishing that the warrantless search falls within an exception to the warrant requirement.

We believe the state easily met that burden here. The trial court overruled the motion to suppress the use at trial of the driver's license and the check stub based on grounds that defendant was searched incident to a valid arrest. The judge explained his denial of the motion to suppress as follows:

I think that the police had reason to initially detain him; and, after detaining him, developed probable cause to believe that he may have committed a felony. After that probable cause was developed and he was placed in handcuffs, he was certainly taken or seized to answer for a crime. And, being handcuffed, I certainly think that indicates facts and circumstances communicating to Mr. Sears that he was under arrest and was not free to leave by police officers who had the authority to make that--make that arrest. During the course of their investigation they found a weapon. No license to possess that weapon was discovered. I think that they had probable cause at that time--further probable cause--to make an arrest for carrying a handgun without a license. And, all subsequent pat-downs or searches of Mr. Sears person were as a result of that lawful arrest for carrying a handgun without a license. So, for those reasons, at this time I would deny the Motion to suppress.

As with many search cases and probable cause issues, the timing of events and the officer's knowledge are critical in determining the validity of the search. It is well established that the police can search without a warrant if it is incident to a valid arrest. Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S.Ct. 2793, 2799-800, 111 L.Ed.2d 148 (1990); Hill v. California, 401 U.S. 797, 803-804, 91 S.Ct. 1106, 1110-1111, 28 L.Ed.2d 484 (1971); Townsend v. State, 460 N.E.2d 139, 141 (Ind. 1984). It is equally well settled that a police officer may arrest a suspect without a warrant if that officer has

Page 667

probable cause to believe that the suspect has committed a felony. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985); United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 824-825, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925); Bergfeld v. State, 531 N.E.2d 486, 489 (Ind. 1988). Probable cause exists when, at the time of the arrest, the arresting officer has knowledge of facts and circumstances which would warrant a man of reasonable caution to...

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