Segar v. State, 49A02-1003-CR-269.

• Docket Nº: No. 49A02-1003-CR-269.
• Citation: 937 N.E.2d 917
• Case Date: December 01, 2010
• Court: Court of Appeals of Indiana

937 N.E.2d 917

Robert SEGAR, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

No. 49A02-1003-CR-269.

Court of Appeals of Indiana.

Dec. 1, 2010.

937 N.E.2d 919

Suzy St. John, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Arturo Rodriguez II, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issue

Robert Segar was convicted, following a bench trial, of possession of marijuana, a Class A misdemeanor. On appeal, he raises two issues, of which we find the following restated issue dispositive: whether the trial court abused its discretion by admitting into evidence marijuana obtained following an investigatory stop and detention of Segar. Concluding in the affirmative because Segar's detention was not supported by the requisite reasonable suspicion, we reverse.

Facts and Procedural History ¹

On October 15, 2009, Officer Carl Grigsby of the Indianapolis Metropolitan Police Department was dispatched to 3179 Normandy Road on a report of a "burglary in progress." Transcript at 8. The dispatch contained a description of the suspect as a "white male wearing either a dark shirt or a dark coat." Id. The report of a burglary and the description of the suspect were provided to police by an anonymous telephone tip. The police department "tried to find out who [the tipster] was, but the phone line went dead and control couldn't get back to them." Id. at 14.

While in the vicinity of 3179 Normandy Road, Officer Grigsby saw Segar, a white male, walking northbound in the middle of the street and saw he was wearing a dark coat. Officer Grigsby stopped and detained Segar, whom he recognized because he had "seen him before." Id. at 9. Segar was "a little upset" that he was being stopped, but was otherwise cooperative. Id. at 14. Officer Grigsby also placed Segar in handcuffs, even as Segar continued to be nonthreatening, cooperative, and made no furtive movements. Officer Christopher Frazier arrived on the scene and saw that Segar was already handcuffed.

The officers obtained Segar's identifying information and learned he was "wanted in questioning on some burglaries in the area." Id. at 19. However, there were no warrants for Segar's arrest. Officer Grigsby then called the office of an IMPD burglary detective, whose personnel "stated that they were busy in the office and ... asked if [the officers] could transport [Segar] to their office." Id. at 10. Officer Frazier then conducted a patdown search of Segar's outer clothing, pursuant to standard protocol for officer safety which called for a patdown prior to placing any suspect in a police car. During the patdown, Officer Frazier noticed a bulge in Segar's left coat pocket that, based on his training and experience, felt like marijuana. Officer Frazier reached in and removed a clear plastic baggie, which contained a green leafy substance that testing later showed to be marijuana. Officer Grigsby placed Segar in the police car and transported him to the detective's office, where he was cleared of the burglary incident but placed under arrest for the marijuana.

The State charged Segar with possession of marijuana, a Class A misdemeanor.

937 N.E.2d 920

A bench trial was held, at which Segar objected to the admission of the marijuana on the grounds that he was unlawfully stopped and detained and the resulting search of his pocket therefore violated the Fourth Amendment to the U.S. Constitution and Article 1, section 11 of the Indiana Constitution. The trial court overruled Segar's objection, found him guilty as charged, and sentenced him to 180 days in jail with 178 days suspended. He now appeals.

Discussion and Decision

I. Waiver of Issue

The State initially argues Segar failed to make a timely objection to admitting the marijuana and therefore waived his claim of error. Our supreme court recently clarified that when a defendant challenges the admission of allegedly unlawfully seized evidence, "[a] contemporaneous objection at the time the evidence is introduced at trial is required to preserve the issue for appeal." Brown v. State, 929 N.E.2d 204, 207 (Ind.2010). Stated somewhat differently, "a claimed error in admitting unlawfully seized evidence at trial is not preserved for appeal unless an objection was lodged at the time the evidence was offered." Id. at 205.

The record shows Segar did object at the time the State moved to admit Exhibit 1, the marijuana, into evidence. See Tr. at 23. However, the State argues this was not a timely objection because both officers had already testified regarding their discovery of marijuana on Segar's person. The State contends their testimony already provided sufficient evidence to convict Segar and his objection therefore came too late. The State directs us to Lundquist v. State, 834 N.E.2d 1061 (Ind.Ct.App.2005). There, we concluded the defendant "failed to object to 1) testimony concerning the deputies' discovery, search, and collection of the marijuana, and 2) the State Police Chemist's testimony that the plant material collected by the deputies was marijuana with a weight of 182 grams." Id. at 1067. Under those circumstances, the defendant's objection to the admission of the actual marijuana was not a timely objection and his claim of error was waived. Id.

Here by contrast, the officers testified only that the green leafy substance recovered from Segar's pocket "resembled marijuana," tr. at 11 (Officer Grigsby), or was "believed to be marijuana," id. at 22 (Officer Frazier). Neither officer stated unequivocally that the plant material collected from Segar was in fact marijuana, as would have been required to prove Segar's conviction beyond a reasonable doubt absent additional...