Sellmer v. State, 29A04-0303-CR-147.

• Court: Court of Appeals of Indiana
• Citation: 800 N.E.2d 671
• Docket Number: No. 29A04-0303-CR-147.,29A04-0303-CR-147.
• Parties: Sarah SELLMER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Decision Date: 23 December 2003

800 N.E.2d 671

Sarah SELLMER, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 29A04-0303-CR-147.

Court of Appeals of Indiana.

December 23, 2003.

800 N.E.2d 673

Stephen Gerald Gray, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

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OPINION

BAKER, Judge.

This case turns on the issue of whether, and at what point, the appellant was "in custody" prior to her formal arrest. Appellant-defendant Sarah Sellmer appeals her conviction for Possession of Marijuana,

800 N.E.2d 674

over thirty grams,¹ a class D felony. Specifically, Sellmer contends that the trial court erred in denying her motion to suppress because police officers, who were acting entirely on an anonymous tip, detained and interrogated her and then searched her vehicle without any independent evidence of criminal activity. Concluding that Sellmer was not in custody prior to her consent to the search of the vehicle, we hold that the initial encounter with the police officers and the subsequent search of her vehicle were lawful. We further find that because Sellmer made incriminating statements admitting ownership of the marijuana that was seized from her vehicle during custodial interrogation that violated the rule set forth in Miranda v. Arizona,² those statements were improperly admitted at trial. However, the statements were harmless error in this circumstance, and we therefore affirm Sellmer's conviction

FACTS

On November 19, 2001 at approximately 5:00 p.m., the Noblesville Police Department received an anonymous tip that drugs could be found in a silver Dodge automobile that was parked near the local Supercuts Hair Salon. Acting on this information, Noblesville Police Officer Wade Roberts went to the scene and noticed the vehicle that had been described. He did not know who had supplied the information, how the tipster acquired the facts, or where in the vehicle the drugs might be found.

Officer Roberts and another policeman, who was driving a separate police cruiser, both parked near the Dodge. The parking spots of the two police cars were separated from the Dodge by a sidewalk that was located near the Supercuts. As Officer Roberts approached the vehicle, he saw two women exit the Dodge and enter the salon.

When Officer Roberts went inside, he observed Sellmer, who had been in the driver's seat, in the customer waiting area completing some paperwork. He also noticed that the passenger in the vehicle was cutting another individual's hair. Officer Roberts asked Sellmer if she owned the vehicle, and, when she answered that she did, he asked her to step outside the salon so they could talk further. Once outside, Officer Roberts advised Sellmer of the anonymous report that was made to the police department, and she denied that there were any drugs in the car. Officer Roberts then asked Sellmer if he could search the vehicle, and she responded unequivocally that he could because she had nothing to hide. Up to the time of conducting the search, Sellmer had not been "Mirandized," and she was not told that she had the right to counsel before consenting to the search.

When Officer Roberts opened the driver's side door, he discovered a plastic baggie with a small amount of a green leafy substance that was subsequently determined to be marijuana. Officer Roberts asked Sellmer if she "knew anything about this?" Tr. p. 28. Sellmer responded, "Yes, that's mine." Tr. p. 28. Continuing the search in the backseat area of the car, Officer Roberts seized a large brick of a substance that also tested positive for marijuana. He then held up the brick and asked Sellmer what she knew about it. Sellmer stated, "Yes, that would be mine also." Tr. p. 30.

Sellmer was then formally arrested and charged with the above offense. On May

800 N.E.2d 675

29, 2002, Sellmer filed a motion to suppress, arguing that the detention and subsequent search of her vehicle, along with any incriminating statements she made to Officer Roberts, violated the Fourth and Fifth Amendments of the United States Constitution and Article I, section 11 of the Indiana Constitution. Following a hearing, the trial court denied Sellmer's motion to suppress on August 15, 2002. Thereafter, a trial by court was held on January 23, 2003, and Sellmer was found guilty as charged. She now appeals

DISCUSSION AND DECISION

I. Standard of Review

In addressing the claims that Sellmer presents today, we note that a trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse such a ruling only upon a showing of an abuse of discretion. Goodner v. State, 714 N.E.2d 638, 641 (Ind. 1999). Additionally, a trial court's decision to deny a motion to suppress is reviewed as a matter of sufficiency of the evidence. Edwards v. State, 759 N.E.2d 626, 630 (Ind.2001). We neither reweigh the evidence nor judge the credibility of witnesses. Id. Rather, we consider the evidence most favorable to the ruling together with any adverse evidence that is uncontradicted. State v. Glass, 769 N.E.2d 639, 641 (Ind.Ct.App.2002), trans. denied. If we find sufficient evidence of probative value to support the denial of the motion to suppress, the decision of the trial court will be upheld. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997).

II. Sellmer's Claims

A. Initial Encounter and Alleged Detention

Sellmer first contends that the evidence should have been suppressed because she was detained and questioned without legal justification. Specifically, Sellmer argues that the initial encounter with the Noblesville police amounted to an unlawful investigative stop that eventually became custodial. Appellant's Br. p. 8.

In addressing this issue, we note that a person is not seized within the meaning of the Fourth Amendment by police officers merely approaching an individual in a public place and asking if the person is willing to answer questions, or by offering into evidence in a criminal prosecution the voluntary answers to those questions. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Whether the "detention" of a suspect occurs turns on an evaluation, under all the circumstances, of whether a reasonable person would feel free to disregard the police and go about his or her business. Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003) (citing California v. Hodari., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). To characterize every street encounter between a citizen and the police as a seizure, while not enhancing any interest guaranteed by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. United States v. Mendenhall, 446 U.S. 544, 551, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Although the individual is not obligated to listen to the questions or to answer them, if he does so he is not detained. Royer, 460 U.S. at 497, 103 S.Ct. 1319.

We note that in Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984), the evidence established that a police officer stopped a suspect who appeared to be fleeing, and asked him to move approximately fifteen feet away to where another officer was standing with the suspect's two cohorts. The United States Supreme Court determined that

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"the initial contact between the officer and respondent, where they simply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates no Fourth Amendment interest." Id. at...