Shirley v. State, 49A02-0306-CR-480.

• Decision Date: 13 February 2004
• Docket Number: No. 49A02-0306-CR-480.,49A02-0306-CR-480.
• Citation: 803 N.E.2d 251
• Parties: Michael SHIRLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

803 N.E.2d 251

Michael SHIRLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0306-CR-480.

Court of Appeals of Indiana.

February 13, 2004.

Ann M. Sutton, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROOK, Chief Judge.

Case Summary

Appellant-defendant Michael Shirley appeals his conviction for possession of a controlled substance,¹ a Class D felony. We affirm.

Issues

Shirley raises two issues, which we restate as:

I. Whether the evidence obtained from a search of Shirley should have been suppressed due to an alleged improper initial stop; and

II. Whether the State presented sufficient evidence to support the guilty verdict.

Facts and Procedural History

On June 2, 2002, around 2:20 a.m., Indianapolis Police Officer Jayson Campbell saw Shirley riding a bicycle erratically. That is, Shirley was weaving between the northbound and southbound lanes of North Sherman Drive and fell off the bicycle two or three times. Concerned that Shirley might be having a health problem or was impaired, Officer Campbell asked him as he rode closer if he was all right. "Yeah, I'm fine, I'm fine, I'm just, you know, riding my bike," replied Shirley. Tr. at 25. Noticing that Shirley had a strong odor of an alcoholic beverage on his breath, glassy eyes, slightly slurred speech, and swayed as he spoke, Officer Campbell suspected intoxication and requested identification. Shirley complied. Upon relaying the information to a control operator, Officer Campbell learned that Shirley had an outstanding warrant.

Officer Campbell placed Shirley under arrest pursuant to the warrant and conducted a search incident to arrest. Officer Campbell found in Shirley's front right pant pocket an unlabeled pill bottle containing four pills for which Shirley had no prescription. Officer Campbell described the pills to the control operator, who advised him that they were Roxicet, Oxycontine, a Schedule II controlled substance.² Shirley stated, "Man, I got those pills from my mom." Id. at 27. At that point, Officer Campbell arrested Shirley for possession of controlled substance and public intoxication.

The State charged Shirley with possession of a controlled substance. Shirley filed a motion to suppress the evidence obtained during the search. The trial court held a hearing on the motion in mid-December 2002. Following the denial of the motion, a trial occurred, resulting in a guilty verdict.

Discussion and Decision

I. Denial of Motion to Suppress and Admission of Evidence

Shirley asserts that Officer Campbell did not have reasonable suspicion to stop him, and that therefore the evidence found during the ensuing search of Shirley should have been suppressed. In particular, Shirley contends that Officer Campbell was not responding to any call, saw nothing more than Shirley get off his bike, and had no indication that Shirley was about to commit any criminal offense. Shirley further notes that while Officer Campbell stopped Shirley for safety issues, "Officer Campbell did not have any concerns about Shirley's safety as he passed him" and "did not detail the traffic at the time to substantiate his concern." Appellant's Br. at 11.

Citing Quinn v. State, 792 N.E.2d 597 (Ind.Ct.App.2003), trans. denied, the State responds that the "propriety of the stop is irrelevant in light of the outstanding arrest warrant for [Shirley] discovered by Officer Campbell." Appellee's Br. at 4. We cannot agree. In Quinn, we held that "where a stop was undertaken on less than reasonable suspicion, but with the purpose of executing a lawful outstanding arrest warrant, the trial court properly denied" the defendant's motion to suppress "because the intervening lawful arrest was sufficient to remove the taint of any police illegality." Quinn, 792 N.E.2d at 603. In Quinn, the officer knew of an outstanding arrest warrant for the defendant and stopped the defendant-driver specifically to execute the warrant despite the fact that the defendant-driver had not committed any traffic violations. In the present case, Officer Campbell had no idea there was an arrest warrant for Shirley until he radioed in Shirley's identification. Thus, we find Quinn inapposite here. See id. (Riley, J. concurring in result with opinion).

"We review a trial court's ruling on a motion to suppress for an abuse of discretion." Jefferson v. State, 780 N.E.2d 398, 403 (Ind.Ct.App.2002); see also Crabtree v. State, 762 N.E.2d 241, 244 (Ind.Ct. App.2002). "Generally, no abuse of discretion occurs where there exists sufficient evidence justifying the initial seizure." Jefferson, 780 N.E.2d at 403. As in other sufficiency matters, the record must disclose substantial evidence of probative value that supports the trial court's decision. See Finger v. State, 799 N.E.2d 528, 533 (Ind.2003). We do not reweigh the evidence and we consider conflicting evidence most favorably to the trial court's ruling. Id.; see also Crabtree v. State, 762 N.E.2d 217, 219 (Ind.Ct.App.2002) (citing Edwards v. State, 759 N.E.2d 626, 630 (Ind.2001)).

Our supreme court has summarized the three levels of police investigation:

The Fourth Amendment regulates nonconsensual encounters between citizens and law enforcement officials and does not deal with situations in which a person voluntarily interacts with a police officer. A full-blown arrest or a detention that lasts for more than a short period of time must be justified by probable cause. A brief investigative stop may be justified by reasonable suspicion that the person detained is involved in criminal activity.

Finger, 799 N.E.2d at 532 (emphases added).

In order to determine whether Officer Campbell impinged upon Shirley's Fourth Amendment rights, we must first analyze what level of police investigation occurred. As the above excerpt indicates, not every encounter between a police officer and a citizen amounts to a seizure requiring objective justification. Indeed, 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. See United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). As long as an individual engaged by the police remains free to leave, the encounter is consensual, see Jefferson, 780 N.E.2d at 403, and there has been no intrusion upon that person's liberty or privacy to require some particularized and objective justification. See Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. Examples of circumstances under which a reasonable person would have believed he was not free to leave include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Overstreet v. State, 724 N.E.2d 661, 664 (Ind.Ct. App.2000), trans. denied.

In the present case, at 2:20 a.m., Officer Campbell observed Shirley both weaving his bicycle between the northbound and southbound lanes and falling off the bicycle two or three times. Officer Campbell did not stop Shirley per se. Rather, concerned about possible impairment of health or otherwise, Officer Campbell simply asked Shirley as he rode closer if he was all right. At that time, no other officers were present. Moreover, no evidence was presented that would indicate that Officer Campbell displayed a weapon or that he spoke using language, or in a tone of voice, mandating compliance. Instead, at this point, the situation appeared to be just the sort of voluntary interaction wherein a law enforcement officer was simply making a "casual and brief inquiry of a citizen which involves neither an arrest nor a stop." See id. at 663. Thus, the Fourth Amendment was not implicated up to that point.

However, in speaking with Shirley, Officer Campbell noticed that Shirley had "a strong odor of an alcoholic beverage on this breath," glassy eyes, slightly slurred speech, and a sway. This additional information, coupled with the manner in which Shirley was maneuvering his bicycle at 2:20 a.m., caused Officer Campbell to suspect that Shirley was intoxicated. Hence, the officer requested identification and the casual inquiry became a stop. See Finger, 799 N.E.2d at 533 (noting how officer's retention of a driver's license converted a consensual encounter into an investigative stop requiring reasonable suspicion).

To withstand Constitutional scrutiny, an investigatory stop requires the presence of a reasonable suspicion based on articulable facts which, together with the reasonable inferences arising therefrom, would permit an ordinary prudent person to believe that criminal activity has or was about to occur. Burkett v. State, 736 N.E.2d 304, 306 (Ind.Ct.App.2000). "Such reasonable suspicion must be comprised of more than an officer's general `hunches' or unparticularized suspicions." Webb v. State, 714 N.E.2d 787, 788 (Ind.Ct. App.1999). The facts supporting a reasonable suspicion that criminal activity is afoot must rise to "some minimum level of objective justification" for the temporary detention of a person to be valid. Reeves v. State, 666 N.E.2d 933, 936 (Ind.Ct.App. 1996).

We have no trouble concluding that under the circumstances, Officer Campbell had reasonable suspicion to believe that criminal activity, specifically public intoxication,³ was afoot. Accordingly, Officer Campbell's request for identification was...