Smith v. State
| Decision Date | 01 November 2022 |
| Docket Number | 22A-CR-28 |
| Parties | Richard D. Smith, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff, |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata collateral estoppel, or the law of the case.
Appeal from the Wabash Superior Court The Honorable Benjamin D.R Vanderpool, Judge Trial Court Cause No. 85D01-1908-F6-1221
Attorney for Appellant Justin R. Wall Wall Legal Services Huntington, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
[¶1] Richard Smith filed a motion to suppress evidence in his criminal case. Smith raises one issue for our review in this interlocutory appeal: whether the trial court erred in denying his motion to suppress. Concluding that the trial court did not err, we affirm.
[¶2] On August 24, 2019, Deputy Matthew Cox of the Wabash County Sheriff's Department was traveling behind a blue Ford Mustang driven by Smith. Aaron Tooley was a passenger in Smith's vehicle at the time. After Deputy Cox pulled behind Smith, Smith slowed his vehicle to forty-nine miles per hour in a fifty-five miles per hour zone. Deputy Cox believed this was "an indicator of criminal activity[.]" Appellant's Appendix, Volume II at 63. Deputy Cox then checked the vehicle registration and discovered the vehicle belonged to Smith. Deputy Cox knew Smith "to be involved in the trafficking of large amounts of illegal narcotics, namely methamphetamine, and to be commonly armed with a firearm." Id. Deputy Cox had previously received information that Smith "has commonly concealed illegal drugs in magnetic boxes." Transcript of Evidence, Volume 2 at 16.
[¶3] Smith then pulled into a vehicle maintenance shop, the first publicly available place to pull into. Deputy Cox followed Smith into the parking lot. Deputy Cox pulled in behind Smith and both vehicles faced the same direction. See Exhibits, Volume 1 at 17. But Deputy Cox testified that his vehicle remained near the entrance instead of pulling directly behind Smith and that he was "very conscious . . . to make sure to not block him in." Tr., Vol. 2 at 13. Deputy Cox was driving a marked police vehicle but did not initiate his lights. Deputy Cox then witnessed Smith, who had exited his vehicle, kneeling in front of another vehicle. Deputy Cox approached Smith on foot and Smith indicated to Deputy Cox that he was there to meet Mike Sadler to get work done on his car. However, both Smith and Tooley began talking on their phones and based on what Deputy Cox heard, he believed "they had absolutely no actual meeting [and] were essentially scrambling to get [Sadler] there." Id. at 18. This led Deputy Cox to believe they had simply pulled into that parking lot to evade him.
[¶4] Deputy Cox then requested back-up, and once additional officers arrived, Deputy Cox could clearly observe that Smith had knives on his person. Deputy Cox then had his K9 conduct a free-air sniff around the vehicle. The K9 positively alerted on the vehicle. Smith and his companion were then detained, and the vehicle was searched. Officers located methamphetamine and small plastic baggies in the vehicle and upon searching Smith's person found another small bag of methamphetamine, as well as a baggie containing a white powdery substance believed to be heroin.
[¶5] The State charged Smith with possession of methamphetamine and possession of a narcotic drug, both Level 6 felonies. The State also alleged that Smith was an habitual offender. Smith then filed a motion to suppress "as evidence all items seized pursuant to the search of the vehicle . . ., observations and statements made during or as a result of the execution of the search as well as . . . evidence found on the Defendant during his detention and arrest[.]" Appellant's App., Vol. II at 157. Smith argued that Deputy Cox lacked reasonable suspicion that he was committing a crime and thus his detention and the subsequent searches violated the Fourth Amendment to the United States Constitution and Article 1, section 11 of the Indiana Constitution.
[¶6] Following a hearing, the trial court denied Smith's motion to suppress evidence. Smith now appeals. Additional facts will be provided as necessary.
[¶7] We review the denial of a motion to suppress in a manner similar to reviewing the sufficiency of evidence. Sanders v. State, 989 N.E.2d 332, 334 (Ind. 2013). We do not reweigh the evidence. Id. We consider conflicting evidence most favorable to the trial court's ruling, as well as undisputed evidence favorable to the defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). "We defer to a trial court's determination of historical fact, but we review de novo whether those facts constitute reasonable suspicion." Johnson v. State, 21 N.E.3d 841, 844 (Ind.Ct.App. 2014), trans. denied. "The record must disclose substantial evidence of probative value that supports the trial court's decision." State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006).
[¶8] Smith contends that the trial court's denial of his motion to suppress violated the Fourth Amendment to the United States Constitution, which provides, in pertinent part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]"[1] As a general rule, the Fourth Amendment prohibits warrantless searches. Berry v. State, 704 N.E.2d 462, 464-65 (Ind. 1998). Consequently, when a search is conducted without a warrant, the State has the burden of proving the search falls into one of the exceptions to the warrant requirement. Id. at 465.
[¶9] One exception to the warrant requirement is commonly called a "Terry stop." In Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the United States Supreme Court held that a police officer may, without a warrant or probable cause, briefly detain a person for investigatory purposes, if, based upon specific and articulable facts, the officer has reasonable suspicion that criminal activity may be afoot.
[¶10] Smith argues Deputy Cox lacked reasonable suspicion that criminal activity was afoot. Here, Deputy Cox followed Smith into a parking lot, approached him on foot, and had a conversation with him prior to police back up arriving and Deputy Cox subsequently conducting a K9 search on Smith's car. The State concedes that once back up arrived, Smith was being detained and a Terry stop was being conducted which required reasonable suspicion. See Brief of Appellee 16. However, we must first determine whether Deputy Cox's initial contact with Smith was consensual or whether it was afforded Fourth Amendment protection. See State v. Calmes, 894 N.E.2d 199, 202 (Ind.Ct.App. 2008) ( a consensual encounter does not implicate the Fourth Amendment) (opinion on rehearing).
[¶11] Smith argues the initial interaction with Deputy Cox was not consensual. When determining whether an interaction was a consensual encounter, our evaluation turns on "whether a reasonable person would feel free to disregard the police and go about his or her business." Clark v. State, 994 N.E.2d 252, 261 (Ind. 2013) (quotation omitted). The test is objective; therefore, we consider not whether the particular citizen actually felt free to leave, but whether the officer's words and actions would have conveyed to a reasonable person that he was free to leave. Id. [¶12] Examples of facts and circumstances that might lead a reasonable person to believe he was not free to leave could 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 absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person." Id. (citing United States v. Mendenhall, 466 U.S. 544, 555 (1980)).
[¶13] Smith contends that because Deputy Cox impeded his ability to leave by "parking directly behind him[,] Deputy Cox was armed with his sidearm, [and in] full police uniform," he did not believe he was free to leave.[2] Appellant's Brief at 25. Deputy Cox was driving a marked police vehicle but did not initiate his lights and at no point drew his weapon. Further, Deputy Cox testified that he did pull in behind Smith, but maintained that his vehicle remained near the entrance instead of pulling directly behind Smith and that he was "very conscious . . . to make sure to not block him in."[3] Tr., Vol. 2 at 13.
[¶14] After parking, Deputy Cox walked over to Smith and engaged in conversation. Smith did not give Deputy Cox any indication that he or Tooley wanted to leave and in fact they stated that they were waiting on Sadler. At one point, both Smith and Tooley were on their phones while in Deputy Cox's presence. See Overstreet, 724 N.E.2d at 664 ("As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy to require some particularized and objective justification.").[4] The record is clear that the initial interaction between Deputy Cox and Smith was inoffensive, and a reasonable person would have believed he was free to...
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