Smith v. State

• Decision Date: 14 January 2003
• Docket Number: No. 44A05-0204-CR-158.,44A05-0204-CR-158.
• Citation: 780 N.E.2d 1214
• Parties: Kevin SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

780 N.E.2d 1214

Kevin SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 44A05-0204-CR-158.

Court of Appeals of Indiana.

January 14, 2003.

Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Stephen R. Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

HOFFMAN, Senior Judge.

Defendant-Appellant Kevin Smith (Smith) appeals his convictions of dealing in cocaine, a Class A felony, Ind.Code § 35-48-4-1, and possession of a controlled substance, a Class D felony, Ind.Code § 35-48-4-7. He also appeals his sentence with regard to his conviction of dealing in cocaine.

We affirm in part, and reverse and remand in part.

Smith presents two issues for our review which we restate as:

1. Whether the trial court erred by denying Smith's motion to suppress certain evidence obtained as a result of an allegedly illegal search.

2. Whether the trial court erred in sentencing Smith.

On January 30, 1999, the sheriff's department of LaGrange County, Indiana received information that Smith would be traveling a specific route back to LaGrange County from South Bend in a gray or silver Buick Riviera with a particular license plate number and would be transporting a large quantity of drugs. The car was spotted by an officer who eventually initiated a traffic stop for minor traffic violations. Smith was asked to exit the car, and, when Trooper Culler of the Indiana State Police conducted a pat-down search as a safety precaution, he found drugs in Smith's coat pocket. When Trooper Culler stated he had found drugs, Smith hit Trooper Culler on the forearm and attempted to flee. Based upon this incident, Smith was convicted of dealing in cocaine, possession of a controlled substance, and battery of a law enforcement officer. Smith was sentenced to an aggregate sentence of twenty years. This appeal ensued.

Smith first contends that the trial court erred by denying his motion to suppress the drugs found in his coat pocket during the pat-down search. Specifically, he argues that the seizure of the drugs violated the "plain feel" doctrine, and, therefore the drugs should have been suppressed.

The admissibility of evidence is within the sound discretion of the trial court, and we will not disturb the decision of the trial court absent a showing of abuse of that discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind.Ct.App.2000). We review the denial of a motion to suppress in a manner similar to other sufficiency matters. Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000), reh'g denied, trans. denied, 741 N.E.2d 1251 (2000). We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, we must also consider the uncontested evidence favorable to the defendant. Id.

Further, when evaluating the propriety of a warrantless search under the Fourth Amendment, we accept the factual findings of the trial court unless they are clearly erroneous. Burkett v. State, 691 N.E.2d 1241, 1244 (Ind.Ct.App.1998), reh'g denied, trans. denied. Findings of fact are clearly erroneous when the record lacks any facts or reasonable inferences to support them. Id. When determining whether the findings are clearly erroneous, this Court considers only the evidence most favorable to the judgment and the reasonable inferences flowing from that evidence. Id. In so doing, we will not judge witness credibility, or reweigh the evidence. Id.

In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the United States Supreme Court determined that police officers may seize contraband detected through the officer's sense of touch, hence the term "plain feel" doctrine, during a search of a person for weapons for the safety of the officer. The Court explained:

If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

Id. at 375-76, 113 S.Ct at 2137. To that end, this Court has previously determined that to allow the admission of contraband seized without a warrant under the "plain feel" doctrine, two factors must be fulfilled: (1) the contraband must have been detected during an initial search for weapons rather than during a further search, and (2) the identity of the item or items must have been immediately apparent to the officer. Burkett, 691 N.E.2d at 1244-45.

In the present case, defense counsel asked Trooper Culler several preliminary questions out of the presence of the jury, as follows:

DEFENSE COUNSEL: And in your deposition you told me that you believed it was drugs?

TROOPER CULLER: Correct.

DEFENSE COUNSEL: A belief is not positive, it's just a belief, is that correct?

TROOPER CULLER: In my mind what I believed I had a hold of was a controlled substance, the way it felt and the way it was—the way I could manipulate it in my fingers.

Tr. at 261 (emphasis added). The above-italicized portion is the statement with which Smith claims error. He asserts that this statement by Trooper Culler shows not only that Trooper Culler engaged in a further search by manipulating the object but also that it was not immediately apparent to the trooper that the object in Smith's pocket was contraband until he manipulated the item with his fingers. Thus, he argues that neither of the two requirements of the plain feel doctrine are fulfilled in this case.

Here, Smith appears to contend that Trooper Culler's alleged manipulation of the object in Smith's pocket constitutes a "further search" that rendered the subsequent seizure of the drugs unconstitutional. Smith cites Dickerson in support of his argument; however, in Dickerson, the officer, after feeling a lump in the defendant's pocket, squeezed, slid and otherwise manipulated the contents of the pocket before determining that the lump was contraband. The officer then reached into the defendant's pocket and retrieved the item which turned out to be crack cocaine. Here, Trooper Culler discovered the object in Smith's pocket during a routine pat-down search for weapons. Upon feeling the object in Smith's pocket, Trooper Culler stated that he had found drugs. Although, during preliminary questioning by defense counsel, Trooper Culler stated that he could feel that the object was a controlled substance because of the way he could "manipulate" it with his fingers, the testimony reveals that there was no further search conducted as there was in Dickerson. There are no facts in the present case indicating that Trooper Culler's search was anything other than an initial pat down and Smith points to none. Thus, we are satisfied that Trooper Culler detected the drugs during a protective pat down for weapons.

We turn now to the second factor of the plain feel doctrine regarding whether the identity of the object was "immediately apparent" to the officer. Smith makes much of the terminology used by Trooper Culler during his responses to preliminary questioning by defense counsel. Although Trooper Culler did respond to preliminary questions from defense counsel by saying, "In my mind what I believed I had a hold of was a controlled substance, the way it felt and the way it was—the way I could manipulate it in my fingers," the testimony as a whole does not suggest that Trooper Culler had to actually manipulate the object in any way before he was able to determine that it was contraband. Tr. at 261 (emphasis added). In response to further questioning by defense counsel, Trooper Culler also stated as follows:

DEFENSE COUNSEL: When you were holding on to that—I believe your testimony was you, you believed it was drugs, you weren't sure were you?

TROOPER CULLER: No, I was sure.

DEFENSE COUNSEL: You were sure?

TROOPER CULLER: Yes.

Tr. at 260-61. Additionally, Trooper Culler testified that during an initial pat-down search, he felt in Smith's coat pocket an object "about the size of an egg" that was...