State v. Calmes

• Decision Date: 18 September 2008
• Docket Number: No. 02A03-0802-CR-56.,02A03-0802-CR-56.
• Citation: 894 N.E.2d 199
• Parties: STATE of Indiana, Appellant-Plaintiff, v. Kelvin CALMES, Appellee-Defendant.
• Court: Indiana Appellate Court

894 N.E.2d 199

STATE of Indiana, Appellant-Plaintiff, v. Kelvin CALMES, Appellee-Defendant.

No. 02A03-0802-CR-56.

Court of Appeals of Indiana.

September 18, 2008.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorney for Appellant.

OPINION ON REHEARING

BROWN, Judge.

The State of Indiana appealed the trial court's grant of a motion to suppress filed by Kelvin Calmes. The State raised one issue, which we revised and restated as whether the trial court erred when it granted the motion to suppress. We reviewed this issue in an unpublished memorandum decision and affirmed the trial court's grant of the motion to suppress. See State v. Calmes, No. 02A03-0802-CR-56, slip op. at 7, 889 N.E.2d 403 (Ind.Ct. App. June 27, 2008). The State subsequently filed a petition for rehearing. We reaffirm our opinion but grant the State's petition for rehearing to address the State's rehearing argument that our reliance on Finger v. State, 799 N.E.2d 528 (Ind.2003), was misplaced.

The relevant facts, as stated in our memorandum decision, follow. On August 18, 2007, Calmes was at a gas station "hanging out by the pay phone." Transcript at 9. Fort Wayne Police Department Officers Shane Pulver and Phillip Ealing, who were patrolling the area in a squad car, had been watching Calmes intermittently for about forty-five minutes. When they observed Bridgett Holman standing near him, they pulled up, exited the squad car, asked Calmes and Holman what they were doing there, and requested identification. Calmes gave Officer Ealing his identification, but Holman explained that she did not have her identification with her and volunteered that she "was going through a relapse . . . for her addiction." Id. at 18. Officer Pulver wrote down her "identification information" and gave it to Officer Ealing, who returned to the squad car to "run their names through the in car computer." Id. at 20, 26.

While they were waiting, Officer Pulver, who was standing three to four feet away from Calmes, asked him if he had any weapons. Calmes responded that he had a knife and reached into his pocket, but Officer Pulver took a step back, unlatched his firearm, and said: "Don't reach for it!" Id. at 20. He ordered Calmes to take his hand out of his pocket, turn around, and place his hands behind his head with his fingers interlaced. At first, Calmes refused, and Officer Pulver, believing that Calmes was concealing something under his thumb, repeated the order. When Calmes complied, an "off-white, rock-like substance," later identified as cocaine, fell from Calmes's hand and rolled toward Officer Pulver. Id. at 22. Calmes was then placed under arrest.

The State charged Calmes with possession of cocaine as a class D felony,¹ possession of paraphernalia as a class D felony,² and being a habitual substance offender.³ On October 19, 2007, Calmes filed a motion to suppress arguing that Officers Ealing and Pulver did not have reasonable suspicion to detain and question him and had therefore violated his rights secured by the Fourth Amendment to the United States Constitution.⁴ After a hearing, the trial court granted the motion.

The issue on appeal was whether the trial court erred when it granted Calmes's motion to suppress. When appealing the trial court's granting of a motion to suppress, the State appeals from a negative judgment and must show that the ruling was contrary to law. State v. Augustine, 851 N.E.2d 1022, 1025 (Ind.Ct. App.2006). We will reverse a negative judgment only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that reached by the trial court. Id. We neither reweigh the evidence nor judge the credibility of the witnesses, and we consider only the evidence most favorable to the judgment. Id. The State argued that Officer Pulver's "encounter with [Calmes] was consensual and at no time constituted a seizure of [Calmes] until the officer discovered [Calmes] was in possession of cocaine." Appellant's Brief at 5. Calmes, on the other hand, maintained that the encounter was investigatory in nature rather than consensual.

The Fourth Amendment to the United States Constitution guarantees the right to be secure against unreasonable search and seizure. Augustine, 851 N.E.2d at 1025. In order to determine whether the officer impinged upon Calmes's Fourth Amendment rights, we must first analyze what level of police investigation occurred. See id. There are three levels of police investigation, two of which implicate the Fourth Amendment and one of which does not. Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App. 2000), reh'g denied, trans. denied. First, the Fourth Amendment requires that an arrest or detention that lasts for more than a short period of time must be justified by probable cause. Id. Second, pursuant to Fourth Amendment jurisprudence, the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion that criminal activity has or is about to occur. Id. The third level of investigation occurs when a police officer makes a casual and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id. This is a consensual encounter in which the Fourth Amendment is not implicated. Id.

As long as an individual remains free to leave, the encounter is consensual and there has been no violation of the individual's Fourth Amendment rights. Shirley v. State, 803 N.E.2d 251, 255 (Ind. Ct.App.2004). Factors to be considered in determining whether a reasonable person would believe he was not free to leave include: (1) the threatening presence of several officers, (2) the display of a weapon by an officer, (3) the physical touching of the person, or (4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled. Id.

Relying in part on the Indiana Supreme Court's decision in Finger v. State, 799 N.E.2d 528 (Ind.2003), we held that a reasonable person in Calmes's position would not feel free to leave once the officer had taken the person's license. Op. at 204. Thus, the encounter at that point was no longer consensual, and the officers needed reasonable suspicion that criminal activity had or was about to occur to detain Calmes briefly for investigative purposes. Id. Because the State maintained on appeal, as it had argued below, that the encounter was purely consensual, we affirmed the trial court's grant of Calmes's motion to suppress. Id. Had the State framed and argued the issue differently our analysis and outcome may have been different.

On rehearing, the State argues that our reliance on Finger was misplaced. In our decision, we summarized Finger as follows:

In Finger, a police officer, responding to a dispatch regarding a suspicious vehicle stopped at an intersection, activated his emergency lights and approached the vehicle, where he found the defendant sitting in the driver's seat and a passenger beside him. [799 N.E.2d] at 530. The defendant claimed that the car was out of fuel and that a passerby would be returning soon with more gasoline. Id. The officer noted that the defendant seemed nervous, though a stranded motorist should have been relieved to receive assistance. Id. at 531. As the officer conversed with the defendant, the explanation for his presence changed. Id. The officer then asked for and received the defendant's and the passenger's driver's licenses and ran warrant and license checks, which came back negative. Id. As the officer continued to converse with the defendant, he did not return the driver's licenses or say that they were free to leave. Id. When the officer asked about a knife on the back seat and ammunition in the front seat of the vehicle, both in plain view, the defendant claimed not to know why these items were in the car or to whom they belonged. Id.

Fifteen to twenty minutes after the officer first encountered them, he heard a radio report of an armed robbery at a liquor store less than one block from the car. Id. At this point, the officer asked the pair to exit the car and read them Miranda rights. Id. Next, based on safety concerns, he retrieved the ammunition and knife from the car. Id. In the meantime, police officers had been sent to the liquor store in response to the robbery call and learned that possible suspects were at the intersection where the officer had found the defendant's vehicle. Id. After a witness to the robbery identified the passenger in the defendant's car as one of the men in the store, the defendant and the passenger were placed under arrest. Id.

The defendant, charged with robbery, conspiracy to commit robbery, and criminal confinement, moved to suppress both the statements he made to the officer and the knife and ammunition seized from his car. Id. The trial court denied the motion, finding that the officer's initial approach to the defendant's vehicle and his interaction with the defendant did not constitute an investigative stop but that, after the officer learned of the robbery nearby, he had reasonable suspicion to detain the defendant. Id. The ruling was certified for interlocutory appeal, and this court reversed, concluding that the officer detained the defendant when he retained the defendant's driver's license and that, at that point, the officer did not have reasonable suspicion to execute a lawful investigative stop. Id. at 532.

The Indiana Supreme Court granted transfer and affirmed the decision of the trial court. Id. at 535. The Court held that "a reasonable person in [the defendant's] position would not feel free to leave after [the officer] retained his identification." Id. at 533. Thus, the defendant was "detained for purposes of the Fourth Amendment." Id. However, although it agreed that the officer's retention of the driver's license converted a consensual...