State v. Glass, 21A01-0201-CR-43.

• Docket Nº: No. 21A01-0201-CR-43.
• Citation: 769 N.E.2d 639
• Case Date: June 10, 2002
• Court: Court of Appeals of Indiana

769 N.E.2d 639

STATE of Indiana, Appellant-Plaintiff,
v.
James R. GLASS, Appellee-Defendant

No. 21A01-0201-CR-43.

Court of Appeals of Indiana.

June 10, 2002.

769 N.E.2d 640

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellant

Frederick Vaiana, Voyles, Zahn, Paul Hogan & Merriman, Indianapolis, Indiana, Attorney for Appellee.

OPINION

VAIDIK, Judge.

Statement of the Case

The State appeals from an order granting a motion to suppress evidence seized after James R. Glass was stopped by an officer responding to a dispatcher's call. The State contends that the officer was justified in relying upon information provided by the dispatcher to make the stop. Because the telephone call from an unnamed person did not in itself contain sufficient indicia of reliability, and because the police officer did not independently confirm the reliability of the caller or the salient information provided, we affirm.

Facts and Procedural History

At approximately 1:30 p.m. on January 1, 2000, Connersville Police Officer Dana Fluery received a dispatch advising him of a "suspicious vehicle for reckless driving." Tr. p. 9. Accordingly to Fluery, dispatch knew the identity of the caller and "gave a description of the vehicle to be on the lookout for." Tr. p. 13. Officer Fluery found Glass driving the described vehicle in the 900 block of Eastern Avenue in Connersville. The officer followed Glass for approximately one block, but witnessed no traffic violations or inappropriate driving. Nevertheless, Officer Fluery activated his emergency lights. Glass stopped in the roadway, then followed Fluery's direction and drove into a nearby lot.

Officer Fluery approached Glass and requested his driver's license and vehicle registration. Glass produced a recently expired driver's license. Fluery observed that Glass was shaking and his eyes were bloodshot. At Officer Fluery's request, Glass exited his vehicle. After pulling himself out, Glass leaned against the vehicle, still shaking. He volunteered that he had a handgun in the vehicle and produced his permit. Officer Fluery asked if Glass had other weapons, and Glass responded in the negative.

When Fluery performed a pat down search, he felt a hard rectangular-shaped object in the front groin area of Glass's trousers. The officer "presumed it could have been, anything, it could have been a weapon or a knife." Tr. p. 12. Glass did not respond to questioning about the object, and he appeared more nervous to the officer. Through the top of Glass's trousers, Fluery "felt and [saw] a wooden box type object." Tr. p. 12. Fluery removed the box containing a green leafy substance

769 N.E.2d 641

and a smoking device. Glass agreed to submit to a chemical test, and he was transported to the Fayette Memorial Hospital for a drug screen. Test results were positive for THC. Subsequent testing of the green leafy substance revealed the presence of marijuana or hashish

The State charged Glass with possession of marijuana as a Class A misdemeanor,¹ reckless possession of paraphernalia as a Class A misdemeanor,² and operating a vehicle with a controlled substance or metabolite in his body as a Class C misdemeanor.³ Glass moved to suppress all evidence, arguing that the detention and search occurred without reasonable suspicion. At the hearing on the motion, Officer Fluery testified he neither knew nor had worked with the person initiating the report. The caller did not testify and remains unidentified. Following the hearing, the trial court entered findings with its order granting Glass's motion to suppress.

The State filed two motions to reconsider, both of which were denied. Upon the State's motion, the trial court dismissed the case. This appeal followed.⁴

Discussion and Decision

The State challenges the order granting Glass's motion to suppress. In the suppression hearing, the State had the burden of demonstrating the constitutionality of the measures it used to secure evidence. State v. Ashley, 661 N.E.2d 1208, 1211 (Ind.Ct.App.1995). In order to prevail on appeal, the State must show that the trial court's ruling on the suppression motion is contrary to law. State v. Smith, 638 N.E.2d 1353, 1355 (Ind.Ct.App. 1994), reh'g denied. This court accepts the factual findings of the trial court unless they are clearly erroneous. Williams v. State, 745 N.E.2d 241, 244 (Ind.Ct.App. 2001). In reviewing the trial court's decision, we consider the evidence most favorable to the ruling together with any adverse evidence that is uncontradicted. State v. Dodson, 733 N.E.2d 968, 970-71 (Ind.Ct.App.2000), reh'g denied.⁵

At issue in this case is an investigatory stop. The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures" by the Government, and its safeguards extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (citations omitted). However, a police officer may briefly detain a person for investigatory

769 N.E.2d 642

purposes without a warrant or probable cause if, based upon specific and articulable facts together with rational inferences from those facts, the official intrusion is reasonably warranted and the officer has a reasonable suspicion that criminal activity "may be afoot." Terry v. Ohio, 392 U.S. 1, 21-22, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (quoted in Francis v. State, 764 N.E.2d 641, 644 (Ind.Ct.App. 2002))

Cases recognize that reasonable suspicion is a "somewhat abstract" concept, not readily reduced to "a neat set of legal rules." Arvizu, 122 S.Ct. at 751 (citations omitted). When making a reasonable-suspicion determination, reviewing courts examine the "totality of the circumstances" of the case to see whether the detaining officer had a "particularized and objective basis" for suspecting legal wrongdoing. Id. at 750 (citation omitted). The reasonable suspicion requirement is met where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Francis v. State, 764 N.E.2d 641, 644 (Ind.Ct.App. 2002). We review the trial court's ultimate determination regarding reasonable suspicion de novo. Arvizu, 122 S.Ct. at 751; Williams, 745 N.E.2d at 244.

Here, the trial court granted the motion to suppress based upon our decision in Washington v. State, 740 N.E.2d 1241 (Ind.Ct.App.2000), trans. denied. In Washington, an anonymous informant reported a possible drunk driver to the Lafayette State Police Post. The...