State v. Lefevers, 79A02-0510-CR-996.
| Decision Date | 27 March 2006 |
| Docket Number | No. 79A02-0510-CR-996.,79A02-0510-CR-996. |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. Deborah LEFEVERS, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Appellant.
Daniel J. Moore, Laszynski & Moore, Lafayette, for Appellee.
The State appeals the trial court's grant of Deborah Lefevers's motion to suppress. We reverse.
The sole issue is whether the trial court properly granted Lefevers's motion to suppress.
On January 24, 2003, Lafayette Police Department Officer Scott Swick received information from dispatch of an anonymous tip regarding a possibly intoxicated driver. After Officer Swick saw a vehicle matching the given license plate and make and model description, he began to follow it. He did not observe any erratic driving.
The driver, Lefevers, pulled into a convenience store parking lot. Officer Swick, who was alone, parked nearby but did not activate his emergency lights. He then approached Lefevers as she prepared to exit her vehicle, but while she was still sitting in the driver's seat, and began questioning her as to whether she had had anything to drink and whether she had made any erratic movements that might have led someone else to think she was intoxicated. Lefevers said she had had one glass of champagne to celebrate a business deal but that she had not been driving erratically. At some point while Lefevers was still in the car, Officer Swick noticed that her eyes were bloodshot and her speech was slurred. He asked Lefevers if she would submit to a breath test and she said she would. The test revealed a blood alcohol content of .13.
On February 3, 2003, The State charged Lefevers with operating with at least .08 grams of alcohol in her breath or blood, a Class C misdemeanor, operating while intoxicated with a previous OWI conviction, a Class D felony, and driving with a suspended license, a Class A infraction. On May 10, 2005, Lefevers filed a motion titled a "Motion to Dismiss." App. p. 19. The motion claimed that all of the evidence in the case was the result of an "unlawful traffic stop" and should be suppressed. Id. The trial court conducted a hearing on the motion on June 27, 2005, and issued its final ruling granting the "Motion to Dismiss" on August 4, 2005. The State now appeals.
We first address the nature of the motion originally filed by Lefevers and the specific relief granted by the trial court, which was to dismiss the State's cause of action against Lefevers. On appeal, Lefevers "concedes that the Defendant's motion would have been more properly titled a Motion to Suppress and that Suppression rather than dismissal is the appropriate relief." Appellee's Br. p. 8. Even if it would appear that the granting of a suppression motion is fatal to the State's case, it is improper for a trial court to order dismissal of a prosecution on the basis of an alleged insufficiency of the evidence. See State v. Nesius, 548 N.E.2d 1201, 1204-05 (Ind.Ct.App.1990). Thus, the most that should have happened based on Lefevers's motion was the suppression of evidence, not dismissal of the State's case. See id.
Turning now to the merits, the State is appealing from a negative judgment because the trial court effectively granted a motion to suppress evidence seized without a warrant. See State v. Carlson, 762 N.E.2d 121, 125 (Ind.Ct.App.2002). The State, therefore, must show that the trial court's ruling on the suppression motion was contrary to law. Id. "We will reverse a negative judgment only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that of the trial court." Id. We neither reweigh the evidence nor judge the credibility of witnesses and must consider only the evidence most favorable to the judgment. Id. In the present case, the only evidence presented was the testimony of Officer Swick; thus, there was no competing evidence to weigh.
It is true that an anonymous tip alleging that a person is or has been engaged in illegal behavior generally is not, by itself, sufficient to give rise to probable cause or even reasonable suspicion to seize that person. See Sellmer v. State, 842 N.E.2d 358, 361 (Ind.2006). "[A]n anonymous telephone tip, absent any independent indicia of reliability or any officer-observed confirmation of the caller's prediction of the defendant's future behavior, is not enough to permit police to detain a citizen and subject him or her to a Terry stop and the attendant interruption of liberty required to accomplish it." Washington v. State, 740 N.E.2d 1241, 1246 (Ind. Ct.App.2000), trans. denied. Independent corroboration of a tip requires validating the informant's knowledge as "reliable in its assertion of illegality," in contrast to information that might be relayed to police by a prankster or a police officer acting in bad faith. Id. (quoting Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000)).
The State does not argue that the anonymous tip relayed to Officer Swick provided reasonable suspicion to stop Lefevers, nor did he observe any erratic driving that might have corroborated the tip. Therefore, the key question in this case is when, if at all, Officer Swick "seized" Lefevers during the course of his investigation into the anonymous tip. This court has explained that there are three levels of police investigation, two that implicate the Fourth Amendment to the United States Constitution and one that does not.
First, the Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause. Probable cause to arrest exists where the facts and circumstances within the knowledge of the officers are sufficient to warrant a belief by a person of reasonable caution that an offense has been committed and that the person to be arrested has committed it. Second, it is well-settled Fourth Amendment jurisprudence that police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion that criminal activity "may be afoot." Accordingly, limited investigatory stops and seizures on the street involving a brief question or two and a possible frisk for weapons can be justified by mere reasonable suspicion. Finally, the third level of investigation occurs when a law enforcement officer makes a casual and brief inquiry of a citizen which involves neither an arrest nor a stop. In this type of "consensual encounter" no Fourth Amendment interest is implicated.
Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000), trans. denied (citations omitted).
In Overstreet, this court held there was no "stop" or "seizure" of a defendant where the defendant pulled into a gas station and was fueling his vehicle, and an officer pulled his vehicle behind the defendant without activating the lights, approached him, asked for identification, and questioned him about some suspicious activity the officer had observed. Id. at 664. We noted, "Not every encounter between a police officer and a citizen amounts to a seizure requiring objective justification." Id. Under the Fourth Amendment, a person is "seized" only when, by means of physical force or a show of authority, his or her freedom of movement is restrained. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Examples of circumstances that might indicate a seizure where the person did not actually attempt to leave the scene would be 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. Id. at 554, 100 S.Ct. at 1877. "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. at 555, 100 S.Ct. at 1877.
We conclude in the present case, much like in Overstreet, that Officer Swick did not "stop" or "seize" Lefevers when, of her own volition, she pulled into the convenience store parking lot. Also as in Overstreet, the mere fact that Officer Swick then approached Lefevers and began talking to her does not constitute a "seizure." He had not activated his emergency lights and he did not summon her to him. Initially, he was the only officer on the scene, which was outside a public place. There is no evidence that Officer Swick ever displayed a weapon, touched Lefevers, or used a threatening tone of voice in speaking with her.1
We also conclude that the facts of this case are different from those recently analyzed by our supreme court in Sellmer. There, police received an anonymous tip that there was marijuana in the defendant's automobile; as in this case, the tip by itself did not provide reasonable suspicion of criminal activity. Also as in this case, police approached the defendant in a public area and began questioning her about the tip. Eventually, police obtained consent from the defendant to search the car, which revealed a large quantity of marijuana.
The Sellmer court held that the evidence had to be suppressed. Id., 842 N.E.2d at 365. It reached this conclusion on the basis that the defendant was "in custody" or "under arrest" at the time she gave consent to search her vehicle and, therefore, the police were required but failed to advise her of her right under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), to have the presence and advice of counsel before consenting to the search. Id. Six factors in combination led the court to conclude that the defendant was "under arrest" when she consented to the...
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