State v. Nesius
| Decision Date | 23 January 1990 |
| Docket Number | No. 37A04-8904-CR-156,37A04-8904-CR-156 |
| Parties | STATE of Indiana, Appellant, v. Donald G. NESIUS, Appellee. |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellant.
James R. Beaver, Halleck & Beaver, P.C., Rensselaer, for appellee.
The State appeals the judgment granting Donald G. Nesius's motion to dismiss the charges of driving while intoxicated and driving while suspended based on Nesius's successful motion to suppress evidence granted after a pretrial hearing. A police officer became suspicious and pulled Nesius's car over after observing Nesius stop at a cornfield, exit the car, reenter, and drive away. Although the police officer could not discern any apparent reason for such behavior, it is not disputed that Nesius's reason for stopping was in order to relieve himself. The trial court suppressed the evidence derived from the arrest and then granted Nesius's motion to dismiss for an insufficiency of the evidence.
We find error in the trial court's dismissal of the action based on the sufficiency of the evidence. Therefore, we reverse and remand in order that the State may proceed against Nesius upon any remaining nonsuppressed evidence in its possession.
I. Whether the trial court erred in granting Nesius's motion to suppress?
II. Whether the trial court erred in granting Nesius's motion to dismiss for an insufficiency of evidence?
At about 11:30 p.m. on a rural road, County Road 170 West, in Jasper County, Indiana, police officer, Burgiss Hicks, saw Nesius's car stop on a rural roadway next to a cornfield. Hicks saw Nesius get out the driver's door and leave the vehicle. Hicks then drove toward the car, thinking it was disabled. As he approached, Hicks saw Nesius reenter his car and drive away. After Nesius had traveled about a half a mile further and stopped at a stop sign, Hicks pulled him over.
Hicks asked Nesius for his operator's license. A radiocheck revealed that Nesius's license was suspended. Hicks then arrested Nesius and parked his car in a nearby corn field. Hicks observed beer cans in the car and later smelled the odor of beverage alcohol on Nesius's breath. Nesius was also charged with driving while intoxicated/refusal to take the breathylizer test.
At the suppression hearing, Hicks conceded that he had no probable cause to believe an offense had been committed at the time he stopped Nesius. Hicks admitted that Nesius's behavior was "very possibly" consistent with lawful conduct--for example, repairing mechanical problems or looking for a lost hubcap. Hicks testified that he initially approached Nesius because he thought Nesius might have stopped because he was experiencing car trouble. He testified that he became suspicious when Nesius got back into the car and drove off as follows:
But once I seen the individual get back into the vehicle knowing the area the way it is, I said why is--did that individual get out and get back in. What was he doing there.
He testified he was suspicious that Nesius might be getting out of his car to deposit or pick up contraband.
Hicks also testified that there had been recent gasoline thefts in the general area and an automobile theft had taken place approximately two and a half miles away in May of 1988. He stated there were extra patrols in the area as a result of thefts and burglaries.
The trial court--in suppressing the evidence--must have found that the police action in stopping Nesius's car was an unreasonable seizure in violation of the Fourth and Fourteenth Amendments and Art. I, Sec. 11. of the Indiana Constitution, and that evidence flowing from Nesius's detention must be excluded at trial. The stopping of a single car upon the street constitutes a physical and psychological intrusion upon the occupants of it, interferes with freedom of movement, cause inconvenience and consumes time. Rutledge v. State (1981), Ind., 426 N.E.2d 638. The show of authority is unsettling and creates substantial anxiety. Id. Even a brief stop of an automobile and detention of its occupants constitutes a seizure. Id.
Under appropriate circumstances, the police may stop a vehicle to briefly investigate the possibility of criminal activity, without having probable cause to make an arrest. Morgan v. State (1981), Ind.App., 427 N.E.2d 14. The State concedes that in order to justify an investigatory stop, the police officer must be able to point to specific and articulable facts which, when considered together with the rational inferences drawn from those facts, create a reasonable suspicion of criminal conduct on the part of the vehicle's occupants. Id. Based on the totality of the circumstances, the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. U.S. v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621.
The State argues that Hicks could properly pull over Nesius because he witnessed Nesius violate the following statute prohibiting parking on the highway:
(a) Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event, a sufficient unobstructed width of the roadway opposite a standing vehicle shall be left for the free passage of other vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position. IND.CODE 9-4-1-112
It is not clear that Nesius violated the above statute. Officer Hicks did not testify that he pulled Nesius over for illegal parking. Instead, the State simply argues that Hicks was aware of facts indicating Nesius violated the above statute justifying Hick's stop. Hicks testified that he had no probable cause to believe an offense had been committed at the time he stopped Nesius. Hicks admitted that Nesius's behavior was "very possibly" consistent with lawful conduct. Instead, Hicks pulled Nesius over for behaving suspiciously.
The police officer's intent is one factor to be considered in determining the legality of an investigative stop. U.S. v. Rodriguez, 831 F.2d 162 (7th Cir., Ind.1987), cert. denied 485 U.S. 965, 108 S.Ct. 1234, 99 L.Ed.2d 433. We do not believe the trial court erred by refusing to allow the State to supply--after the fact--a possible justification for the investigative stop not contemplated by the police officer at the time of the stop.
The facts that might justify Hick's investigatory stop are quite limited. Hicks observed Nesius park his car, get out, get back in, and drive away. He was also aware of recent gasoline thefts in the general area and an automobile theft that had taken place approximately two and a half miles away in May of 1988. He stated there were extra patrols in the area as a result of thefts and burglaries. As far as a reasonable suspicion that Nesius was picking up or dropping off contraband, at no time did Hicks testify that he saw anything in Nesius's hands.
To justify the investigatory stop, Hicks must be able to point to specific and articulable facts which, when considered together with the rational inferences drawn from those facts, create a reasonable suspicion that Nesius was engaged in criminal conduct. Morgan, supra. Based on the totality of the circumstances, Hicks must have had a particularized and objective basis for suspecting Nesius of criminal activity. U.S. v. Cortez, supra.
In the present case, the trial court had to determine--within its discretion from a totality of the circumstances--whether Hicks's stop was justified under the law as we have set out above. The trial court, unlike this court, had the opportunity...
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