State v. Pease

• Decision Date: 22 December 1988
• Docket Number: No. 82A01-8804-CR-129,82A01-8804-CR-129
• Citation: 531 N.E.2d 1207
• Parties: STATE of Indiana, Appellant (Plaintiff Below), v. Ted PEASE, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1207

531 N.E.2d 1207

STATE of Indiana, Appellant (Plaintiff Below), v. Ted PEASE, Appellee (Defendant Below).

No. 82A01-8804-CR-129.

Court of Appeals of Indiana First District.

Dec. 22, 1988.

Linley E. Pearson, Atty. Gen., Donald B. Kite, Sr., Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellant.

Robert Canada, Evansville, for appellee.

ROBERTSON, Judge.

The State of Indiana appeals the granting of defendant Ted Pease's motion to suppress. We affirm.

I.

Before addressing the substantive issues involved in this appeal, we believe it necessary to consider the propriety of the State's appeal. Both parties have argued the question of appellate jurisdiction, believing the issue to have been raised by the State's decision to dismiss the action before appealing, rather than to seek an interlocutory appeal. Pease argues, in essence, that because the State allegedly lacks the authority to appeal, we have no jurisdiction.

Our courts have distinguished the authority of the state's appellate courts to hear appeals from that of the State to prosecute them. The ability of this court to exercise appellate jurisdiction is not dependent upon legislative enactment but devolves instead upon this court by virtue of the authority vested in the state Supreme Court to specify by rule the terms and conditions of such jurisdiction. Ind. Constitution, Art. 7, Sec. 6. See, also, State v. Palmer (1979), 270 Ind. 493, 386 N.E.2d 946. Ind. Rules of Procedure, Appellate Rule 4(A) enumerates the types of cases over which the Supreme Court has exclusive jurisdiction. A.R. 4(B) provides that "[i]n all other cases, appeals shall be taken to the Court of Appeals...." Hence, because this appeal does not involve a matter over which the Supreme Court enjoys exclusive jurisdiction, this court may exercise jurisdiction pursuant to A.R. 4(B).

However, the right of the State to appeal in any criminal action is statutory. Unless there is a specific grant of authority by the legislature, the State cannot appeal. State v. Hicks (1983), Ind., 453 N.E.2d 1014, 1016; State v. Harner (1983), Ind., 450 N.E.2d 1005. The State's statutory right of appeal is in contravention of common law principles and will, therefore, be strictly construed. State v. Holland (1980), 273 Ind. 284, 403 N.E.2d 832, 833.

IND.CODE 35-38-4-2 (1983) permits an appeal to the Court of Appeals:

(1) [f]rom an order granting a motion to dismiss an indictment or information.

* * *

* * * (5) [f]rom an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution....

Prior to the enactment of I.C. 35-38-4-2(5) no statutory authority existed for appeals from suppression orders by the State to this court, whether the appeal be interlocutory or otherwise. State v. Nichols (1980), 274 Ind. 445, 412 N.E.2d 756. However, an appeal of a suppression order, based upon the alleged unconstitutionality of the search provision in I.C. 9-1-2-3(b) (1973) was held to be appealable to the Indiana Supreme Court pursuant to A.R. 4(A)(8). State v. Tindell (1980), 272 Ind. 479, 399 N.E.2d 746. There, although interlocutory in form, the appeal was deemed to be taken from a final judgment of dismissal as the preclusionary effect of the order rendered it "tantamount to a dismissal of the action." Id. at 747, 399 N.E.2d 746.

The language of I.C. 35-38-4-2(5) tracks the language of the Tindell opinion; since its enactment, this court has construed I.C. 35-38-4-2(5) as permitting appeals in those cases where the suppression order has the effect of precluding further prosecution by the State. Such suppression orders, when interlocutory, are "tantamount to a dismissal of the action and therefore appealable as a final judgment under subsection (5) of the statute." State v. Williams (1983), Ind.App., 445 N.E.2d 582, 584. See, e.g. State v. Watkins (1987), Ind.App., 515 N.E.2d 1152, n.1; State v. Blake (1984), Ind.App., 468 N.E.2d 548, 550.

The State charged Pease with class D felony possession of a schedule II controlled substance (amphetamine). The State acquired its evidence of this offense as a consequence of the illegal search alleged in Pease's motion to suppress. When the trial court ordered that the fruits of the search of Pease's person were to be excluded, the State lost its ability to prosecute and dismissed the information the same day.

The order granting Pease's motion to suppress has become a final order by virtue of the action's dismissal. I.C. 35-38-4-2(5) authorizes appeals from orders suppressing evidence when the effect is to preclude further prosecution. We are unaware of any principled basis for distinguishing between final orders and interlocutory orders deemed final when both have the effect of precluding further prosecution. Consequently, we hold that I.C. 35-38-4-2(5) permits the State to appeal the suppression order at issue here. ¹

II.

The State argues in this appeal that the trial court erred in granting Pease's motion to suppress because both the stop of Pease's vehicle and the pat-down of Pease's person comported with the requirements of the fourth and fourteenth amendments to the U.S. Constitution. ² These are the facts. ³

On November 7, 1987, Officer Whitlow of the Evansville Police Department encountered Pease's vehicle as the officer was traveling westbound on Covert Avenue at about 4:20 p.m. As Pease's vehicle approached from the east, Whitlow observed that the vehicle's windshield was badly cracked. He did not recognize Pease. Officer Whitlow decided to stop the vehicle.

After the cars came to a stop, the officer asked Pease to exit the vehicle and produce his driver's license because it was "standard procedure on a car stop to ascertain the identity of the driver and to make sure the driver has a valid driver's license." Pease complied. Officer Whitlow took Pease to his police vehicle to run a driver's license check and to write a citation. Before placing Pease in the rear of his vehicle, Officer Whitlow conducted a pat-down search of Pease's outer clothing for weapons and felt a hard object in Pease's upper shirt pocket. He asked Pease what it was. Pease reached for the pocket, turned and ran. He drew the object from his pocket and threw it. Officer Whitlow subsequently recovered the object and reported it to be amphetamines. Pease was charged with knowingly possessing a schedule II controlled substance. The Indiana "Information and Summons" completed on the evening of the arrest charged Pease with operating an "unsafe vehicle." The citation was apparently never filed.

Under the fourth amendment, a police officer who lacks probable cause but whose observations lead him reasonably to suspect that a particular person is committing a crime may detain that person briefly in order to investigate the circumstances that provoke suspicion. U.S. v. Brignoni-Ponce (1975), 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607. Accord, Poling v. State (1987), Ind., 515 N.E.2d 1074. Although stopping a car and detaining its occupant constitutes a seizure within the meaning of the fourth amendment, the governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the fourth amendment interest of the occupant in remaining secure from the intrusion. U.S. v. Hensley (1985), 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604. Since the State has a legitimate interest in insuring that motor vehicles are fit for safe operation, Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 1399, 59 L.Ed.2d 660, we must consider whether the situation presented here is one in which there is at least articulable and reasonable suspicion that either the vehicle or its occupant was properly subject to a seizure for a violation of law.

Officer Whitlow testified he stopped Pease's vehicle because he observed the vehicle had a badly cracked windshield, and issued a citation because he determined the vehicle to be unsafe. Two sections of the Indiana Code prohibit the operation of an unsafe vehicle on a public highway. I.C. 9-4-1-126 prohibits driving on any highway any motor vehicle unless the vehicle's equipment is in good working order as required by statute "and said vehicle is in such safe mechanical condition as not to endanger the driver ... or any person upon the highway." A person who violates this section commits a class C infraction. I.C. 9-4-1-127.1(b). I.C. 9-8-6-2(a) (1981) also makes it a class C infraction for a person to operate on any highway

any vehicle ... which is in such an unsafe condition as to endanger any person, which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter, or which is equipped in any manner in violation of this chapter.... (Emphasis supplied.)

By use of the conjunction "or" in I.C. 9-8-6-2(a), the legislature made clear that an operator can commit an infraction pursuant to this section by driving a vehicle which is in any of three alternative conditions. Consequently, even though the legislature did not expressly prohibit the operation of a motor vehicle with a broken or cracked windshield as Pease argues, if a vehicle is operated in such an unsafe condition, by virtue of the condition of its windshield, as to endanger the driver or any other person, a violation has occurred. The act prohibited by this portion of the statute is therefore not dependent upon the terms of any other section of the act for definition. The issue then is whether Officer Whitlow had a reasonable suspicion, based upon specific and articulable facts, that Pease's vehicle was in the proscribed dangerous condition.

The record contains three photographs of Pease's vehicle, taken after his arrest. Officer Whitlow testified that the photographs accurately portrayed the condition of the vehicle at the time he ordered Pease to stop. Exhibit one is a...