State v. Washington

• Decision Date: 31 December 2008
• Docket Number: No. 02S03-0804-CR-191.,02S03-0804-CR-191.
• Citation: 898 N.E.2d 1200
• Parties: STATE of Indiana., Appellant, v. Raymond WASHINGTON, Jr., Appellee.
• Court: Indiana Supreme Court

898 N.E.2d 1200

STATE of Indiana., Appellant, v. Raymond WASHINGTON, Jr., Appellee.

No. 02S03-0804-CR-191.

Supreme Court of Indiana.

December 31, 2008.

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

David L. Joley, Fort Wayne, IN, Attorney for Appellee.

On Transfer from the Indiana Court of Appeals, No. 02A03-0703-CR-124.

DICKSON, Justice.

Pursuant to statutory authority,¹ the State appeals from the trial court order granting the defendant's motion to suppress evidence in a criminal case charging the defendant with possession of marijuana. Upon the granting of the defendant's motion to suppress, the State dismissed me charges and brought this appeal. The Court of Appeals affirmed the trial court in a published opinion. State v. Washington, 875 N.E.2d 278 (Ind.Ct.App.2007). We granted transfer and now reverse the trial court.

The sole issue before this Court is whether, under both the Fourth Amendment to the U.S. Constitution and Article 1, § 11 of the Indiana Constitution, an officer, without reasonable suspicion, can inquire as to possible further criminal activity, in this case drug possession, when a motorist is stopped for a traffic infraction.

The facts of this case are not in dispute. While driving a moped, the defendant was stopped by a police officer for repeatedly driving left of center and because the officer suspected that the defendant was under eighteen and not wearing goggles or a helmet as required by statute. Indiana Code § 9-21-11-13 provides that:

A person less than eighteen (18) years of age who operates or rides a motorized bicycle on a street or highway shall do the following:

(1) Wear protective headgear ...[.]

(2) Wear protective glasses, goggles, or a transparent face shield.

However, upon stopping the defendant, the officer ascertained that the defendant was over eighteen years of age, thus making the requirement for headgear and goggles inapplicable to the defendant. Because the defendant appeared nervous, the officer asked whether "he had any guns, drugs, or anything that may harm [him] on his person." Tr. at 7. The defendant responded that he "had a couple dime bags on him." Id. at 8. Understanding this reference to mean bags of marijuana, the officer then asked for permission to remove the bags from the defendant's pockets. The defendant consented, and the officer determined that the substance was indeed marijuana.

The defendant's motion to suppress claimed violations of both the United States and Indiana constitutions. The chronological case summary reflects that the trial court granted the motion. Appellant's App'x at 2. Neither party has provided us with a copy of the actual order granting the motion, and the record does indicate whether the trial court made findings of fact or conclusions of law. We presume that the trial court found in the defendant's favor on both state and federal constitutional grounds. The parties argue both issues on appeal.

In the appellate review of a trial court's motion to suppress, the reviewing court deter mines whether the record discloses "substantial evidence of probative value that supports the trial court's decision." State v. Quirk, 842 N.E.2d 334, 340 (Ind.2006). We do not reweigh evidence. Id. The State, appealing from a negative judgment, must show that the trial court's ruling on the suppression motion was contrary to law. State v. Estep, 753 N.E.2d 22, 24-25 (Ind.Ct.App.2001).

1. Federal Constitution Fourth Amendment

The State contends that the question asked by the officer was neither a search nor a seizure and thus did not violate the Fourth Amendment to the United States Constitution.² The State argues that the defendant had a choice as to whether to answer the officer's question or not, that the question did not extend the duration of the stop, that it was not unduly intrusive into the defendant's privacy, and that it was not unreasonable.

The defendant responds that the traffic stop constituted a seizure, that the officer's question was an improper interrogation lacking in reasonable, articulable suspicion of criminal activity, and that there was little risk to officer safety because the defendant was completely visible sitting on an open moped rather than inside an enclosed car.

From our review of United States Supreme Court jurisprudence, we conclude that the officer's conduct in this case does not violate the Fourth Amendment. During a lawful detention, police do not need a reasonable suspicion to ask questions of the detainee. In Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), the Court emphasized that it has "held repeatedly that mere police questioning does not constitute a seizure." 544 U.S. at 101, 125 S.Ct. at 1471, 161 L.Ed.2d at 308, quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991). "Even when officers have no basis for suspecting a particular individual, they may generally ask questions of the individual[.]" Id., quoting Bostick, 501 U.S. at 434-35, 111 S.Ct. at 2386, 115 L.Ed.2d at 398. An officer making a traffic stop can ask questions of a detained motorist, but the detainee is not obligated to respond, and "unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released." Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984) (footnotes omitted).

Though Muehler provides guidance, it does not directly address whether police questions that are unrelated to the initial reason for a detention may constitute an unlawful seizure. This issue has been confronted, however, by several federal Circuit Courts of Appeals. Chief among these is the Seventh Circuit's en banc decision in United States v. Childs. In Childs, the court took the case to expressly decide "whether questioning during the course of lawful custody must be related to the reason for that custody." United States v. Childs, 277 F.3d 947, 949 (7th Cir.2002) (en banc).

In Childs, an officer of the Peoria (Illinois) Police Department stopped a car that he had stopped three days earlier in response to a hit-and-run accident in which the driver, Childs, was arrested on an outstanding warrant and a drug charge. The car at the time of the first stop had a cracked windshield, and the officer had instructed Childs to repair it. At the time of the second stop, the windshield had not been repaired, and the car was stopped for this reason alone. Childs, out on bail, was the passenger this time, and the officer began speaking with him while his partner spoke with the driver. Childs was not wearing his seatbelt in violation of Illinois law, and, as a passenger in the stopped vehicle, was under the control and direction of the officer until the officers' safety could be secured. While one officer was running a license check on the driver, the officer previously familiar with Childs asked him a few questions:

[F]irst why Childs had not fixed the windshield (Childs replied that it was not his car), second whether he was carrying any marijuana at this time (Childs said no), and third whether he would consent to a search (Childs agreed).

Id. During the search, the officer found crack cocaine, which led to prosecution for possession with intent to distribute, and finally to a sentence of five years imprisonment. The Seventh Circuit panel held the search to be an unconstitutional seizure of Childs, but the en banc court disagreed, instead holding that

[B]ecause questions are neither searches nor seizures, police need not demonstrate justification for each inquiry. Questions asked during detention may affect the reasonableness of that detention (which is a seizure) to the extent that they prolong custody, but questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable or require suppression of evidence found as a result of the answers.

Id. at 949. In its rationale, the Seventh Circuit persuasively reasoned that, unlike restrictions placed upon officers who have made a stop based on reasonable suspicion, the Fourth Amendment does not require that a person seized with probable cause be released "at the earliest moment that step can be accomplished," and that "[q]uestions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention." Id. at 953-54. Most other circuits agree. See United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir.2007) (holding that three brief questions relating to drug trafficking amongst other inquiries relating to a traffic stop did not constitute an unreasonable seizure); United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir.2006) (holding that questioning a suspect while his license was being checked did not unreasonably delay the detention and was thus permissible); United States v. Burton, 334 F.3d 514, 518-19 (6th Cir.2003) (holding that a handful of questions asked, including requesting a search of the defendant's vehicle, was not "unusually intrusive or that asking them made this traffic stop any more coercive than a typical traffic stop"); but cf. United States v. Pruitt, 174 F.3d 1215, 1220-21 (11th Cir.1999) (holding that questioning incident to a traffic stop should only be directed to the purpose of the stop and that additional "fishing expedition" questions are impermissible and are a violation of Terry).

In the present case, a police officer observed the defendant driving a moped across the center line and conducted a traffic stop also to investigate the defendant's possible failure to wear required safety equipment. The officer's brief questioning as to whether the defendant had any weapons, drugs, or anything else that could harm the officer was not itself a search or seizure and thus was not prohibited by the Fourth...