Swanson v. State, 20A03-9910-CR-376

• Citation: 730 N.E.2d 205
• Decision Date: 13 June 2000
• Docket Number: No. 20A03-9910-CR-376,20A03-9910-CR-376
• Parties: Terrance SWANSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

730 N.E.2d 205

Terrance SWANSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 20A03-9910-CR-376

Court of Appeals of Indiana.

June 13, 2000.

Transfer Denied September 5, 2000.

Susan K. Carpenter, Public Defender of Indiana, Lorraine L. Rodts, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

VAIDIK, Judge

Appellant, Terrance Swanson, appeals his conviction for Possession of Cocaine,¹ a class B felony. Swanson argues that the trial court erroneously denied his motion to suppress crack cocaine seized without a warrant. Although Swanson presents several arguments on appeal, we find one dispositive—whether the pat-down search was lawful. Because the record reveals that the only facts upon which the officers relied to conduct a pat down were Swanson's presence in an area known for drugs and Swanson having his hands in his pockets, the pat down was not lawful. As a result, the crack cocaine is inadmissible. We reverse.

Facts and Procedural History

On April 21, 1998, Elkhart Police Officers Michael Stuff, Todd Thayer, Brian Prugh and Sergeant Mike Johnson were returning to the police station from bike patrol when they observed a vehicle pull into a parking place. Swanson, who had been driving, and his passenger exited the vehicle and placed alcoholic beverages on top of the car. Upon seeing the alcohol, all of the officers rode over to the vehicle to investigate potential alcohol violations. Officers Stuff and Prugh approached Swanson while the other two officers approached the passenger. Swanson, whose hands were in his pockets, was asked to remove them with the understanding that the officer was going to conduct a pat-down search of Swanson for weapons. Swanson complied with the request, removing his hands and placing them by his side. As he removed his hands, a small object dropped from his hand and landed on the ground next to his feet. Officer Stuff, who observed the object fall, then saw that the item was a two-by-two piece of brown paper bag, crumpled up in a ball. Although Officer Stuff was not able to identify the object, he knew it was not a weapon.

Before Officer Stuff seized the item, he allowed Officer Prugh to conduct a pat down of Swanson's outer clothing. Finding no weapons, Officer Prugh proceeded to ask Swanson for his driver's license and registration and began to question him about the alcohol. At that time, Officer Stuff picked up the piece of crumpled paper, opened it and observed four rock-like substances that appeared to be crack cocaine. The item was later subjected to testing which confirmed Officer Stuff's suspicion. Swanson was placed under arrest and subsequently charged with Possession of Cocaine within 1000 feet of a school, a class B felony.

On the morning of his jury trial, Swanson filed a motion to suppress, claiming that the stop, search and seizure violated the Fourth Amendment of the United States Constitution² and Article 1, Section 11 of the Indiana Constitution.³ Swanson also filed a motion in limine to prevent the State from referring to the crack cocaine during the trial. Because potential jurors were already present for jury selection, the trial court decided to proceed with the trial and delay hearing the motion until the officer who seized the crack cocaine testified. Thereafter, the jury was impaneled, preliminary instructions were read, and the jury was dismissed for the day. The court then conducted the hearing on the motions, which were denied. In its order denying relief, the court stated that if the motions were granted, the prosecution would cease and if the motions were denied, the record would be preserved and the cause would proceed. The trial continued the following day. During the State's case-in-chief, the crack cocaine was admitted without objection. Thereafter, Swanson was convicted as charged.

Discussion and Decision

I. Preservation of Error

Initially, we must address the State's argument that Swanson did not preserve his argument that the crack cocaine should have been suppressed. According to the State, the defendant waived his claim because he did not make a contemporaneous objection when the crack cocaine was introduced at trial. Swanson concedes that he did not object at trial but contends that the trial court assured him that his claim was preserved.

Generally, filing a motion to suppress or a motion in limine, without making a specific contemporaneous objection when the evidence is offered at trial, will not preserve error on appeal. Wise v. State, 719 N.E.2d 1192, 1197, 1199 (Ind. 1999). An exception exists where a trial court assures the defense that his objection has been preserved. Vehorn v. State, 717 N.E.2d 869, 872-73 (Ind.1999). Because Swanson concedes he did not object, our determination depends on whether the trial court sufficiently assured the defendant that his challenge to the admission of the crack cocaine was preserved without further objection.

In its order denying the motion to suppress, the trial court noted that the motion had been filed on the morning of trial and that potential jurors were already present to serve on the jury. As a result, the trial court concluded that in the interest of judicial economy, the trial should proceed and the motion heard out of the jury's presence immediately before the officer who seized the evidence testified. Record at 82. The trial court proceeded as indicated, swearing in the jury, reading preliminary instructions, dismissing the jury for the day and thereafter, conducting the suppression hearing before the State presented its case-in-chief the following morning. In its order denying the motion the trial court stated, "If the motion is granted, the prosecution would cease and that if the State [sic] denies the evidence, the record has been preserved and the cause will proceed." Record at 82 (emphasis added). Although the better practice is to make a contemporaneous objection, the trial court's order makes clear the defense's challenge to the evidence was preserved without further objection. Thus, Swanson did not waive his argument on appeal and we proceed with his arguments.

The Fourth Amendment protects against unreasonable search and seizure and requires a warrant before a search is conducted. Berry v. State, 704 N.E.2d 462, 464 (Ind.1998). If a search is conducted in the absence of a warrant, the State bears the burden of proving an exception to the warrant requirement. Id. at 465. Search and seizure violations under Article 1, Section 11 of the state constitution are analyzed differently. Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999). The State must show that, in the totality of the circumstances, the police behavior was reasonable. Brown v. State, 653 N.E.2d 77, 79 (Ind.1995). The provision is to receive liberal application to ensure that citizens of this state are free from unreasonable searches and seizures. Id.

In reviewing the denial of a motion to suppress, we look for substantial evidence of probative value that supports the trial court's decision. Goodner v. State, 714 N.E.2d 638, 641 (Ind.1999). We consider the evidence most favorable to the court's decision and any uncontradicted evidence to the contrary. Melton v. State, 705 N.E.2d 564, 566 (Ind.Ct.App.1999).

II. Investigatory Stop

Swanson first contends that the police officers did not have reasonable suspicion to conduct an investigatory stop. In particular, Swanson argues that at the time the officers approached him, there was no evidence that he had consumed alcohol, violated an open container law, or had been driving while intoxicated.

Under the federal constitution, an officer may briefly detain an individual if the officer observes unusual conduct which leads him to conclude, in light of his experience, that criminal activity is afoot. See Kenner v. State, 703 N.E.2d 1122, 1125-26 (Ind.Ct.App.1999) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), reh'g denied, trans. denied. Reasonable suspicion must be based upon specific and articulable facts, not mere hunches. Id. This determination is made on a case by case basis. Myers v. State, 714 N.E.2d 276, 284 (Ind.Ct.App.1999), trans. denied. Under the Indiana Constitution, the detention must be reasonable and the analysis is similar to that set forth in Terry. Baldwin, 715 N.E.2d at 337. Reasonable suspicion will be found where the facts known to the officer and the reasonable inferences would cause an ordinarily prudent person to believe that criminal activity has or is about to occur. Id.

The open container law provides that a person with a .04 blood alcohol level who, while the motor vehicle is in operation, knowingly allows a container, which has been opened, that has a broken seal or from which some of the contents have been removed, to be in the passenger compartment of the vehicle, commits a class B infraction. IND.CODE § 9-30-15-3. At the suppression hearing, Officers Stuff and Prugh testified that while they were returning from bike patrol, they observed a vehicle park and "as soon as the car stopped the passenger side door and driver's side door opened up and both occupants placed alcoholic beverage[s] on top of the car." Record at 198, 210. The beverages were not in a bag, thus reducing the likelihood that they had just been purchased and were merely being transported from a store. Thus, under the federal constitution, the officers had sufficient articulable facts with which to conclude that Swanson might have violated the open container law and were justified in detaining him for investigation. Similarly, under the state constitution the officers' actions were reasonable. That is, the facts known to the officers, and the reasonable inferences, would cause an ordinarily prudent person to believe that a violation of the...