Thurman v. State

• Decision Date: 10 November 1992
• Docket Number: No. 49A05-9204-CR-117,49A05-9204-CR-117
• Parties: Donnell THURMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 548

602 N.E.2d 548

Donnell THURMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9204-CR-117.

Court of Appeals of Indiana,

Fifth District.

Nov. 10, 1992.

Transfer Denied Dec. 29, 1992.

Aaron E. Haith, Choate Visher & Haith, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

BARTEAU, Judge.

Donnell Thurman appeals his convictions of: Count I, Dealing in Cocaine, a class A felony ¹; Count II, Possession of Cocaine, a class C felony ²; Count III, Possession of a Handgun With An Obliterated Serial Number, a class C felony ³; Count IV, Possession of Marijuana, a class A misdemeanor ⁴; and Count V, Carrying a Handgun Without A License, a class D felony ⁵. He raises two issues for our consideration:

1. Was it error to deny the motion to suppress evidence?

2. Was the evidence sufficient to support the cocaine convictions?

FACTS

Neighbors had lodged numerous complaints with the Indianapolis Police Department (IPD) concerning illegal activity occurring in the parking lot of the 500 Liquor Store (500) located at 38th and Capitol Avenue in Indianapolis. On July 3, 1990 IPD Detective Charles Martin received an anonymous tip that a white over blue two-door 1977 or 1978 Cadillac would be at the 500 parking lot at approximately 7:00 p.m. that evening and that the occupants would possibly be selling narcotics from the vehicle. In response to the telephone call from the anonymous tipster, Martin set up surveillance of the 500 parking lot. A white over blue Cadillac, driven by Thurman, pulled into the lot at approximately 7:01 p.m. One of Thurman's two passengers left the Cadillac and walked to a brown Oldsmobile which was also parked in the lot. He had a brief conversation with the two occupants of the Oldsmobile and returned to the Cadillac. All three occupants of the Cadillac subsequently walked over to the Oldsmobile and got inside. None of the individuals from either car ever entered the liquor store.

Martin observed movement inside the Oldsmobile and, based upon his experience, concluded that a narcotics transaction was taking place. He called for uniformed officers to effectuate a stop and upon their arrival he proceeded to the 500 parking lot. Thurman and the others were ordered out of the Oldsmobile and patted down. When Thurman was unable to produce a driver's license, Martin asked if the paper work for the Cadillac was in the Cadillac's glove compartment. Upon being informed that it was, Martin asked for, and received, permission to get the paper work. As he approached the Cadillac, Martin observed, through the open passenger side window, two bags of marijuana ⁶ in the ashtray. At that point, Thurman and his two passengers were placed under arrest for possession of marijuana. Martin then conducted an inventory search of Thurman's car, recovering two Motorola pagers that were active and going off, ten small bags of cocaine ⁷ and a loaded .38 caliber revolver with the serial number scratched off.

SUPPRESSION OF THE EVIDENCE

A. Initial Stop.

Thurman challenges whether IPD officers had sufficient justification for the However, in addition to the above observations, IPD Detective Martin received an anonymous telephone tip that a white over blue Cadillac would arrive in the 500 lot at approximately 7:00 p.m. and that narcotics might be sold from the vehicle. As a result of the tip, Martin set up surveillance and as predicted the white over blue Cadillac pulled into the 500 Liquor Store lot at 7:01 p.m. An anonymous tip, combined with independent observations and confirmation of the information relayed by the anonymous caller, may provide sufficient indicia of reliability to justify an investigatory stop. Alabama v. White, 496 U.S. 325, 331-32, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990).

initial stop. "To justify a warrantless intrusion, the police officer need not have probable cause to make an arrest, but must 'point to specific and articulable facts which, taken together with rational inferences from those facts,' reasonably warrant intrusion upon an individual's right of privacy." Gipson v. State (1984), Ind., 459 N.E.2d 366, 368 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.E.2d 889, 906 (1968)). Here the officers observed Thurman pull into the 500 liquor store lot and park; one of Thurman's passengers walk over to the Oldsmobile, speak with the occupants, and return to Thurman's Cadillac; Thurman and his passengers exit the Cadillac and enter the Oldsmobile; movement in the Oldsmobile; and, failure of any of the individuals under observation to enter the liquor store. These observations are insufficient to create a "reasonable suspicion," Terry, supra, that the individuals were involved in criminal activity and therefore a warrantless "stop and frisk," based solely on these observations, would not withstand scrutiny.

In White, police received an anonymous phone call indicating that "Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey's Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case." Id. 496 U.S. at 327, 110 S.Ct. at 2414. Police located a brown Plymouth with a broken taillight in the apartment complex and as they watched a woman left the 235 building, entered the station wagon, and drove the most direct route to Dobey's Motel. Police stopped White before she reached the motel and discovered marijuana and cocaine in her possession. White acknowledged that an anonymous tip alone would rarely provide the reasonable suspicion necessary for a Terry stop, but held that an anonymous tip predicting specific future behavior, corroborated by the occurrence of that behavior, was sufficiently reliable to justify a stop. The Court cited Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) for the proposition that "because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity." White, 496 U.S. at 331, 110 S.Ct. at 2417. The prospective nature of the anonymous tip added to its credibility. "Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities. When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." White, 496 U.S. at 332, 110 S.Ct. at 2417 (citation omitted).

As in White, Martin's anonymous caller provided specific details of Thurman's future behavior. The tip that a Cadillac of a particular color would pull into the 500 parking lot at approximately 7:00 p.m. and be used for the purpose of dispensing illegal drugs was corroborated when a Cadillac matching that described by the tipster pulled into the lot at the designated time and its occupants failed to enter the liquor store to make a purchase. This failure, combined with the accuracy of the predictions, created a reasonable suspicion and justified the investigatory stop.

B. Access to Glove Compartment

In a related argument, Thurman contends that even if the initial stop was justified, the intrusion into his car was not because his consent to search was not voluntarily given. He maintains that his consent was involuntary because at the time he consented he was under arrest and in police custody ⁸ and because the police claimed the authority to obtain identification and search the Cadillac for the title documents. He maintains that he merely acquiesced to their apparent authority and that such acquiescence did not amount to a knowing and voluntary waiver of his Fourth Amendment rights.

"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); see also Snyder v. State (1989), Ind.App., 538 N.E.2d 961. The voluntariness of a consent to search is a question of fact to be determined from a totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct.2041, 36 L.Ed.2d 854 (1973); Martin v. State (1986), Ind., 490 N.E.2d 309. A consent to a search is valid except where it is procured by fraud, duress, fear, intimidation, or where it is merely a submission to the supremacy of the law. Phillips v. State (1986), Ind., 492 N.E.2d 10 (overruled on other grounds). "Though consent may constitute a waiver of Fourth Amendment rights, to be valid a waiver must be an intelligent relinquishment of a known right or privilege. Such a waiver cannot be conclusively presumed from a verbal expression of assent. The Court must determine from all the circumstances whether the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld." United States v. Payne, 429 F.2d 169 (9th Cir.1970) (citation omitted) (quoted with approval in Sayne v. State (1972), 258 Ind. 97, 279 N.E.2d 196). "Knowledge of the right to refuse a search is one factor which indicates voluntariness." Martin, 490 N.E.2d at 313.

In the case before us, five or six police officers swooped in on Thurman and his companions, blocking their exit and ordering them out of the Oldsmobile. Thurman and the others were then forced to keep their hands on the Oldsmobile while each one was patted down. Detective Martin testified that: "I asked if ...