Townsend v. State
| Decision Date | 29 May 2012 |
| Docket Number | No. 71A05–1109–CR–471.,71A05–1109–CR–471. |
| Parties | Damien TOWNSEND, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the St. Joseph Superior Court; The Honorable Jane Woodward Miller, Judge; Cause No. 71D03–1011–FB–163.
Neil L. Weisman, South Bend, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Damien Townsend appeals his conviction for burglary as a class B felony. 1 Townsend raises one issue, which we revise and restate as whether the trial court abused its discretion by admitting evidence obtained from an investigatory stop. We affirm.
The relevant facts follow. On the morning of November 22, 2010, as Molly Nichols returned to her home from driving her children to school, she observed a man whom she had never seen before attempting to enter the front door of her home at the corner of Donald and Dale streets in South Bend, Indiana. Nichols thought perhaps that the man “had keys or something.” Transcript at 83. The man asked Nichols for someone whose name she did not recognize and who did not live at the residence. The man then walked away, walking south towards Ewing Avenue. Because the man had not been knocking at the door, Nichols did not believe his story and she called the police within minutes to report the incident. Nichols provided a detailed description to the police as “a male of mixed race with a bald shaved head, a goatee and a black hoodie on.” Id. at 104.
A radio dispatch went out requesting officers to “check the area for a male of mixed race, shaved head, goatee, black hoodie, woman said on her property, couldn't explain why there, no further.” Id. at 122. South Bend Police Officer James Dennin responded to the dispatch and searched the area for a person matching the description provided by Nichols as well as information that came up on his patrol car computer containing Nichols's address and phone number and stating that the individual “was at caller's door when she arrived home from taking kids to school, last seen on foot down Dale towards Ewing.” Id. at 131. Within about ten or fifteen minutes, Officer Dennin came upon Townsend, who matched the description, at the corner of Donald and High streets, which is about three blocks from Nichols's residence. Officer Dennin exited his patrol car and approached Townsend on foot. Officer Dennin asked Townsend what his name was and what he was doing in the area, and Townsend provided his name and stated that he was walking home from a friend's house. Officer Dennin asked Townsend if he had been at a house on Donald Street, and Townsend replied that he was there looking for a friend. The officer then asked if he had identification, and Townsend responded that he did not.
Officer Dennin observed that Townsend was carrying “a shoulder bag with a computer case over his shoulder,” which the officer found suspicious because there was no mention of a bag in the description from dispatch. Id. at 107. He asked Townsend what it was, and Townsend replied that it was his computer and that he bought it from a friend a couple of days earlier. Officer Dennin noticed a tag on the bag which bore the name Judith Hillers and the address “730 East Altgeld” written on it, which was only a few blocks from where they were. Id. at 109. In order to read the tag, Officer Dennin picked up the tag and may have had to turn it over.
Officer Dennin decided to drive Townsend to the address listed on the tag, but before doing so he patted Townsend down for weapons and as a result discovered a digital camera in the pocket of his hoodie. Without handcuffing him, Officer Dennin placed Townsend in the back seat of his vehicle, placed the computer case and the camera in the front seat, and proceeded to the Altgeld Street address. Upon their arrival, Officer Dennin noticed fresh pry marks by the door, although the door was locked and secure. The residents were not home, and a neighbor provided Officer Dennin and Corporal Kevin Gibbons, who was also on the scene, with the phone number of Robert Hillers, and Corporal Gibbons contacted Robert who stated that he would return home. While the officers waited for Hillers to return, Townsend rolled down the window of the patrol car and escaped but was eventually recaptured.
When Robert returned home, he informed the officers that the pry marks had not been present when he left in the morning. Inside the home, Robert noted for the officers that the lock on a filing cabinet located in the bedroom had been forced open, a digital camera was missing from the bedroom, and a computer and case were missing from the living room. The officers showed Robert the camera and computer case recovered from Townsend and he identified them as his.
On November 24, 2010, the State charged Townsend with burglary as a class B felony. On March 17, 2011, Townsend filed a motion to suppress the evidence obtained during the stop and search. On June 3, 2011, the court held a suppression hearing in which the State argued that the encounter between Officer Dennin and Townsend was an investigatory stop based upon reasonable suspicion, and the court ultimately denied the motion.
On July 19, 2011, a jury trial commenced in which evidence consistent with the foregoing was presented. At the outset, Townsend reasserted his motion to suppress, and he also objected to Officer Dennin's testimony regarding the stop and the search. Robert testified that he had never met Townsend and did not give Townsend permission to enter his home or take his belongings. Corporal Gibbons testified that, at a normal pace, it takes approximately five minutes to walk from Nichols's house to the Hillers' house and about three minutes to walk from the Hillers' house to the location where Officer Dennin encountered Townsend. On July 20, 2011, the jury found Townsend guilty as charged. On August 18, 2011, the court sentenced Townsend to twelve years with six years to be served through community corrections and six years suspended, with three years to be served on probation.
The issue is whether the trial court abused its discretion by admitting evidence obtained from an investigatory stop. The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion. Wilson v. State, 765 N.E .2d 1265, 1272 (Ind.2002). An abuse of discretion occurs “where the decision is clearly against the logic and effect of the facts and circumstances” before the court. Smith v. State, 754 N.E.2d 502, 504 (Ind.2001). In making this determination, this court does not reweigh evidence and considers conflicting evidence in a light most favorable to the trial court's ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007). However, we must also consider the uncontested evidence favorable to the defendant. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Id. Further, this court considers evidence from the trial as well as evidence from the suppression hearing that is not in direct conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.Ct.App.2005).
Townsend argues that the stop and search were illegal under: (A) the Fourth Amendment; and (B) Article 1, Section 11 of the Indiana Constitution.
We begin by addressing Townsend's Fourth Amendment claims. The Fourth Amendment to the United States Constitution provides, in pertinent part: “[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” U.S. CONST. amend. IV. The Fourth Amendment's protection against unreasonable searches and seizures has been extended to the states through the Fourteenth Amendment. See Berry v. State, 704 N.E.2d 462, 464–465 (Ind.1998).
Townsend challenges the propriety of: (1) the initial stop; and (2) the search.2 We address each of Townsend's arguments separately.
As a general rule, the Fourth Amendment prohibits a warrantless search. Id. at 465. When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. Id. One of the recognized exceptions is the Terry investigatory stop. Carter v. State, 692 N.E.2d 464, 466 (Ind.Ct.App.1997).
In Terry v. Ohio, the United States Supreme Court established the standard for determining the constitutionality of investigatory stops. 392 U.S. 1, 88 S.Ct. 1868 (1968). The Court ruled that the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion of criminal activity. Id. at 27, 88 S.Ct. at 1883;see also Jackson v. State, 669 N.E.2d 744, 747 (Ind.Ct.App.1996) () (quoting Terry, 392 U.S. at 30, 88 S.Ct. at 1884). Reasonable suspicion exists if the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Powell v. State, 841 N.E.2d 1165, 1167 (Ind.Ct.App.2006). In judging the reasonableness of investigatory stops, courts must strike “a balance between the public interest and the individual's right to...
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