Tumblin v. State

Decision Date15 May 2000
Docket NumberAPPELLANT-DEFENDANT,APPELLEE-PLAINTIFF,No. 49A02-9908-CR-549,49A02-9908-CR-549
Citation728 N.E.2d 223
Parties(Ind.App. 2000) CRAIG TUMBLIN,, v. STATE OF INDIANA,
CourtIndiana Appellate Court

[Copyrighted Material Omitted] Timothy J. Burns Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett Attorney General of Indiana Rosemary L. Borek Deputy Attorney General Indianapolis, Indiana, Attorneys for Appellee.


Robertson, Senior Judge


Craig Tumblin ("Tumblin") appeals his conviction for Carrying a Handgun Without a License, a Class A Misdemeanor.1 We reverse.


Tumblin presents a single (restated) issue for our review: whether evidence obtained by police during a patdown search should have been suppressed as the result of an unlawful search.


At approximately 3:00 p.m. on November 12, 1998, Officer Ron Trimble of the Indianapolis Police Department ("Officer Trimble") observed a speeding vehicle near the intersection of Emerson and 30th streets in Indianapolis. Neither the driver nor passenger (Tumblin) was wearing a seat belt. Officer Trimble stopped the vehicle and issued a verbal warning to the driver concerning the traffic infractions. He then inquired whether there were drugs or weapons in the vehicle. The driver responded in the negative and verbally assented to Officer Trimble's request to search the vehicle. Officer Trimble directed the driver and Tumblin to exit the vehicle and submit to a patdown search. The patdown search revealed a 45 caliber handgun on Tumblin's person. Tumblin failed to produce a license to carry the handgun, and was arrested and charged with Carrying a Handgun Without a License.

Tumblin filed a motion to suppress evidence produced as a result of the patdown search. The parties agreed that evidence on the motion to suppress would be presented concurrently with evidence in the bench trial. At the conclusion of the presentation of evidence, the motion to suppress was denied. Tumblin was convicted of Carrying a Handgun Without a License and this appeal ensued.


The admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent a showing that the trial court abused its discretion. Johnson v. State, 710 N.E.2d 925, 927 (Ind. Ct. App. 1999). Upon review of a trial court's ruling on a motion to suppress evidence, we will examine the evidence most favorable to the ruling, together with any uncontradicted evidence. Callahan v. State, 719 N.E.2d 430, 434 (Ind. Ct. App. 1999). We will neither reweigh the evidence nor judge witness credibility. Johnson, 710 N.E.2d at 927.

The protection against unreasonable search and seizure found in the Fourth Amendment to the United States Constitution has been extended to the states through the Fourteenth Amendment. Berry v. State, 704 N.E.2d 462, 464-65 (Ind. 1998), citing Mapp v. Ohio, 367 U.S. 643, 650, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). For a search to be reasonable under the Fourth Amendment, a warrant is required unless an exception to the warrant requirement applies. Id. at 465. The State bears the burden of proving that a warrantless search falls within an exception to the warrant requirement. State v. Farber, 677 N.E.2d 1111, 1116 (Ind. Ct. App. 1997), trans. denied. One recognized exception is where a police officer detains a person for investigative purposes. L.A.F. v. State, 698 N.E.2d 355 (Ind. Ct. App. 1998), citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under certain circumstances, such as when the officer has reason to believe that he is dealing with an armed and dangerous individual, the officer may conduct a limited frisk of the individual detained. Id.


Officer Trimble, the sole witness at Tumblin's trial, testified as follows. He stopped the vehicle in which Tumblin was a passenger because of traffic infractions. During the traffic stop, Tumblin and the driver appeared nervous. Their hands were "fidgeting about." They spoke rapidly and failed to look Officer Trimble in the eye. The driver produced a valid driver's license and vehicle registration, and Officer Trimble elected to issue a verbal warning rather than a traffic citation. He testified that the vehicle occupants were "free to go" at that point, although he did not advise them accordingly. Officer Trimble asked the driver whether there were drugs or weapons in the vehicle and the driver stated that there were none. Officer Trimble then sought and received the driver's verbal assent to search the vehicle.

Tumblin concedes that the initial traffic stop of the vehicle in which he was a passenger was proper. See Black v. State, 621 N.E.2d 368, 370 (Ind. Ct. App. 1993) (an officer may lawfully stop a vehicle after observing a minor traffic violation). However, Tumblin argues that Officer Trimble unreasonably detained the vehicle in violation of the Fourth Amendment when he inquired about drugs and weapons and solicited the driver's consent to search the vehicle although the initial purpose of the traffic stop had been satisfied. He further claims that Officer Trimble conducted a patdown search absent a reasonable belief that Tumblin was armed and dangerous.

The State asserts that Tumblin lacks standing to challenge the constitutionality of the detention and search of a vehicle in which he was merely a passenger. See Porter v. State, 570 N.E.2d 1324, 1325 (Ind. Ct. App. 1987) (a passenger in a vehicle at the time of a search does not have a legitimate expectation of privacy in that vehicle and thus does not have standing to challenge a search). However, the State did not challenge Tumblin's standing at the suppression hearing and trial and has thus waived the argument. State v. Friedel, 714 N.E.2d 1231, 1236 (Ind. Ct. App. 1999). Where the prosecution has failed to make any trial court challenge to standing, the government may not raise the issue for the first time on appeal. Everroad v. State, 590 N.E.2d 567, 569 (Ind. 1992). Likewise, in resolving a claim of unlawful search and seizure, an appellate court should not invoke lack of standing sua sponte. Id. We will therefore examine the propriety of Officer Trimble's request to search the vehicle in conjunction with the ensuing patdown search of Tumblin's person.

As the State points out, Officer Trimble testified that the driver of the vehicle in which Tumblin was a passenger verbally assented to the search of his vehicle. Generally, a consensual search is presumably not unreasonable. Smith v. State, 713 N.E.2d 338, 342 (Ind. Ct. App. 1999), trans. denied. However, voluntariness of consent to search is to be determined from the totality of the circumstances. Id. at 343.Tumblin argues that Officer Trimble's request to search the vehicle was contrary to law and thus, the driver's verbal assent was constitutionally defective. He relies upon our recent decision in Lockett v. State, 720 N.E.2d 762 (Ind. Ct. App. 1999).

Lockett was stopped because of erratic driving, and the detaining officer detected a smell of alcohol emanating from Lockett's vehicle. The officer, in accordance with his customary practice motivated by safety concerns, inquired whether Lockett had any weapons. Lockett exited the vehicle to participate in a field sobriety test and indicated that he had a weapon under his seat.

This court concluded that the police officer exceeded the permissible scope of a routine traffic stop by inquiring about the presence of weapons as a matter of course:

[P]rior to making an inquiry about the presence of weapons the officer must: 1) either be warranted in believing that his safety was threatened; or 2) the question must reasonably relate to the basis for the traffic stop, such as may be the case after stopping a suspected armed burglar or bank robber. When an officer's safety is not at risk, then an officer may not as a matter of routine practice inquire about the presence of weapons. The police do not have a right to inquire about the presence of weapons without some reasonable and articulable basis for the question. . . . In order to justify a patdown, a police officer must articulate specific facts that caused him or her to fear for his or her safety because the suspect may be armed and dangerous. While the officer is not required to be absolutely certain that the suspect is armed, a general assertion that the frisk was conducted for purposes of officer safety is not sufficient. See L.A.F., 698 N.E.2d at 356; D.H. v. State, 688 N.E.2d 221, 223 (Ind. Ct. App. 1997). Similarly, standing alone a routine question about the presence of weapons posed to every person an officer stops is unconstitutional.

Id. at 771-72.

Consistent with the Lockett rationale, Officer Trimble was justified in the weapons inquiry, which led to the vehicle search and ultimately the patdown search, only if he reasonably believed that his safety was threatened or the inquiry was related to the basis of the initial stop.2 As the initial stop was premised upon minor traffic infractions, our consideration focuses exclusively upon the safety justification.

Law enforcement officers may, as a matter of course, order the driver and passengers to exit a lawfully stopped vehicle. Tawdul v. State, 720 N.E.2d 1211, 1214 (Ind. Ct. App. 1999), trans. denied, citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Once a vehicle has been lawfully stopped, the additional intrusion of asking the driver and passengers to exit is "de minimis," essentially an "inconvenience." Id. This per se rule is not, however, equivalent to the right to forcibly detain a passenger for the entire duration of the traffic stop. In Walls v. State, 714 N.E.2d 1266 (Ind. Ct....

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