Walker v. State

• Decision Date: 21 February 1996
• Docket Number: No. 34A02-9502-CR-96,34A02-9502-CR-96
• Citation: 661 N.E.2d 869
• Parties: Michael A. WALKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 869

661 N.E.2d 869

Michael A. WALKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 34A02-9502-CR-96.

Court of Appeals of Indiana.

Feb. 21, 1996.

Appeal from the Howard Superior Court No. 3; Randy G. Hainlen, Judge, Cause No. 34D03-9408-CM-01494.

Charles H. Scruggs and Stephanie C. Doran, Scruggs & Doran, Kokomo, for appellant.

Pamela Carter, Attorney General of Indiana and Janet L. Parsanko, Deputy Attorney General, Indianapolis, for appellee.

OPINION

STATON, Judge.

Michael A. Walker ("Walker") was found guilty after a bench trial of possession of marijuana, a class A misdemeanor ¹, for which he was sentenced to one year in prison and the suspension of his driver's license for 180 days. ² In his appeal, Walker presents two issues for our review which we restate as follows:

I. Whether the trial court erred in denying his motion to suppress evidence.

II. Whether the trial court erred in suspending his driving privileges pursuant to IND.CODE § 35-48-4-15.

We affirm.

The facts most favorable to the State reveal that on August 14, 1994, Kokomo police officers Kevin Ogle and Norman Tate were dispatched to a tavern to investigate a fight involving weapons. After arriving at the scene, a witness informed Officer Ogle that Walker had struck a bar employee with a pool cue. Officer Ogle placed Walker against his patrol car and conducted a patdown search of Walker's outer clothing. During the search, Officer Ogle sensed an article in Walker's right hip pants pocket which he believed to be a bag of marijuana. Officer Ogle removed the item from Walker's pocket which was a plastic bag later determined to contain marijuana. Walker was arrested and charged with possession of marijuana.

I. Motion to Suppress

Walker contends that the trial court erred in denying his motion to suppress the evidence of the marijuana. We note that the trial court has broad discretion in ruling on the admissibility of evidence and in determining its relevancy. We will disturb its ruling only upon a showing of abuse of that discretion. Kremer v. State, 514 N.E.2d 1068, 1073 (Ind.1987), reh. denied. Relevant evidence is not inadmissible merely because it is prejudicial. Id.

Walker argues that the seizure of the marijuana was the product of a search which went beyond the scope of the Fourth Amendment to the United States Constitution ³ and as permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the United States Supreme Court determined that the Fourth Amendment permits a police officer to conduct a "stop" and "frisk", in which a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior without probable cause to make an arrest, and execute a reasonable search of the person for weapons for the officer's own protection. Terry, supra, at 22 and 27, 88 S.Ct. at 1880 and 1883.

The Court has further determined that the seizure of contraband detected during the lawful execution of a Terry search is permissible. Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983) (under "plain view" doctrine, police officer lawfully seized contraband while conducting lawful Terry search of interior compartment of automobile). In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the Court extended this doctrine to include contraband that is detected through the officer's sense of touch. Adopting this "plain feel" doctrine, the Court opined:

If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

Dickerson, supra, 508 U.S. at 375-376, 113 S.Ct. at 2137 (footnote omitted). The Court explained that regardless of whether the officer detects contraband by sight or by touch, the requirement of the Fourth Amendment that the officer have probable cause to believe the item is contraband before seizing it ensures against excessively speculative seizures. Id.

Nevertheless, in Dickerson, the Court determined that the police officer's continued search of the defendant's pocket to feel a small lump which he then determined to be crack cocaine, after concluding that no weapons were present, was not authorized under Terry and, thus, the subsequent seizure of the cocaine was unconstitutional. Id. at 378, 113 S.Ct. at 2139. Quoting the Minnesota Supreme Court, the Court noted:

... After a close examination of the record, [the court] held that the officer's own testimony "belies any notion that he 'immediately' " recognized the lump as crack cocaine.... Rather, the court concluded, the officer determined that the lump was contraband only after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket"--a pocket which the officer already knew contained no weapon.

Id. at 378, 113 S.Ct. at 2138 (citations omitted).

Walker relies on Dickerson to support his claim that the search exceeded the scope of Terry because Officer Ogle "never believed the marijuana to be a weapon ... and knew that the pocket did not contain a weapon as he was squeezing, feeling and otherwise manipulating the item." Appellant's Brief at p. 11. The State counters that, unlike the officer in Dickerson, Officer Ogle did not manipulate the item before determining that it was marijuana, and that he discovered the marijuana during the course of the Terry search.

At the suppression hearing, Officer Ogle testified that he conducted his patdown search of Walker to determine if he possessed any weapons. During his search, he felt an article in Walker's right hip pants pocket which he believed to be a bag a marijuana. He stated, "I felt the object in his pocket was consistent to what I've felt many times before to be marijuana ... I believed it to be marijuana when I felt it the first time." Record, pp. 42, 44. At the trial, Officer Ogle testified that during his weapons search, when he sensed the item, he knew it was not a weapon and based upon his experience, he thought the item was a bag a marijuana. He indicated that he squeezed the items with his fingers but did not manipulate it in any way. More importantly, when asked the period of time between his realization that the item was not a weapon but marijuana, Officer Ogle responded, "Instantaneously." Record, pp. 76-77.

Unlike in Dickerson, where the incriminating nature of the contraband only became apparent to the officer after he conducted a second non-weapon search, here, Officer Ogle's determination that the item was contraband was contemporaneous with his weapons search. Thus, the seizure of the marijuana, an item whose identity was immediately apparent to Officer Ogle, occasioned no further invasion of privacy beyond that already authorized by the officer's search for weapons and, thus, its warrantless seizure was justified under Terry. Dickerson, supra, at 375-378, 113 S.Ct. at 2137-2138. See also Bratcher v. State, 661 N.E.2d 828 (Ind.Ct.App.1996); Drake v. State, 655 N.E.2d 574, 577 (Ind.Ct.App.1995) and compare In the Matter of C.D.T., 653 N.E.2d 1041 (Ind.Ct.App.1995) (seizure of contraband not justified under Terry because State failed to sustain burden of proving that incriminating character of plastic bag containing cocaine was immediately apparent to police officer during weapons search).

Accordingly, we conclude that Officer Ogle's seizure of the marijuana was justified under Terry and that the trial court did not abuse its discretion when it denied Walker's motion to suppress the marijuana evidence.

II. Suspension of Driver's License

Walker also contends that the trial court erred in suspending his driver's license pursuant to IND.CODE § 35-48-4-15 (Supp.1995). IC 35-48-4-15(a) provides:

If a person is convicted of an offense under section 1, 2, 3, 4, 5, 6, 7, 10, or 11 of this chapter, or conspiracy to commit an offense under section 1, 2, 3,...