Walls v. State

• Decision Date: 20 August 1999
• Docket Number: No. 02A04-9810-CR-520.,02A04-9810-CR-520.
• Citation: 714 N.E.2d 1266
• Parties: Richard D. WALLS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

714 N.E.2d 1266

Richard D. WALLS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 02A04-9810-CR-520.

Court of Appeals of Indiana.

August 20, 1999.

Rehearing Denied October 25, 1999.

Michelle F. Kraus, Deputy Public Defender, Fort Wayne, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RUCKER, Judge

When the passenger of a car that has been stopped by a police officer exits the car and begins to walk away, may the officer as a matter of course order the passenger to return to the vehicle? We hold that he may not.

The essential facts are these. Shortly after midnight on December 25, 1997, Appellant-Defendant Richard D. Walls was a passenger in a car driven by another person. When the driver made a left-hand turn without using his turn signal, patrol officer Gregory Stier activated his emergency lights and pulled the car over. The location at which the car was stopped was known to be a high drug-trafficking area. As Officer Stier reached for his police radio to give his location and to run a license plate check, Walls "jumped out of the passenger side of the vehicle and shut the door and started to walk away." R. at 95. The officer ordered Walls to return, and after hesitating momentarily Walls complied. Officer Stier then approached Walls and asked if he had any weapons. Walls responded that he had a knife in his pocket. The officer then conducted a pat-down search recovering two knives in the process. On the blade of one of the knives was a white chalky substance later identified as crack cocaine. Walls was arrested and later charged with possession of cocaine as a Class D felony.¹ Prior to trial he filed a motion to suppress the evidence which the trial court denied. During trial the cocaine was introduced into evidence over Walls' objection. Walls was convicted as charged. This appeal followed.

Walls contends the trial court erred in denying his motion to suppress and entering the contraband into evidence over his objection. According to Walls he was unlawfully detained and thus the search and ultimate seizure were constitutionally infirm.

We first observe that the admissibility of evidence is within the sound discretion of the trial court, and we will not disturb that decision absent a showing of manifest abuse of that discretion resulting in the denial of a fair trial. Spires v. State, 670 N.E.2d 1313, 1315 (Ind.Ct.App.1997). In reviewing the admissibility of evidence, this court will consider only the evidence favoring the trial court's ruling and unrefuted evidence in the defendant's favor. Taylor v. State, 677 N.E.2d 56, 65 (Ind.Ct.App.1997), trans. denied.

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Supreme Court held that a police officer may order the driver of a lawfully stopped car to exit the car as a precautionary measure for the officer's safety. Mimms, 434 U.S. at 109-11, 98 S.Ct. at 323-33. More recently the Court held that the Mimms rule applies to passengers as well as drivers. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Thus, when making a traffic stop, a police officer may now order passengers to get out of the car pending completion of the stop. Wilson, 519 U.S. at 415, 117 S.Ct. at 886. The question in the case before us is whether the Mimms/Wilson holding extends to a passenger who walks away from a car.²

In both Wilson and Mimms the underpinning of the Court's conclusion was that once a car was lawfully stopped by police, the additional intrusion on the liberty of the driver or passenger in ordering either of them to exit the car, is de minimis and is outweighed by considerations of the officer's safety. Wilson, 519 U.S. at 412,117 S.Ct. at 885; Mimms, 434 U.S. at 111,98 S.Ct. at 334. Stated differently, the Mimms/Wilson analysis seems to contemplate an order to exit along with some indication that the officer's safety may be compromised. Where, for example, a police officer orders a driver or passenger to exit a car and, during the course of the traffic stop, the driver or passenger attempts to flee the scene, makes a furtive movement, or somehow threatens the officer's safety, then the officer may have an articulable suspicion of criminal activity justifying detention of either the driver or the passenger, or both. However, we are faced with no such facts here. Rather, in the case before us Walls exited the car of his own volition and was walking away from the scene at the time Officer Stier commanded Walls to return. Nothing in the record indicates that Walls threatened the officer in any way. Indeed Officer Stier testified that once Walls exited the car he recognized Walls from previous encounters. According to Officer Stier, he did not know Walls to be a violent person, and he did not know Walls to be a person who carried a weapon. R. at 128. Rather, Officer Stier testified that he was simply suspicious of Walls walking away from the scene. When questioned why that was so, the officer testified "I guess I don't understand the thought pattern that someone would just get out and walk away when they are being stopped by the police." R. at 100. Officer Stier also testified that by leaving the scene, Walls placed him in a "tactical disadvantage." R. at 98.

In judging the reasonableness of investigatory stops, courts must strike "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law [enforcement] officers." Mimms, 434 U.S. at 109, 98 S.Ct. at 332. When balancing these competing interests in different factual contexts, our central concern is that "an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). Consequently, "in order to pass constitutional muster, reasonable suspicion must be comprised of more than an officer's general `hunches' or unparticularized suspicions." Stalling v. State, 713 N.E.2d 922, 924 (Ind.Ct.App. 1999) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968) (reversing trial court's denial of a motion to suppress evidence of cocaine seized through a warrantless pat-down search for weapons where defendant rode away on his bicycle upon seeing police)).

In Terry, the Supreme Court established the rule that a police officer can, without a warrant or probable cause, briefly detain a person for investigatory purposes if, based on specific and articulable facts together with rational inferences from those facts, the officer has a reasonable suspicion that criminal activity "may be afoot." Terry, 392 U.S. at 30, 88 S.Ct. at 1884. Indiana courts follow the Terry guidelines. Taylor v. State, 639 N.E.2d 1052, 1054 (Ind.Ct.App.1994); Platt v. State, 589 N.E.2d 222, 225-26 (Ind. 1992). Whether a particular fact situation justifies an investigatory stop is determined on a case by case basis. Id. at 226. Here, there were no specific or articulable facts before Officer Stier justifying a reasonable suspicion that Walls had been engaging or was about to engage in criminal activity. Indeed Officer Stier's suspicions had nothing to do with criminal activity being afoot. Rather, he simply questioned why a person who was merely a passenger in a car would walk away from the scene after the car was stopped by police. That is not enough. True, the record shows that the location at which the car was stopped and from which Walls was leaving was known as a drugtrafficking area. However, the fact that one turns away from the police in a high crime neighborhood is not sufficient to establish reasonable suspicion of criminal activity. Tumblin v. State, 664 N.E.2d 783, 785 (Ind. Ct.App.1996).

Further, we reject the notion that for purposes of taking "command of the situation" or maintaining a "tactical advantage" a police officer may routinely order the passenger of a car to remain at the scene of a traffic stop.³ In our view such an intrusion upon the liberty of a private citizen who has been observed engaging in no illegal activity, and whose only transgression is his untimely presence in a car that has been stopped for a minor traffic violation, is not de minimis. The Fourth Amendment is satisfied only if the facts known to the officer at the moment of the stop are such that a person "of reasonable caution" would believe that the "action taken was appropriate". Terry, 392 U.S. at 22, 88 S.Ct. at 1880; Gipson v. State, 459 N.E.2d 366, 368 (Ind.1984). In this case, Officer Stier's own testimony shows that when the officer ordered Walls to return to the scene, he had no reason to believe that Walls posed a threat or danger to him of any kind. Essentially, Officer Stier lacked the reasonable articulable suspicion necessary to justify an investigatory stop. Absent reasonable articulable suspicion, the Officer's subsequent search of Walls and resultant seizure of the cocaine were unreasonable and exceeded constitutional limits. Therefore the trial court erred in denying Walls' motion to suppress.

Judgment reversed.

DARDEN, J., concurs.

SULLIVAN, J., dissents with opinion.

SULLIVAN, Judge, dissenting

The majority opinion confines its analysis to a single issue, i.e. whether an officer who makes a valid traffic stop not only may order a passenger, as well as the driver, to exit the vehicle but also may direct the passenger, who begins to walk away, to return to the vicinity of the vehicle. The majority does not consider whether the officer, for protective purposes, was entitled to conduct a pat-down of the passenger, which resulted in seizure of the knife, which in turn contained smears of cocaine; nor do I.

At the outset, I would note that the officer here did not order the occupants to exit the...