Wilson v. State
| Decision Date | 09 May 2012 |
| Docket Number | No. 79A05–1107–CR–350.,79A05–1107–CR–350. |
| Citation | 966 N.E.2d 1259 |
| Parties | Douglas P. WILSON, Jr., Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Steven P. Meyer, Carlos I. Carrillo, Ball Eggleston PC, Lafayette, IN Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN Attorneys for Appellee.
Douglas Wilson appeals his convictions and sentence for Class B felony dealing in a narcotic drug, Ind.Code § 35–48–4–1 (2006) ; Class D felony possession of a narcotic drug, Ind.Code § 35–48–4–6 (2006) ; Class A misdemeanor resisting law enforcement, Ind.Code § 35–44–3–3 (2006) ; and Class A misdemeanor operating a vehicle while suspended, Ind.Code § 9–24–19–2 (2000). We affirm.
Wilson raises four issues, which we consolidate and restate as three:
Around 11:30 p.m. on February 27, 2010, Officer Nathan Lamar of the Lafayette Police Department was patrolling a high crime area. As he turned off Concord Road and entered the parking lot of Riehle Brothers, a local bar, he saw a man, later identified as Wilson, exit the bar and walk quickly to a maroon Mazda parked in a handicapped parking space. The vehicle did not have a handicapped plate or permit. Officer Lamar drove past the vehicle, noted the plate number, and entered it into his computer. The computer showed that the registered owner had a suspended driver's license and two outstanding arrest warrants. Officer Lamar continued through the parking lot, saw the vehicle on Concord Road, and attempted to catch up to it. The vehicle turned into a nearby strip club and pulled into a parking space. Officer Lamar pulled up behind the vehicle and activated his emergency lights. He exited his patrol car, stood next to it, and waited for a break in the radio transmission so that he could notify other officers of the traffic stop. While he was waiting, Wilson, the only occupant of the vehicle, stepped out. Officer Lamar told him to get back into his vehicle, and Wilson complied. There was a break in the radio transmission, and Officer Lamar began to transmit information. At that point, Wilson stepped out of his vehicle for a second time. Officer Lamar stopped his transmission and again ordered Wilson to get back into his vehicle. This time, Wilson turned away from Officer Lamar and fled. Officer Lamar chased him but was unable to apprehend him. A subsequent police search was unsuccessful.
Upon returning to his patrol car and looking up a photo of the registered owner of the vehicle, Officer Lamar identified Wilson as the registered owner. Wilson's vehicle was locked. Another officer was already preparing paperwork to tow the vehicle. After the tow truck driver arrived and unlocked the vehicle, Officer Lamar conducted an inventory search. In the center console, he found a pill bottle prescribed to Crystal Mickschl for 240 hydromorphone
pills. The bottle contained five empty cellophane wrappers. In the glove box, Officer Lamar found a makeup bag containing two more pill bottles prescribed to Mickschl, both with fill dates of February 25, 2010. One bottle was for 240 hydromorphone pills but contained only 101 pills. The label directed Mickschl to take two pills every six hours. The second bottle was for 90 morphine sulfate pills but contained only 58 pills. The label directed Mickschl to take one pill every eight hours. Mickschl was later determined to be Wilson's girlfriend. After the search, the vehicle was impounded.
Wilson was located in April 2010. The State charged him with two counts of Class B felony dealing in a narcotic drug (one count each for hydromorphone and morphine
sulfate), two counts of Class D felony possession of a narcotic drug (one count each for hydromorphone and morphine sulfate), Class A misdemeanor resisting law enforcement, and Class A misdemeanor operating a vehicle while suspended.
Wilson filed a motion in limine, which the trial court treated as a motion to suppress. At a hearing, Wilson argued that the impoundment of his vehicle was unjustified and that the evidence of items discovered during the inventory search therefore required suppression. The trial court denied the motion to suppress.
At a jury trial, Officer Lamar testified for the State. Wilson objected to the evidence of items found during the search of his vehicle, which the trial court overruled. The State presented testimony that cellophane wrappers are commonly used to package pills for illegal sale. The State also presented testimony that on February 2, 2010, Wilson made a statement to a confidential informant that he expected to get 240 pills within the next two days and that he planned to sell them. Also at trial, a security guard for Riehle Brothers, Matthew Koning, testified that on February 26, 2010, he arrived at work early to shoot some pool before his shift. During a game with Wilson, Koning observed him pulling pills out of his pocket and offering to sell what he described as a type of morphine pill to people at a table next to theirs. Wilson wanted to sell the pills for ten dollars each but was willing to sell them for eight dollars each. Koning did not see anyone buy any pills. He reported the incident to his acting supervisors. The next night, Wilson returned to Riehle Brothers. Koning believed Wilson saw him talking with a police officer. Wilson walked quickly out of the bar. Mickschl, who had married Wilson in April 2010, testified for the defense.
The jury found Wilson guilty of all charges except for the dealing charge relating to morphine sulfate, on which the jury did not return a verdict. The trial court declined to enter a judgment of conviction on the verdict for possessing hydromorphone, finding that it merged into the conviction for dealing hydromorphone. At sentencing, the trial court found Wilson's history of criminal or delinquent activity as an aggravator. As mitigators, the trial court noted Wilson's mental illness, his family support, and his good work history. The court also found Wilson's alcohol and drug problems as a mitigator but noted that such a mitigator was "diminished in force" in light of the fact that Wilson had gone through a treatment program but then "return[ed] to a life involving drugs." Tr. p. 347. The trial court found that the aggravator outweighed the mitigators and sentenced Wilson to an aggregate term of thirteen years, with one year suspended to probation. Wilson now appeals.
Wilson contends that the trial court erred by admitting the evidence of items found during the search of his vehicle, that the evidence is insufficient to sustain his convictions for Class B felony dealing in a narcotic drug and Class D felony possession of a narcotic drug, and that his thirteen-year sentence is inappropriate.
Wilson contends that the search of his vehicle violated the Fourth Amendment to the United States Constitution and that the trial court therefore erred by admitting the evidence of items discovered during that search. The Fourth Amendment prohibits unreasonable searches and seizures. W.H. v. State, 928 N.E.2d 288, 294 (Ind.Ct.App.2010), trans. denied. The protections of the Fourth Amendment have been extended to the states through the Fourteenth Amendment. Id. Evidence obtained in violation of a defendant's Fourth Amendment rights may not be introduced against him at trial. Id. A search or seizure may generally only be conducted pursuant to a lawful warrant. Bryant v. State, 660 N.E.2d 290, 300 (Ind.1995). Because warrantless searches are per se unreasonable, the State bears the burden of establishing that a warrantless search falls within one of the well-delineated exceptions to the warrant requirement. Johnson v. State, 766 N.E.2d 426, 432 (Ind.Ct.App.2002), trans. denied. One exception to the warrant requirement is an inventory search of an impounded vehicle. Ratliff v. State, 770 N.E.2d 807, 809 (Ind.2002). We may affirm a trial court's judgment on any theory supported by the evidence. Id.
Wilson argues that Officer Lamar's search was unreasonable because it was an improper inventory search. We need not decide whether the search was a proper inventory search, however, because the evidence shows that Wilson abandoned the vehicle before Officer Lamar searched it. Abandoned property is not subject to Fourth Amendment protection. Wilson v. State, 825 N.E.2d 49, 51 (Ind.Ct.App.2005).
However, if a defendant abandons property after he is improperly detained, the evidence is not admissible. See id. In the context of abandoned vehicles and the Fourth Amendment, "the question is not whether someone ‘had a proprietary or possessory interest in the automobile at the time of the police activity in question,’ taking into account the ‘subtle distinctions of common law property concepts,’ but rather whether [the] ‘defendant was entitled to and did have a reasonable expectation that the automobile would be free from governmental intrusion.’ " 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.5(a) (4th ed. 2004) (quoting State v. Achter, 512 S.W.2d 894, 899 (Mo.Ct.App.1974) ).
In United States v. Pittman, 411 F.3d 813 (7th Cir.2005), a police officer accompanied by a civilian observer pulled over the defendant's car because the rear license plate was not illuminated as required by Illinois law. When the defendant pulled to the side of the road, his passenger leapt out and ran. The passenger was found hiding in...
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