Wilson v. State, No. 49A05-9503-CR-97

• Docket Nº: No. 49A05-9503-CR-97
• Citation: 670 N.E.2d 27
• Case Date: August 08, 1996
• Court: Court of Appeals of Indiana

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670 N.E.2d 27 William WILSON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 49A05-9503-CR-97. Court of Appeals of Indiana. Aug. 8, 1996.

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Richard D. Gilroy, Indianapolis, for Appellant-Defendant.

Pamela Carter, Attorney General, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

CHEZEM, Judge.

Case Summary

Defendant-Appellant, William Wilson ("Wilson"), appeals from his convictions for Possession of Cocaine, a class C felony, and Resisting Law Enforcement, a class A misdemeanor. We affirm.

Issues

Wilson presents two issues for our review, which we restate as:

I. Whether the police had reasonable suspicion to stop and search Wilson; and,

II. Whether there was sufficient evidence to support Wilson's convictions.

Facts and Procedural History

The facts most favorable to the verdicts indicate that at approximately 1:00 a.m. several Indianapolis Police Department ("IPD") uniformed police officers in marked police vehicles were conducting a "sweep" ¹

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of a high crime neighborhood known for significant drug activity. Wilson was standing in the yard of a vacant house with another man, who was later identified as Brian Martin ("Martin"). Police had received prior reports of criminal activity in relation to that vacant house. In view of Officer Tom Shaffer, Wilson and Martin extended their hands together and appeared to have exchanged something. Officer Shaffer testified that he could see that an object was exchanged but that he could not specifically see what the object was. Officer Shaffer and the other officer riding with him pulled the squad car over and shined the spotlight on Wilson and Martin, who then turned and walked toward the vacant house and appeared to be hiding between two houses. The officers exited the vehicle and commanded the men to stop by shouting, "Stop! Police!" Wilson and Martin ran from the officers. Officer Shaffer shouted "Stop! Police!" at least once more. Other officers who had arrived at the scene also ordered the men to stop. Wilson continued to run. Officer Shaffer put his flashlight beam on Wilson and saw him place a balled up piece of brown paper in his mouth.

Officer Shaffer apprehended Wilson, directed him to the porch of the house, conducted a pat-down search for weapons, and placed him in handcuffs. When Wilson was being handcuffed, he spit the brown paper onto the ground. Officer Shaffer retrieved the brown paper. He testified that the brown paper was partially wet. Inside the brown paper were seventeen small plastic baggies which were later identified as rock cocaine. Next to the brown bag on the ground was a bag which contained what was later identified as marijuana.

Wilson was charged with Possession of Cocaine, Possession of Marijuana, and Resisting Law Enforcement. He moved to suppress the evidence on the basis that Officer Shaffer did not have reasonable suspicion to stop him and search him. His motion to suppress the evidence was overruled and he was convicted of Possession of Cocaine and Resisting Law Enforcement. He was also adjudicated to be an habitual offender. Wilson was sentenced to four years for the Possession of Cocaine conviction and to one year for Resisting Law Enforcement. Those sentences were ordered to run concurrently. His sentence was enhanced by eight years as a result of his being an habitual offender, which term was to run consecutive to the other sentences.

Discussion and Decision

I

We must first determine whether the police had reasonable suspicion to stop and search Wilson. Because a trial court's decision to deny a motion to suppress evidence is reviewed as a matter of sufficiency, Berry v. State, 574 N.E.2d 960 (Ind.Ct.App.1991), reh. denied, trans. denied, we will neither reweigh the evidence nor judge the credibility of witnesses. Johnson v. State, 450 N.E.2d 123, 124 (Ind.Ct.App.1983). Indiana has adopted the Terry rationale in determining the legality of investigatory stops under Article I, Sec. 11 of the Indiana Constitution. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Taylor v. State, 639 N.E.2d 1052, 1054 (Ind.Ct.App.1994).

In Terry, the United States Supreme Court established the rule that the police, without a warrant or probable cause, can briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion of criminal activity, even if they lack probable cause under the Fourth Amendment. In addition to the detainment, the officer can conduct a limited search of the individual's outer clothing for weapons if the officer reasonably believes the individual is armed and dangerous. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. Reasonable suspicion entails some minimal level of objective justification for making a stop--that is, something more than an inchoate and unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause. U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). In evaluating the validity of a stop, we must consider "the totality of the circumstances--the whole picture." Id. (citing United States v. Cortez,

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449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

Judicial interpretation of what constitutes "reasonable suspicion" is fact-sensitive. Another panel of this court recently held in Tumblin v. State, 664 N.E.2d 783 (Ind.Ct.App.1996), that an officer's observation that two males were walking on a sidewalk in a high crime area of the city, saw the approaching squad car, and turned to walk in the opposite direction did not, collectively or individually, create a reasonable suspicion of criminal activity justifying an investigatory stop....