Young v. State
| Citation | 564 N.E.2d 968 |
| Decision Date | 16 January 1991 |
| Docket Number | No. 49A02-8911-CR-608,49A02-8911-CR-608 |
| Parties | Eric YOUNG, Appellant (Defendant Below), v. STATE of Indiana, Appellee. |
| Court | Court of Appeals of Indiana |
March 19, 1991.
Walter E. Bravard, Jr., Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Margarett L. Knight, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Eric Young (Young) appeals his convictions of possession of cocaine as a class C felony, and possession of cocaine as a class D felony.
We affirm in part and reverse in part.
On August 8, 1988, Indianapolis Police Officer Welton stopped a car driven by Young after observing Young commit a traffic infraction. There was also one passenger in the car with Young. Officer Welton recognized the passenger as Walter Bunch, and knew that there was an outstanding warrant on Bunch for "fleeing." Record at 73, 276. Officer Welton did not immediately recognize Young but shortly after remembered assisting in a previous narcotics arrest of Young.
Officer Welton asked Young for his driver's license and registration. Young was unable to produce any registration. The officer then radioed for assistance in arresting Walter Bunch and ran a check on the license plates on the car. The check revealed that the plates belonged on a different car. Officer Welton then engaged in conversation with both men to try to keep them calm while waiting for back-up assistance to arrive. During the conversation, the officer heard what he thought was a beeper signal. He asked which of the men had a beeper. Young responded that neither of the two had a beeper and that the noise probably came from his watch.
The back-up officer arrived and placed Walter Bunch under arrest. After Bunch was in custody, Officer Welton returned to the automobile and asked Young to exit the vehicle. Officer Welton testified that he knew Young had previously been arrested for possession of a sawed-off shotgun, and he was concerned for his safety. Officer Welton looked inside of the vehicle and discovered a beeper. The officer then conducted a pat-down search of Young. During the search, Officer Welton noticed that there was a large sum of money protruding from Young's pocket and asked Young where he got it. Young responded that he won the money gambling. The officer also noticed a piece of plastic sticking out of the top of Young's pants and asked Young if he had something in his pants. Young stated that he did not. The officer requested Young to undo his pants. Officer Welton testified that Young then "stuck his hand down his pants, pushing something down." Record at 306. Officer Welton asked Young what he had pushed down his pants, but Young did not respond. Officer Welton asked Young to finish undoing his pants and then pulled Young's pants away from his body. Officer Welton then saw a small plastic baggie containing what the officer suspected to be cocaine. Officer Welton retrieved the baggie and placed Young under arrest.
Young's car was impounded. A subsequent search of a spray can found on the back floorboard of the car revealed a plastic bag containing three smaller bags of cocaine.
Young presents the following issues which we restate:
(1) Whether the court erred in denying Young's Motion to Suppress Evidence and in subsequently admitting into evidence over defense counsel's objection, evidence found during the search of Young and his automobile;
(2) Whether finding Young guilty of two counts of possession of cocaine is contrary to the law and evidence.
Young argues that the court erred in denying his Motion to Suppress Evidence and in admitting evidence obtained as a result of the search of Young and the later search of Young's car.
Young first contends that the stop of his vehicle and warrantless search of his person violated the Fourth Amendment prohibition against unreasonable searches and seizures. Officer Welton testified that he stopped Young because he observed Young run a stop sign prior to making a right-hand turn. Failure to obey a stop sign constitutes an infraction under I.C. 9-4-1-33(a) and 9-4-1-127.1(b) (Burns Code Ed.Repl.1987). The officer was therefore justified in stopping Young for the purpose of issuing a traffic citation. In addition, once the officer recognized Walter Bunch and knew that there was an outstanding warrant for him, the officer was justified in detaining the two men until the back-up police officer arrived and Bunch was placed under arrest.
We next examine the police officer's actions toward Young. It is not a violation of Whether Officer Welton's "frisk" of Young was reasonable depends upon the circumstances presented. In Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court held that an individual stopped or detained upon reasonable suspicion of criminal activity may be frisked or patted down for weapons if the police officer holds a reasonable belief that the individual may be armed and dangerous. In the present case, Officer Welton testified that he was aware Young had a prior arrest for possession of a sawed-off shotgun, and that his cursory search of the vehicle which lead to the discovery of the beeper and the pat down search of Young were motivated by safety concerns. The searches were therefore aimed at weapons and fall within the exception created in Terry, supra. See, Collett v. State (1975) 3d Dist., 167 Ind.App. 185, 338 N.E.2d 286 ().
the Fourth Amendment for a police officer to request the driver of a vehicle lawfully detained to exit the vehicle. Pennsylvania v. Mimms (1977) 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331; State v. Pease (1988) 1st Dist. Ind.App., 531 N.E.2d 1207. The de minimus intrusion occasioned by the request is far outweighed by the legitimate interest in the officer's protection. This is so even where nothing specific indicates that the officer's personal security may be in jeopardy. Mimms, supra; Poling v. State (1987) Ind., 515 N.E.2d 1074. Mimms also permits the officer to briefly detain the driver outside the car while completing the investigation. See, New York v. Class (1986) 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81
Young places much reliance upon the opinion of our First District in State v. Pease (1988) 1st Dist. Ind.App., 531 N.E.2d 1207. In that case the court affirmed the trial court's decision sustaining the defendant's motion to suppress evidence. The defendant, Pease, had been stopped by a police officer because the windshield of the car Pease was driving was cracked. The officer asked Pease to step out of the car and conducted a pat down search of him. During the search, the officer felt a hard object in Pease's upper shirt pocket and questioned Pease about it. Pease reached for the pocket and then turned and ran, discarding the object.
Our First District held that, although the officer was justified in stopping Pease for violation of the unsafe vehicle statute, the officer was not justified under Terry in conducting a weapon's pat down. The court held that there was no evidence supporting a reasonable belief by the officer that Pease was armed and dangerous. Therefore, Pease is dissimilar from the case presented here. Officer Welton was familiar with Young and knew that Young had previously been arrested for possession of a shot gun. The pat down of Young was therefore reasonable to ensure Officer Welton's safety.
More troubling is Officer Welton's subsequent warrantless search of Young's pants. It is clear that the type of pat down search authorized by Terry, supra, is limited to a search for weapons. The Supreme Court has determined that the officer's safety is paramount to the intrusion occasioned by a frisk for weapons. Terry, supra, 392 U.S. at 23, 88 S.Ct. at 1881. In the present case, however, the search of Young's pants occurred after the frisk for weapons and Officer Welton testified at the Motion to Suppress hearing that he knew the item in Young's pants was not a weapon. Therefore, the search of Young's pants does not fall within the exception enunciated in Terry.
Generally, a search conducted without a warrant is unreasonable under the Fourth Amendment. Coolidge v. New Hampshire (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. In Savage v. State (1988) Ind., 523 N.E.2d 758, 760, our Supreme Court stated:
Probable cause to conduct the search exists if the facts and circumstances, together with the knowledge of the officer conducting the search, are sufficient "to warrant a person of reasonable caution to believe that an offense has been or is being committed." Bergfeld v. State (1988) Ind., 531 We therefore must examine the facts and circumstances to determine whether Officer Welton had probable cause to search Young. Officer Welton testified that when asked, Young was unable to produce a registration for the vehicle he was driving. Officer Welton also determined that the plates on the vehicle belonged on a different vehicle. Officer Welton was aware that Young had previously been arrested on a drug charge. Further questioning of Young proved unsatisfactory. Young lied about having a beeper and appeared to be carrying an unusually large amount of...
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