ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Pinnow Jeffrey A. Modisett
Greenwood, Indiana Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Z. Mae Jimison, Judge See footnote
Cause No. 49G20-9601-CF-007512
April 16, 2000
A. Fourth Amendment
Challenging the validity of the traffic stop and weapons frisk, the length of detention, and the validity of the search warrant, the defendant contends that extensive evidence should have been excluded under the Fourth Amendment to the Constitution of the United States.
The defendant acknowledges that under the Fourth Amendment the traffic stop was valid regardless of whether it was a pretext for an investigation into drug activity and that police were authorized to order him to exit the vehicle. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769,1774, 135 L.E.2d 89, 98 (1996); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 541 L.Ed.2d 331 (1977). He argues, however, that the officer's attendant frisk and pat-down was not justified and that the officers actions exceeded those permissible for a traffic stop.
A routine traffic stop "is more analogous to a so-called 'Terry stop' . . . than to a formal arrest." Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 488, 142 L.Ed.2d 492, 498 (1998)(quoting Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984)). The United States Supreme Court has recognized, however, that, due to the greater danger to an officer from a traffic stop when there are passengers present in addition to the driver of the stopped car, an officer making a traffic stop may order passengers to get out of the car pending completion of the stop. Wilson, 519 U.S. at 414-15, 117 S.Ct. at 886, 137 L.Ed.2d at 48. While the concern for officer safety may justify the additional intrusion of ordering a driver and passengers out of the car, a routine traffic stop "does not by itself justify the often considerably greater intrusion attending a full field-type search." Knowles, 525 U.S. at 117, 119 S.Ct. at 488, 142 L.Ed.2d at 488. An officer may perform a Terry "pat-down" of a driver or any passenger if he has reasonable suspicion that they may be armed and dangerous. Id. at 118, 119 S,Ct. at 488, 142 L.Ed.2d at 488. Balancing the neutralization of danger to the policeman in the investigative circumstances and the sanctity of the individual, the Terry court concluded that there is a
narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1863 20 L.E.2d
889, 909 (1968)(citations and footnote omitted). The search must be strictly circumscribed
by the exigencies which justify its initiation. Id. at 26, 88 S.Ct.
at 1882, 20 L.E.2d at 908. And in justifying the particular intrusion,
the police officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
Id. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.
Under the Fourth Amendment, therefore, Officer Boomershine was entitled to make the traffic stop to issue a traffic citation, and to require Mitchell to exit the stopped car. The officer's authority to conduct a pat-down search, however, was dependent upon the nature and extent of his particularized concern for his safety and that of others.
The State argues that Officer Boomershines pat down of Mitchell was justified because Boomershine knew that Mitchell was currently being investigated, that Boomershine had been required to provide mobile surveillance of him, that Mitchell had been the subject of a narcotics investigation in the past, that a weapon had been discovered on Mitchell's female companion on that occasion, and that Mitchell initially exhibited considerable nervousness and then relief when advised that he was only being stopped for a stop sign violation.
Officer Boomershine's instructions and intentions were to make a traffic stop for the stop sign violation. The State does not argue that, as of the time of the traffic stop, Officer Boomershine had any independent probable cause or sufficient reasonable suspicion to justify the stop, except for the traffic law violation. Officer Boomershine was thus initially justified only in making the stop and requiring Mitchell to exit the vehicle during the completion of the traffic citation. Mitchell's apparent nervousness and then relief does not give rise to a reasonable suspicion that he was armed and a danger to the officer's safety. From Officer Boomershine's testimony, it appears that Mitchell cooperated with the traffic stop. He handed over his license and the rental agreement and then exited the car when asked and stepped to the rear of the vehicle. Boomershine testified that "I then patted him down for my safety on his exterior clothing," but the officer's testimony did not express or explain any reasons for his safety concerns. Record at 396.
We conclude that neither the officer's routine traffic stop of Mitchell for a stop sign violation, nor Mitchell's conduct after being stopped, provided any basis justifying the officer's pat down search of Mitchell. This conclusion does not, however, reflect on the propriety of the subsequent police detention of Mitchell after finding an illegal weapon and probable drugs in the possession of Mitchell's companion.
Mitchell contends that his 100-minute detention was unreasonable and violated his rights under the Fourth Amendment because police failed to pursue their investigation with diligence. The defendant asserts that Detective Heffners failure to employ a more rapid means of securing a warrant by using the telephonic warrant procedure set out in Indiana Code § 35-33-5-8, See footnote unconstitutionally delayed his detention.
Although "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion," United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110, 122 (1983), there is no "bright line" for evaluating whether an investigative detention is unreasonable, and "common sense and ordinary human experience must govern over rigid criteria." United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.E.2d 605, 615 (1985). In Sharpe, the Court explained:
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But the fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.
Id. at 686-87, 105 S.Ct. at 1575-76, 84 L.Ed.2d at 615-16 (citations and
quotation marks omitted).
In this case, the decision to subject Mitchell to an investigative detention resulted after Miller, the 18 year-old passenger in his car, and who had been with him in a hotel room shortly before, was found to possess an unlicensed handgun and probable marijuana. Immediately before the stop, Mitchell and Miller were seen leaving the hotel with a briefcase. The purpose of the detention was to enable the police to obtain and execute a search warrant for the hotel room and vehicle that Mitchell and Miller had been occupying. Mitchell's detention began at 2:50 p.m. when he was placed in handcuffs and was no longer free to leave. Detective Heffner immediately prepared a probable cause affidavit, but instead of using the optional telephonic or fax method authorized by statute, he personally delivered it to a magistrate to seek a search warrant. The driving time to and from the magistrate was approximately one hour. The record does not reflect the time required to locate and present the request to the magistrate. The search warrant was issued at 4:05 p.m. and the search of the car began at approximately 4:30 p.m. Notwithstanding the availability of the fax and telephone methods for seeking a search warrant, we decline to find that Detective Heffner acted unreasonably by promptly and personally seeking the search warrant from the magistrate, rather than by attempting to obtain it remotely.
The defendant also argues that his motion to suppress should have been sustained and evidence excluded at trial because the magistrate who issued the search warrant did not have a substantial basis for concluding that probable cause existed. Mitchell urges that the probable cause affidavit did not allege facts that would establish a fair probability that evidence of dealing drugs would be found, that it was based on information from an unidentified individual whose credibility was not established, contrary to statute, and that it contained false statements knowingly included in the affidavit in reckless disregard for the truth.
A reviewing court is to focus on whether a "substantial basis" existed for a warrant authorizing the search or seizure, and doubtful cases are to be resolved in favor of upholding the warrant. Illinois v. Gates, 462 U.S. 213, 236-39 & n.10, 103 S.Ct. 2317, 2331-32 & n. 10, 76 L.Ed.2d 527, 547-48 & n. 10 (1983). In determining whether a substantial basis exists, the reviewing court, with significant deference to the magistrate's determination must "focus on whether reasonable inferences drawn from the totality of the evidence support the determination." Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997).
Detective Heffner's probable cause affidavit, presented to support his request for a search warrant, reported that an Indianapolis hotel employee had advised Heffner that Mitchell was and had been a registered guest at the hotel for over two weeks, paying cash for his room, requesting that he be listed as anonymous, but giving an Indianapolis address, and making several local calls. Heffner recognized Mitchell's name from a previous investigation three months earlier, at a different Indianapolis hotel, where a 9mm handgun was seized from the purse of Deandra Miller who was then occupying the room with Mitchell. Heffner's affidavit reported that Mitchell had previous convictions for robbery, battery, and possession of marijuana, and that Mitchell had also been arrested for dealing and possession of cocaine, the outcome of which was pending. The affidavit advised that Mitchell had just been stopped for a traffic violation and was accompanied by Miller, who was in possession of marijuana and a handgun. It reported that Officer Boomershine had also observed a handgun under Mitchell's seat. Detective Heffner stated his belief that Mitchell was using the hotel room "to facilitate illegal narcotics trafficking" and requested permission to search the hotel room and Miller's rental automobile "for illegal narcotics, weapons, monies, items assoc. w/illegal narcotics trafficking anyplace in the room or vehicle, these items may be kept, hidden, or stored." Supp. Record at 78.
The task of the issuing magistrate when receiving a request for a search warrant is to make a common sense determination, based on the totality of the circumstances, that there is a fair probability that a particular place contains evidence of a crime. Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.
Mitchell urges that the probable cause affidavit was deficient because a portion of it was based on uncorroborated hearsay statements by the hotel employee, contrary to statute. Ind.Code § 35-33-5-2. See footnote We find that the statute was not violated because the affidavit was not "based" on hearsay. The information provided by the hotel employee was only presented as a preliminary introductory matter to explain the investigation but did not provide information crucial to the probable cause determination.
Mitchell also contends that the warrant contained false statements. Specifically, he claims that the affidavit erroneously stated that Boomershine observed a handgun under the driver's seat and that Mitchell had previous felony convictions for robbery and battery. The handgun was not observed by Boomershine but by the detective who drove Mitchell's car back to the hotel, and although charged with felony robbery and battery, Mitchell ultimately pled guilty to misdemeanor battery and theft.
Mistakes and inaccuracies in search warrant affidavits will not vitiate the reliability of the affidavits so long as such mistakes were innocently made. Utley v. State, 589 N.E.2d 232, 336-37 (Ind. 1992). The party alleging that the mistakes were not innocent must make a substantial showing that the facts were included in reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.E.2d 667, 672 (1978).
Mitchell urges that reckless disregard is shown because Detective Heffner obtained Mitchell's prior criminal history by telephone from police dispatch, which he acknowledged sometimes provides erroneous information, and because Heffner had personally investigated the defendant previously and therefore should have been familiar with the defendants record. We disagree. It was not reckless disregard for Detective Heffner to not have Mitchell's criminal history memorized and to rely on police dispatch for this information under the circumstances. The alleged inaccuracies in Mitchell's criminal history are not significant to the determination of probable cause. Further, defendant does not contest the statements in the affidavit that refer to the convictions for robbery, battery, and possession of marijuana, nor to those alleging the arrest for dealing and possession of cocaine that were still pending. Similarly, it is not significant that the gun under Mitchell's car seat was observed by an officer different from the one reported on the affidavit. This erroneous attribution does not undermine the accuracy of the relevant fact of the gun's presence.
Looking at the totality of the evidence contained in the affidavit, primarily upon the gun and marijuana found on Mitchell's companion, Miller, the gun observed protruding from under the drivers seat of Mitchell's car, the general nature of Mitchell's criminal history, and with deference to the magistrates determination, we find a substantial basis for finding probable cause to search the car and the hotel room.
We reject the defendant's claim that his convictions violate the Fourth Amendment.
B. The Indiana Constitution
Separate from his federal Fourth Amendment claim, the defendant urges that the pretextual traffic stop and his subsequent lengthy detention before the automobile search were each unreasonable and thus violated Article 1, Section 11 of the Indiana Constitution. He argues that, because of these violations, the trial court should have suppressed the evidence of the ammunition found in the defendant's pocket, the weapon found under the driver's seat, the cocaine found in the car's console, and the $4,522 in cash found in the briefcase in the trunk.
The language of Article 1, Section 11, the search and seizure provision of the Bill of Rights of the Indiana Constitution, is virtually identical to its Fourth Amendment counterpart. Section 11 provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
When considered by the 1850-51 Constitutional Convention, Section 11 was adopted as recommended by the Committee on the Rights and Privileges of the Inhabitants of the State without any substantive debate. See footnote It's language is almost identical to the search and seizure provision in Indiana's original 1816 Constitution, article 1, section 8, which was likewise adopted without recorded discussion,See footnote and which is virtually identical to the federal Fourth Amendment that had been ratified in 1791.
Despite the fact that Indiana's Section 11 appears to have derived from the federal Fourth Amendment and shares the same language, this Court has made an explicit point to interpret and apply Section 11 independently from federal Fourth Amendment jurisprudence. Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999); Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994). In Moran, we looked to the decisions of this court prior to 1961, when the Fourth Amendment became applicable to the states, and concluded that federal methodology for analyzing Fourth Amendment claims is not required "when applying the state reasonableness standard under Article 1, § 11." Id.
We have recognized that "the purpose of Article One, Section 11 is to protect from unreasonable police activity, those areas of life that Hoosiers regard as private." Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995); Moran, 644 N.E.2d at 540. Section 11 "must receive a liberal construction in its application to guarantee the people against unreasonable search and seizure." Brown, 653 N.E.2d at 79. In resolving challenges asserting this section, courts must consider the circumstances presented in each case to determine "whether the police behavior was reasonable." Id. We require the State to "bear the burden of showing that, in the totality of the circumstances, the intrusion was reasonable." Baldwin, 715 N.E.2d at 337. "Admissibility is lawful if the court can declare the process reasonable." Brown, 653 N.E.2d at 79.
In construing and applying "unreasonable" under Section 11, we recognize that Indiana citizens have been concerned not only with personal privacy but also with safety, security, and protection from crime. Indeed, the Indiana Constitution was adopted to the end that "justice be established, public order maintained, and liberty perpetuated." Ind. Const. preamble. Its framers and ratifiers declared in Article 1 of its Bill of Rights that government is "instituted for [the people's] peace, safety, and well-being." Ind. Const. art. 1, § 1. When government intrusion is challenged under Section 11, therefore, reasonableness under the totality of circumstances may include consideration of police officer safety.
An automobile is an "effect" within the protection of Section 11. Idol v. State, 233 Ind. 307, 313, 119 N.E.2d 428, 431 (1954); Robinson v. State, 197 Ind. 144, 146-47, 149 N.E.2d 891, 892 (1925). We have recognized that "Hoosiers regard their automobiles as private and cannot easily abide their uninvited intrusion," Brown, 653 N.E.2d at 80, and that we "are extremely hesitant to countenance their casual violation, even by law enforcement officers who are attempting to solve serious crimes." Id. at 80 n.3. A police stop and brief detention of a motorist is reasonable and permitted under Section 11 if the officer reasonably suspects that the motorist is engaged in, or about to engage in, illegal activity. Baldwin, 715 N.E.2d at 340. Reasonable suspicion exists if the facts known to the officer, together with the reasonable inferences arising therefrom, would cause an ordinarily prudent person to believe that criminal activity has or is about to occur. Id.
The defendant contends that his convictions arose from a pretextual stop that constituted an unreasonable search and seizure under Section 11. He argues that he was stopped not for the purpose of enforcing traffic laws, but so that the state could further its criminal investigation. The defendant emphasizes that Office Boomershine was following the defendant only because he had been so ordered by Detective Heffner; that Boomershine did not stop the defendant immediately upon seeing the defendant run the stop sign; and he stopped the defendant after he had checked with Heffner for instructions on whether to make the traffic stop and was told to proceed. These facts are not disputed.
Whether Article 1, Section 11, of the Indiana Constitution prohibits pretextual stops is an issue of first impression for this Court. As previously noted, Section 11, which protects citizens against unreasonable police conduct, permits police to stop and briefly detain a motorist if the officer reasonably suspects that the motorist is engaged in, or about to engage in, illegal activity. Baldwin, 715 N.E.2d at 340. We find nothing unreasonable in permitting an officer, who may have knowledge or suspicion of unrelated criminal activity by the motorist, to nevertheless respond to an observed traffic violation. It is likewise not unreasonable for a motorist who commits a traffic law violation to be subject to accountability for said violation even if the officer may have an ulterior motive of furthering an unrelated criminal investigation. The potential for unreasonable search and seizure associated with such a traffic stop is most likely to arise not in the routine police handling of the observed traffic violation, but in the ensuing police investigatory conduct that may be excessive and unrelated to the traffic law violation. In this appeal, Mitchell argues that the stop itself was pretextual and thus violates Section 11, but he does not claim unreasonableness in Officer Boomershine's conduct in requesting Mitchell to exit the vehicle or in conducting a pat-down search. We find no error on his claim that he was subjected to a pretextual stop in violation of Article 1, Section 11, of the Indiana Constitution.
The defendant further contends in the alternative that, even if the pretextual stop is found reasonable, the length of time he was detained prior to the automobile search was unreasonable under Section 11. See footnote Asserting a detention of 100 minutes, Mitchell argues that Officer Boomershine stopped him at approximately 2:30 p.m., handcuffed him at 2:50 p.m., transported him to police headquarters, and then held him there while Detective Heffner prepared the probable cause affidavit, obtained the search warrant, and returned to begin searching the Mitchell vehicle at 4:30 p.m. The parties agree that much of the delay resulted from Heffner's travel time from the hotel to the magistrate and back. The defendant argues that the State should have used a telephone warrant procedureSee footnote instead of physically delivering the probable cause affidavit and obtaining the search warrant.
The State argues that Mitchell's detention was based on probable cause and is justified by Officer Boomershine's discovery of seven .357 caliber bullets in Mitchell's pocket and the .380 caliber weapon and probable marijuana in his companion's purse. Since Mitchell's bullets did not match his companion's handgun, the State urges that Officer Boomershine had reason "to believe that Defendant may have had another handgun in the car" and "to infer that Defendant at least committed the misdemeanor of carrying a handgun without a license, if not the class C felony." Br. of Appellee at 15.
Were it not for the unusual circumstances of this case, particularly the weapon and probable marijuana that police observed in the purse of Mitchell's companion and Boomershine's knowledge of the current and a recent prior police narcotics investigation of Mitchell and Miller, it is possible that the reasonableness of Mitchell's detention would have been a close issue. A reasonable search under Section 11 would permit an officer to briefly detain a motorist only as necessary to complete the officer's work related to the illegality for which the motorist was stopped. The protracted detention at issue here, however, was not related to Mitchell's stop sign violation but to the ensuing discovery of the weapon and probable drugs in the possession of Mitchell's passenger, combined with Boomershine's knowledge regarding the current and past narcotics investigations involving Mitchell and Miller. We find that the length of Mitchell's detention was not unreasonable in light of the totality of the circumstances, notwithstanding the failure of Det. Heffner to utilize the telephone warrant procedure.
We conclude neither the stop of the defendant nor his lengthy detention under the totality of the circumstances constituted an unreasonable search or seizure in violation of Art. 1, Sec. 11 of the Indiana Constitution.