Attorney for Appellant Attorneys for Appellee
Kathleen M. Sweeney Steve Carter
Indianapolis, Indiana Attorney General
Christopher L. Lafuse
Deputy Attorney General
Indiana Supreme Court
Appellant (Defendant below),
State of Indiana,
Appellee (Plaintiff below).
Appeal from the Marion Superior Court, No. 49G01-0009-CF-165692
The Honorable Heather Welch, Judge Pro Tempore
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0106-CR-389
November 26, 2003
This is an interlocutory appeal from the trial courts denial of a motion
to suppress evidence. Finger contends he was subjected to an unlawful detention
when an officer investigating his parked car retained his drivers license. The
trial court ruled that Finger had not been detained, but the Court of
Appeals reversed, holding that the investigating officers retention of Fingers drivers license constituted
detention. We agree that retention of a drivers license can constitute detention, but
find that the officer had reasonable suspicion to justify an investigative stop under
the facts of this case. We grant transfer and affirm the trial
Factual and Procedural Background
At around 10:30 p.m on September 18, 2000, Officer Richard Young of the
Butler University Police Department received a police dispatch relaying the report by a
concerned citizen of a suspicious vehicle at the intersection of 56th Street and
Meridian Street in Indianapolis. Young found a car with two occupants parked just
west of the intersection and partially in a driving lane of 56th street.
After placing his university police car behind the vehicle and activating his
emergency lights, Young approached the vehicle and found Gregory Finger sitting in the
drivers seat and Michael Crosby in the passenger seat.
Young asked what was happening and whether Finger needed any assistance. Finger
responded that the car was out of fuel and that a passerby would
be returning soon with more gasoline. Young knew that a filling station
was around the corner, less than two blocks away, and observed that the
fuel gauge indicated approximately one eighth of a tank. Young thought Finger
seemed nervous, though a stranded motorist would be expected to be relieved to
receive the assistance of a police officer. As Young carried on a
general conversation with Finger and his passenger, Fingers explanation for his presence changed.
Young then asked for and received Fingers and Crosbys drivers licenses and
ran warrant and license checks. Both came back negative. Young then
continued to carry on a conversation with Finger. As Young testified, Finger
[wasnt] going anywhere if he was out of fuel. However, Young did
not return the drivers licenses and never told Finger or Crosby that they
either were or were not free to leave. Young also
testified that further conversation with Finger produced inconsistencies in the information Finger was
providing, but he did not elaborate what these were on direct or cross-examination.
When Young asked about a knife on the back seat and ammunition
in the front seat of Fingers vehicle, both in plain view, Finger and
Crosby responded that they did not know why these items were in the
car or to whom they belonged. Young testified that this explanation made
him suspicious, though at that point he did not know that any crime
had been committed.
Fifteen to twenty minutes after Young first encountered Finger, Young heard a radio
report of an armed robbery at a liquor store less than one block
from the car. At this point, Young asked the pair to exit
the car and read them Miranda rights. Next, based on safety concerns,
he retrieved the ammunition and knife from the car. In the meantime,
Indianapolis Police Department officers had been sent to the liquor store in response
to the robbery call and learned possible suspects were at 56th and Meridian
Street. When they arrived at Fingers car, Young turned the situation over
to them. After a witness to the robbery identified Crosby as one
of the men in the store, Finger and Crosby were handcuffed and taken
to the police station.
Finger was eventually charged with the robbery of the liquor store. He
was alleged to be the driver of the car for Crosby and another
man, both of whom had entered the store. The State charged Finger
with conspiracy to commit robbery,
See footnote two counts of robbery,See footnote and two counts of
criminal confinement,See footnote all class B felonies.
Finger moved to suppress both the statements he made to IPD officers at
Police Headquarters and the knife and ammunition seized at the scene.See footnote Finger
argued that Youngs initial encounter was unjustified as an investigative stop under both
the Fourth Amendment to the United States Constitution and Article I, Section 11
of the Indiana Constitution. He claimed further that even if the initial
encounter was not an investigative stop, the continued interaction with Young rose to
the level of a stop. The trial court denied Fingers motion to
suppress, finding that Officer Youngs initial approach to Fingers vehicle and his interaction
with Finger until the point of the robbery call did not constitute an
investigative stop. The court reasoned that the encounter was consensual because Officer
Young was attempting to assist a possibly stranded vehicle. The court found
that Young did detain Finger after receiving the robbery call. The court
determined this detention to be lawful because, at that time, Young knew of
specific and articulable facts sufficient to give rise to reasonable suspicion of criminal
court reasoned that reasonable suspicion existed because Young smelled alcohol
on Fingers breath, Young heard a radio report that a robbery had been
committed at the liquor store less than a block away from Fingers parked
car, and Young found inconsistencies in information provided to Young by Finger and
Crosby as to what they were doing in the area. The trial
court found that no arrest had occurred before the IPD officers arrived at
the scene. The ruling was certified for interlocutory appeal and the Court
of Appeals reversed, concluding that Young detained Finger when he retained Fingers drivers
license and that at that point Young did not have the necessary reasonable
suspicion to execute a lawful investigative stop.
Fingers Fourth Amendment Claim
Youngs status as a state actor
We note initially that Youngs actions as a Butler University Police Officer are
subject to constitutional constraints. A private entity is deemed a state actor
when the state delegates to it a traditionally public function. Wade v.
Byles, 83 F.3d 902, 905 (7th Cir. 1996). By statute the state has
conferred general police powers on Butler University Police officers. Ind. Code §§
20-12-3.5-1(1) and -2 (1998). This renders Young a state actor subject to the
Fourth Amendment restrictions on searches and seizures. See Henderson v. Fisher, 631
F.2d 1115, 1119 (3d Cir. 1980) ([t]he delegation of police powers, a government
function, to the campus police buttresses the conclusion that the campus police act
under color of state authority.).
The Fourth Amendment regulates nonconsensual encounters between citizens and law enforcement officials and
does not deal with situations in which a person voluntarily interacts with a
police officer. A full-blown arrest or a detention that lasts for more
than a short period of time must be justified by probable cause.
A brief investigative stop may be justified by reasonable suspicion that the person
detained is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 31
(1968). The Fourth Amendment claim turns on whether Young and Finger were
initially involved in a consensual encounter or were detained. At the point
at which a detention occurred, the issue is whether it was excessive in
light of the developments at that point.
Detention turns on an evaluation, under all the circumstances, of whether a reasonable
person would feel free to disregard the police and go about his or
her business. California v. Hodari D., 499 U.S. 621, 628 (1991). Initially,
Finger stated that he had run out of gas. If this were
true, it may have been enough to show that Young did not restrain
Fingers liberty. If a persons freedom to leave is restricted by something
other than police authority, it cannot be said that the police detained the
person. See Florida v. Bostick, 501 U.S. 429, 436 (1991); INS v.
Delgado, 466 U.S. 210, 218 (1984). However, it appears that Fingers car
was in fact not out of fuel, and Young observed that.
It is debatable whether Fingers claim of lack of gasoline, which the officer
believed to be false, is sufficient to render his detention voluntary. We
find no relevant authority. The only factor Finger identifies as restraining him after
his initial exchange with Young was the fact that Young obtained and then
retained Fingers drivers license. Youngs other actions, taken together, would not lead
a reasonable person to feel that he was not free to leave.
Young parked behind Fingers vehicle, activated his emergency lights and proceeded to ask
a few questions, including whether Finger needed assistance. These are all things
a police officer would be expected to do upon finding a stranded motorist
and do not indicate to a reasonable motorist that the officer intends to
detain him. However, when Young returned to Fingers car after running license
checks and did not return his identification, what arguably began as a consensual
encounter evolved into an investigative stop.
The Seventh Circuit has concluded that, [o]fficers retaining airline tickets and drivers licenses
has been a crucial factor in finding that a seizure has occurred.
Suspects deprived of their ticket and identification are effectively deprived of the practical
ability to terminate the questioning and leave. United States v. Borys, 766
F.2d 304, 310 (7th Cir. 1985). The Eleventh Circuit has specifically
held that when an officer retains an individuals drivers license, the individual has
effectively been detained. United States v. Thompson, 712 F.2d 1356, 1359 (11th
Cir. 1983). The court reasoned, [w]ithout his drivers license Thompson was effectively
immobilized. A reasonable person under these circumstances would not consider himself free
to leave. If Thompson had tried to drive away, he could have
been arrested for driving without a license. Id. Fingers claim
of lack of fuel adds a factor that arguably renders his detention voluntary.
However, we agree that like Thompson, a reasonable person in Fingers position
would not feel free to leave after Young retained his identification. At
least theoretically, Finger could have abandoned his car and walked away or recanted
his story of lack of fuel. Finger was therefore detained for purposes
of the Fourth Amendment.
Although we agree with the Court of Appeals that Youngs retention of the
drivers license converted a consensual encounter into an investigative stop, we conclude that
at that point Young had reasonable suspicion to detain Finger for a brief
investigative period, and therefore did not violate the Fourth Amendment. The reasonable
suspicion inquiry is highly fact-sensitive and is reviewed under a sufficiency of the
evidence standard. Like any matter of sufficiency of the evidence, [t]he record
must disclose substantial evidence of probative value that supports the trial court's decision.
We do not reweigh the evidence and we consider conflicting evidence most favorably
to the trial court's ruling. Goodner v. State, 714 N.E.2d 638, 641 (Ind.
1999) (citations omitted). Here, Young observed inconsistencies in Fingers responses, nervousness, and
improbable explanations. The trial court finding here was that there was no
detention, so we have no trial court finding as to reasonable suspicion.
However, the result the trial court reached is proper even though detention occurred
before the radio report of the robbery. We do not agree with
the dissent that the officers reasonable suspicion relies on facts occurring after the
Reasonable suspicion to justify an investigative stop must be based on specific and
articulable facts known to the officer at the time of the stop that
lead the officer to believe that criminal activity may be afoot. Terry,
392 U.S. at 30. Reasonable suspicion requires more than mere hunches or
unparticularized suspicions. Id. at 27. An officer must be able to
point to specific facts giving rise to reasonable suspicion of criminal activity.
In this case, at the time he detained Finger, Young testified that he
relied on the following facts: (1) Fingers car was reported as a suspicious;
(2) although Finger claimed the car was out of fuel, and someone had
gone for gasoline, a gas station was around the corner and the fuel
gauge indicated that there was one eighth of a tank of fuel remaining
in the car; (3) Finger told other inconsistent stories during his conversation with
Young; (4) there was a folded pocketknife in the car; and (5) Finger
and his passenger were acting nervous.
The first of these, being based solely on an anonymous tip, is of
little value. A report that describes a suspicious car, but gives no
further information, is insufficient to create reasonable suspicion. United States v. Packer,
15 F.3d 654, 659 (7th Cir. 1994). In Packer, three Milwaukee police
officers responded to a call regarding a suspicious car with fogged up windows
parked along a street in the early hours of the morning. Id.
at 655. In finding reasonable suspicion lacking, the court explained, the record does
not suggest any specific irregularities in the car, other than the windows being
all fogged up with the four individuals sitting inside. Id. at 658.
The court also pointed out that the phone call reporting the suspicious
car did not provide enough information to raise reasonable suspicion because the caller
did not indicate knowledge of any criminal activity. Id. at 659.
The court concluded, [i]n order to protect the constitutionally guaranteed rights of us
all, the minimum threshold of specific and articulable facts sufficient to give rise
to reasonable suspicion must be higher, albeit marginally, than those presented here. Id.
Young, like the officers in Packer, could not rely solely on the report
by a concerned citizen of a suspicious car. And taken individually, any one
of the remaining facts might not be enough to give rise to reasonable
suspicion. However, a set of individually innocent facts, when observed in conjunction,
can be sufficient to create reasonable suspicion of criminal activity. United States
v. Arvizu, 534 U.S. 266, 277-78 (2002). We think this is the
First, Young pointed out the inconsistencies in Finger and his companions responses to
his questions. Specifically, Finger first claimed his vehicle was out of fuel,
but Young found the fuel gauge registering no shortage. Second, the explanations that
Finger and his passenger provided for their presence in the street were inconsistent.
Deceptive responses may contribute to reasonable suspicion of criminal activity. See United
States v. Lebrun, 261 F.3d 731, 733 (8th Cir. 2001). Some courts
have found nervousness on the part of the occupants is a factor leading
an officer to form reasonable suspicion of criminal activity. See, e.g., United
States v. Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995). However, we
place little weight on that fact alone. As the Tenth Circuit explained,
nervousness is of limited significance when determining reasonable suspicion . . . it
is common for most people to exhibit signs of nervousness when confronted by
a law enforcement officer whether or not the person is currently engaged in
criminal activity. United States v. Salzano, 158 F.3d 1107 (10th Cir. 1998) (quoting
United States v. Ward, 106 F.3d 942, 948 (10th Cir. 1997). Here,
however, we have more than mere nervousness. The occupants of the car
offered an implausible explanation for their presence and were deceptive with Officer Young.
In conjunction with their nervous behavior, these facts generated reasonable suspicion that
something was afoot. Subsequent report of a robbery in the immediate vicinity
justified brief detention for further investigation.
Finally, Finger points out that Youngs detention lasted approximately 20 minutes before the
robbery call, and argues therefore that the stop was too long to be
justified under the facts known to Young. We agree that an investigative
detention must be temporary and last no longer than is necessary to effectuate
the purpose of the stop, Florida v. Royer, 460 U.S. 491, 500 (1983),
but find that the detention in this case was reasonable. During this
investigative stop, Young questioned Finger and observed his responses. These responses did
not dispel Youngs suspicion. To the contrary, they justifiably compounded his concern. Within
a few minutes, given all of these factors, it is arguable that probable
cause for an arrest existed even before IPD officers arrived. In any
event, identification of Crosby by a witness established probable cause.
II. Fingers Indiana Constitutional Claim
In addition to claiming a violation of his rights under the United States
Constitution, Finger also asserts violation of Article I, Section 11 of the Indiana
Constitution. Under this section, the State is required to show that, in the
totality of the circumstances, the intrusion was reasonable. Baldwin v. Reagan, 715 N.E.2d
332, 337 (Ind. 1999) (citing Brown v. State, 653 N.E.2d 77 (Ind. 1999)).
Under this analysis, the State must show that the facts at the
time, along with the reasonable inferences arising from those facts, would justify a
prudent person in believing that a crime has been or is about to
be committed. Id. (citing Taylor v. State, 639 N.E.2d 1052, 1054 (Ind.
Ct. App. 1994)). In this case, the factors leading to reasonable suspicion,
discussed earlier, also satisfy the requirements of the Indiana Constitution because they could
lead an ordinarily prudent person to believe that criminal activity was afoot.
For these reasons this Court finds that Young detained Finger at the time
he retained his drivers license. Furthermore, we find that based on the
facts known to him at the time, Young had reasonable suspicion to believe
that Finger might be involved in criminal activity. Therefore, Young was justified
in briefly detaining Finger for further investigation. When the report of the
robbery was received, additional inquiry was justified. The arrival of IPD police
and subsequent identification of Crosby by a witness constituted probable cause to arrest
We grant transfer and affirm the decision of the trial court.
SHEPARD, C.J., and DICKSON, and SULLIVAN JJ., concur.
RUCKER, J., dissents with separate opinion.
Rucker, Justice, dissenting.
I agree with the majority that when Officer Young retained Fingers drivers license,
what began as a consensual encounter evolved into an investigatory stop. However,
I do not agree that at that point Officer Young had reasonable suspicion
to detain Finger. Therefore I dissent.
The sequence of events in this case is important for a proper evaluation
of whether Officer Young had reasonable suspicion to detain Finger. The majority
contends that at the point Finger was detained, Officer Young knew the following:
(1) Fingers car was reported as suspicious; (2) although Finger claimed the
car was out of fuel, and someone had gone for gasoline, a gas
station was around the corner and the fuel gauge indicated that there was
one eighth of a tank of fuel remaining in the car; (3) Finger
told other inconsistent stories during his conversation with Young; (4) there was a
folded pocketknife in the car; and (5) Finger and his passenger were acting
The majority correctly points out that item one is of little value.
A report that describes a suspicious car, but gives no further information is
insufficient to create reasonable suspicion. Slip op. at 9. As for the
remaining items the record shows that at the point Officer Young retained Fingers
drivers license, he was aware only of items two and four: Finger
was not actually out of gas, and a folded pocketknife was in the
back seat of the car. Officer Young testified as follows:
Q. And why were you dispatched to the corner near the area
of 56th and Meridian?
A. I was advised by our control operator that a concerned citizen
had called in on a suspicious vehicle with two subjects sitting inside the
vehicle at this corner of 56th and Meridian.
Q. What did you find when you responded?
A. On the I believe it was the southeast corner of
this intersection I found a large older model vehicle sitting on the south
curb east of Meridian Street with two black male occupants.
Q. Okay . . . what did you do when you got
A. I activated my emergency equipment being that this is at
an intersection and approached the vehicle to ascertain if I could offer any
Q. All right who did you speak with[,] anybody?
A. Yes, I did.
Q. Who did you speak with?
A. I believe a Mr. Finger was sitting in the drivers position
and I believe I spoke with him first.
Q. Okay. What did he tell you?
A. I believe my question to him was something to the effect
of you know what what was the situation what
was happening. He advised that the vehicle was out of gas. And
that someone was going to retrieve gas for him.
Q. All right, did he tell you who?
A. He just [said] a passerby.
Q. Okay. What did you do at that point?
A. I obtained identification, ran wanted checks, license checks just as
a standard procedure that we do.
Q. All right. Did anything come back when you did?
A. I I dont believe there was any wanted information.
And I dont recall the the license status. I would have
to check my notes.
Q. Okay. So what did you do after you ran their
checks to see if there were any warrants out for them?
A. I returned to the vehicle to speak further with them, ask
if if there was anything I could help them with where
they were going where they were coming from just general conversation.
R. at 6-7. It was at this point Officer Young testified, The
conversation that I recall . . . somewhat devi[ated] from what they had
originally stated. The stories they were giving werent quite adding up.
I dont I do not recall the exact conversation that was
ensued. Id. at 9. The record then shows that two more
Butler University Police Officers arrived on the scene, followed shortly by officers of
the Indianapolis Police Department. By then, the officers had overheard a call
of a robbery about a block away. Because of the alleged inconsistency
in the stories and the report of the robbery, the officers decided to
detain Finger and his passenger. The following testimony by Officer Young is
Q. Okay, do you recall whether IPD arrived before you decided that
you wanted to detain these persons because of the robbery or after?
A. It was within a close proximity of time. Im
I believe it was I believe we detained them before they arrived.
Q. Okay. . .
A. But it was within a close proximity of time.
Q. Is there any other reason that you decided to detain these
persons besides the fact that their stories were inconsistent and the proximity and
the closeness of the call?
A. Well, they werent going anywhere. They stated they were out
Id. at 11.
Contrary to the majoritys recitation of facts, Officer Youngs testimony makes clear that
Finger telling inconsistent stories and Finger and his passenger acting nervous occurred after
Finger had been deprived of his drivers license, and thus after he had
already been detained for purposes of the Fourth Amendment. That leaves only
two facts known to Officer Young at the time Finger was detained that
could support the notion that the officer had reasonable suspicion to believe criminal
activity was afoot: (1) Finger lied about being out of gas, and
(2) Young observed a folded pocketknife in the back seat of the car.
Nothing in this record suggests that the pocketknife was contraband or that
it had been used in the commission of a crime. As for
Fingers lack of truthfulness, although a deceptive response may contribute to reasonable suspicion
of criminal activity, see United States v. Burton, 288 F.3d 91, 105 (3d
Cir. 2002), it is not enough standing alone. Because no reasonable suspicion
existed in this case, Officer Youngs investigatory stop was illegal. Accordingly, the
decision of the trial court denying Fingers motion to suppress evidence seized as
a result of the stop should be reversed.
Ind. Code §§ 35-41-5-2, 35-42-5-1 (1998).
Footnote: I.C. § 35-42-5-1.
Footnote: I.C. § 35-42-3-3.
Footnote: Finger challenges the admissibility of his statements to IPD officers, claiming the
statements were involuntary by reason of his intoxication. The trial court found
otherwise based on testimony of the investigating officers. Finger points to no
specific evidence on this point. His general claim that he was intoxicated
is insufficient to overcome the trial courts finding on this factual issue.