OPINION
Case Summary
Appellant, Brandon Dowdell, appeals his conviction for Possession of Cocaine, a class D felony, 1 and Possession of Marijuana, a class A misdemeanor. 2 Specifically, Dowdell alleges that part of the State's evidence, marijuana in the form of a "blunt" and plastic baggies containing marijuana and cocaine, was inadmissible because the evidence was seized in violation of his Fourth Amendment rights. Because we find that the police officer did not have reasonable suspicion that Dowdell was about to commit a crime or had committed a crime, the stop was illegal and any evidence obtained from the stop should not have been admitted at trial. We reverse.
Facts and Procedural History
The record reveals that on November 19, 1998, Indianapolis Police Officer Scott David Teagardin was on patrol when he saw Dowdell standing on the sidewalk smoking what appeared to be a "blunt." 3 Officer Teagardin admitted he was uncertain whether Dowdell was smoking a blunt or a cigar. At the time of this sighting, Officer Teagardin was in a marked police vehicle driving about ten to fifteen feet away from Dowdell. Officer Teagardin stopped his vehicle and said something along the lines of "hey come here" or "what are you doing?" to Dowdell. Record at 40.
At this point, Dowdell threw his "blunt" down and walked quickly over to Officer Teagardin's vehicle. Dowdell had what looked like plastic baggies in one hand and he immediately put both hands in his pockets. Officer Teagardin exited his vehicle and noticed a strong odor of marijuana on Dowdell. He then handcuffed Dowdell and began to question him concerning the plastic baggies. Officer Teagardin secured the blunt and again questioned Dowdell concerning the plastic baggies.
At the police station, Officer Teagardin and a detective told Dowdell that they were going to perform a pat down search. Dowdell then reached into his pocket and pulled out the two plastic baggies. The bags contained marijuana and cocaine. Both the blunt and the two plastic bags were admitted into evidence at trial.
The State charged Dowdell with possession of cocaine and possession of marijuana. After a bench trial, Dowdell was found guilty of both counts and sentenced to one hundred and eighty (180) days for each count, to be served concurrently. "This appeal ensued.
Discussion and Decision
Dowdell contends that the trial court should not have admitted the marijuana blunt and the two plastic baggies containing marijuana and cocaine as evidence. A trial court has broad discretion in ruling on the admissibility of evidence. Ransom v. State, 741 N.B.2d 419, 421 (Ind. Ct.App.2000). We will reverse a trial court's ruling on the admissibility of evidence only when it has been shown that the trial court abused its discretion. Id. Specifically, Dowdell alleges that Officer Teagardin did not have the required reasonable suspicion to conduct an investigatory stop when he questioned Dowdell concerning the blunt, thereby violating his Fourth Amendment rights. Thus, Dowdell argues that the evidence seized as a result of the illegal stop is inadmissible as "fruit of the poisonous tree." We agree.
Initially, we note that the police may briefly detain an individual for investigatory purposes if there is a reasonable suspicion that a crime may be committed or has been committed. Overstreet v. State, 724 N.E2d 661, 663 (Ind.Ct.App. 2000) (citing Terry v. Ohio,
However, the State argues that the encounter between Dowdell and Officer Teagardin did not constitute a stop, but rather it was consensual, and thus no reasonable suspicion was required. If is not the purpose of the Fourth Amendment to eliminate all contact between police and the citizenry. United States v. Menden-hall,
The State uses this court's decision in Overstreet v. State,
In Overstreet, a police officer observed Overstreet looking into someone's mailbox. The officer then followed Overstreet to a gas station and pulled his vehicle behind Overstreet's car when Overstreet began to put air in his tire. He walked over to Overstreet and asked him what he had been doing in that mailbox and asked Overstreet for identification. Overstreet then volunteered that his license was suspended. This court affirmed the trial court's denial of Overstreet's motion to suppress all evidence obtained as a result of the stop. We held that because Over-street stopped at the gas station himself and because the officer did not restrict Overstreet's movement or detain Over-street, there was no evidence to support that Overstreet did not believe that he was free to walk away from the officer. Id. at 664. Therefore, the encounter did not constitute a Terry stop requiring reasonable suspicion of criminal activity, and the trial court properly allowed evidence seized from Overstreet to be admitted.
However, our case is distinguishable from Overstreet. The U.S. Supreme Court has given examples of cireumstances under which a reasonable person would believe he was not free to leave. These include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person or the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. Mendenhall,
Because the blunt and the plastic baggies were discovered as the result of an illegal stop, we reverse the trial court and vacate Dowdell's convictions.