Finger v. State

Gregory FINGER, Appellant

(Defendant below), Indiana, Appellee

STATE

(Plaintiff below).

No. 49S02-0311-CR-587.

Supreme Court of Indiana. 26,2003.

Nov. Carter, General, Attorney

Steve Chris- Lafuse, topher Deputy Attorney L. Gener- al, IN, Indianapolis, Attorneys Appel- lee.

BOEHM, Justice. interlocutory appeal

This is an from the suppress trial court's denial of a motion to evidence. contends he was sub- jected to an unlawful detention an investigating parked officer his car re- tained his driver's license. The trial court detained, ruled that had not been reversed, of Appeals holding Court investigating officer's retention of Finger's driver's license constituted deten- tion. We that retention of a driver's detention, can license constitute but find that the officer had reasonable suspicion to justify an investigative stop under grant facts of this case. We transfer and affirm the trial court. Background

Factual and Procedural p.m. At around 10:80 on September Officer Richard of the Butler University Department Police received a police dispatch relaying report by concerned citizen of a vehicle the intersection of 56th Street and Meridi- in Indianapolis. Young Street found car with occupants parked just two west of partially the intersection and in a driving lane of 56th street. After placing his uni- versity police car behind the vehicle and activating emergency lights, Young ap- proached the Gregory vehicle and found Finger sitting in the driver's seat and Mi- Crosby chael in the passenger seat. happening" asked "what was and whether needed assistance. Finger responded that the car fuel that a passerby would be re- turning gasoline. soon with more filling knew that a station was around the Sweeney, IN, corner, Indianapolis, Kathleen M. away, less than two blocks Attorney Appellant. gauge ap- observed that the fuel indicated the ammunition and knife from a tank. retrieved eighth of one proximately meantime, nervous, Indianapolis the car. In the though a Finger seemed thought Department Police officers had been sent expected to would be motorist stranded response to the rob- liquor to the store of a the assistance to receive be relieved bery possible suspects call and learned on a Young carried officer. As at 56th and Meridian When Street. Finger and his conversation with general arrived at turned for his Finger's explanation passenger, them. a wit- the situation over to After asked for Young then changed. presence Crosby robbery ness to the identified Crosby's driv- and received store, Finger in the one of the men and license and ran warrant er's licenses and taken to the Crosby were handcuffed negative. came back checks. Both police station. carry to on con- Young then continued Young testi- Finger. with As versation eventually charged the Finger was with if fied, anywhere" going Finger "[wasn't] robbery liquor store. He was al the However, Young did of fuel. he was out to the driver of the car for Cros leged be and never the licenses not return driver's man, both of by and another whom they either Crosby that Finger told or charged Fin entered the store. State Young not free to leave. were or were conspiracy robbery,1 with to commit ger further conversation testified that also counts of robbery,2 two counts of and two in inconsistencies Finger produced with confinement,3 all B felonies. criminal class providing, but Finger information the Finger suppress moved to both were on not elaborate what these he did to IPD statements he made officers Young or cross-examination. When direct Headquarters Police and the knife and seat and a knife on back asked about Finger at the ammunition seized scene.4 Finger's ammunition in the front seat that initial encounter was argued Young's vehicle, view, plain both unjustified investigative stop an under as they that did not know Crosby responded the Fourth Amendment to the United both car to were in the or why these items I, and Article Section States Constitution they belonged. Young testified whom He 11 of the Indiana Constitution. suspicious, him explanation that this made if initial en further that even claimed point at that he did not know though stop, the investigative was not an counter any crime had been committed. to Young with rose continued interaction The trial court denied stop. the level of a twenty Young minutes after Fifteen to finding that suppress, motion to Finger, Young Finger's heard a first encountered approach to Young's initial robbery armed at a Officer report radio of an un vehicle and his interaction with than one block from the liquor store less robbery call did til the of the Young pair asked the point, car. At this The court investigative stop. Miranda constitute the car and read them to exit concerns, consensu- that the encounter was Next, he reasoned safety based on rights. involuntary by in- reason of his ments were 35-41-5-2, (1998). §§ 35-42-5-1 1. Ind.Code otherwise The trial court found toxication. § 2. I.C. 35-42-5-1. investigating testimony offi- based on specific evidence on Finger points to no cers. § 3. I.C. 35-42-3-3. general he was point. claim that this His challenges admissibility the tri- to overcome intoxicated is insufficient finding factual issue. on this officers, al court's claiming the state- to IPD statements the conclusion that the attempting campus al Officer buttresses because police authority."). act under color of state vehicle. The possibly to assist stranded court found that did detain B. Detention receiving robbery call. The court

after regu The Fourth Amendment to be lawful be- determined detention cause, time, Young specific at that knew of lates nonconsensual encounters between and law officials and citizens enforcement give to rise and articulable facts sufficient does not deal situations in which a activity. of criminal voluntarily interacts with suspi- The court reasoned officer. A or a full-blown arrest detention cion existed because smelled alcohol than a period lasts more short breath, on heard a radio justified by probable time must be cause. report robbery that a had been committed investigative stop may justified A brief be liquor away at the store less than a block from Finger's parked activity. detained is involved pro- found in information inconsistencies Ohio, 1, 31, Terry v. Young by Finger Crosby

vided to (1968). 1868, 20 L.Ed.2d 889 The Fourth doing what the area. The Amendment claim on Young turns whether trial court that oc- found no arrest had Finger initially and involved a curred before the IPD officers arrived at consensual encounter or were detained. ruling the scene. The was certified for occurred, point At the a which detention interlocutory appeal Ap- and the Court of the issue is whether it was excessive reversed, peals concluding Young that de- light developments point. of the at that Finger's tained when he retained driver's license that at that point and evaluation, Detention turns on an Young necessary did not have the reason- circumstances, under all the of whether a able to execute a lawful investi- would feel free to disre gative stop. gard police go and about his or her D., business. v. Hodari 499 California Finger's I. Fourth Amendment Claim 621, 628, 1547, 111 U.S. S.Ct. 113 L.Ed.2d A. Young's status as a state actor (1991). 690 Initially, Finger stated that he true, run gas. If this were it initially that Young's We note ace- may enough have been to show that University tions aas Butler Police Officer Finger's liberty. did not restrain If a subject are to constitutional constraints. person's freedom to leave is restricted A private entity is deemed a state actor something police authority, other than it delegates when the state to it a traditional police cannot be said that the detained the ly public Byles, function. Wade v. 83 F.3d Bostick, person. See Florida v. 501 U.S. (7th Cir.1996). 902, By statute 429, 436, 2382, 111 S.Ct. 115 L.Ed.2d 389 "general state has conferred police pow (1991); Delgado, INS v. ers" on University Butler Police officers. (1984). 80 L.Ed.2d 247 20-12-3.5-1(1) (1998). §§ -2 Ind.Code However, it appears Finger's that car was subject This renders a state actor fuel, in fact not out of observed to the Fourth Amendment on restrictions that. searches and seizures. See Henderson v. Fisher, (3d Cir.1980) It is debatable whether claim ("[the delegation police powers, gov a gasoline, of lack of which the officer be- function, ernment to the campus police false, lieved be is sufficient to render position no rele- would not feel free to voluntary. We find leave after his detention only factor authority. vant retained his identification. At least ini- restraining him after his as theoretically, Finger identifies could have abandoned the fact that exchange tial away his car and walked or recanted his and then retained Fin- Young obtained story of lack fuel. was therefore ac- Young's license. other ger's driver's purposes detained for of the Fourth tions, not lead a together, taken would Amendment. to feel that he was behind Fin- Young parked

free to leave. Suspicion C. Reasonable vehicle, emergency ger's activated his Although we with the proceeded ques- to ask few lights Appeals Young's Court of retention of tions, Finger needed as- including whether the driver's license converted a consensual things all These are sistance. investigative stop, encounter into an we expected upon be to do find- officer would conclude that at Young had motorist and do not indi- ing a stranded to detain for a offi- cate to a reasonable motorist investigative period, brief and therefore However, to detain him. cer intends did not violate the Fourth Amendment. car after run- Young returned suspicion inquiry highly not return his The reasonable ning license checks and did identification, arguably began what fact-sensitive and is reviewed under a suf in- encounter evolved into an ficiency consensual of the evidence standard. Like vestigative stop. evidence, sufficiency matter of record must "[the disclose substantial evi that, has concluded The Seventh Cireuit probative supports dence of value retaining airline tickets "[olfficers' reweigh trial court's decision. do not We licenses has been a crucial factor driver's conflicting the evidence and we consider in a finding that seizure has occurred. favorably evidence most to the trial court's Suspects deprived of their ticket iden State, 638, ruling." Goodner v. 714 N.E.2d effectively deprived tification are of the (citations omitted). (Ind.1999) Here, 641 ability question to terminate the practical Finger's in Young observed inconsistencies ing Borys, and leave." United States v. (7th Cir.1985). 304, nervousness, improbable responses, 766 F.2d 310 explanations. finding The trial court here specifically held that Eleventh Cireuit has detention, when an officer retains an individual's that there was no so we was license, finding have no trial court as to reasonable driver's the individual has effec However, the result the trial tively suspicion. been detained. United States v. (11th 1356, 1359 Cir. Thompson, proper though 712 F.2d court reached is even de 1983). report the radio of reasoned, tention occurred before The court his "[wlithout effectively Thompson driver's license was robbery. agree We do not with A immobilized. reasonable under suspi- dissent that the officer's reasonable these cireumstances would not consider occurring on after the clon relies facts If Thompson himself free to leave. had detention. away,

tried he could have been to drive justify to an suspicion Reasonable driving for without a license." arrested stop specif must based on investigative be claim of lack of fuel adds a Id. known to the officer ic and articulable facts his detention arguably factor renders the officer However, stop at the time of the that lead voluntary. we like activity may be in that "criminal Thompson, a reasonable to believe 5984 suspicion higher, must be albeit Terry,

afoot." 392 U.S. marginally, presented than those here." suspicion requires more 1868. Reasonable Id. unparticularized than mere hunches or An suspicions. Id. at 88 S.Ct. 1868. Packer, Young, like the officers in specific to to officer must be able rely solely report could not on the a giving suspicion facts rise to reasonable "suspicious concerned citizen of a car." case, activity. In this at the time criminal individually, any one of the And taken Finger, Young he detained testified remaining might enough facts not be (1) following facts: Fin- he relied on the suspicion. Howev give rise to reasonable reported "suspicious"; car as a ger's er, facts, individually a set of innocent (2) car although Finger claimed the conjunction, in when observed can be suffi- fuel, gone out of and someone to create client gas was around the gasoline, station Arvizu, activity. criminal United States v. gauge the fuel indicated that corner and 266, 277-78, 151 S.Ct. of a tank of fuel eighth there was one (2002). think L.Ed.2d 740 We this is the (8) car; remaining in the told other case here. during inconsistent stories his conversation First, Young pointed out the (4) pocket- a folded Young; there was compan inconsistencies in and his (5) car; knife responses questions. Specifi ion's to his "acting passenger were nervous." cally, Finger first claimed his vehicle was these, being

The first of based fuel, gauge but found the fuel Second, solely anonymous registering shortage. tip, no the ex on is little report suspi value. A that describes a planations passenger and his information, no gives cious further provided presence for their the street suspi- insufficient to create reasonable Deceptive responses were inconsistent. Packer, may contribute States v. clon. United F.3d Cir.1994). (7th Packer, activity. 654, 659 v. Le See United States In three (8th responded brun, Cir.2001). Milwaukee officers to a car with regarding fogged call Some courts have found nervousness on up parked along part windows street a factor occupants is lead early of at morning. ing suspicion hours the Id. 655. an officer to form reasonable See, In finding suspicion lacking, activity. e.g., reasonable of criminal United (10th explained, Kopp, the court "the record does not States v. 45 F.3d 1454 Cir.1995). However, suggest any specific irregularities in the place weight we little being other than the windows all on that fact alone. As the Tenth Circuit fogged up with the four sitting explained, signif individuals "nervousness is of limited point inside." Id. at 658. The court also icance determining suspi- phone reporting ed out that the call the clon ... it is people common for most 'to provide enough signs car did not in exhibit of when con nervousness suspicion formation raise reasonable be fronted a law enforcement officer knowledge currently cause the caller did indicate whether or not the is any activity. activity." criminal at 659. The engaged Id. United (10th concluded, Salzano, protect court order to the "[in States v. 158 F.3d 1107 all, constitutionally guaranteed rights of Cir.1998) us Wood, (quoting United States v. (10th Cir.1997)). Here, 'specific the minimum threshold and 948 however, give articulable facts' sufficient to rise to we have more than mere ner-

535 time, along at with the the car of- facts occupants of vousness. facts, arising for their from those would inferences explanation implausible fered an justify prudent person believing with Officer that a deceptive presence their "ner- conjunction with crime has been or is about to be commit Young. In State, behavior, rea- generated (citing Taylor these facts v. 639 ted. Id. vous" something was In (Ind.Ct.App.1994)). N.E.2d sonable robbery in case, of a Subsequent report leading the factors to reasonable afoot. this vicinity justified earlier, brief de- suspicion, satisfy immediate also discussed investigation. further the Indiana Constitution requirements tention for ordinarily pru lead an because could Finally, Finger points out that dent to believe that criminal activi approximately Young's detention lasted ty afoot. call, robbery and ar minutes before For these reasons this Court finds that long too stop gues therefore detained the time he known to justified under the facts to be driver's license. Further- retained his investigative that "an Young. We more, on the facts we find based and last no temporary must be detention time, Young known to him at the necessary than is to effectuate longer to believe Royer, stop," Florida purpose of activity. involved in criminal might be 491, 500, Therefore, justified briefly Young was (1983), find that the de L.Ed.2d 229 investigation. for further detaining Finger Dur reasonable. in this case was tention robbery was re- report When the stop, Young ques ing investigative ceived, justified. inquiry was additional responses. observed his tioned subsequent of IPD The arrival dispel Young's did not responses These Crosby by a con- identification of witness they justifi contrary, To the suspicion. pair. cause to arrest the probable stituted his concern. Within ably compounded factors, minutes, all these it given few Conclusion probable cause for an arguable deci- transfer and affirm the grant We IPD officers arrest existed even before court. sion of the trial event, In identification of arrived. Crosby by probable established witness SHEPARD, C.J., and DICKSON cause. SULLIVAN, JJ., concur.

IL Indiana Constitutional RUCKER, J., separate dissents with

Claim opinion. claiming In a viola addition RUCKER, Justice, dissenting. rights tion of his under the United States majority that when agree I with the Constitution, Finger also asserts violation driver's Young retained Officer I, 11 of the Indiana of Article Section license, as a consensual en- began what section, Constitution. Under this investigatory stop. counter into evolved that, to in the total required State is show However, point I that at do cireumstances, intrusion ity was to Young had reasonable Officer Reagan, Baldwin v. reasonable. I dissent. Finger. detain Therefore (Ind.1999) (citing N.E.2d Brown in this case is of events sequence The (Ind.1995)). State, 653 N.E.2d 77 Under important proper for a evaluation analysis, the State must show the vehicle to ascer- approached had reasonable sus- tion and whether Officer Finger. majority any The con- tain if I could offer assistance. picion to detain point Finger tends that at the was de- Q. right-who-did you speak All tained, following: knew the Officer with[,] anybody? (1) car reported "suspi- was Yes, A. I did. (2) cious"; although Finger claimed the Q. you speak did with? Who fuel, gone car was out of and someone had sitting A: I believe a Mr. was gasoline, gas station was around the position driver's and I believe I gauge corner and the fuel indicated that him spoke with first. eighth of a tank of there was one fuel Q. you? Okay. What did he tell (8) car;

remaining in the told other during inconsistent stories his conversation my question A. I believe to him was (4) something of-you to the effect know- Young; pocket- there was a folded (5) car; knife and his what-what was the situation-what nervous"; "acting passenger were happening. was He advised that gas. vehicle out of And was some- majority correctly points out that going to for him. gas one was retrieve "A report item one is of little value. Q. you -All did right, he tell who? suspicious gives describes a no further information is insufficient to create just passerby. A. He [said] suspicion." Op. 534. As for Q. Okay. you What did do at remaining the record items shows that point? point at the Officer retained Fin- identification, IA. obtained ran wanted license, ger's only driver's he was aware checks, checks-just license as a stan- items two and four: was not actual- procedure dard that we do. ly gas, pocketknife and folded Q. All right. anything Did come back in the back seat of the car. Officer you did? testified as follows: any A. I-I don't there believe Q. why you And were dispatched to the wanted information. And I don't recall corner near the area of 56th and Meridi- the-the license I status. would have an? my check notes. A. I was advised our control opera- Q. Okay. you you what did do So after tor that a concerned citizen had called ran their checks to if see there were subjects on a vehicle with two out for them? warrants sitting inside the vehicle at this corner A. I speak 56th and Meridian. returned the vehicle to them, Q. you you further with ask if-if there was What did find when re- I anything help could them with-where sponded? they going-where they were com- A. On the-I believe it was the south- ing from-just general conversation. east corner of this I intersection found a large sitting older model vehicle on the R. at 6-7. It was at this Officer south curb east of Meridian Street with testified, "The conversation that I occupants. two black male recall ... somewhat from deviated] what Q. Okay you ... you what did do when originally stated. The stories got there? they giving quite adding up. weren't my A. I emergency equip- activated I don't-I do not recall the exact conversa- ment-being that this is at an intersec- tion that was-ensued." Id. at 9. The more Butler band or that it had been used in the com two then shows record arrived on the of a for University Police Officers mission crime. As lack of truthfulness, scene, shortly by officers of the although deceptive followed re then, By Department. Indianapolis Police sponse may suspi contribute to reasonable call of a rob- overheard a the officers had activity, cion of eriminal see United States away. (3d Because of the bery Burton, a block 91, Cir.2002), about it inconsistency in the stories and the alleged enough standing is not alone. no Because decided robbery, the officers report of case, existed passenger. The Finger to detain and his Young's investigatory stop Officer was ille testimony by Officer following gal. trial Accordingly, the decision of the instructive: denying Finger's suppress court motion to IPD

Q. Okay, you do recall whether stop evidence seized as a result of the you you arrived before decided should be reversed. persons because

wanted to detain these robbery or after? proximity within a close

A. It was I'm-I it was-I believe

time. believe they them before arrived.

we detained

Q. Okay ... proximity

A. But it was within a close

of time. you

Q. Is there other reason that In the Matter of Michael persons decided to detain these besides Dean CORTSON. their were inconsis-

the fact that stories No. 71S00-0309-DI-430. proximity and the and the closeness tent of the call? Supreme Court of Indiana. Well, they going anywhere. A. weren't Nov. 2003. gas. They stated were out Id. at 11. OF SUS- ORDER VACATING ORDER majority's recitation of Contrary to the PENDING RULING PENSION facts, Young's testimony makes Officer TO DISMISS oN MOTION Finger telling inconsistent sto- clear Court, now the on its own mo- Comes passenger "acting ries and tion, Suspending and vacates the Order nervous" occurred had been after Practice of Law Respondent from the license, deprived of his driver's and thus by in Indiana issued this Court on Novem- already after he had been detained disposi- pending ber the Court's That purposes of the Fourth Amendment. file tion of a Motion to Dismiss as Moot only leaves two facts known Officer Disciplinary Commis- Supreme Court time was detained sion on October 20083. offi- support that could the notion that the to Dis- The Court finds the Motion cer had reasonable believe brought to the Court's atten- (1) lied miss was activity was afoot: (2) to Show Cause was being gas, tion before the Rule about out pocketknife 10, 2008, or observed a folded the back issued October before order dated No- Nothing signing suspension car. in this record seat of the 25, 2003. pocketknife was contra- vember suggests

Case Details

Case Name: Finger v. State

Court Name: Indiana Supreme Court

Date Published: Nov 26, 2003

Citation: 799 N.E.2d 528

Docket Number: 49S02-0311-CR-587

Court Abbreviation: Ind.