*1 during Whipps’ the shoe as evidence offer LAMPKINS, Appellant
trial. Whipps that the shoe should have contends product as the of a seizure been excluded
that violated the Fourth Amendment. He notes the absence of a warrant and contends involuntary. passing
his of the shoe was questions test of voluntariness Supreme Court of Indiana. by reviewing totality of circum 9,Oct. stances. Williams (Ind.Ct.App.1993), ap It is trans. denied.
parent justified court the trial
viewing which the circumstances under
Whipps handed the officer his shoe as volun
tary. Having the shoe from once received
suspect Whipps having observed it was possibly bloody, the were
burned and officers They
authorized to retain it. had obtained lawfully to the shoe and its incrimina
access
ting nature was
These two facts authorized seizure of the Taylor
shoe under the Fourth Amendment. 535, 538-39 properly
It was admitted as evidence.
Whipps permit also claims error in
ting charge the child who was of the under
babysitter identify him in the courtroom. object
Whipps did not when the child identi him, however, pre
fied and thus has not appeal. this
served issue Clausen
State,
Accordingly, judgment we affirm the of the
trial court.
DICKSON, SULLIVAN, SELBY and
BOEHM, JJ., concur.
699 background The full of defendant’s case is State, v. 682 N.E.2d available 1268. We recite those facts rehearing. to our decision on Defendant was charged Dealing with and convicted of in legitimate stop Cocaine after a and search of yielded passenger the car in which he was a containing twenty-one a rocks cocaine; -crack the of the car also driver charged Cooley and was convicted. See State, 1277 682 N.E.2d Accord- ing testimony from the offi- cers, the bottle was passenger beneath the seat in which defen- riding. had been dant In to obtain convic defendant’s Cocaine,, Dealing tion for in the State prove beyond a required to reasonable doubt (a) (b) possessed that the defendant cocaine with intent to deliver.2 Defendant did not person have the cocaine on his when he was Rather, searched. the cocaine was found passenger the underneath sitting. seat in which the defendant had been drugs, In the absence of actual consistently our court has held that “con possession may support structive” a convic State, drug Young tion for a offense. 478 State, (Ind.1985); 51 Thomas v. (1973). 1, 4, 260 Ind. 291 N.E.2d The State must show that the defendant has (i) both the intent to maintain dominion and (ii) capability control and the to maintain dominion and control over the contraband. (Ind. State, Bergfeld 531 N.E.2d Gregory Lampkins, pro 1988); se. Fassoth Carter, Gen., Atty. El- Pamela Randi F. Gen.,
fenbaum, Deputy Atty. Indianapolis, capability The element was estab appellee. lished because the bottle was within Lampkins,
reach of defendant.
element,
there
at 1275. As to
ON PETITION FOR REHEARING
support
must be “additional circumstances”
SULLIVAN, Justice.
ing the inference of intent
to maintain do
se,
Lampkins,
possession is non
pro
Defendant
minion and control when
Fassoth,
rehearing
Lamp
seeks
from our
exclusive.
Dav
decision
(Ind.
(Ind.1997),
enport
kins v.
1984).
here,
Dealing
To establish the intent element
which we affirmed his conviction for
Cocaine,
felony.1
grant
A
three
circumstances.
a class
we cited
First,
rehearing
petition.
Lampkins,
tained his plain “in could see the bottle plain Proximity
view.” to contraband is an circumstance which
view” additional
supports the inference of intent this con 587,
text. Person denied;
(Ind.Ct.App.1996), trans. Moore (Ind.Ct.App.1993); GREER, Appellant Michael D. (Ind.Ct. Lewis Third, not App.1985). the co-defendant did police pull the vehicle over when the activat stop; lights their overhead to make the ed police had to cut off the vehicle stop cir Flight to it. is an additional also Person,
cumstance. Moore, 854; Lewis, N.E.2d Supreme Court of Indiana. N.E.2d at 491. Rehearing,
In his Petition for de Oct. 1997. points principal “plain
fendant out that the Dickerson, ease,
view”
Minnesota v.
508 U.S.
(1993),
113 S.Ct.
permits invocation of the doctrine where incriminating character of the contra Id. at
band is 374-
375, 113 at 2136-2137. There is noth S.Ct. defendant, “immediately
ing, argues appar incriminating character of a
ent” about the
Tylenol bottle. Defendant’s contention that not constitute closed does plain At
contraband in view is well taken.3 time, proximity
the same to contraband “in
plain view” was not the sole factor —but one support
of three factors —cited to the intent control
to maintain dominion and element. “plain
While we vacate our reliance on the circumstance,4 we continue
to find sufficient evidence constructive support to the conviction. Our
opinion is modified State
accordingly. posses-
3. The officers testified that at the to establish constructive they time seized the did not drugs. sion of the The seizure of the anything know that it "contained contraband.” pursuant bottle was valid as it was conducted Cooley, 682 the driver's consent. 4. The fact that we find the contraband was not significant to whether "in view” is as showing Lampkins’s there was a sufficient