After trial by jury Moyer was convicted of theft. His appeal asserts the prosecution was barred by the double jeopardy clаuse and that physical evidence and his inculpatory statements should have been excluded as the product of an illegаl arrest. We affirm.
The factual background discloses that Mid-Town Barbers in Michigan City was burglarized on March 19,1975. Missing were various barber tools, a checkbook for the shop account and approximately $700 in cash, which included a large amount of change. Moyer, who was employed at the shop, had been seen inside after the shop was closed and shortly before the theft was disсovered. He did not report for work the following day, or thereafter.
*462 On March 30,1975, Moyer was arrested in Daytona, Florida. Discovery of the checkbook, barber tools and loose change led to a confession and, ultimately, to extradition to Indianа.
After being returned to Indiana, Moyer attempted an escape. Subsequently, he and the state agreed to a plea bargain which was accepted by the trial court. Under the terms of the bargain, Moyer agreed to plead guilty to attempted jаil break and, in return, was to be permitted to plead guilty to theft of property valued at less than one hundred dollars ($100) in this case. Hе entered the plea in this case and sentence was pronounced thereon. He then withdrew his guilty plea to the other сharge. Thereupon the state moved to vacate and set aside the conviction and sentence in this case. This motion was granted and a month later Moyer was tried by jury and convicted of committing theft of property valued at more than one hundred dollars ($100).
His first contention is that acceptance of his guilty plea and sentencing thereon barred the subsequent prosecution by subjecting him to double jeopardy.
We find, initially, that the claim of double jeopardy has been waived.
Clearly a defendant, by his аctions, may waive a claim of double jeopardy.
State ex rel. Lopez v. Killigrew
(1931),
Here, after the plea bargain was breached, the state moved to vacate the judgment in open court with the defendant and his attorney present. No objection whatever was made by the defendant to the state’s motion or the court’s ruling. The claim of former jeopardy was therefore waived.
*463 *462 However, even had a timely objection been made we would feel con *463 strained to deny Moyer’s claim. Indiana has both formalized and legitimized plea bargains by statute. See IC 35-5-6-1 et seq. Under the statute the court must accept or reject the recommended plea bargain and if it accepts, it is bound by the terms of the bаrgain.
Under such circumstances, to permit a defendant to enter a plea bargain binding on the court and thereafter retаin the benefit of the bargain while relieving himself of its burden, would operate as a fraud upon the court. It has long been held that the double jeopardy clause will not bar a prosecution where the first proceeding is a sham or fraud procured by the defеndant for the purpose of defeating full prosecution.
Watkins v. State
(1879),
Moyer next contends that physical evidence and his confessions should have been suppressed as having been secured from an illegal search and seizure. He further contends the evidenсe was otherwise insufficient to sustain the conviction. We disagree.
The evidence at the suppression hearing disclosed that on March 30, 1975 Daytona police officer Watts approached from the rear a vehicle driven by Paul Sharff and in which Mоyer was a passenger. The officer noticed that the license plate was attached with only one screw and the rеar window of the car was obstructed so as to limit vision into or out of the car. As Watts moved closer the car decreased speed to 30 m.p.h. although the speed limit was 55 m.p.h. The officer moved into the passing lane to view the occupants. The оther vehicle then slowed to 20 m.p.h.
These observations caused Officer Watts to seek a radio check on whether the car was stolen. He also asked for assistance and then stopped the other car. He asked to see Sharff s opеrator’s license, but Sharff stated he had none. The officer then informed Sharff he would have to post bond as an unlicensed driver. Thе officer then asked the other occupants for identification. Three hitchhikers, who had been riding in the back, produced identification and were permitted to leave. When the officer asked Moyer for identification he could not produce a driver’s license or anything that satisfied the officer. The officer then asked Moyer to get out of the car. As Moyer was doing sо, the officer noticed a bulge in his front left pocket which appeared to be a weapon. The officer toоk the object, a straight razor, and charged Moyer with carry *464 ing a concealed weapon. When the car was subjectеd to an inventory search before impoundment, the barber tools, checkbook and loose change were found. 1
We fеel that under the circumstances known to the officer the stop was a valid investigatory stop pursuant to
Terry v. Ohio
(1968),
As to discovery of the physical evidence in the car, there is no showing or suggestion that Moyer had any standing to object to a search.
Thе intial stop and investigation did not constitute an illegal arrest. The evidence procured thereafter was properly admitted and sustains the conviction.
Affirmed.
Hoffman, J. and Chipman, J. Concur.
NOTE — Reported at
Notes
. Under Florida law the car was apparently subject to impoundment.
Jackson v. State
(1966),