Parker v. State

PARKER, Appellant-Defendant, Michael Indiana, Appellee-Plaintiff.

STATE of

No. 49A02-9508-CR-500. Appeals

Court of of Indiana.

March 1996. May

Transfer Denied Murphy, Cole,

Patrick Jennifer L. India- napolis, appellant. Carter, General,

Pamela Attorney Preston Black, W. Deputy Attorney General, India- napolis, appellee.

OPINION Judge. KIRSCH, interlocutory appeal, Michael Par- challenges ker the trial court's denial of his motion suppress evidence and raises two issues which we restate as: I. Whether an investigatory stop based tipa from a known informant exceed guidelines ed the set forth the United Supreme States v. Ohio.1 II. Whether the officer's seizure of cocaine from Parker exceeded the bounds of such a We affirm. AND

FACTS PROCEDURAL HISTORY2 25, 1994, On Sergeant Steven Swarm July unit of Indianapolis nareoties/vice 1. 392 U.S. 7.2(A)(3)(a) 20 L.Ed.2d provides: Rule "Notations (1968). margin shall be made page of each transcript indicating of the evidence the name of appellant's 2. We caution counsel to read and witness, each and whether the examination is comply requirements Ind.Appellate jurisdiction matter, accepted and we fied the tip from a received Department Police 4(B)(6). Rule Appellate Ind. pursuant to stated informant The informant. known shorts, a male, wearing Parker, was a black carrying DECISION shirt, cap, and was AND DISCUSSION and

plaid fur- bag.. The informant plastic in a Stop Investigatory I. the co- would sell Parker stated ther York New liquor store the investi first asserts Parker by Officers Swarm stop conducted Street. gatory requirements did not meet and Wallace police pay- had been informant The 30, Ohio, 392 U.S. v. informa- provided had years, for several roll it 20 L.Ed.2d and conviction to the arrest that led tion a confidential solely on based dealers, had and drug suspected other disagree. informant. occa- previous on Officer Swarm worked with 21, 88 S.Ct. at Terry, In 392 U.S. receiving tip, Officer After sions. established Supreme Court States the United Wallace, Roderick Officer summoned Swarm or a warrant police,without that the the rule toward immediately headed they and individ cause, briefly detain an can probable enWhile York Street. of New 2400 block if, on purposes based investigatory ual store, saw the officers liquor to the route has a articulable specific and informant veri- person, informant activity. In criminal suspicion of minutes earlier gave information he fied detainment, officer can addition phone. on the individual's a limited search conduct if the officer rea clothing for outer store, approached the As the officers and is armed individual sonably believes matched men, whom one of they two saw at 1883.3 dangerous. York crossing New description, liquor store. Street, away from the heading con has Terry, Supreme Court Since compan- and stopped Parker The using an issue of sidered men the two notified Swarm investigatory ion. Officer for an the basis Williams, investiga- 407 U.S. nareoties Adams v. (1972),the 32 L.Ed.2d he was Michael Parker denied tion. on stop of Parker based upheld officers conducted The by infor an person, police, given to determine companion and his informa patdown, Of- During the mant who carrying patrol police officer tion. shorts object in Parker's felt an ficer Wallace Bridgeport, Connecti area high-crime in a immediately determined by an approached cut was into Parker's then Officer that someone advised to him who clear pulled out a a firearm had narcotics nearby vehicle Par- police arrested The containing cocaine. possession. aof possession him charged ker ap officer then The substance. controlled asked suspect and car of proached the suspect motion to did not trial, filed a door. Prior him to his window. down comply rolled but Wal- suppress the cocaine and with into the car then reached then filed officer lace, was denied. firearm a loaded drew certi- The trial court interlocutory appeal. independent Although not make Parker does added). (Emphases cross, or redirect." direct, Indiana argument, we note constitutional state pages in the transcript, the 105 Here, out of determining rationale adopted the has required notation. single page contained I, stops investigatory under Article legality of appellant's counsel hope appeals, Taylor Constitution. of the Indiana Sec. 11 comply attempt to a token more than will make (Ind.Ct.App. NE2d supreme court. adopted our rules with the 1994). suspect waistband.4 The ed, arrested for stopped just her vehicle short possession unlawfal of the firearm. A search of the motel. The requested and re- incident to the arrest up ceived White's consent to search for cocaine. turned heroin on the suspect's person and other Their up search turned a locked brown case car. the car. request, gave White officers the They combination. opened the upheld The Court the investigatory stop marijuana, found and arrested White. because "The informant was [the known to While station, booked at the personally officer] provided and had him with White, cocaine in purse. White's 496 information in past.... The informant 827, U.S. at 110S.Ct. at 2414. here came personally forward give to infor- mation that verifiable at the Adjudicating propriety of the 146, Id. at 92 S.Ct. at 1923. There- seene." stop, stated, the Court "Although it is a close fore, tip may while the have been insufficient case, we conclude that under totality of justify to warrant, arrest or search "the anonymous circumstances the tip, as cor information enough carried indicia of reliabil- roborated, exhibited sufficient indicia of relia ity justify to the officer's stop...." forcible bility justify to the investigatory stop of 147, Id. at 92 S.Ct. at 1924. 382, car." [White's] Id. at 110 S.Ct. at 2417. In reaching Adams, conclusion, the Court fo the Court the case before them was "a stronger case than ob cused on legally what was sufficient to estab in tains anonymous case of an lish telephone suspicion. First, the Court tip." 146, Id. at 92 S.Ct. at Eighteen 1923. noted that reasonable suspicion is a less de years later, in White, manding Alabama v. 496 probable U.S. standard than cause both 325, 327, 110 L.Ed.2d quantity of information (1990), 301 the Court anonymous held that an to make such a determination. Id. telephone tip, at Second, at 2416.5 corroborated independent it stated police work, sufficiently justi reliable to that when deciding whether there is reason fy Terry suspicion able quantity both the and reliabili ty of the information should be considered White, officer received an anon- "totality of the cireumstances-the ymous telephone call in which the caller stat- picture." whole (quoting Id. United States v. ed that a woman named Vanessa White Cortes, depart would from 235-C Lynwood of the 66 L.Ed.2d 621 Apartments Terrace particular time, driving a Plymouth brown wagon station White, every detail from the infor- right broken taillight. The caller also stat- mant was prior verified police's to the inves- ed that White possession was in of tigatory stop: name, the woman's the exact a brown case and way was on her Dobey's apartment left, she and her destination. Id. Motel. Acting information, on this the offi- 110 S.Ct. at 2416. noted, The Court proceeded cer Lynwood Apartments significant parts tip where saw a Plymouth brown station been by police corroborated observation: wagon with right taillight broken parked in building left, she approximate time of her front of building number 285. The departure, drove, the vehicle she and the fact saw White building leave away and drive that she took the most direct route to Do- Plymouth on the most direct bey's route to Motel. Id. Critical to the Court's Dobey's Motel. After White reached inquiry was the ability Mobile give Highway, the road on which Dobey's is locat- only details not easily of attainable but 4. vantage From his probable defined outside cause as point car, probability "'a fair weapon could not see the on the that contraband or evidence of a crime will be waistband, but found it where the informant told found,' ... [as a result] the level him it would be. required Terry stop obviously less de S.Ct. at 1923. manding probable cause.") (citation than for omitted). Sokolow, The Court in United States v. 1, 7, S.Ct. 1581, 1585, 104 L.Ed.2d reliability or convictions future behavior. tablished record resulting tips. found it 2417. The Court was not unlikely someone who highly tip on the of a officers relied itinerary be able to would privy White's provided the informa- informant who departure time of approximate predict her person, gave phone and tion over the direct take the most would and that she details, accurately predict- specific verifiable Therefore, Dobey's Motel. actions, route to and had ed Parker's proposition that "because Court relied past that led to other right about some is shown to be an informant light narcoties convictions. right about other facts things, probably he is White, pro- that the we hold Adams including the claim alleged, that he has justify sufficient indicia vided engaged eriminal object of the investigatory stop police's Gates, (citing v. activity." Illinois recently addressed supreme court has Our U.S. tipa from a confidential issue of whether L.Ed.2d police a basis for informant sufficient Terry stop of an automobile. perform a to Adams principle Applying (Ind. present we hold that Johnson White 1995), police informant told tip provided sufficient facts a confidential informant's transporting that "Dukie" Johnson a police could articulate which the Jaguar, evening, in in brown that engaged in erimi- a that Parker was of town. The informant particular a area Here, pro- tip activity. the informant's nal they if not find the police that did told the easily attainable detail of vided sufficient car, in his it would be in Johnson's nareotiecs prediction future be- a reliable vehicle police stopped Johnson's pants. The Parker as a The informant described havior. by the infor of town identified the area shorts, male, wearing plaid a shirt with black gather police began to mant. A crowd white, cap. blue, pattern, and a and red they believed he was informed Johnson addition, that Parker the informant stated asked transporting narcotics. Johnson containing a plastic bag carrying a clear pants. The they going to look down were that he believed was white substance to affirmatively but decided replied that Parker Finally, predicted informant location, away from him to a different move Hquor store sell the cocaine would Johnson, They moved handcuffed the crowd. New York Street. 2400block of away, and conducted him blocks several liquor arrived at the the officers When him to they required where patdown search store, verify phys they able to police found a small The pants. wearing, and description, what he was ical Id., pants. marijuana in Johnson's amount of predicted was where the 117-18. at qualitative Quantitatively and he would be. the infor- supreme court held Our had noth ly, police in Adams and White reliability the indicia of mant's lacked rely ing to on than the more Id., Terry stop. at support a case of presented Adams present case. fact holding on the court based its 119. The given by a reliable and in-person tip an facts that tip contained the informant's 144- 407 U.S. at informant. pro- public could any general member of However, only at 1922-23. vide, was no evidence there him officer had before fact that the verifiable from one single ever resulted conviction high-crime sitting in a car was a man Id., tips. the informant's of an presented the case area. Id. White the court indicia of provided specif phone caller who anonymous Johnson, are lacking departure, respect ic White's details provide did the informant case at bar. destination, she would be and the vehicle White, pub- at known to the driving. that could be i.e., description of physical White, however, large; an lie at caller physical de- to Parker's In addition previously es anonymous with no individual scription, pre the informant also Court addressed the issue of whether dicted Parker's future behavior. lawfully The infor could seize contraband if detected mant stated that Parker would sell the officer's sense of touch during particular location, liquor store at the search. The facts Dickerson were as fol Street, block of New York rather than lows: Two patrolling officers were saying it general would be a squad area of town. They marked car. apart drove police arrived, When the they corroborated ment building known to one of the officers as and saw crossing house," New York a "crack based on his execution of Street heading away from the store. numerous search warrants there. The offi ability predict This future behavior is an cers saw Dickerson building leave the important consideration which supports begin walking toward squad their car. White, of an tip. spotting officers, Dickerson turned the ("What 110 S.Ct. at 2417. opposite direction and alley walked into an important ability was the caller's pre apartment beside the building. The officers behavior, dict [White's] because it investigate decided to further because demonstrated inside special information-a evasive, considered Dickerson's actions to be familiarity affairs."); Johnson, with [White's] and also just because he had left a known (citing noting White and such crack house. 508 U.S. at 367- 113S.Ct. at 2133. future behavior allows offi verify cers to reliability tip). Thus, of a pursued officers Dickerson into the because the reliability informant's here more alley, him, detained patdown conducted a closely resembled that of the informant search. The search weapons. revealed no White, we find the informant's to contain officer, searching however, felt a small sufficient indicia of support lump in jacket. Dickerson's The officer Terry stop. probed manipulated object and then Another factor in Johnson which our reached into su- Dickerson's and found a preme court noted lacking small from the in- containing cocaine. Id. formant's was that no convictions had The Court held the seizure to be unconsti resulted from that tips. Here, informant's tutional because it exceeded the bounds of a Officer Swarm indicated that he had worked Terry search. In reaching holding, its how with the informant Parker, who called about ever, the recognized general prin on approximately thirty period cases over a ciple may seize contra years. of six Record at 46-47. Officer band other than protective Swarm further the information long search as stays their search provided by that Dickerson, the bounds Terry. led to the arrest and conviction drug of other 373-374, U.S. at -113 S.Ct. at 2186. This dealers. Record at 47. This established rec- seizure, warrantless otherwise known as the ord of reliability, conjunction with the "plain doctrine, feel" is an extension of the informant's Parker's future plain-viewdoctrine. Under princi the latter behavior the indicia ple, police may object seize an without a support Terry stop. There- warrant if lawfully are position fore, Johnson distinguishable on its facts. from they may it, which view if its incrimina ting is immediately apparent, and if nature II. Search and Seizure/"Plain they have object. lawful access to the Feel" Doctrine 375-3746, 118 S.Ct. at (citing Horton v. further contends that even if California, 128, 136-37, stop initial legal, 2307-08, 110L.Ed.2d 112 Wallace's search and seizure of the cocaine went be The rationale underlying plain-view ex- yond permissible scope of a search. ception is that there is no invasion of a disagree. legitimate expectation privacy are Dickerson, Minnesota v. lawfully present and seize contraband in 118 124 L.Ed.2d 334 view. armed, permissible further search no Therefore, extending not at 2137. today not holding does feel, Terry. Our under plain to include doctrine plain-view CDT., holding in C.D.T. contravene stated: the Court officer by the time the we determined lawfully pats down "If a already contraband, he had across the came clothing and feels suspect's outer not have suspect did identity concluded its mass makes or contour whose Therefore, by con- at 1047. Id. no has been there immediately apparent, finding weapons, beyond no privacy after tinuing to search invasion scope of a exceeded in C.D.T. the officer by the officer's already authorized case, present In the object is contra- search. if the weapons; search object in jus- Wallace would be when Officer band, seizure warrantless its still pocket, he was pants front practical considerations same tified context." search plain view process that inhere Parker did yet concluded had not weapon. Unlike have a present principle Applying this C.D.T., patdown, realize not conduct he did that the seizure hold we and then continue had no established bounds exceed the Parker did not is distin- CDT. searching Parker. had reason- Terry. OfficerWallace on its facts. guishable I, Issue stop Parker. able tip, he principles Instead, follow the supra. Based choose to present. and a case in Dickerson believed enunciated own, experience, Officer Moreover, our based factual similarities more presents (Ind.Ct. in an area knew that Bratcher v. firearms activity, Bratcher, and that drug police officer was frequent App.1996). drug transactions. call. disturbance frequently a domestic investigating destination, a conducted the officer Consequently, he reaching his Prior to When Offi- weapons dispatcher on Parker. for search notified was pocket front the left cer Wallace dispute had left in the involved someone chasing object. Thunderbird shorts, Ford a hard gray and black he noticed Parker's thereafter, the offi Shortly infor- experience and vehicle. another Based on chasing determined anoth tip, Wallace mant's Officer the Thunderbird cer observed removing the object was cocaine. stopped both vehicles. He er vehicle bag with plastic began a clear and object, he found Thunderbird Bratcher exited vehicle. in the other powder cocaine. arguing with a woman strong of alcohol odor noticed a The officer Dickerson, dispositive fact in. as Just Bratcher and that breath Bratcher's ob touched that Officer Wallace here is then eyes. The officer watery, bloodshot its incrimi immediately ject determined Bratcher, patdown search a conducted in Unlike nating character. patdown, During the looking. for Dickerson, however, did not Wallace Officer in Bratch item a soft felt Beroshok Officer ob manipulate the investigate or continue thought it was immediately pocket. He er's weap a it was not concluding that ject after into marijuana, reached containing bag Dickerson, 508 U.S. on. See plastic retrieved pocket, and Brateher's conducted Id., at 830. marijuana. containing and, through his tac weapons patdown for instantly sense, contraband tile found marijuana as aupheld the seizure Thus, Id., ascertained was at 882. Terry. seope of bounds permissible not exeeed search did the critical we As Terry or Dickerson. in presented facts between distinction C.D.T., in Dickerson and those Bratcher In the decision our recent cites contempora "determined the officer State, was that 653 N.E.2d C.D.T. Matter of weapons proposition patdown search neously for the (Ind.Ct.App.1995), mari pocket was in Bratcher's the item suspect police determine that onee juana, during rather than a further search until he removed the bag from Par after he concluded possess Bratcher did not pocket ker's and saw that it contained co Bratcher, weapon." at 882. powder, opposed to crack cocaine incriminating plastic bag character of the which was the in case Minnesota v. Dickerson (1 officer, immediately apparent 993) inapposite, found C.D.T. to be and the sei "plain L.Ed.2d 384. The feel" test would Terry plain zure valid under feel here, seem more difficult to be met than in exeeption forth in set Dickerson. Dickerson. the officer stated us, presented Based on the facts before we lump the small felt in Dickerson's reasoning find the of Bratcher to be control- "slid lump and it felt to be a of crack cocaine ling and hold that OfficerWallace's search of cellophane". atU.S. 113 S.Ct. at permissible under and sei- Supreme 2133. Yet the United States Court permissible zure of the cocaine under Dicker- agreed Supreme with the Minnesota son. See also Drake v. 655 N.E.2d discovery held that of the cocaine (Ind.Ct.App.1995)(distinguished 576-77 permissible exceeded the pat- bounds of the C.D.T. and held contraband seized down search. powder Our case involved co properly search was admitted into evi- caine and was therefore susceptible even less dence because the officer was in the midst of immediate identification my feel. searching yet and had not deter- estimation the result in Dickerson dictates unarmed). suspect mined that the reversal this case. dissent, In his Judge Sullivan states that yet aspect There is another to the denial of discovery the officer's of cocaine was not an suppress the motion to which leads me to inadvertent result of a patdown and "plain dissent. The adopted feel" doctrine could not have this state from admittedly Dickerson is object pants pow- "plain extension of the view" We, too, doctrine. We der cocaine. are concerned about have noted that purpose officer's order to be true question "plain the search admissible under a theory, view" how the officer could discovery determine that solely was cocaine the contraband must be inadver- court, however, (1992) from its feel. The trial tent. held See Wood v. Ind.App., State hearing .on Parker's suppress. motion to It Clearly, N.E.2d Officer Wallace's testimony; heard the officer's it believed that discovery inadvertent, of cocaine was not testimony, and we are accept constrained to during patdown. When Parker that determination. See Graves v. companion stopped by po- (Ind.1986) N.E.2d (reviewing court lice, immediately Officer Swarm accepts trial court's determination of witness "conducting investiga- credibility reviewing when denial of a motion Op. tion." at 995. The informant had ad- suppress). vised that Parker carrying Affirmed. selling cocaine and would be the cocaine at clear, therefore, store. It was ROBERTSON, J., concurs. purpose making patdown was to presence ascertain the of cocaine. SULLIVAN, J., separate dissents with opinion. Even if the conducted SULLIVAN, Judge, dissenting. safety for the officers' as well purposes as for investigation, the narcotics the fact re- leading crucial factor majority's mains that when Officer Wallace felt affirmance is its statement object, later discovered to weapons, pow- be cocaine in "Officer Wallace felt in, form, der he knew it was not a shorts that he immedi- ately Op. determined was cocaine." weapon. Nevertheless, search for co- (emphasis supplied). view, my persisted and he packet removed the could not have determined it to be cocaine pocket. from Parker's to fol- I would decline wrongly holdings decided the facts I believe (1995) low it. v. State supra, and C.D.T. closely are more Ind.App., 653 and dictate before us

analogous to the case ruling upon the trial court's

reversal respect I believe In this suppress.

motion (1996) Ind.App., 661 v. State Bratcher majority, relied

N.E.2d

Case Details

Case Name: Parker v. State

Court Name: Indiana Court of Appeals

Date Published: Mar 22, 1996

Citation: 662 N.E.2d 994

Docket Number: 49A02-9508-CR-500

Court Abbreviation: Ind. Ct. App.