*1 acy dealing convictions. Saunders (Ind.1992), QUINN,
v. N.E.2d Appellant-Defendant, Tammi supreme court reversed a defendant’s sentence, 140-year holding “it is the trial Indiana, Appellee-Plaintiff. decision to order that the [three] STATE court’s run dealing counts consecutive to the No. 84A01-0210-CR-404. closely related conspiracy counts [three] appellant’s that renders sentence manifest- Appeals Court of of Indiana. added). ly (Emphasis unreasonable.” July 2003. The court remanded the case to the trial court and instructed the court to run the concurrently,
defendant’s sentences for a
total of seventy years. executed sentence
Here, conspiracy Nelson’s conviction is
based on the fact that he did not have sell, get
cocaine to but had to cocaine from Campbell.
Evans to sell to Detective Fol- Saunders,
lowing the reasoning we con-
clude “closely that Nelson’s convictions are imposition
related” and do not warrant the
of consecutive sentences under the circum- Indeed,
stances. while the conspiracy and crimes,
dealing they offenses were distinct part single, uninterrupted
were trans-
action. We hold that Nelson’s sentence is
inappropriate light of the nature of the
offense and the character of the offender.
Accordingly, we remand this cause to the
trial court with instructions to modify Nel- sentencing thirty
son’s order as follows: conviction,
years for each to be served
concurrently, and an habitual offender sen- thirty years
tence enhancement of on Nel- conviction,
son’s dealing for a total execut- term sixty years.
ed part,
Affirmed in in part, reversed
remanded with instructions.7 C.J.,
BROOK, BAILEY, J., concur. resentencing, 7. Because we remand for we utive sentences for two Class A felоnies can- ninety- need not address the fact that Nelson’s presumptive not exceed the sentence year sentence violated Indiana Code Section highest felony. next class of provides 35-50-l-2(c), which that the consec- *2 During
a in Terre Haute. grocery store shift, ap- individual his an unknown McCoy that he had seen proached and said Quinn nеighboring parking in lot. The a Denzil Lew- stranger also said Officer is, officer, had asked a Terre Haute him if he ever saw to inform Officer Lewis stranger pointed group to a people standing parking in a lot about 120 McCoy yards away from where was stand- ing group. and said that was in the a group gathered around truck towing pontoon a boat and a smаller car. park- It was dark outside and lit, McCoy lot was did not remember or what the color of vehicles model McCoy smaller car was. was able to as- people that one of standing certain near pontoon boat was a woman but could not see her features.
McCoy called the Terre Haute Police Department relayed this information Boswell, IN, At- Indianapolis, James W. commander, Hugh to the shift Officer Appellant. torney for passed, Crawford. Ten minutes McCoy again. called Officer Crawford Of- Carter, Attorney Steve General McCoy that ficer Crawford informed there Meilaender, Indiana, Deputy Ellen H. At- was an arrest warrant for General, IN, torney Indianapolis, Attor- Quinn and that he would send an officer to neys Appellee. time, At that group the store. left the lot, woman, in parking including the OPINION towing Ap- car and the truck the boat. BARNES, Judge. proximately three or four minutes after left, the vehicles two cars arrived at Summary
Case grocery McCoy store. described the Quinn brings interlocutory Tammi boat, towing pontoon truck but Officer appeal suppress challenging the failure to Davis, Troy investigating one of the offi- during evidence seized a traffic cers, receiving descrip- did not recall affirm. tion of a smaller car. Issue Officer Davis left the direction of the issue, one raises which we restate pontoon towing truck boat but was properly as whether the triаl court denied approxi- train delayed by passing a her motion to mately five to ten minutes. Officer Davis Facts in the decided to travel direction approximately Quinn’s pontoon At on to look for the evening 8:00 home boat. 14, 2001, house, August Greg driving retired As he was toward McCoy working security guard pulling pon- Davis saw a truck as Officer station a motion tо the evidence parking at a lot. found gas toon boat Following a woman out hearing Davis observed walk the search. briefly matter, talk with gas station the trial denied car, truck, a small red get man appeals. motion. now *3 truck the and boat. and drive off behind Analysis Davis had not seen the Although Officer the denial review of a mo “We" before, car the car after it red he tion to in a manner similar to onto before he observed got the road but sufficiency other matters.” Volz the commit traffic violations. driver 894, (Ind.Ct.App.2002), 897 description received a Officer Davis had (2003). We do reweigh trans. denied not dispatcher, from who de- the evidence, conflicting and we consider female scribed hеr as a white with brown evidence most to the denial of favorable hair; informed of Davis was also However, the motion to Id. un height driving The woman weight. and typical sufficiency like the case only where description. the red car matched to the judgment evidence favorable “explained” to driver of the car considered, we also сonsider the uncontest her Davis that she did driver’s have ed evidence to the defendant. favorable license with she had other her but Id. produced driver a identification. The so- Quinn argues that there was not reason- card, certificate, and security cial birth suspicion support stopping able her car card, Texas all three of which idеntification tip anonymous vague because the was and Regina Sprague. indicated that was she uncorroborated. need not address the in the name and ran Officer Davis radioed issue whether reasonable security through the social number his existed, however, support Quinn’s stop be- computer. While Officer Davis was wait- cause we affirm оf her the denial motion to security of the social the results suppress on grounds. other officer, check, number another Officer Pearce, communicated Officer Davis based on the Our decision is same he Sprague over the radio knew and employed rationale as that U.S. v. identify could Officer Davis waited her. (7th Green, Cir.1997), 111 cert. F.3d apрroximately ten minutes before Officer denied, 973, S.Ct. U.S. identify Sprague. Pearce arrived to When Green, two L.Ed.2d 328. In officers arrived, he Officer Pearce told Officer they patrol were on observed two when Davis that of the car was not the driver in light men blue Id. at 517. Chevrolet. Sprague. One of the the car as the officers identified Thereafter, Lewis arrived on night same car that had previous been picture scene with a and identi- parked front of the residence of a man Quinn. Quinn fied the car as driver of the wanted on a warrant. Id. The federal informing was then for false and arrested one of thought officers the vehicle’s on the warrant. Pursuant occupants might have been man with arrest, car thе red was searched and or that occu methamphet- more grams than three pants of the know the man’s might amine were found. officers followed the whereabouts. Id. The pulled driveway, car until it where August charged
On
was
into
it,
they
blocking it in.
Id.
felony dealing
parked
with
A
in metham-
behind
Class
23, 2002,
immediately obtained identifi-
phetamine.
Quinn filed The officers
April
On
arrest,
an illegal
and
after
the admis-
occupants,
David
fession
cation from
entered
Avery
during
Id. The officers
a consen-
Green.
sion of evidence obtained
their com-
into
identification information
seizure,
after an
sual search
Avery was want-
puter and discovered
voluntary
given
confession
admission
outstanding warrant.
ed on an
warning
a Miranda
where an earlier
after
Avery and searched
officers arrested
advising
before
confession
obtained
search, the officers
During
car.
Id.
of his or
Fifth Amendment
defendant
gun.
and a
crack
discovered
cocaine
Three
rights.
factors for consideration
charged
possession
with
David
determining
causal chain is
whether the
intent to distribute
сocaine with the
crack
“(1) the time
sufficiently attenuated are:
it,
in rela-
a firearm
carrying
the ac-
between
elapsed
offense,
pos-
drug trafficking
to a
tion
*4
(2)
evidence;
presence
quisition of the
the
by
firearm a felon. Id.
of a
session
(3)
circumstances;
the
of
suppress,
filed a
to
which
David
motion
flagraney
mis-
purpose and
оf the official
juryA
convict-
court denied. Id.
the lower
Illinois,
(citing
conduct.” Id.
Brown v.
Id.
the first
third counts.
ed David of
603-04,
590,
2254, 2261-
422 U.S.
95 S.Ct.
that the
appeal
argued
at 518. On
David
(1975)).
62,
important
the arrest is also lawful. The lawful thorough After a examination of both Avery arrest of constituted an interven- cases, we elect to pro- follow the rationale dissipate sufficient to ing circumstance vided Green.1 begin analysis We by taint caused automo- with presumption stop bile was not based on reasonable assuming arguendo Even illegal, we cannot conсlude that recognize trial in denying court erred her motion to (Ind.Ct.App.2002), recognized, As the Green court panel addressed not all poisonous evidence is fruit of the opposite similar case and reached the con subject suppression tree and simply be- clusion as that reached the Green court. cause it light would not havе come to but Indianapolis police officers *5 Green, illegal police for activity. 111 F.3d approached parked car in which Jeffer Sun, (quoting Wong at 520 371 U.S. at sitting talking people son was to 487-88, 417-18). Here, 83 at S.Ct. police the street. Id. The officers ordered sufficiently causal chain is attenuated to car, Jefferson to exit the which shе did. dissipate any illegal stop, taint of an allow- police Id. The asked Jefferson her name the evidence seized the search computer and ran a check for outstanding to be admitted. See id. at 521. computer warrants. search re outstanding vealed Jefferson had an In analyzing the first factor enumerated operating warrant for a motor vehicle Brown, acknowledge we that the time police without a license. Id. The arrested elapsed the illegality and the ac between performed Jefferson and a search of her quisition significant. of evidence was not Brown, car incident to the arrest and discovered a 603-04, id. 422 (citing See U.S. at 2261-62). baggie containing marijuana. small 95 S.Ct. at The officers’ testi charged mony Quinn Jefferson was with Class A misde indicates was possession marijuana meanor and about ten minutes before she was arrested moved to the admission the mari and the car was searched. This short juana. Id. The trial court denied mo amount of time alone is to insufficient dis suppress, convicted, sipatе stop. tion Jefferson was the illegal taint of Howev er, appealed. considering she the other two Brown factors it is clear that the taint of the appeal, argued On the State illegal stop sufficiently dissipated. was encounter po- between Jefferson and the panel factor, lice was consensual. A presence of this court Brown second concluded, however, circumstances, intervening clearly that it was not con- of is sensual, Brown, illegal and “there was no traffic met 422 (citing here. See id. U.S. 2261-62). 603-04, justifying violation Jefferson’s initial de- at at 95 S.Ct. State, binding grounds; 1. We note that neither case is on our 440 McBride N.E.2d today. that, decision See Palmer v. (Ind.Ct.App.1982) (recognizing 1137 n. (Ind.Ct.App.2001) (deсlining N.E.2d precedent binding, federal was not it panel to follow another of this court’s deci- persuasive authority). was case); sion in a similar rev'd on other elapsed The time between Quinn was the driver Davis believed that was acquisition evidence had car and was aware she of the red However, Quinn’s lawful arrest minimal. The driver arrest warrant. outstаnding an circumstance, and be- was an Quinn as and was eventually identified was purpose misconduct cause the pursuant to the warrant. arrested Quinn, any lawfully flagrancy was arrest, based on an out- lawful which was negligible. of the official misconduct warrant, certainly an inter- was standing Here, by the evidence was not obtained in this case. See id. vening сircumstance illegal stop, by but exploitation of an at 521. purge any taint of the means sufficient Brown, enumerated The third factor stop, that is a lawful arrest based on official flagrancy purpose outstanding an warrant. Based on these misconduct, important is also an consider- factors, conclude that we Brown, 422 (citing U.S. ation here. See id. to remove the taint of arrest was sufficient (1975)). 603-04, 2261-62 at S.Ct Quinn stop was to arrest purpose of the is reinforced two oth- This conclusion be- pursuant warrant First, holding to- er considerations. Davis’ belief that she cause of Officer pro- the undesirable effect of day avoids Although the driver of the car. hibiting arresting from test, there is the reasonable fails when there was an indicating that no evidence stop may the initial for her arrest because could search her stopped so that something based on less than have been suggesting evidence car. There is no reasonable As Green purpose stopping impropriety as the observed, require this would “an official police stopped Because the ‘Oily, Oily, Free.’ Id. at 521. call of Oxen *6 executing a purpose with the of Also, suppression of the evidence warrant, arrest we cannot conclude provide in this case would little obtained in- flagrant were or the officers’ actions effect, primary pur- is the deterrent which by creat- exploit tended to arrest exclusionary rule. The Green pose of the criminal re- ing a situation in which the exclusionary court described the rule as id. at 522. sponse predictable. See prevent, repair, being calculated to Furthermore, unlike both Green and incentive police illegality removing the in not an which a this is instance guarantees. disregard constitutional “ police a vehicle with less (citation omitted). ‘Because the upon fur- than reasonable purpose exclusionary rule is primary investigation ther discovered that an ar- misconduct, discourage police applica- rest warrant had been issued for an occu- not serve tion of the rule does this deter- Instead, in pant of the vehicle. this case action, police al- rent function when the that an outstand- Officer Davis was aware erroneous, undertaken in though was not ing arrest warrant existed for police at the ex- an effort to benefit the believed that the driver of the red protected pense suspect’s rights.’ of the stopped her vehicle. before he Fazio, (quoting U.S. v. 914 F.2d Thus, stop likely it is much more Cir.1990)). (7th purpose Because the lawfully was effectuated to exploit stop was not intended to protections rather than to circumvent sup- rights, Fourth Amendment in a engage of the Fourth Amendment and pressing pursuant the evidence obtained minimal de- “fishing expedition” to obtain evidence the lawful arrest would have terrent effect on behavior. against
Conclusion LEE, Phillip Appellant-Defendant, case, stop where a was undertak- this v. suspicion, but on less than reasonable en Indiana, Appellee-Plaintiff. STATE executing a lawful purpose
with No. 02A03-0303-PC-104. warrant, the trial court outstanding arrest Appeals Court of of Indiana. sup- properly denied motion press because the lawful arrest July 2003. remove
was sufficient to the taint affirm.
police illegality. We
Affirmed. J.,
SHARPNACK, concurs.
RILEY, J., concurs result with
opinion.
RILEY, Judge, concurs result. majority opinion
I concur in result. The
recognizes that in the case of (Ind.Ct.App.
2002), similar case was decided Robb,
by Judges Mattingly-May, my
self a different manner. The distin difference, however,
guishing was that in case, officers did have
knowledge of an warrant for Quinn prior stop
the arrest of to the based
vehicle. was reasonable
upon knowledge officers *7 an arrest warrant needed upon Quinn.
to be served however, upon
based a reasonable After illegal stop, it was discovered that had an warrant for
operating a motor vehicle without a driv- prior to
er’s license. The detention constitutionally permissible.
arrest was not