State v. PeaseState v. Pease
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Thе State of Indiana appeals the granting of defendant Ted Pease’s motion to suppress. We affirm.
I.
Before addressing the substantive issues involved in this appeal, we believe it necessary to consider the propriety of the State’s appeal. Both parties have argued the question of appellate jurisdiction, believing the issue to have been raised by the State’s decision to dismiss the action before appealing, rather than to seek an interlocutory appeal. Pease argues, in essence, that because the State allegedly lacks the authority to appeal, we have no jurisdiction.
Our courts have distinguished the authority of the state’s appellate courts to hear appeals from that of the State to prosecute them. The ability of this court to exercise appellate jurisdiction is not dependent upon legislative enactment but devolves instead upon this court by virtue of the authority vested in the state Supreme Court to specify by rule the terms and conditions of suсh jurisdiction.
However, the right of the State to appeal in any criminal action is statutory. Unless there is a specific grant of authority by the legislature, the State cannot appeal. State v. Hicks (1983), Ind., 453 N.E.2d 1014, 1016; State v. Harner (1983), Ind., 450 N.E.2d 1005. The State’s statutory right of appeal is in contravention of common law principles аnd will, therefore, be strictly construed. State v. Holland (1980), 273 Ind. 284, 403 N.E.2d 832, 833.
IND.CODE 35-38-4-2 (1983) permits 833. appeal to the Court of Appeals:
(1) [f]rom an order granting a motion to dismiss an indictment or information.
* # # * * #
(5) [f]rom an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution....
Prior to the enactment of
The language of
The State charged Pease with class D felony possession of a schedule II controlled substance (amphetamine). The State acquired its evidence of this offense as a consequence of the illegal search alleged in Pease’s motion to suppress. When the trial court ordered that the fruits of the search of Pease’s person were to be excluded, the State lost its ability to prosecute and dismissed the information the same day.
The order granting Pease’s motion to suppress has become a final order by virtue of the action’s dismissal.
II.
The State argues in this appeal that the trial court erred in granting Pease’s motion to suppress because both the stop of Pease’s vehicle and the pat-down of Pease’s person comported with the requirements оf the fourth and fourteenth amendments to the U.S. Constitution. 2 These are the facts. 3
On November 7, 1987, Officer Whitlow of the Evansville Police Department encountered Pease’s vehicle as the officer was traveling westbound on Covert Avenue at about 4:20 p.m. As Pease’s vehicle approached from the east, Whitlow observed that the vehicle’s windshield was badly cracked. He did not recognize Pease. Officer Whitlow decided to stop the vehicle.
After the cars came to a stop, the officer asked Pease to exit the vehicle and produce his driver’s license because it was “standard procedure on a car stop to ascertain the identity of the driver and to make sure the driver has a vаlid driver’s license.” Pease complied. Officer Whitlow took Pease to his police vehicle to run a driver’s license check and to write a citation. Before placing Pease in the rear of his vehicle, Officer Whitlow conducted a pat-down search of Pease’s outer clothing for
Under the fourth amendment, a police officer who lacks probable cause but whose observations lead him reasonably to suspect that a particular person is committing a crime may detain that person briefly in order to investigate the circumstances that provoke suspicion. U.S. v. Brignoni-Ponce (1975), 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607. Accord, Poling v. State (1987), Ind., 515 N.E.2d 1074. Although stopping a car and detaining its occupant constitutes a seizure within the meaning of the fourth amendment, the governmental interest in investigating an officer’s reasonable suspicion, based on speсific and articu-lable facts, may outweigh the fourth amendment interest of the occupant in remaining secure from the intrusion. U.S. v. Hensley (1985), 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604. Since the State has a legitimate interest in insuring that motor vehicles are fit for safe operation, Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 1399, 59 L.Ed.2d 660, we must consider whether the situation presented here is one in which there is at least articu-lable and reasonable suspicion that either the vehicle or its occupant was properly subject to a seizure for a violation of law.
Officer Whitlow testified he stopped Pease’s vehicle because he observed the vehicle had a badly cracked windshield, and issued a citation because he determined the vehicle to be unsafe. Two sеctions of the Indiana Code prohibit the operation of an unsafe vehicle on a public highway.
any vehicle ... which is in such an unsafe condition as to endanger any person, which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter, or which is equipped in any manner in violation of this chapter_ (Emphasis supplied.)
By use of the conjunction “or” in
The record contains three photographs of Pease’s vehicle, takеn after his arrest. Officer Whitlow testified that the photographs accurately portrayed the condition of the vehicle at the time he ordered Pease to stop. Exhibit one is a snapshot of the windshield taken from the passenger’s side at a distance of about two to three feet. Exhibit two shows about two-third’s of Pease’s 1976 Oldsmobile from the front passenger’s side. The distance appears to be about a foot or so nearer than a passing car. From this perspective, one observes one deep break in the windshield running diagonally across the passenger’s side of the windshield from the hood to the roof.
We have described the windshield breakage in detail to demonstrаte why Pease’s windshield cannot be referred to simply as “cracked.” Exhibits two and three convince us that Officer Whitlow acted reasonably in stopping Pease to investigate further the extent of the damage; they provide an objective basis for evaluating the officer’s suspicion the vehicle was being operated in an unsafe and endangering condition.
Exhibit one, which was taken at close range, approximates what the officer observed upon further inspection. In our view, exhibit one confirms the damage was sufficiently extensive to lead a reasonably prudent person to believe that the vehicle, when driven, created a dangerous situation for those entering the area where the driver’s peripheral vision is obscured by the breakage. While the damage may not wholly block the driver’s view, the numerous cracks and their location would make it difficult at best to discern objects in that area. One can envision probable danger to pedestrians crossing in front of the vehicle and to occupants of vehicles merging from the driver’s right or changing lanes. As the State points out, the officer need not have been convinced beyond a reasonable doubt that the vehicle endangered others; rather, to justify the stop, he must have a reasonable suspicion. To warrant the citation, the officer must possess knowledge of facts and сircumstances which would cause a person of reasonable caution to conclude that Pease was probably violating the unsafe vehicle statute in his presence. See Gee v. State (1984), Ind., 471 N.E.2d 1115, 1117.
III.
Although Pease chose to argue only the propriety of the stop at the evidentiary hearing on his motion to suppress, he alleged in his written motion that the frisk whiсh followed the stop was also constitutionally impermissible. Since the illegality of the search of Pease‘s person might have been the basis of the trial court’s ruling, we will address the search as well.
Law enforcement officers may, consistent with the fourth amendment, ask the driver of a vehicle lawfully detained to get out of the car. Pennsylvania v. Mimms (1977), 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331. Such a precautionary measure reduces the likelihood that the officer will be the victim of an assault or sustain accidental injury from passing traffic. Thus, an officer acts reasonably within the meaning of the fourth amendment when he or she asks the driver of the vehicle to step out of the car and off onto the shoulder of the road where the investigatiоn can be pursued with greater safety. Id. at 111-112, 98 S.Ct. at 333-334.
This is not to suggest, however, that an officer, may “frisk” the occupants of any car stopped for a traffic violation once they leave the car. See, id. at 111, n. 3, 98 S.Ct. at 332, n. 3. Under the doctrine initiated in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, an individual stopped may not be frisked or patted down for weapons, unless the officer holds a reasonable belief that the particular individuаl is armed and dangerous. Ybarra v. Illinois (1979), 444 U.S. 85, 94, 100 S.Ct. 338, 343, 62 L.Ed.2d 238. Terry does not authorize a generalized, cursory search for weapons “or a search aimed at anything but weapons.” Id. at 94-95, 100 S.Ct. at 343.
The record in this case dispels any notion that the search of Pease was supported by a particularized belief that Pease
To the extent the State seeks to justify the frisk based upon generalized concerns for the officer’s safety, we would note that Officer Whitlow intended to place Pease in the rear of the police car while he ran a driver’s license check and issued the citation. That course cannot be said to be the least restrictive means reasonably available for effectuating the investigation, Florida v. Royer (1983), 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229, as Pease could have waited in his car or beside the road until the check was complete, minimizing the risk created by a weapon concealed on his person.
Neithеr are we persuaded that the frisk of Pease can be justified as a search incident to arrest. A search incident to a lawful arrest may not serve as part of the arrest’s justification. Sibron v. State of New York (1968), 392 U.S. 40, 67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917. Pease’s arrest for possession of a controlled substance occurred after the frisk; clearly then, it cannot function as authority for the search.
Arguably, a search may be contemporaneous with an arrest for a traffic violation and survive scrutiny under fourth amendment standards. 4 Here, however, Officer Whitlow did not institute an arrest; he issued a citation. Officer Whitlow’s actions are consistent with the legislative scheme established for determining when citation as opposed to a full custodial arrest shоuld be utilized as the means for invoking the criminal process.
Indiana law permits a law enforcement officer to arrest without a warrant when he has probable cause to believe the person is committing a
misdemeanor
in the officer’s presence; it does not permit a warrantless “arrest,” defined as “the taking of a person into custody, that he mаy be
held
to answer for a crime,” for an infraction.
See,
JUDGMENT AFFIRMED.
CONOVER, P.J., and NEAL, J., concur.
Notes
. A dismissal by the State occurring prior to the attachment of jeopardy does not bar the State from refiling identical charges; therefore, the dismissal here is without prejudice.
See e.g., Burdine v. State
(1987), Ind., 515 N.E.2d 1085, 1089;
. Neither party addresses its argument to the provisions of the Indiana Constitution.
. The trial court’s ruling was general in nature.
. The U.S. Supreme Court held in U.S. v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 and Gustafson v. Florida (1973), 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 that where a full custodial arrest was lawful, a search incident to that arrest required no additional justification. It reserved the question of whether a similar search occurring incident to a traffic stop where notice of the violation is issued and the offender is allowed to proceed is rеasonable. See, Robinson, 414 U.S. id. at 237, n. 6, 94 S.Ct. at 477 n. 6. No Indiana case addresses this question either, though Indiana law is consistent with the principles adopted in Robinson and Gustafson. See, e.g., Frasier v. State (1974), 262 Ind. 59, 312 N.E.2d 77, cert. denied 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 686; Sizemore v. State (1974), 159 Ind.App. 549, 308 N.E.2d 400, trans. denied, cert. denied 420 U.S. 909, 95 S.Ct. 827, 42 L.Ed.2d 838; Easley v. State (1975), 166 Ind.App. 316, 335 N.E.2d 838, trans. denied. See also Collett v. State (1975), 167 Ind.App. 185, 338 N.E.2d 286, 289. The State does not argue that the search of Pease’s person is reasonable as a search incident to a traffic stop resulting in a citation. Accordingly, we have no cause to consider the reserved constitutional issue here.