Barber v. State

418 N.E.2d 563, 1981 Ind. App. LEXIS 1344
Indiana Court of Appeals·Decided April 13, 1981·No. 2-880A291·Published·Cited by 23 cases

Opinions

CHIPMAN, Judge.

Defendant Phillip Lee Barber was convicted by a jury of the September 6, 1979, robbery1 of a Marion, Indiana clothing store. Barber now appeals that conviction raising the following issues for our review:

1) whether the trial court properly admitted the defendant’s confession,

2) whether the trial court erred by admitting an amended transcript of the defendant’s statement, and

3) whether there was sufficient evidence to support the robbery conviction.

We affirm.

I. Admissibility of Confession

On September 11, 1980, Marion police transported defendant Barber to police headquarters for questioning. There he admitted to his involvement in the robbery for which he stands convicted. Barber concedes he was read the warnings required by Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and he does not seek to challenge the voluntariness of his statement for Fifth Amendment purposes. Instead, defendant argues he was arrested without probable cause, and therefore his confession, being the product of an unlawful detention, was inadmissible under Dunaway v. New York, (1979) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824. The State argues Barber voluntarily accompanied the police to headquarters for questioning and therefore no arrest occurred.

The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures . . . . ” Generally, for an arrest or seizure of the person to be reasonable, it must be based upon probable cause. Brinegar v. United States, (1949) 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.2 In Brown v. Illinois, (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, and Dunaway v. New York, supra, the U.S. Supreme Court held that a confession, otherwise voluntary for Fifth Amendment purposes, is inadmissible when the defendant’s statement is obtained by exploitation of an illegal arrest. Both Brown and Dunaway have been followed in this state. See Morris v. State, (1980) Ind., 399 N.E.2d 740; Williams v. State, (1976) 264 Ind. 664, 348 N.E.2d 623.

Obviously, not every police-citizen encounter amounts to a “seizure” of the person. In Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, Chief Justice Warren set out a test for determining whether a person has been “seized” for Fourth Amendment purposes:

“Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

392 U.S. at 19, n. 16, 88 S.Ct. at 1879, n. 16. The Terry definition of “seizure” was refined somewhat in the recent case of U. S. v. Mendenhall, (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.

One issue in Mendenhall was whether Ms. Mendenhall was arrested or seized when Drug Enforcement Administration officers asked her to accompany them to the DEA office at the Detroit airport for questioning. In Part II-A of his plurality opinion, Justice Stewart wrote:

[565] “We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”

446 U.S. at 554, 100 S.Ct. at 1877.3 Stewart concluded there was evidence to show Men-denhall had voluntarily cooperated with the government agents and therefore no seizure or arrest occurred. This conclusion was not altered by the fact Mendenhall was not expressly told by the DEA officers that she was free to decline to cooperate with their inquiry. Id. at 555, 100 S.Ct. at 1877. Stewart also reasoned that the intent of the officers, i. e. whether they would have restrained Mendenhall had she attempted to leave, was relevant only if that intent was conveyed to the defendant. Id. at 554, n. 6, 100 S.Ct. at 1877.

While the court’s reasonable man test for a Fourth Amendment seizure in Mendenhall is ostensibly an objective one, it quite clearly retains a subjective element. For instance, Mendenhall argued that her encounter with the government agents was coercive because of her race, lack of education, sex, her relatively young age, and the presence of white male officers. Justice Stewart found these factors were “not irrelevant, see Schneckloth v. Bustamonte, supra [412 U.S. 218] at 226 [93 S.Ct. 2041 at 2047, 36 L.Ed.2d 854] [but] neither were they decisive, and the totality of the evidence . . . was plainly adequate to support the District Court’s finding that the respondent voluntarily consented to accompany the officers to the DEA office.” 446 U.S. at 558, 100 S.Ct. at 1879.

We conclude that when determining whether a seizure of the person has occurred for Fourth Amendment purposes, the appropriate inquiry should be whether, considering all the circumstances surrounding the police-citizen encounter, the defendant entertained a reasonable belief that he was not free to leave.4 Furthermore, as a court of review we are limited to a determi[566] nation of whether there was sufficient evidence to support the trial court’s conclusion on this issue.

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Barber v. State
418 N.E.2d 563 (Indiana Court of Appeals, 1981)