DD v. State

668 N.E.2d 1250, 1996 WL 376670
CourtIndiana Court of Appeals
DecidedJuly 8, 1996
Docket82A01-9602-JV-59
StatusPublished

This text of 668 N.E.2d 1250 (DD v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DD v. State, 668 N.E.2d 1250, 1996 WL 376670 (Ind. Ct. App. 1996).

Opinion

668 N.E.2d 1250 (1996)

In the Matter of D.D., a Child Alleged to be a Delinquent Child, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

No. 82A01-9602-JV-59.

Court of Appeals of Indiana.

July 8, 1996.

*1251 Jeffery L. Lantz, Jon K. Aarstad, Evansville, for Appellant.

Pamela Carter, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

D.D., a juvenile, appeals from the juvenile court's order which adjudicated him a delinquent child based upon his commission of two acts which would be crimes if committed by an adult: Possession of Cocaine, a Class D felony, and Resisting Law Enforcement, a Class A misdemeanor. The sole issue presented for our review is whether the court erred when it denied D.D.'s motion to suppress evidence of cocaine seized during a warrantless search of his person.

We affirm in part, reverse in part and remand with instructions.

FACTS

On June 21, 1995, during a routine patrol, Evansville Police Officers Stephen Green and Bryan Talsma observed D.D. and two other individuals sitting on the front steps of an apartment building. The owner of the building had previously signed a waiver with the city allowing police officers to enforce the no trespassing signs posted on the property. The officers exited their vehicle and approached the individuals to see what the individuals were doing and whether they belonged on the property. Officer Green asked the individuals to identify themselves. D.D. told Officer Green that his name was "Carlos." Officer Green became suspicious because he had encountered D.D. on prior occasions and knew that D.D. had given him a false name. Officer Green also noticed that D.D. was acting nervous. Based upon this suspicious behavior, Officer Green asked D.D. to step onto the porch and he began to conduct a patdown search of D.D.'s outer garments for weapons. During the patdown search, Officer Green felt a lump in the small watch pocket of D.D.'s pants. Officer Green reached in the pocket and withdrew a bag of small white rocks which appeared to be cocaine. D.D. immediately fled from the officers. Although Officer Talsma pursued him, D.D. was not apprehended at that time. The substance seized from D.D.'s pocket was later tested and confirmed to be 2.5 grams of cocaine.

The State filed a delinquency petition and alleged that D.D. had committed two acts, possession of cocaine and resisting law enforcement, each which would have been crimes if committed by an adult. During the hearing, D.D. objected to Officer Green's testimony and moved to suppress evidence of the seized cocaine. The trial court denied D.D.'s motion. At the conclusion of the hearing, the trial court adjudged D.D. delinquent on both counts. D.D. appeals.

*1252 DISCUSSION AND DECISION

Standard of Review

Our standard of review of a juvenile adjudication is the same as if the crime had been committed by an adult. Warner v. State, 254 Ind. 209, 214, 258 N.E.2d 860, 864 (1970). The trial court has broad discretion in ruling on the admissibility of evidence, and we will not disturb its decision absent a showing of an abuse of that discretion. Kremer v. State, 514 N.E.2d 1068, 1073 (Ind. 1987). Adult criminal procedure rules apply in delinquency proceedings. C.D.T. v. State, 653 N.E.2d 1041, 1044 (Ind.Ct.App.1995). In light of this standard, we consider D.D.'s motion to suppress.

Motion to Suppress

D.D. contends that the trial court erred when it denied his motion to suppress the evidence of cocaine. Specifically, D.D. argues that the warrantless search of his person and the seizure of the cocaine were beyond the scope of the Fourth Amendment and the "plain feel" doctrine adopted by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). We agree.

This case illustrates the practical difficulty police face in applying the "plain feel" doctrine on the street in a manner that does not violate an individual's Fourth Amendment right against unreasonable searches and seizures. As necessary background, we begin with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court recognized an exception to the warrant requirement. The Court determined that the Fourth Amendment permits a police officer, without a warrant or probable cause, to conduct a brief "stop" and "frisk" of a person for investigative purposes if the officer has reasonable suspicion, based on specific and articulable facts, that criminal activity "may be afoot." Id. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. The Terry "frisk" is limited to a protective search of the suspect's person for weapons which might be used against the officer. Id. at 23 and 27, 88 S.Ct. at 1881 and 1883, 20 L.Ed.2d at 907 and 909.

The Supreme Court has also held that contraband detected in "plain view" during a lawful Terry search may be seized. Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201, 1220 (1983). Then, in Dickerson, the Supreme Court extended the "plain view" doctrine to include the "plain feel" doctrine and determined that police officers may seize contraband detected through the officer's sense of touch during the type of protective patdown search contemplated by Terry. Dickerson, 508 U.S. at 375-76, 113 S.Ct. at 2137, 124 L.Ed.2d at 346. The Court reasoned:

If a police officer lawfully pats down a suspect's clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

Id. (footnote omitted), (emphasis added). The parties here cite three recent opinions of this court, each applying the "plain feel" doctrine to the specific facts of the search and seizure in question. Walker v. State, 661 N.E.2d 869 (Ind.Ct.App.1996); Bratcher v. State, 661 N.E.2d 828 (Ind.Ct.App.1996); C.D.T. v. State, 653 N.E.2d 1041 (Ind.Ct.App. 1995). While the outcome of each case varies, it is clear that the dispositive issues in each case were: (1) whether the contraband was detected during the initial search for weapons rather than during a further search, and (2) whether the identity of the item was immediately apparent to the officer.

In Walker, the officer's determination of the item as contraband was "contemporaneous" with his weapons search. Walker, 661 N.E.2d at 871. When asked the period of time between his realization that the item was not a weapon but was marijuana, the officer responded, "Instantaneously."

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Chimel v. California
395 U.S. 752 (Supreme Court, 1969)
Adams v. Williams
407 U.S. 143 (Supreme Court, 1972)
New York v. Belton
453 U.S. 454 (Supreme Court, 1981)
Michigan v. Long
463 U.S. 1032 (Supreme Court, 1983)
Smith v. Ohio
494 U.S. 541 (Supreme Court, 1990)
Minnesota v. Dickerson
508 U.S. 366 (Supreme Court, 1993)
Ornelas v. United States
517 U.S. 690 (Supreme Court, 1996)
Kremer v. State
514 N.E.2d 1068 (Indiana Supreme Court, 1987)
Bratcher v. State
661 N.E.2d 828 (Indiana Court of Appeals, 1996)
Walker v. State
661 N.E.2d 869 (Indiana Court of Appeals, 1996)
Warner v. State
258 N.E.2d 860 (Indiana Supreme Court, 1970)
C.D.T. v. State
653 N.E.2d 1041 (Indiana Court of Appeals, 1995)
D.D. v. State
668 N.E.2d 1250 (Indiana Court of Appeals, 1996)

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Bluebook (online)
668 N.E.2d 1250, 1996 WL 376670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dd-v-state-indctapp-1996.