FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Sep 26 2012, 9:15 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY L. SANFORD GREGORY F. ZOELLER South Bend, Indiana Attorney General of Indiana
J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
GREGORY D. WEBSTER, ) ) Appellant-Defendant, ) ) vs. ) No. 71A05-1203-CR-109 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable John M. Marnocha, Judge Cause No. 71D02-1009-FB-109
September 26, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BRADFORD, Judge Appellant-Defendant Gregory Webster appeals from his convictions for Class A
misdemeanor marijuana possession1 and Class B felony cocaine possession,2 contending
that the trial court abused its discretion in admitting evidence seized from his person. We
affirm.
FACTS AND PROCEDURAL HISTORY
At approximately 4:30 to 4:45 p.m. on September 3, 2010, South Bend Police
Corporal Ronald Glon was patrolling Howard Park on a T-3 Motion, a three-wheeled
electric vehicle “kind of like one of those two-wheel things that you stand on[.]” Tr. p.
177. Corporal Glon encountered two female walkers who advised him that a man sitting
on a park bench was “‘yelling and screaming at the kids and the mothers in the
playground area.’” Tr. p. 178. The walkers pointed to the only person in the park that
was sitting on a bench, who was “a couple hundred feet [away], maybe.” Tr p. 197.
Corporal Glon activated the lights on his T-3 Motion and approached the
individual sitting on the bench, who was Webster. As Corporal Glon pulled up, he asked
Webster for identification; Webster responded by saying, “‘I’m just leaving.’” Tr. p. 182.
As Webster spoke with him, Corporal Glon detected a “strong odor” of alcohol on
Webster’s breath, noticed that his eyes were watery and bloodshot, and noticed that his
speech was slurred. Tr. p. 183. Corporal Glon administered a portable breath test to
Webster, which indicated the presence of alcohol. Corporal Glon advised Webster that
1 Ind. Code § 35-48-4-11(1) (2010). 2 Ind. Code § 35-48-4-6(a), -6(b)(2)(B)(ii) (2010). 2 he was under arrest for public intoxication. When Corporal Glon patted Webster down,
he found a baggie containing marijuana in his right front pocket and later found a baggie
containing cocaine in his right shoe.
On September 5, 2010, the State charged Webster with Class B misdemeanor
public intoxication, Class A misdemeanor marijuana possession, and Class B felony
cocaine possession. On November 15, 2010, Webster filed a motion to suppress
evidence, which motion the trial court denied on January 14, 2012. On January 18, 2012,
a jury found Webster guilty of marijuana possession and cocaine possession. On
February 15, 2012, the trial court sentenced Webster to one year of incarceration for
marijuana possession and six years for cocaine possession, the sentences to run
concurrently.
DISCUSSION AND DECISION
Whether the Trial Court Abused its Discretion in Admitting Evidence Seized from Webster’s Person
Webster frames his appeal as a challenge to the denial of his motion to suppress
evidence of illegal drugs found on his person. However, because a trial has been held,
the issue is more appropriately addressed as a challenge to the admission of evidence.
We will reverse a trial court’s ruling on the admissibility of evidence only when the court
has abused its discretion. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). An
abuse of discretion may occur if a decision is clearly against the logic and effect of the
facts and circumstances before the court. Id. Regarding the “abuse of discretion”
3 standard generally, the Indiana Supreme Court has observed, “to the extent a ruling is
based on an error of law or is not supported by the evidence it is reversible, and the trial
court has no discretion to reach the wrong result.” Pruitt v. State, 834 N.E.2d 90, 104
(Ind. 2005).
Fourth Amendment
The Fourth Amendment to the United States Constitution provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” “The overriding function of
the Fourth Amendment is to protect personal privacy and dignity against unwarranted
intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767 (1966). “In Wolf [v.
People of State of Colorado, 338 U.S. 25, 27 (1949) (overruled on other grounds by
Mapp v. Ohio, 367 U.S. 643 (1961)] we recognized ‘(t)he security of one’s privacy
against arbitrary intrusion by the police’ as being ‘at the core of the Fourth Amendment’
and ‘basic to a free society.’” Id.
[T]here are three levels of police investigation, two which implicate the Fourth Amendment and one which does not. First, the Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause. Woods v. State, 547 N.E.2d 772, 778 (Ind. 1989). Probable cause to arrest exists where the facts and circumstances within the knowledge of the officers are sufficient to warrant a belief by a person of reasonable caution that an offense has been committed and that the person to be arrested has committed it. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). Second, it is well-settled
4 Fourth Amendment jurisprudence that police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Accordingly, limited investigatory stops and seizures on the street involving a brief question or two and a possible frisk for weapons can be justified by mere reasonable suspicion. Woods, 547 N.E.2d at 778. Finally, the third level of investigation occurs when a law enforcement officer makes a casual and brief inquiry of a citizen which involves neither an arrest nor a stop. In this type of “consensual encounter” no Fourth Amendment interest is implicated. See Molino v. State, 546 N.E.2d 1216, 1218 (Ind. 1989) (citing Florida v.
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FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Sep 26 2012, 9:15 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY L. SANFORD GREGORY F. ZOELLER South Bend, Indiana Attorney General of Indiana
J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
GREGORY D. WEBSTER, ) ) Appellant-Defendant, ) ) vs. ) No. 71A05-1203-CR-109 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable John M. Marnocha, Judge Cause No. 71D02-1009-FB-109
September 26, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BRADFORD, Judge Appellant-Defendant Gregory Webster appeals from his convictions for Class A
misdemeanor marijuana possession1 and Class B felony cocaine possession,2 contending
that the trial court abused its discretion in admitting evidence seized from his person. We
affirm.
FACTS AND PROCEDURAL HISTORY
At approximately 4:30 to 4:45 p.m. on September 3, 2010, South Bend Police
Corporal Ronald Glon was patrolling Howard Park on a T-3 Motion, a three-wheeled
electric vehicle “kind of like one of those two-wheel things that you stand on[.]” Tr. p.
177. Corporal Glon encountered two female walkers who advised him that a man sitting
on a park bench was “‘yelling and screaming at the kids and the mothers in the
playground area.’” Tr. p. 178. The walkers pointed to the only person in the park that
was sitting on a bench, who was “a couple hundred feet [away], maybe.” Tr p. 197.
Corporal Glon activated the lights on his T-3 Motion and approached the
individual sitting on the bench, who was Webster. As Corporal Glon pulled up, he asked
Webster for identification; Webster responded by saying, “‘I’m just leaving.’” Tr. p. 182.
As Webster spoke with him, Corporal Glon detected a “strong odor” of alcohol on
Webster’s breath, noticed that his eyes were watery and bloodshot, and noticed that his
speech was slurred. Tr. p. 183. Corporal Glon administered a portable breath test to
Webster, which indicated the presence of alcohol. Corporal Glon advised Webster that
1 Ind. Code § 35-48-4-11(1) (2010). 2 Ind. Code § 35-48-4-6(a), -6(b)(2)(B)(ii) (2010). 2 he was under arrest for public intoxication. When Corporal Glon patted Webster down,
he found a baggie containing marijuana in his right front pocket and later found a baggie
containing cocaine in his right shoe.
On September 5, 2010, the State charged Webster with Class B misdemeanor
public intoxication, Class A misdemeanor marijuana possession, and Class B felony
cocaine possession. On November 15, 2010, Webster filed a motion to suppress
evidence, which motion the trial court denied on January 14, 2012. On January 18, 2012,
a jury found Webster guilty of marijuana possession and cocaine possession. On
February 15, 2012, the trial court sentenced Webster to one year of incarceration for
marijuana possession and six years for cocaine possession, the sentences to run
concurrently.
DISCUSSION AND DECISION
Whether the Trial Court Abused its Discretion in Admitting Evidence Seized from Webster’s Person
Webster frames his appeal as a challenge to the denial of his motion to suppress
evidence of illegal drugs found on his person. However, because a trial has been held,
the issue is more appropriately addressed as a challenge to the admission of evidence.
We will reverse a trial court’s ruling on the admissibility of evidence only when the court
has abused its discretion. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). An
abuse of discretion may occur if a decision is clearly against the logic and effect of the
facts and circumstances before the court. Id. Regarding the “abuse of discretion”
3 standard generally, the Indiana Supreme Court has observed, “to the extent a ruling is
based on an error of law or is not supported by the evidence it is reversible, and the trial
court has no discretion to reach the wrong result.” Pruitt v. State, 834 N.E.2d 90, 104
(Ind. 2005).
Fourth Amendment
The Fourth Amendment to the United States Constitution provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” “The overriding function of
the Fourth Amendment is to protect personal privacy and dignity against unwarranted
intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767 (1966). “In Wolf [v.
People of State of Colorado, 338 U.S. 25, 27 (1949) (overruled on other grounds by
Mapp v. Ohio, 367 U.S. 643 (1961)] we recognized ‘(t)he security of one’s privacy
against arbitrary intrusion by the police’ as being ‘at the core of the Fourth Amendment’
and ‘basic to a free society.’” Id.
[T]here are three levels of police investigation, two which implicate the Fourth Amendment and one which does not. First, the Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause. Woods v. State, 547 N.E.2d 772, 778 (Ind. 1989). Probable cause to arrest exists where the facts and circumstances within the knowledge of the officers are sufficient to warrant a belief by a person of reasonable caution that an offense has been committed and that the person to be arrested has committed it. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). Second, it is well-settled
4 Fourth Amendment jurisprudence that police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Accordingly, limited investigatory stops and seizures on the street involving a brief question or two and a possible frisk for weapons can be justified by mere reasonable suspicion. Woods, 547 N.E.2d at 778. Finally, the third level of investigation occurs when a law enforcement officer makes a casual and brief inquiry of a citizen which involves neither an arrest nor a stop. In this type of “consensual encounter” no Fourth Amendment interest is implicated. See Molino v. State, 546 N.E.2d 1216, 1218 (Ind. 1989) (citing Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S. Ct. 308, 83 L. Ed. 2d 165 (1984)).
Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans. denied. “‘[S]ince
reasonable suspicion is all that is necessary to support a Terry stop and it “is a less
demanding standard than probable cause … [t]he Fourth Amendment requires [only]
‘some minimal level of objective justification’ for making the stop.”’” State v. Renzulli,
958 N.E.2d 1143, 1148 (Ind. 2011) (citations omitted).
Webster contends that Corporal Glon, acting only on an allegedly anonymous tip
from the walkers, lacked reasonable suspicion to briefly detain him for investigatory
purposes. We disagree, as we conclude that several factors tend to establish the
reliability of the tip on which Corporal Glon acted. As an intial matter, a face-to-face
report is not truly anonymous, despite the fact that Corporal Glon did not get the names
of either of the walkers. A face-to-face tipster has surrendered his or her anonymity.
“[C]itizens who personally report crimes to the police thereby make themselves
accountable for lodging false complaints.” U.S. v. Christmas, 222 F.3d 141, 144 (4th Cir.
5 2000) (citing Illinois v. Gates, 462 U.S. 213, 233-34 (1983)). It should be noted that the
walkers’ tip was related when the trio was only “a couple hundred feet” from Webster,
making it more likely that the walkers would be held to account if the tip turned out to be
fabricated. Moreover, Corporal Glon was able to judge the walkers’ credibility first-
hand. When an informant relates information to the police face-to-face, the officer has an
opportunity to assess the informant’s credibility and demeanor. Id. Finally, the walkers
specifically pointed out Webster to Corporal Glon, which is a least as good as providing a
detailed description. Under Indiana law, “‘[a] tip will be deemed reliable when an
individual provides specific information to police officers such as a vehicle description.’”
State v. Renzulli, 958 N.E.2d 1143, 1148 (Ind. 2011) (quoting Bogetti v. State, 723
N.E.2d 876, 879 (Ind. Ct. App. 2000)). In cases such as this, where the suspect is
specifically pointed out to police, reliability is provided without need for specific
information about how he may be identified or located. We conclude that Corporal Glon
had ample reasonable suspicion to briefly detain Webster for investigatory purposes,
which led to his arrest and the discovery of the contraband. Consequently, the trial court
did not abuse its discretion in admitting evidence of the narcotics found on Webster’s
person.
We affirm the judgment of the trial court.
ROBB, C.J., and BAKER, J., concur.