Scarborough v. State

770 N.E.2d 923, 2002 Ind. App. LEXIS 1046, 2002 WL 1397955
CourtIndiana Court of Appeals
DecidedJune 28, 2002
DocketNo. 49A04-0109-CR-387
StatusPublished

This text of 770 N.E.2d 923 (Scarborough 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
Scarborough v. State, 770 N.E.2d 923, 2002 Ind. App. LEXIS 1046, 2002 WL 1397955 (Ind. Ct. App. 2002).

Opinion

OPINION

FRIEDLANDER, Judge.

In this interlocutory appeal, Michael Scarborough challenges the denial of his motion to suppress evidence.

We affirm.

The facts favorable to the ruling are that sometime between 9 am. and 10 am. on May 25, 2001, Carold Butrum was taking a shower at his house when he heard a noise. He got out of the shower to investigate and went into the kitchen. When he looked around the refrigerator, he saw Searborough at the back window. Butrum had known Searborough for at least fifteen years, and Searborough was the father of Butrum's grandchildren. - Butrum returned to his room to get dressed. While he was getting dressed, he heard another noise and called 911. While he was on the phone talking to the 911 operator, he twice [924]*924heard the sound of glass breaking. The 911 operator told him to stay on the line.

Officers Aaron Tevebaugh and Christo, pher Caplin of the Indianapolis Police Department responded to the disturbance call at Butrum's residence. The officers had been notified that the homeowner had heard someone break his kitchen windows. They had also been notified that Searbor-ough was a suspect. Officer Tevebaugh, who was familiar with Searborough, approached Butrum's house from an alley that ran behind Butrum's residence. When he was still several houses away from Butrum's, Officer Tevebaugh saw Scarborough walking down the alley. The officer asked Searborough to stop, and Searborough complied. Searborough appeared "very nervous" and was "shaking around a little bit." Transcript at 21. Scarborough asked what the problem was and Officer Tevebaugh responded that he just wanted to talk to him. While he was standing there, Searborough had his hands in his pockets. For reasons of officer safety, Officer Tevebaugh asked Searborough to remove his hands from his pockets. After Searborough complied, Officer Teve-baugh observed that Scarborough's right hand was cut and bleeding, and that there was white residue on it. Officer Teve-baugh asked Searborough if he had been to Butrum's house, and Searborough responded that he had not.

By this time, Officer Caplin had arrived at Butrum's house. He spoke with But-rum, who related to him what had occurred. Officer Tevebaugh asked Officer Caplin to take Butrum. to the location where Searborough was being detained so that Butrum could identify Searborough. Butrum was taken to the alley, where he identified Searborough as the person he had seen at his kitchen window. At that point, Officer Tevebaugh handcuffed Sear-borough and placed him under arrest for criminal mischief. An evidence technician was called to the scene to take photographs of the broken window, and a jail wagon was summoned to transport Sear-borough to jail. As part of standard procedure following arrest, Officer Tevebaugh searched Scarborough. In Searborough's right front pocket, Officer Tevebaugh discovered a small, white piece of paper containing a "yellowish rock substance." Transcript at 24-25. From his training and experience, Officer Tevebaugh believed the substance to be crack cocaine.

Scarborough was charged. with possession of cocaine as a class D felony. He filed a motion to suppress the cocaine allegedly found in his pocket on grounds that it was the product of an illegal detention and seizure. The trial court denied the motion following a hearing. At Scarborough's request, the trial court certified its ruling for interlocutory appeal. This court accepted jurisdiction of the appeal on September 25, 2001 pursuant to Ind. Appellate Rule 14(B).

Searborough contends that the evidence should have been suppressed because his arrest was illegal under Ind.Code Ann. § 35-33-1-1 (West Supp.2000), which sets out the situations in which a law enforcement officer may effect a legal arrest. Of particular importance in this case is subsection (a)(4), which provides as follows: "A law enforcement officer may arrest a person when the officer has: ... (4) probable cause to believe the person is committing or attempting to commit a misdemeanor in the officer's presence[.]" Scarborough contends that, even assuming he broke Butrum's windows as alleged, ' the offense charged is a misdemeanor and it was not committed in the officers' presence. Therefore, he argues, Officer Tevebaugh did not have authority under IC to arrest him, thus rendering the arrest illegal. Be[925]*925cause the arrest was illegal, the search incident to that arrest was also illegal.

In response to Scarborough's argument, the State contended that the arrest was proper under subsection (a)(4) because, in effect, the offense was still in progress when the officers arrived. The prosecuting attorney explained his theory as follows:

Now, admittedly, by the time the police arrived, the actual act breaking the glass had already occurred ... but, that is not where the ... and that is, from an elements points of view, the point at which the crime is complete ... but that is not the end of the erime. In this case; Mr. Searborough is attempting to leave the scene so he can't be caught for having tried to break ... or, having, in fact successfully - accomplished - breaking these windows, with whatever intent he may have had at that point. The officers arrived, the testimony is, within two (2) or three (8) minutes of when Mr. Butrum made the phone call ... and he made the phone call before the glass was broken. He was on the phone when the glass was broken. So we know that the officers arrived within moments of when that happened. They found Mr. Scarborough less than a block away from where this happened, trying to leave the scene, during his escape ... in effect ... from having committed this offense and realizing that Mr. Butrum is on the phone to the police. That means that the res gestae of this offense was still, uh, in part and parcel of him leaving that scene, and because it was, that was still part of the offense, and he was still in the commission of that offense, and therefore the offense was committed in the officer's presence, and they could properly arrest him at that point, because, while the actual elements, from a legal point of view, had already been completed, the crime itself was not yet done.

Transcript at 32-33. Although the trial court did not articulate its rationale for denying Searborough's request, the aforementioned argument was the only one made at the time by the State in opposing the motion.

A trial court has broad discretion in ruling on the admissibility of evidence and we will disturb its rulings only where it is shown that the court abused that discretion. Wilkinson v. State, 743 N.E.2d 1267 (Ind.Ct.App.2001), trans. denied. We review the denial of a motion to suppress in a manner similar to other sufficiency matters. Miles v. State, 764 N.E.2d 237 (Ind.Ct.App.2002), trans. denied. We view the circumstances in their totality and, without reweighing evidence and considering conflicting evidence most favorable to the trial court's ruling, determine if there was substantial evidence of probative value to support the trial court's ruling. Wilkinson v. State, 743 NE.2d 1267. "We will affirm the judgment of the trial court if it is sustainable on any legal grounds apparent in the record." Id. at 1269.

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Related

Ortiz v. State
716 N.E.2d 345 (Indiana Supreme Court, 1999)
Wilkinson v. State
743 N.E.2d 1267 (Indiana Court of Appeals, 2001)
Sears v. State
668 N.E.2d 662 (Indiana Supreme Court, 1996)
Miles v. State
764 N.E.2d 237 (Indiana Court of Appeals, 2002)

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Bluebook (online)
770 N.E.2d 923, 2002 Ind. App. LEXIS 1046, 2002 WL 1397955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scarborough-v-state-indctapp-2002.