Sellmer v. State

842 N.E.2d 358, 2006 Ind. LEXIS 131, 2006 WL 349808
CourtIndiana Supreme Court
DecidedFebruary 16, 2006
Docket29S04-0602-CR-58
StatusPublished
Cited by87 cases

This text of 842 N.E.2d 358 (Sellmer v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sellmer v. State, 842 N.E.2d 358, 2006 Ind. LEXIS 131, 2006 WL 349808 (Ind. 2006).

Opinions

SULLIVAN, Justice.

Defendant Sarah Selimer appeals her conviction for Possession of Marijuana Over Thirty Grams. Sellmer's arrest and conviction followed a chain of events triggered by an anonymous tip to the police that there was marijuana in her automobile and her subsequent consent to the search of the car. The anonymous tip did not provide the police with the reasonably articulated suspicion of criminal activity required by the Fourth Amendment to detain her. While the police were entitled to approach her and ask her if she was willing to answer questions, the police procedures used here were such that her consent to search the car was not valid.

Background

At approximately 5:00 p.m. on November 19, 2001, Noblesville police received a call from an anonymous informant, describing the make and color of an automobile the caller alleged contained a large amount of drugs: a silver Dodge parked [360]*360backwards into a parking spot in front of a Supercuts Hair Salon located at 2610 Conner Street in Noblesville.

Acting on this tip, the Noblesville police dispatched officers Wade Roberts and Mike Freibel to the Supercuts to investigate further. At the seene, Officer Roberts saw a vehicle that matched the vehicle described in the anonymous tip. As he drove his police cruiser by the vehicle, he observed two women exit the car and enter the Supercuts.

Officers Roberts and Freibel entered the Supercuts where Officer Roberts spotted Defendant Sarah Sellmer, the driver of the silver Dodge, in the customer waiting area. He asked her whether she owned the silver Dodge and when she answered affirmatively, he asked her to step outside. Onee outside, Officer Roberts and Sellmer engaged in a conversation that will be described in greater detail later in this opinion. At the end of this conversation, Sellmer gave Officer Roberts permission to search the vehicle. On the basis of this permission (but without a warrant), Officer Roberts conducted a search and discovered a large quantity of marijuana. Sellmer was arrested and charged with Possession of Marijuana Over Thirty Grams.

Before going to trial on this charge, Sellmer filed a motion to suppress the evidence gathered during the search of her car on May 29, 2002. She argued that the Noblesville police detained her and searched Her vehicle in violation of the Fourth and Fifth Amendments to the United States Constitution and Article I, Section 11, of the Indiana Constitution. The trial court denied this motion on August 15, 2002, after a hearing and subsequently tried Sellmer, who was found guilty on January 28, 2008.

The Court of Appeals upheld the trial court's denial of Sellmer's motion to suppress in Sellmer v. State, 800 N.E.2d 671 (Ind.Ct.App.2003). We grant transfer and vacate the decision of the Court of Appeals. f >

Discussion

Sellmer appeals the trial court's denial of her motion to suppress the marijuana found in her automobile when Officer Roberts performed a warrantless search of her vehicle. She contends that the search of her automobile, seizure of the drugs, and use of the drugs as evidence against her in court violated her right under the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Indiana Constitution "to be secure ... against unreasonable searches and seizures...." U.S. Const. amend. IV; Ind. Const. art. 1 § 11. Part I of this Discussion focuses on issues surrounding the anonymous tip; Part II, on issues surrounding the permission Sellmer gave to Officer Roberts to search the car.

I

A citizen's constitutional rights are not violated by an investigatory stop conducted by a police officer where the officer has a reasonably articulable suspi-clon of criminal activity. See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The United States Supreme Court has conceded that the concept of reasonable suspicion "is somewhat abstract," prompting the Court to "avoid[ ] reducing it to 'a neat set of legal rules.'" U.S. v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations omitted). Nevertheless, the Supreme Court has directed reviewing courts to "make reasonable suspicion determinations by look[ing] at the 'totality of the cireum-stances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing." State v. Bulington, 802 N.E.2d 435, 438 (Ind.2004) (quoting Arvizu, 534 U.S. at [361]*361273, 122 S.Ct. 744). Reviewing courts have also been directed to "review trial court determinations of reasonable suspicion de novo. ..." Id.

Despite its reluctance to promulgate any bright line rules with respect to reasonable suspicion inquiries, the Supreme Court has held as a general matter that "an anonymous tip alone is not likely to constitute the reasonable suspicion necessary for a valid Terry stop." Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind.1997) (citing Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Indeed, precedent dictates that for an anonymous tip to constitute the reasonable suspicion necessary for a valid investigatory stop, at least two conditions must be met. First, "significant aspects of the tip [must be] corroborated by the police." Id. at 1271. Such corroboration requires that an anonymous tip give the police something more than details regarding facts easily obtainable by the general public to verify its credibility. See Johnson v. State, 659 N.E.2d 116, 119 (Ind.1995) (holding that an anonymous tip that provided only information easily obtainable by members of the general public was insufficiently reliable to constitute reasonable suspicion to conduct an investigatory stop). Second, an anonymous tip, if it is to be considered reliable enough to constitute reasonable suspicion to conduct an investigatory stop, must also demonstrate an intimate familiarity with the suspect's affairs and be able to predict future behavior. See Id. at 118.1

Protection against uncorroborated anonymous tips is necessary because "[ilf any anonymous caller's allegation, uncorroborated by anything beyond public knowledge, could justify a search, every citizen's home [and car for that matter] would be fair game for a variety of innocent and not so innocent intrusions." Jaggers v. State, 687 N.E.2d 180, 183 (Ind.1997). We therefore review the anonymous tip that led to Sellmer's arrest and conviction under the "totality of the cireumstances" so as to determine whether that tip conformed to the principles outlined above, and provided Officer Roberts with sufficient indicia of reliability to justify his questioning of Sellmer.

The tip received by the Noblesville police and acted upon by Officer Roberts does not meet the standard already outlined.

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Bluebook (online)
842 N.E.2d 358, 2006 Ind. LEXIS 131, 2006 WL 349808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sellmer-v-state-ind-2006.