Opinion
No. 82A01-1102-CR-48
09-07-2011
RODNEY G. COOPER, Appellant- Defendant, v. STATE OF INDIANA, Appellee- Plaintiff
ATTORNEY FOR APPELLANT : JEFF SHOULDERS Law Offices of Steven K. Deig, LLC Evansville, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana BRIAN REITZ Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT:
JEFF SHOULDERS
Law Offices of Steven K. Deig, LLC
Evansville, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Kelli E. Fink, Magistrate
Cause No. 82C01-0902-FD-185
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB , Chief Judge
Case Summary and Issue
Following a bench trial, Rodney Cooper was convicted of possession of methamphetamine, a Class D felony, for which he was sentenced to two years in the Department of Correction's work release program. Cooper presents one issue for review, which we restate as whether the trial court erred in admitting evidence discovered during a pat down search. Concluding the trial court did not abuse its discretion in admitting the evidence, we affirm.
Facts and Procedural History
On February 22, 2009, Officer Knight of the Evansville Police Department observed a truck driving above the posted speed limit and pulled over the vehicle. Cooper was a passenger in the truck. After asking the driver for his license and registration, Officer Knight returned to his vehicle and wrote a warning for speeding. Because Officer Knight was nearly hit by another vehicle when he first approached the truck, he asked the driver to exit the vehicle in order to sign the warning. The driver signed the warning, and Officer Knight told the driver he was free to leave. After the driver began to walk away, Officer Knight asked if there was anything in the vehicle, to which the driver responded that there was not. Officer Knight then asked the driver if he could search the vehicle, and the driver verbally consented. Officer Knight asked Cooper, who was seated in the passenger seat, to exit the vehicle.
Upon exiting, Cooper, who appeared nervous, quickly placed his hands in his coat pockets. Officer Knight asked him to remove them, but Cooper only removed one hand, keeping the other hand in his pocket. Officer Knight grabbed Cooper's free arm and directed his hand to the top of the vehicle. As he did so, Officer Knight noticed that Cooper's hand was trembling. Officer Knight asked him once again to remove his other hand from his pocket, and this time Cooper complied.
Officer Knight testified that he was concerned for his safety because Cooper appeared nervous, was trembling, and wanted to keep his hands in his pockets. Officer Knight thus asked Cooper if he objected to a pat down search, and Cooper replied that he did not object. Before Officer Knight could do so, Cooper once again placed his hand in his pocket until Officer Knight removed it.
Among other items in the pocket, Officer Knight felt a hard, cylindrical object about two to three inches long and one-half to three-quarters of an inch wide. Officer Knight asked Cooper if he could search inside the pocket, and Cooper consented. Officer Knight discovered that the cylindrical object was a red pill bottle. Officer Knight had previously encountered a pill bottle containing a knife, and he also received a training notice warning officers of similar bottles containing small blades.
Officer Knight shook the bottle and, although he could not identify its contents, he could tell it did not contain pills. He asked Cooper what was inside the bottle, but Cooper did not respond. Officer Knight asked Cooper again, and after a few moments Cooper replied "meth." Transcript at 16. The substance subsequently tested positive for methamphetamine.
Discussion and Decision
I. Standard of Review
A trial court has broad discretion in ruling on the admissibility of evidence, and we will disturb its ruling only where it is shown that the trial court abused its discretion. Ware v. State, 782 N.E.2d 478, 481 (Ind. Ct. App. 2003). We review the admission of evidence similar to claims challenging the sufficiency of the evidence. Washington v. State, 922 N.E.2d 109, 111 (Ind. Ct. App. 2010). We do not reweigh the evidence or reassess the credibility of witnesses, but we consider the evidence most favorable to the trial court's ruling and any uncontested evidence favorable to the defendant. Id. We will affirm if there is substantial evidence of probative value to support the trial court's decision. Id.
II. Pat Down Search
Cooper claims that Officer Knight lacked reasonable suspicion to justify a pat down search. The Fourth Amendment to the United States Constitution protects the privacy and possessory interests of individuals from unreasonable searches and seizures. Berry v. State, 704 N.E.2d 462, 464 (Ind. 1998). Generally, a judicially issued search warrant is a condition precedent to a lawful search unless the circumstances fit one of several pronounced exceptions. Williams v. State, 754 N.E.2d 584, 587-88 (Ind. Ct. App. 2001), trans. denied. One such exception arises for the protection of police officers when an officer has reason to believe he or she is dealing with an armed and dangerous individual. Burkett v. State, 785 N.E.2d 276, 278 (Ind. Ct. App. 2003) (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)). The State must show that the officer had specific reasonable suspicion based upon the facts and in light of the officer's experience and training. Banks v. State, 681 N.E.2d 235, 237-38 (Ind. Ct. App. 1997) (citing Terry, 392 U.S. at 27).
Cooper contends that Tumblin v. State, 736 N.E.2d 317 (Ind. Ct. App. 2000), trans. denied, and Swanson v. State, 730 N.E.2d 205 (Ind. Ct. App. 2000), trans. denied, are controlling. In Tumblin, we stated that "[a] vague and general characterization of demeanor, such as 'nervousness,' does not rise to the level of reasonable suspicion," and we reversed the denial of the defendant's motion to suppress the evidence of a traffic stop pat down because the officer's "testimony did not indicate that either the driver or [the defendant] evinced hostility or threatened him in any way, or that their 'fidgeting' included furtive hand movements toward any area where a weapon could have been secreted." 736 N.E.2d at 322.
In Swanson, the officers' reasons for believing their safety was in jeopardy were that the traffic stop was made in a "high-drug area" and the defendant had his hands in his pockets. 730 N.E.2d at 209. This court stated that being in a high-drug area does not give rise to an officer's reasonable fear of danger without evidence that the individual was about to engage or had previously engaged in a drug transaction, and, "although [the defendant] had his hands in his pockets when the officers approached, there was no indication that he placed them there in reaction to the officers' approach or made any other furtive movements." Id. at 211. Importantly, the defendant in Swanson only had his hands in his pockets initially, and upon an officer's request to remove them, the defendant complied.
Unlike Tumblin, where the only reason for officer concern was a general demeanor of nervousness, and unlike Swanson, where the defendant fully complied with the officer's request to remove his hands from his pockets, here, Officer Knight's safety concern arose from Cooper's nervousness and trembling hands coupled with his repeated placement of his hands in his pockets despite Officer Knight's multiple clear instructions to remove them. Such actions could reasonably be deemed furtive hand movements toward an area where a weapon could have been secreted. Thus, the trial court did not abuse its discretion by finding the pat down search valid.
Finding the pat down to be valid, we need not review whether Cooper freely and voluntarily consented to such a search, an alternative argument made by the State and challenged by Cooper.
III. The Scope of the Pat Down Search
Cooper next argues that Officer Knight's search exceeded its lawful authority once the contents of Cooper's pockets were revealed because Officer Knight no longer had reason to fear for his safety. However, the evidence most favorable to the trial court's ruling demonstrates that Officer Knight had previously encountered a knife contained in a pill bottle and had been warned before about hidden weapons such as blades placed inside pill bottles. Such evidence constitutes substantial evidence of probative value that Officer Knight's initial evaluation of the pill bottle was to expel concern for his safety.
Cooper also argues based upon Harris v. State, 878 N.E.2d 534 (Ind. Ct. App. 2007), trans. denied, that the scope of Officer Knight's search exceeded its authority when he examined the contents of the pill bottle. In Harris, where an officer removed a pill bottle during a pat down and continued to search inside the pill bottle, we held the warrantless search inside the pill bottle went beyond the scope of Terry. Id. at 538. Unlike Harris, here Officer Knight did not open the pill bottle until after Cooper revealed to him it contained "meth," making Officer Knight's search inside the bottle lawful. See Berry, 704 N.E.2d at 466 (holding that reasonable suspicion that criminal activity may be afoot authorizes police to search items within the suspicious person's immediate control).
Cooper objects to this line of reasoning, arguing the bottle's contents are inadmissible because he was not previously read his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). An officer has a duty to read a suspect his Miranda rights, however, only when an individual is subject to custodial interrogation. Kelley v. State, 825 N.E.2d 420, 427 (Ind. Ct. App. 2005). Thus, Miranda is not implicated unless the defendant is both in custody and subject to interrogation. Green v. State, 753 N.E.2d 52, 58 (Ind. Ct. App. 2001), trans. denied. Although a person is generally considered to be in custody if his freedom has been significantly deprived or if a reasonable person in the defendant's circumstances would not believe he was free to leave, our supreme court and the Supreme Court of the United States have held that "persons detained for traffic stops are not 'in custody' for purposes of Miranda," despite the detainee's brief inability to leave. Lockett v. State, 747 N.E.2d 539, 543 (Ind. 2001) (citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). A traffic stop may turn into a custodial situation in some circumstances. Id. (citing Conwell v. State, 714 N.E.2d 764 (Ind. Ct. App. 1999) (finding detainee in custody when officer immediately ordered driver out of car, handcuffed him, and placed him in a choke hold)).
Here, nothing suggests that the traffic stop developed into a custodial situation. Officer Knight was taking measures to ensure officer safety in the midst of a traffic stop, and he did not handcuff Cooper, place him in the back of his patrol vehicle, or take any other actions advancing the traffic stop to a custodial situation. Because the traffic stop did not amount to "in custody," we need not address whether Officer Knight's questions formed an interrogation. The trial court did not abuse its discretion in finding that the scope of Officer Knight's pat down search was not unreasonable.
Conclusion
Substantial evidence of probative value exists to support the trial court's admission of evidence discovered during the pat down search. Cooper's conviction is therefore affirmed.
Affirmed. BARNES, J., and BRADFORD, J., concur.