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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.

FILED
Dec 22 2009, 10:39 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JOSEPH M. CLEARY Hammerle & Cleary Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KATHY BRADLEY Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
THEODORE BRISCOE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A05-0904-CR-233

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Peggy Ryan Hart, Master Commissioner Cause No. 49G23-0811-FC-267386

December 22, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Theodore Briscoe appeals his convictions for class C felony possession of cocaine and class A misdemeanor possession of marijuana. The sole issue presented for our review is whether the trial court abused its discretion when it admitted evidence of cocaine and marijuana seized from his person and from his vehicle. We affirm. Facts and Procedural History At approximately 2:15 a.m. on November 20, 2008, Detective Wyonne Hale of the Indianapolis Metropolitan Police Department ("IMPD") was driving on the east side of Indianapolis. Detective Hale was dressed in plain clothes but was driving a "detective" vehicle, which was a white Impala with badges marked IMPD on the side of the wheel wells on the front of the vehicle and an IMPD license plate. Tr. at 85-86, 106-108. The vehicle was also equipped with sirens and lights inside the vehicle as well as in front of the radiator of the vehicle. As he was driving, Detective Hale noticed a car sitting in the middle of the street about three car lengths from the stop sign at an intersection. The car's engine was running and the brake lights were on. Detective Hale pulled behind the stopped vehicle and shined his spotlight inside. It appeared to Detective Hale that the driver, Briscoe, was asleep. Briscoe's head was leaned back against the seat, and his mouth was open. At that point, Detective Hale called for backup assistance. As he was waiting for backup, Detective Hale observed the car begin to slowly roll forward. Detective Hale then exited his vehicle and approached the driver's side window of the car. Detective Hale tapped on the window and said, "Police. Turn the vehicle

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off." Id. at 83-84. Briscoe appeared to wake up, looked at Detective Hale, and immediately sped away. Detective Hale rushed back to his car, activated his lights and siren, and began to pursue Briscoe. Detective Hale again radioed for backup. Detective Hale pursued Briscoe for a very short distance until Briscoe drove his car into a McDonald's drive-thru. Briscoe pulled his car directly behind another car in the drive-thru line. Detective Hale exited his vehicle with his weapon drawn and ordered Briscoe to turn off the ignition of his car and exit his vehicle. At the same time, IMPD Officer Brian Lambert arrived at the scene and parked his fully marked police cruiser behind Briscoe's car. Officer Lambert, who was in police uniform, approached the driver's side of Briscoe's car with Detective Hale. Because Briscoe did not exit his vehicle as ordered, Detective Hale opened Briscoe's door and pulled Briscoe out of the car. The officers noticed that Briscoe held in his hand a clear plastic baggie that contained a white substance. After the officers handcuffed Briscoe, through the open door of the car, the officers could see another clear plastic baggie, this one with a green leafy substance, sitting on the front seat of the vehicle. The white substance was later determined to be cocaine, and the green leafy substance was later determined to be marijuana. The State charged Briscoe with one count of class C felony possession of cocaine, and one count of class A misdemeanor possession of marijuana.1 Prior to trial, Briscoe filed a motion to suppress alleging that the stop of his vehicle violated the Fourth Amendment to the

The State originally requested an enhancement of the marijuana charge to a class D felony based on a prior conviction. The State later moved to dismiss the enhancement, which the trial court granted.

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United States Constitution and Article 1, Section 11 of the Indiana Constitution. The trial court denied his motion as untimely pursuant to a previous scheduling order issued by the court. A jury trial was held on March 17, 2009. During trial, Briscoe objected to the admissibility of the cocaine and marijuana on the grounds that his arrest violated Indiana Code Section 9-30-2-2 or, in the alternative, that the police officers lacked reasonable suspicion to stop his vehicle. The trial court overruled Briscoe's objections and admitted the evidence. The jury found Briscoe guilty as charged. Discussion and Decision We initially note that Briscoe frames the issue as whether the trial court erred when it denied his motion to suppress evidence. Because Briscoe appeals after a completed trial, the question of whether the trial court erred in denying his motion to suppress is no longer viable. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). The issue is more appropriately framed as whether the trial court abused its discretion when it admitted the evidence at trial. Washington v. State, 784 N.E.2d 584, 586 (Ind. Ct. App. 2003). We do not reweigh the

evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007). We must also consider

uncontroverted evidence in the defendant's favor. Id. An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court. Washington, 784 N.E.2d. at 587. Reasonable Suspicion

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We first address Briscoe's contention that the cocaine and marijuana evidence was obtained as a result of a "stop" of his vehicle that violated the Fourth Amendment to the United States Constitution and, thus, the evidence was inadmissible.2 Specifically, he argues that Detective Hale lacked reasonable suspicion to conduct an investigatory stop. We must disagree. The Fourth Amendment reads in part: "The right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated[.]" This protection against unreasonable seizures includes seizure of the person. California v. Hodari D., 499 U.S. 621, 624-26 (1991). The Fourth Amendment regulates nonconsensual encounters between citizens and law enforcement officials. Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003). While a full-blown arrest or a detention that lasts for more than a short period must be justified by probable cause, the United States Supreme Court has held that a brief investigative stop may be justified by reasonable suspicion that the person detained is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 31 (1968). Reasonable suspicion is satisfied where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Lyons v. State, 735 N.E.2d 1179, 1183-84 (Ind. Ct. App. 2000), trans. denied.

We note that while Briscoe mentions Article 1, Section 11 of the Indiana Constitution in his brief on appeal, he fails to provide us with an analysis of his Indiana constitutional claim separate from the federal analysis. Accordingly, he has waived any separate claim of error. Francis v. State, 764 N.E.2d 641, 647 (Ind. Ct. App. 2002). Waiver notwithstanding, pursuant to the facts of this case regarding the existence of reasonable suspicion, our state constitution renders no greater protection to Briscoe than that which he garners from the Fourth Amendment. The result is the same.

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However, it is well settled that "not every encounter between a police officer and a citizen amounts to a seizure requiring objective justification." Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans. denied. Generally, a seizure of the person does not occur until the defendant is actually detained. Hodari D., 499 U.S. at 624-26. For example, we have said that a seizure does not occur "simply because a police officer approaches a person, asks questions, or requests identification." Bentley v. State, 846 N.E.2d 300, 305 (Ind. Ct. App. 2006) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991)), trans. denied. Instead, "[d]etention turns on an evaluation, under the circumstances, of whether a reasonable person would feel free to disregard the police and go about his or her business." Finger, 799 N.E.2d at 532 (citing Hodari D., 499 U.S. at 628). A person is seized for Fourth Amendment purposes when, in view of all the attendant circumstances, the police conduct "would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Royer, 460 U.S. 491, 497 (1983). Regarding their initial encounter, we note that Detective Hale did not stop Briscoe's vehicle. Rather, Briscoe voluntarily stopped his vehicle in the middle of the street near an intersection. When Detective Hale first approached Briscoe, his purpose was to ascertain why Briscoe was stopped in the middle of the street, sleeping, with the engine still running. Detective Hale merely tapped on the window, identified himself as a police officer, and asked Briscoe to turn off the car. At that point, Briscoe drove away. Contrary to Briscoe's argument, the Fourth Amendment was not implicated during this initial encounter between

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him and Detective Hale. See State v. Carlson, 762 N.E.2d 121, 126 (Ind. Ct. App. 2002) (citing Latta v. Keryte, 118 F.3d 693, 699 (10th Cir. 1997), in which no seizure occurred where police officer approached parked vehicle and asked defendant to get out, but instead defendant drove off). Next, we conclude that Detective Hale's brief and unsuccessful vehicle pursuit of Briscoe was similarly not a seizure within the meaning of the Fourth Amendment. While the incredibly short pursuit constituted an assertion of police authority, the pursuit did not cause Briscoe to stop his vehicle or to submit to the show of authority. See Murphy v. State, 747 N.E.2d 557, 552 (Ind. 2001) (Fourth Amendment seizure did not occur when there was no physical seizure of the fleeing defendant and defendant failed to yield to law enforcement authority); see also Latta, 118 F.3d at 699 (unsuccessful pursuit of fleeing defendant on the interstate was not a "seizure" within meaning of Fourth Amendment when defendant stopped only when he approached a roadblock). The record indicates that Briscoe stopped his car when he reached the McDonald's drive-thru and pulled behind another car. There is nothing in the record to indicate that Briscoe at any time during the brief chase succumbed or intended to succumb to the show of police authority. Thus, at this point, there was still no seizure for Fourth Amendment purposes. Finally, we turn to when Briscoe stopped at McDonald's. Under the circumstances presented, Briscoe was seized and detained when he stopped in the McDonald's drive thru lane behind another vehicle, Officer Lambert pulled his police vehicle directly behind Briscoe, and Detective Hale and Officer Lambert ordered him out of the vehicle. When, as

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here, an officer initiates a Terry stop, the investigating officer is entitled to take reasonable steps to insure his own safety, including ordering a detainee to exit the vehicle. Bentley v. State, 846 N.E.2d 300, 308 (Ind. Ct. App. 2006). Still, to justify the stop, more than mere hunches or unparticularized suspicions are necessary. Finger, 799 N.E.2d at 534. An officer must be able to point to specific facts giving rise to reasonable suspicion of criminal activity. Id. At the time Detective Hale and Officer Lambert detained Briscoe at McDonald's, the officers knew the following facts: (1) Briscoe had stopped his car in the middle of the street at 2:15 a.m.; (2) the car was still running with the brake lights on; (3) Briscoe was not moving, his head was back, his mouth was open, and he appeared to be asleep at the wheel; (4) the vehicle began to roll slowly toward the intersection while Briscoe still appeared to be sleeping; (5) when awakened by Detective Hale's taps on the window, Briscoe sped off. These facts, along with the reasonable inferences arising from them, would lead an ordinarily prudent officer to believe that criminal activity had occurred or was about to occur and that further investigation was necessary. Under the circumstances, the officers had reasonable suspicion to initiate a Terry investigatory stop and briefly detain Briscoe once he stopped at McDonald's. We conclude that Briscoe's Fourth Amendment rights were not violated and, therefore, the trial court did not abuse its discretion when it admitted evidence of cocaine and marijuana at trial. Indiana Code Section 9-30-2-2 Briscoe also contends that his arrest violated Indiana Code Section 9-30-2-2 and, thus,

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the trial court abused its discretion when it admitted the evidence seized as a result of his arrest. Again, we disagree. Indiana Code Section 9-30-2-2 provides: A law enforcement officer may not arrest or issue a traffic information and summons to a person for a violation of an Indiana law regulating the use and operation of a motor vehicle on an Indiana highway or an ordinance of a city or town regulating the use and operation of a motor vehicle on an Indiana highway unless at the time of the arrest the officer is: (1) wearing a distinctive uniform and a badge of authority; or (2) operating a motor vehicle that is clearly marked a police vehicle; that will clearly show the officer or the officer's vehicle to casual observations to be an officer or a police vehicle. This section does not apply to an officer making an arrest when there is a uniformed officer present at the time of the arrest. We have stated that Indiana Code Section 9-30-2-2 was created for public policy reasons. Hatcher v. State, 762 N.E.2d 189, 191 (Ind. Ct. App. 2002). Indeed, we have concluded: "[T]he obvious intent of the legislature, in enacting I.C. 9-30-2-2, [was] to ensure that the law enforcement officers who enforce our traffic laws are either wearing a uniform and badge or driving a marked car when they effect an arrest or issue a traffic citation. Such requirements are good public policy in that they help to distinguish law enforcement officers from those individuals on our highways who, for illicit purposes, impersonate law enforcement officers." Id. (quoting Miller v. State, 641 N.E.2d 64, 69 (Ind. Ct. App. 1994), trans. denied.) Thus, the statute requires officers to be readily identifiable when they are seeking to enforce Indiana laws regulating the use and operation of motor vehicles. State v. Hart, 669 N.E.2d 762, 765 (Ind. Ct. App. 1996). Briscoe contends that because Detective Hale was neither in police uniform nor in a

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vehicle that was "clearly marked" as a police vehicle, his arrest violated Indiana Code Section 9-30-2-2. Appellant's Brief at 4. Therefore, he argues, any evidence obtained as a result of the unlawful arrest was inadmissible. However, as we concluded earlier, the record establishes that Briscoe was not detained by Detective Hale until Briscoe stopped his car in the McDonald's drive-thru. By the time Briscoe was ordered to exit his vehicle and was finally pulled from his vehicle, Officer Lambert, a uniformed officer, was present at the scene. It was only then that Briscoe was arrested. As such, Indiana Code Section 9-30-2-2 is inapplicable. We find no abuse of discretion. Affirmed. DARDEN, J., and MAY, J., concur.

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