Glasgow v. State

99 N.E.3d 251

Daniel J. GLASGOW, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

Court of Appeals Case No. 47A04–1708–CR–1820

Court of Appeals of Indiana.

FILED March 29, 2018

Attorney for Appellant: Kristine Kohlmeier, Bedford, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caryn N. Szyper, Deputy Attorney General, Indianapolis, Indiana

Sharpnack, Senior Judge

Statement of the Case

[1] Daniel Glasgow surrendered a syringe to a police officer in response to a question posed prior to a patdown search for weapons. He was charged with, among other things, Level 6 felony unlawful possession of a syringe.¹ Following a bench trial, he was found guilty. On appeal, he challenges the admission of the syringe, contending that it was obtained as the result of an unlawful search and seizure. Finding that the trial court properly admitted the syringe, we affirm.

Issue

[2] Glasgow raises one issue for review, which we restate as whether the trial court abused its discretion in admitting the syringe into evidence.

Facts and Procedural History

[3] Around midnight on November 18, 2016, Officer Logan Smoot, who was assigned to the Lawrence County Sheriff's Department, was driving north on State Road 37 when he observed two vehicles parked one behind the other on the shoulder. One of the vehicles had its flashers on and appeared to be broken down. Glasgow and Gordon Hunt were standing near the vehicles. Officer Smoot stopped behind the vehicles and activated the emergency lights on his mirrors to warn passing traffic. As the officer approached Glasgow and Hunt on foot to offer his assistance, Glasgow walked quickly toward the officer. The officer determined that the rear vehicle belonged to Glasgow and that Hunt had driven the other vehicle to the scene. Officer Smoot recognized Glasgow from prior interactions but was not familiar with Hunt.

[4] Glasgow told Officer Smoot that he had a flat tire and that Hunt had come to assist him. The officer then asked Glasgow and Hunt for their driver's licenses. Glasgow did not have a driver's license but provided the officer with an identification card. Hunt did not have any form of identification with him, so he provided his name and date of birth. Officer Smoot contacted a police dispatcher and was informed that both Glasgow and Hunt had suspended driver's licenses. Officer Smoot also learned that Glasgow's vehicle was uninsured and the license plate was registered to another vehicle.²

[5] Instead of arresting the men, Officer Smoot asked Glasgow and Hunt if they could arrange for a ride from someone and if they needed a tow truck for the vehicles. Hunt contacted his girlfriend to pick him up. Glasgow's cell phone battery was too low to make a call.

[6] Approximately five minutes after Officer Smoot arrived at the scene, Officer Timothy Butcher, who was driving by on patrol, stopped to see if Officer Smoot needed assistance. Officer Butcher recognized both Glasgow and Hunt from previous interactions.

[7] While the officers were waiting for Glasgow and Hunt to arrange rides home, Officer Smoot stood and talked with Glasgow near the open passenger side door of Hunt's vehicle. Hunt stood near the open passenger side door of Glasgow's car. Officer Butcher was standing near Hunt. The open car door was between Hunt and Officer Butcher such that the officer's view of Hunt was partially obstructed.

[8] At some point, Officer Butcher saw Hunt bend down. Officer Butcher asked Hunt what he was doing, and Hunt responded that he was tying his shoe. Officer Butcher walked to the area where Hunt had bent down and discovered a black jewelry box, underneath a rock, about one and a half feet from the vehicle's front tire. Officer Butcher opened the box and saw a clear bag that contained a white powdery substance. He believed the substance was heroin. Officer Butcher asked Hunt if the box was his. Hunt responded that it was not. Officer Butcher handcuffed Hunt and placed him in his patrol car.

[9] While Officer Butcher was tending to Hunt, Glasgow was standing with Officer Smoot in the open doorway of the passenger side door of Hunt's car, charging his cell phone so that he could call for a ride home. Officer Smoot saw Officer Butcher escort Hunt to a patrol car. At the time, however, Officer Smoot was unaware of what Officer Butcher had found because he had not heard the exchange between Officer Butcher and Hunt concerning the jewelry box.

[10] After placing Hunt into his patrol car, Officer Butcher walked toward Glasgow and Officer Smoot. Officer Butcher asked Glasgow if the jewelry box belonged to him. Glasgow said it did not. Before patting Glasgow down, Officer Butcher asked Glasgow if he had any needles or weapons on him that would "poke us or stick us." Tr. p. 86. Officer Butcher testified that Glasgow "[s]eemed very uneasy" ... as if "he didn't want [the officers] there." Id. Glasgow told the officers he had a syringe; he pulled the syringe from his left front jacket pocket; and, in response to Officer Butcher's command, he placed the syringe on the hood of the car. The syringe appeared to have residue inside. Officer Butcher then asked Glasgow to empty the contents of his pockets onto the hood of the car, and Glasgow complied.

[11] Officer Smoot began patting Glasgow down. As he did so, he asked Glasgow if he had any drugs on his person. Glasgow indicated that he did, pointed to a folded piece of paper he already had placed on the hood of the car, and told the officers that the paper contained heroin.

[12] After the patdown was complete, the officers handcuffed Glasgow and placed him into Officer Smoot's patrol car. Glasgow was transported to jail. Hunt was released from the scene.

[13] On November 18, 2016, the State charged Glasgow with Level 6 felony possession of a narcotic drug and Level 6 felony unlawful possession of a syringe. The State later amended the charging information to add an habitual offender enhancement. On January 31, 2017, Glasgow filed a motion to suppress, seeking to suppress the syringe and the heroin found on his person. The trial court granted the motion as to the heroin that Glasgow had placed on the hood after being instructed to empty his pockets but denied the motion as to the syringe. The trial court later clarified that it did not suppress the heroin found in the jewelry box. After a bench trial, the trial court found Glasgow not guilty of possession of a narcotic drug but guilty of unlawful possession of a syringe. Glasgow subsequently pleaded guilty to the habitual offender enhancement, and the trial court sentenced him to an agreed aggregate term of four years in the Indiana Department of Correction.

[14] Glasgow now appeals.

Discussion and Decision

[15] Glasgow contends that the trial court erred in admitting into evidence the syringe that he produced prior to being searched. He maintains that the admission of the syringe into evidence violated his constitutional rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution and article I, section 11 of the Indiana Constitution because the officers were not justified in effecting a stop and conducting a patdown.

[16] A trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse such a ruling only upon a showing of an abuse of discretion. Washington v. State , 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. We will not reweigh the evidence, and we consider conflicting evidence in the light most favorable to the trial court's ruling, but we also consider any uncontested evidence favorable to the defendant. Collins v. State , 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied . When, as in the instant case, the admissibility of evidence turns on questions of constitutionality relating to the search and seizure of that evidence, our review is de novo. Jacobs v. State , 76 N.E.3d 846, 849 (Ind. 2017).

I. The Stop

A. Fourth Amendment

[17] We first address whether Officer Butcher's stop of Glasgow violated his rights under the Fourth Amendment to the United States Constitution. The Fourth Amendment's protection against unreasonable search and seizure has been extended to the states through the Fourteenth Amendment. See Berry v. State , 704 N.E.2d 462, 464–65 (Ind. 1998). "As a general rule, the Fourth Amendment prohibits a warrantless search. When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search." Id. at 465 (citations omitted).

[18] One exception to the warrant requirement was recognized by the United States Supreme Court in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). In Terry , the Supreme Court held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot" the officer may briefly stop the suspicious person and make "reasonable inquiries" to confirm or dispel those suspicions. Id. at 30, 88 S.Ct. at 1884. We have held that a consideration of the totality of circumstances should be utilized in determining whether the police had reasonable suspicion to believe there was criminal activity afoot. Wilson v. State , 670 N.E.2d 27, 31 (Ind. Ct. App. 1996). This necessarily includes a determination of whether the defendant's own actions were suspicious. Carter v. State , 692 N.E.2d 464, 467 (Ind. Ct. App. 1997). While nervousness alone is not enough to support reasonable suspicion, nervousness can constitute reasonable suspicion supporting an investigatory stop when combined with other factors. Campos v. State , 885 N.E.2d 590, 597 n.2 (Ind. 2008) (citing Finger v. State, 799 N.E.2d 528, 534–35 (Ind. 2003) ).

[19] If a police officer has a...