ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW C. KRULL KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
TIMOTHY W. BEAM
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JIMMY D. CAMP, )
vs. ) No. 49A02-0009-CR-585
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Z. Mae Jimison, Judge
Cause No. 49G14-0004-DF-53265
June 20, 2001
OPINION FOR PUBLICATION
Jimmy D. Camp brings an interlocutory appeal of the denial of his motion
to suppress evidence, namely a crack pipe found in his pocket and cocaine
found in his car. He raises one issue on appeal, which we
expand and restate as 1) whether the police stop of Camps vehicle was
improper because it was used as a pretext to search his car for
drugs, and 2) whether Camps consent to the search of his car was
invalid because the officer was deceptive about his reason for the stop.
An Indianapolis police officer saw Jimmy Camp stop on a residential street in
a high-crime area at 4:30 in the morning. A passenger in Camps
car went to a house where a woman met him, spoke to him
for about twenty seconds, and appeared to give him something. The passenger
returned to the car, and he and Camp drove away. The officer
followed and stopped the car after Camp failed to make a complete stop
at an intersection.
The officer asked Camp if he could search the car, and Camp consented.
When Camp got out of the car the officer did a pat-down search
of Camp and found a crack pipe. The officer then found cocaine
on the floor of the car. Camp was charged with possession of
cocaine and possession of paraphernalia.
STANDARD OF REVIEW
A trial court has broad discretion in ruling on the admissibility of evidence,
and on review we will disturb a trial courts ruling only upon a
showing of an abuse of discretion. Sparkman v. State, 722 N.E.2d 1259,
1262 (Ind. Ct. App. 2000). In reviewing a motion to suppress, we
do not reweigh the evidence, but determine if there is substantial evidence of
probative value to support the trial court's ruling. State v. Aynes, 715
N.E.2d 945, 949 (Ind. Ct. App. 1999). We look to the totality
of the circumstances and consider all uncontroverted evidence together with conflicting evidence that
supports the trial court's decision. Id. If the basis for the
ruling on a motion to suppress is unclear, we will uphold the trial
court if a reasonable view of the evidence supports the trial courts decision.
Willsey v. State, 698 N.E.2d 784, 789 (Ind. 1998). We will
affirm the judgment of the trial court if it is sustainable on any
legal grounds apparent in the record. Alford v. State, 699 N.E.2d 247,
250 (Ind. 1998).
VALIDITY OF STOP
Camp asserts the traffic stop was a pretext for the officer to avoid
Mr. Camps constitutional protections, (Br. of Appellant at 5), and he notes the
officers testimony that he stopped Camps car to conduct an investigation, based on
everything that I had seen, the totality of all of the circumstances. (R.
at 61.) Camp concedes that pretextual traffic stops have been upheld by
the United States Supreme Court, but he urges this court to find them
improper under the independent reasonableness analysis applied under Ind. Const. art I §
Camp is correct that we have, in a number of recent decisions, expressed
our concern about such pretextual stops. Still, we must decline his invitation
to hold that such stops are per se unreasonable under the Indiana Constitution.
Our supreme court recently determined the Indiana Constitution does not prohibit pretextual
stops, Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001), but noted that
[t]he potential for unreasonable search and seizure associated with such a traffic stop
is not in the routine police handling of the observed traffic violation, but
in the ensuing police investigatory conduct that may be excessive and unrelated to
the traffic law violation. Id.
This court also recently held with some reluctance that a lawful traffic stop,
even if pretextual, is not, without more, an unreasonable search and seizure.
Callahan v. State, 719 N.E.2d 430, 437 (Ind. Ct. App. 1999). In
Callahan, a drug interdiction officer was traveling with a dog that was trained
to detect drugs. The officer stopped Callahan because his car windows were
See footnote Like Camp, Callahan gave the officer consent to search his
car after the traffic stop had been concluded. We upheld the denial
of Callahans motion to suppress the drugs the officer found:
Although we, too, are troubled by the increasingly common practice of police stopping
vehicles for minor traffic offenses and seeking consent to search with no suspicion
whatsoever of illegal contraband, all in the name of the war on drugs,
we are unwilling under the facts of this case to say that our
state constitution prohibits police from doing so. Callahan clearly and voluntarily consented
to the search of his vehicle even after being told that he was
free to go and that he did not have to cooperate with the
officer. Thus, the State met its burden of proving an exception to
the warrant requirement which rendered an otherwise unreasonable search presumably reasonable. The
trial court did not err in denying Callahan's motion to suppress.
Id. at 439. VALIDITY OF CONSENT
We share the concerns expressed by the Callahan panel. The officer who
stopped Camp testified that he almost always asks to search cars he stops
in the course of his traffic investigations in that area because of a
couple of various reasons, the location of, uh, via traffic stops, produce a
lot of narcotics or handguns. Uh, just a consent to search, its
a standard procedure in all of my traffic stops. (R. at 55.)
He also testified he did a pat-down search after stopping Camp for
the traffic violation because I have reason to think everybody has a weapon
. . . in my profession. (R. at 63) (ellipses in original).
Camp does not directly address the validity of the pat-down search except to
assert, without explanation, that it went beyond the scope of any consent given
(Br. of Appellant at 15) and that the crack pipe found in the
pat-down search was fruit of the poisonous tree. Id. at 4.
Because the evidence could support a finding Camp consented to the pat-down, see,
e.g., R. at 63 (Q: He stepped out of the vehicle, and you
said you then performed a Terry pat-down? A: After I explained
to him that the search was voluntary, he exited the vehicle, voluntarily.
I conducted a Terry pat.), we must decline to address the validity of
the pat-down search. When an individual gives permission to a search of
either his person or property, governmental intrusion thereon is presumably not unreasonable.
Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995).
We are also troubled by this officers statement that he felt his routine
Terry searches are justified because I have reason to think everybody has a
weapon . . . in my profession. Under this standard, every citizen
would be subject to a Terry search at any time solely by virtue
of that citizens interaction with the police. Because the limitations on Terry
searches exist to protect citizens from police intrusions on constitutionally-protected liberties, we emphasize
that a police officer cannot justify a Terry search simply by asserting his
status as a police officer or his experience in that profession. See
Terry v. Ohio, 392 U.S. 1, 12 (1968): Ever since its inception,
the rule excluding evidence seized in violation of the Fourth Amendment has been
recognized as a principal mode of discouraging lawless police conduct. Thus its
major thrust is a deterrent one, and experience has taught that it is
the only effective deterrent to police misconduct in the criminal context, and that
without it the constitutional guarantee against unreasonable searches and seizures would be a
mere form of words. (Citations omitted.)
Our supreme court recently invalidated a
non-consensual pat-down search conducted in circumstances that
were otherwise quite similar to those in the case before us. In
Wilson v. State, 745 N.E.2d 789 (Ind. 2001), a trooper stopped Wilson after
he turned without signaling. The trooper asked Wilson to accompany him to
his police car to investigate whether Wilson was intoxicated. He subjected Wilson
to a pat-down search [i]n keeping with the troopers personal practice of patting
down any person he intends to place in his car. Id. at
The court noted that
Terry permits a pat-down where the officer has reason
to believe that he is dealing with an armed and dangerous individual .
. . the issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others
was in danger. Id. at 792, quoting Terry, 392 U.S. at 27.
The court recognized a heightened risk of danger when an officer places
a person into a patrol car that will also be occupied by the
officer or other persons, id., but it declined to hold that police may
routinely place traffic stop detainees in a police vehicle if this necessarily subjects
the detainee to a preliminary pat-down frisk. An officer is not using
the least intrusive means to investigate a traffic stop if, without a particularized
justification making it reasonably necessary, he places a person into his patrol vehicle
and thereby subjects the person to a pat-down search. Id. at 793.
Because there was no reasonably necessary basis for placing Wilson in the police
car, the search violated the Fourth Amendment and the court therefore reversed the
trial courts denial of Wilsons motion to suppress the evidence obtained therefrom.
Most recently, our supreme court decided
Lockett v. State, No. 02S03-0004-CR-00232 (Ind. May
21, 2001). Lockett was convicted of carrying a handgun without a license
after police seized the gun during a routine traffic stop. This court
determined evidence in the form of the gun should have been suppressed at
trial on the ground that the police may not routinely question about the
presence of weapons during a traffic violation stop. Our supreme court reversed
and held the Fourth Amendment
does not prohibit police from routinely inquiring about
the presence of weapons. The specific weapons inquiry was justified by police
safety concerns, and it did not materially extend the duration of the stop
or the nature of the intrusion. Id. slip op. at 6.
Lockett majority recognized, but did not address, a division among the federal
circuits as to whether an officer may generally, during a traffic stop, ask
questions unrelated to the stop. In his concurrence, Justice Rucker opined that
the Fourth Amendment mandates that an officer have a reasonable safety concern before
making a weapons inquiry: permitting an officer to routinely inquire about the
presence of weapons during a traffic stop goes beyond the scope of the
circumstances which rendered its initiation permissible and furthermore does not require the officer
to have an objectively reasonable suspicion that his safety is threatened. Id.
slip op. at 4 (Rucker, J. concurring in result).
In the present case, Camp argues the officer had nothing more to justify
the search than inchoate suspicions or hunches (Br. of Appellant at 12) and
asserts the officer improperly conducted the search because of the neighborhoods reputation as
a high-crime area. See Swanson v. State, 730 N.E.2d 205, 210 (Ind.
Ct. App. 2000), trans. denied (facts that suspect had his hands in his
pockets and was in a high-crime area were not sufficient to justify pat-down
search). We agree, and we note that under the standards recognized in
the decisions discussed above, the officers search of Camp clearly was not justified.
However, inadequacy of the officers justification for the search is not dispositive
because we find Camp consented to the search.
When the State seeks to rely on consent to justify a warrantless search,
it has the burden of proving the consent was freely and voluntarily given.
Callahan, 719 N.E.2d at 435. Whether consent to such a search
is voluntary is a question of fact to be determined from the totality
of the circumstances. Id. The totality of the circumstances from which
the voluntariness of a detainee's consent is to be determined includes, but is
not limited to: (1) whether the defendant was advised of his Miranda
rights prior to the request to search; (2) the defendant's degree of education
and intelligence; (3) whether the defendant was advised of his right not to
consent; (4) whether the detainee has previous encounters with law enforcement; (5) whether
the officer made any express or implied claims of authority to search without
consent; (6) whether the officer was engaged in any illegal action prior to
the request; (7) whether the defendant was cooperative previously; and (8) whether the
officer was deceptive as to his true identity or the purpose of the
Camp argues his consent was not voluntary because the officer was deceptive as
to his motives, because of illegal activity by the police prior to the
See footnote and because his consent was stale. We disagree.
Callahan factors address deception as to the officers identity or the
purpose of the search, Camp appears to suggest the officer was deceptive as
to the motivation for the stop: [c]oincidentally, [Officer] Fippen pulls Camps vehicle
over three blocks later for rolling through a stop sign and gets the
opportunity through consent to search and investigate the vehicle just like he said
he wanted. (Br. of Appellant at 14.)
In arguing the officer was deceptive, Camp points to the officers testimony that
the officer suspected Camps passenger had engaged in a drug transaction even though
the officer did not see what was exchanged, and Camps passenger and the
woman at the house where Camp stopped could have been shaking hands or
exchanging a stick of gum. (R. at 60.) Camp also appears
to assert, without explanation, that his consent was invalid because the officer conducted
a pat-down search that went beyond the scope of any consent given (Br.
of Appellant at 15) and because of the officers aggressive manner in effecting
the stop of a vehicle he wanted to search. Id.
The record reflects the officer did not arrest Camp or restrain Camps liberty
in any way until after the officer discovered the crack pipe, and the
State notes that the officer twice told Camp he had the right to
refuse the search. The State argues the officer was not deceptive because
nothing in the record indicates the officer tried to hide his identity or
that the officer tried to hide the true purpose of his search, that
is, his belief that there was contraband in the car.
As explained above, we must decline to hold that a pretextual traffic stop
is per se improper; accordingly, a drivers consent to a search is not
per se involuntary solely because an officer who made a valid traffic stop
might have had additional motives for stopping the driver. We cannot say
the trial court erred in declining to suppress evidence on the ground Camp
urges, namely that the consent was involuntary because the police officer was deceptive.
Camps assertion that his consent was stale is premised on decisions from other
jurisdictions that Camp characterizes as holding voluntary consent to search a car is
spoiled when the officers ask for consent to search after the reason for
the stop has dissipated. Id. at 16. For example, in United
States v. Lee, 73 F.3d 1034 (10th Cir. 1996), a Utah police officer
stopped a car carrying an African-American driver and passenger and bearing out-of-state license
plates. The officer asserted he stopped the car because it was straddling
the center line, and he suspected the driver might be sleepy or intoxicated.
After stopping the car, running computer checks on it and on the
driver and passenger, examining the car rental documents and the drivers license and
passengers identification card, and determining the driver was not impaired, the officer asked
for permission to search the car. The driver gave permission, and the
officer found cocaine under the seat.
The Lee court dealt with the stop as a Terry stop and determined
the search was improper because an officer may not further detain or search
a suspect without consent or probable cause after investigating the suspicious circumstances that
give rise to the Terry stop. 73 F.3d at 1039. In
Lee, the officer lacked specific and articulable facts to reasonably warrant shifting the
focus of his intrusion from the traffic stop to guns and drugs.
Id. Similarly, Camp argues the purpose of his stop was accomplished when
the officer served the citation for Camps traffic violation, and the search of
the car was therefore improper.
Lee is distinguishable. The court there found Lees consent to the search
was invalid on the ground that an encounter initiated by a traffic stop
is not considered consensual unless the drivers documents have been returned to him.
73 F.3d at 1040. Because the court found a lack of
consent on that basis, and not because the officers ask[ed] for consent after
the reason for the stop had dissipated, (Br. of Appellant at 16), Lee
would appear not to apply to situations like the one before us where
there is a valid consent to the search. Lee therefore does not
require a conclusion that Camps consent was stale because the reason for the
stop had dissipated.
Because the officers stop, even if pretextual, was justified by Camps traffic violation,
and because Camps consent to the search of his car was voluntary, we
cannot say the trial court erred in declining to suppress the evidence arising
from the search. We accordingly affirm.
BROOK, J., and BARNES, J., concur.
We heard oral argument at the Elkhart Circuit Court on March 2,
2001. We gratefully acknowledge the hospitality of Judge Terry C. Shewmaker, the
staff of his court, and the Elkhart County bar, and we commend counsel
for their capable advocacy.
Footnote: Mitchell did not argue, and the court therefore did not address, whether
the totality of the circumstances supported a reasonable suspicion that would have justified
requiring Mitchell to exit the car and submit to a pat-down search.
745 N.E.2d at 787 n.3. The court did note that neither the
routine traffic stop nor Mitchells conduct after being stopped provided any basis justifying
the officers pat down search of Mitchell. This conclusion does not, however,
reflect on the propriety of the subsequent police detention of Mitchell after finding
an illegal weapon and probable drugs in the possession of Mitchells companion.
Id. at 782.
Callahans out-of-state license plate also appeared to have been expired. However,
the officer issued a warning ticket for the window tint violation only.
Footnote: Wilson did not make an independent argument that the search was invalid
under the Indiana Constitution. His case was accordingly decided on Fourth Amendment
Footnote: Lockett did not make an independent argument under the Indiana Constitution.
Lockett did not challenge the validity of the traffic stop but only the
officers inquiry regarding weapons.
Footnote: Camp does not identify or explain the illegal activity in which he
asserts the officer was engaged. Camp also invites us to apply to
the present case the following test our supreme court articulated in the context
of vehicle impoundments: a sound approach to evaluating police decisions to impound
should both accommodate the multiformity of hazards with which they must deal and
succeed in ferreting out those impoundments which are a mere pretext for other,
Fair v. State, 627 N.E.2d 427, 433 (Ind. 1993).
The Fair court noted the risk that a decision to tow will be
motivated solely by the desire to conduct an investigatory search. Id.
We decline to so apply Fair.
Lockett, our supreme court noted in the context of a traffic
stop that such a stop must last no longer than necessary to effectuate
the purpose of the stop, and that the investigative methods employed should be
the least intrusive means reasonably available to verify or dispel the officers suspicion
in a short period of time. Id. slip op. at 4, citing
Florida v. Royer, 460 U.S. 491, 500 (1983).