ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
KATHLEEN M. SWEENEY STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CHRISTOPHER C.T. STEPHEN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
ANTWAND JOHNSON, )
vs. ) No. 49A05-0106-CR-269
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION 2
The Honorable Robert Altice, Judge
Cause No. 49G02-0003-CF-045528
April 18, 2002
OPINION - FOR PUBLICATION
Following a jury trial, Antwand Johnson was convicted of Unlawful Possession of a
Firearm by a Serious Violent Felon, a Class B felony.
See footnote He presents
one issue for our review: whether the handgun seized from his vehicle was
the product of an unconstitutional search and seizure.
On March 19, 2000, at approximately 2:00 a.m., Indianapolis Police Department Officer Charles
Pearsey responded to a report of shots fired at a White Castle restaurant.
Officer Pearsey spoke to several individuals at the scene, some of whom
provided their names but wished to remain unidentified in any reports so they
would not have to serve as witnesses. The officer was informed that
three vehicles had been involved in the shooting. One of the vehicles
was a white Cadillac which was determined to belong to Johnson. The
witnesses informed Officer Pearsey that after the shots were fired, the shooter, a
black male with braided hair, placed a gun under the hood of the
Cadillac. The witnesses also informed Officer Pearsey that the individual then
got into the drivers side of the vehicle and fled westbound on 38th
Street, with several passengers in the vehicle. Officer Pearsey broadcast this information
over the radio.
Officer Fred Carpenter located the Cadillac being driven by Johnson. He, along
with several other officers, stopped the vehicle, and ordered Johnson and the other
individuals to get out of the car one at a time. Each
individual was patted down and handcuffed. Indianapolis Police Sergeant Randall Staab informed
Johnson of the reason for the stop and read him his Miranda rights.
Sergeant Staab asked Johnson if he would consent to a search of
his car, and Johnson told him that he could search it. Sergeant
Staab found a .45 caliber Smith and Wesson handgun hidden next to the
windshield washer fluid reservoir in the engine compartment of the Cadillac.
Johnson was charged with four counts arising out of the shooting at the
White Castle restaurant and the subsequent search of his vehicle. However, three
of the counts were dismissed the day of the trial. Before the
trial, the trial court held a hearing on a motion to suppress the
handgun seized following the search. The motion was denied, and the evidence
was admitted at trial.
Initial Stop and Arrest
As this court noted in Bovie v. State, 760 N.E.2d 1195, 1197 (Ind.
Ct. App. 2002), the three levels of police investigation are an arrest or
detention based upon probable cause, an investigatory stop based upon a reasonable and
articulable suspicion, and a consensual encounter. An investigatory stop is proper if
the facts known to the officer at the time of the stop are
such that a man of reasonable caution would believe that the action of
the officer was appropriate. Id. at 1198. Once an officer has
formed a reasonable suspicion which justifies a limited investigative stop of a vehicle,
the officer may temporarily freeze the situation in order to make an investigative
inquiry. Bogetti v. State, 723 N.E.2d 876, 879 (Ind. Ct. App. 2000).
Indiana Code § 35-33-1-1 (Burns Code Ed. Supp. 2001) provides that a police
officer may arrest a person when the officer has probable cause to believe
that the person has committed or attempted to commit a felony. An
arrest is defined as the taking of a person into custody, that he
may be held to answer for a crime. Ind. Code § 35-33-1-5
(Burns Code Ed. Repl. 1998); Gibson v. State, 733 N.E.2d 945, 953 (Ind.
Ct. App. 2000). When an officer interrupts the freedom of the accused
and restricts that individuals liberty of movement, an arrest has occurred. Gibson,
733 N.E.2d at 953. Probable cause for an arrest exists when the
facts and circumstances known to the officer at the time of the arrest
warrant a man of reasonable caution to believe a suspect has committed the
criminal act in question. Id.
Johnson first contends that the stop of his vehicle was unconstitutional because the
police officers did not have a reasonable and articulable suspicion to make a
stop based upon the tips from anonymous informants. However, in light of
the evidence presented at trial, it appears that the stop was made by
the officers as merely the means to effectuate the arrest of Johnson.
As Officer Staab testified, the first thing he did after the individuals were
removed from the car was to explain to Johnson the reason for the
stop and to advise him of his Miranda rights. By placing Johnson
in custody and advising him of his Miranda rights, Officer Staab was not
detaining Johnson for the purpose of making an investigative inquiry; rather, Johnson was
taken into custody so that he may be held to answer for a
crime. I.C. § 35-33-1-5. Therefore, the events that took place are
more appropriately addressed as an arrest, requiring probable cause, rather than as an
investigatory stop, requiring only reasonable and articulable suspicion.
Johnson asserts that the officers could not rely upon the information provided by
the witnesses in the White Castle parking lot because they were anonymous informants
and that there was no test of the information to determine whether it
was reliable. In so arguing, he relies upon several cases which require
that before an officer may use information relayed from an anonymous informant to
form a reasonable and articulable suspicion to make an investigatory stop, there must
be some independent indicia of reliability or officer observed confirmation of the informants
prediction of the defendants future behavior. See Florida v. J.L., 529 U.S.
266 (2000); Alabama v. White, 496 U.S. 325 (1990); Washington v. State, 740
N.E.2d 1241 (Ind. Ct. App. 2000), trans. denied. However, there is also a
second class of informants upon which the police may rely. Cooperative citizens
include victims of crime and eyewitnesses. Pawloski v. State, 269 Ind. 350,
354, 380 N.E.2d 1230, 1232-33 (1978). Informants of this type are considered
to be reliable for the purpose of determining probable cause unless incriminating circumstances
exist which cast suspicion upon the informants reliability. Id; State v. Johnson,
669 N.E.2d 411, 413 n.2 (Ind. Ct. App. 1996), trans. denied.
While Johnson is correct that the officers would not have been able to
rely upon the information had the informants been anonymous, the informants here are
not properly designated as anonymous informants. Rather, they should be treated as
cooperative citizens. Upon being asked at trial about whether most of the
eyewitnesses did not give him their names, Officer Pearsey responded that they did
not. He also stated that he was not aware of whether any
of the informants knew Johnson, but that no one gave him Johnsons name
if they knew it. We draw upon Officer Pearseys testimony at the
suppression hearing for clarification upon what he knew of the informants. At
the suppression hearing, Officer Pearsey testified that some of the individuals identified themselves
to him, but that he did not give their names to the Prosecutors
Office because they did not want to serve as witnesses. From this,
we see that Officer Pearsey likely had enough information to be able to
contact these individuals in the future had he needed to, and because some
gave him their names, it does not appear that they were hiding their
identities in order to protect themselves from the repercussions of fabricating a story
or reporting false information. Also, nothing in the record indicates the presence
of incriminating circumstances which should have made Officer Pearsey suspicious of these informants.
They appear to be no more and no less than individuals who
were witnesses to a shooting and who provided reliable information as cooperative citizens
upon which the police could rely in order to determine whether probable cause
existed for the arrest of Johnson. See State v. Straub, 749 N.E.2d
593 (Ind. Ct. App. 2001); Bogetti, 723 N.E.2d 876.
In order for the police to determine that probable cause existed, the facts
and circumstances related to Officer Pearsey from the cooperative citizens must have been
sufficient so that an individual of reasonable caution would believe that the driver
of the Cadillac, Johnson, was involved in the shooting. See Gibson, 733
N.E.2d at 953. The cooperative citizens stated that an individual matching the
appearance of Johnson shot the handgun in the parking lot, placed the gun
under the hood of a white Cadillac, and then proceeded to drive the
car westbound on 38th Street. Based upon the information relayed to Officer
Pearsey, the officers who made the stop had probable cause for the arrest
of Johnson. See Capps v. State, 248 Ind. 472, 229 N.E.2d 794
(1967) (holding that officers had probable cause to make an arrest based upon
information that a robber was driving a certain make, model and color of
automobile, was wearing a red and white checked shirt, had long dark hair,
and was seen driving away from the scene of the robbery at 2:00
Search and Seizure
The Fourth Amendment to the United States Constitution and Article 1, Section 11
of the Indiana Constitution protect against unreasonable searches and seizures. Wilson v.
State, 754 N.E.2d 950, 954 (Ind. Ct. App. 2001). According to Article
1, Section 11 of the Indiana Constitution, we must determine whether the reliance
by the police upon their own information in deciding to conduct a warrantless
search of an automobile was reasonable under the totality of the circumstances.
Brown v. State, 653 N.E.2d 77, 79-80 (Ind. 1995). The ultimate determination
of whether probable cause for a warrantless search exists is reviewed de novo.
Sebastian v. State, 726 N.E.2d 827, 830 (Ind. Ct. App. 2000), trans.
Johnson asserts that the officers conducted an unconstitutional search of his automobile and
illegally seized the handgun from underneath the hood. He contends that the
officers violated his rights by failing to advise him of his rights in
consenting to a search which is required according to our Supreme Courts decision
in Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975). Because
he was not advised of his rights through the Pirtle warnings, he states
that his consent to the search was invalid. The State concedes that
the Pirtle warnings were not given, but argues that consent was not necessary
as the officers had probable cause to conduct the search. As the
State concedes the issue based upon the failure of the officers to give
Pirtle warnings, we will address only the States argument regarding probable cause for
In this case, Officers from the Indianapolis Police Department responded to a report
of shots fired at a local White Castle. Upon arriving, one officer
was informed by witnesses that three vehicles were involved, was given a description
of one of the shooters and the vehicle he was driving, which contained
multiple passengers, and was told that a handgun had been stashed under the
hood of the car. Other officers, reacting to the report which was
dispatched, stopped the automobile and apprehended the driver, who fit the description of
the shooter. After removing the occupants from the automobile, the officers opened
the hood to recover the gun that was located in view on top
of the air filter and windshield washer reservoir.
Given these facts, we cannot say that it was unreasonable for the officers
to search under the hood to locate and retrieve the gun. There
was probable cause for the officers to believe that the instrumentality of a
crime, the handgun, was located underneath the hood. Were the officers to
have let the other individuals in the vehicle leave without searching or impounding
the car, the gun could have been removed and disposed of, or worse,
used to harm other persons. Our police act not only to enforce
the law, but also to protect the citizenry from harm that may befall
it. By no means could it be considered safe for an automobile
to be driven or towed with a handgun stashed underneath the hood.
There was a plausible risk that the handgun could fall from under the
hood to the ground, and thereby come into the possession of a child
or a criminal. Because the threat of harm and loss of evidence
was significant, the search and seizure was reasonable under the Indiana Constitution.
The Fourth Amendment to the United States Constitution provides similar protection against unreasonable
searches and seizures. As a general rule, a search warrant is required
in order to conduct a lawful search.
California v. Carney, 471 U.S. 386,
390 (1985); Wilson, 754 N.E.2d at 954. Searches conducted without a warrant
are per se unreasonable subject to a few well delineated exceptions. Wilson,
754 N.E.2d at 954. The State bears the burden of establishing that
a warrantless search falls within an exception to the warrant requirement. Id.
One exception to the warrant requirement is the automobile exception. Carney,
471 U.S. at 390. The scope of a warrantless search of an
automobile is defined by the object of the search and the places in
which there is probable cause to believe that it may be found. U.S.
v. Ross, 456 U.S. 798, 824 (1982). The probable cause determination must
be based upon objective facts which would justify the issuance of a warrant
by a magistrate. Id. at 808. A search is not unreasonable
under the Fourth Amendment if the facts would have justified the issuance of
a warrant, even though a warrant had not actually been obtained. Id.
The Fourth Amendment does not require a separate exigency requirement for the automobile
exception. Maryland v. Dyson, 527 U.S. 465, 466 (1999) (per curiam). If
a car is readily mobile and probable cause exists to believe it contains
contraband, the Fourth Amendment . . . permits police to search the vehicle
without more. Id. at 467 (quoting Pennsylvania v. Labron, 518 U.S. 938,
940 (1996) (per curiam)). Ready mobility was recognized by the earliest United
States Supreme Court cases as providing the basis for a warrantless search of
an automobile. Carney, 471 U.S. at 390-91; Carroll v. United States, 267
U.S. 132 (1925). As Justice Marshall wrote in his dissent in Ross,
456 U.S. at 830, the mobility rationale is a misnomer because police can
ordinarily remove the occupants of the automobile and secure the vehicle on the
spot. Further, the Supreme Court has also recognized a second justification for
the warrantless searches of automobiles, the diminished expectation of privacy in an automobile.
Labron, 518 U.S. at 940; Carney, 471 U.S. at 391; see, e.g.,
Cady v. Dombrowski, 413 U.S. 433 (1973) (allowing a warrantless search when the
mobility of the automobile was clearly not present because the automobile had been
towed to a garage following an accident). The justification for a warrantless
search does not vanish once a car has been immobilized, nor does it
depend upon the likelihood that the automobile would have been driven away in
that particular case, or that the contents of the vehicle would have been
tampered with, during the period required for the police to obtain a warrant.
Michigan v. Thomas, 458 U.S. 259, 261 (1982) (per curiam). The
warrantless search of an automobile is allowed because a warrant would not provide
significant protection of a defendants Fourth Amendment interests. Ross, 456 U.S. at
831 (Marshall, J., dissenting).
In this case, a review of the facts does not reveal whether any
of the individuals who were present in the car would have been or
were allowed to drive the Cadillac after Johnson was arrested. However, as
noted above, this determination is not necessary under Fourth Amendment analysis. Because
the Cadillac was capable of being driven, the ready mobility requirement of the
Fourth Amendment was met. Also, whether the Cadillac would have been driven
away from the scene or towed to an impoundment lot, Johnson had a
diminished expectation of privacy in the Cadillac. Therefore, the justification for a
warrantless search had been triggered. Next, the State must show that the
officers had probable cause in searching the automobile. As we discussed in
our analysis under the Indiana Constitution, the officers had probable cause based upon
facts which led them to believe that a handgun, which had been used
in a shooting, had been stashed under the hood of the Cadillac.
Therefore, the officers search of Johnsons vehicle after the stop and arrest was
reasonable because it was based upon probable cause which would have justified the
issuance of a warrant. See Cady, 413 U.S. at 446 (holding that
it was not unreasonable for officers without a warrant to search for a
handgun in the trunk of a vehicle, which had been ordered by
the police to be towed to a garage following an accident, because of
the concern that vandals may have broken into it and taken the gun).
The trial court properly admitted the handgun seized in the search of
the automobile into evidence.
The judgment is affirmed.
KIRSCH, J., and ROBB, J., concur.
Ind. Code § 35-47-4-5 (Burns Code Ed. Supp. 2001).
Footnote: The photographic exhibits depicting the gun and its location in
the engine compartment do not conclusively demonstrate that the handgun was securely held
in place by a brace.