ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAY T. HIRSCHAUER KAREN FREEMAN-WILSON
Cass County Public Defender Attorney General of Indiana
JOSEPH A. SAMRETA
Deputy Attorney General
COURT OF APPEALS OF INDIANA
MICHAEL S. EDWARDS, )
vs. ) No. 09A02-0009-CR-608
STATE OF INDIANA, )
APPEAL FROM THE CASS CIRCUIT COURT
The Honorable Julian L. Ridlen, Judge
Cause No. 09C01-0001-CF-6
May 9, 2001
OPINION - FOR PUBLICATION
SHARPNACK, Chief Judge
Michael S. Edwards appeals the denial of his motions to suppress and dismiss.
He raises five issues which we consolidate and restate as:
whether the judge pro tempore had the authority to conduct the suppression hearing;
whether the trial court erred in denying his motion to suppress; and
whether the trial court erred in denying his motion to dismiss.
On January 29, 2000, Logansport Police Officers Fred Rogers and Robert Smith stopped
a vehicle being driven 10 to 15 miles per hour over the speed
limit on a snow-covered road. Officer Rogers approached the driver, and Officer
Smith approached the passenger. When asked for identification, the driver of the
vehicle produced a learners permit with his picture and the name Michael Edwards.
The passenger told Officer Smith that his name was Michael Edwards and
showed the officer a pay stub with that name.
When Officer Smith returned to the vehicle to issue the driver a speeding
citation, the two officers realized that both of the men in the stopped
car had identified themselves as Michael Edwards and given the same date of
birth. The officers confronted the two men and handcuffed them for officer
safety. The passenger apologized for lying, explained that the pay stub belonged
to the driver, and identified himself as Michael Smith. He later identified
himself as both Nigel and Miguel Smith, gave the officers two different dates
of birth, and told the officers that the drivers name was Michael Edwards.
Both men appeared nervous.
Because neither of the men had a valid drivers license, and the officers
were unable to ascertain the mens identities, both men were transported to the
police station. The driver was transported in Officer Smiths vehicle. A
search of the driver at the police station revealed .14 grams of crack
cocaine in the mans left boot. A subsequent search of Officer Smiths
vehicle revealed 24 individually wrapped pieces of rock cocaine totaling 3.10 grams.
While at the police station, the passenger told the officers that he had
given his identification information to the driver so that the driver could go
to the license branch and obtain an illegal identification card. The passenger
was subsequently arrested.
See footnote Thereafter, the passenger told the officers that he had
identification at his house. Three officers accompanied the passenger to his house
and searched it with the passengers consent. The passenger gave the officers
a birth certificate with the name Michael Edwards. The passenger was returned
to the police station where he was searched. Police officers found a
baggie with seven rocks of crack cocaine weighing 1.12 grams hidden between the
Two days later, officers learned through fingerprint analysis that the passengers name was
Michael Edwards. He was charged with possession of cocaine as a Class
See footnote The information alleged that Edwards possessed three or more grams
of cocaine. Edwards filed a motion to suppress the cocaine which the
trial court denied. He then filed a motion to set aside the
order denying his motion. Specifically, he claimed that the judge pro tempore
who ruled on his motion to suppress did not have the authority to
conduct the hearing because the regular circuit county judge was in the courthouse
that day. He also filed a motion to dismiss the charges because
of insufficient evidence. The trial court denied both motions.
The first issue is whether the judge pro tempore had the authority to
conduct the suppression hearing. Edwards contends that he did not because the
regular circuit court judge was in the courthouse the day of the hearing.
In support of his argument, Edwards directs us to Survance v. State,
465 N.E.2d 1076 (Ind. 1984), rehg denied. However, pursuant to Survance, Edwards
has waived appellate review of this issue because he failed to object at
the hearing. See id at 1082.
Waiver notwithstanding, Edwardss argument must fail. Survance does not stand for the
proposition that a judge pro tempore lacks authority to conduct a hearing when
the circuit court judge is in the courthouse. Rather, in Survance, our
supreme court explained that a judge pro tempore may not properly act as
judge of the court in one room while the regular judge of that
court is exercising jurisdiction in another room. Id.
Here, we agree with the State that there is no evidence that the
circuit court judge was exercising jurisdiction in another room. We further agree
with the State that the mere fact that the elected judge may have
been in the courthouse at some point that day does not affect the
power of the judge pro tempore to act. Appellees Brief, p. 11.
We find no error here.
See Survance, 465 N.E.2d at 1082.
The next issue is whether the trial court erred in denying Edwardss motion
to suppress. Specifically, Edwards contends that the trial court should have granted
the motion because his warrantless arrest, detention and repeated searches violated the Fourth
Amendment to the United States Constitution and Article I, Section 11 of the
See footnote We disagree.
Review of the denial of a motion to suppress is similar to other
Taylor v. State, 689 N.E.2d 699, 702 (Ind. 1997).
The record must disclose substantial evidence of probative value that supports the trial
courts decision. Id. We do not reweigh the evidence, and we
consider conflicting evidence most favorably to the trial courts ruling. Id.
The Fourth Amendment to the United States Constitution and Article I, Section 11
of the Indiana Constitution protect privacy and possessory interests by prohibiting unreasonable searches
and seizures. Johnson v. State, 710 N.E.2d 925, 927 (Ind. Ct. App.
1999). Generally, a search warrant is a condition precedent to a lawful
search. Id. However, the warrant requirement is subject to a few
well-delineated exceptions. Id.
For example, a police officer may stop a vehicle when he or she
observes a traffic violation. Smith v. State, 713 N.E.2d 338, 342 (Ind.
Ct. App. 1999), trans. denied. Further, a police officer may briefly detain
a person for investigatory purposes if, based on specific and articulable facts, the
officer has a reasonable suspicion of criminal activity. Kenner v. State, 703
N.E.2d 1122, 1125 (Ind. Ct. App. 1999), rehg denied, trans. denied.
Here, Officers Smith and Rogers stopped the vehicle in which Edwards
was a passenger because it was being driven 10 to 15 miles per
hour over the speed limit on a snow-covered street. When approached by
Officers Smith and Rogers, the driver and the passenger both identified themselves as
Michael Edwards and gave the same dates of birth. When confronted, the
passenger apologized for his dishonesty and identified himself as Michael Smith, Miguel Smith
and Nigel Smith. He also gave the officers two different dates of
birth. These specific and articulable facts justified both the stop of the
vehicle and the detention of its occupants for investigative purposes. See Kenner,
703 N.E.2d at 1126.
Further, we agree with the State that the manner in which
Edwards acted also gave police probable cause to arrest him. Appellees Brief,
p. 6. Probable cause for arrest exists where at the time of
arrest the officer has knowledge of facts and circumstances which warrant a man
of reasonable caution to believe a suspect has committed the criminal act in
question. Santana v. State, 679 N.E.2d 1355, 1359-60 (Ind. Ct. App. 1997).
Although probable cause does not exist when an officer initially stops a
suspect to investigate, probable cause to arrest may develop during the investigation.
Id. at 1360. Further, a warrantless arrest is permissible if a misdemeanor
is committed in the officers presence. Foster v. State, 633 N.E.2d 337,
346 (Ind. Ct. App. 1994), trans. denied; see also Ind. Code § 35-33-1-1.
Here, during the course of the investigatory stop, Edwards provided the officers with
four different names and three different dates of birth. We agree with
the trial court that these facts and circumstances would warrant a man of
reasonable caution to believe that Edwards was giving false information to a police
officer and committing an offense such as false informing, a misdemeanor.
Further, we note that a police officer may execute a warrantless search of
a person if the search is incident to a lawful arrest.
v. State, 701 N.E.2d 277, 280 (Ind. Ct. App. 1998). Here, the
officers found the cocaine during a search incident to Edwardss lawful arrest.
We find no violation of Edwardss federal constitutional rights.
Separate and apart from the federal Fourth Amendment analysis, the Indiana Constitution
provides an independent prohibition against unreasonable searches and seizures under Article I, Section
Ben-Yisrayl v. State, 690 N.E.2d 1141, 1152 (Ind. 1997), rehg denied,
cert. denied, 525 U.S. 1108, 119 S.Ct. 877, 142 L.Ed.2d 777. Such
challenges are analyzed under an independent reasonableness standard. Id.
Here, the officers stopped a car that was speeding on a snow-covered street.
Both the driver and the passenger gave the officers the same name
and date of birth. Edwards subsequently apologized to the officers for his
dishonesty and gave them three additional names and two additional dates of birth.
Based upon the foregoing actions, the officers arrested Edwards and searched him
pursuant to the arrest. We agree with the State that the search
and seizure of Edwards was reasonable. See Ben-Yisrayl, 690 N.E.2d at 1152.
The third issue is whether the trial court erred in denying Edwardss motion
The State alleged that Edwards possessed three or more grams of cocaine and
charged him with a class A felony. In his motion to dismiss,
Edwards argued that the cocaine allegedly recovered from him weighed only 1.12 grams.
He therefore asked the trial court to dismiss the case because of
insufficient evidence. However, as the State correctly points out, [m]otions to dismiss,
before trial, directed to the sufficiency of the evidence, are improper. State
v. Houser, 622 N.E.2d 987, 988 (Ind. Ct. App. 1993), rehg denied, trans.
denied (quoting State v. Nesius, 548 N.E.2d 1201, 1205 (Ind. Ct. App. 1990)).
The trial court, therefore, did not err in denying Edwardss motion to
For the foregoing reasons, we affirm the decision of the trial court.
Mathias, J. concurs
Sullivan, J. concurs in part and dissents in part with separate opinion
COURT OF APPEALS OF INDIANA
MICHAEL S. EDWARDS, )
vs. ) No. 09A02-0009-CR-608
STATE OF INDIANA, )
SULLIVAN, Judge, concurring in part and dissenting in part
I concur in the conclusion of the majority that probable cause existed for
of Edwards for an offense such as false reporting or some other crime
involving the use of false names and/or permitting unlawful use of his identification
by the driver of the vehicle. I respectfully dissent, however, from the
majoritys conclusion that the strip search of Edwards was constitutional merely because it
was incident to his arrest. It is true that the police may
conduct a warrantless search of the arrestees person and the area within his
immediate control. Culpepper v. State, 662 N.E.2d 670, 675 (Ind. Ct. App.
1996); Chimel v. California, 395 U.S. 752, 763 (1969), rehg denied. Nevertheless,
the legitimacy of Edwardss arrest on a minor offense does not justify the
jail-house strip search here involved.
In Bell v. Wolfish, 441 U.S. 520, 558 (1979), inmates at a federally
short-term custodial facility designed primarily to house pre-trial detainees were required to expose
their body cavities for visual inspection as a part of a strip search
conducted after every contact visit with a person from outside the institution.
The Bell court, citing security concerns about the smuggling of contraband into
the jail, held that such searches were reasonable even though they were based
upon less than probable cause. Id. at 559-60.
However, as many courts have since recognized, the Bell decision does not
validate strip searches of all arrestees. Wilson v. Shelby County, Ala., 95
F. Supp 2d 1258, 1262 (N.D. Ala. 2000). Indeed, most federal Circuit
Courts of Appeals have held that individuals arrested for relatively minor offenses may
not be routinely strip
See footnote In
Mary Beth G. v. City of Chicago, 723 F.2d 1263,
1273 (7th Cir. 1983), the Seventh Circuit Court of Appeals held that, absent
reasonable suspicion that an offender was concealing weapons or contraband, the police could
not routinely strip search misdemeanor offenders detained awaiting the posting of bond.
I would adopt the reasoning of the Seventh Circuit and hold that, before
the police may strip search an individual detained for a minor offense, such
as Edwards, they must have a reasonable suspicion that the defendant was in
the possession of weapons or contraband.
Here, there was no reasonable suspicion that a strip search and visual inspection
Edwardss buttocks would reveal any evidence or contraband in connection with the offense
for which Edwards was apparently arrested, i.e. False Reporting,See footnote a Class B misdemeanor.
Nor was there even a hint that Edwards had drugs or weapons
secreted on or about his person.
Prior to the jail-house strip search, Edwards was patted down and searched at
scene of the traffic stop. Nothing was found. Likewise, a search
of the car at the scene revealed no sign of drugs or contraband.
Edwards even consented to a search of his apartment, where a police
canine unit found nothing. Only when Edwards was returned to the jail
and strip searched was the cocaine found.
Any suspicion which may have existed when the police discovered cocaine on the
driver was dissipated by subsequent events. One might with good reason say,
with respect to continued detention and multiple searches, that enough is enough.
The strip search, despite being incident to Edwardss arrest, was not reasonable with
regard to either the Fourth Amendment or Article 1, Section 11.
I would therefore reverse the trial courts decision and hold that any evidence
discovered in the course of the unreasonable search of Edwards be suppressed.
Footnote: The record is silent as to the reason for the arrest.
Footnote: Ind. Code § 35-48-4-1.
Footnote: Edwards also argues that the Judge Pro Tempore . . .
unconstitutionally and improperly asserted his thought process into this matter as an advocate
for the State of Indiana rather than as a detached and neutral magistrate.
Appellants Brief, p. 23. Edwards has waived appellate review of this
issue because he failed to object at the suppression hearing.
465 N.E.2d 1076. Further, Edwards has failed to direct us to evidence
in the record to support his claim. Our review of the record
reveals no such evidence, and we find no error.
The Fourth Amendment to the United States Constitution provides as follows:
The right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Article I, Section 11 of the Indiana Constitution provides as follows: The
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable search, or seizure, shall not be violated; and no warrant
shall issue, but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
Footnote: Ind. Code § 35-44-2-2(c) provides in pertinent part that a person
who . . . gives false information in the official investigation of the
commission of a crime, knowing the . . . information to be false
. . . commits false informing, a class B misdemeanor.
Footnote: We note that police officers searched Edwardss house with his consent.
Consent is one of the exceptions to the warrant requirement.
v. Foreman, 662 N.E.2d 929, 931 (Ind. 1996).
See, e.g., Swain v. Spinney, 117 F.3d 1, 5 (1st Cir.
1997); Weber v. Dell, 804 F.2d 796, 800 (2d Cir. 1986), cert. denied,
483 U.S. 1020 (1987); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.
1981), cert. denied, 455 U.S. 942 (1982); Stewart v. Lubbock County, Tex., 767
F.2d 153, 156-57 (5th Cir. 1985), cert. denied, 475 U.S. 1066 (1986); Masters
v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989), cert. denied, 493 U.S.
977; Tinetti v. Wittke, 479 F. Supp. 486, 491 (E.D. Wis. 1979), affd
620 F.2d 160 (7th Cir. 1980) (per curiam); Jones v. Edwards, 770 F.2d
739, 742 (8th Cir. 1985); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446
(9th Cir. 1991); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984);
Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th Cir. 1992);
see also Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 5.3(c) at 143-45 (3d ed. 1996).
Of course, the case would be different if Edwards had been
arrested for a crime such as drug possession or assault, which itself might
give rise to a reasonable suspicion that the defendant may be concealing weapons
See Mary Beth G., 723 F.2d at 1273.
Ind.Code § 35-44-2-2(c) (Burns Code Ed. Repl. 1998).