ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DENNIS L. WOODS JEFFREY A. MODISETT
Fowler, Indiana Attorney General of Indiana
Deputy Attorney General
DONALD L. GREEN, ) ) Appellant-Defendant, ) ) vs. ) No. 04A03-9906-CR-233 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
release. Frantz asked Green for his consent to search the vehicle. Green consented. Frantz
found marijuana in the car's glove compartment.
Before trial, Green moved to suppress the marijuana on the theory that Frantz lacked a reasonable suspicion to stop Green and that the marijuana found in the vehicle was a product of the illegal stop. The trial court denied Green's motion. The trial court also overruled Green's objection to the introduction of this evidence at trial. Green was convicted of possession of marijuana. This appeal ensued.
Green contends that the trial court erred by denying his motion to suppress because Frantz lacked a reasonable suspicion to conduct the investigatory stop of Green and the marijuana was discovered as a result of this unconstitutional stop. The Fourth Amendment of the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . . Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specific and well delineated exceptions. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993). One recognized exception is where a police officer detains a person for investigative purposes. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). With regards to a Terry stop, our supreme court has stated:
An investigatory stop of a citizen by an officer does not violate that citizen's constitutional rights where the officer has a reasonably articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968); United States v. Hatch, 827 F.Supp. 536, 541 (N.D. Ind. 1993). Probable cause is not necessary. Id. Just what constitutes reasonable suspicion is determined on a case by case basis. Baran v. State, 639 N.E.2d
642, 644 (Ind. 1994). It is also determined by the totality of the circumstances.
Hatch, 827 F.Supp. at 541; Platt v. State, 589 N.E.2d 222, 226 (Ind. 1992). If
the facts known by the police at the time of the 'stop' are such that a man of
reasonable caution would believe that the action taken was appropriate, the
command of the fourth amendment is satisfied. Platt, 589 N.E.2d at 226
(citing Terry, 392 U.S. at 22, 88 S.Ct. at 1880-81).
Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind. 1997), modified on rehearing, 685 N.E.2d 698 (Ind. 1997). The State bears the burden of proving that a warrantless search falls within a proper exception to the warrant requirement. Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998).
When reviewing a trial court's ruling on a motion to suppress, we examine the evidence most favorable to the ruling, together with any uncontradicted evidence. State v. Joe, 693 N.E.2d 573, 574-75 (Ind. Ct. App. 1998), trans. denied. However, the ultimate determination of reasonable suspicion is reviewed de novo. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).
Here, the evidence reveals that Frantz stopped his car in front of Green's on a narrow lane, showed Green his badge, and began asking him questions. This was an investigatory stop to which Fourth Amendment protections applied. State v. Nesius, 548 N.E.2d 1201, 1203 (Ind. Ct. App. 1990) (even a brief stop of an automobile and detention of its occupants constitutes a seizure); Williams v. State, 611 N.E.2d 649, 651 (Ind. Ct. App. 1993), trans. denied (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991)) (consensual encounters are not seizures, but an encounter is consensual only where a reasonable person would feel free 'to disregard the police and go about his business').
Tumblin v. State, 664 N.E.2d 783, 784 (quoting Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct.
2637, 2641, 61 L.Ed.2d 357 (1979)). Similarly, Green's mere presence in an area known for
drug activity was insufficient to create a reasonable suspicion justifying Frantz's
investigatory stop.See footnote
The State contends that reasonable suspicion was unnecessary in this case because Green had waived his Fourth Amendment protections as a condition of his work release. The Benton County Sheriff testified that Green had signed an agreement in conjunction with the work release program wherein Green had agreed to waive his 4th Amendment right with regard to a search and seizure by any law enforcement officer. Record at 168. The sheriff could not produce the document Green signed, but he testified that the work release rules had been discussed with Green point by point. Record at 169.
In Purdy v. State, 708 N.E.2d 20 (Ind. Ct. App. 1999), this court held that a condition of probation requiring the probationer to submit to a search without reasonable suspicion is overly broad . . . . Id. at 23 (citing Rivera v. State, 667 N.E.2d 764, 767-68 (Ind. Ct. App. 1996) (Staton, J., concurring)), trans. denied. In so holding, we relied on the United States Supreme Court's decision in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). In Griffin, the Supreme Court held that supervision of probationers is a special need of the probation system, which permits a degree of impingement upon privacy that would not be constitutional if applied to the public at large. 483 U.S. at 875. However, the
Supreme Court specifically observed in Griffin that the permissible degree of impingement
is not unlimited. Id. The Court held that the special needs of Wisconsin's probation
system justified replacement of the probable cause standard with reasonable grounds. Id.
Like probation, a work release program is simply one point . . . on a continuum of possible punishments, and as such, work release participants do not enjoy 'the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special . . . restrictions.' Id. at 874 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Generally, work release is a more restrictive form of punishment than probation since work release participants are actually jail inmates who must return to the jail when not working or participating in other sanctioned activities. See Ind. Code § 11-12-5-2 (1998). Nevertheless, an inmate who has been released for work closely resembles a probationer. Like the probationer, the work release participant enjoys conditional liberty subject to the terms of the work release program. Id. We conclude that our holding in Purdy applies equally to the terms and conditions of work release. Therefore, a condition of work release that purports to require a participant to submit to a search or seizure without reasonable suspicion is overly broad.
Frantz lacked reasonable suspicion to conduct an investigatory stop of Green. Moreover, the terms of Green's work release could not justify an investigatory stop of Green while he was on work release without reasonable suspicion. Accordingly, the marijuana
found in Green's vehicle was obtained as the result of an improper investigatory stop. The
trial court erred by denying Green's motion to suppress.
NAJAM, J., and RUCKER, J., concur.
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