STATE OF INDIANA v. J.D., Appellee-Defendant. (2003)

MEMORANDUM DECISION - NOT FOR PUBLICATION

Case Summary

The State appeals the trial court's order granting J.D.’s motion to suppress and sua sponte dismissal of charges. In particular, the State contends that the trial court erred when it granted J.D.’s motion to suppress based on the lack of probable cause to arrest and that the breath test results and contents of J.D.’s knapsack should not have been suppressed. Additionally, the State argues that the trial court overstepped its bounds by sua sponte dismissing the charges filed against J.D.

We find that there was probable cause to arrest J.D., but because the record is not sufficiently developed to determine when the search of the knapsack occurred, we reverse the trial court's suppression of evidence and remand to the trial court for further proceedings regarding whether this search was incident to arrest. Further, we remand for the trial court to determine whether the State is entitled to rely on the statutory presumption regarding J.D.’s level of intoxication. Finally, because we find that the trial court lacked the authority to dismiss the charges, we reverse and remand with instructions for the trial court to reinstate the charges.

Facts and Procedural History

At approximately 11:30 p.m. on May 28, 1998, officers from the Fort Wayne Police Department were dispatched to an automobile accident located at a heavily traveled intersection. Upon arriving on the scene at 11:38 p.m., the officers discovered an automobile that had collided with a tree located on city property. There was no one inside the vehicle, and the doors were all locked. A witness to the collision, however, informed the officers that a man who looked to be in his twenties had exited the vehicle and left the scene. The witness also noted that the man who left the scene was wearing a white shirt and brown pants and had a goatee.

Officer John Shenk encountered a person in an alley a few blocks away from the site of the accident who matched the description of the person who was spotted exiting the vehicle and leaving the scene. This person was later determined to be J.D., the registered owner of the vehicle that had collided with the tree. Officer Shenk observed that J.D. smelled of alcohol; was unsteady on his feet; and had slurred, mumbled speech. While performing a pat-down search of J.D. for officer safety reasons, the keys to the vehicle that collided with the tree were recovered from J.D.’s person.¹ A subsequent search of the knapsack that J.D. had with him uncovered a bottle of wine and paraphernalia used for smoking marijuana. Officer Shenk then transported J.D. so that a chemical breath test could be administered to determine J.D.’s level of intoxication. The chemical breath test, which was administered at 12:19 a.m., indicated that J.D.’s breath alcohol content was 0.19.²

The State charged J.D. with Operating a Vehicle While Intoxicated as a class D felony,³ Reckless Possession of Paraphernalia as a class A misdemeanor,⁴ and Being an Habitual Substance Offender.⁵ J.D. filed a motion to suppress the results of the chemical breath test and “all other just and proper relief in the premises.” Appellant's App. p. 28. Following the suppression hearing and submission of a post-hearing memorandum of law by J.D., the trial court issued an order suppressing “all items contained in the knapsack.” Appellant's App. p. 37. Additionally, the trial court found “Defendant's proximity to a wrecked vehicle registered and titled in his name is not probable cause that Defendant had exercised custody or control over operation of the vehicle and to offer Defendant a BAC test and arrest Defendant.” Id. Based on the foregoing, the trial court sua sponte dismissed the pending charging informations and discharged J.D. The State then initiated this appeal.

Discussion and Decision

The State contends that the trial court erred in granting J.D.’s motion to suppress evidence obtained as a result of a search incident to a lawful arrest. Further, the State argues that the trial court overstepped its bounds by sua sponte dismissing the charges filed against J.D. We address each argument in turn.

I. Motion to Suppress

The State challenges the trial court's order granting J.D.’s motion to suppress his chemical breath test results and the evidence recovered from his knapsack. At the suppression hearing, the State had the burden of demonstrating the constitutionality of the measures it used to secure evidence. State v. Stamper, 788 N.E.2d 862, 864 (Ind. Ct. App. 2003), trans. denied. Thus, on appeal from the grant of a motion to suppress, the State appeals from a negative judgment and must show the trial court's ruling on the suppression motion was contrary to law. Id. This Court will reverse a negative judgment only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that reached by the trial court. Id. In reviewing the trial court's decision, we consider the evidence most favorable to the ruling together with any adverse evidence that is uncontradicted. State v. Glass, 769 N.E.2d 639, 641 (Ind. Ct. App. 2002), trans. denied.

At the outset, we reiterate:

[T]he traditional question which arises when police officers effect an arrest without a warrant is whether the officers, at the time they acted, had probable cause to seize. If they did, then public policy in detecting and prosecuting criminal offenders outweighs the value of having the arresting officers choose and enunciate the correct legal theory for the arrest. Accordingly, a search made incident to an arrest will be upheld if the police had probable cause, in fact, to arrest the person searched. This is true even where the police announce as a reason for the arrest a charge upon which they lack probable cause.

Dolan v. State, 178 Ind. App. 127, 134, 381 N.E.2d 543, 548 (1978) (internal citations omitted), reh'g denied.

Here, the police had multiple grounds for arresting J.D. At a minimum, the police had probable cause to arrest J.D. for operating while intoxicated, Indiana Code § 9-30-5 et seq.; public intoxication, Indiana Code § 7.1-5-1-3; and leaving the scene of an accident, Indiana Code §§ 9-26-1-4, 9-26-1-8. See Cornett v. State, 536 N.E.2d 501, 504 (Ind. 1989) (opining that probable cause exists when, at the time of arrest, the arresting officers have knowledge of facts and circumstances that would warrant a man of reasonable caution and prudence to believe that a suspect committed the criminal act in question); Rybolt v. State, 770 N.E.2d 935, 942 (Ind. Ct. App. 2002) (positing that the evidence required to establish probable cause for an arrest is less than that necessary to establish guilt), trans. denied. Moreover, there was an outstanding warrant for J.D.’s arrest. Thus, the trial court's finding of no probable cause was erroneous.

While we are able to determine the existence of probable cause to arrest on the record before us, the record does not permit us to determine whether the search of the knapsack occurred incident to arrest, as the State contends. Ordinarily, it is the State's burden to prove that a warrantless search falls within an exception to the warrant requirement. The State, however, offered no such proof at the suppression hearing. This is so because the search of the knapsack was not the focus of J.D.’s motion for suppression.⁶

In his Motion to Suppress, J.D. only argues that the State cannot show that the chemical test was administered to J.D. in compliance with Indiana Code §§ 9-30-6-2 and 9-30-6-5.⁷ J.D. makes no claim in the motion to suppress that the knapsack contents should be suppressed. Likewise, the central focus at the hearing on the motion to suppress was on whether the test was timely administered.⁸ Moreover, while in J.D.’s post-hearing memorandum he summarily posits that the search of the knapsack exceeded the scope of a Terry search in his Statement of Facts, he fails to develop any argument regarding the issue. Instead, J.D. directs the trial court's attention back to the timeliness of the administration of the test issue. Based on the foregoing, we find that the State was not on notice that the constitutionality of its search of J.D.’s knapsack was in question.

Because we find the constitutionality of the search of the knapsack was never identified as an issue in the underlying suppression proceedings, we conclude that the State's burden of showing the search fell within an exception to the warrant requirement was never triggered. Because it is now a contested issue on appeal and the record before us does not permit us to decide the issue, we remand to the trial court for a determination of whether the search of the knapsack occurred pre-arrest or post-arrest.

Additionally on remand, the trial court needs to make a determination of whether the chemical breath test was timely administered. While the admissibility of the test results does not turn on whether the test was administered within the three-hour time frame, the timeliness of the test does control whether the State may rely on the statutory presumption that the test results reflect what the defendant's level of intoxication was at the time he operated the vehicle. See State v. Stamm, 616 N.E.2d 377, 380 (Ind. Ct. App. 1993) (“The only effect of the failure to perform the test within the statutory timeframe is that the State is deprived of the rebuttable presumption provided in Section 15(b).”); see also Ind. Code §§ 9-30-6-2, 9-30-6-15.

II. Dismissal of Charges

Next, the State argues that the trial court erred by sua sponte dismissing the charges pending against J.D. We agree.

As noted above, we find there was probable cause to arrest J.D. on multiple grounds. Moreover, even if we were to assume arguendo that there was not probable cause to arrest, it was still improper for the trial court to dismiss the charges. Our supreme court has unequivocally stated that the lack of probable cause is not a proper ground on which to predicate a motion to dismiss. Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000), reh'g denied; see also Felders v. State, 516 N.E.2d 1, 2 (Ind. 1987) (“An invalid arrest does not affect the right of the State to try a case ․”). Accordingly, we reverse the order of dismissal and discharge and remand with instructions to the trial court to reinstate the charges.

Reversed and remanded.

FOOTNOTES

1.   In his brief, J.D. challenges the propriety of this pat-down search. J.D., however, did not launch a similar challenge before the trial court. Because J.D. did not raise the issue below and the trial court did not include the keys in its Order, the issue is not properly before us. Cf. infra note 6.

2.   The record indicates that there was also an outstanding warrant for J.D.’s arrest. The record does not disclose, however, when the police became aware of the arrest warrant.

3.   Ind. Code §§ 9-30-5-1(a), 9-30-5-3.

4.   Ind. Code § 35-48-4-8.3(c).

5.   Ind. Code § 35-50-2-10.

6.   Even though J.D. did not explicitly attack the search of his knapsack below, we address the issue on appeal because the trial court ordered these items suppressed. Cf. supra note 1.

7.   J.D. appears to have abandoned his claim that the chemical breath test was not administered in accordance with Indiana Code § 9-30-6-5, which bars the admissibility of breath test results unless the test is conducted in compliance with the standards and regulations set forth in Title 260 of the Indiana Administrative Code. While J.D. made an isolated reference to Indiana Code § 9-30-6-5 in his motion to suppress, J.D. made no further argument at the hearing, in his post-hearing memorandum of law, or in his appellate brief that would support that the test was not conducted in compliance with the applicable standards and regulations.

8.   Although there was limited testimony regarding the search of the knapsack, this testimony fails to shed any light on whether this search occurred pre-arrest or post-arrest.

VAIDIK, Judge

KIRSCH, J., and BAILEY, J., concur.