ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sarah L. Nagy Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
CLARENCE WHITE, )
Defendant-Appellant, )
)
v. ) 49S00-0101-CR-9
)
STATE OF INDIANA )
Plaintiff-Appellee. )
)
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APPEAL FROM THE MARION SUPERIOR COURT
Cause No. 49G20-0003-CF-041138
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On Direct Appeal
August 1, 2002
DICKSON, Justice
The Defendant, Clarence White, was convicted of dealing in cocaine,
possession of cocaine, possession of marijuana, and operating a vehicle
after a lifetime suspension. He challenges his conviction, presenting the
following issues for our review: (1) whether the search of the vehicle he
was driving violated the Indiana or United States Constitutions; (2)
whether the trial court erred in admitting statements the defendant made
before he was read his Miranda rights; and (3) whether the evidence is
sufficient to support the defendant's conviction. We affirm.
The defendant first contends that the warrantless search of the car
he was driving violated the Fourth Amendment of the United States
Constitution and Article I, Section 11 of the Indiana Constitution, and
therefore the trial court should have suppressed the crack cocaine that was
found as a result of the search. The defendant was driving in Indianapolis
when two police officers observed him changing lanes without signaling.
The officers stopped him, and one officer approached his car and asked to
see the defendant's license and registration. The defendant produced only
his license. The officers noticed the odor of marijuana coming from the
vehicle, and asked the defendant if he had anything illegal in the vehicle
with him, such as marijuana or guns. The defendant stated that he had some
"weed," and pulled a marijuana cigarette from his shirt pocket and handed
it to one of the officers. Meanwhile, upon checking the defendant's
license, the officers discovered that the defendant was driving while his
license was suspended for life as a habitual traffic offender. The
defendant was placed under immediate arrest for possession of marijuana and
driving while his license was suspended for life. One of the officers then
conducted a search of the vehicle, discovering what he suspected to be four
marijuana cigarettes inside a pouch attached to the driver's seat of the
car. Based on what they had found, they requested a K-9 narcotics dog to
search the rest of the car. When the dog arrived and searched the car, it
alerted in the area of the fuse panel of the vehicle. When the fuse panel
was removed, the officers discovered a clear plastic bag containing 29 more
plastic bags, each of which contained crack cocaine.
At trial, the defendant objected to the admission of the crack
cocaine on chain of custody grounds only. A party may not object on one
ground at trial and raise a different ground on appeal. Brown v. State,
728 N.E.2d 876, 878 (Ind. 2000). Therefore, this issue is waived for
review. Nevertheless, the search was proper. Because the defendant does
not argue that the search and seizure provision in the Indiana Constitution
requires a different analysis than the federal Fourth Amendment, his state
constitutional claim is waived, and we consider only the federal claim.
Warren v. State, 760 N.E.2d 608, 610 n.3 (Ind. 2002); Williams v. State,
724 N.E.2d 1093, 1097 n.5 (Ind. 2000); Brown v. State, 703 N.E.2d 1010,
1015 n.4 (Ind.1998); Fair v. State, 627 N.E.2d 427, 430 n.1 (Ind. 1993).
The United States Constitution protects against "unreasonable searches and
seizures," and generally requires a warrant. U.S. Const. amend. IV. When
a search is conducted without a warrant, the State must prove that an
exception to the warrant requirement existed at the time of the search.
Hollowell v. State, 753 N.E.2d 612, 615 (Ind. 2001). A search incident to
a lawful arrest is one such exception. Chimel v. California, 395 U.S. 752,
762, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694 (1969). Under this
exception, an officer may conduct a warrantless search of the arrestee's
person and the area within his or her immediate control. Id. If a
defendant is arrested in an automobile, officers are permitted to search
the entire passenger compartment of the vehicle, including "closed or open
glove compartments, consoles, or other receptacles located anywhere within
the passenger compartment, as well as luggage, boxes, bags, clothing, and
the like." New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69
L.Ed.2d 768, 775, (1981).
In this case, officers had probable cause to arrest the defendant
based on his possession of marijuana, and because he was operating a motor
vehicle while his license was suspended for life. The officers' search of
the passenger compartment of the car, and the fuse panel within the
passenger compartment, was proper because the search was conducted incident
to a lawful arrest of a defendant who was in the automobile. Admission of
the crack cocaine they discovered in their search at trial was not error.
The defendant's second argument is that his statements to the
arresting officers were not admissible in court because he was not read his
Miranda rights before he made the statements. Specifically, the defendant
contests the admissibility of two statements. First, as the officers
removed the cocaine, the defendant stated to one of the officers, "Man, I
knew I was done for when you guys called for the K-9 but I wanted to see
with my own two eyes if he could find exactly where I put the dope."
Record at 182. Second, when asked what he thought of the K-9 dog's work,
he replied that the dog was "impressive." Record at 187. Rights under
Miranda apply only to custodial interrogation. Albrecht v. State, 737
N.E.2d 719, 727 (Ind. 2000); Cliver v. State, 666 N.E.2d 59, 66 (Ind.
1996). To determine whether a defendant is in custody, we apply an
objective test, asking whether a reasonable person under the same
circumstances would believe themselves to be "under arrest or not free to
resist the entreaties of the police." Torres v. State, 673 N.E.2d 472, 474
(Ind. 1996) (quoting Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995)). The
test is how "a reasonable person in the suspect's shoes would understand
the situation." Albrecht, 737 N.E.2d at 727; Loving v. State, 647 N.E.2d
1123, 1125 (Ind.1995). When the defendant made the statements, there is no
doubt that the defendant was in custody; he had been arrested and was
handcuffed. Thus, the first element of a Miranda violation is fulfilled
here.
However, the defendant was not subject to interrogation. Under
Miranda, "interrogation" includes express questioning and words or actions
on the part of the police that the police know are reasonably likely to
elicit an incriminating response from the suspect. Rhode Island v. Innis,
446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.E.2d 297, 308 (1980);
Loving, 647 N.E.2d at 1126. Volunteered statements do not amount to
interrogation. Hopkins v. State, 582 N.E.2d 345, 348 (Ind. 1991).
The defendant's first statement, that he "wanted to see with [his]
own two eyes if [the dog] could find exactly where [he] put the dope," was
voluntary. It was an utterance not made in response to any questioning,
words or actions on the part of the police, and thus was admissible.
Alford v. State, 699 N.E.2d 247, 250 (Ind. 1998). His second statement,
that the police dog was "impressive," was made in response to an officer's
question. However, the officer's question was not "reasonably likely to
elicit an incriminating response from the suspect," and thus the
defendant's answer was not obtained through interrogation and was
admissible. See Hopkins, 582 N.E.2d at 348-49.
The defendant's final argument is that the evidence was insufficient
to support his conviction. Specifically, he argues that driving the car in
which the cocaine was found is not enough to support the inference that he
"maintained dominion and control" of the cocaine. Br. of Appellant at 22.
In addressing a claim of insufficient evidence, an appellate court
considers only the probative evidence and reasonable inferences supporting
the judgment, without weighing evidence or assessing witness credibility,
and determines therefrom whether a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt. Marcum v. State, 725
N.E.2d 852, 863 (Ind. 2000). Here, the prosecution was required to
demonstrate that the defendant "possess[ed], with intent to . . .
deliver[,] . . . cocaine or a narcotic drug, pure or adulterated."
Ind.Code § 35-48-4-1(2) (1998). Constructive possession will support a
possession conviction if the State shows that the defendant had both the
capability and the intent to maintain dominion and control over the
contraband. Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Where control
is non-exclusive, intent to maintain dominion and control may be inferred
from additional circumstances that indicate that the person knew of the
presence of the contraband. Id. at 6. The State must also prove that the
defendant intended to deliver the cocaine, but because intent is a mental
state, the trier of fact may resort to reasonable inferences based on
examination of the surrounding circumstances to determine the existence of
the requisite intent. See Chandler v. State, 581 N.E.2d 1233, 1237 (Ind.
1991).
Here, the defendant was driving his girlfriend's car, which had 29
plastic bags filled with cocaine hidden in the fuse panel. He was the only
one in the car when the car was stopped. When the defendant was arrested,
the car searched, and the drugs found, the defendant said to officers that
he had wanted "to see with [his] own two eyes if [the dog] could find
exactly where [he] put the dope." Regardless of whether or not he owned
the vehicle in which the cocaine was found, we find that his exclusive
possession of the vehicle and his statement to the police that he hid the
cocaine sufficiently demonstrates that he maintained dominion and control
of the cocaine. Also, the peculiar packaging of the cocaine is sufficient
to uphold a jury's inference that the defendant intended to deliver the
drugs.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.