Clark v. State

Hoffman, J.

Defendant-appellant Jerome Clark was charged by information with unlawfully possessing a controlled substance, to-wit: heroin. Trial to the court resulted in a finding of guilty, and Clark was sentenced to the custody of the Department of Correction for a determinate period of two years. He subsequently filed a motion to correct errors which was overruled by the trial court, and perfected this appeal.

The sole issue to be decided is whether the trial court erroneously overruled Clark’s in-trial motion to suppress the *660heroin, which was seized from Clark’s person during a search incident to arrest.

The evidence in the record before us most favorable to the trial court’s ruling on the motion to suppress reveals that on June 26, 1974, Fort Wayne Police Officers Hoover and Gonzales were on routine patrol in downtown Fort Wayne. At approximately 4:00 P.M., the officers received a radio dispatch stating that a security guard at St. Joseph’s Hospital had observed “two suspicious subjects” leaving the hospital premises in a black Cadillac bearing a 1974 Indiana license number 2D 9700; that “[t]hey were black”, and that one of them was armed with a handgun concealed in a brown handbag. Approximately five minutes later, the officers observed the above described automobile and occupants traveling north on Harrison Street. The Cadillac stopped in response to the officer’s signal, whereupon the officers asked both the driver and appellant to get out of the automobile and place their hands on the trunk. Officer Gonzales then conducted a brief search of the automobile’s interior but failed to discover either a brown handbag or a gun. At approximately this time, Officers Armstrong and Pyne arrived at the scene.

The officers asked Clark and his companion to step up under an awning because it had started to rain. Officer Hoover then asked the pair for identification, and simultaneously radioed headquarters to ascertain whether any warrants were outstanding for either subject. The officers at the scene were advised that an arrest warrant was outstanding for Clark as a result of his failure to appear for a court appearance on a traffic violation. Because Clark would have to be taken into custody pursuant to the outstanding arrest warrant, Officer Armstrong thoroughly searched his person and discovered an amber colored vial containing what later proved to be heroin.

Clark contends that the vial and heroin should have been suppressed for two reasons. First, he contends that the initial stop of the vehicle was illegal. He bases this contention on *661alleged infirmities of the police dispatch, to-wit: “the complete absence of any physical description of the occupants of the vehicle, and the fact that the information was received from a source whose credibility and reliability were not established, * * Secondly, he contends that if the initial stop were lawful “[t]he intensity and scope of the police officers’ action made this detention unreasonable, and, therefore, unlawful under the Fourth Amendment.”

Clark’s contention that the initial vehicle stop was illegal is without merit. Upon direct examination Officer Hoover testified that he had a chance to observe two black people in an automobile fitting the description and that this corresponded “exactly” with the dispatch he had received. Officers Hoover and Gonzales were supplied with the color, make and license number of the vehicle containing two black subjects, one of whom was reported carrying a concealed weapon. Approximately five minutes after receiving the dispatch, the officers observed the described vehicle and detained it for investigation. When the exactness of the vehicle’s description is coupled with the timeliness of the officers’ observation, the fact that the officers did not have the benefit of an exact physical description of the occupants is inconsequential. See, Luckett v. State (1972), 259 Ind. 174, 284 N.E.2d 738.

Although Clark asserts that the information was received from a source where credibility and reliability were not established, when acting upon information received in a radio dispatch, a police officer is not required to ascertain the reliability and credibility of the initial source of the information. Moreover he must of necessity rely upon the communication system of the police headquarters where, as here, the use of an automobile compels officers to act with greater speed and less hesitancy. Manson, et al. v. State (1967), 249 Ind. 53, 229 N.E.2d 801, cert, denied, 390 U.S. 995, 88 S.Ct. 1198, 20 L.Ed.2d 95. The reasonableness *662of an investigatory stop based upon information received in a radio dispatch must therefore be measured against the objective standard prescribed in Terry v. Ohio (1968), 392 U.S. 1, at 21-22, 88 S.Ct. 1868, at 1880, 20 L.Ed.2d 889, where the court stated:

“[W]ould the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”

Viewing the actions of the officers in light of the above standard and in the context of the case at bar, we are not persuaded by Clark’s argument that the initial stop was illegal.

Unlike the situation in Jackson v. State (1973), 157 Ind. App. 662, 301 N.E.2d 370, where police officers received a “tip” from an unknown informant and made an arrest in a tavern parking lot, the case at bar involved a reliable police dispatch derived from the report of a hospital security guard that one of two suspicious characters was carrying a concealed weapon which in the absence of a license would constitute not only unusual conduct but an observed crime. The stop herein was imbued with a concern for the speedy investigation of suspects using an automobile on public streets, potentially armed with a deadly weapon. Accordingly we determine that there was ample justification for experienced police officers to exercise a reasonable suspicion in detaining Clark pursuant to Terry v. Ohio, supra. See, Williams, et al. v. State (1974), 261 Ind. 547, 307 N.E.2d 457; Collett v. State (1975), 167 Ind. App. 185, 338 N.E.2d 286.

Having decided that the initial stop was lawful, we must determine whether the stop was related in scope to the circumstances which justified it in the first instance. Clark contends that when the police officers failed to find the gun or the brown handbag, their power to detain him ended.

*663*662The officers’ power to investigate was not extinguished by the fact that Officer Gonzales’ cursory examination of the *663front seat area of the automobile failed to reveal either the gun or the handbag. Where, as here, police action is predicated upon a belief that a subject is unlawfully armed, common sense demands that any potential threat of violence be neutralized before any further investigative action is undertaken. Once the potential threat to the officers in the instant case was neutralized, they were authorized, pursuant to IC 1971, 35-3-1-1 (Burns Code Ed.),1 to make reasonable inquiries concerning the identification of Clark and his companion. See, Luckett v. State, supra.

Officer Hoover’s radio call to headquarters to check on any outstanding warrants was within this reasonable scope of the investigation. Moreover it was upon discovering that a warrant was outstanding for Clark’s arrest that he was actually taken into custody. Thus in the context of an arrest based on an outstanding warrant there is no question concerning the unqualified authority of the arresting agent to search the person of the arrestee. See, Sizemore v. State (1974), 159 Ind. App. 549, 308 N.E.2d 400 (transfer denied), cert, denied, 420 U.S. 909, 95 95 S.Ct. 827, 42 L.Ed.2d 838, quoting from United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427. Only after an appropriate search incident to the lawful arrest was the vial of heroin found.

We therefore conclude that the scope of the detention was reasonably related to the precipitating circumstances, and that Clark’s motion to suppress was properly overruled.

*664The judgment of the trial court must be affirmed.

Affirmed.

Garrard, J., concurs; Staton, P.J., dissents with opinion.

. “When a law enforcement officer in a distinctive uniform, or in plain clothes after having identified himself as a law enforcement officer reasonably infers, from the observation of unusual conduct under the circumstances and in light of his experience, that criminal activity has been, is being, or is about to be committed by any person, observed in a public place said officer may stop such person for a reasonable period of time and may make reasonable inquiries concerning the name and address of such person and an explanation of his action. Said stopping and inquiry shall be limited to those matters under the enforcement jurisdiction of the particular officer and when conducted within the limits specified herein shall not constitute official custody or arrest and shall not constitute grounds for civil liability for false arrest or false imprisonment.” (Emphasis added.)