Webster v. State

BAKER, Chief Judge,

dissenting.

I respectfully dissent from the majority's determination that Trooper Parch-man's warrantless search of Webster's purse violated her rights under Article 1, Section 11 of the Indiana Constitution.

As the majority points out, the legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the cireum-stances. Op. at 291-92 (citing Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005)). The Litchfield court also determined that the reasonableness of a search or seizure turns on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred; 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities; and 3) the extent of law enforcement needs. 824 N.E.2d at 861.

At the outset, I acknowledge Trooper Parchman's testimony that "it's not unusual for a woman to have a cloth purse that is sagging[.]" Tr. p. 18. Moreover, I do not quarrel with the majority's observation that purses may contain "a variety of objects that can cause them to bulge or stretch." Op. at 292. However, I part ways with the conclusion that Trooper Parchman's concern that Webster was carrying a gun was based on "mere speculation." Op. at 292.

The evidence established that Webster held onto her purse and continued reaching inside it after Trooper Parchman instructed her-on at least two occasions-not to do so. Moreover, Webster continued clutching her purse, tightened her grip, and pulled it away from Trooper Parchman after he told her to release it. Supp. Tr. p. 12-13. When considering the circumstances here, including the bulge in Webster's purse and her actions, such as the continued disobedience of Trooper Parchman's demands that she not reach into the purse, I cannot agree with the majority's declaration that Trooper Parch-man's level of suspicion could not have "increase[d]." Op. at 292.

In my view, all of these factors-coupled with the fact that the suspect vehicle dropped Webster off on the other side of the road-afforded Trooper Parchman with the reasonable suspicion that criminal activity was afoot. Moreover, the evidence supported Trooper Parchman's concern that Webster was carrying a gun in her purse. Although Trooper Parchman was not certain that Webster was in possession of a firearm, such certainty is not required. See A.M. v. State, 891 N.E.2d 146, 149 (Ind.Ct.App.2008) (holding that in conducting a reasonable search for weapons for the police officer's protection in accordance *295with Terry v. Ohio,1 the issue is whether a reasonably prudent person under the circumstances would be warranted in believing that his safety or that of others was in danger) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968)).

Finally, when considering the remaining factors of the reasonableness test announced in Litchfield, it is apparent to me that the method of the search would have been only minimally intrusive. More specifically, had Webster handed Trooper Parchman the purse, he could have quickly examined it and determined whether it contained a weapon. Moreover, the evidence showed that there was a significant law enforcement need because the cireum-stances set forth above established that Trooper Parchman was concerned for his own safety. And, other than searching Webster's purse, Trooper Parchman would have had no other way of ascertaining whether Webster was carrying a weapon.

In sum, I believe that Trooper Parch-man's actions were reasonable. As a result, the trial court did not abuse its discretion in admitting the cocaine into evidence and I would affirm Webster's conviction.

. 392 U.S. 1, 88 S.Ct. 1868, 20 LEd.2d 889 (1968).