Overstreet v. State

ROBB, Judge,

dissenting

I respectfully dissent from the majority’s holding that the “brief encounter” between Paris and Overstreet did not constitute a Terry stop requiring reasonable suspicion of criminal activity. Op. at 663. The majority opines that because Paris did not stop Overstreet or his vehicle and did not detain Overstreet or restrict his movement in any way, this was a “casual and brief inquiry” which involves neither an arrest nor a stop and does not implicate the Fourth Amendment. I disagree.

First, I disagree with the majority’s premise that “Paris did not stop Over-street’s vehicle.” Op. at 663. The fact that Overstreet’s vehicle was already stopped, by Overstreet’s own volition, when Paris approached Overstreet does not necessarily mean that Paris did not “stop” the vehicle within the technical legal meaning of that term. We will never know whether Paris’ interest in inquiring into Overstreet’s activities would have led him to initiate a formal traffic stop had Overstreet not pulled into the gas station. The mere fact that he was not required to *665 do so under the particular circumstances of this case should have no bearing on our determination. To the extent that the majority opinion relies on the lack of a “stop,” I disagree.

It also seems to me that the “third level of investigation” to which the majority refers is merely a subterfuge in this case, to circumvent the requirement of reasonable suspicion when none exists. The case cited by the majority in support of this third level of investigation (and cases cited therein) deals with contact between police and an individual fitting a “drug courier profile.” See Molino v. State, 546 N.E.2d 1216, 1217 (Ind.1989). In Florida v. Rodriguez, 469 U.S. 1 , 105 S.Ct. 308 , 83 L.Ed.2d 165 (1984), the Supreme Court held that contact between officers and an individual meeting a drug courier profile where the individual is merely asked if he will step aside and talk with them is a consensual encounter which does not implicate a Fourth Amendment interest. Id. at 5-6 , 105 S.Ct. 308 . However, the Supreme Court also stated in the alternative that even if a Fourth Amendment seizure had occurred, it was justified on the basis of an articulable suspicion. Id. Clearly, there is no articulable reasonable suspicion here: Overstreet was observed looking into his own mailbox at 6:00 a.m. and then “hurriedly” walking to his own car and driving to a nearby gas station to put air in his tires. The officer did not see Overstreet either put something into or take something out of the mailbox. He was “suspicious” because he did not know Overstreet and did not know what he was doing. R. 68. None of this amounts to reasonable suspicion of criminal activity.

Furthermore, I do not believe this to be a “consensual encounter” without Fourth Amendment implications. It was Paris’ fortuitous good luck in this regard that Overstreet stopped at the gas station and he was not, therefore, required to stop Overstreet’s vehicle. However, I would not characterize the encounter as consensual from Overstreet’s point of view. Despite our many statements to the contrary, I do not think that any reasonable person, when approached by a police officer and questioned about his activities, would honestly feel free to refuse to answer or to leave. And even more to the point, how many people know that they have such a right? Could not refusing to cooperate be sufficient to arouse suspicion and warrant further investigation? See Illinois v. Wardlow, — U.S. -, 120 S.Ct. 673, 676 , 145 L.Ed.2d 570 (2000) (acknowledging previous cases which have held that nervous, evasive behavior is a factor in determining reasonable suspicion, as is presence in a high crime area and unprovoked flight).

In a situation such as this, it truly seems that one is “damned if he does, damned if he doesn’t.” I would reverse the trial court’s denial of Overstreet’s motion to suppress.