Opinion
24A-CR-674
12-10-2024
Daris Eshon Boles, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Thomas P. Keller South Bend, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the St. Joseph Superior Court The Honorable Jeffrey L. Sanford, Judge Trial Court Cause No. 71D03-2212-F4-66
ATTORNEY FOR APPELLANT
Thomas P. Keller
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Shepard, Senior Judge.
[¶1] Daris Eshon Boles appeals his convictions of Level 4 felony unlawful possession of a firearm by a serious violent felon; Level 6 felony possession of cocaine; and Level 6 felony resisting law enforcement. Boles, who fled from the police by car and then on foot, claims the trial court should not have admitted evidence found as a result of the chase because the officers were not in uniform and were not driving marked police vehicles. Concluding the record shows that one of the officers drove an appropriately marked vehicle, we affirm.
Facts and Procedural History
[¶2] On December 12, 2022, Officer Ryan Rush of the South Bend Police Department was part of a task force patrolling in a South Bend neighborhood. He was in civilian clothes and drove an unmarked vehicle.
[¶3] At a convenience store, Officer Rush saw Michael Bishop, who he recognized due to previous "anonymous complaints." Tr. Vol. 2, p. 42. Bishop was with a man Officer Rush did not know, who was later identified as Boles. The men entered a silver Mercury, and Boles drove off. Officer Rush followed. When he saw Boles make a turn without signaling, he radioed other officers to make a traffic stop.
[¶4] Officer Damon Lim was working with Officer Rush in the same task force. He drove a gray unmarked police vehicle with a siren, and red and blue lights mounted inside the car. In addition, Officer Lim wore grey cargo pants and a black hoodie, over which he wore a ballistic vest. The vest displayed his badge and the initials of the South Bend Police Department. When Officer Lim heard Officer Rush request a stop of the silver Mercury, he drove up behind it and activated his lights and siren.
[¶5] Officer Jeffery Diggins was also working with the task force. He drove a fully-marked police car, with decals, overhead red and blue lights, and a siren. Diggins followed Officer Lim's vehicle, also with lights and siren activated.
[¶6] Boles initially stopped but then sped off, and Officers Lim and Diggins followed. After fleeing for several blocks, Boles stopped the car and both men jumped out, running in different directions.
[¶7] Officer Lim radioed for assistance, and Officer Taylor Tobias responded. As Officer Tobias was driving near the area of the stop, bystanders pointed out Boles, who was running away from Officer Tobias' vehicle. The officer followed Boles and detained him. Other officers, including Officer Diggins, arrived where Boles was being detained.
[¶8] Next, Officer Tobias searched in the direction from which Boles had been running and found two coats on the ground next to a building. One coat was black and the other was green and brown, in a camouflage pattern. Officer Tobias found a wallet in the green and brown coat. The wallet contained Boles' state-issued identification card. He found a clear plastic baggie in the black coat. The baggie contained a substance that, identified as .49 grams of cocaine.
[¶9] Officer Rush also responded to Officer Lim's request for assistance and searched the area near where Boles had fled on foot. He found a black St. Louis Cardinals baseball cap and a loaded handgun in a nearby alley.
[¶10] Meanwhile, Officer Diggins knew Boles because the two men are cousins. Officer Diggins read Boles a Miranda advisement and questioned him. Boles stated he had "dropped his pole" while running. Id. at 81. Officer Diggins understood a "pole" to be a slang term for a firearm.
[¶11] Another officer took Boles to the police station, where Officers Lim and Diggins questioned him. Boles admitted he was the owner of the handgun Officer Rush had found. He also said he had fled because he was on parole.
[¶12] The next day, Officer Tobias went to the convenience store where Officer Rush had originally spotted Bishop and Boles. He gained access to the store's security camera recordings and took pictures of footage of Boles standing outside the store on December 12. Boles wore a green and brown camouflage colored coat and a black St. Louis Cardinals baseball cap.
[¶13] The State charged Boles with the following felonies: unlawful possession of a firearm by a serious violent felon; possession of cocaine; and resisting law enforcement. Boles moved to suppress any evidence discovered from the chase. The trial court denied the motion after an evidentiary hearing.
The State also charged Boles with Class B misdemeanor possession of marijuana but dismissed that charge before trial.
[¶14] Boles waived his right to a jury trial. At the beginning of the bench trial, Boles renewed his motion to suppress. After the trial, the court denied the renewed motion to suppress and determined Boles was guilty of all three felonies. The court sentenced him to eight years, and this appeal followed.
Discussion and Decision
[¶15] Boles argues the trial court should not have admitted into evidence the gun, the cocaine, and his post-arrest statements, claiming the officers failed to comply with a statute that requires them to be in uniform or to drive a marked police vehicle to make a traffic stop and arrest. "Evidence obtained in an unlawful arrest may be excluded upon proper motion by the defendant." Porter v. State, 985 N.E.2d 348, 355 (Ind.Ct.App. 2013).
[¶16] "We review a trial court's decision on the admission of evidence for an abuse of the trial court's discretion." Hileman v. State, 224 N.E.3d 321, 330 (Ind.Ct.App. 2023). "An abuse of discretion occurs when 'admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.'" Schnitzmeyer v. State, 168 N.E.3d 1041, 1044 (Ind.Ct.App. 2021) (quoting Holloway v. State, 69 N.E.3d 924, 929 (Ind.Ct.App. 2017), trans. denied). "We will not reweigh the evidence and will resolve all conflicts in favor of the trial court's ruling." Id.
[¶17] The parties' evidentiary dispute focuses on Indiana Code section 9-30-2-2(a) (2019), which provides:
(a) Except as provided in subsection (b), a law enforcement officer may not arrest or issue a traffic information and summons to a person for a violation of an Indiana law regulating the use and operation of a motor vehicle on a highway or an ordinance of a city or town regulating the use and operation of a motor vehicle on a highway unless at the time of the arrest the officer is:
(1) wearing a distinctive uniform and a badge of authority; or
(2) operating a motor vehicle that is clearly marked as a police vehicle;
that will clearly show the officer or the officer's vehicle to casual observations to be an officer or a police vehicle.
"The purpose of this statute is to protect drivers from police impersonators and to protect officers from resistance should they not be recognized as officers." Ervin v. State, 968 N.E.2d 315, 318 (Ind.Ct.App. 2012).
[¶18] In Hatcher v. State, 762 N.E.2d 189, 190 (Ind.Ct.App. 2002), an off-duty officer in civilian clothes driving an unmarked police vehicle saw Hatcher commit several driving infractions. She radioed for assistance as she followed Hatcher. When he stopped at a gas station, the officer approached him with two uniformed police officers and issued two citations. On appeal, Hatcher argued the issuance of the citations violated Indiana Code section 9-30-2-2. The Court disagreed, concluding the presence of uniformed officers met the statute's requirements. Hatcher, 762 N.E.2d at 192.
[¶19] By contrast, in Cassity v. State, 222 N.E.3d 1007, 1013 (Ind.Ct.App. 2023), this Court determined the trial court erred in admitting evidence obtained from a traffic stop. An officer drove an unmarked car and wore a sweatshirt, jeans, and a tactical vest bearing the word "POLICE." Id. at 1009. He made a traffic stop of Cassity's car after observing several infractions and walked up to the car, in which he found controlled substances. The Court determined the officer's clothing and unmarked vehicle did not meet the requirements of Indiana Code section 9-30-2-2(a), and the trial court should have refused to admit evidence obtained via the stop. Id. at 1013; see also Davis v. State, 858 N.E.2d 168, 172 (Ind.Ct.App. 2006) (trial court erred in failing to suppress evidence found via traffic stop; officer's casual clothes plus tactical vest bearing his badge and the word "POLICE" did not meet requirements of Section 9-30-2-2).
[¶20] Boles' case more closely resembles the facts of Hatcher than the circumstances in Cassity or Davis. Officer Lim drove an unmarked vehicle, but he was followed by Officer Diggins, who drove a fully marked police vehicle. And both officers activated their police lights and sirens to signal Boles to stop.
[¶21] Boles argues Officer Lim's clothing was similar to the outfits the officers wore in Cassity and Davis. But it is unclear whether Boles saw Officer Lim's outfit when he chose to flee, because Officer Lim did not get out of his car until Boles abandoned the Mercury to flee on foot. In both Cassity and Davis, the officers approached the defendants' cars on foot, so their clothing was at issue. We conclude, based on the holding in Hatcher, that the officers complied with Section 9-30-2-2(a), and the trial court did not abuse its discretion in admitting the evidence the officers found after pursuing Boles.
Conclusion
[¶22] For the reasons stated above, we affirm the judgment of the trial court.
[¶23] Affirmed.
Altice, C.J., and Vaidik, J., concur.