ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANN M. SUTTON STEVE CARTER
Marion County Public Defender Agency Attorney General of Indiana
CHRISTOPHER C.T. STEPHEN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
MICHAEL SHIRLEY, )
vs. ) No. 49A02-0306-CR-480
STATE OF INDIANA, )
APPEAL FROM THE MARION COUNTY SUPERIOR COURT
The Honorable Patrick Murphy, Judge
Cause No. 49G14-0206-FD-156960
February 13, 2004
OPINION - FOR PUBLICATION
BROOK, Chief Judge
Appellant-defendant Michael Shirley appeals his conviction for
possession of a controlled substance, a Class D felony. We affirm.
Shirley raises two issues, which we restate as:
I. Whether the evidence obtained from a search of Shirley should have
been suppressed due to an alleged improper initial stop; and
II. Whether the State presented sufficient evidence to support the
Facts and Procedural History
On June 2, 2002, around 2:20 a.m., Indianapolis Police Officer Jayson
Campbell saw Shirley riding a bicycle erratically. That is, Shirley was
weaving between the northbound and southbound lanes of North Sherman Drive
and fell off the bicycle two or three times. Concerned that Shirley might
be having a health problem or was impaired, Officer Campbell asked him as
he rode closer if he was all right. “Yeah, I’m fine, I’m fine, I’m just,
you know, riding my bike,” replied Shirley. Tr. at 25. Noticing that
Shirley had a strong odor of an alcoholic beverage on his breath, glassy
eyes, slightly slurred speech, and swayed as he spoke, Officer Campbell
suspected intoxication and requested identification. Shirley complied.
Upon relaying the information to a control operator, Officer Campbell
learned that Shirley had an outstanding warrant.
Officer Campbell placed Shirley under arrest pursuant to the warrant
and conducted a search incident to arrest. Officer Campbell found in
Shirley’s front right pant pocket an unlabeled pill bottle containing four
pills for which Shirley had no prescription. Officer Campbell described
the pills to the control operator, who advised him that they were Roxicet,
Oxycontine, a Schedule II controlled substance. Shirley stated, “Man, I
got those pills from my mom.” Id. at 27. At that point, Officer Campbell
arrested Shirley for possession of controlled substance and public
The State charged Shirley with possession of a controlled substance.
Shirley filed a motion to suppress the evidence obtained during the search.
The trial court held a hearing on the motion in mid-December 2002.
Following the denial of the motion, a trial occurred, resulting in a guilty
Discussion and Decision
I. Denial of Motion to Suppress and Admission of Evidence
Shirley asserts that Officer Campbell did not have reasonable
suspicion to stop him, and that therefore the evidence found during the
ensuing search of Shirley should have been suppressed. In particular,
Shirley contends that Officer Campbell was not responding to any call, saw
nothing more than Shirley get off his bike, and had no indication that
Shirley was about to commit any criminal offense. Shirley further notes
that while Officer Campbell stopped Shirley for safety issues, “Officer
Campbell did not have any concerns about Shirley’s safety as he passed him”
and “did not detail the traffic at the time to substantiate his concern.”
Appellant’s Br. at 11.
Citing Quinn v. State, 792 N.E.2d 597 (Ind. Ct. App. 2003), trans.
denied, the State responds that the “propriety of the stop is irrelevant in
light of the outstanding arrest warrant for [Shirley] discovered by Officer
Campbell.” Appellee’s Br. at 4. We cannot agree. In Quinn, we held that
“where a stop was undertaken on less than reasonable suspicion, but with
the purpose of executing a lawful outstanding arrest warrant, the trial
court properly denied” the defendant’s motion to suppress “because the
intervening lawful arrest was sufficient to remove the taint of any police
illegality.” Quinn, 792 N.E.2d at 603. In Quinn, the officer knew of an
outstanding arrest warrant for the defendant and stopped the defendant-
driver specifically to execute the warrant despite the fact that the
defendant-driver had not committed any traffic violations. In the present
case, Officer Campbell had no idea there was an arrest warrant for Shirley
until he radioed in Shirley’s identification. Thus, we find Quinn
inapposite here. See id. (Riley, J. concurring in result with opinion).
“We review a trial court’s ruling on a motion to suppress for an abuse
of discretion.” Jefferson v. State, 780 N.E.2d 398, 403 (Ind. Ct. App.
2002); see also Crabtree v. State, 762 N.E.2d 241, 244 (Ind. Ct. App.
2002). “Generally, no abuse of discretion occurs where there exists
sufficient evidence justifying the initial seizure.” Jefferson, 780 N.E.2d
at 403. As in other sufficiency matters, the record must disclose
substantial evidence of probative value that supports the trial court’s
decision. See Finger v. State, 799 N.E.2d 528, 533 (Ind. 2003). We do not
reweigh the evidence and we consider conflicting evidence most favorably to
the trial court’s ruling. Id.; see also Crabtree v. State, 762 N.E.2d 217,
219 (Ind. Ct. App. 2002) (citing Edwards v. State, 759 N.E.2d 626, 630
Our supreme court has summarized the three levels of police
The Fourth Amendment regulates nonconsensual encounters between
citizens and law enforcement officials and does not deal with
situations in which a person voluntarily interacts with a police
officer. A full-blown arrest or a detention that lasts for more than
a short period of time must be justified by probable cause. A brief
investigative stop may be justified by reasonable suspicion that the
person detained is involved in criminal activity.
Finger, 799 N.E.2d at 532 (emphases added).
In order to determine whether Officer Campbell impinged upon
Shirley’s Fourth Amendment rights, we must first analyze what level of
police investigation occurred. As the above excerpt indicates, not every
encounter between a police officer and a citizen amounts to a seizure
requiring objective justification. Indeed, to characterize every street
encounter between a citizen and the police as a seizure, while not
enhancing any interest guaranteed by the Fourth Amendment, would impose
wholly unrealistic restrictions upon a wide variety of legitimate law
enforcement practices. See United States v. Mendenhall, 446 U.S. 544, 553-
54 (1980). As long as an individual engaged by the police remains free to
leave, the encounter is consensual, see Jefferson, 780 N.E.2d at 403, and
there has been no intrusion upon that person’s liberty or privacy to
require some particularized and objective justification. See Mendenhall, 446 U.S. at 554. Examples of circumstances under which a reasonable person
would have believed he was not free to leave include “the threatening
presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or
tone of voice indicating that compliance with the officer’s request might
be compelled.” Overstreet v. State, 724 N.E.2d 661, 664 (Ind. Ct. App.
2000), trans. denied.
In the present case, at 2:20 a.m., Officer Campbell observed Shirley
both weaving his bicycle between the northbound and southbound lanes and
falling off the bicycle two or three times. Officer Campbell did not stop
Shirley per se. Rather, concerned about possible impairment of health or
otherwise, Officer Campbell simply asked Shirley as he rode closer if he
was all right. At that time, no other officers were present. Moreover, no
evidence was presented that would indicate that Officer Campbell displayed
a weapon or that he spoke using language, or in a tone of voice, mandating
compliance. Instead, at this point, the situation appeared to be just the
sort of voluntary interaction wherein a law enforcement officer was simply
making a “casual and brief inquiry of a citizen which involves neither an
arrest nor a stop.” See id. at 663. Thus, the Fourth Amendment was not
implicated up to that point.
However, in speaking with Shirley, Officer Campbell noticed that
Shirley had “a strong odor of an alcoholic beverage on this breath,” glassy
eyes, slightly slurred speech, and a sway. This additional information,
coupled with the manner in which Shirley was maneuvering his bicycle at
2:20 a.m., caused Officer Campbell to suspect that Shirley was intoxicated.
Hence, the officer requested identification and the casual inquiry became
a stop. See Finger, 799 N.E.2d at 533 (noting how officer’s retention of a
driver’s license converted a consensual encounter into an investigative
stop requiring reasonable suspicion).
To withstand Constitutional scrutiny, an investigatory stop requires
the presence of a reasonable suspicion based on articulable facts which,
together with the reasonable inferences arising therefrom, would permit an
ordinary prudent person to believe that criminal activity has or was about
to occur. Burkett v. State, 736 N.E.2d 304, 306 (Ind. Ct. App. 2000).
“Such reasonable suspicion must be comprised of more than an officer’s
general ‘hunches’ or unparticularized suspicions.” Webb v. State, 714
N.E.2d 787, 788 (Ind. Ct. App. 1999). The facts supporting a reasonable
suspicion that criminal activity is afoot must rise to “some minimum level
of objective justification” for the temporary detention of a person to be
valid. Reeves v. State, 666 N.E.2d 933, 936 (Ind. Ct. App. 1996).
We have no trouble concluding that under the circumstances, Officer
Campbell had reasonable suspicion to believe that criminal activity,
specifically public intoxication, was afoot. Accordingly, Officer
Campbell’s request for identification was justified. Upon calling in the
information and learning of the outstanding arrest warrant, Officer
Campbell placed Shirley under arrest, conducted a lawful search incident to
arrest, and found the pills. Given these facts, we conclude that there was
no violation of the Fourth Amendment. Accordingly, the trial court did
not abuse its discretion in denying the motion to suppress evidence.
Sufficiency of the Evidence
In challenging the sufficiency of the evidence, Shirley maintains that
he “was carrying the [pills at] the request of his mother, who was
prescribed the medication to relieve the pain associated with her chronic
rheumatoid arthritis, to deliver the medication to her.” Appellant’s Br.
at 8. For support, he relies on his mother’s testimony.
Our standard of review when considering the sufficiency of evidence
is well settled.
We will not reweigh the evidence or consider the credibility of
witnesses. Only the evidence most favorable to the verdict, together
with all reasonable inferences that can be drawn therefrom will be
considered. If a reasonable trier of fact could have found the
defendant guilty based on the probative evidence and reasonable
inferences drawn therefrom, then a conviction will be affirmed.
Wilson v. State, 754 N.E.2d 950, 957 (Ind. Ct. App. 2001) (citations
omitted). To convict Shirley of the Class D felony, the State was required
to show beyond a reasonable doubt that he knowingly or intentionally
possessed a controlled substance classified in schedule II without a valid
prescription. See Ind. Code § 35-48-4-7(a).
According to Officer Campbell’s trial testimony, Shirley was riding
his bicycle at 2:20 a.m. with an unmarked bottle of pills in his front pant
pocket. Shirley provided no prescription, valid or otherwise, for the
Oxycodone, and explained to Officer Campbell, “Man, I got those pills from
my mom.” Tr. at 27. Shirley did not mention to Officer Campbell that he
was taking anything to his mother. Id. at 31. In addition to that
evidence, the jury heard Shirley’s mother’s testimony in defense of her
son. Specifically, she stated that she was playing cards at a friend’s
house that evening, decided to stay overnight, telephoned Shirley at
approximately 11:30 p.m., and asked that he bring her some of her pain
pills as her severe arthritis in her hands was bothering her. Shirley’s
mother also testified that she had never asked her son to bring her
medication before, that she would not want to see her son go to jail, and
that sometimes she carried medications with her in small bottles with child-
proof caps and the labels removed.
In determining a verdict, it was the jury’s job to judge the
credibility of the witnesses and to weigh the evidence. Given the record
provided on appeal, we cannot second-guess the jury’s decision that the
State met its burden. To conclude otherwise would be an invasion of the
jury’s province as the factfinder.
SULLIVAN, J., and ROBB, J., concur.
 Ind. Code § 35-48-4-7(a).
 Indeed, lab tests indicated that the pills were oxycodone, a
schedule II controlled substance. See Ind. Code § 35-48-2-6(b)(1)(N).
 See Purcell v. State, 721 N.E.2d 220, 222 (Ind. 1999)
(mentioning the crime of public intoxication).
 In the same section of his brief in which he discusses the Fourth
Amendment, Shirley mentions Article I, Section 11 of the Indiana
Constitution. However, he does not conduct a separate analysis. While we
could find that he has waived the Indiana Constitution issue, see Ackerman
v. State, 774 N.E.2d 970, 984 (Ind. Ct. App. 2002), trans. denied, we note
that under the totality of the circumstances, Officer Campbell’s behavior
was reasonable. See Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct. App.
2003), trans. denied. Therefore, Indiana’s Constitutional provision does
not change our result.