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09/08/87 DEXTER R. PORTER v. STATE INDIANA

Filed: September 8, 1987.

DEXTER R. PORTER, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA APPELLEE (PLAINTIFF BELOW)



Appeal from the Marion Superior Court Criminal Division, Room No. 3, The Honorable John R. Barney, Jr., Judge, Cause No. CR85 214C.

Conover, J., Miller, P.j. and Robertson, J. concur.

Author: Conover

CONOVER, J.

Defendant-Appellant Dexter Porter (Porter) appeals his conviction for possession of a prohibited handgun, a class C felony, and carrying a handgun without a license, a class A misdemeanor.

We reverse.

ISSUES

Porter presents two issues for our review. Because we reverse we address only one, namely, whether the gun and bullets were properly admitted because they were discovered during a permissible search of Porter's vehicle.

FACTS

On September 28, 1985, Gerald Rothenbush (Rothenbush) of the Indianapolis Police Department noticed two black males acting suspiciously in the Broad Ripple area. The pair would follow people down the street and not enter any establishments. Rothenbush watched the two men for about 30 minutes. Neither did anything illegal during this time. At one point the two men left Rothenbush's sight. When he next saw them, they were in a car driven by Porter. A third man was in the back seat. Rothenbush ran a check on the license plate of the car and learned the plate did not match the vehicle.

Rothenbush stopped the vehicle, asked the three men to step out of the car, then pat-down searched each of them. He found nothing. A second officer who had arrived at the scene conducted a search of the interior of the car. He discovered a handgun and seven bullets hidden under the driver's side front floormat. The serial number of the handgun had been removed.

At trial, the court admitted the handgun and bullets into evidence over Porter's objections. Lewis Porter testified he loaned the car to his nephew that evening, he had recently bought the car, but had not registered the license plate to the automobile. Porter was convicted of possession of a prohibited handgun and carrying a handgun without a license.

He appeals.

Discussion AND DECISION

Porter contends the gun and bullets taken from the car were improperly admitted into evidence at his trial because they were ...


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