                                                                                   FILED
                                                                              Aug 24 2016, 8:27 am
      OPINION                                                                      CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Michael R. Fisher                                           Gregory F. Zoeller
      Marion County Public Defender Agency                        Attorney General of Indiana
      Indianapolis, Indiana
                                                                  Henry A. Flores, Jr.
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Thomas Pinner,                                             August 24, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1511-CR-2036
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Shatrese Flowers,
      Appellee-Plaintiff.                                        Judge;
                                                                 The Honorable Peggy Hart,
                                                                 Commissioner
                                                                 Trial Court Cause No.
                                                                 49G20-1503-F5-8548



      May, Judge.

[1]   Thomas Pinner appeals the denial of his motion to suppress. As no reasonable

      suspicion justified the investigatory stop, we reverse.




      Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016                       Page 1 of 14
                             Facts and Procedural History
[2]   On February 20, 2015, Indianapolis Metropolitan Police Department officers

      Jason Palmer and George Stewart responded to a call from a cab driver

      regarding a passenger who dropped a handgun when exiting the cab at the

      Studio Movie Grill. The cab driver described the passenger as “a black male

      wearing a blue jacket [accompanied by] a black female with blonde hair.”

      (App. at 13.) The driver indicated he was fearful of being robbed. Officer

      Palmer talked to the cab driver on the phone before attempting to locate the

      man. The driver left the scene before the officers arrived and gave no indication

      that a robbery had been attempted.


[3]   On entering the Studio Movie Grill, the officers saw a blonde-haired black

      woman walking away from Pinner, who matched the driver’s description.

      Pinner was on a bench by himself inside the lobby of the theatre when the two

      officers walked up to him, stood in front of him, told him there was a report of a

      man with a gun, and asked if he had a gun on him. Pinner denied having a gun

      but was shuffling nervously and was hesitant to answer. Officer Palmer had

      Pinner stand. When Pinner stood up, Officer Palmer could see the butt of a gun

      in his front pocket. Officer Palmer secured the gun for police safety and

      detained Pinner. He learned Pinner did not have a license to carry a handgun

      and placed him under arrest.


[4]   The State charged Pinner with Class A misdemeanor carrying a handgun

      without a license enhanced to Level 5 felony due to prior commission of a


      Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016   Page 2 of 14
      felony.1 Pinner filed a motion to suppress the evidence. The trial court held a

      hearing and then denied Pinner’s motion. The trial court found, in accordance

      with the State’s argument at the hearing, that the officers had reasonable

      suspicion to approach and question Pinner. Pinner filed a Petition to Certify an

      Order for Interlocutory Appeal, which the trial court granted. We accepted

      jurisdiction and now reverse.



                                     Discussion and Decision
[5]   Our standard of review for the denial of a motion to suppress evidence is similar

      to that of other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct.

      App. 2003), reh’g denied, trans. denied. We determine whether there is substantial

      evidence of probative value to support denial of the motion. Id. We do not

      reweigh the evidence, and we consider conflicting evidence that is most

      favorable to the trial court’s ruling. Id. But the review of a denial of a motion to

      suppress is different from other sufficiency matters in that we must also

      consider uncontested evidence that is favorable to the defendant. Id. We

      review de novo a ruling on the constitutionality of a search or seizure, but we give

      deference to a trial court’s determination of the facts, which will not be

      overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind.

      2008).




      1
          Ind. Code § 35-47-2-1 (2014).


      Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016   Page 3 of 14
[6]   The Fourth Amendment to the United States Constitution requires law

      enforcement officials to obtain a valid warrant before conducting searches or

      seizures. When police conduct a search without a warrant, the State has the

      burden of proving that the search falls within an exception to the warrant

      requirement. Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006). A police officer

      may briefly detain a person without a warrant if, based on articulable facts and

      reasonable inferences, the officer believes criminal activity “may be afoot.”

      Terry v. Ohio, 392 U.S. 1, 30 (1968).


[7]   The interaction between Pinner and the officers was an investigatory stop for

      which the officers did not have reasonable suspicion Pinner had engaged in or

      was about to engage in criminal activity. Therefore, the Fourth Amendment

      required the gun be suppressed.2


                             Consensual Interaction or Investigatory Stop?

[8]   Before the trial court, the State conceded “[t]his case involves an investigatory

      stop,” (App. at 39), and argued the officers had the reasonable suspicion

      required by Terry to approach Pinner. But on appeal, the State argues the

      officers’ interaction with Pinner was consensual, and thus not subject to Fourth

      Amendment protections, until they saw the gun. This encounter was not

      consensual and Pinner was subjected to an investigatory stop.




      2
       Pinner also asserts the seizure was contrary to Ind. Const., Art. 1, Section 11. However, as the seizure
      violated the Fourth Amendment, we need not address Pinner’s other argument.


      Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016                         Page 4 of 14
[9]    An encounter between an officer and a private citizen is consensual when the

       officer limits his approach to “a casual and brief inquiry and the individual

       remains free to leave.” Woodson v. State, 960 N.E.2d 224, 227 (Ind. Ct. App.

       2012). The test for whether an individual remains free to leave is “what a

       reasonable person, innocent of any crime, would have thought had he been in

       the citizens’ shoes.” Crabtree v. State, 762 N.E.2d 241, 245 (Ind. Ct. App. 2002).


[10]   Here, two armed and uniformed officers approached and questioned Pinner,

       who was sitting alone in a theatre lobby.3 They did not make small talk or pass

       the time of day with him. The officers approached Pinner with an official

       purpose and asked questions for which the answers could have criminal

       implications. See United States v. Mendenhall, 446 U.S. 544, 554 (1980)

       (examples of circumstances that indicate a seizure include the “the use of

       language or tone of voice indicating that compliance with the officer’s request

       might be compelled”). The two officers stood in front of Pinner – one to his

       right and one to his left – as he sat on a bench.4 Though the officers asserted

       before the trial court that Pinner could have walked away, we do not believe

       any reasonable citizen would have felt free to disengage from the officers




       3
         This is one fact that distinguishes the facts herein from those in U.S. v. Scott, 2015 WL 4506864 (S.D. Miss.
       July 24, 2015), aff’d, 624 F. App’x 850 (5th Cir. 2015), cert. denied, 136 S. Ct. 869 (2016), on which the dissent
       relies. Scott was “standing around a car in a manner consistent with drug activity” in a high-crime area, (¶17
       of Dissent), while Pinner was seated alone, presumably waiting for his female companion to return, and not
       acting in any manner consistent with illegal activity.
       4
        This is the second fact that distinguishes Pinner’s situation from Scott. Scott had room to walk away, see
       Scott, 2015 WL 4506864, at *1, but Pinner could exit the encounter with police only by standing and walking
       between the two officers who had already asked him a pointed question.


       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016                             Page 5 of 14
       without answering their question. See State v. Felker, 819 N.E.2d 870, 875 (Ind.

       Ct. App. 2004) (Although not every interaction between police and citizens

       implicates the Fourth Amendment, when an “officer has, by means of physical

       force or show of authority, in some way restrained the liberty of a citizen,” a

       seizure occurs. The reviewing court must take into consideration all the

       circumstances that surround the encounter.), trans. denied. The interaction was

       not consensual; it was an investigatory stop, commonly referred to as a Terry

       stop.


                                   Reasonable Suspicion for Terry Stop?

[11]   The trial court denied Pinner’s Motion to Suppress Evidence on the ground

       there was reasonable suspicion to stop Pinner. Specifically, the trial court

       described the stop as a Terry stop throughout the Order and found “the initial

       detention amount[ed] to reasonable suspicion and therefore was reasonable.”

       (App. at 45.)


[12]   On appeal, the State does not address reasonable suspicion. The State had the

       burden to demonstrate the interaction with Pinner was supported by reasonable

       suspicion and was a valid “exception to the general warrant requirement of the

       Fourth Amendment[.]” Segar v. State, 937 N.E.2d 917, 921 (Ind. Ct. App.

       2010). As the State provides no argument, it has not met that burden on

       appeal.


[13]   Mere possession of a firearm, which is legal, cannot produce reasonable

       suspicion to justify a Terry stop. See Malone v. State, 882 N.E.2d 784 (Ind. Ct.


       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016   Page 6 of 14
       App. 2008) (evidence suppressed because possession of a handgun on a porch

       did not give officers sufficient evidence of criminal activity to justify stop), reh’g

       denied. The State has not directed us to a reason why the police believed when

       they stopped Pinner that his possession of the gun was illegal, nor has the State

       asserted any other criminal activity was “afoot.” Accordingly, we are

       constrained to hold the stop of Pinner was not supported by reasonable

       suspicion. See, e.g., id.



                                                 Conclusion
[14]   As the officers did not have reasonable suspicion to stop Pinner and this was

       not a consensual encounter, the trial court abused its discretion when it denied

       his motion to suppress. As such, we reverse.


[15]   Reversed.


       Baker, J., concurs.


       Brown, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016    Page 7 of 14
                                                    IN THE
            COURT OF APPEALS OF INDIANA

       Thomas Pinner,                                              Court of Appeals Case No.
                                                                   49A02-1511-CR-2036
       Appellant-Defendant,

                v.

       State of Indiana,
       Appellee-Plaintiff.




       Brown, Judge, dissenting.

[16]   I respectfully dissent from the majority’s conclusion that the trial court abused

       its discretion when it denied Pinner’s motion to suppress. As this court has

       previously observed:

               There are three levels of police investigation, two of which
               implicate the Fourth Amendment and one of which does not.
               First, the Fourth Amendment requires that an arrest or detention
               that lasts for more than a short period of time must be justified by
               probable cause. Second, pursuant to Fourth Amendment
               jurisprudence, the police may, without a warrant or probable
       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016              Page 8 of 14
        cause, briefly detain an individual for investigatory purposes if,
        based upon specific and articulable facts, the officer has a
        reasonable suspicion that criminal activity has [occurred] or is
        about to occur. The third level of investigation occurs when a
        police officer makes a casual and brief inquiry of a citizen, which
        involves neither an arrest nor a stop. This is a consensual
        encounter in which the Fourth Amendment is not implicated.


Powell v. State, 912 N.E.2d 853, 859 (Ind. Ct. App. 2009) (citations omitted).

Also, determining whether an encounter was consensual or involves some level

of detention

        “turns on an evaluation, under all the circumstances, of whether
        a reasonable person would feel free to disregard the police and go
        about his or her business.” [Finger v. State, 799 N.E.2d 528, 532
        (Ind. 2003)] (citing California v. Hodari D., 499 U.S. 621, 628, 111
        S. Ct. 1547, 113 L.Ed.2d 690 (1991)). The test is objective—not
        whether the particular citizen actually felt free to leave, but
        “whether the officer’s words and actions would have conveyed
        that to a reasonable person.” Hodari D., 499 U.S. at 628, 111 S.
        Ct. 1547 (citing United States v. Mendenhall, 446 U.S. 544, 100 S.
        Ct. 1870, 64 L.Ed.2d 497 (1980)). Examples of facts and
        circumstances that might lead a reasonable person to believe that
        he or she was no longer free to leave could 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) (citing Mendenhall, 446
        U.S. at 554, 100 S. Ct. 1870), trans. denied.


Clark v. State, 994 N.E.2d 252, 261-262 (Ind. 2013).




Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016    Page 9 of 14
[17]   I believe that the encounter between Pinner and Officers Palmer and Stewart

       was consensual and that reasonable suspicion arose when the officers observed

       Pinner’s gun immediately after he told the officers that he was not armed.

       Recently, the United States District Court for the Southern District of

       Mississippi addressed a similar scenario in U.S. v. Scott, 2015 WL 4506864 (S.D.

       Miss. July 24, 2015), aff’d, 624 F. App’x 850 (5th Cir. 2015), cert. denied,

       136 S. Ct. 869 (2016). In Scott, police received an anonymous tip that drugs

       were being sold at a specific address in a high-crime area, and upon arriving

       they observed a congregation standing around a car in a manner consistent with

       drug activity. Scott, 2015 WL 4506864, at *1. Detective Corliss Harris

       observed Scott “acting nervously and patting or adjusting his waistband before

       taking a few steps away,” and he “told Scott that he did not have to leave and

       asked him to come back over.” Id. Scott then “lifted his hands gesturing that

       he had done nothing wrong, thus revealing a .38 revolver tucked in his

       waistband,” and he was arrested for carrying the handgun after having been

       previously convicted of at least one felony. Id. Scott entered a guilty plea, but

       in doing so reserved the issue of whether the court should have suppressed the

       handgun for appeal. Id.


[18]   The Court examined the question of at what point in time Scott was seized

       under Terry and began by observing that, rather than commanding Scott to

       come back, Detective Harris “told Scott, ‘You don’t have to leave’ before

       ‘asking him to step back over.’” Id. at *2. The Court noted the following:




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016   Page 10 of 14
               To begin, “not all personal intercourse between policemen and
               citizens involves ‘seizures’ of persons.” Terry v. Ohio, 392 U.S. 1,
               19 n.16, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968). “Moreover,
               characterizing every street encounter between a citizen and the
               police as a ‘seizure,’ . . . would impose wholly unrealistic
               restrictions upon a wide variety of legitimate law enforcement
               practices. The [United States Supreme] Court has on other
               occasions referred to the acknowledged need for police
               questioning as a tool in the effective enforcement of the criminal
               laws.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct.
               1870, 64 L.Ed.2d 497 (1980). Thus, “law enforcement officers
               do not violate the Fourth Amendment by merely approaching an
               individual on the street or in another public place [or] by asking
               him if he is willing to answer some questions.” Florida v. Royer,
               460 U.S. 491, 497, 103 S. Ct. 1319, 75 L.Ed.2d 229 (1983)
               (plurality opinion). Finally, “the fact that the officers’ conduct
               ‘could be somewhat intimidating’ does not mean a seizure has
               occurred.” United States v. Valdiosera-Godinez, 932 F.2d 1093,
               1099 (5th Cir. 1991) (quoting Michigan v. Chesternut, 486 U.S.
               567, 575, 108 S. Ct. 1975, 100 L.Ed.2d 565 (1988))[, reh’g denied,
               cert. denied, 508 U.S., 113 S. Ct. 2369 (1993)].


       Id.


[19]   The Court then applied the Mendenhall factors as discussed above in Clark and

       ruled that a seizure did not occur until the gun was discovered. Id. at *3. The

       Court noted that, although six or seven officers were present, arriving in

       undercover vehicles and dressed in tactical gear marked “police,” none of them

       drew their weapons and only Detective Harris, who was the first to exit his

       vehicle, spoke to Scott before the gun was discovered. Id. It observed that

       “[n]one of the officers, through their speech, actions, or position relative to

       [Scott], ever prevented him from walking away.” Id. (quoting United States v.

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016   Page 11 of 14
       Mask, 330 F.3d 330, 338 (5th Cir. 2003), reh’g denied, reh’g en banc denied). The

       Court also found that Detective Harris “neither touched Scott nor physically

       impeded his movement in any way” and “did not tell Scott he could not leave,”

       and it concluded “that neither Harris’s language nor tone conveyed the need for

       compelled compliance.” Id. (citing Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.

       Ct. 308, 83 L.Ed.2d 165 (1984) (per curiam) (recognizing that “[t]he initial

       contact between the officers and respondent, where they simply asked if he

       would step aside and talk with them, was clearly the sort of consensual

       encounter that implicates no Fourth Amendment interest”); United States v.

       Anthony, 487 F. App’x 921, 922 (5th Cir. 2012) (per curiam) (finding no seizure

       when officers parked patrol unit perpendicular to the defendant’s vehicle and

       ordered him “to stand in front of the police unit”); United States v. Guevara, 448

       F. App’x 453, 456 (5th Cir. 2011) (finding no seizure when police motioned the

       defendant into a store and stating, “[W]e need to talk”), cert. denied, 132 S. Ct.

       1728 (2012); United States v. Simmons, 918 F.2d 476, 479-480 (5th Cir. 1990)

       (holding that a reasonable person in the defendant’s situation would not have

       believed his freedom was limited when agents approached him, identified

       themselves as law-enforcement officers, and requested to speak to him)). The

       Court ended its discussion by reiterating that the test for judging whether the

       person felt free to leave is objective, and it held that the encounter was

       consensual until the gun had been observed. Id. at *4.


[20]   Similarly, in this case when Officers Palmer and Stewart approached Pinner,

       neither had their weapons drawn, instead approaching Pinner in a non-


       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016   Page 12 of 14
       threatening manner and asking Pinner the question of whether he was carrying

       a gun. The record does not indicate that “through their speech, actions, or

       position” relative to Pinner did the officers prevent Pinner from walking away.

       See Mask, 330 F.3d at 338. The record also indicates that neither officer

       touched Pinner or impeded his movement. At trial, the State asked Officer

       Palmer specifically if he asked or ordered Pinner to stand, and Officer Palmer

       responded that he “asked [Pinner] if he could stand up for [him].” Transcript at

       9. It was at that point that the officers observed the gun in Pinner’s pocket, and

       Officer Palmer then ordered Pinner to keep his hands up while he “recovered

       the gun for officer safety because [Pinner] had lied to [him] about not having

       the gun.” Id. I would conclude that, similar to the circumstances in Scott, the

       interaction between the officers and Pinner was a consensual encounter until

       the officers observed the gun in Pinner’s pocket after he lied about not having a

       gun.


[21]   I would also find that admission of the gun into evidence does not run afoul of

       Article 1, Section 11 of the Indiana Constitution. The test under Article 1,

       Section 11 focuses not on “the defendant’s reasonable expectation of privacy,”

       as under the Fourth Amendment, but instead on “the actions of the police

       officer, concluding that the search is legitimate where it is reasonable given the

       totality of the circumstances.” Trimble v. State, 842 N.E.2d 798, 803 (Ind.

       2006), adhered to on reh’g, 848 N.E.2d 278 (Ind. 2006). “We will consider the

       following factors in assessing reasonableness: ‘1) the degree of concern,

       suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion


       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016   Page 13 of 14
       the method of the search or seizure imposes on the citizen’s ordinary activities,

       and 3) the extent of law enforcement needs.’” Id. (quoting Litchfield v. State, 824

       N.E.2d 356, 361 (Ind. 2005)).

[22]   I would find that “the degree of concern, suspicion, or knowledge that a

       violation has occurred” was high given that the officers had received a

       description of a man and his companion, in which a cab driver expressed fear of

       being robbed by the man, that the officers observed Pinner and his companion

       who fit the description, that, when asked if he was carrying a gun Pinner

       shuffled nervously and was hesitant to answer before ultimately lying and

       saying that he did not have a gun, and that the officers promptly observed that,

       indeed, he did have a gun on his person. I would find that the degree of

       intrusion was especially low, given that one of the officers merely asked Pinner

       if he could stand up for him before observing the gun on his person. I would

       find that the extent of law enforcement needs was strong in securing the gun

       upon observing that Pinner was armed after acting nervous and stating that he

       was not armed. Thus, I would find that given the totality of the circumstances,

       the interaction between the officers and the confiscation of Pinner’s gun did not

       violate Pinner’s rights under Article 1, Section 11 of the Indiana Constitution.


[23]   I believe that Pinner’s motion to suppress was correctly denied and would

       affirm the trial court.




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016   Page 14 of 14
