MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                         Sep 27 2018, 6:53 am
regarded as precedent or cited before any
                                                                                    CLERK
court except for the purpose of establishing                                   Indiana Supreme Court
                                                                                  Court of Appeals
the defense of res judicata, collateral                                             and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Curtis T. Hill, Jr.
Deborah Markisohn                                        Attorney General of Indiana
Marion County Public Defender Agency
Indianapolis, Indiana                                    Caroline G. Templeton
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael L. Elliott,                                      September 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-284
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Alicia A. Gooden, Judge
                                                         Trial Court Cause Nos.
                                                         49G21-1702-F2-5794
                                                         49G21-1409-F2-45627



Kirsch, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018                Page 1 of 11
[1]   After a bench trial, Michael L. Elliott was convicted of unlawful possession of a

      firearm by a serious violent felon,1 a Level 4 felony, possession of cocaine,2 a

      Level 4 felony, and possession of marijuana,3 a Class A misdemeanor. He was

      sentenced to eight years, with three years suspended. On appeal, Elliott raises

      two issues, which we consolidate and restate as whether the trial court abused

      its discretion when it admitted evidence seized by the police after he was

      stopped for suspected drug activity in violation of his rights under the Fourth

      Amendment of the United States Constitution and Article I, Section 11 of the

      Indiana Constitution.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Officers Dane Elkins and Bryan Zotz investigated narcotics complaints for the

      north district of the Indianapolis Metropolitan Police District. Tr. Vol. II at 6,

      55. Officer Zotz attended basic narcotics training and had investigated more

      than 100 drug cases during his career. Id. at 228, 232. Officer Elkins began

      narcotics work in 2010. Id. at 55. He had patrolled the neighborhood that

      included Nicholas Avenue his entire career and knew the area as one plagued




      1
          See Ind. Code § 35-47-4-5(c).
      2
          See Ind. Code § 35-48-4-6(a).
      3
          See Ind. Code § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 2 of 11
      by robberies, shootings, and other narcotics-related crimes, which made it one

      of the most dangerous neighborhoods in the state. Id. at 8, 60.


[4]   On the evening of February 7, 2017, Officers Elkins and Zotz were working

      undercover, driving an old blue pickup truck and wearing flannel jackets over

      their shirts. Id. at 88, 200, 230. Just before midnight, they began surveilling

      3245 Nicholas Avenue after receiving a complaint of narcotics activity. Id. at

      60, 181-83. They parked on the east side of Nicholas Avenue, right in front of

      the home, looking north. Id. at 9, 11, 57, 230. Although they observed no

      drug-related activity at the address, they did notice suspicious behavior at 3255

      Nicholas Avenue – about two houses north -- that was consistent with the

      narcotics trade. Id. at 11-15; 183, 231. They saw two cars pull up, and people

      from the cars enter the home for only a few minutes before leaving. Id. at 186.

      Officer Elkins saw a man go into the house with grocery bags, remain inside for

      about eight minutes, and then leave without the bags. Id. at 184. Everyone the

      officers observed appeared to enter and leave the house through the door on the

      north side. Id. at 181-84. However, the officers could not see people walk in

      and out of the door itself because the door was not within their line of sight. Id.

      at 16, 19.


[5]   Thirty minutes later, the officers saw Elliott walk the same path as those who

      had visited the home earlier. Id. at 187, 236. They did not actually see Elliott

      enter or exit the house, but Elliott came from the same area of the house and

      walked the same route as those who had exited earlier. Id. at 16, 18, 42, 67,

      187, 236. After walking away from the house, Elliott walked directly toward

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 3 of 11
      the officers. Id. at 188, 237. He was carrying something in his right hand and

      shopping bags in his left hand. Id. 188, 236.


[6]   Because it was dark, neither officer could identify the object in Elliott’s right

      hand, but Officer Zotz thought it looked like a gun. Id. at 188, 236. When

      Elliott was about ten feet from the truck, Officer Elkins turned on the

      headlights, revealing that Elliott was indeed carrying a gun. Id. at 188. The

      gun was pointed down, but Elliott held it in such a manner that he could raise

      and fire it quickly. Id. at 199. The officers exited the truck, drew their

      weapons, and ordered Elliott to drop his gun and get on the ground. Id. at 188-

      89. Elliott complied.


[7]   Sergeant Anthony McLemore arrived to help Officers Elkins and Zotz. Tr. Vol.

      III at 15, 16. He handcuffed Elliott and performed a pat down search. He

      smelled raw marijuana and found cocaine, marijuana, and $2,084 in cash. Tr.

      Vol. III at 19-20; 23-24.


[8]   Elliott was charged with dealing cocaine, a Level 2 felony, unlawful possession

      of a firearm by a serious violent felon, a Level 4 felony, possession of cocaine, a

      Level 4 felony, dealing in marijuana with a prior conviction, a Level 6 felony,

      and possession of marijuana, a Class A misdemeanor. Appellant’s App. Vol. II at

      123. Elliott filed a motion to suppress, alleging that the officers violated his

      rights under the Fourth Amendment to the United States Constitution and

      Article I, Section 11 of the Indiana Constitution. Id. at 179. The trial court




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 4 of 11
       denied the motion. The State dismissed the possession of marijuana charge

       prior to trial. Id. at 131.


[9]    At trial, Elliott renewed his objection to the officers’ stopping him, claiming

       that the officers violated his rights under the federal and state constitutions. Tr.

       Vol. II at 196. He testified that there was an innocent explanation for why he

       was in an area of apparent drug dealing, claiming that he was returning home

       from a friend’s home that is next door to 3255 Nicholas Avenue. Id. at 129-31;

       134. Elliott testified that he walked through the tree line that separated his

       friend’s home from 3255 Nicholas Avenue and did so because that was the

       most direct path to his house further south on Nicholas Avenue. Id. at 130-31.


[10]   The trial court denied Elliott’s objection and found that the officers had

       reasonable suspicion that Elliott was engaged in criminal activity because the

       events occurred late at night in a high crime area and that the officers observed

       Elliott come from a suspected drug house while holding a gun. Tr. Vol. III at

       30. The trial court acquitted Elliott of dealing cocaine but found him guilty of

       unlawful possession of a firearm by a serious violent felon, possession of

       cocaine, and possession of marijuana. Elliott was sentenced to an aggregate

       sentence of eight years, with three years suspended. Id. at 135. Elliott now

       appeals.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 5 of 11
                                      Discussion and Decision

                                        I.      Fourth Amendment
[11]   Elliott argues that the officers lacked reasonable suspicion that he was involved

       in criminal activity. Appellant’s Br. at 25, 27. Elliott argues that the only reason

       the officers stopped him was because he was walking toward them while

       carrying a gun, which he correctly observes is not a per se violation of the law.

       Id. Elliott also proffers an “innocent” explanation for his behavior: “He was in

       his own neighborhood, walking home from a friend’s house.” Id.


[12]   Because Elliott appeals from a completed trial, we review the trial court’s

       evidentiary ruling for an abuse of discretion. See Grayson v. State, 52 N.E.3d 24,

       26 (Ind. Ct. App. 2016). An abuse of discretion occurs only when admission of

       evidence is clearly against the logic and effect of the facts and circumstances,

       and the error affects a party’s substantial rights. Clark v. State, 994 N.E.2d 252,

       260 (Ind. 2013). We will not reweigh the evidence, and we resolve any conflicts

       in the evidence in favor of the trial court’s ruling. See J.G. v. State, 93 N.E.3d

       1112, 1119 (Ind. Ct. App. 2018), trans. denied. When the challenge to the trial

       court’s ruling is premised on a constitutional violation, the issue is reviewed de

       novo because it raises a question of law. Pinner v. State, 74 N.E.3d 226, 229 (Ind.

       2017).


[13]   The Fourth Amendment guarantees the right of the people to be secure in their

       persons against unreasonable searches and seizures. Grayson, 52 N.E.3d at 27.

       Police may stop an individual for investigatory purposes if, based upon specific,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 6 of 11
       articulable facts, the officer has reasonable suspicion that criminal activity may

       be afoot. Pinner, 74 N.E.3d at 229 (citing Terry v. Ohio, 293 U.S. 1, 30 (1968)).

       This analysis considers the totality of the circumstances because facts that

       appear innocent when viewed in isolation may, taken together, create

       reasonable suspicion of criminal activity. Grayson, 52 N.E.3d at 27; Polson v.

       State, 49 N.E.3d 186, 190 (Ind. Ct. App. 2015).


[14]   This standard is satisfied when the facts and the reasonable inferences drawn

       therefrom would cause an ordinarily prudent person to believe that criminal

       activity has occurred or is about to occur. Ross v. State, 844 N.E.2d 537, 541

       (Ind. Ct. App. 2006). Whether detention of a suspect violates the Fourth

       Amendment is evaluated by an objective standard, not the subjective motives or

       perceptions of law enforcement officers. Ashcroft v. al-Kidd, 563 U.S. 731

       (2011); compare Stevens v. State, 701 N.E.2d 277, 280 (Ind. Ct. App. 1998) and

       Roberts v. State, 599 N.E.2d 595, 598 (Ind. 1992) (both stating that probable

       cause to arrest may exist even though an officer’s subjective evaluation says

       otherwise).


[15]   Although presence in a high crime area on its own is insufficient to support a

       finding of reasonable suspicion, officers are not required to ignore the location

       in determining whether to further investigate. Illinois v. Wardlow, 528 U.S. 119,

       124 (2000); Bridgewater v. State, 793 N.E.2d 1097, 1100 (Ind. Ct. App. 2002).

       Officers may also consider the time of day when deciding if reasonable

       suspicion exists. See Johnson v. State, 659 N.E.2d 116, 119 (Ind. 1995)



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 7 of 11
       (“Reasonable suspicion is more easily attained at 2:15 a.m. in a high crime

       area”).


[16]   Here, the totality of the circumstances created reasonable suspicion that Elliott

       was engaged in criminal activity, and the stop and seizure did not violate his

       rights under the Fourth Amendment. Officers Elkins and Zotz were trained,

       experienced narcotics officers. They were familiar with the high crime rate in

       the neighborhood, one of the state’s most dangerous. They observed Elliott in

       the neighborhood, late at night, walking in the same area where others, minutes

       before, had been behaving in ways consistent with drug dealing. As he left that

       area, Elliott walked directly toward the officers’ truck, carrying a gun, and

       coming within ten feet of the truck before the officers finally confronted Elliott.

       Such facts established reasonable suspicion that Elliott was engaging in criminal

       behavior, and the trial court did not abuse its discretion in denying Elliott’s

       request to exclude the evidence from trial.


[17]   Reasonable suspicion is determined by an objective standard and not by the

       subjection perceptions of officers. This principle overrides Elliott’s claim that

       there was no reasonable suspicion because Officer Elkins testified that he did

       not suspect that Elliott was involved in criminal activity. Tr. Vol. II at 193. The

       most reasonable interpretation of Officer Elkins’s testimony is that while

       Elliott’s walking toward the truck while carrying a gun, standing alone, did not

       create reasonable suspicion, the facts in toto did create reasonable suspicion.

       Guided by an objective standard, we find that an ordinarily prudent person

       looking at all the facts would conclude that reasonable suspicion existed. See

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 8 of 11
       Ross, 844 N.E.2d at 541. The trial court did not abuse its discretion when it

       allowed the evidence from the officers’ stop of Elliott to be admitted into

       evidence.


                                        II.     Article I, Section 11
[18]   Elliott also argues that the stop was illegal under the Indiana Constitution

       because the degree of concern that Elliott had committed a crime was low. See

       Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). He claims the degree of

       intrusion was great because even though he was engaged in innocent activity,

       the officers drew their weapons on him, ordered him to the ground, handcuffed

       him, and searched him. See id. He contends the needs for law enforcement to

       detain him were low because by walking toward officers while carrying a gun,

       he was engaged in innocent behavior. See id.


[19]   Although the language of Article I, Section 11 tracks the language of the Fourth

       Amendment, the primary focus is on the reasonableness of police conduct

       under the totality of the circumstances. Litchfield, 824 N.E.2d at 359.

       Therefore, we balance “1) the degree of concern, suspicion, or knowledge that a

       violation has occurred, 2) the degree of intrusion the method of the search or

       seizure imposes on the citizen’s ordinary activities, and 3) the extent of law

       enforcement needs.” Id. at 361.


[20]   The reasonableness inquiry focuses not only on personal privacy but also on

       safety, security, and protection from crime. Mitchell v. State, 745 N.E.2d 775,

       786 (Ind. 2001). The Indiana Constitution was adopted to the end that “justice

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 9 of 11
       be established, public order maintained, and liberty perpetuated.” Ind. Const.

       preamble. Article 1 of the Bill of Rights declares that government is “instituted

       for [the people’s] peace, safety, and well-being.” Ind. Const. art. 1, § 1.

       Therefore, when government intrusion is challenged under Section 11,

       reasonableness under the totality of circumstances may include consideration of

       police officer safety. Mitchell, 745 N.E.2d at 786.


[21]   Here, the officers had a significant degree of concern. They observed Elliott,

       late at night, in the same area as others who appeared to be dealing drugs, in

       one of the state’s most dangerous neighborhoods, carrying a gun, and walking

       directly toward them. The officers’ training and experience allowed them to

       conclude that the degree of concern was high. See Austin v. State, 997 N.E.2d

       1027, 1035 (Ind. 2013) (concluding that the degree of concern was significant

       where the defendant’s behaviors were potential indicators of a drug smuggling

       operation, especially to officers familiar with the practices of drug dealers).


[22]   While the degree of intrusion the officers used when detaining Elliott was not

       minimal, see Jacobs v. State, 76 N.E.3d 846, 852 (Ind. 2017), the degree of

       intrusion was not excessive because reasonableness also considers officer safety.

       See Mitchell, 745 N.E.2d at 787. The officers said they were afraid that Elliott

       was going to rob or shoot them. Tr. Vol. II at 52, 75, 198, 239. Elliott was

       carrying a gun, which he held in a way that would let him raise and fire it

       quickly, and the officers acted prudently in detaining Elliott, making the degree

       of intrusion reasonable. Cf. Shotts v. State, 925 N.E.2d 719, 726-27 (Ind. 2010)

       (degree of intrusion from arrest and incarceration was strong but arrest was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 10 of 11
       necessary and intrusion reasonable considering needs of law enforcement and

       governmental interests at stake).


[23]   The need of the officers to stop Elliott was also high. Officers have a duty to

       deter crime and intercept criminal activity. Accordingly, in balancing the

       degree of concern that Elliott was committing a crime, the degree of intrusion

       on Elliott, and the extent of law enforcement needs, we conclude that the stop

       of Elliott was reasonable under the Indiana Constitution. See Litchfield, 824

       N.E.2d at 361.


[25]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018   Page 11 of 11
