                                                                                    FILED
                                                                           May 30 2017, 10:12 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Anthony C. Lawrence                                     Curtis T. Hill, Jr.
      Anderson, Indiana                                       Attorney General of Indiana

                                                              Caryn N. Szyper
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Deshawn Lamont Redfield,                                May 30, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              48A02-1608-CR-1806
              v.                                              Appeal from the Madison Circuit
                                                              Court
      State of Indiana,                                       The Honorable Angela Warner
      Appellee-Plaintiff.                                     Sims, Judge
                                                              Trial Court Cause No.
                                                              48C01-1406-FB-1086



      Najam, Judge.


                                       Statement of the Case
[1]   Deshawn Lamont Redfield appeals his convictions for unlawful possession of a

      firearm by a serious violent felon, as a Class B felony; possession of cocaine, as

      a Class C felony; pointing a firearm, as a Class D felony; and resisting law

      Court of Appeals of Indiana | Opinion 48A02-1608-CR-1806 | May 30, 2017                           Page 1 of 9
      enforcement, as a Class A misdemeanor. Redfield raises one issue for our

      review, namely, whether an officer violated Redfield’s right to be free from

      unreasonable search and seizure under the Fourth Amendment to the United

      States Constitution1 when the officer seized Redfield for officer safety but

      without pre-existing reasonable suspicion of criminal activity. We hold that, on

      these facts, the officer’s seizure of Redfield was reasonable. Thus, we affirm the

      trial court’s judgment.


                                  Facts and Procedural History
[2]   In the early morning hours of June 15, 2014, Anderson Police Department

      (“APD”) Officer Gabe Bailey responded to a dispatch report of a subject with a

      firearm at the Birdhouse bar. The report, which was based on an anonymous

      tip,2 described the subject as a black male wearing a gray shirt and a hat. In the

      few moments it took for dispatch to describe the suspect, Officer Bailey had

      already arrived at the Birdhouse, and he immediately observed a person who

      matched that description outside the bar. Officer Bailey radioed for backup.


[3]   While awaiting backup, Officer Bailey approached the man, Redfield, who was

      talking to another man, Eric Welker. Officer Bailey attempted to “stall” while




      1
       As explained further below, Redfield did not preserve for appellate review an independent analysis under
      Article 1, Section 11 of the Indiana Constitution.
      2
        After APD officers arrested Redfield, Officer Bailey took a statement from Richard Dawson, who had seen
      Redfield in the Birdhouse pointing a gun at others because Redfield was “upset [that] people were buying
      drinks and he didn’t get a drink bought for him.” Tr. Vol. I at 24. But there is no evidence that Dawson
      made the initial report to the APD or that Officer Bailey knew of the facts that were relayed to him by
      Dawson when Officer Bailey initially confronted Redfield. See id. at 25.

      Court of Appeals of Indiana | Opinion 48A02-1608-CR-1806 | May 30, 2017                         Page 2 of 9
      backup arrived and “made contact with” Welker, “patted him down,” and

      “spoke to him briefly.” Tr. Vol. II at 48. Officer Bailey stated that APD had

      received a call about “somebody with a gun.” Id. At that point, Redfield “took

      a step” away from Officer Bailey and “blade[d] his body away” from Officer

      Bailey’s line-of-sight “several times.” Id. at 48, 51. That is, Redfield moved the

      right side of his body away from Officer Bailey’s vantage point while he walked

      away from Officer Bailey. Further, and while only about five feet from Officer

      Bailey, Redfield made a “drawing motion” with his right hand as if he were

      “drawing for a gun.” Id. at 49. Officer Bailey thought he “was go[ing to] be in

      a gun fight” and immediately drew his sidearm and ordered Redfield to “Stop!”

      and “Let me see your hands!” Id.


[4]   Redfield disregarded Officer Bailey’s commands and continued to walk away.

      After Redfield had gone about fifty feet and continued to disregard Officer

      Bailey’s commands, Officer Bailey tased Redfield, which knocked Redfield

      down. Officer Bailey again ordered Redfield to put his hands out, and Redfield

      initially complied. But he then made a quick motion with his right hand and

      grabbed a firearm “[o]ut of the side of his pants.” Id. at 59. Officer Bailey fired

      the taser again, and, while Redfield was momentarily incapacitated by the taser,

      Officer Bailey was able to acquire Redfield’s firearm.


[5]   Thereafter, backup arrived and Redfield was arrested. His firearm was found to

      have been loaded with one hollow-point bullet along with regular ammunition.

      Officer Bailey also discovered crack cocaine on Redfield’s person.



      Court of Appeals of Indiana | Opinion 48A02-1608-CR-1806 | May 30, 2017    Page 3 of 9
[6]   The State charged Redfield with unlawful possession of a firearm by a serious

      violent felon, as a Class B felony; possession of cocaine, as a Class C felony;

      pointing a firearm, as a Class D felony; and resisting law enforcement, as a

      Class A misdemeanor. Redfield filed a motion to suppress the evidence on the

      grounds that he had been unlawfully seized by Officer Bailey and, as such, the

      evidence obtained pursuant to that seizure was obtained in violation of the

      Fourth Amendment to the United States Constitution and, for the same

      reasons, Article 1, Section 11 of the Indiana Constitution. The trial court

      denied Redfield’s motion to suppress after a hearing. At his ensuing jury trial,

      Redfield renewed his Fourth Amendment and Article 1, Section 11 objections

      to the State’s evidence, and the court overruled his objections. The jury found

      Redfield guilty as charged, and the court entered its judgment and sentence

      against Redfield accordingly. This appeal ensued.


                                     Discussion and Decision
[7]   Redfield’s arguments that “police violated his Fourth Amendment and Article

      1, Section 11 rights” raise “questions of law we review de novo.” Zanders v.

      State, ___ N.E.3d ___, No. 15S01-1611-CR-571, slip op. at 4-5 (Ind. May 4,

      2017). As the United States Supreme Court has explained with respect to the

      Fourth Amendment, “as a general matter determinations of reasonable

      suspicion and probable cause should be reviewed de novo on appeal,” while

      “findings of historical fact” underlying those legal determinations are reviewed

      “only for clear error.” Ornelas v. United States, 517 U.S. 690, 699 (1996). The

      Indiana Supreme Court applies the same standard under Article 1, Section 11.

      Court of Appeals of Indiana | Opinion 48A02-1608-CR-1806 | May 30, 2017   Page 4 of 9
      E.g., McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014). In other words, we

      review whether reasonable suspicion or probable cause exists “under a standard

      ‘similar to other sufficiency issues’—whether, without reweighing the evidence,

      there is ‘substantial evidence of probative value that supports the trial court’s

      decision.’” Id. (quoting State v. Richardson, 927 N.E.2d 379, 385 (Ind. 2010)).

      With that standard in mind,3 we turn to Redfield’s arguments on appeal.


[8]   Redfield first challenges the legality of his seizure under the Fourth

      Amendment. The crux of Redfield’s argument on this issue is that Officer

      Bailey had no reasonable suspicion that Redfield was engaged in criminal

      activity when Officer Bailey first encountered Redfield outside of the

      Birdhouse.4 As such, Redfield continues, Officer Bailey had no legal grounds

      subsequently to seize Redfield.


[9]   The Indiana Supreme Court recently held that a report of possession of a

      firearm, without more, is not sufficient to establish reasonable suspicion of




      3
         In his brief, Redfield describes this appeal as an appeal from the denial of his motion to suppress.
      Appellant’s Br. at 6. That is not correct; the evidence was presented to a jury, and Redfield objected to the
      admission of the evidence at trial. Thus, he is appealing from that admission, not from the prior denial of his
      motion to suppress. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). However, in light of that fact, the
      State asserts that our standard of review is for an abuse of discretion, as that is our typical standard of review
      for challenges to the admission of evidence. See Brown v. State, 770 N.E.2d 275, 280 (Ind. 2002). But the
      issues in this appeal are constitutional questions and, as such, we review them de novo. See, e.g., Guilmette, 14
      N.E.3d at 40. And given the correct standard of review and Redfield’s arguments on appeal, his mistaken
      characterization of this appeal as an appeal from the denial of his motion to suppress is irrelevant to our
      analysis. See id. at 40 n.1.
      4
        The parties also dispute the merits of Officer Bailey’s reliance on an anonymous tip. We assume for the
      sake of argument that the anonymous tip did not establish reasonable suspicion. Generally the “[r]eliability
      of the . . . anonymous tipster . . . must be established by reference to underlying facts and circumstances
      which indicate that the information is trustworthy.” State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011).

      Court of Appeals of Indiana | Opinion 48A02-1608-CR-1806 | May 30, 2017                                Page 5 of 9
       criminal activity. Pinner v. State, ___ N.E.3d ___, No. 49S02-1611-CR-610, slip

       op. at 5-10 (Ind. May 9, 2017). In Pinner, police received a report of a man with

       a firearm at a theater. The report described no criminal or suspicious behavior

       from the man. Nonetheless, upon arriving at the theater and identifying a

       person, Pinner, who matched the description provided, an officer searched

       Pinner for weapons and discovered a firearm. The State subsequently charged

       Pinner with unlawful possession of a firearm.


[10]   On interlocutory appeal from the trial court’s denial of Pinner’s motion to

       suppress, the Indiana Supreme Court held that the State violated Pinner’s

       Fourth Amendment rights when the officer searched his person at the theater.

       Id. The court concluded that there was “no evidence in the record from which

       an inference of criminal activity can be drawn” because the officer had no

       reason to suspect that Pinner’s possession of a firearm was contrary to Indiana

       law. Id., slip op. at 8. The court also noted that, “[a]lthough nervous, Pinner

       made no furtive or suspicious movements, nor did he reach for the weapon; and

       he made no attempt to flee.” Id., slip op. at 4, 8-10. As such, there was no

       evidence from the encounter itself that gave the officer cause to search Pinner

       for weapons.


[11]   Our facts are materially different from those in Pinner on the latter point. That

       is, while we agree with Redfield that Officer Bailey had no reasonable suspicion

       of criminal activity at the time he initially approached, that fact does not negate

       the reasonableness of Officer Bailey’s ensuing conduct in response to Redfield’s

       behavior during the encounter. It is settled law that, if an officer has

       Court of Appeals of Indiana | Opinion 48A02-1608-CR-1806 | May 30, 2017    Page 6 of 9
       commenced “a nonseizure confrontation without a pre-existing reasonable

       suspicion supporting a frisk, but such suspicion suddenly appears (most likely

       because of the suspect’s conduct), then the officer is entitled to frisk for his own

       protection.”5 4 Wayne R. LaFave Search & Seizure § 9.6(a) (5th ed. 2012).


[12]   That is what the facts here demonstrate. Officer Bailey responded to an

       anonymous report of a person with a firearm. Officer Bailey then immediately

       observed a person matching the suspect’s description engaged with another

       man. Officer Bailey approached and patted down the other man, noting that

       APD had received a report of a person with a firearm. Redfield then became

       nervous, “blade[d]” his body away from Officer Bailey, and made a hand

       motion consistent with drawing a firearm. Tr. Vol. II at 48-49. It was at that

       moment that Officer Bailey, whose immediate thought was that he was about to

       become engaged “in a gun fight,” id. at 49, seized Redfield6 by drawing his own

       sidearm and ordering Redfield to “Stop!” and show his hands. Id.


[13]   Officer Bailey’s initial encounter with Redfield was not a seizure. It became a

       seizure only after Redfield’s own conduct reasonably and suddenly gave rise to

       a fear for officer safety. Thus, Officer Bailey’s seizure of Redfield was lawful



       5
          Redfield asserts that “we have held that the defendant’s actions of turning away from a police officer and
       putting something down his pants was not sufficient conduct to justify an investigatory stop.” Appellant’s Br.
       at 17. But neither of the cases Redfield cites in support of that assertion, Bridgewater v. State, 793 N.E.2d
       1097, 1100-02 (Ind. Ct. App. 2003), trans. denied, and Webb v. State, 714 N.E.2d 787, 789 (Ind. Ct. App.
       1999), involves an analysis of a nonseizure confrontation in which the facts then escalate to justify, or not, a
       frisk for officer protection.
       6
        We reject Redfield’s argument on appeal that the moment of seizure only happened later when Officer
       Bailey first tased Redfield.

       Court of Appeals of Indiana | Opinion 48A02-1608-CR-1806 | May 30, 2017                             Page 7 of 9
       under the Fourth Amendment. LaFave, supra, at § 9.6(a); see also, e.g., United

       States v. Ellis, 501 F.3d 958, 961-62 (8th Cir. 2007) (holding that an officer did

       not violate the Fourth Amendment when, during the course of a consensual

       encounter, the officer searched the defendant after the officer had asked him if

       he was armed and the defendant then “act[ed] nervously and reach[ed] toward

       his pocket”); Commonwealth v. Stephens, 885 N.E.2d 785, 796-97 (Mass. 2008)

       (holding that an officer did not violate the Fourth Amendment when, during a

       nonseizure encounter, he searched the defendant for weapons after the officer

       had observed the defendant holding “a black object” in his hands, which he

       “quickly lowered” to the area of his lap).


[14]   Accordingly, Redfield’s decision to disregard Officer Bailey’s lawful command

       and attempt to flee was itself not lawful. Ind. Code § 35-44.1-3-1(a)(3) (2013).

       Once Redfield attempted to flee from Officer Bailey’s lawful command, Officer

       Bailey had probable cause to further seize and arrest Redfield. He did so and,

       in turn, lawfully discovered and seized the evidence now in question. We thus

       affirm the trial court’s judgment on the Fourth Amendment issue.


[15]   Finally, Redfield asserts on appeal that the seizure of his person violated his

       rights under Article 1, Section 11 of the Indiana Constitution. However, in his

       arguments to the trial court, Redfield mentioned Article 1, Section 11 but did

       not provide any independent analysis under that provision of the law and facts.

       Rather, Redfield’s arguments below were that his state rights were violated only

       for the same reasons his federal rights were violated. Accordingly, we conclude

       that Redfield has not preserved for appellate review any independent claim

       Court of Appeals of Indiana | Opinion 48A02-1608-CR-1806 | May 30, 2017     Page 8 of 9
       under Article 1, Section 11. See Wilkins v. State, 946 N.E.2d 1144, 1147 (Ind.

       2011) (“Because he provides no authority or independent analysis supporting a

       separate standard under the state constitution, any state constitutional claim is

       waived.”). Insofar as Redfield may have preserved a claim under Article 1,

       Section 11 for our review, for the same reasons his federal rights were not

       violated, neither were his rights under Article 1, Section 11, and we affirm the

       trial court on this issue as well.


[16]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 48A02-1608-CR-1806 | May 30, 2017   Page 9 of 9
