MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Aug 13 2019, 8:38 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan D. Rayl                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         George P. Sherman
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony J. Overton,                                      August 13, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2090
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Crawford,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G09-1711-F6-44654



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019                 Page 1 of 11
[1]   Anthony Overton appeals his conviction for Level 6 felony theft. His sole

      contention is that the stolen property found on his person during a search

      incident to arrest should not have been admitted into evidence because its

      discovery resulted from an unconstitutional seizure.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Around 1:00 a.m. on November 18, 2017, a concerned citizen made a 911 call

      from outside an apartment complex at the corner of 11th Street and College

      Avenue in Indianapolis. The caller, who provided his name and phone

      number, reported that there was a black man wearing a dark jacket with a hood

      being “super suspicious.” State’s Exhibit 1B (recording of 911 call). He said that

      the man had been walking up and down “patrolling this area” and using a light

      to look into parked cars near a bar and strip mall. Id. The caller opined, “I

      think he’s going to try and break into cars.” Id. While still observing the man

      during the call, the caller reported that the man walked down 11th Street and

      then just turned into an alley.


[4]   IMPD Officers Linford Parker and Kevin Moore were dispatched in response

      to the call, and Officer Brian Hofmeister backed up on the run because he was

      in the area. Officer Hofmeister drove southbound down the alley off of 11th

      Street that connects with 10th Street and runs parallel with College Avenue and

      Broadway Street. He turned eastbound on 10th Street and then northbound on

      College Avenue when a red truck caught his attention. The truck was parked in

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019   Page 2 of 11
      a parking lot on the edge of the alley through which Officer Hofmeister had just

      driven. The interior light of the truck was on, and it had not been on moments

      before. Officer Hofmeister then observed the legs of a person “bent over inside”

      the truck. Transcript at 108. He had not seen anyone walking in that block

      while patrolling the area.


[5]   As a result of his observations, Officer Hofmeister stopped and radioed Officers

      Parker and Moore. He said, “I think I got somebody over here in the alley,

      around 10th and 11th and College … watch the truck, you can kind of see

      somebody wrestling around inside of it.” Id. at 101. Officer Parker responded

      that he was “right there”, so Officer Hofmeister began to drive around to the

      mouth of the alley for backup. Id. at 106. After Officer Hofmeister turned off

      of College to 11th, he heard Officer Parker radio that he had “the person.” Id.

      at 102. Officer Parker “saw [Overton] in the alley coming from the truck” and

      stopped him about thirty to forty feet from the truck. Id. at 119.


[6]   Officer Hofmeister then turned onto Broadway and could see that Officer

      Parker had Overton in custody.1 Officer Hofmeister pulled around to assist

      and, after running a license plate check on the truck, determined that the truck

      had been recently reported stolen. Additionally, Overton matched the




      1
       Contrary to Overton’s assertion on appeal, Officer Hofmeister did not testify that Overton was in handcuffs
      at this point in time.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019                 Page 3 of 11
      description provided by the 911 caller, and the truck had a busted-out rear

      window.


[7]   Shortly thereafter, Officer Moore arrived on the scene to assist. Overton was in

      handcuffs at this point, and Officer Parker informed Officer Moore that

      Overton was being placed under arrest for theft of the truck. Officer Moore

      then searched Overton’s person and recovered, among other items, a distinctive

      pocket knife and a car key from Overton’s front pocket. 2 Both of these

      belonged to the owner of the stolen truck, Billy Albright, whom Officer

      Hofmeister brought to the scene. Albright indicated that the items were inside

      his truck when it was stolen from outside his residence.


[8]   The State charged Overton with Class A misdemeanor theft and Class B

      misdemeanor unauthorized entry of a motor vehicle. Additionally, the State

      alleged that Overton had a prior conviction for conversion, which elevated his

      theft charge to a Level 6 felony.


[9]   Overton’s one-day jury trial was held on June 13, 2018. Officer Parker did not

      testify due to illness, but Officers Hofmeister and Moore testified for the State.

      During the trial, Overton sought to suppress the items found on his person,

      claiming that their discovery resulted from an illegal seizure. The trial court

      denied the motion to suppress and admitted the evidence. The jury ultimately

      found Overton guilty of theft as a Level 6 felony and not guilty of unauthorized




      2
          Overton also had a screwdriver in his back pocket.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019   Page 4 of 11
       entry of a motor vehicle. On August 2, 2018, the trial court sentenced Overton

       to 545 days in community corrections. Overton now appeals, challenging the

       admission of the knife and key found on his person following an allegedly

       unconstitutional seizure.


                                           Discussion & Decision


                                             Standard of Review


[10]   The trial court has broad discretion when ruling on the admissibility of

       evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). On appeal, we

       review such rulings for abuse of discretion and reverse only when admission is

       clearly against the logic and effect of the facts and circumstances and the error

       affects a party’s substantial rights. Id. “But when an appellant’s challenge to

       such a ruling is predicated on an argument that impugns the constitutionality of

       the search or seizure of the evidence, it raises a question of law, and we

       consider that question de novo.” Id. at 40-41.


[11]   Overton argues the seizure violated both the Fourth Amendment of the United

       States Constitution and Article 1, Section 11 of the Indiana Constitution.

       Although these provisions contain textually similar language, it is well

       established that they must be separately analyzed. Graham v. State, 971 N.E.2d

       713, 716 (Ind. Ct. App. 2012), trans. denied. Thus, we will address each in turn.


                                             Fourth Amendment


[12]   The Fourth Amendment provides:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019   Page 5 of 11
               The right of the people to be secure in their persons, houses,
               papers and effects, against unreasonable searches and seizures,
               shall not be violated, and no warrants shall issue, but upon
               probable cause, supported by oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


       One exception to the warrant requirement for a seizure is an investigatory stop

       based on reasonable suspicion. Campos v. State, 885 N.E.2d 590, 597 (Ind.

       2008); Terry v. Ohio, 392 U.S. 1, 30-31 (1968). “Reasonable suspicion exists

       where the facts known to the officer, together with the reasonable inferences

       arising from such facts, would cause an ordinarily prudent person to believe

       that criminal activity has or is about to occur.” Campos, 885 N.E.2d at 597

       (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999)). Further, an

       investigatory stop may be based upon the collective information known to the

       law enforcement organization as a whole rather than just on the personal

       knowledge of the arresting officer. See Dunson v. State, 64 N.E.3d 250, 254 (Ind.

       Ct. App. 2016); see also Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003).


[13]   “Whether the officer’s suspicion was reasonable is determined on a case-by-case

       basis by engaging in a fact-sensitive analysis of the totality of the

       circumstances.” State v. Eichholtz, 752 N.E.2d 163, 165 (Ind. Ct. App. 2001); see

       also U.S. v. Arvizu, 534 U.S. 266, 274 (2002) (explaining that circumstances

       should not be considered in isolation from each other and that although each

       might be susceptible to an innocent explanation, when taken together the

       circumstances may warrant further investigation by officers). “Reasonable


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019   Page 6 of 11
       suspicion entails some minimum level of objective justification for making a

       stop; something more than an inchoate and unparticularized suspicion or

       hunch, but considerably less than proof of wrongdoing by a preponderance of

       the evidence.” State v. Straub, 749 N.E.2d 593, 598 (Ind. Ct. App. 2001).


[14]   Here, Officer Parker had reasonable suspicion to detain Overton in the alley,

       after seeing him walk away from the truck, based on the other information he

       had learned from dispatch and Officer Hofmeister. Specifically, around 1:00

       a.m., the officers were dispatched to the one-block area on the report of a black

       man wearing a dark jacket with a hood walking around and suspiciously

       peering into parked vehicles with a light. Officer Hofmeister patrolled the area

       and observed an interior light on in a truck parked in the middle of the block,

       just off an alley. This light had not been on moments before when he drove

       down the alley, and Officer Hofmeister could see that someone was bent over

       inside the truck with their feet still outside on the ground. Officer Hofmeister

       did not see any other individuals walking in the area. He radioed Officer

       Parker regarding the person in the truck. Officer Parker was nearby and

       stopped Overton in the dark alley, walking away from the truck, seconds later. 3




       3
         The record does not establish a precise timeline, but it can be reasonably inferred from Officer Hofmeister’s
       testimony and the map admitted into evidence that the time period between Officer Hofmeister’s
       observations and Officer Parker stopping Overton in the alley was a matter of seconds. Another reasonable
       inference from the evidence is that the person Officer Hofmeister saw in the truck was Overton, whom
       Officer Parker stopped after seeing Overton nearby in the alley coming from the same truck.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019                    Page 7 of 11
       Overton fit the description given by the caller, a concerned citizen, and had just

       exhibited suspicious behavior similar to that reported by the caller.


[15]   Under the totality of the circumstances, Officer Parker had particular and

       objective bases for suspecting that Overton was engaged in criminal activity.

       That is, the information known to the officers supported a reasonable suspicion

       that Overton was looking into vehicles for items to steal in the early morning

       hours when it was unlikely he would be detected. Officer Parker, thus, acted

       reasonably when he made an investigatory stop of Overton in the dark alley to

       assess the situation further with backup from Officer Hofmeister. Indeed, it

       would have been poor police work for Officer Parker not to have stopped

       Overton to investigate his behavior further.


[16]   Within a short time after Officer Parker stopped Overton, Officer Hofmeister

       finished driving around the block and assisted with the investigatory stop.

       Officer Hofmeister promptly checked the license plate on the truck and

       determined that it had been reported stolen two days prior. Additionally, the

       truck had a broken back window providing access to the cab of the truck. At

       this point, the officers’ reasonable suspicion escalated to probable cause, and

       Overton was placed under arrest for auto theft 4 and then searched incident to

       arrest by Officer Moore, who had just arrived on the scene. See Sebastian v.




       4
         It is unclear when Overton was placed in handcuffs, but the record does establish that he was handcuffed by
       the time Officer Moore arrived, which was after Officers Hofmeister and Park had discovered that the truck
       was stolen and had decided to place Overton under arrest.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019                  Page 8 of 11
       State, 726 N.E.2d 827, 830 (Ind. Ct. App. 2000) (“Probable cause to arrest exists

       where the officer has knowledge of facts and circumstances that would warrant

       a man of reasonable caution to believe that a suspect has committed the

       criminal act”, and “[u]nder the search-incident-to-arrest exception to the

       warrant requirement, a police officer may conduct a search of the defendant’s

       person….”), trans. denied. The stolen items found on Overton’s person during

       this search were admissible at trial, as their discovery did not result from a

       violation of the Fourth Amendment.


                                             Article 1, Section 11


[17]   Overton also asserts a violation of Article 1, Section 11 of the Indiana

       Constitution, which “safeguards the ‘right of the people to be secure in their

       persons, houses, papers, and effects, against unreasonable search or seizure.’”

       Watkins v. State, 85 N.E.3d 597, 600 (Ind. 2017). An analysis under Article 1,

       Section 11 “turns on whether the police conduct was reasonable under the

       totality of the circumstances.” Carpenter v. State, 18 N.E.3d 998, 1002 (Ind.

       2014). In making this evaluation, we apply the test established by our Supreme

       Court in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). “The ‘reasonableness of

       a search or seizure [turns] on a balance of: 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.’” J.G. v. State, 93 N.E.3d 1112, 1122-23

       (Ind. Ct. App. 2018) (quoting Litchfield, 824 N.E.2d at 361) (alteration in J.G.),

       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019   Page 9 of 11
[18]   In some cases Article 1, Section 11 “confers greater protections to individual

       rights than the Fourth Amendment”, but Indiana has adopted the Terry

       rationale in determining the legality of investigatory stops under Article 1,

       Section 11. W.H. v. State, 928 N.E.2d 288, 296 (Ind. Ct. App. 2010), trans.

       denied; see also State v. Cunningham, 26 N.E.3d 21, 25 (Ind. 2015) (observing that

       many search and seizure issues are resolved in the same manner under both

       constitutions, including an investigatory stop based on reasonable suspicion);

       Holbert v. State, 996 N.E.2d 396, 400 (Ind. Ct. App. 2013), trans. denied.


[19]   As discussed previously, Officer Parker had reasonable suspicion to make a

       brief investigatory stop of Overton to address behaviors observed by the 911

       caller, Officer Hofmeister, and himself in the alley in the middle of the night.

       The degree of suspicion based on the totality of the circumstances was

       significant rather than “quite low” as suggested by Overton. See Appellant’s Brief

       at 29. The officers then needed to dispel their reasonable suspicions that

       Overton was looking to take (or actually taking) items from unoccupied

       vehicles in the area. Finally, the degree of intrusion was not high under the

       circumstances. Officer Parker stopped Overton walking in the alley for a brief

       investigation, and Officer Hofmeister arrived as backup within a very short

       time. The investigatory stop then quickly led to the discovery that the truck was

       stolen, and the stop evolved into an arrest based on probable cause. We

       conclude the officers acted reasonably under the circumstances and, thus, find

       no violation of Article 1, Section 11.


[20]   Judgment affirmed.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019   Page 10 of 11
Kirsch, J. and Vaidik, C.J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2090 | August 13, 2019   Page 11 of 11
