                                                                                FILED
                                                                           May 25 2016, 8:19 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Randy M. Fisher                                           Gregory F. Zoeller
      Deputy Public Defender                                    Attorney General of Indiana
      Leonard, Hammond, Thoma & Terrill                         James B. Martin
      Fort Wayne, Indiana                                       Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kelly C. Mullen,                                          May 25, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A05-1511-CR-1959
              v.                                                Interlocutory Appeal from the
                                                                Allen Superior Court
      State of Indiana,                                         The Honorable John F. Surbeck,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                02D04-1507-F4-47




      Crone, Judge.


                                              Case Summary
[1]   The State charged Kelly C. Mullen with level 4 felony possession of a firearm

      by a serious violent felon (“SVF”) and class A misdemeanor resisting law

      enforcement. Mullen now brings this interlocutory appeal challenging the trial

      Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016                       Page 1 of 16
      court’s denial of his motion to suppress. He contends that the handgun

      recovered by police was seized in violation of the federal constitutional

      guarantees against unreasonable search and seizure. We conclude that the

      police had reasonable suspicion that criminal activity had occurred justifying an

      investigatory stop of Mullen and a reasonable belief that he was armed.

      Therefore, we conclude that the handgun was constitutionally seized and affirm

      the denial of Mullen’s motion to suppress.


                                  Facts and Procedural History
[2]   In July 2015, the Villages of Hanna Apartment Complex (“the Villages”) in

      Fort Wayne was the site of frequent drug activity and gun violence. There had

      been several homicides in the area including one that had occurred a few

      months earlier. The Villages had posted no-loitering signs over all the building

      entrances because management believed that the high level of loitering was

      related to the drug activity and violence. Additionally, the Villages had

      contacted the Fort Wayne Police Department for assistance in controlling

      loitering, specifically requesting that the police stop and identify individuals on

      the property to determine whether they were legally on the property. Tr. at 6.


[3]   At about 10:06 p.m. one evening that July, Detective Marc Deshaies was

      observing the southern doorway of the Villages Building 2 from about 100 to

      140 feet away. Building 2 had two doorways at opposite ends allowing access

      to an interior hallway, which was lined by the individual apartment doors.

      Because the interior hallway was lit, Detective Deshaies could see a large group

      of males in the hallway, but he could not determine how many there were. He
      Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016     Page 2 of 16
      observed that one or two males would sometimes lean out of the entry, look

      both ways down the outside of the building, and then lean back in. Detective

      Deshaies had worked ten years as an officer in vice, narcotics, and the gang task

      force and knew from experience that such behavior was not consistent with

      people who were just hanging out. Rather, he knew that it was “very consistent

      with open air drug sales in which you have people in the hallways dealing

      drugs, [and] you have people looking out to see if there’s police coming [or]

      looking for any other threats that might be coming up to the doorways.” Id. at

      8. Detective Deshaies did not see any actual crimes being committed.


[4]   Detective Deshaies asked Detective Stacey Jenkins to enter the doorway at the

      other end of Building 2 to see how the group in the hallway responded.

      Detective Jenkins entered the doorway and radioed to Detective Deshaies the

      exact time of his entry. Once inside the hallway, Detective Jenkins saw Mullen

      leave one of the apartments and proceed toward the exit that Detective

      Deshaies was observing.


[5]   Within a second of Detective Jenkins’s entry into Building 2, Detective

      Deshaies saw two males, one of whom was Mullen, hurriedly exit the building.

      “Instead of walking down the sidewalk [the two males] instead chose to walk

      very closely to the side of the building … and were walking so fast that it was

      between a walk and a run.” Id. at 9. Both men were looking over their right

      shoulder directly toward the door they had just exited.




      Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016   Page 3 of 16
[6]   Detective Deshaies and his partner approached the two men from an angle

      coming across the parking lot. Detective Deshaies used his flashlight to

      illuminate the men and identified himself as a police officer. Detective

      Deshaies did not tell the men to stop or to come to him. One of the men

      stopped, but the other man, later identified as Mullen, increased his pace and

      changed direction. Detective Matthew Foote and his partner engaged the man

      who had stopped walking. Detective Deshaies increased his pace to catch up

      with Mullen.


[7]   Mullen turned and faced Detective Deshaies, holding his ID in his hand.

      Detective Deshaies asked Mullen if he lived there and where he lived. “Mullen

      kept pointing at the building but couldn’t give [Detective Deshaies] an address.”

      Id. at 11. At some point, Detective Deshaies told Mullen that “the reason that

      he was being stopped was because he was loitering in the other building.” Id. at

      21-22. Rather than squarely facing Detective Deshaies, Mullen “turned his

      body at an angle” to him. Id. at 11. Detective Deshaies considered this “a

      fighting stance” and “that sort of mannerism immediately drew [his] attention

      that [Mullen] might either be preparing to fight or might have a weapon on

      him.” Id. While maintaining his angled stance, Mullen began backing away

      from Detective Deshaies with his eyes darting left to right. Detective Deshaies

      believed that Mullen “might be preparing to flee.” Id. at 12. From Detective

      Deshaies’s perspective, Mullen was not free to leave. Id. at 21. Detective

      Deshaies “was concerned for weapons,” and he asked Mullen if he had any

      weapons on his person. Id. at 13. Mullen told Detective Deshaies that he


      Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016    Page 4 of 16
       “couldn’t search him.” Id. Detective Deshaies told Mullen that he “wasn’t

       searching him” and asked Mullen again if he had any weapons on his person.

       Id. Mullen again told the detective that he “couldn’t search [him], and he

       finally stated that [he had] a knife in [his] pocket, and when he said that he

       immediately reached down to his pocket.” Id. “He reached his hand down to

       his waist area as if he was gonna draw the knife.” Id.


[8]    In response to Mullen’s gesture, Detective Deshaies grabbed Mullen’s right

       wrist and his partner grabbed Mullen’s left wrist. Mullen pulled aggressively

       with both shoulders trying to free himself and “was still shouting that [the

       officers] couldn’t search him.” Id. at 14. Meanwhile Detective Foote, who was

       about twenty feet away, saw the struggle and approached to assist. He saw the

       outline of a handle of a gun through Mullen’s shirt, and said, “[G]un.” Id. at

       30. The officers forced Mullen to the ground. The officers discovered a 1911-

       style Llama .45 caliber handgun in Mullen’s waistband on his right hip, where

       he had been reaching.


[9]    After police found the gun, Mullen provided an address where he said he lived.

       Id. at 25. Police went to that apartment and spoke with the occupant, who

       informed them that Mullen lived with her but was not on the lease and was not

       supposed to live there. Id. Mullen was not legally authorized to live there

       because it was government-subsidized housing. Id. at 25-26.


[10]   The State charged Mullen with level 4 felony possession of a firearm by a SVF

       and class A misdemeanor resisting law enforcement. Mullen filed a motion to


       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016   Page 5 of 16
       suppress all evidence obtained as a result of his allegedly unconstitutional

       seizure and a supporting memorandum of law. The trial court held an

       evidentiary hearing. At the conclusion of the hearing, the trial court denied

       Mullen’s motion. The trial court determined that the facts and circumstances

       established an escalating situation that began with police observation of Mullen

       and others violating the apartment rules and that police had been asked by the

       property owners to assist with enforcement of these rules within the complex.

       The trial court concluded that the circumstances supported Detective

       Deshaies’s right to ask Mullen for identification. The trial court also

       determined that Mullen acted suspiciously in refusing to specifically answer

       Detective Deshaies about where he lived, yelling that the police could not

       search him, and reaching for his pocket after telling the detective that he had a

       knife. The trial court concluded that these additional circumstances gave the

       officers reasonable suspicion to “make a stop,” apparently referring to the

       moment that the officers put their hands on Mullen. Id. at 57. On Mullen’s

       request, the trial court certified its order denying his motion to suppress for

       interlocutory appeal.


                                       Discussion and Decision
[11]   Mullen argues that the police seized the handgun in violation of the Fourth

       Amendment to the United States Constitution, and therefore the gun was




       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016    Page 6 of 16
       inadmissible. 1 “We review a trial court’s denial of a defendant’s motion to

       suppress deferentially, construing conflicting evidence in the light most

       favorable to the ruling, but we will also consider any substantial and

       uncontested evidence favorable to the defendant.” Robinson v. State, 5 N.E.3d

       362, 365 (Ind. 2014). We accept the trial court’s findings of fact unless they are

       clearly erroneous, and we do not reweigh the evidence. Id. However, the

       constitutionality of a search or seizure is a question of law that we review de

       novo. Lewis v. State, 949 N.E.2d 1243, 1246 (Ind. 2011). 2


[12]   The Fourth Amendment states,

                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.




       1
         Mullen also raises a claim under Article 1, Section 11 of the Indiana Constitution. Although Mullen cited
       the Indiana Constitution in his motion to suppress, he did not present any state constitutional argument to
       the trial court. “‘A party generally waives appellate review of an issue or argument unless that party
       presented that issue or argument before the trial court.’” Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct. App.
       2014) (quoting Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied).
       Therefore, Mullen’s state constitutional claim is waived.
       2
         The State asserts that “[Mullen] has the burden of showing that the trial court’s ruling was contrary to
       law.” Appellee’s Br. at 12-13 (citing State v. McCaa, 963 N.E.2d 24, 29 (Ind. Ct. App. 2012), trans. denied).
       However, in McCaa, the State was appealing from the grant of a motion to suppress. On appeal from the
       grant of a motion to suppress, “the State appeals from a negative judgment and must show that the trial
       court’s ruling on the suppression motion was contrary to law.” 963 N.E.2d at 29. “The State has the burden
       of demonstrating that the measures it used to seize the information or evidence were constitutional.” State v.
       Augustine, 851 N.E.2d 1022, 1025 (Ind. Ct. App. 2006). Here, Mullen is not appealing from a negative
       judgment because the State always bears the primary burden of proving the constitutionality of a search or
       seizure.

       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016                             Page 7 of 16
       “The fundamental purpose of the Fourth Amendment ‘is to protect the

       legitimate expectations of privacy that citizens possess in their persons, their

       homes, and their belongings.’” Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct.

       App. 2013) (quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).

       This protection has been extended to the states through the Fourteenth

       Amendment to the United States Constitution. Krise v. State, 746 N.E.2d 957,

       961 (Ind. 2001). In general, the Fourth Amendment prohibits searches and

       seizures conducted without a warrant that is supported by probable cause.

       Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). As a deterrent mechanism,

       evidence obtained without a warrant is not admissible in a prosecution unless

       the search or seizure falls into one of the well-delineated exceptions to the

       warrant requirement. Id. “Where a search or seizure is conducted without a

       warrant, the State bears the burden to prove that an exception to the warrant

       requirement existed at the time of the search or seizure.” Brooks v. State, 934

       N.E.2d 1234, 1240 (Ind. Ct. App. 2010), trans. denied (2011).


[13]   Initially, the parties dispute when Mullen was “seized” for purposes of Fourth

       Amendment protection. Mullen argues that he was unconstitutionally detained

       from the onset of his encounter with Detective Deshaies. The State maintains

       that their initial encounter was consensual and that a seizure did not occur until

       the officers grabbed Mullen’s wrists, by which time Mullen’s “behavior

       provided articulable facts reasonably leading Detective Deshaies to believe that

       [Mullen] was armed and dangerous.” Appellee’s Br. at 14.




       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016   Page 8 of 16
[14]   “‘Not every encounter between a police officer and a citizen amounts to a

       seizure requiring objective justification.’” McLain v. State, 963 N.E.2d 662, 667

       (Ind. Ct. App. 2012) (quoting Powell v. State, 912 N.E.2d 853, 859 (Ind. Ct.

       App. 2009)).

               Determining whether this was a consensual encounter or 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. 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. 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.


       Clark, 994 N.E.2d at 261-62 (citations and quotation marks omitted).


[15]   Specifically, Mullen contends, “At the time Detective Deshaies stopped,

       questioned, and detained [him], he was not free to return to his home at

       Apartment 2A and therefore [the circumstances] cannot possibly constitute a

       consensual encounter between [him] and police officers.” Appellant’s Br. at 13.

       He claims that we “should only consider the events and circumstances prior to

       Mr. Mullen being ordered to stop by Detective Deshaies.” Id. (emphasis added).

       Significantly, the record reveals no evidence that Detective Deshaies ordered

       Mullen to stop. If Detective Deshaies had ordered Mullen to stop, in addition

       to identifying himself as a police officer and shining his flashlight on Mullen,
       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016   Page 9 of 16
       Detective Deshaies’s actions would have constituted a show of authority. See

       Williams v. State, 745 N.E.2d 241, 245 (Ind. Ct. App. 2001) (“Williams was

       ‘seized’ for Fourth Amendment purposes when Officer Tyndall ordered him to

       stop.”); Murphy v. State, 747 N.E.2d 557, 559 (Ind. 2001) (“[A] seizure of the

       individual does not occur until ‘the officer, by means of physical force or show

       of authority, has in some way restrained the liberty of a citizen.’”) (quoting

       Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968)). But that is not what happened here.

       In this case, Mullen stopped to show Detective Deshaies his ID without being

       ordered to stop.


[16]   The record shows that at around 10:06 p.m., Detective Deshaies and his partner

       walked toward Mullen and his companion. At about the same time, Detective

       Foote and his partner also approached the men. Detective Deshaies shined his

       flashlight on the men and identified himself as a police officer. Whether these

       circumstances amount to a show of authority such that a reasonable person

       would have believed that he or she was not free to leave is not a question we

       need to decide. Assuming, without deciding, that Mullen yielded to a show of

       authority when he stopped to show Detective Deshaies his ID, the seizure

       would not have been unconstitutional because the facts known to Detective

       Deshaies at that time supported a reasonable suspicion of criminal activity.


               [A]n officer may conduct a brief investigatory stop of an
               individual when, based on a totality of the circumstances, the
               officer has a reasonable, articulable suspicion that criminal
               activity is afoot. The investigatory stop, also known as a Terry
               stop, is a lesser intrusion on the person than an arrest and may
               include a request to see identification and inquiry necessary to
       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016    Page 10 of 16
               confirm or dispel the officer’s suspicions. Reasonable suspicion
               is determined on a case by case basis. The reasonable suspicion
               requirement is met where the facts known to the officer at the
               moment of the stop, together with the reasonable inferences from
               such facts, would cause an ordinarily prudent person to believe
               criminal activity has occurred or is about to occur.


       J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App. 2015) (citations and quotation

       marks omitted).


[17]   Before applying the reasonable suspicion requirement to the facts of this case,

       we must first address Mullen’s claim that Terry does not apply to private

       property. Mullen relies on State v. Atkins, 834 N.E.2d 1028, 1032 (Ind. Ct. App.

       2005), trans. denied. The Atkins court observed that “the Terry stop and frisk rule

       applies to cases involving a brief encounter between a citizen and a police

       officer on a public street.” Id. (citing Illinois v. Wardlow, 528 U.S. 119, 123

       (2000)). The Atkins court concluded that the reasonable suspicion analysis

       articulated in Terry did not apply because the encounter between Atkins and the

       police did not occur on a public street but on Atkins’s “own property [the

       property on the side of his house], in a place where he had a right to be.

       Therefore, the trial court properly suppressed evidence of the handgun because,

       absent probable cause, Officer DeJong had no right to encounter and stop

       Atkins on his own property.” Id. Subsequent jurisprudence shows that a

       simple bright-line distinction between public and private property alone does

       not dictate whether an investigatory stop based on reasonable suspicion

       comports with the Fourth Amendment.


       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016   Page 11 of 16
[18]   In Hardister v. State, 849 N.E.2d 563 (Ind. 2006), our supreme court considered

       whether the police had reasonable suspicion of criminal activity to stop and

       detain individuals on private property. There, the police received an

       anonymous tip that persons with guns were “cooking drugs” at a residence

       located on one side of a duplex. Id. at 568. The police entered the front porch

       of the duplex and knocked on the door. Two men looked out the windows and

       made eye contact with the police. The police then heard running footsteps, and

       they looked through the windows and saw the silhouettes of two men fleeing to

       the rear of the residence. The police believed that the two men were trying to

       exit through the back door, so they followed a sidewalk alongside the house to

       the rear. When no one exited, the police looked through a rear window and

       saw a man pouring white powder down the kitchen sink. The Hardister court

       concluded that

               the tip that residents were “cooking drugs” disclosed neither a
               basis of knowledge nor evidence of reliability, and was
               insufficient standing alone to establish reasonable suspicion.
               However, the residents’ headlong flight toward the rear of the
               house coupled with the anonymous tip and [the duplex’s]
               location in an area known for narcotics traffic furnished
               reasonable suspicion justifying an investigatory stop of the fleeing
               occupants. The officers’ efforts to intercept the fleeing pair were
               therefore justified as necessary to pursue the investigation.


       Id. at 570-71. The court noted that “[i]n the typical Terry case police acting

       upon reasonable suspicion detain a suspect in a public place,” and

       acknowledged that “[t]his case is unusual in that police pursuit involved an

       invasion of the curtilage of a residence.” Id. at 571. Nevertheless, the court
       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016   Page 12 of 16
       rejected Hardister’s contention that the police could not invade the curtilage of

       a residence without probable cause.


[19]   In Perez v. State, 981 N.E.2d 1242 (Ind. Ct. App. 2013), another panel of this

       Court relied on Hardister in rejecting Perez’s argument that his detention by

       police was unconstitutional solely because police officers were on his private

       property. Id. at 1249. The court held that the police had reasonable suspicion

       that criminal activity had occurred or was about to occur, and therefore could

       lawfully detain Perez and place him in handcuffs to control the scene while they

       conducted their investigation. Id. See also Jadrich v. State, 999 N.E.2d 1022,

       1027-29 (Ind. Ct. App. 2013) (discussing Hardister and cases outside Indiana

       that have addressed whether police may enter onto curtilage where it is justified

       by observations that indicated reasonable suspicion that criminal activity might

       be afoot); J.D. v. State, 902 N.E.2d 293, 295 n.2 (Ind. Ct. App. 2009) (observing

       that Atkins relied on boiler-plate language from Wardlow, 528 U.S. at 123, and

       that the applicability of Terry in places such as a front porch was not an issue in

       that case), trans. denied. Accordingly, we reject Mullen’s contention that the

       police were not permitted to conduct a Terry stop just because they were on

       private property. 3




       3
         A number of factors are important in considering whether police conduct complies with the Fourth
       Amendment, such as an individual’s expectation of privacy, the nature of the property, and the needs of law
       enforcement. Here, although Mullen purportedly lived in the Villages, he did not have a legal right to reside
       there because he was not on the lease and was prohibited from living in government-subsidized housing.
       Furthermore, behavior that supports a reasonable suspicion that an individual is on another’s private
       property without the owner’s permission may justify a Terry stop. See United States v. Aragones, 483 F. App'x
       415, 417-18 (10th Cir. 2012) (“In light of these facts, a reasonable officer could have suspected that Mr.

       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016                         Page 13 of 16
[20]   As for whether Detective Deshaies had reasonable suspicion that criminal

       activity had occurred to justify a Terry stop, we observe that Detective Deshaies

       knew that the Villages had had considerable problems with drug activity and

       gun violence and that the management believed that these problems were linked

       to the loitering occurring on its property. He also knew that to address these

       problems, the Villages had posted no-loitering signs and had asked the police to

       help them enforce the no-loitering policy and to stop and identify individuals

       who were not legally on the property. Detective Deshaies observed a large

       group of men loitering in Building 2, despite the no-loitering signs that had been

       posted. In addition, some of the men appeared to be acting as lookouts, which

       was consistent with illegal drug activity. Then, when Detective Jenkins entered

       the opposite doorway, two men quickly exited, walked close to the building

       rather than on the sidewalk, and kept their eyes on the door behind them as if

       someone might be coming after them. From these circumstances, an officer in

       Detective Deshaies’s position could reasonably infer that the two men who had

       just exited Building 2 had been engaged in illegal drug activity or had no right

       to be present on the property. Therefore, Detective Deshaies was justified in

       stopping Mullen to ask him for his identification and what he was doing on the

       property. 4 Appellant’s Br. at 13.




       Aragones wasn’t a welcome guest and did not have consent to look into the home. And reasonable suspicion
       of criminal activity like this is enough to permit an officer to effect a brief investigative detention to determine
       whether or not a legal violation is, in fact, taking place.”).
       4
         Mullen relies on Stalling v. State, 713 N.E.2d 922, 924 (Ind. Ct. App. 1999), to argue that “the color of one’s
       skin, the neighborhood one happens to be in, the time of night, and the fact that one turns away from police

       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016                              Page 14 of 16
[21]   Once Mullen stopped, his subsequent failure to specifically answer questions

       about where he lived and adoption of a fighting stance caused Detective

       Deshaies to ask him whether he was armed. “In addition to detainment, Terry

       permits a reasonable search for weapons for the protection of the police officer,

       where the officer has reason to believe that he is dealing with an armed and

       dangerous individual, regardless of whether he has probable cause to arrest the

       individual for a crime.” Malone v. State, 882 N.E.2d 784, 786-87 (Ind. Ct. App.

       2008) (citing Terry, 392 U.S. at 27). “Officer safety is of paramount importance.

       Police officers are daily placed in difficult and dangerous situations, some of

       which are life threatening. The law has to provide protections for such

       officers.” Id. at 787. “‘The officer need not be absolutely certain that the

       individual is armed; the issue is whether a reasonably prudent man in the

       circumstances would be warranted in the belief that his safety or that of others

       was in danger.’” Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001) (quoting

       Terry, 392 U.S. at 27). When Mullen told the police that he had a knife and

       reached toward his pockets as though he was going to draw it, the police were

       permitted under the Fourth Amendment to secure Mullen and do a patdown




       are not sufficient individual or collectively, to establish reasonable suspicion of criminal activity.” The three
       circumstances identified by Mullen simply fall short of describing all the facts that were available to Detective
       Deshaies, and therefore Mullen’s reliance on Stalling is unavailing.
       In Stalling, the police saw a boy, known to be a truant, around noon on a school day standing at a corner with
       a group of four to five other young men in a high crime area. As the police approached the group, the boys
       began to disperse. One officer saw Stalling move as if to place something into the waistband of his pants.
       The officer confronted Stalling and asked him what he had put in his waistband. Stalling remained standing
       but did not say anything. The officer then conducted a patdown search and found a baggy containing
       cocaine tucked inside Stalling’s waistband. The Stalling court concluded that the police lacked reasonable
       suspicion to conduct an investigatory stop, and therefore the cocaine was inadmissible. 713 N.E.2d at 924.

       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016                            Page 15 of 16
       search. Accordingly, we affirm the denial of Mullen’s motion to suppress the

       fruits of that search.


[22]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 02A05-1511-CR-1959 | May 25, 2016   Page 16 of 16
