MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Jul 30 2018, 9:13 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.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Tyrone Grayson                                            Curtis T. Hill, Jr.
Pendleton, Indiana                                        Attorney General of Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyrone Grayson,                                           July 30, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A04-1709-PC-2302
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Shatrese M.
Appellee-Plaintiff.                                       Flowers, Judge
                                                          The Honorable James K. Snyder,
                                                          Commissioner
                                                          Trial Court Cause No.
                                                          49G20-1607-PC-26978



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018            Page 1 of 11
[1]   Tyrone Grayson (“Grayson”) appeals the Marion Superior Court’s denial of his

      petition for post-conviction relief. Grayson argues that his trial counsel was

      ineffective for failing to challenge the investigatory stop under Article 1, Section

      11 of the Indiana Constitution.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The following facts and procedural history of Grayson’s trial are taken from his

      direct appeal:


              On February 23, 2014, at approximately 5:20 a.m., Indianapolis
              Metropolitan Police Department Officer Jonathan Schultz
              (“Officer Schultz”) responded to a dispatch that an anonymous
              caller reported a person inside a silver or gray vehicle waving a
              firearm at Washington Point Apartments. When Officer Schultz
              arrived at the apartment complex, he saw a silver vehicle with its
              headlights off parked perpendicular to the parking spots. As the
              officer pulled into the parking lot and was driving toward the
              vehicle, the vehicle pulled into a parking space. The officer did
              not see any other silver or gray occupied vehicles in the parking
              lot.


              Officer Schultz activated his rear emergency lights and parked his
              vehicle at an “angle towards where he was parked at, off to the
              side.” Then the officer, who was in full uniform and carrying a
              flashlight, approached the driver’s side of the vehicle. The driver
              identified himself as Grayson. Officer Schultz asked Grayson if
              he lived at the apartment complex, and Grayson stated that he
              did not but that his passenger did.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018   Page 2 of 11
        Next, Officer Schultz mentioned the dispatch about a person
        waving a gun. As he continued his conversation with Grayson,
        through the open driver’s side window, Officer Schultz observed
        the butt of a firearm underneath the driver’s seat between
        Grayson’s feet. Officer Schultz asked if any firearms were in the
        vehicle, and Grayson stated that there were not, a statement that
        was clearly a lie, based on Officer Schultz’s personal observation.


        At about this time, Officer Michael Wagner–Gilbert (“Officer
        Wagner–Gilbert”) who also responded to the dispatch, arrived on
        the scene and approached the passenger side of the vehicle.
        Officer Schultz then asked Grayson to step out of the vehicle. He
        asked Grayson if he had a permit to carry a firearm, and Grayson
        replied that he did not.


        Officer Schultz asked if he could look through the vehicle, and
        Grayson gave the officers permission to search. Officer Schultz
        placed Grayson in handcuffs and walked him to the rear of the
        vehicle. Officer Wagner–Gilbert looked into the driver’s side of
        the vehicle and, like Officer Schultz, Officer Wagner–Gilbert saw
        the butt of the firearm underneath the driver’s seat. Officer
        Wagner–Gilbert removed the firearm from the vehicle and placed
        it in an evidence bag. After he determined that Grayson had prior
        felony convictions, Officer Schultz arrested Grayson for unlawful
        possession of a firearm by a serious violent felon. The passenger
        in Grayson’s vehicle was released at the scene.


        Grayson was subsequently charged with Class B felony unlawful
        possession of a firearm by a serious violent felon. Prior to trial,
        Grayson filed a motion to suppress the firearm found during the
        warrantless search. A hearing was held on the motion on August
        6, 2014. In his post-hearing memorandum, Grayson claimed that
        the officer lacked reasonable suspicion to conduct a Terry stop
        and that he was not advised of his Pirtle rights before the vehicle
        was searched. In its response to Grayson’s arguments, the State
        conceded that Grayson was in custody when Officer Schultz
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018   Page 3 of 11
              “pulled his marked police vehicle up behind the silver vehicle
              that Grayson was operating.” However, the court concluded that
              the officer had reasonable suspicion to believe criminal activity
              had occurred, and Pirtle warnings were not necessary because
              Officer Schultz had probable cause to search the vehicle after
              seeing the handgun between Grayson’s feet.


              Grayson’s bench trial was held on March 11, 2015. Grayson
              objected to the admission of the firearm for the reasons raised in
              the motion to suppress, and he also argued that the investigatory
              stop was unreasonable because it was based solely on an
              anonymous tip. Specifically, Grayson argued that the
              anonymous caller only reported a person waving a gun in a silver
              vehicle at the apartment complex and did not provide his or her
              name or address. The trial court overruled the objection and
              found Grayson guilty of Class B felony unlawful possession of a
              firearm by a serious violent felon. The trial court ordered him to
              serve twelve years executed in the Department of Correction.


      Grayson v. State, 52 N.E.3d 24, 25–26 (Ind. Ct. App. 2016) (internal citations

      omitted), trans. denied.


[4]   On direct appeal, Grayson argued that the trial court abused its discretion when

      it admitted into evidence the handgun discovered during a warrantless search of

      his vehicle. He raised the issue under the Fourth Amendment protection against

      warrantless searches and seizures, but did not raise the issue under Article 1,

      Section 11 of the Indiana Constitution. This court concluded that Officer

      Schultz had reasonable suspicion to conduct the investigatory stop. Therefore,

      the trial court did not abuse its discretion when it admitted the handgun into

      evidence at trial. Id. at 30.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018   Page 4 of 11
[5]   On January 4, 2017, Grayson filed a pro se petition for post-conviction relief. In

      his petition, Grayson argued that he was denied effective assistance of counsel

      when his trial counsel failed to challenge the stop under Article 1, Section 11 of

      the Indiana Constitution.


[6]   At the post-conviction hearing held on March 3, 2017, Grayson’s trial counsel

      testified that she should have raised Article 1, Section 11 of the Indiana

      Constitution as a basis for suppressing the evidence, and that she did not have a

      strategic reason for failing to raise the issue. See PCR Tr. p. 10. Appellate

      counsel submitted an affidavit, which stated that had the Article 1, Section 11

      argument been preserved, she “would have raised it on appeal.” Ex. Vol. I.,

      Petitioner’s Ex. 1, p. 7. And she was of the opinion that “there can be no

      legitimate or strategic reason for arguing against the admission of the evidence

      in this case on Fourth Amendment grounds but not based on Article 1,

      [Section] 11.” Id. at 8.


[7]   On July 17, 2017, the post-conviction court issued its findings of facts and

      conclusions of law. The court ultimately found:


              [U]nder the totality of the circumstances, [. . .] Grayson has not
              met his burden, by a preponderance of the evidence, to show
              that, had [trial counsel] argued for suppression of the evidence
              under Article 1[,] Section 11, there is a reasonable probability
              that the result of the proceedings would have been different.


      Appellant’s App. Vol. II, pp. 87–88. Accordingly, the post-conviction court

      denied Grayson’s petition for post-conviction relief. Grayson now appeals.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018   Page 5 of 11
                                          Standard of Review
[8]    The post-conviction petitioner bears the burden of establishing grounds for

       relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,

       562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a

       petition for post-conviction relief, the petitioner stands in the position of one

       appealing from a negative judgment. Id. On appeal, we neither reweigh

       evidence nor judge the credibility of witnesses. Id. Therefore, to prevail,

       Grayson must show that the evidence as a whole leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       court. Id.


[9]    Where, as here, the post-conviction court made specific findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

       must determine if the court’s findings are sufficient to support its judgment.

       Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

       N.E.2d 962. Although we do not defer to the post-conviction court’s legal

       conclusions, we review the post-conviction court’s factual findings for clear

       error. Id. Accordingly, we will consider only the probative evidence and

       reasonable inferences flowing therefrom that support the post-conviction court’s

       decision. Id.


[10]   A claim of ineffective assistance of trial counsel here requires a showing that:

       (1) Grayson’s trial counsel’s performance was deficient by falling below an

       objective standard of reasonableness; and (2) that the deficient performance


       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018   Page 6 of 11
       prejudiced Grayson such that “there is a reasonable probability that, but for

       counsel’s unprofessional errors, the result of the proceeding would have been

       different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Failure to satisfy

       either of the two elements will cause the claim to fail. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002). And when it is easier to dispose of an

       ineffectiveness claim on the lack of prejudice, then this is the course we should

       follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011).


                                         Discussion and Decision
[11]   Grayson argues that his trial counsel’s performance was deficient when she

       failed to raise Article 1, Section 11 of the Indiana Constitution as a basis to

       suppress evidence, and that he was prejudiced by the deficient performance. See

       Appellant’s Br. at 18. 1


                                I. Ineffective Assistance of Trial Counsel

[12]   Grayson is entitled to post-conviction relief only if raising an objection under

       Article 1, Section 11 would result in “a reasonable probability that, but for

       counsel’s [failing to raise Article 1, Section 11], the result of the proceeding

       would have been different.” Strickland, 466 U.S. at 694. We need not consider




       1
        Grayson also argues that the post-conviction court erred in denying his relief by failing to address his Sixth
       Amendment confrontation claim. However, the issue was available at the time of Grayson’s direct appeal,
       and therefore, may not be raised in post-conviction proceedings. See Ind. Post-Conviction Rule 1(b) (stating
       post-conviction relief “is not a substitute for a direct appeal from the conviction and/or the sentence”).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018                Page 7 of 11
       whether trial counsel’s performance was deficient because we can dispose of

       Grayson’s claim under the prejudice prong of Strickland.


[13]   As we noted above, the trial court and our court rejected Grayson’s challenge to

       the stop on Fourth Amendment grounds. Although the language of Article 1,

       Section 11 of the Indiana Constitution tracks the Fourth Amendment verbatim,

       Indiana courts have explicitly rejected the “expectation of privacy” as a test of

       the reasonableness of a search and seizure. Litchfield v. State, 824 N.E.2d 356,

       359 (Ind. 2005).


[14]   Rather, the legality of a governmental search under the Indiana Constitution

       turns on an evaluation of the reasonableness of the police conduct under the

       totality of the circumstances. Id. (citing Moran v. State, 644 N.E.2d 536, 539

       (Ind. 1994)). Although there may well be other relevant considerations under

       the circumstances, the reasonableness of a search or seizure turns on a balance

       of: (a) the degree of concern, suspicion, or knowledge that a violation has

       occurred, (b) the degree of intrusion the method of the search and seizure

       imposes on the citizen’s ordinary activities, and (c) the extent of law

       enforcement needs. Id. at 361.


       A. The Degree of Concern, Suspicion, or Knowledge

[15]   Officer Schultz testified he received a dispatch regarding “a person in a [silver]

       vehicle waiving [sic] a firearm.” Trial Tr. pp. 8–9. The dispatch also included

       the address of the vehicle’s location. It was five o’clock in the morning,

       Grayson’s vehicle was the only silver vehicle in the parking lot, and Grayson

       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018   Page 8 of 11
       was parked perpendicular to the marked parking spaces. When Officer Schultz

       approached the vehicle, he was in full uniform, driving his marked police car,

       and used a flashlight as he approached Grayson’s vehicle. Officer Schultz

       testified that he saw the firearm “placed underneath the driver seat, in between

       [] Mr. Grayson’s legs.” Id. at 17–18. Officer Schultz asked Grayson if there was

       a firearm in the vehicle. Grayson lied and said there was not. Officer Schultz

       then asked Grayson if he had a permit to carry a firearm, which Grayson stated

       he did not. Seeing the gun in plain sight reasonably raised Officer Schultz’s

       knowledge and suspicion that a violation had occurred. Further, Officer

       Wagner-Gilbert also testified that upon arriving to the scene, he “observed [] a

       gun handle sticking out from the bottom of the driver’s seat . . . between

       [Grayson’s] legs.” Id. at 31. Based on this testimony, we conclude that the

       officers had a reasonable degree of concern, suspicion, and knowledge that a

       violation had occurred.


       B. The Degree of Intrusion

[16]   In the instant case, the degree of intrusion was minimal. As Officer Schultz

       approached Grayson’s parked vehicle, the window was already down, which

       allowed the handle of Grayson’s firearm to be seen in plain sight. The actual

       intrusion of Officer Schultz’s search of the vehicle did not occur until after he

       saw the handle of the gun. Upon seeing the gun, officer safety was implicated

       and warranted Officer Schultz’s temporary detainment of Grayson while the

       vehicle was searched.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018   Page 9 of 11
       C. The Extent of Law Enforcement Needs

[17]   Here, the police officers received a tip that an individual was waving a gun

       around in his vehicle. The officers responded with the goal of protecting the

       public from potential gun violence. The need to ensure public safety from gun

       violence is paramount and is more than reasonable with regard to the extent of

       law enforcement needs.


       D. Totality of the Circumstances

[18]   It is well-settled that “[a] healthy, civil society is most robust when it feels safe

       and when that feeling of safety is validated through interaction with vigilant

       and responsive law enforcement engaged in the important business of policing

       neighborhoods within a community.” Brown v. State, 62 N.E.3d 1232, 1238

       (Ind. Ct. App. 2016) (quoting R.H. v. State, 916 N.E.2d 260, 268 (Ind. Ct. App.

       2009) (Mathias, J., concurring)), trans. denied. Officer Schultz reasonably

       suspected that a violation had occurred, the degree of intrusion was minimal,

       and protecting the public from gun violence is a paramount concern of law

       enforcement. Therefore, under the totality of these circumstances, Officer

       Schultz’s conduct was reasonable.


                                                 Conclusion
[19]   Accordingly, the outcome of Grayson’s case under Article 1, Section 11 of the

       Indiana Constitution is the same as its federal counterpart, the Fourth

       Amendment. Therefore, Grayson has failed to establish that he was prejudiced

       by his trial counsel’s failure to raise an argument under the Indiana

       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018   Page 10 of 11
       Constitution, and his claim for ineffective assistance of counsel fails the

       prejudice prong of Strickland and thus, as a whole. See French, 778 N.E.2d at 824

       (Ind. 2002).


[20]   For all of these reasons, we conclude that the post-conviction court did not err

       in denying Grayson’s petition for post-conviction relief.


[21]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018   Page 11 of 11
