Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                        Jan 29 2014, 10:24 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                              GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                CYNTHIA L. PLOUGHE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

FREDRICK KYLES,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1305-CR-446
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Grant W. Hawkins, Judge
                           Cause No. 49G05-1208-FB-59151



                                     January 29, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Frederick Kyles appeals his conviction for Attempted

Robbery,1 a class B felony, and Criminal Recklessness,2 a class B felony.             More

particularly, Kyles argues that the handgun admitted into evidence was obtained in

violation of his Fourth Amendment rights and contends that the trial court erred in

allowing the handgun into evidence. Kyles asserts that Officer William Reddy, who

arrested him, did not have probable cause at the time of the search, and therefore, any

evidence seized as a result of the arrest should have been deemed inadmissible. The State

argues that the evidence was obtained during a valid investigatory stop and resulting

frisk. We conclude that the handgun was properly seized, and therefore, affirm the

judgment of the trial court.

                                            FACTS

          On August 25, 2012, Kyles was with Michael Miller and Andrew Latimore, and

had offered to sell Miller a Hi-Point 9mm handgun. Miller refused, and, when his sister

had noticed that some of her money was missing, Miller asked everyone to leave. Later

that evening, Kyles approached the residence of Cassandra Patton, who was sitting on her

porch along with Miller and Latimore. Miller was using his Ipad as the four conversed.

Initially, Kyles and Miller spoke to each other amicably, but Kyles then pulled a

handgun, which Miller testified was similar to the one he had offered to sell earlier in the

day, pointed it at Miller, and demanded the Ipad. Miller refused, and began backing


1
    Ind. Code §§ 35-41-5-1 and 35-42-5-1.
2
    I.C. § 35-42-2-2.
                                              2
toward the front door of the residence. Kyles then fired at Miller, who fled into the

house.    Patton and Latimore ran south, and Patton saw Kyles run north toward an

apartment complex. Patton called the police.

         The police arrived approximately ten minutes later and spoke with Patton, Miller,

and Latimore, who provided a description of the man who had tried to take the Ipad from

Miller at gunpoint. They described him as a “light-skinned black male,” with a “small

afro,” and told the police he was wearing a white shirt and brown, khaki colored cargo

shorts. Tr. p. 19, 31, 158. Miller informed the police that Kyle’s first name was Fred.

The police also learned the location where Kyles could be found.

         Officer Ready was patrolling the 1200 block of East 25th Street when he noticed

Kyles, and saw that he matched the description of the shooter. Officer Ready turned his

vehicle around and stepped out to approach Kyles, and asked him to identify himself.

Kyles gave his name as “Fred Kyles,” at which point Officer Ready pulled out his

handgun and asked Kyles to lie on the ground. Officer Donald Brown then arrived on the

scene and patted down Kyles, in the course of which he discovered a loaded Hi-Point

handgun in one of the cargo pockets of Kyles’s shorts. Kyles had no license for the gun.

Miller and Latimore were then driven to the scene and identified Kyles as the person who

had tried to steal Miller’s Ipad at gunpoint.

         On August 28, 2012, the State charged Kyles with attempted robbery and criminal

recklessness. On March 14, Kyles filed a motion to suppress evidence claiming that the

handgun was improperly seized. The trial court denied the motion to suppress, and,

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following a bench trial on April 11, 2013, Kyles was convicted on both counts.

Thereafter, on April 25, 2013, the trial court sentenced Kyles to an aggregate sentence of

fourteen years.

       Kyles now appeals.

                            DISCUSSION AND DECISION

                                  I. Standard of Review

       A trial court is afforded broad discretion when ruling on the admissibility of

evidence. Goodner v. State, 685 N.E.2d 1058, 1060 (Ind. 1997). This Court will not

disturb the trial court’s decision absent a showing of abuse. Id. An abuse of discretion

occurs only when the trial court’s decision is clearly against the logic and effect of the

facts and circumstances. Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).

       The Fourth Amendment generally prohibits warrantless searches. Rush v. State,

881 N.E.2d 46, 50 (Ind. Ct. App. 2008). For a search to be reasonable under the Fourth

Amendment, a warrant is required unless the search falls within an exception to the

warrant requirement. Id. The State bears the burden of proving that, at the time the

search was performed, an exception to the warrant requirement existed. Id. One such

exception to the warrant requirement exists when an officer has reasonable suspicion that

a person is involved in criminal activity and performs an investigatory stop. Finger v.

State, 799 N.E.2d 528, 523 (Ind. 2003). Whether reasonable suspicion existed to support

an investigatory stop is subject to de novo review. Engram v. State, 893 N.E.2d 744, 748

(Ind. Ct. App. 2008).

                                            4
                             II. Admissibility of the Evidence

       While Kyles contends that the handgun was improperly admitted into evidence,

the State argues that both the investigatory stop and the eventual frisk were valid. An

investigatory stop is valid if an officer has reasonable suspicion that the person detained

is involved in criminal activity. Finger, 799 N.E.2d at 523 (citing Terry v. Ohio, 392

U.S. 1, 31 (1968)). This reasonable suspicion must be based on specific and articulable

facts known to the officer at the time of the stop that cause the officer to believe that the

defendant may be involved in criminal activity. Id. There must be more than a hunch or

unparticularized suspicion, and the officer must be able to point to the specific facts that

give rise to the reasonable suspicion. Id. at 535.

       At the outset, Kyles contends that Officer Ready lacked probable cause to detain

him, but this is not the correct standard. All that is needed for a proper investigatory stop

is reasonable suspicion. We do not agree with Kyles’s contention that he was under

arrest during the stop and frisk. In Mitchell v. State, our Supreme Court stated that, when

determining whether a detainment is an arrest or an investigatory stop, we must examine

“whether the police diligently pursued a means of investigation that was likely to confirm

or dispel their suspicions quickly, during which time it was necessary to detain the

defendant.” 745 N.E.2d 775. In Mitchell, our Supreme Court reminded us that there is

no “‘bright line’ for evaluating whether an investigatory stop is unreasonable, and

‘common sense and ordinary human experience must govern over rigid criteria.’” Id. at

782 (quoting United States v. Sharpe, 470 U.S. 675, 685 (1985)).

                                              5
       Here, Officer Ready was looking for a suspect of a specific description; he knew

that the individual was a “light-skinned black male,” with a “small afro,” and that Kyles

was wearing a white shirt and brown, khaki colored cargo shorts. Tr. p. 19, 31, 158. He

also knew that the suspect was named Fred. Id. at 53, 160. When Officer Ready saw a

man matching the physical description above, he simply asked him his name. Id. at. 181.

We agree with the State that this alone does not constitute an improper stop. It was only

after Kyles told Officer Ready that his name was Fred that Kyles was detained.

       Furthermore, Officer Ready knew that the suspect was armed and that there had

been shots fired. The officers were entitled to take precautions to ensure their safety.

This was a rapidly developing situation, where police officers were in the midst of

investigating an armed robbery, and the officers were permitted to detain and disarm

Kyles. See Sharpe, 470 U.S. at 686 (noting that we should “take care to consider whether

the police are acting in a swiftly developing situation, and in such cases the court should

not indulge in unrealistic second-guessing”). In light of these circumstances, both the

investigatory stop and eventual frisk were appropriate. Therefore, we decline to find that

the trial court erred when it admitted the handgun into evidence.

       The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.




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