MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                                   FILED
court except for the purpose of establishing                                   Jun 12 2019, 8:45 am

the defense of res judicata, collateral                                            CLERK
                                                                               Indiana Supreme Court
estoppel, or the law of the case.                                                 Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Jesse R. Drum
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Mack,                                             June 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-131
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton Graham,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G07-1802-CM-6532



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-131 | June 12, 2019                           Page 1 of 8
                                              Case Summary
[1]   At approximately midnight on February 25, 2018, Indianapolis Metropolitan

      Police Officer Dwayne May received a dispatch indicating that a group of

      individuals were threatening to shoot each other at a hotel. Upon arriving at the

      hotel, Officer May observed a group of individuals standing outside the hotel

      and also observed one individual in the group, later identified as Robert Mack,

      tucking a handgun into his waistband. As Mack attempted to leave the scene,

      Officer May conducted a Terry1 stop, discovering the handgun on Mack’s

      person. Mack was charged with Class A misdemeanor carrying a handgun

      without a license and found guilty as charged. Mack contends that the search of

      his person violated his rights against unreasonable searches and seizures

      pursuant to the Fourth Amendment of the United States Constitution and

      Article 1, Section 11 of the Indiana Constitution. Because we disagree, we

      affirm.



                                 Facts and Procedural History
[2]   Shortly after midnight on February 25, 2018, Officer May responded to a

      dispatch for a disturbance at a hotel involving firearms and was the first officer

      to arrive. Officer May was informed that the caller had reported that persons at

      the hotel were threatening to shoot each other. As Officer May pulled into the




      1
          Terry v. Ohio, 392 U.S. 1 (1968).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-131 | June 12, 2019   Page 2 of 8
      hotel parking lot, he observed several persons standing near the southeast

      corner of the hotel. Officer May also observed an individual, later identified as

      Mack, tuck a handgun into his waistband, turn around, and walk away from

      the group with another individual. Officer May approached Mack as he was

      walking away and ordered him to stop. After Mack stopped, Officer May

      ordered Mack to place his hands on a vehicle nearby and patted Mack down for

      officer safety. Feeling that the handgun was no longer tucked inside Mack’s

      waistband, Officer May asked Mack where his handgun was, and Mack

      responded that it had fallen down his right pant leg. Officer May retrieved the

      handgun, and it was later determined that Mack did not have a valid gun

      permit.


[3]   On February 25, 2018, the State charged Mack with Class A misdemeanor

      carrying a handgun without a license. On December 18, 2018, a bench trial was

      held, at which Mack objected to the admission of evidence stemming from the

      Terry stop, arguing that it violated his rights pursuant to the Fourth Amendment

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

      Constitution. The trial court overruled Mack’s objection and found him guilty

      as charged. The trial court sentenced Mack to 365 days, with 275 of those days

      to be served on probation and the remaining on home detention.



                                 Discussion and Decision
[4]   Mack contends that the search of his person violated his rights pursuant to the

      Fourth Amendment of the United States Constitution and Article 1, Section 11

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-131 | June 12, 2019   Page 3 of 8
      of the Indiana Constitution. The admission of evidence is a matter entrusted to

      the sound discretion of the trial court, and we will only reverse its ruling if it is

      clearly against the logic and effect of the facts and circumstances. Kelly v. State,

      997 N.E.2d 1045, 1050 (Ind. 2013) (internal quotations omitted). However, we

      review the trial court’s ruling on the constitutionality of a search or seizure de

      novo. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).


                                   The Fourth Amendment
[5]   Mack contends that Officer May lacked reasonable suspicion to conduct a

      search of his person, violating his Fourth Amendment rights. The Fourth

      Amendment provides that


              [t]he 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 person or
              things to be seized.


      “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.” Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct. App.

      2016) (internal quotations omitted). “The Fourteenth Amendment extended to

      state governments the Fourth Amendment’s requirements for constitutionally

      valid searches and seizures.” Greeno v. State, 861 N.E.2d 1232, 1234 (Ind. Ct.

      App. 2007). The Fourth Amendment generally prohibits searches and seizures

      that are conducted without a warrant supported by probable cause. Mullen, 55

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-131 | June 12, 2019   Page 4 of 8
      N.E.3d at 827. Therefore, to deter such conduct, evidence obtained without a

      warrant is not admissible in a prosecution unless the search or seizure falls into

      one of well-delineated exceptions to the warrant requirement. Id.


[6]   A Terry stop is one of those well-delineated exceptions. See Greeno, 861 N.E.2d

      at 1235 (“A police officer may stop a person to investigate possible criminal

      behavior without the probable cause required for a search warrant if the officer

      has a reasonable and articulable suspicion that the person has been, is, or is

      about to be engaged in criminal activity.”) (internal quotations omitted).


              The reasonable suspicion requirement for a Terry stop is satisfied
              when 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 occurred or is
              about to occur. Reasonable suspicion entails something more
              than an inchoate and unparticularized suspicion or hunch, but
              considerably something less than proof of wrongdoing by
              preponderance of the evidence. Reasonable suspicion is
              determined under the totality of the circumstances. If the facts
              known by the police at the time of the investigatory stop are such
              that a person of reasonable caution would believe that the action
              taken was appropriate, the command of the Fourth Amendment
              is satisfied.


      Id. (internal quotations and citations omitted). “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) (quoting Terry, 392 U.S. at 27).
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-131 | June 12, 2019   Page 5 of 8
[7]   We conclude that Officer May had reasonable suspicion to conduct a Terry

      stop. Officer May received a dispatch indicating that a group of persons at a

      hotel were threating to shoot each other. Upon his arrival, Officer May

      observed not only a group outside the hotel but also Mack tucking a handgun

      into his waistband. Moreover, the fact that it was after midnight in an area

      known by Officer May to be a low-crime area makes it all the more reasonable

      for Officer May to suspect this was the group of persons threating to shoot each

      other, and Mack had the means to make good on that threat. Given the totality

      of the circumstances, Officer May’s suspicion was reasonable. Finally, Officer

      May was justified in searching Mack for weapons during the Terry stop for his

      own safety. Given that Officer May observed Mack tuck a handgun into his

      waistband and was told that a group of persons at the hotel were threating to

      shoot each other, it was reasonable for Officer May to believe that Mack was

      armed and dangerous.


                                       Article 1, Section 11
[8]   Mack contends that the Terry stop conducted by Officer May violated his rights

      pursuant to Article 1, Section 11 of the Indiana Constitution. Although the

      language of Article 1, Section 11 tracks the language of the Fourth Amendment

      verbatim, Indiana courts have explicitly rejected the expectation of privacy as a

      test for the reasonableness of a search or seizure. Mundy v. State, 21 N.E.3d 114,

      117–18 (Ind. Ct. App. 2014). Under the Indiana Constitution, the legality of a

      governmental search or seizure turns on an evaluation of the reasonableness of

      police conduct under the totality of the circumstances. Id. at 118. The

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-131 | June 12, 2019   Page 6 of 8
       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 or seizure imposes on the citizens’ ordinary

       activities, and (c) the extent of law enforcement needs. Id. The State has the

       burden to prove that the search or seizure was reasonable under the totality of

       the circumstances. Id.


[9]    Although we acknowledge that any time a citizen is stopped and subsequently

       patted down it poses a significant intrusion on their activity, the intrusion in this

       matter was outweighed by Officer May’s suspicion that a violation had

       occurred and the compelling needs of law enforcement, namely the need to

       keep the officer and other individuals safe. Officer May was the first officer to

       arrive at the hotel after being advised that a group of persons were threatening

       to shoot each other. After arriving, he observed a group of persons standing

       outside the hotel and then observed Mack tucking a handgun into his waistband

       before attempting to leave the scene. Coupling these facts with the time of night

       and the knowledge that this was normally a low-crime area, the degree of

       suspicion that Mack had participated in the threats to shoot others was

       significant. Moreover, Officer May’s need to keep himself and the other

       individuals near the hotel safe was also significant. Officer May knew of the

       alleged threats made and observed an individual in the group with the means to

       make good on those threats. Under the totality of the circumstances, we

       conclude that the search was reasonable.


[10]   The judgment of the trial court is affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-131 | June 12, 2019   Page 7 of 8
Crone, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-131 | June 12, 2019   Page 8 of 8
