MEMORANDUM DECISION                                                       FILED
                                                                     Apr 28 2016, 6:05 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
regarded as precedent or cited before any                                  and Tax Court

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
Barbara Simmons                                          Gregory F. Zoeller
Oldenburg, Indiana                                       Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lorenzo Adams,                                           April 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1509-CR-1334
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Carol Ann Terzo,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         49G10-1503-CM-8679



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1334| April 28, 2016          Page 1 of 7
                                       Statement of the Case
[1]   Lorenzo Adams appeals his conviction for carrying a handgun without a

      license, as a Class A misdemeanor, following a bench trial. Adams raises a

      single issue for our review, namely, whether the trial court abused its discretion

      when it admitted into evidence a handgun recovered from his person after a

      Terry stop. We affirm.


                                 Facts and Procedural History
[2]   On March 9, 2015, Indianapolis Metropolitan Police Department (“IMPD”)

      Officer Dominic Smith received a radio dispatch concerning a tip that a resident

      of the Meadowlark Apartment complex (“Meadowlark”) had seen a “person

      with a gun” in the complex. Tr. at 7. The resident, who identified herself as

      Edith Williams to the 9-1-1 operator, described the person as having a “[w]hite

      jacket with red stripes.” Id. at 7. No further description of the suspect was

      provided by Williams.


[3]   Meadowlark is located in Indianapolis in an area with a “very high” level of

      crime. Id. at 6. Meadowlark, a federally-subsidized complex, has a “no[-]gun

      policy,” and the IMPD is permitted to “trespass anybody from the apartment

      complex that the apartment complex wants [the IMPD] to trespass.” Id. at 6.

      At the time of the dispatch to Meadowlark on March 9, Officer Smith was

      aware of an incident on March 7, when shots had been fired at Meadowlark.


[4]   Two to three minutes after receiving the dispatch, Officer Smith arrived on the

      scene, and he saw a man wearing a white jacket with red stripes, later identified

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1334| April 28, 2016   Page 2 of 7
      as Adams, standing on a sidewalk in the apartment complex. Because Officer

      Smith had reason to believe that Adams had a gun, Officer Smith drew his gun

      and approached Adams, who had his hands in his jacket pockets. Officer Smith

      instructed Adams to “get his hands up.” Id at 8. Upon hearing that command,

      Adams began to reach “back a little bit . . . towards his right pocket” before

      complying and raising his hands. Id. at 9. After placing Adams in handcuffs,

      Officer Smith found a .22 caliber handgun on Adams’ person. Adams admitted

      that he did not have a gun permit.


[5]   The State charged Adams with carrying a gun without a license, as a Class A

      misdemeanor. During a bench trial, Adams moved to suppress the evidence of

      the handgun, but the trial court denied that motion and found Adams guilty as

      charged. The trial court sentenced Adams to 365 days with 341 days suspended

      and twenty-four days credit. This appeal ensued.


                                     Discussion and Decision
[6]   Adams asserts that the trial court erred when it permitted the State to introduce

      the handgun into evidence. Initially, we address Adams’ characterization of

      Williams as an “anonymous tipster” throughout his brief on appeal. It is

      undisputed that Williams gave her name to the 9-1-1 operator when she called

      to report the man with a gun in Meadowlark. Accordingly, depending on the

      totality of the circumstances of her tip, Williams may be considered a

      “concerned citizen.” As our supreme court has explained,




      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1334| April 28, 2016   Page 3 of 7
              [a concerned citizen tip] is made up of people who may have
              been victims of crime or have witnessed a crime. [Pawloski v.
              State, 269 Ind. 350, 380 N.E.2d 1230, 1232 (1978)]. These
              individuals generally come forward with information out of a
              spirit of good citizenship and a desire to help law enforcement.
              Id. Some jurisdictions have therefore held informants of this type
              are considered more reliable. Id. In Kellems [v. State, 842 N.E.2d
              352 (Ind. 2006), rev’d on other grounds, 849 N.E.2d 1110 (Ind.
              2006)], we again reaffirmed our belief that there “may well be
              great indicia of reliability in the report of the ‘concerned citizen’
              as distinguished from the ‘professional informant’—though again
              the totality of the circumstances controls.” 842 N.E.2d at 356.
              These concerned citizens are usually one-time informants, and
              no basis exists from prior contacts to determine their reliability,
              such as in the case of an undercover police informant. Kellems,
              842 N.E.2d at 356.


      State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011).


[7]   Here, again, Williams identified herself to the 9-1-1 operator when she called in

      the tip. Williams described a person wearing a distinctive jacket and armed

      with a gun in Meadowlark in violation of the no-gun policy. Officer Smith

      arrived at the scene approximately two or three minutes after Williams’ call and

      found Adams, who was wearing a jacket matching the description given by

      Williams. We hold that, under the totality of the circumstances, Williams was

      a concerned citizen tipster.


[8]   Adams’ sole contention on appeal is that Officer Smith did not have reasonable

      suspicion to conduct an investigatory stop under the Fourth Amendment to the

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

      Constitution. Both of those constitutional provisions protect citizens from
      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1334| April 28, 2016   Page 4 of 7
      unreasonable searches and seizures. See Hathaway v. State, 906 N.E.2d 941,

      944-45 (Ind. Ct. App. 2009), trans. denied. Generally, a search warrant is a

      prerequisite to a constitutionally proper search and seizure. Halsema v. State,

      823 N.E.2d 668, 676 (Ind. 2005). When a search or seizure is conducted

      without a warrant, the State bears the burden of proving that an exception to

      the warrant requirement existed at the time of the search or seizure. Id.


[9]   However, in Terry v. Ohio, 392 U.S. 1, 30 (1968), the United States Supreme

      Court held that an officer may, consistent with the Fourth Amendment,

      conduct a brief investigatory stop when, based on a totality of the

      circumstances, the officer has a reasonable, articulable suspicion that criminal

      activity is afoot. Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006). An

      investigatory stop allows a police officer to “temporarily freeze the situation in

      order to make an investigative inquiry.” Johnson v. State, 766 N.E.2d 426, 429

      (Ind. Ct. App. 2002), trans. denied. 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 confirm or dispel the officer’s suspicions. Id. (citing Hiibel

      v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 185-89 (2004)). Reasonable

      suspicion entails some minimal level of objective justification for making a stop,

      something more than an unparticularized suspicion or hunch, but less than the

      level of suspicion required for probable cause. Wilson v. State, 670 N.E.2d 27,

      29 (Ind. Ct. App. 1996) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).

      Indiana has adopted the Terry rationale in determining the legality of an

      investigatory stop under Article 1, Section 11. Id. Tips from concerned citizens

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1334| April 28, 2016   Page 5 of 7
       may justify a Terry stop. See Kellems, 842 N.E.2d at 355. Still, the test for

       determining the validity of a Terry stop is the totality of the circumstances

       before the officers. Id. at 356.


[10]   Based on the totality of the circumstances here, the investigating officer had a

       reasonable, articulable suspicion that criminal activity was afoot. Officer Smith

       responded to a 9-1-1 call from Williams, a concerned citizen, and arrived at the

       scene within two or three minutes. Meadowlark is located in a high-crime area

       of Indianapolis. According to Williams, a person wearing a white jacket with

       red stripes was at Meadowlark and had a gun. Officer Smith knew that shots

       had been fired at Meadowlark only two days prior, and he knew that

       Meadowlark had a no-gun policy. As soon as Officer Smith arrived, he drew

       his weapon for officer safety “due to the nature of the call” and “previous

       incidents in the area.” Tr. at 8. Officer Smith then approached Adams and told

       him to put his hands in the air. Instead of complying with the command,

       Adams reached for his back pocket. Officer Smith repeated the command, and

       Adams complied. Officer Smith placed Adams in handcuffs and found a

       handgun on Adams’ person.


[11]   Based on the totality of the facts and circumstances known to Officer Smith at

       the time he detained Adams, we conclude that Officer Smith had a reasonable

       and articulable suspicion that Adams may have been involved in criminal

       activity. Accordingly, Officer Smith’s Terry stop of Adams did not violate

       Adams’ Fourth Amendment rights. See, e.g., Billingsley v. State, 980 N.E.2d 402,

       411 (Ind. Ct. App. 2012), trans. denied. For the same reasons, Adams’ claim

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1334| April 28, 2016   Page 6 of 7
       under Article 1, Section 11 of the Indiana Constitution must fail. See id. Officer

       Smith’s Terry stop of Adams was not contrary to law, and the trial court did not

       abuse its discretion when it admitted the evidence seized pursuant to that stop.


[12]   Affirmed.


       Robb, J., and Crone, J., concur.




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