                                                                          FILED
                                                                     May 20 2016, 10:17 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ellen M. O’Connor                                         Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana                                     Michael Gene Worden
                                                                Ellen H. Meilaender
                                                                Chandra Hein
                                                                Deputy Attorneys General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Derek Scisney,                                            May 20, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1504-CR-227
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Shatrese M.
      Appellee-Plaintiff.                                       Flowers, Judge
                                                                Trial Court Cause No.
                                                                49G20-1410-F4-45982



      Mathias, Judge.


[1]   Derek Scisney (“Scisney”) was convicted in Marion Superior Court of unlawful

      possession of a firearm by a serious violent felon (“SVF”) and resisting law

      enforcement. Scisney appeals his conviction for unlawful possession of a

      firearm by an SVF and argues that the trial court abused its discretion when it
      Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016                  Page 1 of 8
      admitted the firearm into evidence. Specifically, he argues that his encounter

      with the law enforcement officer was not consensual and the officer lacked

      reasonable suspicion to conduct a Terry stop and the accompanying pat down

      search.

[2]   We affirm.


                                      Facts and Procedural History

[3]   On September 26, 2014, Indianapolis Metropolitan Police Department Officers

      Brenda Fekkes (“Officer Fekkes”) and William Wogan (“Officer Wogan”)

      received a dispatch of “shots fired” by a white male wearing a blue shirt near

      800 North Drexel, a “high crime area” in Indianapolis. Appellant’s App. p. 52.

      While searching for the suspect, Officer Fekkes spotted a white male wearing a

      blue shirt walking southbound in the 700 block of Linwood Avenue, which runs

      parallel to Drexel Avenue one block to the west.1


[4]   The white male was walking with a black male, who was later identified as

      Scisney. Officer Fekkes activated her emergency lights and approached the




      1
        Neither officer testified as to the time frame between receipt of the dispatch and locating the suspect. The
      probable cause affidavit states that Officers Samm (a.k.a. Fekkes) and Wogan drove through the Linwood
      Apartment complex after receiving the dispatch but did not find any person matching the suspect’s
      description. The officers returned to Linwood Avenue and proceeded northbound. Officer Fekkes
      immediately spotted the white male and black male walking side-by-side after turning onto Linwood Avenue.
      The probable cause affidavit states that approximately six minutes elapsed from the time the dispatch was
      received to the time the two males were observed. Appellant’s App. p. 18.

      Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016                            Page 2 of 8
      white male. She exited her vehicle and made contact with the white male and

      conducted a pat down search. She did not find any weapons.

[5]   Officer Wogan had been following Officer Fekkes and observed her interaction

      with the white male. As Officer Fekkes approached Scisney’s companion,

      Scisney put his head down and continued walking at a quicker pace. Officer

      Wogan also saw Scisney touch the right side of his waist. Officer Wogan

      parked his police vehicle close to Scisney, without activating his emergency

      lights, and stepped out of the vehicle. He then asked Scisney if he could speak

      to him. Officer Wogan suspected that Scisney had a weapon because Scisney

      had touched his waistline. Tr. p. 16. As Scisney approached the officer, Wogan

      asked Scisney if he had any weapons. Scisney did not respond to the officer’s

      question.


[6]   Once Scisney was within reach, Officer Wogan “immediately” conducted a

      “Terry pat down.” Tr. p. 17. The officer felt the grip of a pistol on Scisney’s

      waistline and attempted to remove it from Scisney. At that moment, Scisney

      ran from the officer. Officer Wogan lost his grip on the pistol, and it fell to the

      ground as Scisney fled. Officer Wogan ordered Scisney to stop, but he

      continued to run toward Drexel Avenue. Scisney was apprehended in the

      backyard of a house in the 800 block of Drexel Avenue.

[7]   On October 1, 2014, Scisney was charged with Level 4 felony unlawful

      possession of a firearm by a SVF, and two counts of Class A misdemeanor

      resisting law enforcement. Scisney filed a motion to suppress the firearm


      Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016      Page 3 of 8
       discovered during the pat down search. The trial court heard argument on the

       motion during the February 11, 2015 bench trial.

[8]    The trial court denied Scisney’s motion to suppress on February 20, 2015.

       Thereafter, Scisney was found guilty on all counts. He was sentenced to serve

       eight years for the unlawful possession of a firearm by an SVF conviction, with

       four years executed and four years suspended to probation. He was also ordered

       to serve concurrent terms of 360 days for the resisting law enforcement

       convictions. Scisney now appeals.2


                                           Discussion and Decision

[9]    Scisney argues that the trial court abused its discretion when it admitted the

       firearm discovered during the pat down search into evidence because the search

       was unconstitutional under the Fourth Amendment to the United States

       Constitution.3 The Fourth Amendment guarantees “[t]he right of the people to

       be secure in their persons . . . against unreasonable searches and seizures.”

[10]   Although Scisney filed a pre-trial motion to suppress, because he appeals

       following a completed trial, the issue is properly framed as whether the trial

       court abused its discretion in admitting the evidence. Clark v. State, 994 N.E.2d




       2
         On April 22, 2016, we held oral argument in this case at the Indiana Tech Law School in Ft. Wayne,
       Indiana. We extend our gratitude to the Allen County Bar Association and to the law school’s faculty, staff,
       and students for their hospitality. We also commend counsel for the quality of their written and oral
       advocacy.
       3
        Scisney does not challenge the pat down search under Article One, Section Eleven of the Indiana
       Constitution.

       Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016                            Page 4 of 8
       252, 259 (Ind. 2013). The admission of evidence is within the discretion of the

       trial court. Id. at 259-60. We will reverse a ruling on the admission of evidence

       only for an abuse of that discretion, which occurs only when the ruling is

       clearly against the logic and effect of the facts and circumstances and the error

       affects a party's substantial rights. Id. at 260.


[11]   “Encounters between law enforcement officers and public citizens take a variety

       of forms, some of which do not implicate the protections of the Fourth

       Amendment and some of which do.” Id. at 261. Consensual encounters in

       which a citizen voluntarily interacts with a police officer do not compel Fourth

       Amendment analysis. Id. Nonconsensual encounters do and typically fall into

       two categories. Id. The first is a full arrest, which requires probable cause. Id.

       The second is a brief investigative stop, often known as a Terry stop, which

       requires a lower standard of reasonable suspicion. Id.


[12]   Scisney argues both that his initial encounter with Officer Wogan was not

       consensual and that Officer Wogan lacked reasonable suspicion to conduct a

       Terry stop and pat down search. The consensual nature of Scisney’s encounter

       with Officer Wogan was extinguished once the officer asked to speak to

       Scisney. At that point, a reasonable person in Scisney’s situation would not feel

       free to walk away from the officer because two officers were present in marked

       police vehicles, emergency lights were activated on one vehicle, and the officers

       were in full uniform with their police issued firearm readily visible. See Dowdell

       v. State, 747 N.E.2d 564, 567 (Ind. Ct. App. 2001), trans. denied (concluding that

       a “reasonable person when faced with a police officer pulling up to him in a

       Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016      Page 5 of 8
       marked vehicle and calling for him to come over to the car would not assume

       that he can just turn and walk away”). Therefore, we must determine whether

       Officer Wogan had reasonable suspicion to stop Scisney when the officer asked

       to speak with him.

[13]   The fundamental principle upon which a Terry stop is based is that the officer

       must have reasonable suspicion to believe that criminal activity has occurred or

       is about to occur or that “‘criminal activity may be afoot.’” Holly v. State, 918

       N.E.2d 323, 325 (Ind. 2009) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).

       Specifically, in Terry the United States Supreme Court held:


               where a police officer observes unusual conduct which leads him
               reasonably to conclude in light of his experience that criminal
               activity may be afoot and that the persons with whom he is
               dealing may be armed and presently dangerous, where in the
               course of investigating this behavior he identifies himself as a
               policeman and makes reasonable inquiries, and where nothing in
               the initial stages of the encounter serves to dispel his reasonable
               fear for his own or others’ safety, he is entitled for the protection
               of himself and others in the area to conduct a carefully limited
               search of the outer clothing of such persons in an attempt to
               discover weapons which might be used to assault him.


       392 U.S. at 30.


[14]   However, “‘[s]uch reasonable suspicion must be comprised of more than

       hunches or unparticularized suspicions.”’ Clark, 994 N.E.2d at 263 (quoting

       State v. Murray, 837 N.E.2d 223, 225-26 (Ind. Ct. App. 2005), trans. denied).

       Taking into account the totality of the circumstances or the whole picture, the


       Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016          Page 6 of 8
       detaining officers must have a particularized an objective basis for suspecting

       the particular person stopped of criminal activity. Id. at 264. In making this

       determination, we must examine the facts as known to the officer at the

       moment of the stop. Id. Findings of reasonable suspicion are reviewed de novo,

       and this is necessarily a fact-sensitive inquiry. Id.


[15]   Consistent with Terry, our court has observed that “[a] patdown search for

       weapons may be conducted if the officer is ‘justified in believing that the

       individual whose suspicious behavior he is investigating at close range is armed

       and presently dangerous to the officer or to others.’” Bell v. State, 13 N.E.3d

       543, 545 (Ind. Ct. App. 2014) (quoting Jackson v. State, 669 N.E.2d 744, 747

       (Ind.Ct.App.1996) (quoting Terry, 392 U.S. 1 at 24). However, “[n]othing in

       Terry can be understood to allow a generalized ‘cursory search for weapons’ or

       indeed, any search whatever for anything but weapons.” Ybarra v. Illinois, 444

       U.S. 85, 93-94 (1979).


[16]   In this case, Officers Fekkes and Wogan received a dispatch of shots fired by a

       white male in a high crime area.4 Scisney was walking with a white male

       matching the description of the suspect. As Officers Fekkes parked her vehicle




       4
         Presence in a high crime area alone does not constitute reasonable suspicion, but it can be “considered as a
       factor in the totality of the circumstances confronting an officer at the time of a stop.” Bridgewater v. State, 793
       N.E.2d 1097, 1100 (Ind. Ct. App. 2003), trans. denied. Moreover, the fact that the officers were responding to
       the report of gunshots fired distinguishes this case from Stalling v. State, 713 N.E.2d 922, 925 (Ind. Ct. App.
       1999), in which our court reversed the trial court’s denial of Stalling’s motion to suppress after observing
       Stalling’s “movement toward his waistline, without more,” did not reasonably support the officer’s
       “suspicion that criminal activity was afoot.”

       Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016                                  Page 7 of 8
       and asked to speak to his companion, Scisney “hurried his pace just a little bit.”

       Tr. p. 8. He continued to walk southbound on Linwood Avenue away from his

       companion who stopped to speak to Officer Fekkes at her request. Tr. p. 16.

       Officer Wogan, who had been following Officer Fekkes, noticed that Scisney

       avoided eye contact with him, and the officer stepped out of his vehicle. After

       he saw Scisney touch “the right side of his waist line,” Officer Wogan asked

       Scisney if he could “speak with him for a second.” Tr. p. 16.


[17]   Considering the totality of these circumstances, we agree with the trial court

       that when he asked to speak of Scisney, Officer Wogan reasonably believed that

       Scisney had participated in criminal activity and that he was armed and

       possibly dangerous to the officers. Cf. W.H. v. State, 928 N.E.2d 288 (Ind. Ct.

       App. 2010), trans. denied; Willis v. State, 907 N.E.2d 541 (Ind. Ct. App. 2009).

       Moreover, as Scisney walked toward him, Officer Wogan asked if he had any

       weapons. When Scisney did not respond, the officer immediately performed a

       Terry pat down search. Because the officer was justifiably concerned for officer

       and public safety, the pat down search was constitutionally permissible. See Bell,

       13 N.E.3d at 545. For all of these reasons, the trial court did not abuse its

       discretion when it admitted the firearm discovered during the pat down search

       into evidence.


[18]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.



       Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016     Page 8 of 8
