      MEMORANDUM DECISION
                                                                           FILED
      Pursuant to Ind. Appellate Rule 65(D),                          Nov 28 2016, 8:27 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                            CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
      court except for the purpose of establishing                          and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Scott L. Barnhart                                       Gregory F. Zoeller
      Brooke Smith                                            Attorney General of Indiana
      Keffer Barnhart, LLP
      Indianapolis, Indiana                                   Ian McLean
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Venus G. Graves,                                        November 28, 2016
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              82A04-1509-CR-1309
              v.                                              Appeal from the Vanderburgh
                                                              Circuit Court
      State of Indiana,                                       The Honorable Kelli Fink,
      Appellee-Plaintiff.                                     Magistrate
                                                              Trial Court Cause No.
                                                              82C01-1412-F4-5251



      May, Judge.


[1]   Venus G. Graves appeals the denial of her motion to suppress the evidence

      collected from her after a police officer stopped her outside a Target store.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1509-CR-1309| November 28, 2016   Page 1 of 8
      Because the officer had reasonable suspicion to conduct the brief investigatory

      stop, we affirm and remand for further proceedings.



                            Facts and Procedural History
[2]   On December 13, 2014, Jason Martin was working as a security officer at a

      Target in Evansville, Indiana. He was at the front of the store when two

      women, later identified as Graves and Valerie Nelson, entered the store.

      Martin recognized the women because they had shoplifted alcohol from the

      store in the past month. Martin retreated to the security room to watch the

      women’s movements with the store’s video surveillance. From the security

      cameras, Martin saw Nelson walking toward the alcohol aisle, but he could not

      immediately locate Graves. Martin saw Nelson place two bottles of alcohol in

      her purse. Martin called 9-1-1 and reported he had two women in his store who

      had shoplifted together on a prior occasion and one of them had just placed two

      bottles of alcohol in her purse. Martin relayed descriptions of the two women

      to the operator. Martin continued watching and saw the two women meet and

      then separate again to continue shopping.


[3]   Officer Nick Sammet of the Evansville Police Department was dispatched to

      the store for a “theft in progress.” (Tr. Vol. 1 at 21.) He parked his cruiser

      along the sidewalk just outside the entrance to the store and waited for one of

      the women to exit. He testified:

              The information I had from dispatch was that there were two
              black females in the store, they gave two different clothing

      Court of Appeals of Indiana | Memorandum Decision 82A04-1509-CR-1309| November 28, 2016   Page 2 of 8
        descriptions, said that they had concealed alcohol, and that they
        had separated, and one of them was beginning to exit the store.


(Id. at 22.) Because Graves matched the descriptions he had received, Officer

Sammet “decided to basically stop her and determine if she was involved.” (Id.

at 23.) He approached Graves and

        asked her if she knew why I was stopping her, I asked her to step
        to the side out of the road, which she did, she started to walk
        over to the sidewalk area of the front of the store. I asked her if
        she had anything on her, and as I started to ask her that, she
        started putting her hands in her pockets, and I noticed that she
        started dropping items from the ground or from her pockets to
        the ground even after I asked her to remove her hands. She just
        continually kept putting her hands in and out of her pockets. . . .
        [S]he continually reached in her pockets and pulled more items
        out after I had told her to get her hands out of her pockets. . . .
        She wasn’t throwing [the items] or tossing them, but it was just
        pulling her hand out and dropping whatever she grabbed.


(Id. at 25-26.) The dropped items included “lots of jewelry,” (id. at 26), which

Officer Sammet collected, and then he walked Graves back into the Target store

to determine whether the jewelry had been stolen from the store. After loss

prevention workers determined the jewelry matched that available in the store,

Officer Sammet placed Graves under arrest for theft and, incident to that arrest,

searched her purse for additional items stolen from Target. In her purse, he

found two clear bags, one containing a white substance and one containing a

green leafy substance.




Court of Appeals of Indiana | Memorandum Decision 82A04-1509-CR-1309| November 28, 2016   Page 3 of 8
[4]   The State charged Graves with Level 4 felony dealing in cocaine, 1 Level 6

      felony theft, 2 and Class A misdemeanor possession of a synthetic drug. 3 Graves

      filed a motion to suppress the evidence collected from her when Officer

      Sammet stopped her. After a hearing, the trial court denied her motion.

      Graves moved for the court to stay proceedings and to certify its denial for

      interlocutory appeal. The trial court certified its order, and the appellate court

      granted permission for Graves to file an interlocutory appeal.



                                     Discussion and Decision
[5]              We review a trial court’s denial of a defendant’s motion to
                 suppress deferentially, construing conflicting evidence in the light
                 most favorable to the ruling, but we will also consider any
                 substantial and uncontested evidence favorable to the defendant.
                 We defer to the trial court’s findings of fact unless they are clearly
                 erroneous, and we will not reweigh the evidence. When the trial
                 court’s denial of a defendant’s motion to suppress concerns the
                 constitutionality of a search or seizure, however, it presents a
                 question of law, and we address that question de novo.


      Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014) (internal citations omitted).




      1
          Ind. Code §§ 35-48-4-1 (2014).
      2
          Ind. Code § 35-43-4-2(a) (2014).
      3
          Ind. Code § 35-48-4-11.5(c).


      Court of Appeals of Indiana | Memorandum Decision 82A04-1509-CR-1309| November 28, 2016   Page 4 of 8
                                            Fourth Amendment

[6]   The Fourth Amendment to the United States Constitution protects citizens

      against unreasonable searches and seizures by generally prohibiting them from

      occurring without a warrant supported by probable cause. U.S. Const. amend.

      IV. To deter State actors from violating that prohibition, evidence obtained in

      violation of the Fourth Amendment generally is not admissible in a prosecution

      of the citizen whose right was violated. Clark v. State, 994 N.E.2d 252, 260 (Ind.

      2013). The State has the burden of demonstrating the admissibility of evidence

      collected during a seizure or search. Id.


[7]   One exception to that general prohibition against warrantless search or seizure

      is the Terry stop, which permits an officer to stop and briefly detain someone for

      investigation if the articulable facts known to the officer create a reasonable

      suspicion that criminal activity “may be afoot.” Robinson, 5 N.E.3d at 367

      (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). The officer need not have

      probable cause to conduct such a stop, but there must be objective facts to

      justify thinking the citizen “stopped is, or is about to be, engaged in criminal

      activity.” Id. (quoting Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009)).

      Reasonable suspicion must be based on more than “hunches.” Clark, 994

      N.E.2d at 263.

              The totality of the circumstances - the whole picture - must be
              taken into account. Based upon that whole picture the detaining
              officers must have a particularized and objective basis for
              suspecting the particular person stopped of criminal activity. In
              assessing the whole picture, we must examine the facts as known

      Court of Appeals of Indiana | Memorandum Decision 82A04-1509-CR-1309| November 28, 2016   Page 5 of 8
               to the officer at the moment of the stop. We review findings of
               reasonable suspicion de novo. This is necessarily a fact-sensitive
               inquiry.


      Id. at 264 (internal citation and quotations omitted).


[8]   At the moment Officer Sammet approached Graves, he had received

      information she had entered the store with a second woman, Nelson, with

      whom, on a prior occasion, Graves reportedly had shoplifted alcohol. He had

      received information Nelson had, on this occasion, placed bottles of alcohol

      into her purse, but had not yet left the store. He also received information the

      women had separated inside the store and Target employees were unsure

      whether or not Graves had any stolen merchandise on her person as she left the

      store because they had not been able to find her on the security cameras at all

      times.


[9]   While those facts would not have produced probable cause for Officer Sammet

      to place Graves under arrest at that moment, they did not need to produce

      probable cause. See, e.g., Mayfield v. State, 402 N.E.2d 1301, 1306 (Ind. Ct. App.

      1980) (“A police officer does not need to have probable cause to arrest in order

      to make an investigatory stop.”), reh’g denied. Instead, Officer Sammet needed a

      particularized and objective basis to suspect Graves was part of the criminal

      activity that was “afoot.” Terry, 392 U.S. at 30. It was reasonable for Officer

      Sammet to momentarily freeze the situation to investigate Graves’ connection

      to the theft that Nelson was in the process of committing. See Mack v. State, 177

      Ind. App. 537, 542-3, 380 N.E.2d 592, 596 (1978) (where car matched

      Court of Appeals of Indiana | Memorandum Decision 82A04-1509-CR-1309| November 28, 2016   Page 6 of 8
       description of car spotted in vicinity of a theft and the occupants “may have

       been involved” in the theft, investigatory stop of car was permissible under the

       Fourth Amendment). The trial court did not err by declaring the evidence was

       admissible under the Fourth Amendment.


                                          Article One, Section 11

[10]   Article One, Section 11 of the Indiana Constitution provides:

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.


[11]   When an investigatory stop occurs, a citizen’s right to that constitutional

       protection is implicated. State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind. 2011).

       Nevertheless, a citizen’s right to move about freely is not “absolute,” as we

       must balance each person’s right to be free from interference against the public

       interest in investigating crimes and protecting itself. Id.


               When a defendant raises a Section 11 claim, the State must show
               the police conduct “was reasonable under the totality of the
               circumstances.” We consider three factors when evaluating
               reasonableness: “1) the degree of concern, suspicion, or
               knowledge that a violation has occurred, 2) the degree of
               intrusion the method of the search or seizure imposes on the
               citizen’s ordinary activities, and 3) the extent of law enforcement
               needs.”



       Court of Appeals of Indiana | Memorandum Decision 82A04-1509-CR-1309| November 28, 2016   Page 7 of 8
       Robinson, 5 N.E.3d 368 (internal citations omitted).


[12]   Officer Sammet stopped Graves momentarily to assess whether she was

       involved in the shoplifting in progress by Nelson, with whom Graves arrived at

       the store and with whom Graves had shoplifted less than one month earlier.

       That brief stop was not so great an intrusion as to be unreasonable in light of

       Nelson’s ongoing crime and Graves’ connection to Nelson. See, e.g., J.J. v.

       State, 58 N.E.3d 1002, 1005-6 (Ind. Ct. App. 2016) (investigatory stop

       reasonable under Article 1, Section 11 when officers knew juveniles leaving

       scene of verbal altercation with another group of juveniles may return to fight).



                                              Conclusion
[13]   Officer Sammet had reasonable suspicion to conduct an investigatory stop

       under the Fourth Amendment of the United States Constitution, and the stop

       was reasonable under Section 11 of Article 1 of the Indiana Constitution.

       Accordingly, we affirm the trial court’s denial of Graves’ motion to suppress

       and remand for further proceedings.


[14]   Affirmed and remanded.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1509-CR-1309| November 28, 2016   Page 8 of 8
