MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Jul 25 2019, 10:11 am

court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael C. Borschel                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Amari D. Lyons,                                           July 25, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-254
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Lisa F. Borges,
Appellee-Plaintiff                                        Judge
                                                          The Honorable Anne Flannelly,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G04-1709-F5-37350



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019                      Page 1 of 9
                                             Case Summary
[1]   Amari D. Lyons appeals his conviction for carrying a handgun without a

      license, a Level 5 felony. Lyons contends that the trial court committed

      reversible error by admitting evidence obtained during a warrantless search.

      We affirm.


                                  Facts and Procedural History
[2]   On the evening of September 27, 2017, Indianapolis Metropolitan Police

      Department (IMPD) officers responded to a report of an attempted robbery

      with a firearm at an apartment complex. IMPD Officers Mollie

      Johannigsmeier and John Dicicco arrived at about the same time in their

      marked police vehicles. Zane Dickson, the 911 caller, had been involved in a

      meetup for sale of goods to another individual arranged on the website OfferUp

      when the attempted robbery occurred. Dickson ran up to the officers and

      frantically told them that a black male had pointed a rifle at him in the parking

      lot. According to Dickson, the suspect then fled toward the apartment building.

      Dickson directed the officers to speak with Lyons, a possible witness, who was

      in the parking lot.


[3]   Lyons informed Officer Johannigsmeier that he had seen someone running

      away from the apartment building but had no further information. After

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019   Page 2 of 9
      speaking briefly with Lyons, the officers moved Dickson to the apartment

      leasing office to calm him down and question him further. While moving

      Dickson, the officers noticed Lyons driving a silver Chevy Impala towards the

      complex exit. As Lyons drove off, Dickson told Officer Johannigsmeier that

      after the attempted robbery, the suspect had tried to enter the silver Impala.


[4]   Five minutes later, Lyons returned to the parking lot in the silver Impala.

      When Lyons got out of his car, Officer Dicicco approached and said he needed

      to speak with him. Officer Johanningsmeier joined Officer Dicicco and asked

      Lyons for additional information about the robbery. Lyons told Officer

      Johanningsmeier that he knew the suspect’s name, that the suspect often spent

      time in the area, and that the suspect had run off immediately after the

      attempted robbery.


[5]   While Officer Johanningsmeier spoke with Lyons, Officer Dicicco shined a

      flashlight through the windows of the Impala and saw a handgun on the driver-

      side floorboard as well as a loaded magazine in the cupholder. He alerted

      Officer Johanningsmeier, who placed Lyons in handcuffs. A pat-down revealed

      an empty firearm holster on Lyons’s hip and a tactical light for a handgun in his

      pocket. Reading the serial number of the firearm through the passenger

      window, officers ran checks on both the gun and Lyons and found that he did

      not have a valid handgun license and that he had a previous conviction for

      carrying a handgun without a license. IMPD Officers Nicholas Rainbolt and

      Christopher Dian, who had arrived to assist, retrieved the weapon and searched

      Lyons’s car. The handgun was a loaded Glock 19 pistol with a 30-round

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019   Page 3 of 9
      magazine. The officers also found a rifle magazine in the glove box, a 15-round

      magazine in one of the cupholders, and a mask in the trunk.


[6]   Lyons was charged with carrying a handgun without a license, a Class A

      misdemeanor, and carrying a handgun without a license while having a prior

      conviction for the same offense, a Level 5 Felony. Following a bifurcated trial,

      Lyons was convicted of the Level 5 Felony and sentenced to four years in

      Marion County Community Corrections’ work release program.


                                     Discussion and Decision
[7]   On appeal, Lyons argues that the trial court abused its discretion and

      committed reversible error by admitting evidence in violation of the Fourth

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

      Indiana Constitution. Specifically, he contends the trial court erred in

      admitting the handgun discovered in the vehicle in violation of his rights

      against unreasonable searches and seizures.


                                         Standard of Review
[8]   Lyons’s appeal comes after the completion of his trial; therefore, it is properly

      viewed as an admission of evidence issue rather than an appeal of the denial of

      his motion to suppress. Our review here is based on a standard similar to that

      used in other sufficiency of evidence issues. Litchfield v. State, 824 N.E.2d 356,

      358 (Ind. 2005). We will not reweigh the evidence and “we will consider the

      evidence favorable to the trial court’s ruling, as well as substantial

      uncontradicted evidence to the contrary, to decide whether the evidence is

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019   Page 4 of 9
       sufficient to support the ruling.” Holder v. State, 847 N.E.2d 930, 935 (2006).

       We will reverse only “if a ruling is clearly against the logic and effect of the

       facts and circumstances and the error affects a party’s substantial rights.”

       Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).


                                   Fourth Amendment Analysis
[9]    The Fourth Amendment to the United States Constitution protects individuals

       against unreasonable searches and seizures by government agents. “A search

       without a warrant requires the State to prove an exception to the warrant

       requirement applicable at the time of the search.” Holder, 847 N.E.2d at 935.


[10]   Not all encounters between police and individuals implicate Fourth

       Amendment protections. “Consensual encounters in which a citizen

       voluntarily interacts with an officer do not compel Fourth Amendment

       analysis.” Clark v. State, 994 N.E.2d 252, 261 (Ind. 2013). A stop remains at the

       consensual level based on whether a reasonable person would have felt they

       were free to leave. State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App. 2008).

       Factors to be considered in determining whether a reasonable person felt free to

       leave include “(1) the threatening presence of several officers, (2) the display of

       a weapon by an officer, (3) the physical touching of the person, or (4) the use of

       language or tone of voice indicating that compliance with the officers request

       might be compelled.” Id.


[11]   Nonconsensual encounters typically fall into one of two categories, brief

       investigative stops and full arrests. Id. With respect to the former, the Supreme

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019   Page 5 of 9
       Court has held that a police officer can briefly detain an individual for

       investigative purposes if the officer has reasonable suspicion that criminal

       activity is afoot. Terry v. Ohio, 392 U.S. 1 (1968). A full arrest, in which the

       individual is detained for longer than a short time, requires probable cause. Id.


[12]   Lyons argues that his second interaction with police constituted a

       nonconsensual encounter. We disagree with Lyons as to the nature of the

       encounter at that point. That is, during this second encounter, police sought

       further information from Lyons after Dickson informed them that the suspect

       had tried to enter the silver Impala that Lyons was seen driving. The

       conversation prior to the discovery of the handgun pertained to Lyons’s status

       as a potential witness. Nothing about the nature of the second encounter differs

       from Lyons’s first conversation, which he agrees was consensual. The number

       of police present did not increase, nor did the police display their weapons,

       physically touch him, or restrain his movement. Officer Dicicco said that he

       needed to speak with Lyons, but gave no reasonable indication that Lyons was

       under any form of detention, only that he wanted to ask more questions about

       what Lyons may have seen.


[13]   Only after Officer Dicicco spotted a firearm in open view 1 in the car Lyons had

       been driving did the encounter evolve into a Terry stop. Considering Dickson’s




       1
         The “open view” principle applies when “a police officer sees contraband from an area that is not
       constitutionally protected” in an area that is protected, such as a home or a vehicle. Sayre v. State, 471
       N.E.2d 708, 712 (Ind. Ct. App. 1984). For a police officer to lawfully seize contraband in open view, either a
       search warrant or a justifiable exception to warrantless seizure is required. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019                       Page 6 of 9
       account that the suspect was armed and had tried to enter the Impala, Officers

       Dicicco and Johanningsmeier then acted on reasonable suspicion that Lyons

       may have been involved in the attempted robbery. The officers’ brief detention

       of Lyons while they searched his person and ran a check on the firearm was

       acceptable under Terry as part of their investigation.


[14]   The subsequent search of the vehicle and seizure of the handgun fell within the

       automobile exception. “If a car is readily mobile and probable cause exists to

       believe it contains contraband, the Fourth Amendment thus permits police to

       search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938, 940

       (1996). With regards to the “readily mobile” component, the Indiana Supreme

       Court has held “a vehicle that is temporarily in police control or otherwise

       confined is generally considered to be readily mobile and subject to the

       automobile exception to the warrant requirement if probable cause is present.”

       Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005). Police did not seize the

       handgun until it was determined that Lyons did not have a license for it and

       that he had a prior conviction for illegally possessing a firearm, thereby giving

       them the requisite probable cause. As such, the seizure of the firearm from

       inside the vehicle did not violate Lyons’s Fourth Amendment rights.


                                   Article 1 Section 11 Analysis
[15]   Although Article 1, Section 11 of the Indiana Constitution contains identical

       language to the Fourth Amendment, we interpret the language independently

       and separately. Litchfield, 824 N.E.2d at 359. Our interpretation is based on an


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019   Page 7 of 9
       assessment of the reasonableness of the actions of the police officer when the

       totality of the circumstances are considered. Id. Reasonableness is determined

       by balancing: “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.” Id. Indiana courts have held that the Fourth Amendment

       automobile exception applies during an Article 1, Section 11 analysis. Myers v.

       State, 839 N.E.2d 1146, 1154 (Ind. 2005).


[16]   Regarding the Litchfield factors, the police on the scene had a high degree of

       concern and suspicion that an armed robbery had occurred and they had been

       told by Dickson that the suspect had attempted to enter Lyons’s vehicle.

       Lyons’s interaction with police was minimally intrusive up until the handgun

       was discovered, when he was handcuffed and briefly detained as a suspect. The

       seizure of the handgun from Lyons’s car falls within the established automobile

       exception. The totality of the circumstances shows that the actions taken by

       police were based on the pressing need to investigate an attempted armed

       robbery and recover the potential weapon or weapons used in the crime, which

       outweighed the intrusion into Lyons’s activities. Therefore, the seizure of the

       handgun from the vehicle did not violate Lyons’s rights under Article 1, Section

       11 of the Indiana Constitution.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019   Page 8 of 9
                                                  Conclusion
[17]   The warrantless search of Lyons’s vehicle did not violate the search and seizure

       provisions of either the Fourth Amendment or Article 1, Section 11 of the

       Indiana Constitution. The trial court did not abuse its discretion in admitting

       the handgun into evidence.


       Judgment affirmed.


       Kirsch, J. and Vaidik C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019   Page 9 of 9
