MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                   May 20 2016, 8:47 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court

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


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ruth Johnson                                            Gregory F. Zoeller
Suzy St. John                                           Attorney General of Indiana
Marion County Public Defender Agency
                                                        George P. Sherman
Appellate Division                                      Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Jonathan Wallace,                                       May 20, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1507-CR-819
        v.                                              Appeal from the
                                                        Marion Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Linda E. Brown, Judge
                                                        Trial Court Cause No.
                                                        49G10-1501-CM-632



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016          Page 1 of 15
[1]   Following a bench trial, Jonathan Wallace appeals his conviction for Class A

      misdemeanor carrying a handgun without a license1 and raises the following

      restated issued: whether the trial court abused its discretion when it admitted

      into evidence, over Wallace’s objection, the handgun that was discovered

      during a pat-down search of Wallace, which occurred during a traffic stop.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On the evening of January 2, 2015, around 6:20 p.m., Indianapolis

      Metropolitan Police Department (“IMPD”) Officer Kyle Flynn was on patrol in

      his fully marked police car. He was stopped at the stoplight at 38th Street and

      Keystone Avenue, which IMPD considers as one of its targeted “high crime”

      areas. Tr. at 8-9, 13. Officer Flynn checked the license plates of some of the

      cars that were also at the intersection, including a green Toyota Camry (“the

      Toyota”) stopped in the lane to the right of Officer Flynn’s car, and he learned

      that the license plate was expired. Officer Flynn watched the Toyota abruptly

      change lanes and turn left onto Keystone Avenue. It then promptly turned right

      onto East 37th Street, “at a pretty fast rate of speed.” Id. at 12. Keeping the

      Toyota in his sight, Officer Flynn continued through the intersection and then

      caught up to the Toyota on 37th Street. Officer Flynn activated his vehicle’s

      emergency siren and lights to conduct a traffic stop of the Toyota due to the




      1
          See Ind. Code § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016   Page 2 of 15
      expired license plates. The Toyota made a turn onto Caroline Avenue,

      proceeded past a few houses, pulled to the left (west) side of the street, and

      parked. Id. at 12-13.


[4]   Officer Flynn got out of his car and approached the Toyota. The driver, later

      identified as Wallace, was alone in the car. Officer Flynn asked Wallace for his

      license and the vehicle’s registration, as was customary for him to do. Wallace

      replied that “he didn’t have a license; he didn’t have his wallet[;] and that it was

      his girlfriend’s car.” Id. at 14. While in the car, Wallace was “fidgeting” and

      appeared nervous. Id. Wallace “was debating actively” with Officer Flynn

      about why he was stopped, and his tone was “aggressive” and “very

      confrontational,” which Officer Flynn believed was “not normal” for a traffic

      stop. Id. at 17, 20. Officer Flynn determined that it would not be safe for him

      to leave Wallace in the Toyota while he returned to his patrol car to conduct a

      records search, so he asked Wallace to step out of his vehicle, and finding

      Wallace’s conduct to be “very suspicious,” he performed a pat-down of

      Wallace for officer safety. Id. at 15, 17.


[5]   In Wallace’s front pocket, Officer Flynn felt what he believed from experience

      to be a magazine for a Glock handgun. He then found a Glock firearm in

      Wallace’s waistband. Officer Flynn removed the handgun and placed Wallace

      in handcuffs. Around the time that Officer Flynn discovered and removed the

      handgun and magazine from Wallace, back-up assistance arrived. At that time,

      one of the officers conducted a record check on Wallace’s name. There were

      no outstanding warrants, but the officers learned that Wallace’s driving status

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016   Page 3 of 15
      was “suspended prior on learning permit” and that Wallace’s handgun permit

      was “in limbo” as it had not yet been approved. Id. at 29. The Marion County

      Sheriff’s Department transported Wallace to jail.2


[6]   The State charged Wallace with one count of Class A misdemeanor carrying a

      handgun without a license. Wallace waived his right to a jury trial. During the

      bench trial, Wallace moved to suppress the handgun, arguing that it was the

      fruit of an unconstitutional search under the Fourth Amendment and his rights

      under Article 1, Section 11 of the Indiana Constitution. Wallace renewed the

      constitutional objections throughout Officer Flynn’s testimony. The trial court

      admitted the handgun into evidence over Wallace’s objections.


[7]   Officer Flynn testified that the Toyota’s sudden turns in a high crime area,

      along with the fact that the car had expired plates, caused him some concern,

      explaining that sudden movements of that nature sometime reflect evasive

      moves taken by a person to avoid being seen by police. He also noted that

      when he activated his lights and siren, the Toyota did not immediately stop, but

      rather turned and drove past several houses, before it stopped on the left side of

      the street and turned off all its lights. Officer Flynn testified that, during the

      traffic stop of the Toyota, after Wallace verbally identified himself, he

      recognized Wallace from having met him during a previous encounter that




      2
       Officer Flynn testified that during the arrest and processing of evidence at the scene, a woman believed to
      be Wallace’s girlfriend came out of one of the homes near where Wallace had parked the Toyota, and the
      officer told her that Wallace was being arrested and that the vehicle was being towed. Tr. at 31-32.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016                Page 4 of 15
occurred some months prior, in which Wallace was the complainant, alleging

theft of his cell phone. During that prior interaction, Officer Flynn had checked

Wallace’s identification information in a system called “InterAct,” which had

indicated Wallace “may be known to carry a firearm.” 3 Corrected. Tr. at 19.

Officer Flynn testified that during the traffic stop, when he was speaking to

Wallace in the Toyota, Wallace was “fidgeting” and appeared nervous,

although Wallace did not appear to be specifically trying to reach around in the

car to grab or hide anything. Tr. at 14. When Officer Flynn asked for license

and registration, Wallace stated that he “didn’t have a license” and that he

“didn’t have his identification because he didn’t have his wallet.” Id. at 14, 20.

Wallace also told Officer Flynn that the car belonged to his girlfriend. Officer

Flynn testified that although Wallace was not loud and did not make any

threats, his tone was “argumentative,” “aggressive,” and “very

confrontational.” Id. at 17, 20. Officer Flynn testified that, based on the

situation, he made the assessment that “it was not safe to leave Wallace in the

vehicle” while the officer returned to his patrol car, so Officer Flynn asked

Wallace to step out of his car and did “a quick pat down for officer safety,”

discovering the magazine and handgun. Id. at 15. A records search revealed

that Wallace did not possess a driver’s license and also did not have a valid

permit to carry the handgun.




3
 Wallace notes that InterAct was a public reports system used by IMPD for a period of time, but IMPD quit
using it in December 2015. Appellant’s Br. at 7, n.3.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016            Page 5 of 15
[8]   IMPD Detective Tanya Terry also testified at trial, stating that, during the

      additional investigation on the case, she contacted the Indiana State Police

      (“ISP”) Licensing Section and learned that when Wallace was found in

      possession of the handgun, he had previously applied for a permit, but it had

      not been issued yet.


[9]   Wallace testified that he applied for a permit to carry a firearm at “the end of

      October” 2014, and on November 14, 2014, he paid for it. Id. at 58. Wallace

      testified that upon his release from jail,4 he checked his mailbox and found the

      permit was there, stating, “[I]t was sent two days after I was arrested.” Id. at

      59. Wallace introduced a copy of his “concealed carry permit” (“Permit”),

      which the trial court admitted over the State’s objection. Def.’s Ex. B. The

      Permit reflected that it was issued on January 7, 2015, five days after his arrest.

      Id. Wallace testified that on January 2, 2015, the date he was arrested, he

      believed that he was allowed to carry a handgun. He explained, “ISP . . . had

      ninety days to approve [my] permit . . . so I believed it was approved within the

      ninety days of November 14th of me paying.” Tr. at 61. He further stated that

      he had not received anything to advise him that it had not been approved, and

      “Like I said[,] it had been ninety days.” Id. at 62.




      4
          During sentencing, counsel advised the trial court that Wallace spent twelve days in jail. Tr. at 74.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016                    Page 6 of 15
[10]   At the conclusion of the evidence, and following argument by counsel, the trial

       court found Wallace guilty as charged and sentenced him to 365 days in jail,

       with 341 days suspended. Wallace now appeals.


                                        Discussion and Decision
[11]   Wallace asserts that Officer Flynn lacked reasonable suspicion that Wallace

       was armed and dangerous, and, therefore, the handgun was the fruit of an

       unlawful search and should not have been admitted into evidence. 5 During the

       bench trial, Wallace moved to suppress the handgun as the fruit of an

       unconstitutional search; the trial court denied the motion, and the matter

       proceeded to a bench trial. Therefore, the issue is properly framed as whether

       the trial court abused its discretion by admitting the evidence at trial. Johnson v.

       State, 38 N.E.3d 658, 660 (Ind. Ct. App. 2015), trans. denied; Widduck v. State,

       861 N.E.2d 1267, 1269 (Ind. Ct. App. 2007).


                Our standard of review of rulings on the admissibility of evidence
                is essentially the same whether the challenge is made by a pretrial
                motion to suppress or by trial objection. We do not reweigh the
                evidence, and we consider conflicting evidence most favorable to
                the trial court’s ruling. However, we must also consider the
                uncontested evidence favorable to the defendant. In this sense,
                the standard of review differs from the typical sufficiency of the




       5
        Wallace does not dispute that Officer Flynn had a lawful basis for initiating the traffic stop based on the
       expired plates on the Toyota. Under both the Fourth Amendment and Article 1, Section 11 of the Indiana
       Constitution, “It is well settled that a police officer may stop a vehicle when he observes a minor traffic
       violation.” Kroft v. State, 992 N.E.2d 818, 821 (Ind. Ct. App. 2013).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016                Page 7 of 15
               evidence case where only evidence favorable to the verdict is
               considered.


       Widduck, 861 N.E.2d at 1269 (internal citations omitted). On appeal,

       determinations regarding admissibility of evidence are reviewed for an abuse of

       discretion and will be reversed only when admission is clearly against the logic

       and effect of the facts and circumstances, and the error affects a party’s

       substantial rights. N.W. v. State, 834 N.E.2d 159, 161 (Ind. Ct. App. 2005),

       trans. denied; see also Johnson, 38 N.E.3d at 661 (even if evidentiary decision was

       abuse of discretion, we will not reverse if admission constituted harmless error).

       We may affirm a trial court’s decision to admit evidence seized as a result of a

       search based on any legal theory supported by the record. Johnson, 38 N.E.3d

       at 661. We review de novo a ruling on the constitutionality of a search or

       seizure, but we give deference to a trial court’s determination of the facts, which

       will not be overturned unless clearly erroneous. Id. (citing Campos v. State, 885

       N.E.2d 590, 596 (Ind. 2008)). Wallace argues on appeal that the handgun

       should not have been admitted into evidence because Officer Flynn’s search of

       him, resulting in the seizure of the handgun, violated his rights under both the

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

       of the Indiana Constitution.


                                             Fourth Amendment

[12]   The Fourth Amendment, which is applicable to the states through the

       Fourteenth Amendment, protects “[t]he right of the people to be secure in their

       persons, houses, papers, and effects[ ] against unreasonable searches and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016   Page 8 of 15
       seizures” by the government. U.S. Const. amend. IV. “[I]t is well-settled

       Fourth Amendment jurisprudence that police may, without a warrant or

       probable cause, briefly detain an individual for investigatory purposes if, based

       on specific and articulable facts, the officer has reasonable suspicion that

       criminal activity ‘may be afoot.’” Overstreet v. State, 724 N.E.2d 661, 663 (Ind.

       Ct. App. 2000) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)), 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. Holbert v. State, 996 N.E.2d 396, 400 (Ind. Ct. App. 2013),

       trans. denied.


[13]   A routine traffic stop “is more analogous to a so-called ‘Terry stop’ . . . than to a

       formal arrest.” Mitchell v. State, 745 N.E.2d 775, 780 (Ind. 2001). If, after

       making a Terry stop, an officer has a reasonable fear of danger, he may perform

       a carefully limited pat-down of the outer clothing of the individual in an

       attempt to discover weapons that might be used to harm the officer. N.W., 834

       N.E.2d at 162; see also Mitchell, 745 N.E.2d at 780 (officer may perform Terry

       pat-down of driver or any passenger if he has reasonable suspicion that they

       may be armed and dangerous).

               The officer need not be absolutely certain that the individual is
               armed; the issue is whether a reasonably prudent man in the
               circumstances would be warranted in the belief that his safety or
               that of others was in danger. And in determining whether the
               officer acted reasonably in such circumstances, due weight must
               be given, not to his inchoate and unparticularized suspicion or


       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016   Page 9 of 15
                “hunch,” but to the specific reasonable inferences which he is
                entitled to draw from the facts in light of his experience.


       Mitchell, 745 N.E.2d at 781 (quoting Terry, 392 U.S. at 27). “‘[I]n justifying the

       particular intrusion, the police officer must be able to point to specific and

       articulable facts which, taken together with rational inferences from those facts,

       reasonably warrant that intrusion.’” Id. (quoting Terry, 392 U.S. at 21).

       Because the standard under Terry is one of objective reasonableness, we are not

       limited to what the stopping officer testifies to or to evidence of his subjective

       rationale; rather, we look to the record as a whole to determine what facts were

       known to the officer and then consider whether a reasonable officer in those

       circumstances would have been in fear of his safety. Dixon v. State, 14 N.E.3d

       59, 61-62 (Ind. Ct. App. 2014) (citing Parker v. State, 697 N.E.2d 1265, 1267

       (Ind. Ct. App. 1998), trans. denied), trans. denied.6 Thus, if the facts known by

       the officer at the time of the stop are such that a person of reasonable caution

       would believe that the action taken was appropriate, the Fourth Amendment is

       satisfied. Terry, 392 U.S. at 22.


[14]   Wallace claims that the trial court should not have admitted the handgun

       because “[t]he circumstances establish at most a generalized concern for officer

       safety which does not support a lawful frisk.” Appellant’s Br. at 8. The State




       6
        We note that, originally, transfer was granted in Dixon v. State, but following oral argument, the Supreme
       Court vacated the order granting transfer, reinstated the Court of Appeals opinion, and denied transfer.
       Dixon v. State, 14 N.E.3d 59, 67 (Ind. Ct. App. 2014), trans. granted, 18 N.E.3d 1005 (Ind. 2014), vacated, 27
       N.E.3d 736 (Ind. 2015) and trans. denied, 27 N.E.3d 736 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016                 Page 10 of 15
       maintains that, contrary to Wallace’s argument, the pat-down was based on

       Officer Flynn’s reasonable suspicion of criminal activity or reasonable safety

       concerns. After a review of the record, we agree with the State.


[15]   Although Wallace asserts that Officer Flynn patted him down on nothing more

       than a “hunch” that he might be armed and dangerous, Wallace’s argument

       disregards the fact that Wallace was driving a vehicle, not his own, with expired

       plates, in a “high crime” area, and that Wallace’s vehicle made an abrupt lane

       change and successive immediate turns. Officer Flynn testified that, in his

       experience, sudden turns of that sort may indicate evasive maneuvers intended

       to avoid police. When Officer Flynn did catch up with Wallace and activate his

       emergency lights and siren, Wallace did not immediately stop, but turned onto

       Caroline Street and drove past several houses, before he parked the car on the

       left side of the street and turned off all the vehicle’s lights. When Officer Flynn

       asked Wallace for his license and registration, Wallace told Officer Flynn that

       “he didn’t have a license,” that he did not have identification because he did

       not have his wallet with him, and that the car belonged to his girlfriend. Tr. at

       14. Officer Flynn described Wallace as combative, argumentative, and

       aggressive. Officer Flynn acknowledged that an individual has a right to ask

       why he or she was stopped by police, but Wallace’s tone and demeanor was

       “not normal during a traffic stop.” Id. at 20. Although Wallace did not actively

       make furtive movements that indicated he was reaching for something, he did

       appear very nervous and was fidgeting. Officer Flynn found that Wallace’s

       behavior was “very suspicious” to the extent that he did not feel comfortable


       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016   Page 11 of 15
       walking back to his patrol car and leaving Wallace inside his vehicle. Id. at 15.

       Moreover, during the course of the stop, after Wallace had verbally identified

       himself, Officer Flynn recalled that he had met Wallace in a prior encounter,

       and a search at that time on the InterAct database had indicated that Wallace

       was described as someone who “may be known to carry a firearm.” Corrected

       Tr. at 19-20.


[16]   While any one factor standing alone might not support a pat-down for officer

       safety, the overall circumstances do. Officer Flynn’s testimony identified

       particularized facts in support of a heightened concern that his safety or that of

       others was in danger, and the information known to Officer Flynn at the time of

       the pat-down was such that a person of reasonable caution would believe that

       the action taken was appropriate. Accordingly, the trial court did not abuse its

       discretion when it rejected Wallace’s claim that the handgun should be

       suppressed because its seizure violated his Fourth Amendment rights, and it

       admitted the handgun into evidence.


                                             Article 1, Section 11

[17]   While Article 1, Section 11 of the Indiana Constitution is almost identical in

       wording to the Fourth Amendment, our constitutional analysis is different.

       D.F. v. State, 34 N.E.3d 686, 689 (Ind. Ct. App. 2015), trans. denied. We “focus

       on the actions of the police officer and employ a totality-of-the-circumstances

       test to evaluate the reasonableness of the officer’s actions.” Id. at 690 (quoting

       Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010)). The State has the burden to

       demonstrate the police intrusion was reasonable. Id. “To determine whether
       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016   Page 12 of 15
       an officer’s actions were reasonable under the circumstances, we must balance:

       ‘(1) the degree of concern, suspicion, or knowledge that a violation has

       occurred; (2) the degree of intrusion that the method of the search and seizure

       imposes on the citizen’s ordinary activities; and (3) the extent of law

       enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind.

       2005)).


[18]   On appeal, Wallace’s argument focuses on the Fourth Amendment, and he

       does not make a separate argument pursuant to Article 1, Section 11 of the

       Indiana Constitution, noting, “‘The analysis under the Indiana Constitution is

       much the same as that under the Fourth Amendment.’” Appellant’s Br. at 10,

       n.6 (quoting J.D. v. State, 902 N.E.2d 293, 296 (Ind. Ct. App. 2009), trans.

       denied). While we agree that the analysis is similar, we find that a separate

       analysis is warranted, as our Supreme Court has observed, “The Indiana

       Constitution may protect searches that the federal Constitution does not.” State

       v. Washington, 898 N.E.2d 1200, 1206 (Ind. 2008). Having failed to pose a

       separate argument, we find that Wallace has waived his claim that the handgun

       should have been suppressed under the Indiana Constitution. Jackson v. State,

       996 N.E.2d 387, 383 n.3 (Ind. Ct. App. 2013) (failure to make independent

       analysis under Article 1, Section 11 constitutes waiver on appeal, citing Ind.

       Appellate Rule 46(A)(8)), trans. denied. Waiver notwithstanding, we find the

       pat-down did not violate Wallace’s rights under Article 1, Section 11.


[19]   Here, Officer Flynn observed the Toyota, which had expired plates, abruptly

       change lanes at the intersection at which both Officer Flynn and the Toyota

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016   Page 13 of 15
were stopped, then make a left turn, and immediately thereafter, make

successive turns, noting that the Toyota was driving at a “pretty fast rate of

speed.” Tr. at 12. Officer Flynn testified that, in his experience, this type of

driving may indicate an attempt to avoid law enforcement. When Officer

Flynn thereafter caught up with the Toyota, he activated his emergency lights

and siren to conduct a traffic stop; the Toyota made another turn onto Caroline

Street, passed several houses, and came to a stop and parked on the left side of

the street, turning off its lights. Wallace debated with Officer Flynn about why

he was stopped. Wallace told Officer Flynn that he did not have a license, he

did not have identification because it was in his wallet, which he did not have

with him, and the car was not his, but belonged to his girlfriend. Although

Wallace did not threaten Officer Flynn, Wallace’s tone was argumentative,

aggressive, and confrontational. Officer Flynn acknowledged that Wallace did

not appear to be actively reaching for something, but said that Wallace was

nervous and fidgeting. Officer Flynn felt that Wallace’s demeanor was “not

normal” for a traffic stop and seemed “very suspicious.” Id. at 15, 20. We find

that these facts establish a reasonable basis for Officer Flynn’s concern, the

degree of intrusion of the “quick pat down” search was not significant, and the

officer’s questions and conduct were appropriate to address law enforcement

needs during the traffic stop. Id. at 15. Under the totality of the circumstances,

Officer Flynn’s pat-down of Wallace did not contravene Article 1, Section 11 of

the Indiana Constitution. Accordingly, the trial court did not err in admitting

the handgun into evidence.



Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016   Page 14 of 15
[20]   Affirmed.


[21]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-819 | May 20, 2016   Page 15 of 15
