                                                                         May 13 2015, 10:17 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Elizabeth A. Houdek                                        Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           Monika Prekopa Talbot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

D.F.,                                                     May 13, 2015

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A02-1408-JV-575
        v.                                                Appeal from the Marion Superior
                                                          Court; The Honorable Marilyn A.
                                                          Moores, Judge; The Honorable
State of Indiana,                                         Geoffrey Gaither, Magistrate;
Appellee-Petitioner.                                      49D09-1405-JD-1115




May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1408-JV-575 | May 13, 2015                     Page 1 of 7
[1]   D.F. appeals his adjudication as a delinquent. He asserts the court erred by

      admitting the handgun found inside his sweatshirt because the search of his

      sweatshirt violated the Fourth Amendment to the United States Constitution

      and Article 1, Section 11 of the Indiana Constitution.


[2]   We affirm.


                                    Facts and Procedural History
[3]   Around 8:00 p.m. on May 6, 2014, a citizen approached a police officer and

      reported “a black male with a black hoodie that had a large black gun with a

      long magazine in the park on the bleachers.” (App. at 12.) The officer reported

      the information and it was released over dispatch. Officer Adam Mingerink

      responded to the dispatch.


[4]   As Officer Mingerink approached in his vehicle, he saw D.F. on the bleachers

      taking off a black hoodie. D.F. sat down on the bleachers next to the hoodie.

      As Officer Mingerink walked toward the bleachers, D.F. began “[s]cooting

      away from the sweatshirt.” (Tr. at 7.) Officer Mingerink opened the hoodie

      and found a gun.


[5]   The State filed a delinquency petition alleging D.F. committed an act that

      would, if committed by an adult, be Class A misdemeanor dangerous

      possession of a firearm1 and Class A misdemeanor carrying a handgun without




      1
          Ind. Code § 35-47-10-5.


      Court of Appeals of Indiana | Opinion 49A02-1408-JV-575 | May 13, 2015   Page 2 of 7
      a license.2 D.F. objected to the admission of the handgun and Officer

      Mengerink’s testimony about it. The court overruled the objections and

      adjudicated D.F. a delinquent.3


                                       Discussion and Decision
[6]   We review rulings regarding the admission of evidence for an abuse of

      discretion, which occurs “when a decision is clearly against the logic and effect

      of the facts and circumstances before the court.” Johnson v. State, 992 N.E.2d

      955, 957 (Ind. Ct. App. 2013), trans. denied. We do not reweigh the evidence or

      assess the credibility of witnesses. Id. Instead, we “consider conflicting

      evidence in a light most favorable to the trial court’s ruling.” Id.


[7]   Where admissibility of evidence is challenged based on the constitutionality of

      the search that uncovered the evidence, we also consider any uncontested

      evidence favorable to the appellant. Id. “Although a trial court’s determination

      of historical facts is entitled to deferential review, we employ a de novo standard

      when reviewing the trial court’s ultimate determination of reasonable suspicion

      and probable cause.” Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009)

      (italics in original), trans. denied.

                 In other words, when a trial court has admitted evidence alleged to
                 have been discovered as the result of an illegal search or seizure, we




      2
          Ind. Code § 35-47-2-1.
      3
        D.F. filed a motion to correct error asserting the two true findings subjected him to double jeopardy, and
      the court vacated one of them.

      Court of Appeals of Indiana | Opinion 49A02-1408-JV-575 | May 13, 2015                              Page 3 of 7
              generally will assume the trial court accepted the evidence presented
              by the State and will not reweigh that evidence, but we owe no
              deference as to whether that evidence established the constitutionality
              of a search or seizure.
      Johnson, 992 N.E.2d at 957.


      1.      Fourth Amendment


[8]   The Fourth Amendment prohibits unreasonable government searches and

      seizures, and its protection extends to brief investigatory stops that fall short of

      traditional arrest. C.H. v. State, 15 N.E.3d 1086, 1092 (Ind. Ct. App. 2014),

      trans. denied. An officer may briefly detain someone to investigate, without a

      warrant or probable cause, if specific and articulable facts and the rational

      inferences therefrom give the officer “reasonable suspicion that criminal activity

      ‘may be afoot.’” Moultry v. State, 808 N.E.2d 168, 171 (Ind. Ct. App. 2004). To

      determine whether there was reasonable suspicion, we must determine whether

      the totality of the circumstances show “the detaining officer had a

      particularized and objective basis for suspecting legal wrongdoing.” Johnson,

      992 N.E.2d at 958. During such an investigatory stop, a police officer may

      conduct a

              reasonable search for weapons for the protection of the police officer,
              where he has reason to believe that he is dealing with an armed and
              dangerous individual, regardless of whether he has probable cause to
              arrest the individual for a crime. 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.
      Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883 (1968).


      Court of Appeals of Indiana | Opinion 49A02-1408-JV-575 | May 13, 2015            Page 4 of 7
[9]    Officer Mingerink responded to a report of a black male in a black sweatshirt

       who was on the bleachers in a park and had a gun that “looked like an Uzi like

       you saw in the movies. It had the magazine that stuck low out of the gun.”

       (Tr. at 6.) He arrived at the park within thirty seconds of receiving the dispatch.

       He saw D.F. near the bleachers taking off a black sweatshirt. After removing

       the sweatshirt, D.F. sat down on the bleachers next to the sweatshirt. There

       were a number of other people in the park at the time, but Officer Mingerink

       did not see anyone else who was wearing a black sweatshirt. Several other

       juveniles were on the bleachers, which were next to a court where a basketball

       game was being played.


[10]   In light of Officer Mengerink’s swift arrival on the scene where D.F. was at the

       reported location in the reported attire, we cannot say the officer lacked

       reasonable suspicion to investigate whether D.F. had a gun. Officer Mengerink

       therefore did not violate D.F.’s Fourth Amendment rights when he unfolded

       D.F.’s sweatshirt and found a gun. See, e.g., W.H. v. State, 928 N.E.2d 288, 295

       (Ind. Ct. App. 2010) (totality of circumstances supported stop of juvenile

       believed to be carrying a handgun in a crowded public location), trans. denied.


       2.      Article 1, Section 11


[11]   While Article 1, Section 11 of the Indiana Constitution contains the same

       language as the Fourth Amendment, our constitutional analysis is different. Id.

       at 298. 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.”


       Court of Appeals of Indiana | Opinion 49A02-1408-JV-575 | May 13, 2015       Page 5 of 7
       C.H. v. State, 15 N.E.3d 1086, 1093 (Ind. Ct. App. 2014) (quoting Duran v. State,

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

       demonstrate the police intrusion was reasonable. C.H., 15 N.E.3d at 1093. To

       determine whether 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 the method

       of the search and seizure imposes on the citizen’s ordinary activities, and 3) the

       extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind.

       2005). When considering the degree of intrusion, “we consider the nature of

       the privacy interest upon which the search intrudes and the character of the

       intrusion itself.” C.H., 15 N.E.3d at 1093 (quoting Chest v. State, 922 N.E.2d

       621, 624 (Ind. Ct. App. 2009)).


[12]   The degree of suspicion was high as a citizen had reported the handgun in a

       face-to-face conversation with a police officer just moments before Officer

       Mengerink arrived at the scene and found D.F., who matched the citizen’s

       description. Second, the intrusion into D.F.’s privacy was minimal, as Officer

       Mengerink needed only to unfold the sweatshirt. Finally, the extent of law

       enforcement needs was high because police had reason to believe a teenager

       had a handgun in a public park where others were present. Officer Mengerink’s

       actions were reasonable under the circumstances and did not violate D.F.’s

       right under Article 1, Section 11 of the Indiana Constitution. See, e.g., W.H.,

       928 N.E.2d at 297 (search did not violate state constitutional rights when police




       Court of Appeals of Indiana | Opinion 49A02-1408-JV-575 | May 13, 2015    Page 6 of 7
       were concerned juvenile had handgun, when stop was brief and unintrusive,

       and when law enforcement needed to maintain safety of crowd).


                                                  Conclusion
[13]   Finding no error in the admission of the handgun under either the Fourth

       Amendment or Article 1, Section 11, we affirm D.F.’s adjudication as a

       delinquent.


[14]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1408-JV-575 | May 13, 2015   Page 7 of 7
