Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     Nov 03 2014, 10:03 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

KAREN M. HEARD                                    GREGORY F. ZOELLER
Vanderburgh County Public Defender                Attorney General of Indiana
Evansville, Indiana
                                                  ELLEN H. MEILAENDER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

FABIAN LAVELL BENNETT,                            )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )       No. 82A01-1403-CR-150
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


     INTERLOCUTORY APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                     The Honorable David D. Kiely, Judge
                    The Honorable Kelli E. Fink, Magistrate
                        Cause No. 82C01-1308-FC-891



                                       November 3, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                     CASE SUMMARY

       On the night of August 13, 2013, Evansville Police Officer William Shirley was

following a car in which the Defendant-Appellant Fabian Bennett was a passenger. Before

Officer Shirley could initiate a traffic stop, the car pulled into the parking lot of a business

that had closed for the night. Bennett exited the vehicle and began walking toward the back

of the building. Officer Shirley followed the car into the parking lot, exited his vehicle and

asked Bennett to stop and talk to him. Bennett ignored Officer Shirley’s requests and fled

behind the building. Officer Shirley found Bennett crouched next to an air conditioning unit,

arrested him, and subsequently found a firearm nearby, which Bennett admitted was his.

While Bennett was being booked at the police station, officers found a small amount of

marijuana in Bennett’s pocket.

       Plaintiff-Appellee the State of Indiana (the “State”) charged Bennett with Class C

felony convicted felon carrying a handgun without a license, Class A misdemeanor

possession of marijuana, and with being a habitual offender. Bennett filed a motion to

suppress all evidence discovered and statements made subsequent to his arrest. Bennett

argues that Officer Shirley did not have reasonable suspicion to effectuate a stop, and thus

the arrest was a violation of Bennett’s Fourth Amendment rights and that the evidence found

incident to that arrest is inadmissible as ‘fruit of the poisonous tree.’ Finding that Officer

Shirley did have reasonable suspicion to justify the stop, we affirm the trial court’s denial of

Bennett’s motion to suppress evidence, albeit on different grounds.



                                               2
                           FACTS AND PROCEDURAL HISTORY

        On August 13, 2013, Evansville Police Officer William Shirley was patrolling the

1000 block of Covert Avenue. (Tr. 5) In the two weeks prior, there had been six to eight

calls to police reporting shots fired in the area. (Tr. 6) Two other officers, Thiry and

DeYoung, were parked on the same block, watching the house at 1067 Covert Avenue for

suspicious activity. (Tr. 8) The officers had previously conducted a ‘knock and talk’1 at the

house after receiving a report of several individuals on the porch carrying guns. (Tr. 22)

        Officers Thiry and DeYoung witnessed Bennett entering the house.                         (Tr. 23)

Sometime later, a female left the house in a car in which Bennett was a passenger. (Tr. 8, 17)

Officer Shirley began following the car, at which point he noticed that the license plate light

was out. (Tr. 8, 18) Officer Shirley planned to initiate a traffic stop for this reason and

called Officers Thiry and DeYoung for backup. (Tr. 8-9) Before Officer Shirley could

initiate the stop, the car pulled into a Burger King drive-through. (Tr. 9) Officer Shirley

parked on a nearby street and waited for the car to leave. (Tr. 9) Upon receiving the food,

the car pulled directly to an adjacent parking lot of a Rent One-Auto Zone, a business which

was closed at the time. (Tr. 9-10) As Officer Shirley was driving toward the Auto Zone

parking lot, Bennett exited the car and began to walk in the opposite direction from Officer

Shirley. (Tr. 10, 19) After Officer Shirley parked and exited his vehicle, he asked Bennett to

come back and speak with him. (Tr. 11) Bennett mumbled that he was “going to check on


        1
         An investigative technique where one or more police officers approaches a private residence, knocks
on the door, asks occupants about a criminal complaint(s), and requests consent from the owner to search the
residence. Hayes v. State, 794 N.E.2d 492, 496 (Ind. Ct. App. 2003)
                                                     3
the guys back there” while continuing to walk away from Officer Shirley. Tr. p. 11

       Upon reaching the corner of the building, Bennett darted behind the building, at which

point Officer Shirley ran after him. (Tr. 12) Officer Shirley found Bennett crouched next to

an air conditioning unit behind the building and took him into custody. (Tr. 13) Soon after,

Officer Thiry found a firearm near the air conditioning unit. (Tr. 13) After reading Bennett

his Miranda2 rights, Bennett admitted to Officer Shirley that he knew he could not have a gun

and that he would be going away for a while. (Tr. 15) While Bennett was being processed at

the police station, Officer Shirley found a clear plastic baggie containing marijuana in

Bennett’s pocket. (App. 42)

       The State charged Bennett with Class C felony convicted felon carrying a handgun

without a license, Class A misdemeanor possession of marijuana, and with being a habitual

offender. (App. 9, 11) Bennett filed a motion to suppress all evidence discovered and all

statements made subsequent to his arrest. (App. 12-14) Following a hearing, the trial court

denied the motion, finding that no seizure occurred until Bennett was found behind the

building and, by that time, Officer Shirley had reasonable suspicion to investigate Bennett for

criminal trespass. (App. 40-41) Bennett brings this interlocutory appeal challenging the trial

court’s denial of his motion to suppress as to the handgun and marijuana.3 (Appellant’s Br.

3)

                                 DISCUSSION AND DECISION




       2
           Miranda v. Arizona, 384 U.S. 436 (1966).
                                                      4
        Our standard of review for the denial of a motion to suppress evidence is similar to

other sufficiency issues. Davis v. State, 858 N.E.2d 168, 171 (Ind. Ct. App. 2006) (citing

Gonser v. State, 843 N.E.2d 947, 949 (Ind. Ct. App. 2006). We will not reweigh the

evidence, and will consider conflicting evidence in the light most favorable to the trial

court’s ruling. Davis, 858 N.E.2d at 171. “On appellate review, we will affirm the trial

court’s ruling on a motion to suppress if it is sustainable on any legal theory supported by the

record, even if the trial court did not use that theory.” Id.

                                               A. The Firearm

        Bennett argues that Officer Shirley lacked the articulable reasonable suspicion

necessary to effectuate a valid stop under the Fourth Amendment to the United States

Constitution. Therefore, he argues, the gun seized subsequent to the arrest should be

suppressed. However, the legitimacy of the stop is irrelevant to this inquiry because Bennett

abandoned the gun prior to the arrest.

        Abandoned property is not subject to Fourth Amendment protection and is subject to

lawful seizure without a warrant. Wilson v. State, 825 N.E.2d 49, 51 (Ind. Ct. App. 2005);

Gooch v. State, 834 N.E.2d 1052, 1053-54 (Ind. Ct. App. 2005). For Fourth Amendment

purposes, an individual is not “seized” by police until he is stopped through physical force or

submits to the assertion of authority by police. California v. Hodari D., 499 U.S. 621 (1991);

Wilson, 825 N.E.2d at 51. This court and the United States Supreme Court have concluded


        3
          In this appeal, Bennett does not argue that his statements made to officers subsequent to his arrest
should have been suppressed. Nevertheless, those statements would be admissible for the same reasons
outlined in Section II of this memorandum decision.
                                                      5
that evidence which a suspect drops prior to being “seized” by police is abandoned, whether

or not the subsequent seizure is lawful. Wilson, 825 N.E.2d at 52; Gooch, 834 N.E.2d at

1054; Hodari D., 499 U.S. 621.

       The facts in Wilson are as follows:

       [T]wo police officers were patrolling an Indianapolis neighborhood. One of
       the officers saw Wilson, who was on a bicycle, leaning inside a red vehicle.
       The vehicle was located in a high drug trafficking area. Suspecting that
       Wilson was attempting to sell drugs, the officers circled around to speak with
       Wilson. As the officers approached the intersection from behind, the driver of
       the vehicle drove away. After seeing the officers approaching, Wilson also left
       the intersection. The officers exited their vehicle and ordered Wilson to stop.
       Wilson continued to ride away and dropped a black bag under a parked car.
       The officers again ordered Wilson to stop, and when he refused, the officers
       removed him from the bicycle and placed him in handcuffs. One of the
       officers recovered the bag, which contained cocaine. After being charged with
       possession of cocaine, Wilson moved to suppress the evidence, which the trial
       court subsequently denied. Wilson was then found guilty of the charged
       offense.

Gooch, 834 N.E.2d at 1054 (citing Wilson, 825 N.E.2d at 50). In affirming the conviction,

we observed that “[w]hen Wilson threw the black cloth bag to the ground, the items were

subject to lawful seizure by the police. Wilson had not been “seized” at the time he dropped

the black cloth bag; therefore, the bag containing cocaine was not the product of a seizure

and was properly admitted into evidence over Wilson’s Fourth Amendment objection.”

Wilson, 825 N.E.2d at 52. We reached the same conclusion in Gooch, 834 N.E.2d at 1054-55

(Gooch, after being commanded to stop by police, tossed a bag of cocaine under a parked

vehicle, and was immediately arrested thereafter. “Gooch had not been ‘seized’ at the time

he tossed the bag of cocaine, so the drugs were not the product of an illegal seizure.”); See


                                             6
also Hodari, 499 U.S. 621 (Hodari dropped crack cocaine as he fled a police officer.

Although the officer did not have reasonable suspicion to justify stopping Hodari, the court

found that the seizure did not occur until Hodari was tackled by the officer, and so the

abandoned crack cocaine was admissible.).

       In the instant case, Bennett abandoned his firearm prior to being seized by Officer

Shirley. Bennett was not seized until Officer Shirley found him near the air conditioning unit

and placed him in handcuffs. Bennett then admitted that he “tried to ditch the gun.” Tr. p.

15. Because the gun was found by Officer Thiry after it had been abandoned, it was subject

to lawful seizure without a warrant and not discovered incident to the arrest. Wilson, 825

N.E.2d at 51; Gooch, 834 N.E.2d at 1053-54. Hence, the firearm was properly admitted into

evidence, and the trial court properly denied Bennett’s motion to suppress it.

                                       B. The Marijuana

       Bennett also argues that the marijuana found during process was found as a result of

an unlawful arrest and should be suppressed. Specifically, Bennett contends that Officer

Shirley had no reasonable suspicion that Bennett was engaged in criminal activity when he

asked Bennett to stop and talk to him, and therefore, Bennett had the right to ignore that

request and walk away.

       The Fourth Amendment to the United States Constitution provides that the right of the

people to be secure in their persons against unreasonable search and seizure shall not be

violated. U.S. Const. amend. IV. At a minimum, the government’s seizure of a citizen must

rest on specific, articulable facts that lead an officer to reasonably suspect that criminal

                                              7
activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968).

       In Gaddie v. State, the Indiana Supreme Court held that a law enforcement officer’s

order to stop must be based on reasonable suspicion or probable cause of criminal activity.

10 N.E.3d 1249, 1256 (Ind. 2014). The Court found that Gaddie had the right to walk away

from an officer and ignore the officer’s request that he stop because the officer had no

reasonable suspicion that he was engaged in criminal activity. Id. In Murdock v. State, the

Indiana Supreme Court clarified the bounds of its decision in Gaddie, finding that an officer

had reasonable suspicion to stop Murdock due to his attempted flight:

       In this case, the defendant ran when the officer appeared, engaged in furtive
       and evasive activity in a high-crime area, was uncooperative, and matched the
       description of the suspect. [Illinois v. Wardlow, 528 U.S. 119, 124-125, 120 S.
       Ct. 673, 676, 145 L. Ed. 2d 570, 576-77 (2000)] (concluding that a suspect’s
       unprovoked flight upon noticing the police in an area known to have a high
       incidence of drug trafficking supported a finding of reasonable suspicion).

10 N.E.3d 1265, 1268 (Ind. 2014). The Court in Murdock went on to distinguish the facts

from Gaddie:

       In contrast, the police officer in Gaddie responded to a disturbance report.
       When the officer arrived, a number of people were standing in the front area of
       a private residence, but the defendant was walking away from the scene,
       towards the backyard, and continued walking away after the officer’s order to
       stop. The officer in Gaddie testified that he had not seen the defendant or
       anyone else commit a crime prior to ordering the defendant to stop. While a
       refusal to cooperate, without more, does not furnish the minimal level of
       objective justification needed for a detention or seizure, “nervous, evasive
       behavior is a pertinent factor in determining reasonable suspicion.”
       Gaddie, 10 N.E.3d at 1256 (quoting Illinois v. Wardlow, 528 U.S. 119, 124,
       120 S. Ct. 673, 676, 145 L. Ed. 2d 570, 576 (2000)); see State v. Atkins, 834
       N.E.2d 1028, 1033-34 (Ind. Ct. App. 2005) (holding that the investigatory stop
       lacked reasonable suspicion that criminal activity was afoot but adding that
       “[t]his case might have been different if [the defendant] had fled, engaged in
       furtive activity, and was uncooperative, or if [the officer] had a description of
                                             8
       the suspect that was corroborated upon seeing [the defendant].”).

10 N.E.3d at 1267 (emphasis added); see also Wilson v. State, 670 N.E.2d 27, 31 (Ind. Ct.

App. 1996) (“It appears then, that whether a defendant flees from police may determine

whether there was reasonable suspicion for a stop.”)

       In State v. Belcher, this court was confronted with a factual scenario similar to the

instant case. 725 N.E.2d 92 (Ind. Ct. App. 2000). In Belcher, officers were patrolling a

high-crime area at night when they observed Belcher walking down the street. Id. at 93.

Belcher changed direction upon seeing the officers’ car, at which point the officers pulled up

to Belcher and asked him to come over to the car. Id. Belcher responded that he “didn’t do

anything” and then took off running when the officers began exiting their car. Id. Before

being apprehended by the officers, Belcher threw a handgun and magazine from his pockets

while fleeing. Id. Although we found that the firearm was abandoned, and so not subject to

Fourth Amendment protections, we also addressed whether the officers had reasonable

suspicion of criminal activity necessary to initiate the investigatory Terry stop. Id. at 95.

We concluded that none of the circumstances of the stop, when considered alone, would have

given rise to reasonable suspicion, however, “[w]hen viewed in totality, [] Belcher’s flight,

combined with the other facts, presented the police officers with a reasonable suspicion of

criminal activity.” Id. The facts supporting this determination were the high-crime area, late

hour of the night, Belcher was wearing a nylon jacket with his hands in his pockets despite

the heat and humidity, Belcher turned in the opposite direction upon seeing police, and

Belcher’s attempted flight. Id.

                                              9
       As in Belcher, the totality of circumstances of the instant case were sufficient to create

reasonable suspicion. Although Bennett is correct in his assertion that he had the right to

walk away, the evidence shows that Bennett was walking only until he reached the corner of

the Rent One building, at which point he “took off” and “darted” behind the building which

“caused [Officer Shirley] to run to try to catch up.” Tr. pp. 12-13. As in Murdock and

Belcher, Bennett engaged in furtive and evasive activity (fleeing and hiding), was

uncooperative (ignored Officer Shirley’s request to stop), and had come from a house where

there was believed to be a significant amount of criminal activity. Specifically, the house

Bennett had left was the subject of six to eight “shots fired” reports in the prior two weeks

and there were bullet holes in the side of the house. Additionally, Bennett was walking in a

parking lot which was marked with “no trespass” signs at a time when the business was

closed. Bennett’s refusal to cooperate, in addition to the other indicia of criminal activity

were sufficient to create reasonable suspicion necessary to justify a stop. Accordingly, the

marijuana found on Bennett as a result of the stop was properly admitted into evidence.

       The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur




                                              10
