                                                                         FILED
                                                                     Apr 10 2019, 6:07 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Daniel Hageman                                              Curtis T. Hill, Jr.
Marion County Public Defender Agency                        Attorney General of Indiana
Indianapolis, Indiana                                       J.T. Whitehead
                                                            Tyler G. Banks
                                                            Deputy Attorneys General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Tre Ron Smith,                                              April 10, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-1633
        v.                                                  Appeal from the Marion Superior
                                                            Court
State of Indiana,                                           The Honorable Steven J. Rubick,
Appellee-Plaintiff.                                         Magistrate
                                                            Trial Court Cause No.
                                                            49G07-1711-CM-45409



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019                           Page 1 of 19
                                               Case Summary
[1]   Tre Ron Smith (“Smith”) appeals his conviction of possession of a handgun, as

      a Class A misdemeanor,1 following a bench trial. We address the following

      dispositive, restated issue: whether the trial court erroneously admitted

      evidence obtained following an investigatory stop.


[2]   We affirm.



                               Facts and Procedural History                                    2




[3]   On November 26, 2017, at approximately 1:15 a.m., Indianapolis Metropolitan

      Police Department Officer Kevin Moore (“Officer Moore”) received a “shots-

      fired” radio run from dispatch indicating that gunshots were fired from a

      vehicle “in the area” of Market Street in downtown Indianapolis. Tr. at 6, 14.3

      Dispatch had received a report4 from an anonymous caller that gunshots were

      fired from a silver or gray Trailblazer in that area. Id. The caller further noted

      that the vehicle had damage “all over” it. Id. at 11. When Officer Moore




      1
          Ind. Code § 35-47-2-1(e).
      2
        We held oral argument in this case on February 7, 2019, at Seymour High School. We thank the school
      for its hospitality and counsel for their advocacy.
      3
        Officer Moore testified that he detained Smith at the corner of Market and Delaware Streets, Tr. at 6,
      because he had probable cause to believe there was a gun in the vehicle “based on the gray vehicle and the
      run that came out stating that there was [sic] shots fired in the area…,” id. at 14.
      4
          At trial, the State did not present a recording or transcript of the 9-1-1 call from the anonymous source.


      Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019                                    Page 2 of 19
      arrived at the corner of Delaware and Market Streets soon thereafter,5 he

      observed a vehicle matching the description he had received from dispatch.

      Officer Moore and other officers on the scene stopped the vehicle. Smith was

      in the driver’s seat of the vehicle and there were two passengers.


[4]   Based on the information from the “shots-fired” report, Officer Moore believed

      there was a firearm in Smith’s vehicle. Id. at 12. Therefore, Officer Moore and

      other officers on the scene approached the vehicle with their guns drawn,

      instructed Smith and the passengers to exit the vehicle, and placed them in

      handcuffs while they searched the vehicle. Officer Moore saw a handgun on

      the driver’s side floor of the vehicle in plain view. After they completed the

      search of the vehicle, the police read Smith a Miranda6 warning and asked him if

      the gun belonged to him. Smith admitted that the gun was his; however, he did

      not have a license for it. The police arrested Smith.


[5]   That same day the State charged Smith with carrying a handgun without a

      license, as a Class A misdemeanor. At his June 14, 2018, bench trial, Smith

      made an oral motion to suppress the handgun found in his vehicle on the

      grounds that the search violated his rights under the Fourth Amendment to the

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

      Constitution. The trial court denied that motion and overruled Smith’s




      5
        Officer Moore testified that the “shots-fired run” came out at 1:15 a.m. and there were “quite a few
      vehicles” and people “on the street” at 1:15 a.m. Tr. at 16-17.
      6
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019                                Page 3 of 19
      subsequent objection to Officer Moore’s testimony about the search. The trial

      court found Smith guilty as charged and sentenced him to 361 days of

      probation. This appeal ensued.



                                  Discussion and Decision
                                         Standard of Review
[6]   Smith objected to the admission of the evidence in an oral motion to suppress at

      the beginning of his bench trial and renewed his objection when the State

      offered Officer Moore’s testimony and the handgun evidence. Because Smith

      appeals following his conviction and is not appealing the trial court’s order

      denying his motion to suppress, the question before us is properly framed as

      whether the trial court erred in admitting the evidence. Clark v. State, 994

      N.E.2d 252, 259 (Ind. 2013).


              In ruling on admissibility following the denial of a motion to
              suppress, the trial court considers the foundational evidence
              presented at trial. [Guilmette v. State, 14 N.E.3d 38,] 40 n.1 (Ind.
              2014)]. It also considers the evidence from the suppression
              hearing that is favorable to the defendant only to the extent it is
              uncontradicted at trial. Id. Because the trial court is best able to
              weigh the evidence and assess witness credibility, we review its
              rulings on admissibility for abuse of discretion and 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.”
              Clark, 994 N.E.2d at 260. But the ultimate determination of the
              constitutionality of a search or seizure is a question of law that
              we consider de novo. McIlquham v. State, 10 N.E.3d 506, 511
              (Ind. 2014).


      Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019         Page 4 of 19
      Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).


[7]   Smith raises claims under both the federal and state constitutions. Although the

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

      of the Indiana Constitution contain textually similar language, each must be

      separately analyzed. Marshall v. State, No. 18S-CR-00464, slip op. at 5-6 (Ind.

      Feb. 27, 2019).


                                         Fourth Amendment
[8]   Smith maintains that the police violated his Fourth Amendment rights when

      they stopped his vehicle and, therefore, evidence found in the subsequent search

      of his vehicle should have been excluded at trial.7 The Fourth Amendment

      prohibits warrantless searches and seizures unless the State can prove that an

      exception to the warrant requirement existed at the time of the search. See, e.g.,

      Marshall, slip op. at 6. However, 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 a reasonable suspicion that criminal

      activity ‘may be afoot.’” Edmond v. State, 951 N.E.2d 585, 588 (Ind. Ct. App.

      2011) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). “We often call these

      encounters Terry [s]tops,” Marshall, slip op. at 6, and such a stop must be both




      7
        Evidence obtained by an unconstitutional search and seizure is inadmissible. Mapp v. Ohio, 367 U.S. 643
      (1961). Smith only challenges the constitutionality of the initial stop, not the subsequent search.

      Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019                             Page 5 of 19
      justified at its inception and reasonably related in scope to the circumstances

      which justified it at its inception, Terry, 392 U.S. at 18-19.


                                             Justified at Inception

[9]   An anonymous tip alone is seldom sufficient to provide the reasonable

      suspicion required to initiate an investigatory Terry stop absent evidence of the

      reliability of the tip, such as an accurate prediction of future behavior of the

      suspect. Alabama v. White, 496 U.S. 325, 329, 332 (1990). However, the United

      States Supreme Court has held that, even where an anonymous tip contained

      no prediction of future behavior, there was nevertheless sufficient indicia of

      reliability to support a Terry stop where an anonymous caller to an emergency

      police number gave eyewitness knowledge of alleged dangerous activity and

      accurate information identifying the suspect. Navarette v. California, 572 U.S.

      393, 399-400 (2014). In Navarette, the Supreme Court clarified that an

      anonymous tip that substantially describes publicly knowable information

      about a suspect but does so through a 9-1-1 emergency system—which often

      “allow[s] for identifying and tracing callers”—and alleges that the suspect is

      “contemporaneous[ly]” engaged in “a specific and dangerous” activity,

      provides a sufficient basis for a Terry stop. See also U.S. v. Jeanes, No. 3:16-CR-

      070 JD, 2016 WL 11281168, *6 (N.D. Ind. Nov. 29, 2016) (citing U.S. v. Drake,

      456 F.3d 771, 775 (7th Cir. 2006)) (holding that there was reasonable suspicion

      to conduct a Terry stop where an anonymous caller reported witnessing an

      immediate threat to public safety—i.e., a person waving a gun around on the

      downtown streets—and the caller provided sufficient details to allow the police

      Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019         Page 6 of 19
       to identify the suspect); Grayson v. State, 52 N.E.3d 24, 29-30 (Ind. Ct. App.

       2016) (noting an immediate response by police was warranted where the

       anonymous tipster “reported witnessing criminal conduct risking serious bodily

       injury to those in the immediate vicinity”), trans. denied.8


[10]   In Navarette, the Court noted that the facts in that case were in contrast to

       situations in which an anonymous caller accurately describes a person and

       merely alleges criminal activity, without more. 572 U.S. at 399. For example,

       in Florida v. J.L., 529 U.S. 266 (2000), an anonymous caller described a person

       standing at a bus stop and simply alleged that the person was carrying a gun

       without any explanation of how he or she knew the suspect had a gun or any

       expression of special familiarity with the suspect’s affairs. In that situation, the

       police had no basis for believing “that the tipster ha[d] knowledge of concealed

       criminal activity.” Id. at 272; see also Beal v. Beller, 847 F.3d 897, 904 (7th Cir.

       2017) (holding that an anonymous tip that accurately described a location and

       person still lacked sufficient indicia of reliability where the caller merely

       asserted the suspect was selling drugs without alleging witnessing a drug sale or

       other further “details that corroborated the criminal aspect of the anonymous

       tip”). Sellmer v. State, 842 N.E.2d 358 (Ind. 2006), upon which the dissent

       relies, similarly involved a tip with accurate identifying information but only a




       8
         In Berry v. State, 766 N.E.2d 805, 810 (Ind. Ct. App. 2002), trans. denied, we determined that there were
       insufficient indicia of reliability of an anonymous tip where the tipster reported witnessing a person waving a
       gun around in public but did not provide any predictions of the defendant’s future behavior. However, we
       note that that case was decided before Navarette.

       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019                                 Page 7 of 19
       bare allegation of criminal activity and no “information that would allow the

       police to corroborate the caller’s claim that criminal activity was afoot.” 842

       N.E.2d at 362.


[11]   The instant case is more like Navarette than J.L. or Sellmer. While the

       anonymous caller gave no predictions of Smith’s future behavior to indicate the

       reliability of the tip, he or she did provide the following other indicia of

       reliability: the call was placed to an emergency number; the caller gave a

       specific description of the vehicle’s color and model (a gray Trailblazer); the

       caller gave even more specific information that the vehicle had damage “all

       over” it, Tr. at 11, thus distinguishing it from other gray Trailblazers that might

       have been in the specified location; the caller gave a statement that “gunshots

       were coming from that vehicle,” Tr. at 9, thus indicating the caller actually

       witnessed the criminal activity; and the caller gave a specific location (the area

       of Market Street in downtown Indianapolis) where the vehicle was actually

       found (at the corner of Market and Delaware Streets downtown) soon after the

       tip was received (1:15 a.m.). The anonymous tip had sufficient indicia of

       reliability to provide reasonable suspicion of criminal activity justifying the

       Terry stop of Smith’s vehicle at its inception.


                                         Reasonably Related in Scope

[12]   Furthermore, the stop of Smith’s vehicle was reasonably related in scope to the

       circumstances which justified the stop at its inception. Terry, 392 U.S. at 18-19.

       Smith contends that the stop went beyond the permissible scope of the Terry

       stop to become an arrest when the police approached him with weapons drawn,
       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019             Page 8 of 19
       ordered him out of the vehicle, and handcuffed him during the search of the

       vehicle.


[13]   An investigatory Terry stop may be converted to an arrest depending on the

       totality of the circumstances. Wilson v. State, 96 N.E.3d 655, 658 (Ind. Ct. App.

       2018) (citing Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010)), trans.

       denied. However, “[a]s part of a valid Terry stop, the investigating officer is

       entitled to take reasonable steps to ensure his own safety, including ordering a

       detainee to exit the vehicle.” Reinhart, 930 N.E.2d at 46. Moreover, although

       handcuffing a suspect during a search for weapons “should be the rare case[,]”

       there are “‘a limited set of circumstances in which handcuffs are appropriate

       without converting a Terry stop into a full arrest.’” U.S. v. Vaccaro, No. 18-1753,

       915 F.3d 431, 2019 WL 473381, *3 (7th Cir. Feb. 7, 2019) (quoting Howell v.

       Smith, 853 F.3d 892, 898 (7th Cir. 2017)). Chief among those reasons is

       “‘officer safety and the possibility of the presence of a weapon.’” Id. Thus, in

       Vaccaro, for example, given the officers’ concern that Vaccaro might have

       armed himself with a weapon when they observed his furtive movements while

       he was inside the vehicle, the court held it was reasonable for the police to draw

       their guns, order him out of the vehicle, and handcuff him in order to conduct a

       pat-down search as part of a Terry stop. Id. at *1, 3; see also Billingsley v. State,

       980 N.E.2d 402, 407-08 (Ind. Ct. App. 2012) (holding an officers’ limited use of

       a firearm to detain a suspect is pursuant to an investigatory stop, rather than an

       arrest, if the totality of the circumstances before the officer at the time




       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019            Page 9 of 19
       demonstrate a “specific and reasonable belief” that the suspect may be armed

       with a weapon), trans. denied.


[14]   Here, as already noted, the police had reasonable suspicion to believe a person

       or persons in the vehicle driven by Smith were shooting guns out of the vehicle

       and were, therefore, armed and dangerous. Consequently, the officers’ actions

       in drawing their guns, ordering Smith and the passengers out of the vehicle, and

       handcuffing them while conducting the search of the vehicle were reasonable

       steps the officers took to ensure their safety. Those steps were reasonably

       related to the justification for the Terry stop—i.e., to investigate alleged

       dangerous, criminal activity involving firearms—and did not convert the Terry

       stop into an arrest. Vaccaro, 2019 WL 473381, at *1, 3.


               Article 1, Section 11 of the Indiana Constitution
[15]   The stop of Smith was also constitutional under Article 1, Section 11 of the

       Indiana Constitution. Under a state constitutional analysis, we make

       reasonable suspicion determinations “by looking at the totality of the

       circumstances of each case to see whether the detaining officer has a

       particularized and objective basis for suspecting legal wrongdoing.” State v.

       Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011) (citations and quotations omitted).


[16]   As under the federal analysis, an anonymous tip is generally insufficient to

       provide the reasonable suspicion required to conduct a Terry investigative stop

       absent evidence of the reliability of the tip. Id. Such evidence may be in the

       form of accurate predictions of future behavior of the suspect, or other

       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019         Page 10 of 19
       “independent indicia of reliability.” Id. at 1148. A tip is “deemed reliable

       when an individual provides specific information to police officers such as a

       vehicle description” and a specific location and time of day. Id. (quoting Bogetti

       v. State, 723 N.E.2d 876, 879 (Ind. Ct. App. 2000)). Thus, in Renzulli our

       Supreme Court held that a tip had sufficient independent indicia of reliability to

       support a Terry stop—even when the tipster did not provide predictions of

       future behavior—where the tipster gave the color and make of the vehicle and

       the location where the vehicle was found soon after the tip was given. Id.

       Moreover, the Court noted that the circumstances in that case—i.e., a suspected

       intoxicated driver—“warranted an immediate response by the police for the

       safety of the general public.” Id.; see also Grayson, 52 N.E.3d at 28 (noting

       legitimate state concerns in protecting the public from gun violence and the

       anonymous tipster’s allegations that the suspect was waving a firearm in public

       “warranted an immediate response by law enforcement officers for the safety of

       the general public”), trans. denied.


[17]   This case is similar to Renzulli. That is, looking at the totality of the

       circumstances, it is clear that the anonymous tip had independent indicia of

       reliability even though the tipster did not predict future behavior. As noted

       above, the anonymous tip gave: a specific description of the vehicle’s color,

       model, and unique, damaged condition; a statement indicating the caller

       witnessed criminal activity; and a specific location where the vehicle was

       actually found soon after the tip was received. Furthermore, the tipster’s

       allegation was that the suspect was engaged in criminal behavior (i.e., firing a

       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019          Page 11 of 19
       gun out of a vehicle) that could place the public in grave danger, thus

       warranting an immediate response by law enforcement to ensure public safety.

       Renzulli, 958 N.E.2d at 1148; Grayson, 52 N.E.3d at 28. The stop of Smith did

       not violate his constitutional rights under Article 1, Section 11 of the Indiana

       Constitution.



                                                 Conclusion
[18]   Under both the federal and state constitutions, the police had reasonable

       suspicion to conduct a Terry stop of Smith, and they did not exceed the

       permissible scope of such a stop. Therefore, the trial court did not err when it

       allowed into evidence the firearm found in the search conducted after the Terry

       stop.


[19]   Affirmed.


       Najam, J., concurs.
       May, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019        Page 12 of 19
                                                    IN THE
            COURT OF APPEALS OF INDIANA

       Tre Ron Smith,                                              Court of Appeals Case No.
                                                                   18A-CR-1633
       Appellant-Defendant,

                v.

       State of Indiana,
       Appellee-Plaintiff.




       May, Judge, dissenting.


[20]   Because I believe the search of Smith’s vehicle violated his rights against illegal

       search and seizure under the Fourth Amendment to the United States

       Constitution,9 I respectfully dissent.


                                           Reasonable Suspicion
[21]   The majority opinion relies primarily on the United States Supreme Court case

       Navarette v. California, 572 U.S. 393 (2014). As the majority notes, Navarette

       “held that, even where an anonymous tip contained no prediction of future

       behavior, there was nevertheless sufficient indicia of reliability to support a




       9
        Smith also argues the search violated his rights under Article 1, Section 11 of the Indiana Constitution.
       However, as I would hold his Fourth Amendment rights were violated, I need not address that argument.
       See Reinhart v. State, 930 N.E.2d 42, 45 n.2 (Ind. Ct. App. 2010) (when case is reversed on Fourth
       Amendment grounds, no state constitutional analysis required).

       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019                              Page 13 of 19
       Terry stop where an anonymous caller to an emergency police number gave

       eyewitness knowledge of alleged dangerous activity and accurate information

       identifying the suspect.” Slip op. at ¶9. However, I believe an examination of

       the facts distinguishes Navarette from the case before us.


[22]   In Navarette, the Court found the following scenario to contain sufficient

       information from which a traffic stop could be justified based on an anonymous

       call:


               The Humboldt County dispatcher relayed a tip from a 911 caller,
               which the Mendocino County team recorded as follows:
               “‘Showing southbound Highway 1 at mile marker 88, Silver Ford
               pickup. Plate of 8-David-94925. Ran the reporting party off the
               roadway and was last seen approximately five [minutes] ago.’”
               The Mendocino County team then broadcast that information to
               CHP [California Highway Patrol] officers at 3:47 p.m.


       Navarette, 572 U.S. at 395 (internal citations omitted).


[23]   Approximately fifteen minutes after the dispatch, a CHP officer observed a

       truck matching that description and initiated a traffic stop. When the officer

       approached the vehicle, he noted an odor of marijuana. A search of the truck

       revealed thirty pounds of marijuana. The defendants were charged with

       transporting marijuana and moved to suppress the evidence from the stop,

       arguing the officer lacked reasonable suspicion of criminal activity as required

       to effectuate a traffic stop. The motion to suppress was denied. Id. at 396.




       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019      Page 14 of 19
[24]   In examining whether the officer had reasonable suspicion, the Navarette Court

       examined the reliability of the anonymous call based on three factors: (1) the

       reliability of the information given; (2) the amount of time which passed from

       the call to the location of the vehicle; and (3) the use of a 911 system. Id. at

       398-401. The Court determined the information given by the anonymous caller

       was reliable because she gave the type of vehicle, the color of the vehicle, and

       the license plate number of the vehicle that ran her off the road, which

       “necessarily implies that the informant knows the other car was driven

       dangerously.” Id. at 399. The contemporaneous nature of the call also

       bolstered the reliability of the anonymous tip, as the Court observed:


               Police confirmed the truck’s location near mile marker 69
               (roughly 19 highway miles south of the location reported in the
               911 call) at 4:00 p.m. (roughly 18 minutes after the 911 call).
               That timeline of events suggests that the caller reported the
               incident soon after she was run off the road. That sort of
               contemporaneous report has long been treated as especially
               reliable.


       Id.


[25]   Finally, the Court recognized the ability to trace and identify anonymous callers

       through the 911 system. Id. at 400-1. The Court reasoned the ability to track

       911 calls provided “safeguards against making false reports with immunity[,]”

       id. at 1689, which was a concern in earlier cases. The Court stated: “As this




       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019         Page 15 of 19
       case illustrates, see n. 110 supra, 911 calls can be recorded, which provides

       victims with an opportunity to identify the false tipster’s voice and subject him

       to prosecution[.]” Id. at 400 (footnote added). After considering the factors

       enumerated, the Navarette Court concluded there existed sufficient reasonable

       suspicion to conduct a Terry stop of Navarette’s vehicle, but acknowledged it

       was a “close case.” Id. at 404 (quoting Alabama v. White, 496 U.S. 325, 332

       (1990)).


[26]   A “close case” also exists here; however, I do not believe the information given

       by the anonymous caller rose to the same level of reliability that the Navarette

       Court found sufficient to establish reasonable suspicion. Officer Moore testified

       he received a dispatch at approximately 1:15 a.m. on November 26, 2017,

       indicating an anonymous caller reported “shots-fired” from a “gray or silver

       TrailBlazer . . . [with] moderate damage on it. . . .in the area” of Market Street

       in downtown Indianapolis. (Tr. Vol. II at 7, 14.) Officer Moore testified the

       dispatch indicated the Trailblazer had damage “all over” it. (Id. at 11.) Unlike

       the information given in Navarette, Officer Moore did not testify the dispatch

       gave him a license plate number and Officer Moore did not indicate when the

       anonymous call came in to dispatch.




       10
         Footnote 1 in the Navarette opinion indicates that although there existed a recording of the 911 call in
       which the tipster identified herself, the recording was not admitted into evidence because neither the tipster or
       the 911 dispatcher testified. Thus, the “prosecution proceeded to treat the tip as anonymous, and the lower
       courts followed suit.” Navarette, 592 U.S. at 396 n.1.

       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019                                 Page 16 of 19
[27]   Further, what seems to distinguish Navarette from earlier cases is the Court’s

       conclusion that anonymous information gleaned from a 911 call was more

       reliable because the caller could be traced and identified if need be. Navarette,

       572 U.S. at 400-1. However, information gleaned from modern 911 systems is

       not always inherently reliable.


[28]   For example, the 7th Circuit Court distinguished Navarette on that basis in

       United States v. Watson, 900 F.3d 892 (2018). The Watson Court considered the

       factors set forth in Navarette when analyzing an anonymous call reporting

       “seeing ‘boys’ ‘playing with guns’ by a ‘gray and greenish Charger’” in a

       parking lot near the caller. Id. at 893. The 7th Circuit determined the

       anonymous tip was not sufficient to provide reasonable suspicion based on the

       Navarette factors partially because the Court felt the call was less reliable than

       the call in Navarette. The Court noted:


               First and most significantly, Navarette’s rationale for deeming 911
               calls reliable has much less force here. The Supreme Court
               concluded that 911 calls are more dependable because their
               features “provide some safeguards against making false reports
               with immunity.” Specifically, the calls are recorded, so a victim
               of a false report may be able to identify the anonymous caller’s
               voice later, and the calls can be traced back to a particular phone
               number and geographic location. But here, the caller borrowed a
               stranger’s phone, limiting the usefulness of the system’s tracing
               ability. Any phone number identified would not lead back to the
               caller because he had no permanent connection to the phone,
               and the phone’s geographic location at the time of the call would
               be useful only so long as the caller remained near the phone.
               Under these circumstances, it is not obvious that the young caller


       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019         Page 17 of 19
               would be worried about getting caught providing false
               information and therefore “think twice” before doing it.


       Id. at 895 (internal citations omitted). The same is true here - the record does

       not contain information about the 911 call - whether it came from a cell phone

       or a landline, if the caller owned the phone from which the call came, and

       where the caller and the phone were when making the report.


[29]   As a final point, I note the factual disparity between the case before us and one

       of the cases the majority cites to bolster its reliance on Navarette, that is, United

       States v. Jeanes, 2017 WL 74766, at *1 (N.D. Ind. Jan. 9, 2017). Most notably,

       in Jeanes, in which the Indiana District Court affirmed a traffic stop based on

       reasonable suspicion, the recording of the 911 call was admitted into evidence

       and the anonymous caller provided “‘play-by-play’ eyewitness commentary as

       she was following the subject vehicle.” Jeanes, slip op. at *6. Here, it is not clear

       what the anonymous caller said or when the call was received. The record does

       not contain a transcript or recording of the 911 call. The only evidence that we

       are permitted to review - and all the trial court relied on for this issue - is Officer

       Moore’s testimony, the contents of which I do not believe provide evidence of

       reasonable suspicion to effectuate a Terry stop.


[30]   I cannot agree that an anonymous tip of shots fired from a grey SUV with

       moderate damage all over it somewhere near Market Street with an

       indeterminate time frame, unknown location of the shots, unknown location of

       the caller, and lack of additional information regarding the vehicle or the

       vehicle’s occupants gave Officer Moore reasonable suspicion to stop Smith’s
       Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019          Page 18 of 19
vehicle, order the occupants out of the vehicle at gunpoint, handcuff the

occupants, move them to the rear of the car, and conduct a search of Smith’s

vehicle without Smith’s consent. Therefore, I respectfully dissent.




Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019     Page 19 of 19
