MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Mar 12 2018, 8:43 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
Kevin Wild                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric Dontre Freeman,                                     March 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1710-CR-2217
        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.
                                                         49G04-1604-F5-15733



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2217 | March 12, 2018         Page 1 of 7
                                               Case Summary


[1]   Eric Freeman appeals his convictions for Level 5 felony carrying a handgun

      without a license and Class A misdemeanor unlawful possession of a firearm by

      a domestic batterer. On appeal, he argues that the trial court abused its

      discretion in admitting evidence obtained as a result of an unlawful search and

      seizure.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the evening of April 24, 2016, Officer Clayton Portell of the Indianapolis

      Metropolitan Police Department responded to a 911 call reporting a fight in

      progress, with shots fired by both a man and a woman. Officer Portell arrived

      on the scene within three minutes of the 911 call and observed four people—

      two men and two women—engaged in a very heated argument. The scene was

      chaotic, with neighbors yelling from their yards and porches.


[4]   One of the men involved in the altercation was later identified as Freeman.

      When Freeman saw Officer Portell get out of his police cruiser, Freeman

      abruptly stopped arguing, “got real wide-eyed” and started walking toward a

      house. Transcript Vol. 2 at 11. Officer Portell ordered Freeman to stop and then

      patted him down. During the pat-down, Officer Clayton felt what he

      immediately recognized to be a handgun in Freeman’s pocket. Officer Clayton

      put Freeman’s hands behind his back, retrieved the firearm, and sought


      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2217 | March 12, 2018   Page 2 of 7
      assistance from another officer. After Freeman was in handcuffs and the

      handgun was secured, Officer Portell ran Freeman’s information and

      discovered that he was precluded from possessing a firearm in Indiana.


[5]   As a result of these events, the State charged Freeman with Level 5 felony

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

      firearm by a domestic batterer. The case proceeded to a bench trial on July 21,

      2017, at the conclusion of which Freeman was found guilty as charged. On

      September 5, 2017, the trial court sentenced Freeman to three years, with one

      year executed on community corrections and two years suspended to probation.

      Freeman now appeals. Additional facts will be provided as necessary.


                                          Discussion & Decision


[6]   On appeal, Freeman argues that the trial court abused its discretion in admitting

      evidence obtained as a result of an unlawful search and seizure. Trial courts

      have broad discretion in ruling on the admissibility of evidence, and such

      rulings will be reversed only upon a showing of an abuse of that discretion.

      Palilonis v. State, 970 N.E.2d 713, 725 (Ind. Ct. App. 2012), trans. denied. An

      abuse of discretion occurs when the trial court’s ruling is clearly against the

      logic and effect of the facts and circumstances before it. Id. In reviewing a trial

      court’s evidentiary rulings, we will not reweigh the evidence, and we will

      consider conflicting evidence most favorable to the trial court’s ruling. Id. We

      also consider uncontroverted evidence in the defendant’s favor. Joseph v. State,

      975 N.E.2d 420, 424 (Ind. Ct. App. 2012).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2217 | March 12, 2018   Page 3 of 7
[7]   As this court has explained:


              The Fourth Amendment to the United States Constitution
              prohibits unreasonable searches and seizures by the government.
              Malone v. State, 882 N.E.2d 784, 786 (Ind. Ct. App. 2008).
              “Searches performed by government officials without warrants
              are per se unreasonable under the Fourth Amendment, subject to
              a ‘few specifically established and well-delineated exceptions.’”
              Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006) (quoting Katz v.
              United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L.Ed.2d 576
              (1967)). When a search is conducted without a warrant, the
              State bears the burden of proving that an exception to the
              warrant requirement existed at the time of the search. Id.;
              Malone, 882 N.E.2d at 786.


              One such exception was established in Terry v. Ohio, in which the
              United States Supreme Court held that a police officer may
              briefly detain a person for investigatory purposes if, based on
              specific and articulable facts together with reasonable inferences
              drawn therefrom, an ordinarily prudent person would reasonably
              suspect that criminal activity was afoot. 392 U.S. 1, 30, 88 S.Ct.
              1868, 20 L.Ed.2d 889 (1968); Howard v. State, 862 N.E.2d 1208,
              1210 (Ind. Ct. App. 2007). Reasonable suspicion is determined
              on a case-by-case basis by examining the totality of the
              circumstances. Id. In addition to detainment, Terry permits a
              police officer to conduct a limited search of the individual’s outer
              clothing for weapons if the officer reasonably believes that the
              individual is armed and dangerous. Id. An officer’s authority to
              perform such a pat-down search of a detained individual during a
              Terry stop is dependent upon the nature and extent of the officer’s
              particularized concern for his or her safety. Rybolt v. State, 770
              N.E.2d 935, 938 (Ind. Ct. App. 2002), trans. denied.


      Patterson v. State, 958 N.E.2d 478, 482-83 (Ind. Ct. App. 2011).



      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2217 | March 12, 2018   Page 4 of 7
[8]   Freeman argues that Officer Portell lacked reasonable suspicion to detain him

      as he walked away from the scene of the altercation or to conduct the pat-down

      search that led to the discovery of the handgun. We disagree.


[9]   The evidence presented establishes that Officer Portell responded to a 911 call

      reporting a fight in progress. The fight was taking place in a high-crime area,

      and the caller indicated that one shot had been fired by a woman and a second

      shot had been fired by a man. Upon arriving at the scene within three minutes

      of the 911 call, Officer Portell encountered a situation consistent with the 911

      caller’s account. Specifically, two men and two women were engaged in a

      heated argument and “they were very animated arguing up [in] each other’s

      faces.” Transcript Vol. 2 at 9. Upon spotting Officer Portell, Freeman abruptly

      broke off from the argument, “got real wide-eyed,” and started walking back

      toward a house. Id. at 11. When Officer Portell ordered Freeman to stop, he

      did not immediately comply. These facts provide ample support for the trial

      court’s finding that Officer Portell had reasonable suspicion both to detain

      Freeman and to pat him down for weapons, which led to the discovery of the

      handgun. See Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind. 1997) (explaining

      that “as a general rule, an anonymous tip alone is not likely to constitute the

      reasonable suspicion necessary for a valid Terry stop” but “where significant

      aspects of the tip are corroborated by the police, a Terry stop is likely valid”);

      Patterson, 958 N.E.2d at 486 (finding presence in a high-crime area to be a

      relevant factor in determining whether officer had a reasonable belief that the

      defendant was armed so as to justify a pat-down search); Howard v. State, 862


      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2217 | March 12, 2018   Page 5 of 7
       N.E.2d 1208, 1210-11 (Ind. Ct. App. 2007) (noting that “nervous and evasive

       behavior is a pertinent factor in determining whether reasonable suspicion

       exists”). Freeman has not established that the stop and pat-down search

       violated his Fourth Amendment rights.


[10]   Freeman also argues that the stop and pat-down search violated his rights under

       Article 1, Section 11 of the Indiana Constitution. Article 1, Section 11, like the

       Fourth Amendment, bars unreasonable searches and seizures. Carpenter v. State,

       18 N.E.3d 998, 1001 (Ind. 2014). “Although Indiana’s Section 11 and the

       Federal Fourth Amendment are textually identical, they are analytically

       distinct.” Id. Specifically, while Fourth Amendment analysis turns on whether

       the subject of a search had a reasonable expectation of privacy, analysis under

       Article 1, Section 11 turns on whether the police conduct was reasonable under

       the totality of the circumstances. Id. at 1001-02. In evaluating the

       reasonableness of police conduct, we consider: “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. at 1002 (quoting Litchfield v.

       State, 824 N.E.2d 356, 361 (Ind. 2005)). The State bears the burden at trial of

       establishing that the police conduct was reasonable. Id.


[11]   In this case, the degree of suspicion or concern that a violation had occurred

       weighs in the State’s favor. Officer Portell arrived within three minutes of the

       911 call, and he came upon a scene consistent with what the 911 caller had

       described. Moreover, a very heated argument between two men and two

       Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2217 | March 12, 2018   Page 6 of 7
       women was ongoing, and Freeman abruptly stopped arguing and walked away

       when he saw Officer Portell. Further, the degree of intrusion in this case was

       relatively minimal. See Edmond v. State, 951 N.E.2d 585, 592 (Ind. Ct. App.

       2011) (finding a pat-down search of a defendant’s clothing was a minimal

       intrusion in the context of a search incident to arrest). Finally, law enforcement

       needs were great. Officer Portell had been informed that one of the men at the

       scene had fired a gun, and it was therefore critical for police to determine

       whether Freeman was armed in order to ensure their own safety and the safety

       of the many bystanders. Freeman has not established that the pat-down search

       was unreasonable under Article 1, Section 11 of the Indiana Constitution.


[12]   Judgment affirmed.


[13]   May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2217 | March 12, 2018   Page 7 of 7
