                                                                 Apr 23 2015, 9:09 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimmerly A. Klee                                          Gregory F. Zoeller
Greenwood, Indiana                                        Attorney General of Indiana
                                                          Brian Reitz
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

J.B.,                                                     April 23, 2015

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A02-1409-JV-688
        v.                                                Appeal from the Marion Superior
                                                          Court, Juvenile Division.
                                                          The Honorable Marilyn A. Moores,
State of Indiana,                                         Judge.
Appellee-Petitioner.                                      The Honorable Geoffrey Gaither,
                                                          Magistrate.
                                                          Cause No. 49D09-1407-JD-1740




Sharpnack, Senior Judge




Court of Appeals of Indiana | Opinion 49A02-1409-JV-688 | [Hand-down date]              Page 1 of 8
                                           Statement of the Case
[1]   J.B. appeals from the juvenile court’s determination that he committed an act
                                                                                        1
      that constituted dangerous possession of a firearm, a Class A misdemeanor.

      We affirm.


                                                      Issue
[2]   J.B. raises one issue, which we restate as: whether the juvenile court abused its

      discretion in admitting evidence obtained from J.B.’s encounter with a police

      officer.


                                   Facts and Procedural History
[3]   On the evening of July 12, 2014, Officer John Wallace of the Indianapolis

      Metropolitan Police Department was on patrol in his marked car when he saw

      J.B. and three other individuals walking along the sidewalk. J.B., who was

      seventeen years old at the time, saw Wallace’s police car and threw a black

      object into a yard as he continued walking. Officer Wallace was 125 feet from

      the group, and he noted that the object was “in an L shape” and was

      approximately six inches long. Tr. p. 16. Officer Wallace has extensive

      training and experience with firearms, and he believed that the object J.B.

      discarded was a handgun. Id. at 14.




      1
          Ind. Code § 35-47-10-5 (1996).


      Court of Appeals of Indiana | Opinion 49A02-1409-JV-688 | [Hand-down date]   Page 2 of 8
[4]   Officer Wallace drove up to J.B. and his companions, got out of the car, and

      instructed them to sit on the sidewalk. Officer Wallace also requested

      assistance. When additional officers arrived, Officer Wallace walked to the

      yard into which he had seen J.B. discard the object. Officer Wallace found a

      nine millimeter handgun. There was nothing else in the yard that matched the

      size and color of the object that Officer Wallace saw J.B. discard.


[5]   On July 14, 2014, the juvenile court authorized the State to file a petition

      alleging J.B. to be a delinquent child. On August 12, 2014, the court held an
                                2
      evidentiary hearing. During the hearing, J.B. moved to suppress all evidence

      obtained as a result of his encounter with Officer Wallace. The court denied

      J.B.’s motion, determining that the officer had reasonable suspicion to detain

      J.B. At the end of the hearing, the court determined that J.B. was a delinquent

      child and scheduled a dispositional hearing.


[6]   After the September 2, 2014 dispositional hearing, the juvenile court awarded

      J.B. to the guardianship of the Indiana Department Correction “until the age of

      21, unless sooner released by the Department of Correction.” Appellant’s App.

      p. 11. The court recommended that J.B. be held at the Department of

      Correction “for a period of 6 months.” Id. at 12. This appeal followed.




      2
       At the hearing, the court also heard evidence in a separate juvenile case against J.B. under lower cause
      number 49D09-1406-JD-1487. The claims, evidence, and judgment in that lower cause number are not part
      of this appeal.

      Court of Appeals of Indiana | Opinion 49A02-1409-JV-688 | [Hand-down date]                     Page 3 of 8
                                     Discussion and Decision
[7]    J.B. argues that Officer Wallace detained him in violation of his constitutional

       protections against illegal search and seizure, as set forth in the Fourth

       Amendment to the United States Constitution and article 1, section 11 of the

       Indiana Constitution. J.B. argues the juvenile court erred in admitting the

       evidence obtained from Officer Wallace’s encounter with J.B.


[8]    The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for abuse of

       discretion. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012). An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances. Id. We do not reweigh the evidence, and

       we consider conflicting evidence most favorable to the trial court’s ruling, but

       we also consider any uncontested evidence favorable to the defendant. Patterson

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


                                           Fourth Amendment
[9]    The Fourth Amendment to the United States Constitution provides:

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.
[10]   The protections granted by the Fourth Amendment have been extended to the

       states through the Fourteenth Amendment. Sanders v. State, 989 N.E.2d 332,
       Court of Appeals of Indiana | Opinion 49A02-1409-JV-688 | [Hand-down date]   Page 4 of 8
       335 (Ind. 2013). The Fourth Amendment prohibits a warrantless search unless

       a valid exception to the warrant requirement exists. Id. When a search is

       conducted without a warrant, the State has the burden of proving that an

       exception to the warrant requirement existed at the time of the search. Berry v.

       State, 704 N.E.2d 462, 465 (Ind. 1998).


[11]   One exception is abandoned property. It is not subject to Fourth Amendment

       protection and may be lawfully seized without a warrant. Gooch v. State, 834

       N.E.2d 1052, 1053-54 (Ind. Ct. App. 2005), trans. denied. Abandonment rests

       upon whether the defendant relinquished an interest in the property to the point

       that he or she no longer retained a reasonable expectation of privacy in it at the

       time of the search. Hines v. State, 981 N.E.2d 150, 154 (Ind. Ct. App. 2013).

       Abandoned property is inadmissible if the abandonment occurs after the owner

       is improperly detained. Gooch, 834 N.E.2d at 1054.


[12]   In the current case, J.B. discarded the handgun in a yard just after he saw

       Officer Wallace’s police car. Officer Wallace found it laying on the ground,

       accessible to all. Thus, J.B. relinquished his interest in the gun. Furthermore,

       Officer Wallace had not yet approached or spoken to J.B. when J.B. discarded

       the handgun. Thus, J.B. was not yet seized or detained at the time of

       abandonment, and the handgun was properly admitted into evidence over J.B.’s

       Fourth Amendment objection. See Wilson v. State, 825 N.E.2d 49, 52 (Ind. Ct.

       App. 2005) (bag containing cocaine was properly admitted into evidence

       because defendant abandoned the bag prior to being seized by police).



       Court of Appeals of Indiana | Opinion 49A02-1409-JV-688 | [Hand-down date]   Page 5 of 8
[13]   As another exception to the Fourth Amendment’s warrant requirement, an

       officer may conduct a brief investigatory stop of an individual when, based on a

       totality of the circumstances, the officer has a reasonable, articulable suspicion

       that criminal activity is afoot. Hardister v. State, 849 N.E.2d 563, 570 (Ind.

       2006). The investigatory stop, also known as 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. Id. Reasonable

       suspicion is determined on a case by case basis. Patterson, 958 N.E.2d at 482.

       The reasonable suspicion requirement is met where the facts known to the

       officer at the moment of the stop, together with the reasonable inferences from

       such facts, would cause an ordinarily prudent person to believe criminal activity

       has occurred or is about to occur. Moultry v. State, 808 N.E.2d 168, 171 (Ind.

       Ct. App. 2004).


[14]   In this case, Officer Wallace saw J.B. discard what he believed to be a firearm

       in a yard as J.B. walked along a sidewalk. J.B. discarded the firearm upon

       seeing Officer Wallace’s marked police car. This information provided a

       particularized and objective basis for Officer Wallace to conclude that J.B. had

       illegally possessed a weapon, which justified the temporary detention of J.B.

       See W.H. v. State, 928 N.E.2d 288, 295 (Ind. Ct. App. 2010) (officers had

       reasonable suspicion to believe a juvenile had possessed a handgun because the

       juvenile displayed to another person an item tucked into the juvenile’s

       waistband in a manner consistent with the possession of a handgun), trans.

       denied.


       Court of Appeals of Indiana | Opinion 49A02-1409-JV-688 | [Hand-down date]   Page 6 of 8
[15]   J.B. points to testimony by Officer Wallace that he was not absolutely certain

       that the object was a handgun when he saw J.B. throw it away. This argument

       is a request to reweigh the evidence. Officer Wallace told the court he saw a

       black object that was six inches long and was “in an L shape.” Tr. p. 16. He

       believed that it was a firearm, which is sufficient to establish a reasonable,

       articulable suspicion of criminal activity. Officer Wallace’s temporary

       detention of J.B. did not violate the Fourth Amendment.


                                          Article 1, Section 11
[16]   Article 1, section 11 of the Indiana Constitution provides:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.
[17]   Although the language of section 11 tracks the Fourth Amendment, section 11

       requires a different analysis that focuses on the totality of the circumstances of a

       search or seizure. McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014). The

       analysis turns on a balance of: 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.


[18]   In this case, Officer Wallace had a high degree of suspicion or knowledge that

       J.B. had illegally possessed a firearm. He saw J.B. discard what appeared to be

       Court of Appeals of Indiana | Opinion 49A02-1409-JV-688 | [Hand-down date]   Page 7 of 8
       a handgun in a yard just after J.B. noticed Officer Wallace’s police car.

       Furthermore, the degree of intrusion was minimal, because Officer Wallace had

       J.B. sit on the sidewalk for a short time, without restraints, until other officers

       arrived and Officer Wallace confirmed that the object in question was a

       handgun. Finally, the extent of law enforcement needs was high, because

       Officer Wallace needed to confirm that the item was a handgun and, if so,

       secure it so that it did not endanger anyone in the neighborhood. He also

       needed to determine why J.B. had discarded a weapon in a yard. Under the

       totality of the circumstances, Officer Wallace did not act unreasonably in

       detaining J.B. to confirm his observation that J.B. had discarded a handgun,

       and there was no violation of J.B.’s rights under article 1, section 11. See W.H.,

       928 N.E.2d at 297.


[19]   J.B.’s federal and state constitutional claims are without merit, and the trial

       court did not abuse its discretion in admitting evidence obtained from Officer

       Wallace’s encounter with J.B. See id.


                                                 Conclusion
[20]   For the reasons, stated above, we affirm the judgment of the juvenile court.


[21]   Affirmed.


[22]   Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1409-JV-688 | [Hand-down date]   Page 8 of 8
