                                                                                  Dec 31 2015, 9:41 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Glen E. Koch II                                           Gregory F. Zoeller
BOREN, OLIVER & COFFEY, LLP                               Attorney General of Indiana
Martinsville, Indiana                                     Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathan Polson,                                            December 31, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          55A01-1504-CR-135
        v.                                                Appeal from the Morgan Superior
                                                          Court
State of Indiana,                                         The Honorable Peter R. Foley,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          55D01-1409-F5-1458



Mathias, Judge.




Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015             Page 1 of 10
[1]   Following a jury trial in Morgan Superior Court, Nathan Polson (“Polson”)

      was convicted of Level 5 felony carrying a handgun without a license.1 Polson

      was ordered to serve four years in the Department of Correction. On appeal,

      Polson argues that the trial court abused its discretion when it admitted a

      handgun into evidence because he claims the handgun was seized by police in

      violation of the Fourth Amendment of the United States Constitution.

[2]   We affirm.

                                       Facts and Procedural History


[3]   Late in the morning on September 24, 2014, a concerned citizen, T.B., placed a

      911 call to report a suspicious person walking westward down Mahalasville

      Road in Morgan County towards Martinsville, Indiana. The caller identified a

      gentleman in a black t-shirt who appeared to be “under the influence of

      something” and was “holding something underneath his shirt with his arm

      down straight.” Tr. pp. 206-08. T.B. described the man, who was later

      identified as Polson, as about six feet tall and between 175-185 pounds with a

      “real [sic] bad complexion” on his face. Tr. p. 207. T.B. was concerned because

      it was “unusual to see somebody walking down Mahalasville Road” as the area

      was mostly rural farmland with few houses, and especially because the man




      1
        The jury found Polson guilty of Class A misdemeanor carrying a handgun without a license. Polson then
      stipulated to his prior felony conviction and the felony enhancement.

      Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015                   Page 2 of 10
      appeared to have a “pretty sizeable weapon tucked up underneath his shirt.” Tr.

      p. 206.

[4]   Sergeant Brad Cooley (“Sergeant Cooley”) of the Morgan County Sheriff’s

      Department was dispatched to Mahalasville Road in response to the suspicious

      person report around 11:31 a.m. on September 24, 2014. He arrived at the scene

      at 11:40 a.m. and observed a man matching the description from the report in a

      black shirt and blue jeans walking along the rural road at the intersection of

      Low Gap and Mahalasville Roads. Sergeant Cooley parked his patrol car so he

      faced Polson but did not activate his emergency lights. As Polson approached,

      Sergeant Cooley asked Polson to walk toward him and Polson responded, “I

      haven’t done anything wrong.” Tr. p. 239. Sergeant Cooley explained to Polson

      that he had received a suspicious person report and that Polson matched the

      description. Polson told Cooley that he was walking to a gas station to catch a

      ride. The closest gas station was two-and-one-half miles away. Tr. p. 247.


[5]   At that point, Polson put his hands behind his back, was sweating, and acted

      “nervous and kind of skittish.” Tr. p. 215. This behavior indicated to Sergeant

      Cooley that Polson was under the influence of “something.” Tr. pp. 215-16.

      Polson was also in the middle of the road at the time, and because a car was

      approaching, Sergeant Cooley asked Polson to step behind his patrol car.

      Polson stepped to the right side of the trunk area of the car, and Sergeant

      Cooley stood on the other side of the car by the left rear wheel to keep a buffer

      between them. Tr. p. 217.



      Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015   Page 3 of 10
[6]   Sergeant Cooley then asked Polson to show him what he was concealing

      underneath his shirt. Polson turned away from Sergeant Cooley and lifted up

      only the left side of his shirt, which contained nothing. Sergeant Cooley

      responded that he wanted to see what was underneath the right side of his shirt.

      Polson again insisted that he had not done anything wrong but reluctantly

      raised the right side of his shirt showing the handle and top of a gun. Tr. p. 218.

      Sergeant Cooley responded by drawing his firearm and pointing it at Polson’s

      midsection and advised Polson to keep his hands in the air.


[7]   Although Polson initially complied, he then put his hands down toward his

      sides and danced around nervously. Sergeant Cooley advised Polson to put his

      hands on the trunk of the patrol car. Again, Polson complied at first but then

      took his hands off the trunk and brushed the butt of the gun several times.

      Sergeant Cooley asked Polson once more to keep his hands on the trunk of the

      patrol car. Sergeant Cooley dispatched on his radio that he had a situation

      where an individual had a gun and requested backup. As Sergeant Cooley made

      this request, Polson reached down with his right hand, grabbed the butt of the

      gun, pulled it out [from under his shirt], and he threw it into the ditch. Tr. p.

      219. Polson then said to Sergeant Cooley, “You’ll never pin that on me,

      Bubba.” Id.


[8]   Polson then began taking small steps around the left side of Sergeant Cooley’s

      patrol car, and Sergeant Cooley feared that Polson might try to start a fight.

      Because Polson no longer possessed the gun, Sergeant Cooley switched to his



      Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015   Page 4 of 10
       Taser and kept it pointed at Polson until the backup he requested arrived. Tr. p.

       220.

[9]    After the Martinsville policer officers reported to the scene, they secured Polson

       in handcuffs and retrieved the gun from the ditch. Deputy Brian Gabehart

       (“Deputy Gabehart”) of the Morgan County Sheriff’s Department arrived

       shortly after and “cleared” the gun by removing the six rounds of ammunition

       inside. Tr. p. 254. He then placed the gun and ammunition in evidence bags

       that Sergeant Cooley transported back to the police station. Officers later

       discovered that Polson had no permit to carry a firearm and that he had a prior

       felony conviction.

[10]   On September 26, 2014, the State charged Polson with Level 5 felony carrying a

       handgun without a license. Polson filed a motion to suppress on January 23,

       2015, on the basis that Sergeant Cooley obtained no search warrant and that the

       search and seizure violated the Fourth, Fifth, and Sixth Amendments of the

       United States Constitution and Article One, Sections Eleven and Fourteen of

       the Indiana Constitution.2 The Court held a suppression hearing on January 27,

       2015, and denied Polson’s motion. A jury trial was held on February 10, 2015.

       Polson objected to the admission of the weapon at trial. The jury found Polson




       2
        On appeal, Polson only asserted that the seizure of the handgun was unlawful under the Fourth
       Amendment.

       Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015                      Page 5 of 10
       guilty as charged, and the trial court ordered Polson to serve four years

       executed at the Department of Correction. Polson now appeals.

                                          Discussion and Decision


[11]   Polson argues that the trial court abused its discretion in admitting the seized

       handgun into evidence. Questions regarding the admission of evidence are left

       to the sound discretion of the trial court, and on appeal, we review the court’s

       decision only for an abuse of that discretion. Wells v. State, 904 N.E.2d 265, 269

       (Ind. Ct. App. 2009), trans. denied. The trial court abuses its discretion only if its

       decision is clearly against the logic and effect of the facts and circumstances

       before it, or if the court has misinterpreted the law. Id.


[12]   Our review of rulings on the admissibility of evidence is essentially the same

       regardless of whether the challenge is made through a pretrial motion to

       suppress or by an objection at trial. Jackson v. State, 890 N.E.2d 11, 15 (Ind. Ct.

       App. 2008). We will not reweigh the evidence, and we consider conflicting

       evidence in a light most favorable to the trial court’s ruling. Id. However, we

       also consider any undisputed evidence that is favorable to the defendant. Id.

       Additionally, we may consider foundational evidence introduced at trial in

       conjunction with any evidence from a suppression hearing that is not in direct

       conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind. Ct.

       App. 2005).


[13]   Polson asserts that Sergeant Cooley did not have reasonable suspicion to

       conduct an investigatory stop because Polson was walking down a public road

       Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015   Page 6 of 10
       in a place he was allowed to be, only becoming nervous, skittish, and sweaty

       after speaking with Sergeant Cooley. Polson contends that the search and

       subsequent seizure violated the Fourth Amendment.


[14]   The Fourth Amendment of the United States Constitution protects citizens

       from unreasonable searches and seizures. U.S. Const. amend. IV. The

       Fourteenth Amendment extend[s] to state governments the Fourth

       Amendment’s requirements for constitutionally valid searches and seizures.

       Greeno v. State, 861 N.E.2d 1232, 1234 (Ind. Ct. App. 2007) (citing Figert v. State,

       686 N.E.2d 827, 830 (Ind. 1997)). The State bears the burden of proving the

       evidence was admissible when a defendant challenges whether the evidence

       was properly gathered under the Constitution. See Edwards v. State, 759 N.E.2d

       626, 630 (Ind. 2001). One exception to the Fourth Amendment allows a police

       officer to detain a person for investigative purposes. Green v. State, 719 N.E.2d

       426, 428 (Ind. Ct. App. 1999). This is commonly called a “Terry stop.”


[15]   A Terry stop allows an officer to “stop and briefly detain a person for

       investigative purposes if the officer has reasonable suspicion supported by

       articulable fact that criminal activity ‘may be afoot,’ even if the officer lacks

       probable cause.” Terry v. Ohio, 392 U.S. 1, 30 (1968). Reasonable suspicion

       entails some minimal level of objective justification for making a stop,

       something more than an un-particularized suspicion or hunch, but less than the

       level of suspicion for probable cause. State v. Campbell, 905 N.E.2d 51, 54 (Ind.

       Ct. App. 2009) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). What

       constitutes reasonable suspicion is determined on a case-by-case basis, and the

       Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015   Page 7 of 10
       totality of the circumstances is considered. Bogetti v. State, 723 N.E.2d 876, 878

       (Ind. Ct. App. 2000) (citing Baran v. State, 639 N.E.2d 642, 644 (Ind. 1994);

       Platt v. State, 589 N.E.2d 222, 226 (Ind. 1992)).


[16]   In judging the reasonableness of investigatory stops, courts must strike “a

       balance between the public interest and the individual’s right to personal

       security free from arbitrary interference by law [enforcement] officers.” Carter v.

       State, N.E.2d 464, 466 (Ind. Ct. App. 1997). Further, a set of individually

       innocent facts, when observed in conjunction, can be sufficient to create

       reasonable suspicion of criminal activity. Finger v. State, 799 N.E.2d 528, 534

       (Ind. 2003).

[17]   Courts across the country have recognized the importance of concerned citizen

       tips to law enforcement officers, and some jurisdictions have even found this

       information more reliable than that of a professional informant or anonymous

       tipster. See Pawloski v. State, 269 Ind. 350, 380 N.E.2d 1230, 1232 (1978). These

       individuals generally come forward with information out of the spirit of good

       citizenship and a desire to help law enforcement. Id. Prompt law enforcement

       response to this type of information is part and parcel of the community

       policing effort that is an essential function of law enforcement.


[18]   Our supreme court has determined that a tip provided by a concerned citizen

       was sufficient to create reasonable suspicion where the caller provided

       additional information to police which the police [then] corroborated. Kellems v.

       State, 842 N.E.2d 352, 353 (Ind. 2006). Terry stops have a limited scope and


       Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015   Page 8 of 10
       purpose, “not to discover evidence of a crime, but to allow the officer to pursue

       his investigation without fear of violence. . .” Id. at 355. “[S]ince reasonable

       suspicion is all that is necessary to support a Terry stop and it is a less

       demanding standard than probable cause. . . [t]he Fourth Amendment requires

       [only] some minimal level of objective justification for making the stop.” Id

       (internal citations omitted).


[19]   Sergeant Cooley testified at trial that he was notified on dispatch of a suspicious

       person walking along Mahalasville Road, reported by a concerned citizen, who

       provided his name and address to the 911 dispatcher. This was not an

       anonymous tip, but rather a neighbor who identified a potential threat in his

       community and believed Polson to be out of place. After responding to the

       report, Sergeant Cooley quickly identified Polson based on the caller’s

       description of Polson’s body type, bad complexion, clothing, and the large

       bulge underneath his shirt. Through his own personal observation, Sergeant

       Cooley corroborated the concerned citizen’s observation that Polson was

       suspicious in several ways. In the first instance, Polson told Sergeant Cooley he

       was walking to a gas station to get a ride, but the closest gas station was at least

       two-and-one-half miles away.

[20]   Then, when Sergeant Cooley approached Polson, he acted nervous and skittish,

       was sweating, and appeared to be under the influence of something. Nervous,

       evasive behavior is a pertinent factor in determining reasonable suspicion. See

       Florida v. Rodriguez, 469 U.S. 1, 6 (1984). While nervousness alone is not

       enough, nervousness can constitute reasonable suspicion supporting an

       Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015   Page 9 of 10
       investigatory stop when combined with other factors. Campos v. State, 885

       N.E.2d 590, 597-98 (Ind. 2008) (citing Finger, 799 N.E.2d at 534-35).


[21]   Finally, as he became concerned for his safety, Sergeant Cooley asked Polson to

       show him what was underneath his shirt. In response to this lawful request,

       Polson acted in an evasive manner and refused to comply numerous times

       before finally revealing the handgun.

[22]   Based on the totality of these circumstances, we conclude that Sergeant Cooley

       had reasonable suspicion to believe that criminal activity was afoot and that the

       investigatory search and seizure was permissible under the Fourth Amendment.

[23]   We therefore conclude that the trial court did not abuse its discretion in

       admitting the seized handgun into evidence, and we affirm Polson’s Level 5

       felony carrying a handgun without a license conviction.


[24]   Affirmed.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 55A01-1504-CR-135 | December 31, 2015   Page 10 of 10
