                                                                              Jul 06 2015, 9:21 am




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Barbara J. Simmons                                       Gregory F. Zoeller
      Oldenburg, Indiana                                       Attorney General of Indiana
                                                               Karl M. Scharnberg
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Richard Jones,                                           July 6, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1411-CR-511
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Linda E. Brown,
                                                               Judge
      Appellee-Plaintiff.
                                                               Case No. 49G10-1409-CM-041810




      Vaidik, Chief Judge.



                                           Case Summary
[1]   In August 2014, an Indianapolis police officer responded to a call that a person

      was down. Upon arrival the officer saw Richard Jones standing over a female

      lying in the middle of the street. When the officer asked Jones to “come here,”

      Jones continued to walk to the other side of the street. A witness approached

      Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-511 | July 6, 2015             Page 1 of 10
      the officer and told him that he had seen Jones standing over the female, yelling

      at her, and daring her to get up. The officer again asked Jones to “come here,”

      but Jones continued to walk off.


[2]   The trial court found Jones guilty of Class A misdemeanor resisting law

      enforcement, and Jones now appeals arguing that the evidence is insufficient to

      prove that he had a duty to stop and, therefore, Officer Miller did not have

      reasonable suspicion to order him to stop. Because the evidence is insufficient

      to prove that the order to stop was supported by reasonable suspicion, we

      reverse his conviction.



                            Facts and Procedural History
[3]   On August 28, 2014, Indianapolis Metropolitan Police Department Officer

      Darrell Miller was dispatched to 38th Street and Clarendon Road, for “a person

      down.” Tr. p. 7. Upon arrival Officer Miller noticed a female—later identified

      as Dorie Howe—lying in the middle of the street and Jones “standing over”

      her. Id.; but see id. at 13 (Officer Miller testifying on cross examination that

      Jones was “walking away” from Howe when he arrived). When Officer Miller

      approached the scene he was in a marked car with his emergency and spot

      lights on, and he was wearing his police uniform. Officer Miller did not

      observe any criminal activity upon his arrival. Id. at 14. Still in his police car,

      Officer Miller asked Jones, who was walking to the other side of the street, to

      “come here”; Jones, however, continued to walk. Id. at 8. Howe remained on

      the ground. At this point, the man who had called 911 approached Officer

      Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-511 | July 6, 2015   Page 2 of 10
      Miller and told him what he had seen. The witness explained that the female

      was lying on the ground and that the male was standing over her, shouting at

      her and daring her to get up. Id. at 9. Officer Miller never obtained the name

      of the witness. Id. at 12.


[4]   Officer Miller asked Jones to “come here” again. Jones made a motion and

      began talking on his phone as he continued to walk eastbound on 38th Street.

      Id. As Jones was walking eastbound, Howe got up off the ground and began

      walking in the opposite direction. At this point Officer Miller and Officer

      Linda Roeschlein, who had since arrived on the scene, “were confused and did

      not know what was really going on.” Id. at 10. Officer Roeschlein checked on

      Howe while Officer Miller followed Jones in his patrol car. Id. Howe was

      uncooperative with Officer Roeschlein and was released without incident. Id.

      at 15. When Officer Miller turned onto 38th Street, he saw Jones sitting on the

      curb and flashed his spotlight on him. Jones got up and began walking

      northbound to Byram Avenue. As Officer Miller turned onto Byram Avenue to

      follow Jones, he passed two parked cars and “lost visual sight when [Jones]

      dove into the bushes.” Id. at 10, 14. Officer Miller saw the bushes moving and

      found Jones lying face down in the bushes. Officer Miller “ordered [Jones] out

      of the bushes at gun point . . . [,] holstered [his] weapon . . . [,] went in the

      bushes, drug him out[,] and cuffed him.” Id. at 32.


[5]   A bench trial was held, and Jones was found guilty of Class A misdemeanor

      resisting law enforcement. The trial court sentenced Jones to 365 days in the

      Marion County Jail with 283 days suspended to probation.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-511 | July 6, 2015   Page 3 of 10
[6]   Jones now appeals.



                                 Discussion and Decision
[7]   Jones contends that the evidence is insufficient to support his conviction.

      When an appellant challenges the sufficiency of the evidence, we do not

      reweigh the evidence nor the credibility of the witnesses. Gaddie v. State, 10

      N.E.3d 1249, 1252 (Ind. 2014). We only determine whether the probative

      evidence and reasonable inferences drawn from it could have allowed a

      reasonable trier of fact to find each of the elements of the charged offense

      proven beyond a reasonable doubt. Id.


[8]   To convict Jones of resisting law enforcement as charged here, the State was

      required to prove beyond a reasonable doubt that Jones knowingly fled from

      Officer Miller after he had, by visible or audible means, identified himself and

      ordered Jones to stop. Ind. Code § 35-44.1-3-1(a)(3); Appellant’s App. p. 11.

      Jones argues that the evidence is insufficient to prove that he had a duty to stop

      and, therefore, Officer Miller did not have reasonable suspicion to order him to

      stop.


[9]   The Fourth Amendment to the United States Constitution gives people the

      right “to be secure in their persons, houses, papers, and effects, against

      unreasonable searches or seizures.” U.S. Const. amend. IV. “At minimum,

      the government’s seizure of a citizen must rest on specific, articulable facts that




      Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-511 | July 6, 2015   Page 4 of 10
       lead an officer to reasonably suspect that criminal activity is afoot.” Gaddie, 10

       N.E.3d at 1253 (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).


[10]   The Indiana Supreme Court recently addressed whether a police officer’s order

       to stop must be lawful before a defendant is required to stop in Gaddie v. State.

       In that case, a police officer responded to a report of a “disturbance” at an

       Indianapolis house. Id. at 1252. When he arrived, the officer saw about eight

       people standing on the front porch and in the front yard “screaming and

       yelling.” Id. When the group began walking toward the back of the house, the

       officer ordered them to return to the front yard. Everyone but the defendant

       complied. The officer followed the defendant and told him to stop. The

       defendant, however, continued walking toward an alley. The officer continued

       to follow him and repeated his order to stop. Again, the defendant continued

       walking. The officer radioed for back up, and another officer stopped the

       defendant about forty-five seconds later. The State charged the defendant with

       resisting law enforcement by fleeing. The defendant appealed arguing that the

       evidence was insufficient to support his conviction because he did not have a

       duty to stop.


[11]   In agreeing with the defendant, our Supreme Court reasoned, “If a citizen’s

       freedom to walk away is deemed a criminal offense merely because it follows

       an officer’s command to halt—even in the absence of probable cause or

       reasonable suspicion—then the citizen’s freedom is restrained contrary to the

       protections of the Fourth Amendment.” Id. at 1254. Quoting Florida v. Royer,

       460 U.S. 491 (1983), the Court noted that a “person approached by police ‘need

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not answer any question put to him; indeed, he may decline to listen to the

questions at all and may go on his way. He may not be detained even

momentarily without reasonable, objective grounds for doing so . . . .’” Id.

Accordingly, the Court concluded that a “person’s well-established freedom to

walk away is thus violated when that person is subjected to a statute that makes

it a criminal offense to decline a police order to stop.” Id.

         To hold that a citizen may be criminally prosecuted for fleeing after
         being ordered to stop by a law enforcement officer lacking reasonable
         suspicion or probable cause to command such an involuntary
         detention would undermine longstanding search[-]and[-]seizure
         precedent that establishes the principle that an individual has a right to
         ignore police and go about his business.
Id. In order to interpret the resisting-law-enforcement statute as constitutional,

the Court held that the statutory element “after the officer has . . . ordered the

person to stop” “must be understood to require that such order to stop rest on

probable cause or reasonable suspicion, that is, specific, articulable facts that

would lead the officer to reasonably suspect that criminal activity is afoot.” 1 Id.

at 1255. “Absent proof that an officer’s order to stop meets such requirements,

the evidence will be insufficient to establish the offense of Resisting Law

Enforcement by fleeing.” Id.




1
  Our Supreme Court agreed with the State that the language of the resisting-law-enforcement statute, on its
face, does not expressly require that the order to stop be lawful. However, the Court held that if the statute
were applied literally in the absence of probable cause or reasonable suspicion, it would constitute “an
unreasonable detention and impair[] a citizen’s right to ignore the police and go about his business.” Gaddie,
10 N.E.3d 1249 (quotation omitted).

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[12]   Applying the law to the facts, the Court noted that the defendant did not change

       his behavior when the officer appeared and ordered him to stop; he looked back

       two or three times but continued walking. The Court also noted that “the mere

       existence of a disturbance, standing alone, does not identify specific, articulable

       facts that lead an officer to reasonably suspect that criminal activity is afoot, as

       is required for a valid investigatory stop.” Id. at 1256. Accordingly, the Court

       concluded that the circumstances of the disturbance and the officer’s presence

       did not provide sufficient evidence to prove the element that the order to stop

       was supported by probable cause or reasonable suspicion. Id. Finally, the

       Court noted that although not argued by the State, “a citizen’s conduct, after

       being commanded to stop, cannot retroactively justify the officer’s command.

       The order to stop must itself be supported by probable cause or reasonable

       suspicion preceding or concurring with the stop order to support a conviction

       for fleeing law enforcement.” Id. at 1256 n.4.


[13]   The State argues that the facts in this case are distinguishable from the facts in

       Gaddie and that “[a]t a minimum,” the facts “could lead Officer Miller to

       reasonably suspect that [Jones] had committed battery, criminal confinement,

       and intimidation.” Appellee’s Br. p. 7. The State relies on the following five

       facts to support its claim that Officer Miller had reasonable suspicion to order

       Jones to stop: (1) Officer Miller observed Jones standing over Howe in the

       middle of the street when responding to a call that a person was down; (2) a

       witness approached Officer Miller and told him that he had seen the man

       standing over the female, yelling at her, and daring her to get up; (3) Howe


       Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-511 | July 6, 2015   Page 7 of 10
       walked away when Jones left; (4) Jones continued to walk away when Officer

       Miller turned onto 38th Street; and (5) Jones dove into a bush.


[14]   In regards to the first fact—Officer Miller’s observation of Jones standing over

       Howe in the middle of the street when he arrived on the scene—Officer Miller

       did not see Jones intimidating or yelling at Howe. The mere existence of a

       person standing over another in a street, standing alone, does not identify

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

       activity is afoot. See Gaddie, 10 N.E.3d at 1256 (“[T]he mere existence of a

       disturbance, standing alone, does not identify specific, articulable facts that lead

       an officer to reasonably suspect that criminal activity is afoot . . . .”). The State

       argues, however, that the fact that Howe was lying in the street gave rise to a

       strong suspicion that something illegal had transpired, either to place her in that

       position or to keep her there. Appellee’s Br. p. 6. But there could be other

       reasons why a person is lying in the street with another person standing over

       them, such as the person fell down or lay down intentionally and someone was

       trying to help them up. Either way, there was not enough information known

       to Officer Miller when he arrived on the scene to establish reasonable suspicion

       that Jones had engaged in criminal activity. Gaddie, 10 N.E.3d at 1256; Bovie v.

       State, 760 N.E.2d 1195, 1198 (Ind. Ct. App. 2002); Stalling v. State, 713 N.E.2d

       922, 924 (Ind. Ct. App. 1999).


[15]   As for the information provided by the witness who was never identified, it is

       well established in Indiana that “a tip from a concerned citizen may justify an

       investigatory stop if sufficiently reliable.” Russell v. State, 993 N.E.2d 1176,

       Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-511 | July 6, 2015   Page 8 of 10
       1180 (Ind. Ct. App. 2013). The reliability of a concerned-citizen tip “generally

       must be established by reference to underlying facts and circumstances which

       indicate that the information is trustworthy.” Id. (quotation omitted). Here,

       Officer Miller did not observe anything that validated the information received

       from the concerned citizen. Moreover, there was no immediate threat to the

       general public or Howe, as she simply got up and walked away. ???And

       because Officer Miller did not observe any behavior from Jones that would

       have corroborated the information received, the circumstances permitted

       Officer Miller to establish the reliability of the information before using it to

       establish reasonable suspicion. See Renzulli, 958 N.E.2d at 1147; see also Bogetti,

       723 N.E.2d at 880.


[16]   As for the third fact—Howe walked away after Jones left—this also does not

       create any suspicion that criminal activity took place. Instead, it does the

       opposite—it equally shows that nothing criminal happened.


[17]   Regarding the fourth fact—Jones continued to walk away from Officer Miller

       when he turned onto 38th Street—our Supreme Court in Gaddie found that the

       fact that the defendant continued to walk away did not constitute a change in

       behavior. 10 N.E.3d at 1256. Here, Jones was walking away as Officer Miller

       arrived on the scene, and he continued to do so when Officer Miller followed

       him onto 38th Street. Jones’s “‘refusal to cooperate, without more, does not

       furnish the minimal level of objective justification needed for a detention or

       seizure.’” Id. (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)).



       Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-511 | July 6, 2015   Page 9 of 10
[18]   As for the final fact that Jones dove into a bush, because the order to stop must

       be supported by reasonable suspicion preceding or concurring with the stop,

       Jones’s later behavior of diving into the bush does not establish reasonable

       suspicion when Officer Miller first told Jones to “come here.”


[19]   We find that the evidence was not sufficient to support Officer Miller having

       reasonable suspicion that criminal activity was afoot at the time of arrival onto

       the scene. Thus we reverse the trial court.


       Reversed.


       Kirsch, J., and Bradford, J., concur.




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