FOR PUBLICATION                                          FILED
                                                       Jan 06 2012, 8:25 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

PATRICIA CARESS McMATH                        GREGORY F. ZOELLER
Marion County Public Defender Agency          Attorney General of Indiana
Indianapolis, Indiana
                                              MICHAEL GENE WORDEN
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

MICHAEL WOODSON,                              )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A05-1106-CR-306
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable James B. Osborn, Judge
                      The Honorable Patrick Murphy, Commissioner
                           Cause No. 49F15-1102-FD-009919


                                   January 6, 2012


                             OPINION - FOR PUBLICATION


BAILEY, Judge
                                           Case Summary

          Michael Woodson (“Woodson”) was convicted of two counts of Fraud, each as a

Class D felony.1 He now appeals.

          We reverse.

                                                  Issue

          Woodson raises two issues for our review. We find one dispositive: whether the trial

court abused its discretion when it admitted into evidence DVDs seized from Woodson

because the seizure was unlawful under the United States and Indiana constitutions.

                                  Facts and Procedural History

          On February 13, 2011, Officer Christopher Cooper (“Officer Cooper”) was on patrol

in Indianapolis, and had parked his car in a parking lot across the street from a gas station

and fast-food restaurant on 38th Street in an area of Indianapolis known as a “hot zone” for

drug activity.2 (Tr. 9.) Officer Cooper’s attention was drawn to a maroon car in the parking

lot of the gas station. The car was occupied by two individuals, and a bicycle was parked

immediately next to the vehicle.

          One of the individuals, later identified as Woodson, got out of the car, put on a

backpack, and began to ride the bicycle in the gas station’s parking lot. (Tr. 12.) The car

drove away and was followed by another police officer. Officer Cooper drove his car into



1
    Ind. Code § 35-43-5-4(10).
2
 Officer Cooper’s testimony indicates that he worked the “one-thirty to ten” shift and that the events in
question occurred around “7:30 or 8:00” (Tr. 7), but it is unclear from the testimony whether either Officer
Cooper’s shift or the incident occurred in the morning or evening.
                                                     2
the gas station parking lot and pulled up next to Woodson, who had gotten off the bicycle just

as Officer Cooper began to approach him.

       Officer Cooper asked Woodson what he was doing, to which Woodson responded that

he was going home. Woodson was “loud” and “belligerent” (Tr. 11), so Officer Cooper

handcuffed him for officer safety reasons. After confirming Woodson’s identity, Officer

Cooper asked Woodson whether he could search the backpack. Woodson consented to the

search and Officer Cooper found thirty-four DVDs, each in a white sleeve, with various

movie titles handwritten on them. Among the titles were “Green Hornet” and “Sanctum.”

Knowing that these movies were still in movie theaters and were not available in DVD

release, Officer Cooper arrested Woodson. Later examination of the DVDs confirmed that

they contained the titled movies and were not manufactured by the originating movie studios.

       On February 15, 2011, Woodson was charged with two counts of Fraud. On March

30, 2011, Woodson filed a motion to suppress evidence, contending that the DVDs Officer

Cooper obtained were products of an illegal search and seizure.

       On April 21, 2011, the trial court conducted a hearing on the motion to suppress and a

bench trial. The trial court denied the motion to suppress and after a bench trial found

Woodson guilty on both counts. On May 31, 2011, the trial court sentenced Woodson to two

years imprisonment, with 514 days suspended and 216 executed.

       This appeal followed.

                                 Discussion and Decision

       Woodson argues that the trial court erred when it did not suppress and subsequently

                                              3
admitted into evidence the DVDs Officer Cooper obtained because they were the fruit of an

improper search and seizure.

       “Our standard of review of rulings on the admissibility of evidence is essentially the

same whether the challenge is made by a pre-trial motion to suppress or by trial objection.”

Boston v. State, 947 N.E.2d 436, 444 (Ind. Ct. App. 2011). We determine whether there is

substantial evidence of probative value to support the trial court’s ruling. Litchfield v. State,

824 N.E.2d 356, 359 (Ind. 2005). We do not reweigh evidence and construe conflicting

evidence most favorably to the trial court’s ruling. Widduck v. State, 861 N.E.2d 1267, 1270

(Ind. Ct. App. 2007). We must also consider uncontested evidence favorable to the

defendant. Id. The trial court’s ultimate determination of the constitutionality of a search or

seizure is, however, reviewed de novo. Harper v. State, 922 N.E.2d 75, 79 (Ind. Ct. App.

2010) (quoting Crabtree v. State, 762 N.E.2d 241, 244 (Ind. Ct. App. 2002)) (applying this

standard to a Terry stop), trans. denied.

       Woodson contends that Officer Cooper’s actions constitute a Terry stop, that is, a brief

detention for investigative purposes, and that under the totality of the circumstances Officer

Cooper lacked the reasonable suspicion required under the United States and Indiana

Constitutions to conduct the stop. The State responds that the initial interaction between

Woodson and Officer Cooper was a consensual encounter that did not implicate Woodson’s

Fourth Amendment interests, but that Officer Cooper nonetheless had the reasonable

suspicion required for a Terry stop.

       The United States Constitution affords individuals protection from “unreasonable

                                               4
searches and seizures.” U.S. Const. amend. IV. The Indiana Constitution extends similar

protections. Ind. Const. Art. 1, § 11. The Fourth Amendment’s protections “extend to brief

investigatory stops of persons or vehicles that fall short of traditional arrest.” United States

v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968), and United

States v. Cortez, 449 U.S. 411, 417 (1981)). Because the balance between public interest and

an individual’s right to personal security tilts in favor of a lower standard than probable

cause, reasonable suspicion that criminal activity “may be afoot” is sufficient to justify such

investigatory stops. Id.

       Reasonable suspicion requires that there be “some objective manifestation that the

person stopped is, or is about to be, engaged in criminal activity.” Cortez, 449 U.S. at 417.

While there is no set of hard-and-fast rules to determine what constitutes reasonable

suspicion, Arvizu, 534 U.S. at 274, a mere “hunch” is insufficient. Terry, 392 U.S. at 27.

When reviewing investigatory stops for reasonable suspicion, we “look 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.” Arvizu, 534 U.S. at 273 (citing Cortez,

449 U.S. at 417-418).

       A consensual encounter that does not implicate the Fourth Amendment occurs when

an officer approaches an individual to make a casual and brief inquiry and the individual

remains free to leave. State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App. 2008). The test

for whether a reasonable impression existed that the individual was free to leave is “what a

reasonable person, innocent of any crime, would have thought had he been in the citizen’s

                                               5
shoes.” Crabtree, 762 N.E.2d at 245. Several factors may be considered in determining

whether a reasonable person would not believe he was free to leave, including the presence

of multiple officers, the display of a weapon, any physical touching of the person, or the use

of a tone of voice by the officer indicating that compliance might be compelled. Calmes, 894

N.E.2d at 202.

       Here, we cannot conclude that Officer Cooper’s interaction with Woodson began as a

consensual encounter. Woodson had been riding his bicycle in the parking lot of the gas

station and was able to see the maroon car that he had just exited being pulled over by

Officer Cooper’s colleague. Officer Cooper approached as Woodson got off the bicycle,

pulled his car up immediately next to Woodson, and asked Woodson what he was doing.

Officer Cooper testified that he would have pursued Woodson if Woodson fled instead of

complying with the request for information. Officer Cooper handcuffed Woodson for officer

safety purposes when Woodson became “loud” and “belligerent” in the absence of any

apparent threat to Officer Cooper and before obtaining information about Woodson from his

police computer. Under these circumstances, we cannot conclude that this was a consensual

encounter.

       We thus consider whether Officer Cooper’s stop of Woodson was a proper Terry stop.

Woodson argues that Officer Cooper lacked the reasonable suspicion necessary to conduct a

Terry stop. We agree.

       Woodson was one of two individuals in a car parked at a gas station in a “hot zone” of

drug activity, with a bicycle parked immediately next to the car. Officer Cooper testified that

                                              6
he could not see what interaction, if any, was occurring within the car. Woodson got out of

the car carrying a backpack, got on his bicycle, and began to ride it. The State characterizes

this as Woodson riding “around in circles” (Appellee’s Br. 9), but on cross examination

Officer Cooper agreed that Woodson was “kind of idly riding his bike” along 38th Street in

front of a fast food restaurant attached to the gas station. (Tr. 12-13). At some point before

Officer Cooper approached him, Woodson got off the bicycle, even as he was able to see

another police officer pull over the maroon car he had just been sitting in.

       Officer Cooper testified here that he could not see any transaction between Woodson

and the driver of the maroon car and there had been no report of criminal activity to which

Officer Cooper was responding. Woodson did not attempt to flee the scene and hide or dump

contraband upon completing a transaction and seeing a police officer approach in a high-

crime area. See Ross v. State, 844 N.E.2d 537, 541-42 (Ind. Ct. App. 2006). Nor did Officer

Cooper testify that in his training and experience Woodson’s behavior was of a type

frequently displayed by individuals dealing in pirated DVDs, drugs, or any other contraband.

See Wilson v. State, 670 N.E.2d 27, 28-29 (Ind. Ct. App. 1996) (concluding there was

reasonable suspicion to detain defendant where the arresting officer was in a high-crime and -

drug area, was trained in the factors pointing to drug transactions, and observed conduct

conforming to this pattern).

        Only the fact that the area of Indianapolis in which Woodson was arrested was

considered to be a “hot zone” gave Officer Cooper any kind of suspicion that drug-related or

other illegal activity might be afoot. Cf. Crabtree, 762 N.E.2d at 246-47 (concluding there

                                              7
was reasonable suspicion where the defendant was in a high-crime area, it was 4:30 a.m., a

noise complaint had been conveyed to police, and the defendant was found hiding behind a

car when police arrived on scene). This is not enough to amount to reasonable suspicion, and

we therefore cannot conclude under the totality of the circumstances that Officer Cooper’s

Terry stop was appropriate under the Fourth Amendment.

       Because Officer Cooper’s stop of Woodson was neither a consensual encounter nor

supported by reasonable suspicion, the evidence obtained as a result of that stop—the DVDs

in Woodson’s backpack—should have been excluded from evidence. The admission into

evidence of those DVDs was clearly prejudicial because the discs formed the basis for

subsequent testimony at trial as to the number and nature of the materials, without which the

State would have lacked sufficient evidence to obtain a conviction. We therefore reverse

Woodson’s conviction.

       Reversed.

BAKER, J., and DARDEN, J., concur.




                                             8
