MEMORANDUM DECISION
                                                                      May 27 2015, 9:48 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Darrel Warren,                                           May 27, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1409-CR-597
        v.                                               Appeal from the Marion Superior
                                                         Court
                                                         Cause No. 49F10-1310-CM-65273
State of Indiana,
Appellee-Plaintiff.                                      The Honorable Linda E. Brown,
                                                         Judge
                                                         The Honorable Steven Rubick,
                                                         Magistrate




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-597 | May 27, 2015           Page 1 of 7
                                             Case Summary
[1]   Darrel Warren appeals his conviction for Class A misdemeanor carrying a

      handgun without a license. We reverse.


                                                     Issue
[2]   Warren raises one issue, which we restate as whether the trial court properly

      admitted evidence obtained during his encounter with police officers.


                                                     Facts
[3]   On October 3, 2013, Officer Aaron Helton of the Indianapolis Metropolitan

      Police Department was dispatched to a call about a person holding a gun on

      porch on East 10th Street in Indianapolis. Officer Helton was given a

      description of a person wearing a hat, jeans, and a black shirt. When Officer

      Helton and another officer arrived at the scene, there were four intoxicated men

      on the porch drinking from a bottle. Officer Helton did not know whose house

      it was and did not see a person with a gun. Officer Helton walked up to the

      porch steps and told the men to keep their hands where he could see them

      because of the nature of the dispatch. At that point, Officer Helton noticed that

      Warren’s clothing matched the description in the dispatch and saw him make

      “a move toward his right pocket; not like an aggressive move like someone is

      going to hurt you, but kind of like a, avoiding away . . . .” Tr. p. 13. Officer

      Helton approached Warren and patted him down. Officer Helton found a

      handgun in Warren’s pocket. Warren did not have a valid license for the gun.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-597 | May 27, 2015   Page 2 of 7
[4]   The State charged Warren with Class A misdemeanor carrying a handgun

      without a license. Warren moved to suppress evidence obtained during the

      encounter, and the trial court denied the motion. At the trial, the evidence was

      admitted over Warren’s objection, and Warren was convicted. He now

      appeals.


                                                  Analysis
[5]   Warren contends the trial court erroneously admitted evidence obtained during

      his encounter with Officer Helton. We will reverse a trial court’s ruling on the

      admissibility of evidence only when the trial court abused its discretion, which

      occurs when a decision is clearly against the logic and effect of the facts and

      circumstances before the trial court. Bentley v. State, 846 N.E.2d 300, 304 (Ind.

      Ct. App. 2006).


[6]   “Encounters between law enforcement officers and public citizens take a variety

      of forms, some of which do not implicate the protections of the Fourth

      Amendment and some of which do.” Clark v. State, 994 N.E.2d 252, 261 (Ind.

      2013). Consensual encounters in which a citizen voluntarily interacts with a

      police officer do not compel Fourth Amendment analysis. Id. Nonconsensual

      encounters do and typically fall into two categories. Id. The first is a full arrest,

      which requires probable cause. Id. The second is a brief investigative stop,

      which requires a lower standard of reasonable suspicion. Id.


[7]   At issue here is whether Officer Helton’s initial encounter with Warren was

      consensual, as the State asserts, or an investigatory stop, as Warren claims.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-597 | May 27, 2015   Page 3 of 7
      “Determining whether this was a consensual encounter or some level of

      detention turns on an evaluation, under all the circumstances, of whether a

      reasonable person would feel free to disregard the police and go about his or her

      business.” Id. (quotation omitted). The test is objective—whether the officer’s

      words and actions would have conveyed to a reasonable person that he or she

      was not free to leave. Id.


[8]   Warren compares his case to Crabtree v. State, 762 N.E.2d 241, 244-46 (Ind. Ct.

      App. 2002), in which the officer left his car, began walking toward Crabtree,

      shined a flashlight on him, and shouted “get your hands up” and, when

      Crabtree failed to comply, he was immediately apprehended and handcuffed.

      We concluded that “a reasonable person in Crabtree’s position would not feel

      that he was free to leave” and that Crabtree was subjected to an investigatory

      stop. Crabtree, 762 N.E.2d at 246.


[9]   On the other hand, the State directs us to Bentley, in which two police officers

      responded to a dispatch about suspicious people in a car in a parking lot.

      Bentley, 846 N.E.2d at 303. One officer approached the car and asked the four

      occupants about their presence in the parking lot and asked for identification.

      Id. at 306. The other officer approached the car and asked the occupants to

      keep their hands where he could see them and, when one of the passengers did

      not comply, the officers ordered all of the occupants out of the car. Id. at 307.

      We concluded that, what began as a consensual encounter, escalated into a

      seizure when the occupants were ordered out of the car. Id. We also

      determined that the request for the occupants to keep their hands where the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-597 | May 27, 2015   Page 4 of 7
       officers could see them was a consensual encounter. We reasoned that the

       officers did not draw their weapons, speak in an intimidating fashion, or

       otherwise restrict the occupants from leaving the area. Id.


[10]   We believe this case is distinguishable from Bentley because Warren was not in

       a car and able to leave the scene. Instead, when Officer Helton, while

       accompanied by another officer, stood at the bottom of the porch and instructed

       the men on the porch to keep their hands where he could see them and not to

       move around, a reasonable person would believe that he or she was not free to

       leave. Thus, the protections of the Fourth Amendment are implicated here.

       See, e.g., United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) (holding that

       police cars parked in front of and behind the defendant’s car with lights shining

       through the windows and asking the occupants to put their hands in the air

       where the officer could see them would lead a reasonable person to believe that

       he or she was not free to leave even though the officer’s prudential procedures

       were fully justified by concerns for police safety).


[11]   The fundamental principle upon which a Terry stop is based is that the officer

       has reasonable suspicion to believe that criminal activity has occurred or is

       about to occur or, in the words of Terry, that “‘criminal activity may be afoot.’”

       Holly v. State, 918 N.E.2d 323, 325 (Ind. 2009) (quoting Terry v. Ohio, 392 U.S.

       1, 30, 88 S. Ct. 1868, 1884 (1968)). “‘Such reasonable suspicion must be

       comprised of more than hunches or unparticularized suspicions.’” Clark, 994

       N.E.2d at 263 (quoting State v. Murray, 837 N.E.2d 223, 225-26 (Ind. Ct. App.

       2005), trans. denied). Taking into account the totality of the circumstances or

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-597 | May 27, 2015   Page 5 of 7
       the whole picture, the detaining officers must have a particularized and

       objective basis for suspecting the particular person stopped of criminal activity.

       Id. at 264. In making this determination, we must examine the facts as known

       to the officer at the moment of the stop. Id. Findings of reasonable suspicion

       are reviewed de novo, and this is necessarily a fact-sensitive inquiry. Id.


[12]   The State contends that Officer Helton had reasonable suspicion to believe

       criminal activity may have been afoot based on the fact that he was responding

       to a report of a man holding a gun on a porch, the people on the porch were

       intoxicated, and the officers were outnumbered. We fail to see how the men’s

       intoxication and the fact that the officers were outnumbered would lead an

       officer to objectively conclude that criminal activity was afoot. Moreover, as

       Warren points out, there is no indication that the Officer Helton was informed

       that the person was doing anything illegal with the gun.1 The evidence simply

       does not establish that Officer Helton had reasonable suspicion to believe that

       criminal activity had occurred or was about to occur when he instructed the

       occupants of the porch to keep their hands where he could see them.


[13]   Even if we were to conclude that the initial request to keep their hands where

       Officer Helton could see them was part of a consensual encounter, the State

       concedes, “When the officer put his hands on Warren, the encounter became a




       1
         Although Officer Helton testified that Mr. Bush owned the home and called 911, he testified he did not
       know whose house it was before he arrived and he inquired at the scene to determine whose house it was.
       There is no indication that this inquiry occurred prior to Officer Helton’s encounter with Warren.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-597 | May 27, 2015               Page 6 of 7
       seizure . . . .” Appellee’s Br. p. 6. If we were to consider what Officer Helton

       observed following his request of the occupants to keep their hands where he

       could see them, including, as the State points, that Warren did not cooperate

       with the request and that he matched the description of the man with the gun,

       we remain unconvinced that these additional factors created reasonable

       suspicion that criminal activity was afoot. We reach this conclusion because

       Warren’s possession of a gun under the circumstances known to Officer Helton

       at the time was not necessarily illegal. As Warren asserts, “There was no report

       of the person pointing the gun, firing it, or being ineligible to possess it.”

       Appellant’s Br. p. 7. The evidence presented by the State did not establish that

       Officer Helton had reasonable suspicion of criminal activity at the time he

       searched Warren. Accordingly, the trial court improperly overruled Warren’s

       objection to the admissibility of the evidence obtained during the search.


                                                 Conclusion
[14]   Because Officer Helton did not have reasonable suspicion of criminal activity

       either upon his instruction for the occupants of the porch to keep their hands

       where he could see them or upon his frisk of Warren, the trial court improperly

       overruled Warren’s objection to the admissibility of the evidence obtained

       during the frisk. We reverse.


[15]   Reversed.


       Riley, J., and Bailey, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-597 | May 27, 2015   Page 7 of 7
