                                                                                Mar 08 2016, 8:20 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                        Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana                                     Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tyrone Grayson,                                           March 8, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A05-1505-CR-350
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Shatrese M.
      Appellee-Plaintiff                                        Flowers, Judge
                                                                The Honorable David M. Seiter,
                                                                Commissioner
                                                                Trial Court Cause No.
                                                                49G20-1402-FB-9085



      Mathias, Judge.


[1]   Tyrone Grayson (“Grayson”) was convicted in Marion Superior Court of Class

      B felony unlawful possession of a firearm by a serious violent felon. He appeals

      his conviction and argues that the trial court abused its discretion when it


      Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016                          Page 1 of 12
      admitted into evidence the handgun discovered during a warrantless search of

      his vehicle. Specifically, he argues that the officer lacked reasonable suspicion

      to conduct a Terry stop because the report of alleged illegal activity was

      provided by an anonymous tipster.

                                       Facts and Procedural History

[2]   On February 23, 2014, at approximately 5:20 a.m., Indianapolis Metropolitan

      Police Department Officer Jonathan Schultz (“Officer Schultz”) responded to a

      dispatch that an anonymous caller reported a person inside a silver or gray

      vehicle waving a firearm at Washington Point Apartments. When Officer

      Schultz arrived at the apartment complex, he saw a silver vehicle with its

      headlights off parked perpendicular to the parking spots. As the officer pulled

      into the parking lot and was driving toward the vehicle, the vehicle pulled into a

      parking space. The officer did not see any other silver or gray occupied vehicles

      in the parking lot.

[3]   Officer Schultz activated his rear emergency lights and parked his vehicle at an

      “angle towards where he was parked at, off to the side.”1 Tr. p. 71. Then the

      officer, who was in full uniform and carrying a flashlight, approached the

      driver’s side of the vehicle. The driver identified himself as Grayson. Officer




      1
       At the suppression hearing, Grayson’s passenger testified that Officer Schultz parked his vehicle “like at a
      cattycorner position” from behind. While the testimony is unclear, no one testified that Officer Shultz’s
      vehicle prevented Grayson from backing his vehicle out of its parking space. Tr. pp. 94, 97.

      Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016                            Page 2 of 12
      Schultz asked Grayson if he lived at the apartment complex, and Grayson

      stated that he did not but that his passenger did.

[4]   Next, Officer Schultz mentioned the dispatch about a person waving a gun. As

      he continued his conversation with Grayson, through the open driver’s side

      window, Officer Schultz observed the butt of a firearm underneath the driver’s

      seat between Grayson’s feet. Officer Shultz asked if any firearms were in the

      vehicle, and Grayson stated that there were not, a statement that was clearly a

      lie, based on Officer Schultz’s personal observation.


[5]   At about this time, Officer Michael Wagner-Gilbert (“Officer Wagner-Gilbert”)

      who also responded to the dispatch, arrived on the scene and approached the

      passenger side of the vehicle. Officer Schultz then asked Grayson to step out of

      the vehicle. He asked Grayson if he had a permit to carry a firearm, and

      Grayson replied that he did not.

[6]   Officer Schultz asked if he could look through the vehicle, and Grayson gave

      the officers permission to search. Officer Schultz placed Grayson in handcuffs

      and walked him to the rear of the vehicle. Officer Wagner-Gilbert looked into

      the driver’s side of the vehicle and, like Officer Schultz, Officer Wagner-Gilbert

      saw the butt of the firearm underneath the driver’s seat. Officer Wagner-Gilbert

      removed the firearm from the vehicle and placed it in an evidence bag. After he

      determined that Grayson had prior felony convictions, Officer Schultz arrested

      Grayson for unlawful possession of a firearm by a serious violent felon. The

      passenger in Grayson’s vehicle was released at the scene.


      Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016   Page 3 of 12
[7]   Grayson was subsequently charged with Class B felony unlawful possession of

      a firearm by a serious violent felon.2 Prior to trial, Grayson filed a motion to

      suppress the firearm found during the warrantless search. A hearing was held

      on the motion on August 6, 2014. In his post-hearing memorandum, Grayson

      claimed that the officer lacked reasonable suspicion to conduct a Terry stop and

      that he was not advised of his Pirtle rights before the vehicle was searched. In its

      response to Grayson’s arguments, the State conceded that Grayson was in

      custody when Officer Schultz “pulled his marked police vehicle up behind the

      silver vehicle that Grayson was operating.” Appellant’s App. p. 49. However,

      the court concluded that the officer had reasonable suspicion to believe criminal

      activity had occurred, and Pirtle warnings were not necessary because Officer

      Schultz had probable cause to search the vehicle after seeing the handgun

      between Grayson’s feet. Id. at 49-50.


[8]   Grayson’s bench trial was held on March 11, 2015. Grayson objected to the

      admission of the firearm for the reasons raised in the motion to suppress, and

      he also argued that the investigatory stop was unreasonable because it was

      based solely on an anonymous tip. Specifically, Grayson argued that the

      anonymous caller only reported a person waving a gun in a silver vehicle at the

      apartment complex and did not provide his or her name or address. The trial

      court overruled the objection and found Grayson guilty of Class B felony




      2
       During the search incident to arrest, cocaine was found on Grayson’s person. He was also charged with
      Class C felony possession of cocaine and a firearm. This count was dismissed at trial.

      Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016                       Page 4 of 12
       unlawful possession of a firearm by a serious violent felon. The trial court

       ordered him to serve twelve years executed in the Department of Correction.

       Grayson now appeals.3


                                                Standard of Review

[9]    Although Grayson filed a pre-trial motion to suppress, because he appeals

       following a completed trial, the issue is properly framed as whether the trial

       court abused its discretion in admitting the evidence. Clark v. State, 994 N.E.2d

       252, 259 (Ind. 2013). The admission of evidence is within the discretion of the

       trial court. Id. at 259-60. We will reverse a ruling on the admission of evidence

       only for an abuse of that discretion, which occurs only when the ruling is

       clearly against the logic and effect of the facts and circumstances and the error

       affects a party's substantial rights. Id. at 260.


                                            Discussion and Decision

[10]   The Fourth Amendment guarantees “[t]he right of the people to be secure in

       their persons . . . against unreasonable searches and seizures.”4 “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.” Id. at 261. Consensual encounters in which a citizen




       3
        On February 11, 2016, we held oral argument in this case at the Indiana University Robert H. McKinney
       School of Law. We commend counsel for the quality of their advocacy and extend our thanks to the faculty,
       especially Professor Schumm, to the students, and to staff for their hospitality.
       4
           Grayson does not challenge the stop under Article One, Section Eleven of the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016                           Page 5 of 12
       voluntarily interacts with a police officer do not compel Fourth Amendment

       analysis. Id. Nonconsensual encounters 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.


[11]   Specifically, law enforcement officers may stop and briefly detain a person if the

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

       is about to occur or 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 (1968)).

       Specifically, in Terry the United States Supreme Court held:


               where a police officer observes unusual conduct which leads him
               reasonably to conclude in light of his experience that criminal
               activity may be afoot and that the persons with whom he is
               dealing may be armed and presently dangerous, where in the
               course of investigating this behavior he identifies himself as a
               policeman and makes reasonable inquiries, and where nothing in
               the initial stages of the encounter serves to dispel his reasonable
               fear for his own or others’ safety, he is entitled for the protection
               of himself and others in the area to conduct a carefully limited
               search of the outer clothing of such persons in an attempt to
               discover weapons which might be used to assault him.


       392 U.S. at 30.


[12]   However, “‘[s]uch 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 the whole picture, the


       Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016     Page 6 of 12
       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.


[13]   Grayson argues that the trial court abused its discretion when it admitted the

       firearm into evidence because the officers lacked reasonable suspicion to

       conduct a Terry stop.5 Specifically, he argues that the anonymous tip did not

       provide any details beyond what the general public might observe and that

       Officer Schultz’s observations did not corroborate the anonymous tip.


[14]       “[A]n anonymous tip alone is not likely to constitute the reasonable suspicion

       necessary for a valid Terry stop.” Sellmer v. State, 842 N.E.2d 358, 361 (Ind.

       2006). The United States Supreme Court has similarly concluded that an

       “anonymous tip alone seldom demonstrates the informant’s basis of knowledge

       or veracity,” but “there are situations in which an anonymous tip, suitably

       corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable

       suspicion to make the investigatory stop.’” Florida v. J.L., 529 U.S. 266, 270

       (2000) (citation omitted).

[15]   In the case before us, the anonymous tipster reported a person inside a silver or




       5
         The State does not argue that the encounter was consensual but refers to it as an investigatory stop
       throughout its brief.

       Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016                            Page 7 of 12
       gray vehicle at Washington Point Apartments waving a firearm. Certain details

       provided by the anonymous tipster were corroborated by Officer Schultz. When

       he arrived at Washington Point Apartments shortly after he heard the dispatch,

       the officer observed a silver or gray vehicle with its headlights off parked

       perpendicular to the parking spots. As the officer pulled into the parking lot and

       was driving toward the vehicle, the vehicle pulled into a parking space. The

       officer did not see any other occupied silver or gray vehicles in the dark parking

       lot at 5:20 a.m. A reasonable inference can be made that vehicular traffic was

       minimal given the time of day.


[16]   When we consider the reasonableness of this investigatory stop, we “must strike

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

       security free from arbitrary interference by law [enforcement] officers.’” Rutledge

       v. State, 28 N.E.3d 281, 290 (Ind. Ct. App. 2015) (quoting Carter v. State, 692

       N.E.2d 464, 466 (Ind. Ct. App. 1997) (quoting Brown v. Texas, 443 U.S. 47, 50

       (1979))). Protecting the public from gun violence is a legitimate and paramount

       concern of law enforcement, and the State is legitimately concerned with

       deterring gun violence and possession of firearms by unlicensed individuals.

       These concerns and the danger of the allegations of the anonymous tipster

       warranted an immediate response by law enforcement officers for the safety of

       the general public.

[17]   Here, Officer Schultz responded immediately to a dispatch involving an

       individual “waving a gun” just before dawn, while it was still dark. Cf. State v.

       Renzulli, 958 N.E.2d 1143, 1148 (Ind. 2011) (observing that the concerned

       Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016   Page 8 of 12
       citizen reported a drunk driver, which warranted an “immediate response by

       the police for the safety of the general public”). Officer Schultz parked his

       vehicle near and at an angle to Grayson’s, turned on the vehicle’s rear

       emergency lights, and approached Grayson’s vehicle in full uniform, armed,

       and using a flashlight, in order to ask Grayson a few questions based on the

       anonymous tip. This is reasonable, appropriate, and laudable community

       policing, the type of law enforcement activity that is consistent with the balance

       citizens want struck between personal independence and personal safety. See

       R.H. v. State, 916 N.E.2d 260, 268 (Ind. Ct. App. 2009) (stating “[a] healthy,

       civil society is most robust when it feels safe and when that feeling of safety is

       validated through interaction with vigilant and responsive law enforcement

       engaged in the important business of policing neighborhoods within a

       community”) (Mathias, J., concurring), trans. denied.


[18]   Grayson relies on Florida v. J.L., 529 U.S. 266 (2000), in support of his

       argument that the anonymous tip was not sufficiently corroborated by Officer

       Schultz, and therefore, the officer lacked reasonable suspicion to make an

       investigatory stop. In J.L., an anonymous caller reported that a young black

       male wearing a plaid shirt and standing at a particular bus stop was carrying a

       gun. When Miami police officers arrived at the bus stop several minutes later,

       they observed three black males, and one of the three, later identified as J.L.,

       was wearing a plaid shirt. The officers did not see a firearm or any other

       threatening or unusual movement. One of the officers approached J.L., ordered

       him to put his hands on the bus stop, frisked him, and seized a gun from his


       Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016     Page 9 of 12
       pocket. After concluding that the officers lacked reasonable suspicion necessary

       to justify a Terry stop, the Supreme Court held that “an anonymous tip lacking

       indicia of reliability . . . does not justify a stop and frisk whenever and however

       it alleges the illegal possession of a firearm. Id. at 274.


[19]   In our case, the tipster alleged that an individual was waving a gun. When the

       officer arrived at the apartment complex and approached the vehicle described

       in the dispatch, the vehicle slowly moved into a parking spot. Finally, this case

       does not involve a stop and frisk. Officer Schultz simply approached the vehicle

       and asked Grayson a couple of questions, and while doing so, saw the firearm

       in plain sight, belying Grayson’s claims that no weapon was in the car. For

       these reasons, we are not persuaded by Grayson’s reliance on J.L.


[20]   Finally, we do not believe our holding is inconsistent with Sellmer, another case

       upon which Grayson relies. In Sellmer, an anonymous tipster reported that a

       silver Dodge parked backwards in a parking lot in front of a Noblesville hair

       salon contained a large amount of drugs, and the court observed:


               [P]recedent dictates that for an anonymous tip to constitute the
               reasonable suspicion necessary for a valid investigatory stop, at
               least two conditions must be met. First, “significant aspects of the
               tip [must be] corroborated by the police.” Such corroboration
               requires that an anonymous tip give the police something more
               than details regarding facts easily obtainable by the general public
               to verify its credibility. . . . Second, an anonymous tip, if it is to
               be considered reliable enough to constitute reasonable suspicion
               to conduct an investigatory stop, must also demonstrate an
               intimate familiarity with the suspect’s affairs and be able to
               predict future behavior.

       Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016    Page 10 of 12
       842 N.E.2d at 361 (internal citations omitted). The Sellmer Court determined

       that the anonymous tip “lacked any information that would allow the police to

       corroborate the caller’s claim that illegal activity was afoot” and did not

       “provide the Noblesville police any information regarding Sellmer’s future acts

       that would bolster its reliability.” Id. at 362.


[21]   A comparison of the underlying facts in Sellmer and those before us is revealing

       and compelling. The tipster in Sellmer reported ongoing, non-violent, criminal

       conduct, i.e. possession of drugs. The anonymous tipster in this case reported

       witnessing criminal conduct risking serious bodily injury to those in the

       immediate vicinity. A report of an individual waving a gun involves an

       immediate threat to the general public. This is an allegation that warrants

       “immediate response by the police for the safety of the general public[.]” See

       Renzulli, 958 N.E.2d at 1148, 1150 (involving a report of a drunk driver and

       concluding that there was reasonable suspicion to justify an investigatory stop

       where “the circumstances include[d] the time of day with little vehicular traffic,

       vehicle color and make, location of the vehicle, and almost immediate response

       and arrival at the scene by the police”); Bogetti v. State, 723 N.E.2d 876, 879

       (Ind. Ct. App. 2000) (concluding that there was reasonable suspicion to justify

       an investigatory stop where an unidentified individual told officers that Bogetti

       was possibly intoxicated and had just exited a McDonald’s restaurant driving a

       white semi truck); But see Berry v. State, 766 N.E.2d 805, 810 (Ind. Ct. App.


       Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016   Page 11 of 12
       2002) (concluding that the anonymous tip lacked sufficient indicia of reliability

       because the officer did not observe any activity to corroborate the tip that a

       white male in a green jacket waving a firearm in a parking lot threatened to

       “cap someone” and drove away in an S10 Blazer), trans. denied. Here, Grayson

       also lied to Officer Schultz about whether he had a firearm early in their

       conversation, precisely while Officer Schultz observed the butt of a gun in plain

       view on the driver’s side floorboard of the vehicle.


                                                   Conclusion

[22]   For all of these reasons, we conclude that Officer Schultz had reasonable

       suspicion to justify the investigatory stop at issue in this case. The anonymous

       tip alleged personal observation of gun-related recklessness and the serious risk

       of gun-related violence. Before he approached Grayson’s vehicle, the movement

       of Grayson’s vehicle when Officer Schultz entered the parking lot confirmed the

       likelihood that an occupant of the vehicle was involved in the criminal activity

       alleged. Officer Schultz’s response was also appropriate as an act of community

       policing and in light of the State’s compelling interest in protecting the general

       public from incipient gun violence. Because the investigatory stop was proper,

       the trial court did not abuse its discretion when it admitted into evidence the

       firearm discovered during that stop.


[23]   Affirmed.


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

       Court of Appeals of Indiana | Opinion 49A05-1505-CR-350 | March 8, 2016   Page 12 of 12
