                                                               FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                    Aug 07 2012, 8:57 am
court except for the purpose of
establishing the defense of res judicata,                           CLERK
collateral estoppel, or the law of the case.                      of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                   GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                RYAN D. JOHANNINGSMEIER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

DARRELL LAWRENCE,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A02-1110-CR-938
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Steven R. Eichholtz, Judge
                           Cause No. 49G20-1106-FB-43058


                                      August 7, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant/Cross-Appellee, Darrell Lawrence (Lawrence), appeals his

conviction for two Counts of resisting law enforcement, Ind. Code § 35-44-3-3(a).

Appellee-Plaintiff/Cross-Appellant, the State of Indiana, cross-appeals the trial court’s

involuntary dismissal of Count I, possession of cocaine, a Class B felony, I.C. § 35-48-4-

6.

      We reverse in part, dismiss in part, and remand.

                                        ISSUES

      Lawrence raises one issue on appeal, which we restate as: Whether the evidence

presented by the State to support his conviction for one Count of resisting law

enforcement was improperly admitted as fruit of the poisonous tree.

      On Cross-Appeal, the State presents one issue, which we restate as: Whether the

trial court properly dismissed Count I, possession of cocaine, in accordance with Indiana

Trial Rule 41(B).

                       FACTS AND PROCEDURAL HISTORY

      Around 12:30 p.m. on June 16, 2011, Susan Smith (Smith), the manager at the

Pinnacle Square Apartments in Marion County, Indiana, called 911 because of a loud

disturbance in the apartment’s recreation area. She noted that there were a lot of people

gathering who were loud and argumentative. She described the group as “a large group

of black men and women.” (Transcript p. 10). Smith did not see whether Lawrence was

involved.


                                            2
       Several police officers responded to the 911 call at the apartment complex, which

is known as a high crime area. When the City of Lawrence Police Officers Michael

Evans (Officer Evans) and Ryan Romeril (Officer Romeril) arrived, they heard people

yelling and saw Smith pointing to the northeast side of the complex. As the Officers

began to walk toward that part of the complex, Officer Tom Ashcraft yelled at them that

“they were running southwest through the courtyard.” (Tr. p. 16). Officer Evans saw

three black males, including Lawrence, walk hurriedly out of the courtyard. The Officer

noticed that “[a]ll of them seemed to be trying to catch their breath,” with one individual

looking “visibly tired like he had been exerting himself somewhat.” (Tr. pp. 16-17).

       Officer Evans ordered the three males to stop and started questioning them.

Lawrence told the Officers that he did not live at the apartment complex but was going to

his girlfriend’s house. However, Lawrence could not say where his girlfriend lived.

Officer Romeril asked Lawrence for identification. Lawrence told the Officer that he did

not have identification and he “immediately” started to move his hand towards his

pockets. (Tr. p. 18). Officer Evans ordered him to put his hands in the air and told

Lawrence that he was going to check and make sure that he did not have identification.

Lawrence put his left hand up but kept his right hand by his pocket. Officer Evans

grabbed Lawrence’s right hand and moved it into the air. Officers Evans began a pat-

down search. When he put his hands on Lawrence’s right pant’s pocket, Lawrence

reached down and swatted his hand away. The Officer ordered Lawrence to keep his

hand in the air; Lawrence complied and the pat-down search continued. Officer Evans

felt what he believed to be little baggies; he reached into Lawrence’s pocket and pulled


                                            3
the tip of the baggie out. Lawrence swatted the baggie out of the Officer’s hand and took

off running.

       Officer Romeril gave chase while yelling for Lawrence to stop. He repeated

“Stop, police, or you will be tased.” (Tr. p. 49). Lawrence stopped, laid down on the

ground, and allowed Officer Romeril to handcuff him. The Officers recovered small,

white bags from Lawrence’s pocket.

       On June 20, 2011, the State filed an Information charging Lawrence with Count I,

possession of cocaine within 1,000 feet of a family housing complex, a Class B felony,

I.C. § 35-48-4-6(b)(2); and Counts II & III, resisting law enforcement, Class A

misdemeanors, I.C. § 35-44-3-3.      On August 1, 2011, Lawrence filed a motion to

suppress evidence obtained from the search and seizure of his person. On September 6,

2011, the trial court conducted a bench trial during which it also addressed Lawrence’s

motion to dismiss. During trial, the trial court sustained Lawrence’s objection to the

introduction of cocaine obtained during the search of his pockets. At the close of the

evidence, the trial court involuntarily dismissed Count I pursuant to Ind. Trial Rule 41(B)

as it found the Officers’ Terry stop illegal but denied his motion to suppress the evidence

related to the resisting law enforcement Counts as fruit of the poisonous tree. The trial

court found Lawrence guilty of two Counts of resisting law enforcement. On September

19, 2011, the trial court sentenced Lawrence to one year executed on each Count, with

sentences to run concurrently.

       Lawrence now appeals and the State cross-appeals.         Additional facts will be

provided as necessary.


                                            4
                               DISCUSSION AND DECISION

                                       CROSS-APPEAL

       Because the State presents us with a procedural question that is better suited to be

analyzed prior to Lawrence’s appeal, we will address the State’s issue first. In its cross-

appeal, filed April 16, 2012, the State asserts that “the trial court incorrectly excluded

cocaine found during a Terry frisk” of Lawrence. (Appellee’s Br. p. 9). Looking at the

totality of the circumstances, the State claims that the Terry stop and subsequent search

of Lawrence were reasonable and requests this court to reverse the trial court’s exclusion

of the cocaine and its dismissal of Count I. Lawrence responds to the State by filing a

Verified Motion to Dismiss1 the State’s cross-appeal and by way of a reply brief. In

essence, Lawrence contends that because Count I was involuntarily dismissed pursuant to

T.R. 41(B), the State’s cross-appeal can only proceed if authorized by I.C. § 35-38-4-2,

which it is not.

       When ruling on a motion for an involuntary dismissal in a bench trial, the trial

court may reconcile, reject, accept or weigh the evidence and determine the credibility of

the witnesses and thereby make an ultimate conclusion in the case based solely upon the

evidence presented by the State. Workman v. State, 716 N.E.2d 445, 448 (Ind. 1999). A

motion for involuntary dismissal in a criminal case should be granted if the State fails to

prove the essential elements of the offense beyond a reasonable doubt. Id.




1
 Lawrence’s Verified Motion to Dismiss was held in abeyance by our motions panel with the decision
assigned to this writing panel. We will consolidate Lawrence’s argument formulated in his Verified
Motion with Lawrence’s reply brief and address the issue in this opinion.


                                                5
       The right of the State to appeal from a criminal proceeding is strictly limited by

authorization of statute. State v. Smith, 562 N.E.2d 1308, 1309 (Ind. Ct. App. 1990).

Pursuant to Indiana Code section 35-38-4-2, appeals to this court may be taken by the

State in the following cases:

       (1) From an order granting a motion to dismiss an indictment or
       information.
       (2) From an order or judgment for the defendant, upon his motion for
       discharge because of delay of his trial not caused by his act, or upon his
       plea of former jeopardy, presented and ruled upon prior to trial.
       (3) From an order granting a motion to correct errors.
       (4) Upon a question reserved by the state, if the defendant is acquitted.
       (5) From an order granting a motion to suppress evidence, if the ultimate
       effect of the order is to preclude further prosecution.
       (6) From an interlocutory order if the trial court certifies and the court on
       appeal or a judge thereof finds on petition that:
              (A) the appellant will suffer substantial expense, damage, or injury if
              the order is erroneous and the determination thereof is withheld until
              after judgment;
              (B) the order involves a substantial question of law, the early
              determination of which will promote a more orderly disposition of
              the case; or
              (C) the remedy by appeal after judgment is otherwise inadequate.

The State now asserts that its cross-appeal is authorized under the statute’s first prong

because the involuntary dismissal order was an order dismissing Count I of the

Information. Alternatively, it claims that I.C. § 35-38-4-2(4) is applicable because the

question was reserved by the State.

       Indiana Code section 35-38-4-2(1) allows the State to appeal an order granting a

motion to dismiss an indictment or information. However, as appropriately pointed out

by Lawrence, here, no motion to dismiss was filed, rather, he had filed a motion to

suppress. The trial court involuntarily dismissed Count I during the bench trial after



                                             6
hearing the State’s evidence but proceeded on Counts II and III.           Even assuming,

arguendo, the instant situation can be characterized as falling within section 1 of the

Statute, the application of this section does not provide for the appeal of an order

dismissing only one Count of the Information. State v. Campos, 845 N.E.2d 1074, 1076

(Ind. Ct. App. 2006), reh’g denied, trans. denied (a motion to dismiss an information

must be a judgment which finally disposes of the whole case, not merely a ruling leaving

other counts upon which the trial may proceed).

       With respect to the application of I.C. § 35-38-4-2(4), which allows the State to

appeal “[u]pon a question reserved by the [S]tate, if the defendant is acquitted,” we reach

a similar result. The purpose of this section, permitting appeals on questions reserved by

the State, is to obtain opinions of law which shall declare a rule for the guidance of trial

courts on questions likely to arise again in criminal proceedings. State v. Luna, 932

N.E.2d 210, 212 (Ind. Ct. App. 2010). However, when a defendant is acquitted and the

State appeals a reserved question of law, only questions of law are considered by this

court. Id. at 213. Consequently, factual determinations are not appropriate on appeal as a

reserved question of law. Id.

       The State now asserts that it is “only challenging the court’s legal conclusion that

reasonable suspicion did not exist to justify the Terry stop and frisk.” (State’s Response

Motion, p. 4). By using the phrase “legal conclusion,” the State apparently seeks to bring

itself within the purview of questions of law, as envisioned by the statute. Obviously, the

question of whether the State effected a valid Terry stop and subsequent frisk rests upon

the facts surrounding this particular situation. See State v. Campbell, 905 N.E.2d 51, 54


                                             7
(Ind. Ct. App. 2009) (to evaluate the validity of a stop, the totality of the circumstances

must be considered). Therefore, the State does not present us with a legal question upon

which it can avail itself of this appeal.

        As the State is not allowed to appeal the trial court’s involuntary dismissal of

Count I, we need not reach the merits of the State’s cross-appeal. Consequently, we

dismiss the State’s cross-appeal.

                                              APPEAL

        In his appeal, Lawrence contends that the trial court abused its discretion when it

admitted evidence that he hit Officer Evans’ hand during the pat-down search.2

Lawrence maintains the doctrine of the fruit of the poisonous tree excludes this evidence

as it was a continuation of the unlawful Terry stop.

        Although Lawrence initially challenged the admissibility of the evidence through a

motion to suppress, he now challenges the admissibility of the evidence at trial.

Regardless, our standard of review of rulings on the admissibility of evidence is the same

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

Jackson v. State, 890 N.E.2d 11, 15 (Ind. Ct. App. 2008). We do not reweigh the

evidence and we consider conflicting evidence most favorable to the trial court’s ruling.

Id. However, we must also consider the uncontested evidence favorable to the defendant.

Id.




2
  Lawrence only appeals his conviction of Count III, resisting law enforcement by resisting Officer Evans
in the execution of his duties. Lawrence does not appear to appeal his conviction of Count II, resisting
law enforcement by fleeing from Officer Romeril.


                                                   8
       It is unclear whether Lawrence is pursuing his claim under the Fourth Amendment

of the United States Constitution or is relying on Article I, Section 11 of the Indiana

Constitution. However, regardless the doctrine under which we proceed, the outcome is

the same.

       Lawrence focuses on his conviction for resisting Officer Evans by forcible

resistance, which provides that a person who “forcibly resists, obstructs, or interferes

with a law enforcement officer while the officer is lawfully engaged in the execution of

the officer’s duties” commits resisting law enforcement. See I.C. § 35-44-3-3(a)(1).

Indiana case law follows the modern interpretation of resisting law enforcement and

establishes that a private citizen may not use force in resisting a peaceful arrest by an

individual he knows, or had reason to know is a police officer performing his duties

regardless of whether the arrest in question is lawful or unlawful. Cole v. State, 878

N.E.2d 882, 886-87 (Ind. Ct. App, 2007). This is because a citizen can seek remedy for a

police officer’s unwarranted and illegal intrusion into the citizen’s private affairs by

bringing a civil action in the courts against the officer and the governmental unit that the

officer represents. Id. at 887.

       Although the State relies on these principles to claim that even though the original

stop might have been unlawful, Lawrence had no right to forcibly resist the pat-down by

Officer Evans. In response, Lawrence focuses on the exclusionary rule, contending that

the illegal Terry stop was not sufficiently attenuated to dissipate any taint that the stop

carried onto the search of Lawrence’s pant’s pocket.




                                             9
       The exclusionary rule is a judicially created remedy designed to safeguard the

right of the people to be free from unreasonable searches and seizures. United States v.

Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The doctrine protects

citizens by deterring police misconduct by providing that evidence obtained through an

illegal search and seizure is inadmissible at trial. State v. Mason, 829 N.E.2d 1010, 1019

(Ind. Ct. App. 2005). However, not all evidence is fruit of the poisonous tree and subject

to suppression simply because it would not have come to light but for illegal police

activity. Quinn v. State, 792 N.E.2d 597, 601 (Ind. Ct. App. 2003), trans. denied. Fourth

Amendment jurisprudence has recognized an exception to the exclusionary rule in cases

where the connection between the illegal police conduct and the subsequent discovery of

evidence becomes so attenuated that the deterrent effect of the exclusionary rule no

longer justified its cost. Brown v. Illinois, 422 U.S. 590, 609, 95 S.Ct. 2254, 45 L.Ed.2d

416 (1975). Specifically, in some situations, the causal chain is sufficiently attenuated to

dissipate any taint of an illegal stop, allowing the evidence seized during a search to be

admitted. Quinn, 792 N.E.2d at 601. In determining whether the attenuation doctrine

applies, three factors are analyzed: “(1) the time elapsed between the illegality and the

acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the

purpose and flagrancy of the official misconduct. Id. The important consideration in the

third factor is whether the evidence came from the exploitation of that illegality or instead

by means sufficiently distinguishable to be purged of the primary taint. Id.

       Analyzing the first factor, we acknowledge that there was no time lapse between

the illegal stop and the discovery of the cocaine. In fact, it is during the illegal stop that


                                             10
Officer Evans frisked Lawrence and Lawrence pushed the Officer’s hand away. With

respect to the second factor, we cannot find any intervening factors that would dissipate

the taint. As for the third factor, Officer Evans stopped Lawrence merely based on a

report of loud argument in a purported high crime neighborhood. There is no evidence

that Lawrence participated in the argument; rather, Lawrence was only stopped because

he was walking through the apartment complex apparently out of breath. His resistance

occurred simultaneously with the unconstitutional search, was a response to the police

misconduct, and had a direct and immediate causal connection to this misconduct. As

such, the pat-down by Officer Evans was not sufficiently attenuated to dissipate any taint

of the illegal stop and therefore, the evidence of Lawrence’s actions during the frisk

cannot be admitted under the Fourth Amendment.

       With respect to the Indiana Constitution, we recently held in Trotter v. State, 933

N.E.2d 572, 582 (Ind. 2010), that “the attenuation doctrine as currently exists as a

separate analysis to circumvent the exclusionary rule for Fourth Amendment purposes

has no application under the Indiana Constitution.” In its analysis, the Trotter court,

relying on Webster v. State, 908 N.E.2d 289, 293 (Ind. Ct. App. 2009), trans. denied,

surmised that a defendant’s actions during a police encounter are considered as part of the

totality of the circumstances in determining whether the police acted reasonably and

noted that our supreme court has declared that the focus of the exclusionary rule under

the Indiana Constitution is the reasonableness of the police conduct. Id. at 581.

       In Webster, the defendant was a passenger in a vehicle pulled over for speeding.

Webster, 908 N.E.2d at 290. Before the vehicle was pulled over by the officer, the


                                            11
vehicle stopped and the defendant exited the vehicle so she could go to work nearby. Id.

The defendant watched the traffic stop from across the street. Id. The officer conducting

the stop instructed the defendant to return to the vehicle because the officer thought the

vehicle registration might be in her purse. Id. at 291. As the defendant crossed the street,

the officer noticed the bottom of the purse appeared to be stretched as if to conceal a gun.

Id. The officer began to approach the defendant telling her to not put her hands in her

purse. Id. Nevertheless, the defendant began to reach in her purse, saying she was

getting her ID, even though the officer told her again not to reach in her purse. Id. The

officer ran to the defendant and grabbed her and her purse, telling the defendant to release

the purse. Id. However, the defendant refused and began to pull away from the officer.

Id. The officer took the defendant to the ground, handcuffed her, and seized the purse.

Id. Upon opening the purse, the officer found cocaine. Id. The Webster court held that

the search of the purse was unreasonable, concluding the officer’s concern about the

stretching of the purse was clearly based on mere speculation. Id. at 292.

       Based on the totality of the circumstances before us, we find Officer Evans’ search

of Lawrence’s pant’s pocket to be unreasonable. Officer Evans stopped Lawrence based

on a vague report of a loud discussion between a group of unidentified persons. Officer

Evans saw Lawrence walking through the apartment complex, apparently out of breath,

stopped Lawrence and asked for his identification. When Lawrence failed to produce

any, Officer Evans insisted on doing a pat-down search. While patting down Lawrence,

Lawrence pushed Officer Evans’ hand away when it approached the vicinity of his pant’s

pocket, containing cocaine. Based on the totality of the circumstances, we conclude that


                                            12
Lawrence’s stop and subsequent pat-down search was not reasonable and evidence

obtained therefrom must be suppressed.            Consequently, we reverse Lawrence’s

conviction for Count III, resisting law enforcement by force, and remand to the trial

court.

                                      CONCLUSION

         Based on the foregoing, we conclude that the evidence presented by the State to

support his conviction for resisting law enforcement was improperly admitted as fruit of

the poisonous tree. We dismiss the State’s Cross-appeal.

         We reverse in part, and dismiss in part, and remand.

NAJAM, J. and DARDEN, S. J. concur




                                             13
