                                                   Oct 21 2014, 10:27 am


FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

CORY A. SPREEN                                 GREGORY F. ZOELLER
Fort Wayne, Indiana                            Attorney General of Indiana

                                               J.T. WHITEHEAD
                                               Deputy Attorney General
                                               Indianapolis, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

GEORON HARRIS,                                 )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )       No. 02A03-1402-CR-73
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable John F. Surbeck, Jr., Judge
                         The Honorable Robert E. Ross, Magistrate
                             Cause No. 02D04-1305-CM-2508


                                    October 21, 2014

                             OPINION - FOR PUBLICATION

BRADFORD, Judge
                                    CASE SUMMARY

       Fort Wayne police responded to a dispatch of an armed individual who had pointed a

gun at a female and located Appellant-Defendant Georon Harris, who matched the

description in the dispatch, sitting in front of an apartment at 810 Oaklawn Court (“the

Apartment”). As two police officers approached, they saw Harris remove a black handgun

from his waistband, open the front door of the Apartment, place the gun on the floor just

inside the door, and close the door. The officers could not see into the Apartment. After

securing Harris, one of the officers opened the Apartment’s door, reached inside, and

retrieved the handgun from the floor. The State charged Harris with Class A misdemeanor

carrying a handgun without a permit. Harris filed a motion to suppress the gun, which

motion the trial court denied. Following trial, a jury found Harris guilty as charged, and the

trial court sentenced him to 210 days of incarceration.

       Harris contends that the entry into the Apartment to retrieve the gun violated his rights

pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 11

of the Indiana Constitution. This case calls upon us to examine the question of under what

circumstances the presence of a firearm in the vicinity obviates the need to obtain a search

warrant in order to seize it from a residence. Under the circumstances of this case, we

conclude that the State has established that exigent circumstances relieved it of the need to

obtain a search warrant. We also conclude that the seizure of the gun from the Apartment

was reasonable pursuant to the Indiana Constitution.




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                            FACTS AND PROCEDURAL HISTORY1

        At approximately 11:00 p.m. on May 30, 2013, Fort Wayne Police Officers Benjamin

Miller and Nicholas Lichtsinn, both in full uniform, were dispatched to a report of an armed

individual who had pointed a gun at a female and who was driving a white Bonneville. The

suspect was described as a “male black in a white shirt with braid dreadlocks.” Tr. p. 28.

Officer Lichtsinn had just seen a white Bonneville, so he returned to the area where he had

seen it and observed a white Bonneville parked near the entrance to the Chapel Oaks

apartments. The Bonneville was warm to the touch, and, as Officer Lichtsinn verified that

nobody was inside the vehicle, he saw Harris, who matched the description of the armed

individual, sitting in front of the Apartment. Meanwhile, Officer Miller had arrived. (Tr.

49). From approximately 100 to 120 feet away, the officers observed Harris stand, remove a

black handgun from his waistband, open the door of the Apartment, place the gun on the

floor inside, close the door, and sit down again. The door to the Apartment had no window,

and the views through all of the windows were obscured by closed blinds. The officers

approached Harris, ordered him to the ground, and handcuffed him. Officer Lichtsinn

opened the Apartment’s door, retrieved the handgun from the floor just inside, and, in doing

so, “might have gone a step into [the Apartment].” Supp. Tr. p. 24. Officer Lichtsinn

noticed a teenaged female sitting on a couch inside the Apartment, approximately five feet

from the gun.



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           There is no indication that either party incorporated the suppression record into the trial record. Both
Harris and the State, however, rely on evidence collected at the suppression hearing. Under the circumstances,
we shall treat the suppression record as effectively incorporated into the trial record.

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       On May 31, 2013, the State charged Harris with Class A misdemeanor carrying a

handgun without a license. On August 20, 2013, Harris filed a motion to suppress evidence

related to Officer Lichtsinn’s entry into the Apartment. On October 1, 2013, following a

hearing, the trial court denied Harris’s motion to suppress. Following a trial held on January

30, 2013, a jury found Harris guilty as charged, and the trial court sentenced Harris to 210

days of incarceration.

                                        DISCUSSION

                    Whether the Trial Court Abused Its Discretion in
                     Admitting Evidence Found in the Apartment

       Harris is appealing from the allegedly erroneous admission of the gun at trial. The

admissibility of evidence is within the sound discretion of the trial court. Curley v. State, 777

N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We will only reverse a trial court’s

decision on the admissibility of evidence upon a showing of an abuse of that discretion. Id.

An abuse of discretion may occur if the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before the court, or if the court has misinterpreted the

law. Id. The Court of Appeals may affirm the trial court’s ruling if it is sustainable on any

legal basis in the record, even though it was not the reason enunciated by the trial court.

Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh

the evidence and consider the evidence most favorable to the trial court’s ruling. Hirshey v.

State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied. Harris contends that the

admission of the gun found in the Apartment violates both the Fourth Amendment to the

United States Constitution and Article I, Section 11 of the Indiana Constitution.

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                                  I. Fourth Amendment

       The Fourth Amendment to the United States Constitution provides that “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.” “The overriding function of the Fourth Amendment

is to protect personal privacy and dignity against unwarranted intrusion by the State.”

Schmerber v. California, 384 U.S. 757, 767 (1966). “In Wolf [v. People of State of Colorado,

338 U.S. 25, 27 (1949) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961)]

we recognized ‘(t)he security of one’s privacy against arbitrary intrusion by the police’ as

being ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’” Id.

                                  Exigent Circumstances

       The State argues, and Harris disputes, that the seizure of the gun from the Apartment

was justified by exigent circumstances, which is a recognized exception to the warrant

requirement of the Fourth Amendment:

       One exception allows police to dispense with the warrant requirement in the
       presence of exigent circumstances. The warrant requirement becomes
       inapplicable where the “‘exigencies of the situation’ make the needs of law
       enforcement so compelling that the warrantless search is objectively
       reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385,
       393-94, 98 S. Ct. 2408, 2414, 57 L. Ed. 2d 290, 301 (1978). Among the
       exigencies that may properly excuse the warrant requirement are threats to the
       lives and safety of officers and others and the imminent destruction of
       evidence. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 1690,
       109 L. Ed. 2d 85, 95 (1990). Law enforcement may be excused from the
       warrant requirement because of exigent circumstances based on concern for
       safety as long as the State can prove that a delay to wait for a warrant would

                                              5
       gravely endanger the lives of police officers and others. Warden v. Hayden,
       387 U.S. 294, 298-99, 87 S Ct. 1642, 1646, 18 L. Ed. 2d 782, 787 (1967); see
       also Geimer v. State, 591 N.E.2d 1016, 1019 (Ind. 1992).

Holder v. State, 847 N.E.2d 930, 936-37 (Ind. 2006).

       Under the circumstances of this case, we conclude that exigent circumstances justified

Officer Lichtsinn’s seizure of the handgun. Harris placed the handgun inside the Apartment,

into which the police officers could not see. As such, the officers had no way of knowing if

there was anybody in the Apartment who could have concealed or used the handgun to open

fire on the police officers who were in the vicinity of the front door and porch. Moreover,

any young children who happened to be in the Apartment would have had easy access to the

handgun, placing them and others in obvious danger. Despite the fact that the officers had no

positive indications that anybody was in the Apartment, we conclude that the extremely

dangerous nature of the handgun and the potential for evidence tampering are sufficient to

establish exigent circumstances. See, e.g., U.S. v. Webb, 83 F.3d 913, 917 (7th Cir. 1996)

(upholding warrantless search of car based on exigent circumstances when defendant tossed

gun in trunk of car because gun could easily fire and was accessible to passersby). We

conclude that the seizure of the gun did not run afoul of the Fourth Amendment.

                                 II. Article I, Section 11

       Harris also contends that the seizure of the handgun was unreasonable under the

Indiana Constitution. Article I, Section 11, of the Indiana Constitution provides that

       [t]he right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable search or seizure, shall not be violated; and no
       warrant shall issue, but upon probable cause, supported by oath or affirmation,


                                             6
       and particularly describing the place to be searched, and the person or thing to
       be seized.

       The Indiana Supreme Court has noted that

              [w]hile almost identical in wording to the federal Fourth Amendment,
       the Indiana Constitution’s Search and Seizure clause is given an independent
       interpretation and application. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.
       2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999); Moran v. State,
       644 N.E.2d 536, 540 (Ind. 1994). To determine whether a search or seizure
       violates the Indiana Constitution, courts must evaluate the “reasonableness of
       the police conduct under the totality of the circumstances.” Litchfield v. State,
       824 N.E.2d 356, 359 (Ind. 2005) (citing Moran, 644 N.E.2d at 539). “We
       believe that the totality of the circumstances requires consideration of both the
       degree of intrusion into the subject’s ordinary activities and the basis upon
       which the officer selected the subject of the search or seizure.” Id. at 360. In
       Litchfield, we summarized this evaluation as follows:

          In sum, although we recognize there may well be other relevant
          considerations under the circumstances, we have explained
          reasonableness of a search or seizure as turning on a balance of: 1) the
          degree of concern, suspicion, or knowledge that a violation has
          occurred, 2) the degree of intrusion the method of the search or seizure
          imposes on the citizens’ ordinary activities, and 3) the extent of law
          enforcement needs.

       Id. at 361.

Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005).

       Under the totality of the circumstances, while focusing on the three factors mentioned

in Litchfield, we conclude that Officer Lichtsinn’s seizure of the handgun was reasonable.

The degree of suspicion that a violation had occurred was high. The officers were dispatched

to respond to a report of an individual pointing a handgun at another and soon found Harris, a

person closely matching the description of the alleged perpetrator. At the time, pointing a

firearm at another person was a Class D felony, or a Class A misdemeanor if the firearm was


                                              7
unloaded. See Ind. Code § 35-47-4-3 (2012). As the officers approached, they both observed

Harris remove a handgun from his waistband and place it just inside the door to the

Apartment.

       Moreover, the degree of intrusion was slight. By the time Officer Lichtsinn seized the

handgun, Harris was already handcuffed and it was not seized following an invasive search

of his person. There is nothing in the record to suggest that Harris lived in the Apartment or

had any other interest in it. The actual physical intrusion into the Apartment was slight, as

Officer Lichtsinn indicated that he took perhaps a step inside. Finally, the needs of law

enforcement to secure the handgun were great, as neither officer was able to ascertain if

anybody was in the Apartment who could access the gun. We conclude that the seizure of

the handgun was reasonable pursuant to Article I, Section 11. Consequently, the trial court

did not abuse its discretion in allowing the admission of the handgun.

       The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.




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