                                                                           Mar 11 2015, 6:46 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Patricia Caress McMath                                     Gregory F. Zoeller
      Michelle C. Langdon, Certified Legal Intern                Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Michael Gene Worden
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      D.Y.,                                                      March 11, 2015

      Appellant-Defendant,                                       Court of Appeals Cause No.
                                                                 49A02-1405-JV-298
              v.                                                 Appeal from the Marion Superior
                                                                 Court

      State of Indiana,                                          Lower Court Cause No.
                                                                 49D09-1402-JD-339
      Appellee-Plaintiff
                                                                 The Honorable Marilyn Moores,
                                                                 Judge
                                                                 The Honorable Geoffrey Gaither,
                                                                 Magistrate




      Pyle, Judge


                                        Statement of the Case
[1]   Defendant/Appellant, D.Y., appeals his adjudication as a delinquent child,

      which was based on the juvenile court’s true finding that he had committed



      Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015                    Page 1 of 16
      dangerous possession of a firearm1 and carrying a handgun without a license. 2

      D.Y. was a potential suspect in a burglary, and a police officer told him that he

      was going to transport him to police headquarters for the burglary investigation.

      Prior to putting D.Y. into the police vehicle, the officer patted him down and

      discovered a firearm in D.Y.’s jacket. Subsequently, the State filed a petition

      alleging that D.Y. was a delinquent child for committing dangerous possession

      of a firearm and carrying a handgun without a license, both of which would be

      Class A misdemeanors if committed by an adult. D.Y. filed a motion to

      suppress the evidence of the firearm, arguing that it was the result of an illegal

      search. The juvenile court denied the motion and adjudicated D.Y. a

      delinquent child.


[2]   On appeal, D.Y. now argues that the juvenile court abused its discretion in

      admitting the firearm because it was the result of an unlawful search. He

      asserts that the search was unlawful because: (1) it was incident to an unlawful

      arrest; (2) it was incident to an unlawful investigatory stop; and (3) the officer

      did not have reasonable concerns for safety to justify the search. We conclude

      that the juvenile court abused its discretion in admitting the firearm because it

      was obtained through a search incident to an unlawful arrest. Because the

      evidence of the firearm was an essential element of D.Y.’s charges, we reverse




      1
          IND. CODE § 35-47-10-5.
      2
          I.C. § 35-47-2-1.


      Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015   Page 2 of 16
      and remand to the juvenile court with instructions to vacate its true findings and

      D.Y.’s adjudication as a delinquent child.


[3]   We reverse and remand with instructions.


                                                       Issue
[4]   Whether the juvenile court abused its discretion when it admitted evidence of a

      firearm found in D.Y.’s pocket during a pat down.


                                                      Facts3
[5]   On February 17, 2014, Officer Sydney McDaniel (“Officer McDaniel”) of the

      Indianapolis Metropolitan Police Department (“IMPD”) was dispatched to the

      scene of a disturbance near 12th Street and Concord Street in Indianapolis.

      When he arrived, he found two males confronting a juvenile, A.I., about a

      burglary that they believed he had committed the previous month (“First

      Burglary”). Another male, Brian Smith (“Smith”), was also at the scene and

      was confronting A.I. about a separate burglary of his house that had occurred

      the prior weekend (“Second Burglary”). Officer McDaniel questioned the three

      alleged victims and, based on the information they gave him, detained A.I. and

      transported him to the police department’s roll call for questioning. Officer




      3
       We held an oral argument in this case on February 11, 2015 in the Court of Appeals Courtroom. We thank
      counsel for their preparation and presentation.

      Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015                   Page 3 of 16
      McDaniel then followed Smith to his house to make a report of the Second

      Burglary.


[6]   At Smith’s house, Smith told Officer McDaniel that he and his wife had gone

      on a short vacation the previous weekend. When they returned, they found

      that someone had kicked in their back door and ripped the plastic that had been

      over the door. They also discovered that Smith’s big screen television and

      Xbox were missing, although a broken Xbox in another room was still there.

      Smith told Officer McDaniel that he suspected that A.I., D.Y., and/or one

      other individual had been involved in the burglary because they had frequently

      played video games at his house and knew which Xbox was broken.4


[7]   Officer McDaniel made a report of the burglary and called IMPD Detective

      Mark Howard (“Detective Howard”), who also came to the scene and spoke to

      the Smiths. Afterwards, both officers left Smith’s house, and Detective Howard

      returned to the IMPD’s southwest district headquarters. There, another

      detective contacted Detective Howard and told him that there was a possibility

      that D.Y. was also a suspect in the First Burglary. However, Detective Howard

      never communicated this information to Officer McDaniel.


[8]   Later that day, Officer McDaniel received a dispatch that Smith’s wife had

      called to say that D.Y. was on the way to Smith’s house to talk to Smith about




      4
        Officer McDaniel also testified that D.Y. had known that Smith was going to be out of town for the
      weekend. Later, however, Smith himself testified that D.Y. “might have known” he was going to be out of
      town, but he could not remember. (Tr. 53).

      Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015                     Page 4 of 16
       his suspicions. Officer McDaniel called Detective Howard with the

       information, and Detective Howard told Officer McDaniel to “detain” D.Y.

       and bring him into roll call so that he could give a statement. (Tr. 24).


[9]    When Officer McDaniel arrived at Smith’s house, Smith and D.Y. were sitting

       on the couch talking. Officer McDaniel explained to D.Y. “why it [was] that

       [he] was there and that [he] would be transporting [D.Y.] to [IMPD’s] district

       roll call for some burglary investigation that he was a possible suspect in.” (Tr.

       38). Officer McDaniel then “told [D.Y.] that [he] would have to search him to

       put him in [the] police vehicle so that he could be transported.” (Tr. 38).

       Thereafter, Officer McDaniel conducted a pat down search of D.Y. and found a

       gun in his jacket pocket.5 Because Officer McDaniel was aware that D.Y. was

       under the age of eighteen, he secured the weapon, placed D.Y. in handcuffs,

       and transported him to the police headquarters.


[10]   The next day, on February 18, 2014, the State filed a petition alleging that

       sixteen-year-old D.Y. was a delinquent child for committing one count of

       dangerous possession of a firearm and one count of carrying a handgun without

       a license, both of which would have been Class A misdemeanors if committed




       5
           The record revealed that the gun was not loaded.


       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015    Page 5 of 16
       by an adult. Subsequently, D.Y. moved to suppress the evidence of the firearm

       that Officer McDaniel had found as a result of his pat down.6


[11]   On March 13, 2014, the juvenile court held a denial and suppression hearing

       concerning the State’s petition and D.Y.’s motion to suppress. During the

       hearing, D.Y. argued that Officer McDaniel’s pat down had violated his

       constitutional rights under the United States and Indiana constitutions and that,

       as a result, the juvenile court should suppress the firearm discovered during the

       search. The State argued that the pat down did not violate D.Y.’s

       constitutional rights because Officer McDaniel had probable cause or

       reasonable suspicion that D.Y. had committed a burglary, as well as reasonable

       concerns for his safety. D.Y. disputed each of these arguments. Ultimately, the

       juvenile court denied D.Y.’s motion to suppress and entered a true finding on

       both of D.Y.’s charges, thereby adjudicating him a delinquent child. On April

       3, 2014, the court held a dispositional hearing and placed D.Y. on probation to

       last until July 31, 2014, for the dangerous possession of a firearm finding. The

       juvenile court dismissed the finding of carrying a handgun without a license.

       D.Y. now appeals.




       6
         There is no evidence of a written or oral motion to suppress evidence in the record, but it is clear from the
       transcript of the suppression hearing that D.Y. filed such a motion prior to the hearing.

       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015                             Page 6 of 16
                                                     Decision
[12]   On appeal, D.Y. argues that the juvenile court abused its discretion when it

       admitted the evidence of the firearm because the firearm was obtained pursuant

       to an illegal search. He asserts that the search was illegal because Officer

       McDaniel arrested him without a warrant or probable cause and, thus, the

       subsequent search violated his right to be free from search and seizure under the

       United States and Indiana constitutions. Alternately, D.Y. argues that, even if

       Officer McDaniel’s actions did not constitute a seizure or arrest, Officer

       McDaniel still conducted an investigatory stop without reasonable suspicion

       that he had committed a burglary. Finally, D.Y. contends that, even if Officer

       McDaniel had reasonable suspicion to conduct the stop, the officer could not

       justify his pat down of D.Y. based on concerns for officer safety because he did

       not have a reasonable fear of danger.


[13]   Preliminarily, we note that the juvenile court here held a hearing on D.Y.’s

       motion to suppress in conjunction with his denial hearing and ruled on the

       matter as a question of admissibility. We review a ruling concerning the

       admissibility of evidence for an abuse of discretion. S.G. v. State, 956 N.E.2d

       668, 674 (Ind. Ct. App. 2011), trans. denied. We will find that a juvenile court

       has abused its discretion only when its decision is clearly against the logic and

       effect of the facts and circumstances before it. Holbert v. State, 996 N.E.2d 396,

       399 (Ind. Ct. App. 2013), trans. denied. In making this determination, we

       cannot reweigh the evidence or judge witness credibility, and we must consider

       conflicting evidence in the light most favorable to the juvenile court’s ruling.

       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015   Page 7 of 16
       Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied.

       Further, it is well-settled that when reviewing the constitutionality of a search or

       seizure, we must examine “‘any uncontested evidence favorable to the

       appellant.’” Id. (quoting Fair v. State, 627 N.E.2d 427, 434 (Ind. 1993)).

       “‘Although a trial court’s determination of historical facts is entitled to

       deferential review, we employ a de novo standard when reviewing the trial

       court’s ultimate determinations of reasonable suspicion and probable cause.’”

       Id. (quoting Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans.

       denied).


[14]   The Fourth Amendment to the United States Constitution protects both privacy

       and possessory interests by prohibiting unreasonable searches and seizures. 7

       N.W. v. State, 834 N.E.2d 159, 161-62 (Ind. Ct. App. 2005), trans. denied. As a

       general rule, the Fourth Amendment prohibits warrantless searches. Id. at 162.

       However, the warrant requirement of the Fourth Amendment is subject to a

       few well-delineated exceptions. Johnson v. State, 710 N.E.2d 925, 927 (Ind. Ct.

       App. 1999). When a search is conducted without a warrant, the State has the

       burden of proving that an exception to the warrant requirement existed at the

       time of the search. Holbert, 996 N.E.2d at 399. Generally speaking, we must

       exclude evidence directly obtained via an illegal search under the fruit of the

       poisonous tree doctrine. Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013).




       7
           It is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Id.


       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015                             Page 8 of 16
[15]   Here, the State argues that an exception to the warrant requirement existed at

       the time of the search because Officer McDaniel had reasonable suspicion to

       conduct an investigatory stop of D.Y., as well as reasonable concerns for his

       safety to justify a pat down search. In support of this argument, the State cites

       our precedent that, in the case of a lawful investigatory stop, an officer may

       conduct a


               [r]easonable search for weapons for the protection of the police
               officer, where he has reason to believe that he is dealing with an
               armed and dangerous individual, regardless of whether he has
               probable cause to arrest the individual for a crime. The officer
               need not be absolutely certain that the individual is armed; the
               issue is whether a reasonably prudent man in the circumstances
               would be warranted in the belief that his safety or that of others
               was in danger.


       Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001) (quoting Terry, 392 U.S. 1, 27

       (1968)). In response, D.Y. argues that Officer McDaniel’s stop was so intrusive

       that it constituted a “seizure”, or arrest, without probable cause or a warrant,

       rather than a lawful investigatory stop. The State acknowledges that Officer

       McDaniel did not have probable cause or a warrant to arrest D.Y., so we must

       first determine whether Officer McDaniel’s stop of D.Y. constituted an

       investigatory stop or an arrest.


[16]   Under the Fourth Amendment, a full-blown arrest or a detention that lasts for

       more than a short period must be justified by probable cause. Reinhart v. State,

       930 N.E.2d 42, 45 (Ind. Ct. App. 2010). However, the United States Supreme

       Court held in Terry, that an officer may make a brief investigatory stop without

       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015     Page 9 of 16
       probable cause if the officer has a reasonable suspicion that the person detained

       is involved in criminal activity. 392 U.S. at 88. A Terry stop is a lesser

       intrusion than an arrest, and the scope of an investigatory stop accordingly

       involves only “‘inquiry necessary to confirm or dispel the officer’s suspicions.’”

       Reinhart, 930 N.E.2d at 46 (quoting Hardister v. State, 849 N.E.2d 563, 570 (Ind.

       2006)). A Terry stop may qualify as an arrest if it becomes so intrusive that it

       “‘interrupts the freedom of the accused and restricts his liberty of movement.’”

       Id. (quoting Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996)) (explaining the

       difference between an investigative stop and an arrest).


[17]   There is no “‘bright line’” test for evaluating whether a stop is investigatory in

       nature or an arrest, and we have held that “‘common sense and ordinary

       human experience must govern over rigid criteria.’” Id. (quoting Mitchell v.

       State, 745 N.E.2d 775, 782 (Ind. 2001)). In Terry, the United States Supreme

       Court suggested that a person has been “seized”, or arrested, for Fourth

       Amendment purposes only when “the officer, by means of physical force or

       show of authority, has in some way restrained the liberty of a citizen.” 392

       U.S. at 19, n.16. In U.S. v. Mendenhall, 446 U.S. 544, 554 (1980), the Supreme

       Court adhered to this standard, but added that “a person has been ‘seized’

       within the meaning of the Fourth Amendment only if, in view of all of the

       circumstances surrounding the incident, a reasonable person would have

       believed that he was not free to leave.” The Court gave examples of situations

       in which a reasonable person may not feel free to leave, including where there

       has been “the threatening presence of several officers, the display of a weapon


       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015   Page 10 of 16
       by an officer, some physical touching of the person of the citizen, or the use of

       language or tone of voice indicating that compliance with the officer’s requests

       might be compelled.” Id. The Court also indicated that factors such as age,

       race, lack of education, and gender might be relevant, although not dispositive,

       to determining whether a reasonable person would feel free to leave. Id. at 558

       (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).


[18]   D.Y. compares the instant case to Dunaway v. New York, 442 U.S. 200 (1979),

       where the United States Supreme Court held that police officers had “seized” a

       murder suspect when they transported him to police headquarters in a police

       car without probable cause to arrest him and then placed him into an

       interrogation room. In its opinion, the Supreme Court emphasized that

       investigatory stops based on Terry are only allowed because the “narrow

       intrusions” associated with investigatory stops fall “far short of the kind of

       intrusion associated with an arrest.” Id. at 211. The Court reasoned that:


               In contrast to the brief and narrowly circumscribed intrusions
               involved in [Terry and its progeny], the detention of [Dunaway]
               was in important respects indistinguishable from a traditional
               arrest. [Dunaway] was not questioned briefly where he was
               found. Instead, he was taken from a neighbor's home to a police
               car, transported to a police station, and placed in an interrogation
               room. He was never informed that he was “free to go”; indeed,
               he would have been physically restrained if he had refused to
               accompany the officers or had tried to escape their custody. The
               application of the Fourth Amendment's requirement of probable
               cause does not depend on whether an intrusion of this magnitude
               is termed an “arrest” under state law. The mere facts that
               [Dunaway] was not told he was under arrest, was not “booked,”

       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015   Page 11 of 16
               and would not have had an arrest record if the interrogation had
               proved fruitless, while not insignificant for all purposes,
               obviously do not make [Dunaway’s] seizure even roughly
               analogous to the narrowly defined intrusions involved in Terry
               and its progeny. Indeed, any “exception” that could cover a
               seizure as intrusive as that in this case would threaten to swallow
               the general rule that Fourth Amendment seizures are
               “reasonable” only if based on probable cause.


       Id. at 212 (internal citations omitted).


[19]   Likewise, in Indiana we have found that involuntary transportation to police

       headquarters may be a factor in determining whether a seizure has occurred. In

       Buckley v. State, 886 N.E.2d 10, 15 (Ind. Ct. App. 2008), this Court concluded

       that a seizure had occurred where police officers had transported a murder

       suspect involuntarily to the police station and towed his car to a secure facility.

       Id. We noted that it was “not a case where a suspect voluntarily appeared at

       police headquarters in response to a request from investigators.” Id. Rather,

       “Buckley was clearly seized in the constitutional sense when he was taken

       involuntarily to the police station and his car was towed.” Id.


[20]   In contrast, in Barber v. State, 418 N.E.2d 563 (Ind. Ct. App. 1981), we held that

       a police officer had not seized Barber when Barber voluntarily accompanied an

       officer to the police station for questioning regarding robberies in the

       community. There, we found it significant that:

               Barber had previously been arrested twice. He testified that each
               time he was arrested he was told he was under arrest,
               handcuffed, and physically placed in the rear seat of a police car.

       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015   Page 12 of 16
               But when [O]fficer Sorrell drove Barber to the police station to
               talk to Captain Mowery, the defendant rode in the front seat of
               the squad car without handcuffs. Sorrell was the only officer in
               the automobile. The police never touched the defendant’s
               person. Defendant Barber also knew [O]fficer Mowery and had
               provided him with information about a crime on a previous
               occasion.


[21]   Id. at 567. Ultimately, we noted that “[w]ere it not for defendant Barber’s

       experience with law enforcement and his relationship with Captain Mowery,

       we would [have been] drawn to an opposite result” and would have found that

       Barber had been seized. Id. However, based on those factors we concluded

       that the officers’ actions did not constitute a seizure. Id.


[22]   Similarly, in Laster v. State, 918 N.E.2d 428 (Ind. Ct. App. 2009), we found that

       a police officer’s actions did not constitute a seizure. There, the officer gave

       Laster the option of riding with him or driving himself to the police station, and

       Laster opted to ride with the officer. Id. at 433. He rode in the front passenger

       seat of the police vehicle and was not restrained in any way. Id. Also, once he

       reached the station, the officer interviewed Laster in his personal office rather

       than an interrogation room and told him he was free to leave at any time. Id.

       We compared the officer’s initial actions to those of the officer in Faris v. State,

       901 N.E.2d 1123, 1126 (Ind. Ct. App. 2009), trans. denied, who allowed a

       suspect to drive himself to the station separately from the officer and who told

       the suspect that he was free to leave at any time. In both Laster and Faris, we

       found that the officers’ actions did not lead to a seizure of their respective

       suspects.

       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015   Page 13 of 16
[23]   Although there is not a bright line standard for determining when an arrest has

       occurred, the above cases demonstrate that when a police officer transports a

       suspect to a police station, the voluntariness of the transportation may be a

       significant factor in determining whether a seizure has occurred. In Buckley,

       where the police involuntarily transported Buckley to the police station, we

       concluded that a seizure had occurred. In contrast, we found that evidence of

       the defendants’ voluntary actions in Barber, Laster, and Faris demonstrated that

       the defendants had not been seized for purposes of the Fourth Amendment.

       The evidence of voluntary conduct in those cases included: a pre-existing

       relationship with law enforcement, a suspect riding in the front seat of the

       police vehicle, an officer giving a suspect the option to drive separately, and an

       officer telling a defendant he is free to leave at any time.


[24]   Here, the State argues that Officer McDaniel merely conducted an investigatory

       stop and not an arrest because he intended to question D.Y. but not to take

       D.Y. into custody to “answer for a crime.” I.C. § 35-33-1-5 (“Arrest is the

       taking of a person into custody, that he may be held to answer for a crime.”).

       However, the above cases demonstrate that whether a seizure has occurred is

       dependent on whether a reasonable person would believe that “he [is] not free

       to leave,” rather than the police officer’s intent.


[25]   Instead, when we compare the instant case to the above cases, we conclude that

       Officer McDaniel’s actions amounted to a seizure of D.Y. Officer McDaniel

       did not ask D.Y. if he would accompany him to the station, and he did not give

       him the option to meet at the police station independently. Instead, he

       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015   Page 14 of 16
       explained to D.Y. “why it [was] that [he] was there and that [he] would be

       transporting [D.Y.] to [IMPD’s] district roll call for some burglary investigation

       that he was a possible suspect in.” (Tr. 38). Based on Officer McDaniel’s

       language that he “would” be transporting D.Y. to district roll call, a reasonable

       person could have concluded that this transport was mandatory, rather than

       optional. (Tr. 38). This is especially true in light of D.Y.’s young age, which as

       the Supreme Court noted in Mendenhall, was a relevant factor. 446 U.S. at 558.


[26]   Because D.Y. was a juvenile, there was no indication that Officer McDaniel

       had contacted D.Y.’s parents, and Officer McDaniel did not give any indication

       to D.Y. that his transportation to the police station was voluntary, we conclude

       that Officer McDaniel did “seize” D.Y., such that he would not have felt free to

       leave, even though the transportation did not occur prior to the pat down. Id. at

       554. As the State admits that Officer McDaniel did not have probable cause or

       a warrant to arrest D.Y., his seizure of D.Y. violated the Fourth Amendment,

       and his subsequent pat down was unlawful. Officer McDaniel therefore

       discovered the firearm pursuant to an unlawful search, and it was inadmissible

       at D.Y.’s hearing. See Clark, 994 N.E.2d at 266 (noting that we must exclude

       evidence directly obtained via an illegal search). Because the firearm was an

       essential element of D.Y.’s charges, see I.C. §§ 35-47-10-5, 35-47-2-1, we reverse




       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015   Page 15 of 16
       and remand with instructions for the juvenile court to vacate its true findings

       and D.Y.’s adjudication as a delinquent child.8 See


[27]   Reversed and remanded with instructions.


       Barnes, J., and May, J., concur.




       8
        Since we have found that Officer McDaniel violated D.Y.’s rights against unreasonable search and seizure
       under the Fourth Amendment by seizing him without probable cause, we need not address the remainder of
       D.Y.’s arguments.

       Court of Appeals of Indiana | Opinion 49A02-1405-JV-298 | March 11, 2015                     Page 16 of 16
