MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Sep 28 2018, 10:23 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Ricky Hill,                                              September 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-550
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese Flowers,
Appellee-Plaintiff                                       Judge
                                                         The Honorable James Kevin
                                                         Snyder, Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1711-F4-45646



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-550 | September 28, 2018                Page 1 of 8
                                              Case Summary
[1]   Ricky Hill appeals his conviction for level 4 felony unlawful possession of a

      firearm by a serious violent felon. He argues that the trial court abused its

      discretion in admitting a firearm, which he contends was seized in violation of

      his right against unreasonable search and seizure guaranteed in Article 1,

      Section 11 of the Indiana Constitution. We agree and therefore reverse.1


                                  Facts and Procedural History
[2]   On November 22, 2017, around 6:30 a.m., Indiana State Trooper Shana

      Kennedy drove to an Indianapolis McDonald’s to meet Probationary Trooper

      McKinley Finley. As Trooper Kennedy drove into the parking lot, she passed

      the handicapped parking spots and observed that a black Chevrolet without

      either a handicapped license plate or placard was parked in one of the spaces.

      She also noticed a person, later identified as Hill, in the front passenger seat

      who appeared to be asleep. Trooper Kennedy parked in the parking row facing

      the handicapped spots. Trooper Finley had already arrived and walked over to

      Trooper Kennedy’s vehicle. Trooper Kennedy said to Trooper Finley, “[L]et’s

      go over there and find out where the driver’s at.” Tr. Vol. 2 at 12. Trooper

      Kennedy wanted to find out where the driver of the Chevrolet was so that she

      could issue a parking citation because the car was illegally parked. Id. at 15.

      Additionally, Trooper Kennedy had been informed by McDonald’s personnel



      1
       Because we reverse on state constitutional grounds, we do not address Hill’s claim based on the Fourth
      Amendment to the United States Constitution.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-550 | September 28, 2018               Page 2 of 8
      that people had been using syringes in the parking lot, so when she noticed

      someone sleeping she conducted a well-being check. Id. at 13-14.


[3]   Trooper Kennedy went to the Chevrolet’s driver’s side window, and Trooper

      Finley went to the passenger window. Trooper Kennedy observed that “it

      didn’t appear that [Hill] was in distress or anything[,] but because it was cold

      and he had a jacket on[,] it was also hard to see movement of the chest.” Id. at

      15 (vocal hesitations omitted). Trooper Kennedy told Trooper Finley “to knock

      on the window to wake [Hill] up and … find where was the driver.” Id.

      Trooper Finley knocked on the window but failed to wake up Hill. Trooper

      Kennedy started knocking on the window and immediately saw Hill start

      patting down his side and front and around his pockets with both hands. Based

      on her twenty-seven years of experience, Trooper Kennedy believed that the

      way Hill was patting himself indicated that he had a weapon or was trying to

      dispose of something that he did not want the police to find. Id. at 16. As soon

      as she saw Hill start to pat himself, Trooper Kennedy told Trooper Finley to get

      Hill out of the car. Id.


[4]   Trooper Finley opened the door, and Hill exited the vehicle “with no problem.”

      Id. at 17. Trooper Kennedy came around the front of the car and “grabbed,

      touched … kind of pushed [Hill] around [be]cause [she] wanted him to face the

      car.” Id. She told Hill, “I need you to turn around [and] face the car,” and Hill

      complied. Id. Trooper Kennedy informed Hill, “[W]e’re just going to

      temporarily detain you for our safety and yours until we figure out what’s going

      on here.” Id. As Trooper Kennedy held Hill’s right wrist, Trooper Finley

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-550 | September 28, 2018   Page 3 of 8
      began putting a handcuff on Hill’s left wrist. At that moment, Trooper

      Kennedy thought that Trooper Finley said her name, which caused her to look

      down, and she saw a revolver in a holster on Hill’s right hip. Trooper Kennedy

      removed the gun and put the handcuff on Hill’s right wrist. The gun was

      identified as a .357 caliber Taurus revolver. A records check revealed that Hill

      had a conviction for class B felony conspiracy to commit robbery.


[5]   The State charged Hill with level 4 felony unlawful possession of a firearm by a

      serious violent felon. In January 2018, a bench trial was held. Trooper

      Kennedy testified for the State. Hill objected to the admission of the revolver

      on the basis that the patdown search the officers intended to perform was

      unconstitutional. The trial court overruled the objection and admitted the

      revolver. Hill was found guilty and sentenced to six years. This appeal ensued.


                                     Discussion and Decision
[6]   Hill asserts that the gun was inadmissible because it was confiscated in violation

      of his state constitutional right against unreasonable search and seizure.

      “When reviewing a trial court’s ruling on the admissibility of evidence resulting

      from an allegedly illegal search, we do not reweigh the evidence, and we

      consider conflicting evidence most favorable to the trial court’s ruling.” Conn v.

      State, 89 N.E.3d 1093, 1097 (Ind. Ct. App. 2017), trans. denied (2018).

      However, the constitutionality of a search or seizure is a pure question of law

      that we review de novo. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).


[7]   Article 1, Section 11 of the Indiana Constitution provides,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-550 | September 28, 2018   Page 4 of 8
              The 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, and particularly
              describing the place to be searched, and the person or thing to be
              seized.


[8]   “Generally, a search warrant is a prerequisite to a constitutionally proper search

      and seizure.” Halsema v. State, 823 N.E.2d 668, 676 (Ind. 2005). “In cases

      involving a warrantless search, the State bears the burden of proving an

      exception to the warrant requirement.” Id. “[E]vidence obtained pursuant to

      an illegal search is inadmissible at trial.” Blankenship v. State, 5 N.E.3d 779, 782

      (Ind. Ct. App. 2014). The purpose of the exclusionary rule is to deter police

      misconduct and encourage compliance with constitutional standards. Id.


[9]   “Although its text mirrors the federal Fourth Amendment, we interpret Article

      1, § 11 of our Indiana Constitution separately and independently.” Robinson v.

      State, 5 N.E.3d 362, 368 (Ind. 2014).


              Notably, instead of focusing on the defendant’s reasonable
              expectation of privacy, we focus on the actions of the police
              officer, and employ a totality-of-the-circumstances test to
              evaluate the reasonableness of the officer’s actions. We give
              Article 1, Section 11 a liberal construction in favor of protecting
              individuals from unreasonable intrusions on privacy. Further, it
              is the State’s burden to prove its intrusion was reasonable under
              the circumstances. To determine reasonableness, we consider:
              “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 citizen’s ordinary activities,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-550 | September 28, 2018   Page 5 of 8
                and 3) the extent of law enforcement needs.” Litchfield v. State,
                824 N.E.2d 356, 361 (Ind. 2005).


       Randall v. State, 101 N.E.3d 831, 841 (Ind. Ct. App. 2018) (citations and

       quotation marks omitted), trans. denied.


[10]   Hill asserts that the troopers had no legitimate reason to approach the vehicle.2

       We disagree. The troopers were aware that syringes had been found in the

       parking lot, and Hill appeared to be asleep or unconscious, which together

       supported a reasonable concern as to Hill’s well-being. In addition, it is

       undisputed that a parking infraction had been committed by the driver of the

       vehicle that Hill was sitting in, and Hill’s presence in the vehicle supported a

       reasonable belief that he would have information regarding the driver’s

       whereabouts. Police officers “may engage in limited interaction with citizens,

       short of seizing the individual, to help determine whether further investigation

       is or is not warranted.” State v. Lefevers, 844 N.E.2d 508, 516 (Ind. Ct. App.

       2006), trans. denied.


[11]   In any event, because the troopers saw the gun and removed it while they were

       handcuffing Hill in preparation to pat him down, the key question is whether



       2
         The State argues that Hill waived any claim that the troopers’ “initial contact and detention” violated his
       constitutional right because he failed to present this argument to the trial court. Appellee’s Br. at 14. At trial,
       Hill’s attorney objected to the legality of the patdown search, but at one point appeared to concede that the
       troopers could have legally ordered him out of the vehicle as part of their investigation of the parking
       infraction. Given the facts of this case, the decision of the troopers to remove Hill from the vehicle is
       intrinsically linked to their decision to pat down Hill, and therefore we decline to find that Hill waived any
       argument related to his removal from the vehicle.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-550 | September 28, 2018                      Page 6 of 8
       the troopers’ removal of Hill from the vehicle specifically to handcuff him to

       perform a pat down was reasonable under the totality of the circumstances.

       Clearly, the degree of intrusion imposed on Hill was significant. Hill was

       sleeping in the passenger seat of a parked vehicle in a fast-food restaurant

       parking lot when he was disturbed by knocking on the window, then suddenly

       removed from the vehicle, pushed by a trooper to face the vehicle, grabbed by

       two troopers, and handcuffed. When balanced against the degree of concern

       that a crime had been committed and the needs of law enforcement, we cannot

       conclude that this degree of intrusion was constitutionally reasonable. The

       troopers were investigating a parking infraction, which they did not suspect Hill

       of committing. Although the vehicle was illegally parked in a handicapped

       spot, it was not blocking traffic or otherwise creating a hazard. Further,

       although the troopers may initially have had a legitimate basis to check on

       Hill’s well-being, when Trooper Kennedy looked into the vehicle, Hill did not

       appear to be in any distress. Significantly, the troopers did not observe any

       evidence, such as a syringe in or near the car, that remotely suggested that Hill

       might have been using drugs.


[12]   When the troopers knocked on the windows to ask him about the driver, Hill

       was startled and patted himself. Trooper Kennedy testified that Hill’s

       movements precipitated his removal from the vehicle for a patdown. However,

       we cannot agree that Hill’s act of patting himself upon being suddenly

       awakened indicated, by itself, that he posed any material threat to the troopers’

       safety. See Swanson v. State, 730 N.E.2d 205, 211 (Ind. Ct. App. 2000)


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-550 | September 28, 2018   Page 7 of 8
       (concluding, in the context of both federal and state constitutional challenges to

       a patdown, that defendant’s presence in an area known for drugs and his having

       his hands in his pockets were not sufficient to cause a reasonable officer to fear

       for his safety), trans. denied. The troopers did not suspect Hill of having

       committed any crime or wrongdoing. Thus, the need for law enforcement to

       remove Hill from the vehicle, handcuff him, and pat him down was minimal at

       most. Based on the totality of the circumstances, we conclude that the troopers’

       removal of Hill from the vehicle to handcuff him and perform a pat down was

       unreasonable and violated Hill’s Indiana constitutional right against

       unreasonable search and seizure. Accordingly, the gun discovered by the

       troopers during the handcuffing was inadmissible, and the trial court abused its

       discretion in admitting it. Because the State offered no other evidence against

       Hill, we must reverse his conviction.


[13]   Reversed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-550 | September 28, 2018   Page 8 of 8
