                                                                                 FILED
                                                                            Jul 31 2017, 6:10 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Jeffery A. Earl                                             Curtis T. Hill, Jr.
      Danville, Indiana                                           Attorney General of Indiana

                                                                  Denise A. Robinson
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      K.G.,                                                       July 31, 2017
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  32A01-1611-JV-2590
              v.                                                  Appeal from the Hendricks
                                                                  Superior Court
      State of Indiana,                                           The Honorable Karen M. Love,
      Appellee-Plaintiff                                          Judge
                                                                  Trial Court Cause No.
                                                                  32D03-1610-JD-250



      May, Judge.




[1]   K.G. appeals his adjudication as a delinquent child for having committed acts

      that, if committed by an adult, would be Class A misdemeanor carrying a


      Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017                       Page 1 of 10
      handgun without a license, 1 Class C misdemeanor illegal possession of an

      alcoholic beverage, 2 and Class C misdemeanor possession of paraphernalia. 3

      K.G. asserts the evidence supporting his adjudications was inadmissible

      because it was collected in violation of his constitutional rights to be free of

      illegal search and seizure. We reverse.



                                   Facts and Procedural History
[2]   During the late morning of October 1, 2016, Lieutenant Robert Paris (“Lt.

      Paris”) of the Avon Police Department received a dispatch regarding a

      suspicious male who was approaching females in a Kroger parking lot and

      asking to use their cell phones. The dispatch also stated the male had a

      backpack and might be a runaway. Lt. Paris was given a physical description of

      the male and, upon his arrival at the store, saw a male who fit that description

      walking in front of the store. Lt. Paris saw the male—later identified as K.G.—

      was carrying two backpacks, and the lieutenant suspected K.G. was a runaway.


[3]   Lt. Paris got out of his police car and told K.G. to stop. Lt. Paris then asked

      K.G. his age and whether he was a runaway. K.G. responded he was “almost

      seventeen” and was not a runaway. (Tr. Vol. 2 at 12.) Lt. Paris then asked

      who the backpacks belonged to, and K.G. reported the backpacks belonged to



      1
          Ind. Code § 35-47-2-1.
      2
          Ind. Code § 7.1-5-7-7(a)(1).
      3
          Ind. Code § 35-48-4-8.3(b)(1).


      Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017   Page 2 of 10
      someone else. When Lt. Paris asked for that friend’s name, K.G. reported

      “Jacob” but could not provide Jacob’s last name, address, or phone number.

      (Id. at 13.) Lt. Paris then “decided to pat [K.G.] down for [the lieutenant’s]

      own safety.” (Id.)


[4]   During the pat-down, Lt. Paris “immediately located a – what ended up being a

      box of ammunition in [K.G.’s] left front pants pocket.” (Id. at 14.) Lt. Paris

      handcuffed K.G. and removed the ammunition from his pocket. Lt. Paris then

      searched K.G.’s backpacks and found a loaded handgun that contained the

      same type of ammunition found in K.G.’s pocket, two soda bottles filled with

      alcohol, and a glass pipe with burnt marijuana residue.


[5]   Thereafter, the State filed a petition alleging K.G. was a delinquent child for

      committing acts that, if committed by an adult, would have been Class A

      misdemeanor carrying a handgun without a license, Class C misdemeanor

      illegal possession of an alcoholic beverage, and Class C misdemeanor

      possession of paraphernalia.


[6]   On October 24, 2016, the day of the fact-finding hearing, K.G. filed a motion to

      suppress the evidence found during the pat-down and search of his backpacks

      (i.e., the box of ammunition, handgun, alcohol, and glass pipe). K.G. argued,

      in relevant part, that Lt. Paris’s search of K.G. and his backpacks was a

      warrantless search in violation of K.G.’s constitutional rights under the Fourth

      Amendment to the United States Constitution and Article 1, Section 11 of the




      Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017   Page 3 of 10
      Indiana Constitution. 4 Before the fact-finding hearing, the court heard

      testimony from Lt. Paris and denied K.G.’s motion to suppress.


[7]   The court continued immediately into the fact-finding hearing, incorporated Lt.

      Paris’s testimony from the suppression hearing, and overruled K.G.’s renewed

      objection to the ammunition, gun, alcohol, and glass pipe. After hearing

      additional testimony, the juvenile court entered true findings that K.G. was a

      delinquent child for the offenses of carrying a handgun without a license, illegal

      possession of an alcoholic beverage, and possession of paraphernalia, and it

      ordered K.G. placed in the Indiana Department of Correction.



                                  Discussion and Decision
[8]   K.G. argues the juvenile court abused its discretion when it denied his motion

      to suppress all the evidence collected by Lt. Paris and admitted that evidence at

      his delinquency hearing. 5 Because K.G. appeals following his delinquency

      hearing, the issue on appeal is whether the juvenile court abused its discretion




      4
       In his motion, K.G. also argued “any and all statements” should be suppressed because he had not been
      provided with an opportunity for meaningful consultation under Indiana Code Section 31-32-5-1. (App. Vol.
      2 at 15.) K.G. makes no corresponding argument on appeal.
      5
        The hearing on K.G.’s motion to suppress immediately preceded the hearing on the petition alleging K.G.
      was a delinquent. At the end of the hearing on the motion to suppress, the court denied the motion and said:
      “Continue on then with the fact finding.” (Tr. Vol. 2 at 36.) The parties agreed to incorporate into the trial
      record the testimony Lt. Paris had given in the suppression hearing, and then K.G.’s counsel said: “And I
      guess Judge for the record since we’re technically at the trial I renew my motion to suppress objection.” (Id.
      at 37.) The Court responded: “Yeah I’m denying that.” (Id.) K.G.’s renewal of that suppression argument
      at the trial on the merits preserved for appeal any error in the trial court’s denial of K.G.’s motion to
      suppress. See Ind. Evidence Rule 103(b) (2014) (“Once the court rules definitively on the record at trial a
      party need not renew an objection or offer of proof to preserve a claim of error for appeal.”).

      Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017                          Page 4 of 10
       by admitting the evidence during the fact-finding hearing. See A.M. v. State, 891

       N.E.2d 146, 148 (Ind. Ct. App. 2008), trans. denied.


[9]    The decision whether to admit evidence falls within the sound discretion of the

       trial court, and we review the decision only for an abuse of discretion. Wilson v.

       State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when

       the trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g

       denied. As we conduct our review, we may not reweigh the evidence, but we

       consider both the conflicting evidence, which we accept in the light most

       favorable to the trial court’s decision, and any “uncontradicted evidence to the

       contrary.” Pinner v. State, 74 N.E.3d 226, 229 (Ind. 2017). “[W]hen an

       appellant’s challenge . . . is premised on a claimed constitutional violation, we

       review the issue de novo because it raises a question of law.” Id.


[10]   Specifically, K.G. argues this evidence was inadmissible because the searches

       violated his rights under the Fourth Amendment to the United States

       Constitution. 6 The Fourth Amendment guarantees “[t]he right of the people to

       be secure in their persons . . . against unreasonable search and seizures.” For a

       search to comply with that guarantee of reasonableness, it generally must be

       conducted with a warrant supported by probable cause. Pinner, 74 N.E.3d at




       6
         K.G. also asserts the search violated his right to be free from unreasonable search and seizure under Article
       1, Section 11 of the Indiana Constitution. Because we conclude the frisk of K.G. violated the federal
       constitution, we need not address his claims under the Indiana Constitution. See Pinner, 74 N.E.3d at 229 n.1
       (declining to review under state constitution after concluding federal constitution was violated).

       Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017                          Page 5 of 10
       229. When a seizure or search occurs without a warrant, the State has “the

       burden to prove that an exception to the warrant requirement existed at the

       time.” Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct. App. 2016) (quoting Brooks

       v. State, 934 N.E.2d 1234, 1240 (Ind. Ct. App. 2010), reh’g denied, trans. denied).


[11]   One exception to the warrant requirement is the Terry stop, which permits

       police officers to stop and briefly detain an individual if the officer has a

       reasonable and articulable suspicion that criminal activity may be afoot. 7 Terry

       v. Ohio, 392 U.S. 1 (1968). The dispatch Lt. Paris received, combined with his

       observation of K.G. in the expected location, provided reasonable suspicion for

       Lt. Paris to stop K.G. briefly to determine whether K.G. was a runaway or

       needed assistance calling for help. However, Lt. Paris did not simply stop K.G.

       and talk to him, Lt. Paris also conducted a pat-down search of K.G.


                In addition to detainment, Terry permits a reasonable search for
                weapons for the protection of the police officer, where the officer
                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. Officer safety is of
                paramount importance. Police officers are daily placed in
                difficult and dangerous situations, some of which are life
                threatening. The law has to provide protections for such officers.
                The officer need not be absolutely certain that the individual is




       7
         The State asserts on appeal: “With regard to Respondent’s Fourth Amendment claim, the initial encounter
       was consensual as Lt. Paris merely approached Respondent asking him what he was doing. There was no
       display of force, nor any indication to Respondent that negative consequences would follow if he failed to
       respond.” (Br. of Appellee at 8.) As Lt. Paris testified he ordered K.G. to stop, (Tr. Vol. 2 at 27) (“he was
       actually behind me at this point and I had to stop for – and tell him to stop”), we reject the State’s suggestion
       the interaction was consensual.

       Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017                             Page 6 of 10
                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.


       Mullen, 55 N.E.3d at 830-31.


[12]   Thus, the question we face is whether a reasonably prudent person facing the

       circumstances herein would have been warranted in believing his safety was in

       danger. Lt. Paris approached a teenager on the sidewalk in front of Kroger in

       Avon, Indiana, in the late morning on a Sunday in October. When Lt. Paris

       stopped K.G., he asked how old K.G. was. K.G. reported he was almost

       seventeen, and Lt. Paris asked if K.G. was a runaway. K.G. responded “no.”

       (Tr. Vol. 2 at 12.) Lt. Paris then asked if the two backpacks K.G. was carrying

       belonged to K.G. K.G. reported they belonged to “Jacob.” (Id. at 13.) When

       Lt. Paris asked for Jacob’s last name, K.G. “couldn’t give me a last name so I

       decided to pat him down for my own safety.” 8 (Id.)




       8
         Lt. Paris construed K.G.’s lack of answer as his being “evasive and nervous.” (Tr. Vol. 2 at 13.) The State,
       relying on a 1984 United States Supreme Court case, argues “nervous and evasive behavior is a pertinent
       factor in determining whether reasonable suspicion exists.” (Br. of Appellee at 13, citing Florida v. Rodriguez,
       469 U.S. 1, 6 (1984).) However, our Indiana Supreme Court recently reiterated: “nervousness is of limited
       significance when determining reasonable suspicion . . . because it is common for most people to exhibit
       signs of nervousness when confronted by a law enforcement officer whether or not the person is currently
       engaged in criminal activity.” Pinner, 74 N.E.3d at 233 (internal quotations and citations omitted). While
       evasiveness can combine with other factors to create reasonable concern for the safety of an officer or the
       public, see, e.g., Scisney v. State, 55 N.E.3d 321, 325 (Ind. Ct. App. 2016) (pat-down “constitutionally
       permissible” when Scisney did not respond to a question regarding whether he had any weapons), trans.
       denied, we cannot say K.G.’s evasiveness about the owner of the backpacks, under the specific circumstances
       that faced Lt. Paris, was sufficient to create reasonable concern for officer safety.

       Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017                            Page 7 of 10
[13]   On cross-examination, defense counsel asked Lt. Paris: “What concern for

       officer safety did you have?” (Id. at 24.)


               A      He was in possession of property according to him that did
               not belong to him, could not give me names of who it belonged
               to, the fact that he was under the age of 17, and he had
               ammunition on him I was concerned he might also have a
               weapon.


               Q    But at the time when you patted him down you did not
               know he had ammunition on him, is that correct?


               A        Not until I patted him down, no.


       (Id.) On re-direct examination, the following dialogue occurred:


               Q    Okay. And so during this interaction with [K.G.] did you
               become at any point concerned for your safety or the safety of
               anyone around?


               A        Yes.


               Q        Okay. And at what point did you put [K.G.] in handcuffs?


               A      Pretty much immediately after I found the ammunition in
               his pocket.


       (Id. at 28.) Then, on re-cross:


               Q      . . . you were concerned for . . . officer safety . . . is that
               right?



       Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017         Page 8 of 10
               A        Yes.


               Q       When were you concerned for officer safety? When did
               that first become a concern?


               A      It’s always a concern but when I found ammunition on
               him it became paramount at my [sic] point to get him secured.


       (Id. at 29.) 9


[14]   None of Lt. Paris’s testimony creates particularized reasonable suspicion that

       Lt. Paris’s safety was in danger because of K.G. or that K.G. was “an armed

       and dangerous individual,” Mullen, 55 N.E.3d at 831, prior to Lt. Paris finding

       the ammunition in K.G.’s pocket during the pat-down. As Lt. Paris needed

       particularized suspicion before he conducted that pat-down, K.G.’s Fourth

       Amendment right to be free of unreasonable search and seizure was violated by

       the pat-down, see Mitchell v. State, 745 N.E.2d 775, 781 (Ind. 2001) (holding pat-

       down of properly-stopped citizen violated Fourth Amendment when “the

       officer’s testimony did not express or explain any reasons for his safety

       concerns” to justify a search), and the juvenile court should have suppressed the

       evidence collected by Lt. Paris during and following the pat-down. As such,




       9
         We note Lt. Paris also testified that he “called for immediate back up,” (Tr. Vol. 2 at 30), because K.G.
       reported Jacob, who owned the backpacks, was still in the area, and Lt. Paris “didn’t know if there was a –
       he had a compatriot that was watching what we were doing.” (Id. at 30-31.) However, none of Lt. Paris’s
       testimony explained when Lt. Paris received that information from K.G. or when Lt. Paris called for backup.
       As the State has “the burden to prove” the admissibility of evidence seized without a warrant, Mullen, 55
       N.E.3d at 827, we decline to presume Lt. Paris had that information and called for backup prior to his pat-
       down of K.G.

       Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017                       Page 9 of 10
       there was no admissible evidence to support K.G.’s adjudication as a

       delinquent, and we must reverse that adjudication. See, e.g., L.W. v. State, 926

       N.E.2d 52, 60 (Ind. Ct. App. 2010) (where officer’s stop of juvenile was based

       on conjecture, rather than “specific and articulable facts” objectively

       implicating the particular juvenile stopped, Fourth Amendment was violated

       and delinquency adjudications had to be reversed), reh’g denied.



                                                 Conclusion
[15]   Because the State has not demonstrated that Officer Paris’s pat-down of K.G.

       during the Terry stop was supported by particularized reasonable suspicion, the

       pat-down was improper under the Fourth Amendment. The juvenile court,

       therefore, should have suppressed the ammunition found during that pat-down

       and all evidence discovered during the searches that occurred thereafter.

       Accordingly, we reverse the true findings of delinquency entered against K.G.


[16]   Reversed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1611-JV-2590 | July 31, 2017   Page 10 of 10
