                                                                              Feb 09 2016, 8:13 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Megan Shipley                                              Gregory F. Zoeller
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Angela N. Sanchez
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Nicole Miller,                                             February 9, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1507-CR-789
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Jose D. Salinas,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           49G14-1405-FD-25893



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A05-1507-CR-789 | February 9, 2016                    Page 1 of 8
[1]   Nicole Miller appeals the trial court’s interlocutory order denying her motion to

      suppress evidence. A police officer, responding to a call of a “disturbance” but

      lacking probable cause or reasonable suspicion of any criminal activity, asked

      Miller to speak with him. When she instead walked away, she was arrested for

      resisting law enforcement. Reasserting the principles of Gaddie v. State, 10

      N.E.3d 1249 (Ind. 2014), we find that this arrest violated Miller’s well-

      established right to walk away; consequently, the subsequent search incident to

      the arrest violated her Fourth Amendment rights. We reverse and remand.


                                                      Facts
[2]   On May 17, 2014, two Indianapolis police officers received a message over their

      radio that a woman was causing a disturbance at a local convenience store. As

      the officers arrived at the intersection, they saw a woman—later identified as

      Miller—walking across the street away from the store. An employee of the

      store came outside and pointed at her. The officers drove toward Miller and

      turned on their emergency lights.


[3]   By the time the officers pulled up, Miller was approaching the door of an

      apartment. One officer exited his vehicle and said, “Hey, I need to talk to

      you.” Tr. 10. Miller turned, looked at the officer, ignored him, and entered the

      apartment.


[4]   The officers went up to the porch of the residence and knocked on the door. A

      different woman answered and told the officers that Miller was using the

      restroom. Ten to fifteen minutes later, Miller came outside. When asked why

      Court of Appeals of Indiana | Opinion 49A05-1507-CR-789 | February 9, 2016   Page 2 of 8
      she did not initially stop to speak with the officer, she said, “I didn’t know what

      you wanted to talk to me about.” Tr. 11. The officer immediately placed

      Miller under arrest for resisting law enforcement. He patted her down and

      found what he believed to be Spice and a single Ecstasy pill.


[5]   The other officer then walked back to the convenience store and spoke with the

      clerk. The clerk alleged that he and Miller got into an argument over the price

      of a soda; he further alleged that Miller became upset and damaged the EBT

      card reader. All of this information was relayed to the arresting officer after the

      arrest and search had been completed.


[6]   On May 18, 2014, Miller was charged with class D felony possession of a

      controlled substance, class A misdemeanor criminal mischief, class A

      misdemeanor possession of a synthetic drug or synthetic drug lookalike, and

      class A misdemeanor resisting law enforcement. On March 18, 2015, Miller

      filed a motion to suppress the evidence found on her person, arguing that it was

      the product of an unconstitutional search. After an April 21, 2015, hearing, the

      trial court denied the motion, but certified the order for interlocutory appeal.

      We granted Miller’s motion for interlocutory appeal.


                                    Discussion and Decision
[7]   We review a trial court’s decision regarding the admission of evidence for an

      abuse of discretion. Smith v. State, 889 N.E.2d 836, 839 (Ind. Ct. App. 2008).

      An abuse of discretion occurs when the decision is clearly against the logic and

      effect of the facts before the trial court. Figures v. State, 920 N.E.2d 267, 271

      Court of Appeals of Indiana | Opinion 49A05-1507-CR-789 | February 9, 2016   Page 3 of 8
      (Ind. Ct. App. 2010). We consider any uncontested evidence favorable to the

      defendant, but we will not reweigh the evidence and will resolve any conflicts in

      the evidence in favor of the trial court’s ruling. Widduck v. State, 861 N.E.2d

      1267, 1269 (Ind. Ct. App. 2007). We conduct a de novo review of a trial court’s

      ruling on the constitutionality of a search or seizure. Belvedere v. State, 889

      N.E.2d 286, 287 (Ind. 2008).


[8]   Miller claims that the officers did not have probable cause to arrest her, and that

      therefore the subsequent search violated her Fourth Amendment rights. The

      Fourth Amendment to the United States Constitution protects “[t]he right of

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

      unreasonable searches and seizures. . . .” Typically, any search conducted

      without a warrant is unreasonable unless it falls within a “few specifically

      established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,

      357 (1967). One recognized exception is the search incident to arrest, Edwards

      v. State, 759 N.E.2d 626, 629 (Ind. 2001); but for a search incident to arrest to be

      valid, the initial arrest must be lawful. Jones v. State, 467 N.E.2d 1236, 1239

      (Ind. Ct. App. 1984). An arrest is lawful if it is supported by probable cause.

      K.K. v. State, 40 N.E.3d 488, 491 (Ind. Ct. App. 2015).


[9]   We make two initial observations. First, Miller’s arrest cannot be legitimized

      by her activities in the convenience store. At the time of her arrest, the officers

      only had a report of a “disturbance,” coupled with the clerk pointing at Miller.

      Our Supreme Court has explained that “a report of a disturbance, without



      Court of Appeals of Indiana | Opinion 49A05-1507-CR-789 | February 9, 2016   Page 4 of 8
       more, is not a sufficient basis upon which to conduct an investigatory stop,”

       much less an arrest. Gaddie v. State, 10 N.E.3d 1249, 1255 (Ind. 2014).


[10]   Second, Miller’s arrest cannot be legitimized by her jaywalking. It is true that

       Indianapolis-Marion County Municipal Code section 441-108(a) requires

       pedestrians to cross streets at intersections; that Indiana Code section 34-28-5-

       3(a) permits officers to detain violators of municipal codes in order to identify

       the person and inform her of the allegation; and that those who refuse to

       provide information to an officer who has stopped them for an ordinance

       violation commit a class C misdemeanor. I.C. § 34-28-5-3.5(1). But there is no

       evidence in the record that Miller refused to give the officers information, or

       that she was informed of the alleged violation. The undisputed evidence shows

       that the officer asked Miller why she did not stop, she answered, and then she

       was immediately placed under arrest.


[11]   We are left with the rationale on which the trial court relied: that the officer had

       probable cause to believe that Miller had committed the crime of resisting law

       enforcement by fleeing.1 That crime can be divided into three elements: (1)

       Miller knowingly fled; (2) from a law enforcement officer who had identified




       1
         The State has not argued, at the trial or appellate level, that the doctrine of inevitable discovery applies. See
       Nix v. Williams, 467 U.S. 431, 443-44 (1984). If the officers had spoken with the clerk before arresting Miller,
       they might have obtained probable cause to arrest Miller for criminal mischief, in which case they perhaps
       would have found the evidence at issue. We note, however, that the burden is on the State to prove that this
       exception to the warrant requirement applies. Clark v. State, 994 N.E.2d 252, 272 (Ind. 2013). As the State
       has not argued, much less proved, that this exception applies, the doctrine of inevitable discovery cannot be a
       basis to admit the evidence at issue.

       Court of Appeals of Indiana | Opinion 49A05-1507-CR-789 | February 9, 2016                             Page 5 of 8
       himself or herself; (3) after that officer ordered the person to stop. Ind. Code §

       35-44.1-3-1.


[12]   The parties argue over whether the officer’s statement, “Hey, I need to talk to

       you,” along with his flashing emergency lights, constituted an order to stop.

       We find these arguments to be beside the point; following our Supreme Court’s

       decision in Gaddie, we believe that even if Miller had disobeyed a direct and

       unambiguous order from the officer to stop, she could not be subjected to an

       arrest or a search based solely on her failure to obey the order.


[13]   Prior to Gaddie, some appellate decisions upheld convictions for resisting law

       enforcement even where the police had no basis to order the defendant to stop.

       See, e.g., Cole v. State, 878 N.E.2d 882, 886 (Ind. Ct. App. 2007) (“we do not

       even need to decide whether Officer Decker had reasonable suspicion to stop

       Cole because Cole had no right to flee from . . . Officer Decker”); Daindridge v.

       State, 810 N.E.2d 746, 749 (Ind. Ct. App. 2004) (“[i]n Indiana, an individual

       may not flee from a police officer who has ordered the person to stop, regardless

       of the apparent or ultimate lawfulness of the officer’s order”).


[14]   Our Supreme Court abrogated this line of cases, holding that the third element

       of the resisting law enforcement by fleeing statute “must be understood to

       require that such order to stop rest on probable cause or reasonable suspicion,

       that is, specific, articulable facts that would lead the officer to reasonably

       suspect that criminal activity is afoot.” Gaddie, 10 N.E.3d at 1255. Anything

       less would violate a “person’s well-established freedom to walk away. . . .” Id.


       Court of Appeals of Indiana | Opinion 49A05-1507-CR-789 | February 9, 2016   Page 6 of 8
       at 1254. Since that officer lacked probable cause or reasonable suspicion that a

       crime other than resisting law enforcement was taking place, Gaddie’s

       conviction was vacated. Id. at 1256.


[15]   Although the present case comes to us in a different procedural posture—a

       motion to suppress evidence rather than a conviction for resisting law

       enforcement—we find Gaddie’s rationale to compel a reversal. Our Supreme

       Court recognized that a person’s freedom to walk away is rendered illusory if

       she is subjected to criminal penalty for exercising that freedom. Just the same,

       a person’s freedom to walk away is rendered illusory if she is subjected to arrest

       for exercising that freedom.2


[16]   If a conviction for resisting law enforcement cannot be sustained, absent

       probable cause or reasonable suspicion of criminal activity, without running

       afoul of the Fourth Amendment, neither can an arrest. And if such an arrest

       cannot be constitutionally sustained, neither can the search incident to that

       arrest. 3




       2
        We emphasize, however, that the freedom to walk away from police is not absolute, and would be limited
       by probable cause or reasonable suspicion that criminal activity is afoot, or in certain “community caretaker”
       exceptions. See Gaddie, 10 N.E.3d at 1255 n.3. None of these circumstances are present in this case.
       3
        Because we find that the search violated Miller’s Fourth Amendment rights, we decline to address her
       argument regarding the Indiana Constitution as it would be superfluous.

       Court of Appeals of Indiana | Opinion 49A05-1507-CR-789 | February 9, 2016                         Page 7 of 8
[17]   The judgment of the trial court is reversed and remanded for further

       proceedings consistent with this opinion.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1507-CR-789 | February 9, 2016   Page 8 of 8
