                                                                            FILED
                                                                     Nov 07 2016, 9:23 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Johnson                                              Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana

Darren Bedwell                                            Monika Prekopa Talbot
Marion County Public Defender                             Christina Pace
Appellate Division                                        Deputy Attorneys General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jordan Jacobs,                                            November 7, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1601-CR-19
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Linda Brown,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G10-1509-CM-31258



Bradford, Judge.



Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                    Page 1 of 28
                                           Case Summary
[1]   On September 2, 2015, eighteen-year-old Appellant-Defendant Jordan Jacobs

      was arrested after he was found to be in possession of a handgun without

      having a license for said handgun. Appellee-Plaintiff the State of Indiana (“the

      State”) subsequently charged Jacobs with Class A misdemeanor carrying a

      handgun without a license. Following a bench trial, Jacobs was found guilty as

      charged. Jacobs challenges his conviction on appeal, arguing that the trial court

      abused its discretion in admitting the handgun into evidence at trial. We

      affirm.



                            Facts and Procedural History                                1




[2]   In late-August or early-September of 2015, Indianapolis Metropolitan Police

      Officer Terry Smith, a detective assigned to investigate potential gang activity,

      received a complaint from the district commander that there had been multiple

      runs to the Blackburn Terrace Apartments on East 30th Street because of shots

      fired by juveniles who wore red clothing and were possible gang members. The

      Blackburn Terrace Apartments are located in an area which is known to be a

      high-crime neighborhood. After receiving the complaint from the district

      commander, Officer Smith went to the Blackburn Terrace Apartments during




      1
        We held oral argument in this case on October 6, 2016, at Peru High School in Miami County. We thank
      the members of the Miami County Bar Association and the students, faculty, and staff of Peru High School
      for their gracious hospitality. We also commend counsel for the high quality of their arguments.

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                    Page 2 of 28
      school hours at approximately 2:00 p.m. on September 2, 2015. Officer Smith

      observed a group of individuals, many of whom appeared to be juveniles of

      school age, gathered in a park located just south of the apartment complex.

      Officer Smith also observed that some of the individuals were wearing red,

      which Officer Smith knew to be a gang color. Jacobs was present with the

      group and at one point had a red t-shirt slung across his shoulder.


[3]   Officer Smith watched the group, which was gathered around a picnic table, for

      several hours. He noticed a number of individuals come and go, including

      several adult males. At some point, Officer Smith’s attention was drawn to

      Jacobs, whom Officer Smith believed to be a juvenile. Officer Smith observed

      that when a park ranger in a marked vehicle approached the vicinity where the

      group was located, Jacobs and another individual, who also appeared to be a

      juvenile, left the group and began walking west toward the apartment complex.

      Officer Smith observed that Jacobs and the other individual ended up on 30 th

      Street. Jacobs and the other individual returned to the group after the park

      ranger left the area. In light of his observations, including the “coming and

      going” of a number of individuals, many of whom were wearing a known gang

      color and that many of the juveniles appeared to be of school age but were not

      in school, Officer Smith contacted the north district and requested that marked

      units be sent to assist in “stopping” the group. Tr. p. 8.


[4]   As the marked police vehicles began approaching from the east, Jacobs and the

      other individual again began to quickly walk away from the group, again

      heading west. As the police came closer, Jacobs and the other individual

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 3 of 28
      picked up their pace. Officer Smith, who was wearing a vest reading “police”

      on the front, instructed Jacobs and the other individual to stop. Tr. p. 9. The

      other individual complied with Officer Smith’s instruction and stopped, but

      Jacobs continued walking.


[5]   After Jacobs failed to comply with Officer Smith’s instruction to stop, Officer

      Smith and Indianapolis Metropolitan Police Officer Jeremiah Casavan ordered

      Jacobs to the ground. Jacobs complied with this order. Jacobs was placed in

      handcuffs but told that he was not under arrest. Officers Smith and Casavan

      escorted Jacobs and the other individual to the park shelter where the other

      members of the group were gathered.


[6]   As Officer Casavan was escorting Jacobs to the park shelters, he looked at

      Jacobs’s clothing and observed the outline of a handgun in Jacobs’s front right

      pocket. Officer Casavan asked Jacobs whether he had any weapons on him.

      Jacobs responded that he did not. Officer Casavan then reached inside Jacobs’s

      pocket and removed the handgun. Jacobs was thereafter placed under arrest.


[7]   On September 13, 2015, the State charged Jacobs with Class A misdemeanor

      carrying a handgun without a license. The trial court conducted a bench trial

      on November 10, 2015. During trial, the State sought to admit the handgun

      into evidence. Jacobs objected to admission of the handgun, arguing that it was

      recovered in violation of both the Fourth Amendment to the United States

      Constitution (“Fourth Amendment”) and Article I, Section 11 of the Indiana

      Constitution (“Article I, Section 11”). The trial court admitted the handgun


      Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 4 of 28
      into evidence over Jacobs’s objection. The State also presented evidence at trial

      that Jacobs did not have a license to carry the handgun. The trial court took the

      matter under advisement, after which it found Jacobs guilty as charged. The

      trial court subsequently sentenced Jacobs to a term of 365 days with 357 of

      those days suspended to probation.



                                 Discussion and Decision
[8]   Jacobs contends that the trial court abused its discretion in admitting the

      handgun into evidence at trial because the handgun was recovered in violation

      of Jacob’s rights under the Fourth Amendment and Article I, Section 11.


                                      I. Standard of Review
[9]           The trial court has broad discretion to rule on the admissibility of
              evidence. [Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013)].
              We review its rulings “for abuse of that discretion and reverse
              only when admission is clearly against the logic and effect of the
              facts and circumstances and the error affects a party’s substantial
              rights.” [Id. at 260]. But when an appellant’s challenge to such a
              ruling is predicated on an argument that impugns the
              constitutionality of the search or seizure of the evidence, it raises
              a question of law, and we consider that question de novo. Kelly
              v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).


      Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014). Further, when reviewing a

      trial court’s ruling on the admissibility of evidence obtained from an allegedly

      illegal search, we do not reweigh the evidence but defer to the trial court’s

      factual determinations unless clearly erroneous. Hansbrough v. State, 49 N.E.3d


      Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 5 of 28
       1112, 1114-15 (Ind. Ct. App. 2016) (citing Meredith v. State, 906 N.E.2d 867,

       869 (Ind. 2009)), trans. denied. “We view conflicting evidence most favorable to

       the ruling, and we consider ‘afresh any legal question of the constitutionality of

       a search and seizure.’” Id. (quoting Meredith, 906 N.E.2d at 869).

                                 II. The Fourth Amendment
[10]   Jacobs argues that the warrantless search of his person was conducted in

       violation of his Fourth Amendment rights.


                                           A. Legal Authority
[11]           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....” “[T]he ultimate touchstone of the Fourth
               Amendment is ‘reasonableness[.]’” Brigham City v. Stuart, 547
               U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). We
               approach cases involving warrantless searches with the basic
               understanding that “searches conducted outside the judicial
               process, without prior approval by judge or magistrate, are per se
               unreasonable under the Fourth Amendment—subject only to a
               few specifically established and well-delineated exceptions.”
               Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d
               485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88
               S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted)). Where
               there is no clear practice concerning the constitutionality of a
               search, the reasonableness of the search is judged by balancing
               “the degree to which it intrudes upon an individual’s privacy and
               ... the degree to which it is needed for the promotion of legitimate
               governmental interests.” Wyoming v. Houghton, 526 U.S. 295,
               299-300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 6 of 28
       Wertz v. State, 41 N.E.3d 276, 279 (Ind. Ct. App. 2015) (emphasis to words “per

       se” in original), trans. denied. Application of the Fourth Amendment has been

       extended to the States through the Due Process Clause of the Fourteenth

       Amendment. Hansbrough, 49 N.E.3d at 1114-15.


[12]           An officer may briefly detain someone to investigate, without a
               warrant or probable cause, if specific and articulable facts and the
               rational inferences therefrom give the officer “reasonable
               suspicion that criminal activity ‘may be afoot.’” Moultry v. State,
               808 N.E.2d 168, 171 (Ind. Ct. App. 2004). To determine
               whether there was reasonable suspicion, we must determine
               whether the totality of the circumstances show “the detaining
               officer had a particularized and objective basis for suspecting
               legal wrongdoing.” [Johnson v. State, 992 N.E.2d 955, 958 (Ind.
               Ct. App. 2013), trans. denied]. During such an investigatory stop,
               a police officer may conduct a

                        reasonable 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.


               Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889
               (1968).


       D.F. v. State, 34 N.E.3d 686, 689 (Ind. Ct. App. 2015), trans. denied. “Although

       reasonable suspicion requires more than inchoate and unparticularized

       hunches, it is a less demanding standard than probable cause and requires a

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 7 of 28
       showing of ‘considerably less’ proof than that required to establish wrongdoing

       by a preponderance of the evidence.” Bridgewater v. State, 793 N.E.2d 1097,

       1100 (Ind. Ct. App. 2003) (quoting Cardwell v. State, 666 N.E.2d 420, 422 (Ind.

       Ct. App. 1996), trans. denied).


                                                    B. Analysis
[13]   In arguing that the handgun was recovered in violation of his Fourth

       Amendment rights, Jacobs asserts that Officers Smith and Casavan lacked

       reasonable suspicion that he was engaged in criminal activity. For its part, the

       State asserts that the handgun was not recovered in violation of Jacobs’s Fourth

       Amendment rights because at the time Jacobs was detained, Officers Smith and

       Casavan had reasonable suspicion to believe that Jacobs was committing the

       status offense of truancy.2


[14]   A determination of whether the totality of the circumstances indicate that the

       law enforcement officer had reasonable suspicion to believe that criminal

       activity was afoot includes a determination of whether the defendant’s own

       actions were suspicious. Stalling v. State, 713 N.E.2d 922, 924 (Ind. Ct. App.

       1999). Further, while presence in a high-crime neighborhood alone may not

       constitute reasonable suspicion, presence in a high-crime area can be considered




       2
         Status offenses, including truancy, are offenses that would not be a crime if committed by an adult, but for
       which a juvenile may still be adjudicated to be a delinquent child. See R.B. v. State, 839 N.E.2d 1282, 1284
       (Ind. Ct. App. 2005) (providing that status offenses include leaving home without permission; truancy;
       habitually disobeying the reasonable and lawful commands of the child’s parent, guardian, or custodian;
       violating curfew; and violating laws concerning minors and alcoholic beverages).

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                          Page 8 of 28
as a factor in the totality of the circumstances confronting an officer at the time

of a stop. Bridgewater, 793 N.E.2d at 1100. Similarly, avoiding the police or

turning away from them is not enough by itself to constitute reasonable

suspicion.


        However, we note the [United States] Supreme Court’s comment
        that “[N]ervous, evasive behavior is a pertinent factor in
        determining reasonable suspicion. Headlong flight—wherever it
        occurs—is the consummate act of evasion: it is not necessarily
        indicative of wrongdoing, but it is certainly suggestive of such.”
        Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145
        L.Ed.2d 570 (2000) (citations omitted). The Supreme Court
        noted that allowing police and the courts to consider flight as a
        factor in determining whether reasonable suspicion existed does
        not conflict with the principle that an individual has the right to
        ignore police and go about his business if the officer approaches
        an individual without probable cause. The Court explained:


                 [A]ny “refusal to cooperate, without more, does not
                 furnish the minimal level of objective justification
                 needed for a detention or seizure.” But unprovoked
                 flight is simply not a mere refusal to cooperate.
                 Flight, by its very nature, is not “going about one’s
                 business”; in fact, it is just the opposite. Allowing
                 officers confronted with such flight to stop the
                 fugitive and investigate further is quite consistent
                 with the individual’s right to go about his business or
                 to stay put and remain silent in the face of police
                 questioning.


        Id. at 125, 120 S.Ct. at 676 (citations omitted).

        Judicial interpretation of what constitutes “reasonable suspicion”


Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 9 of 28
               is fact-sensitive. Wilson v. State, 670 N.E.2d 27, 30-31 (Ind. Ct.
               App. 1996).


       Id.


                                       1. Stalling and Bridgewater

[15]   In support of his claim that the handgun was recovered in violation of his

       Fourth Amendment rights, Jacobs relies on this court’s opinions in Stalling and

       Bridgewater. In Stalling, investigating officers observed a young man who was

       known to be a truant standing on a street corner with a group of four to five

       other young men, one of whom was later identified to be Stalling. 713 N.E.2d

       at 923. The young men had congregated in an empty lot near the street corner

       and across the street from a local food mart. Id. The area was known to be a

       high crime area as it had been the site of a number of incidents of robbery, drug

       dealing, and gun shots being fired. Id. Given that it was around noon on a

       school day, the officers approached the suspected truant. As the officers

       approached, the suspected truant rode away on his bicycle and the rest of the

       group began to disperse. Id. One of the officers recognized Stalling from a

       previous investigation and observed him “move as if to place something into

       the waistband of his pants near the belt buckle.” Id. The officer then

       confronted Stalling, who remained standing in front of the officer but did not

       say anything. Id. The officer approached Stalling and conducted a patdown

       search during which he found a plastic baggy containing two small rocks of

       cocaine. Id. Stalling was then arrested and charged with possession of cocaine.

       Id.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016    Page 10 of 28
[16]   Stalling argued on appeal that all evidence relating to the bag containing the

       cocaine should have been excluded because it was recovered in violation of his

       Fourth Amendment rights. Upon review, this court concluded that the facts

       presented “would not cause an ordinarily prudent person to believe that

       criminal activity had or was about to occur.” Id. at 925. In reaching this

       conclusion, the court stated that “merely looking suspicious is not sufficient to

       overcome Fourth Amendment protections against arbitrary and abusive police

       practices.” Id. (internal citations omitted).


[17]   Likewise, in Bridgewater, officers were patrolling a high crime area at

       approximately 11:30 p.m. when the officers observed Bridgewater standing

       outside an apartment building talking with an older man and woman.

       Bridgewater, 793 N.E.2d at 1099.


               After observing the three people for several minutes, the officers
               drove by the building. Bridgewater ran inside the building,
               closed the door, and watched the officers from an upstairs
               window.

               After a few minutes, Bridgewater came back outside and
               continued to talk to the older man who remained outside. The
               officers then walked down the sidewalk toward the building.
               When the officers approached, Bridgewater looked at them and
               then ran inside the building again. The officers had talked to the
               older man for a few minutes when Bridgewater and another man
               came out of the building and walked past the officers.



       Id. One of the officers then stopped Bridgewater, asked him why he had run

       when he saw them, and instructed Bridgewater to remove his hands from his
       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 11 of 28
       jacket pockets. Id. Bridgewater initially complied but then put his hands back

       in his pockets. Id. At that point, the officer decided to perform a pat-down

       search for weapons to ensure his safety. Id. While the officer was patting down

       Bridgewater’s pants, he felt a large bag. Id. It was immediately apparent to the

       officer that the object was a bag of cocaine. Id. Bridgewater was then placed

       under arrest and a bag containing cocaine and marijuana was removed from his

       pants. Id.


[18]   Bridgewater argued on appeal that all evidence relating to the bag containing

       the cocaine and marijuana should have been excluded because it was recovered

       in violation of his Fourth Amendment rights. Upon review, this court

       concluded that the State failed to demonstrate facts that the officers had the

       requisite reasonable suspicion of criminal activity to complete the investigatory

       search. Id. at 1103. In reaching this conclusion, the court stated the following:


               We recognize that the officers were watching the apartment
               building because of complaints about drug dealing and that the
               building was located in a high-crime-area. We also do not
               minimize the fact that Bridgewater twice fled into the building
               after seeing the officers. However, the officers did not observe
               any sort of transaction or interaction among Bridgewater and the
               other two people standing with him other than talking. He was
               not carrying anything unusual, nor was he doing anything else
               suspicious. The mere fact that he walked or ran from the police
               into the building is simply not enough to meet the State’s burden
               in this case.



       Id.


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 12 of 28
                                            2. The Instant Matter

[19]   Upon review, we conclude that the circumstances are such that both Bridgewater

       and Stalling can be distinguished from the instant matter. The record reveals

       that at approximately 2:00 p.m. on September 2, 2015, Officer Smith observed

       “several juveniles who looked like they should be in school [like] they were

       school age.” Tr. p. 7. Jacobs, who himself appeared to be a juvenile, was

       congregated with this group. Some members of the group were wearing red, a

       known gang color in the area, and Jacobs had a red shirt flung over his shoulder

       at some point. Officer Smith testified that he was watching the park because

       there had been reports of gang activity and juveniles engaging in gun violence.

       While watching the park, Officer Smith observed that Jacobs “and another

       juvenile” walked away quickly when the park ranger approached. Tr. p. 8.

       One could reasonably infer from this statement that Officer Smith believed that

       both Jacobs and the other individual were juveniles.


[20]   Furthermore, Officer Casavan testified that he responded to a call from Officer

       Smith who indicated that he had observed “several juveniles hanging out in the

       park during the day during school hours.” Tr. pp. 20-21. Officer Casavan also

       testified that when he stopped Jacobs, “I still thought he was a juvenile.” Tr. p.

       25. In addition, Officer Casavan indicated that upon detaining Jacobs, he

       walked him over to the shelters “where the other juveniles had remained.” Tr.

       p. 24. Again, one could reasonably infer from this statement that Officer

       Casavan believed that Jacobs was a juvenile.



       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 13 of 28
[21]   In addition, while flight alone is not sufficient to establish reasonable suspicion

       of wrongdoing, it is a factor that could be considered. See Bridgewater, 793

       N.E.2d at 1100. In fact, the Indiana Supreme Court has held that evidence of

       flight may be considered as circumstantial evidence of consciousness of guilt.

       See Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015). The fact that Jacobs and

       another apparent juvenile left each time a law enforcement official approached

       the area could reasonably lead Officer Smith to believe that Jacobs and his

       cohort had a consciousness of guilt for being in the park at a time when they

       should have been in school.


[22]   Further, as is stated above, in determining whether an officer had reasonable

       suspicion of criminal or delinquent activity, the trial court should consider the

       totality of the circumstances. See Stalling, 713 N.E.2d at 924. This includes

       consideration of whether a defendant’s actions were suspicious. Id. Jacobs’s

       actions were indeed suspicious. Jacobs, who appeared to be a juvenile, was

       congregating for a relatively lengthy period of time with suspected gang

       members in a park during a time of day that juveniles should have been in

       school and was in possession of gang colors himself. Jacobs quickly left the

       area where the group was congregated whenever he observed law enforcement

       in the general vicinity, returned only after law enforcement had left the general

       vicinity, and increased his speed in leaving the area as law enforcement came

       closer. In addition, Jacobs failed to stop when initially ordered to do so by

       Officer Smith. On top of these facts, Jacobs and the group were congregated in

       a high crime area where there had been recent episodes of violence, i.e., the


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 14 of 28
       firing of gunshots by juveniles who were believed to be gang members. Upon

       review, we conclude that these facts are sufficient to establish reasonable

       suspicion that Jacobs was engaged in criminal activity. Jacobs failed to

       establish that the search of his person was conducted in violation of his rights

       under the Fourth Amendment.3


[23]   In addition, review of the record further indicates that the search of Jacobs’s

       person, which again occurred after the initial detention, was supported by

       reasonable suspicion. The record reveals that after the initial detention, Jacobs

       lied about being in possession of a weapon despite the fact that the outline of

       the weapon in his pocket was clearly visible. Because he could clearly see the

       outline of the weapon in Jacobs’s pocket, Officer Casavan had reasonable

       suspicion to believe that Jacobs was armed despite his lie indicating otherwise.


                                       III. Article I, Section 11
[24]   Jacobs alternatively argues that even if the search of his person was not

       conducted in violation of his Fourth Amendment rights, it was conducted in

       violation of his rights under Article I, Section 11.




       3
          We note that to the extent that Jacobs relies on the Indiana Supreme Court’s opinion in Gaddie v. State, 10
       N.E.3d 1249 (Ind. 2014), for the proposition that he acted within his rights by continuing to walk away after
       being ordered to stop by Officer Smith, Jacobs’s reliance on Gaddie is misplaced because we conclude that
       Officer Smith had reasonable suspicion to believe that Jacobs was committing the status offense of truancy
       when he stopped Jacobs. In Gaddie, the Indiana Supreme Court held that a person cannot be held criminally
       liable for walking away from a police officer when the officer stops the individual without reasonable suspicion
       or probable cause. 10 N.E.3d at 1254 (emphasis added).

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                          Page 15 of 28
                                           A. Legal Authority
[25]   Article I, Section 11 reads:

               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.


       “Although this language tracks the Fourth Amendment verbatim, we proceed

       somewhat differently when analyzing the language under the Indiana

       Constitution than when considering the same language under the Federal

       Constitution.” Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006). “Instead of

       focusing on the defendant’s reasonable expectation of privacy, we focus on the

       actions of the police officer, concluding that the search is legitimate where it is

       reasonable given the totality of the circumstances.” Id. The State has the

       burden to demonstrate that the police intrusion was reasonable. D.F., 34

       N.E.3d at 690.


[26]   When reviewing whether the police intrusion was reasonable, we will consider

       the following factors in assessing reasonableness: “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,

       and 3) the extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356,

       361 (Ind. 2005). When considering the degree of intrusion, we consider the

       nature of the privacy interest upon which the search intrudes and the character

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 16 of 28
       of the intrusion itself. D.F., 34 N.E.2d at 690 (internal citation and quotation

       omitted). The degree of intrusion is viewed from the point of view of the

       defendant. See Duran v. State, 930 N.E.2d 10, 19 (Ind. 2010).


                                                 B. Analysis
                 1. Degree of Concern, Suspicion, or Knowledge of Wrongdoing

[27]   Jacobs argues that the police intrusion was unreasonable because Officer Smith

       had little suspicion that criminal or delinquent activity was occurring. In

       making this argument, Jacobs acknowledges that many of the individuals

       congregated together appeared to be juveniles and were either wearing or in

       possession of gang colors but notes that the reported gang activity and gunfire

       had not occurred on the day in question. Moreover, Jacobs argues that because

       truancy is not a crime but rather a status offense, see W.R.S. v. State, 759 N.E.2d

       1121, 1124 (Ind. Ct. App. 2001), the fact that a number of the individuals

       congregated appeared to be truant from school should not be found to be

       sufficient to reasonably lead one to suspect that criminal or delinquent activity

       had occurred. We disagree.


[28]   Review of the record indicates that when Officer Smith arrived at the park, it

       appeared that a number of the individuals gathered were school-age juveniles

       who were truant from school. In addition, although it turned out that Jacobs

       was eighteen at the time he was arrested, Jacobs looked as if he were a juvenile,

       leading Officers Smith and Casavan to believe that he could have also been one

       of the individuals truant from school. The group, which again included Jacobs,


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 17 of 28
       was congregated in a high-crime area with many of the individuals wearing or

       in possession of gang colors. There had been multiple recent police runs to the

       area because of reports of gunshots fired by juveniles who were suspected to be

       gang members. In addition, Jacobs and another apparent juvenile walked away

       from the group any time a law enforcement official approached. Jacobs also

       refused to stop when initially ordered to so do by Officer Smith. This flight

       could be considered circumstantial evidence that Jacobs and his cohort had a

       consciousness of guilt, i.e., that they knew they should have been in school

       rather than in the park on the afternoon in question. See Myers, 27 N.E.3d at

       1077. At the very least, this behavior was arguably suspicious and could have

       reasonably lead Officers Smith and Casavan to suspect that Jacobs and his

       cohort were hiding something.


[29]   The totality of the circumstances are sufficient to give rise to a high degree of

       suspicion that criminal or delinquent activity was occurring or had just

       occurred. We will therefore consider this factor in the State’s favor.


                                            2. Degree of Intrusion

[30]   Jacobs also argues that the police intrusion was unreasonable because the

       degree of intrusion upon him was high. The State acknowledges that the degree

       of intrusion was not minimal because the police instructed Jacobs to lie on the

       ground, handcuffed him, and then took him to the area where the rest of the

       group was located. We note, however, that while the degree of intrusion on

       Jacobs was undoubtedly high, the degree of the intrusion was increased because


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 18 of 28
       of Jacobs’s own actions, namely his failure to stop when instructed by Officer

       Smith to do so. We will nevertheless consider this factor in Jacobs’s favor.


                                         3. Law Enforcement Needs

[31]   Jacobs last argues that the law enforcement needs in the instant matter were

       minimal. We cannot agree. Officer Smith was sent to investigate possible gang

       activity in a high-crime area where there had been recent reports of gunshots

       being fired by potential gang members. It is reasonable to infer that the needs of

       law enforcement to protect the community by attempting to stop this repeated

       gun violence were great.


[32]   Further, Jacobs and his companions looked as if they could have been the

       suspected juvenile gang members who were believed to be responsible for the

       recent reports of gunshots fired. Many of those gathered were either wearing or

       in possession of gang colors. While Jacobs was not wearing the gang colors, at

       one point during Officer Smith’s observation of the group Jacobs had a t-shirt

       matching the gang colors slung across his shoulder. Further, it appeared that at

       least some of those gathered were truant from school. Jacobs, himself, looked

       as if he could have been committing the status offense of truancy. In addition,

       Jacobs behaved in a suspicious fashion whenever law enforcement approached

       the vicinity where the group was gathered, indicating a possible consciousness

       of guilt. It is also of note that after the initial detention but before the search of

       Jacobs’s person, Jacobs lied to Officer Casavan, who could clearly see the

       outline of the handgun in Jacobs’s pocket as he walked Jacobs back to the rest

       of the group after restricting Jacobs but before placing him under arrest, about
       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 19 of 28
       whether he was in possession of a weapon. The facts support a finding that law

       enforcements needs were great. We will therefore consider this factor in the

       State’s favor.


[33]   Because we conclude that two of the three Litchfield factors should be

       considered in the State’s favor, we further conclude the detention of Jacobs and

       the subsequent search of his person were not completed in violation of Jacobs’s

       rights under Article I, Section 11.



                                                Conclusion
[34]   Having concluded that the handgun in question was not recovered in violation

       of either the Fourth Amendment or Article I, Section 11, we conclude that the

       trial court did not abuse its discretion in admitting the handgun into evidence.


[35]   The judgment of the trial court is affirmed.


       Altice, J., concurs.


       Crone, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 20 of 28
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Jordan Jacobs,                                            Court of Appeals Case No.
                                                                 49A02-1601-CR-19
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Crone, Judge, dissenting.


[36]   In reversing a criminal defendant’s conviction almost a century ago, the Indiana

       Supreme Court stated, “‘Refusal to receive evidence when illegally seized tends

       to discourage the practice and thereby protects the innocent as well as the guilty

       from obnoxious and disgraceful invasions of their right to privacy and retains

       the Fourth Amendment and similar state constitutional provisions

       unimpaired.’” Evans v. State, 198 Ind. 487, 490, 154 N.E. 280, 281 (1926)




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016             Page 21 of 28
       (quoting CORNELIUS ON SEARCH AND SEIZURE at 56).4 In this case, Jacobs is

       undeniably guilty of carrying a handgun without a license. But in holding that

       the police did not invade his right to privacy by ordering him to the ground and

       handcuffing him based on a tenuous suspicion of truancy, the majority has

       impaired the Fourth Amendment and Article 1, Section 11 of the Indiana

       Constitution for innocent Hoosiers who wish to exercise their constitutional

       right to walk away from approaching officers who have no valid reason to

       detain them. See Gaddie v. State, 10 N.E.3d 1249, 1254 (Ind. 2014) (“A person

       approached by police ‘need not answer any question put to him; indeed, he may

       decline to listen to the questions at all and may go on his way. He may not be

       detained even momentarily without reasonable, objective grounds for doing so

       ….’”) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).5


                                              Fourth Amendment
[37]   “The Fourth Amendment to the U.S. Constitution protects persons from

       unreasonable search and seizure by prohibiting, as a general rule, searches and




       4
         See also Minnesota v. Carter, 525 U.S. 83, 109 (1998) (“If the illegality of the activity made constitutional an
       otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only,
       would have little force in regulating police behavior toward either the innocent or the guilty.”) (Ginsburg, J.,
       dissenting); United States v. Quinn, 751 F.2d 980, 981 (9th Cir. 1984) (“The Fourth Amendment protects the
       guilty because only by doing so can the innocent be protected. The innocent are not mere incidental
       beneficiaries of an amendment designed to protect the guilty. The innocent are its primary beneficiaries; the
       reasonableness of any expectation of privacy should be ascertained from their standpoint.”) (Sneed, J.,
       dissenting), cert. dismissed (1986).
       5
         See also Olmstead v. United States, 277 U.S. 438, 478 (1928) (“The makers of our Constitution undertook to
       secure conditions favorable to the pursuit of happiness.… They conferred, as against the government, the
       right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”)
       (Brandeis, J., dissenting).

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                            Page 22 of 28
       seizures conducted without a warrant supported by probable cause.” Clark, 994

       at 260. “When a defendant challenges a warrantless search, it is the State’s

       burden to prove the search fell within an exception to the warrant

       requirement.” J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App. 2014). A person

       may be detained without a warrant on less than probable cause if the officer has

       a justifiable suspicion that “the suspect has committed a crime, providing the

       intrusiveness and nature of the seizure is ‘reasonably related in scope to the

       justification for [its] initiation. The officer must be able to point to specific and

       articulable facts which reasonably warrant the intrusion upon the individual’s

       right of privacy.’” Manigault v. State, 881 N.E.2d 679, 685 (Ind. Ct. App. 2008)

       (alteration in Manigault) (quoting Terry, 392 U.S. at 21). “Reasonable suspicion

       entails at least a minimal level of objective justification that is more than an

       unparticularized suspicion or hunch.” Pugh v. State, 52 N.E.3d 955, 964-65

       (Ind. Ct. App. 2016), trans. denied. “Even if justified, a reasonable suspicion

       only permits the officer to temporarily freeze the situation for inquiry and does

       not give him all the rights attendant to an arrest.” Burkett v. State, 736 N.E.2d

       304, 306 (Ind. Ct. App. 2000).


[38]   The only arguably relevant facts that Officers Smith and Casavan were able to

       articulate as a basis for invading Jacobs’s privacy are that he appeared to be a

       juvenile who should have been in school that afternoon,6 walked away from



       6
        Officer Smith did not specifically state that Jacobs himself appeared to be a juvenile; he merely referred to
       Jacobs “and another juvenile[,]” apparently implying that Jacobs also was a juvenile, which he was not. Tr.
       at 8 (emphasis added).

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                         Page 23 of 28
       two marked vehicles that approached him, and disregarded Officer Smith’s

       order to stop. Officer Smith was conducting surveillance based on reports that

       allegedly gang-affiliated juveniles wearing red clothing had fired gunshots in the

       area several days earlier. He watched Jacobs for several hours and saw nothing

       to indicate that Jacobs had a gun or was engaging in any gang-related or

       criminal activity. Jacobs wore no red clothing that day,7 nor did he flee from

       the park ranger or the police officers. Instead, Jacobs merely walked quickly

       away from them, which was his constitutional right as well as an

       understandable response in light of well-publicized encounters between law

       enforcement authorities and other young African-American males. This Court

       has previously stated that “[t]he color of one’s skin, the neighborhood one

       happens to be in, and the fact that one turns away from the police are not

       sufficient, individually or collectively, to establish a reasonable suspicion of

       criminal activity.” Tumblin v. State, 664 N.E.2d 783, 785 (Ind. Ct. App. 1996)

       (citing Williams v. State, 477 N.E.2d 96, 99 (Ind. 1985)).8


[39]   Under the Fourth Amendment, “[t]he baseline rule is that a search or seizure is

       ordinarily unreasonable absent individualized suspicion of criminal activity.”




       7
         Officer Smith testified only that Jacobs had a red t-shirt slung over his shoulder for an unspecified length of
       time. There is no evidence that Jacobs owned the t-shirt or had it in his possession when the officers stopped
       him.
       8
         The majority finds it “suspicious” that “Jacobs, who appeared to be a juvenile, was congregating for a
       relatively lengthy period of time with suspected gang members in a park during a time of day that juveniles
       should have been in school ….” Slip op. at 14. Under that logic, the same could be said for the same group
       of juveniles waiting on a school bus in that neighborhood.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                           Page 24 of 28
       State v. Gerschoffer, 763 N.E.2d 960, 964 (Ind. 2002) (emphasis added) (citing

       City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000)). “[M]erely ‘looking

       suspicious’ is not sufficient to overcome Fourth Amendment protections against

       arbitrary and abusive police practices.” Stalling, 713 N.E.2d at 925 (quoting

       Tumblin, 664 N.E.2d at 784). At most, the officers reasonably could have

       suspected that Jacobs was truant from school, which is a status offense, not a

       criminal offense.9 The State cites no caselaw holding that this suspicion was a

       constitutionally permissible reason for stopping Jacobs to investigate, but

       assuming for argument’s sake that it was, the stop should have been no more

       intrusive than asking him for identification to determine his age. At that point,

       the officers had no reason to fear for their safety and no individualized

       suspicion that Jacobs had committed a crime or possessed a weapon of any

       kind. Nevertheless, they ordered Jacobs to the ground and handcuffed him.


[40]   The U.S. Supreme Court has stated that “a seizure that is lawful at its inception

       can violate the Fourth Amendment if its manner of execution unreasonably

       infringes interests protected by the Constitution.” Illinois v. Caballes, 543 U.S.

       405, 407 (2005). I am doubtful that any seizure of Jacobs was lawful under the

       totality of the circumstances, but I am convinced that the overly forceful

       manner of its execution unreasonably infringed his Fourth Amendment right to




       9
         The officers did not testify as to how old they believed Jacobs to be. With certain limited exceptions for
       those at least sixteen years of age, students are required to attend school until they either graduate or turn
       eighteen, whichever occurs first. Ind. Code § 20-33-2-6.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                           Page 25 of 28
       be secure from unreasonable seizures.10 Jacobs’s handgun was obtained as a

       direct result of this illegality and therefore should have been excluded as fruit of

       the poisonous tree. See, e.g., Wilson v. State, 754 N.E.2d 950, 956 (Ind. Ct. App.

       2001) (explaining fruit of the poisonous tree doctrine).11


                                            Article 1, Section 11
[41]   The purpose of Article 1, Section 11 of the Indiana Constitution “is to protect

       from unreasonable police activity those areas of life that Hoosiers regard as

       private. This provision must receive a liberal construction in its application to

       guarantee the people against unreasonable search and seizure.” Perez v. State,

       981 N.E.2d 1242, 1251 (Ind. Ct. App. 2013) (citation omitted), trans. denied. I

       respectfully disagree with the majority’s determination that the officers’ conduct

       in this case was reasonable under the three-part Litchfield analysis.


[42]   First, the officers’ degree of concern, suspicion, or knowledge that Jacobs had

       committed a violation of any kind was low. At most, he appeared to be a

       juvenile who should have been in school, and he walked away from marked

       vehicles and disregarded Officer Smith’s order to stop; as an adult who was




       10
          “[P]lacing a person in handcuffs may convert an investigatory stop into an arrest depending upon the
       totality of the circumstances.” Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010). It is unnecessary to
       determine whether handcuffing Jacobs converted his stop into an arrest, but assuming that it did, the arrest
       would have been illegal due to a lack of probable cause that he committed an offense of any kind. Cf. State v.
       Stevens, 33 N.E.3d 1200, 1204-05 (Ind. Ct. App. 2015) (“Probable cause to arrest exists where the facts and
       circumstances within the knowledge of an officer are sufficient to warrant a belief by a person of reasonable
       caution that an offense has been committed and that the person to be arrested committed it.”), trans. denied.
       11
          Any suggestion that the officers would have seen Jacobs’s handgun in his pocket during a less intrusive
       seizure is pure speculation.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                         Page 26 of 28
       unaware of the officers’ suspicions that he was a truant, Jacobs reasonably

       thought that he had every right to do this. He may have been in a high-crime

       area near suspected gang members and truant juveniles, but the officers never

       saw him engage in any gang-related or criminal activity and never suspected

       that he had a weapon until after they seized and handcuffed him.


[43]   Second, the majority properly concedes that the degree of police intrusion was

       high, although it unfairly blames him for the amount of force used to subdue

       him. Instead of briefly detaining Jacobs and asking him for proof of age to

       dispel their suspicions of truancy, the officers ordered him to the ground and

       handcuffed him. This was unnecessary and unreasonable.


[44]   And third, the extent of law enforcement needs in this case was minimal.

       Officer Smith was on the lookout for suspected gang members wearing red

       clothing who had allegedly fired gunshots in the apartment complex several

       days earlier. He had no prior contact with Jacobs, who was not wearing red,

       did not appear to have a gun, and did not engage in any gang-related or

       criminal activity during the several hours of police surveillance. At most,

       Jacobs appeared to be a truant juvenile who had walked away from two marked

       vehicles, which would be understandable for someone guilty of a status offense

       (which he was not) as well as prudent for any young African-American male




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016   Page 27 of 28
       who wished to avoid a confrontation with law enforcement. 12 I find it both

       interesting and troubling that after watching the people in the park for several

       hours and observing no criminal activity, Officer Smith suddenly became

       concerned that some of them might be truant from school. His alleged concern

       about truancy is undercut by the fact that he waited until after regular school

       hours to apprehend them.13


[45]   In my view, the balance of these factors weighs decisively in Jacobs’s favor, and

       therefore his seizure was unreasonable under Article 1, Section 11 of the

       Indiana Constitution. The trial court should have excluded the handgun that

       was obtained as a result of the unconstitutional seizure. See Webster v. State, 908

       N.E.2d 289, 293 (Ind. Ct. App. 2009) (acknowledging exclusionary rule under

       Indiana Constitution), trans. denied. Consequently, I would reverse Jacobs’s

       misdemeanor conviction for carrying a handgun without a license.




       12
         In concluding its Litchfield analysis, the majority gratuitously notes that Jacobs lied to Officer Casavan
       about having a handgun in his pocket. This fact is irrelevant to the reasonableness of Jacobs’s seizure under
       the Indiana Constitution.
       13
         Therefore, it likely would have been impossible for the officers to comply with the dictates of Indiana Code
       Section 20-33-2-3 if Jacobs had actually been truant. See Ind. Code § 20-33-2-23 (providing that police officer
       “may take into custody any child … who is required to attend school … and … is found during school hours
       … in a public place …. [T]he officer shall immediately deliver the child to the principal of the … school in
       which the child is enrolled.”). The circumstances surrounding the stop militate heavily in favor of a finding
       that it was pretextual.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016                        Page 28 of 28
