MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any
                                                                                Jun 21 2017, 8:26 am
court except for the purpose of establishing
the defense of res judicata, collateral                                             CLERK
                                                                                Indiana Supreme Court
estoppel, or the law of the case.                                                  Court of Appeals
                                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jaylin Brown,                                            June 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1610-CR-2368
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew Tandy,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G19-1607-CM-25785



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2368 | June 21, 2017             Page 1 of 8
                                       Statement of the Case
[1]   Jaylin Brown (“Brown”) appeals his conviction, following a bench trial, of

      Class A misdemeanor carrying a handgun without a license.1 Brown argues

      that the trial court abused its discretion in admitting evidence seized from a

      search because the investigatory stop and search that produced the evidence

      were not based on reasonable suspicion. We find that the court properly

      admitted the evidence because there was reasonable suspicion for both the

      investigatory stop and subsequent search. Accordingly, we affirm.


[2]   We affirm


                                                     Issue
                 Whether the trial court abused its discretion in admitting evidence
                 seized from a search following an investigatory stop.

                                                     Facts
[3]   On July 4, 2016, Officer D. Jackson (“Officer Jackson”) and Officer Justin

      Baker (“Officer Baker”), police officers with the Indianapolis Metropolitan

      Police Department, were helping with crowd control for the Fourth of July

      celebration in downtown Indianapolis. An elderly man approached Officer

      Jackson and informed him that a young black male wearing a white tee shirt

      and long jean shorts was “showing his gun to people on the bus and people




      1
          IND. CODE § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2368 | June 21, 2017   Page 2 of 8
      around the intersection of 34th and Illinois.”2 (Tr. Vol. 3 at 16). The elderly

      man further “pointed to Mr. Brown and described where he was walking;

      northbound on Illinois Street.” Id. Officers Baker and Jackson walked up to

      Brown, who was standing with two other males also wearing white tee shirts

      and long jean shorts, and “said something to the effect of, [‘]hey can we talk to

      you a second.[’]” (Tr. Vol. 2 at 9). One of the young men took off running, but

      Brown and the other unidentified male remained in their positions. Officer

      Baker proceeded to chase the young man who ran away.


[4]   Officer Jackson remained with the two young men who had not run and

      testified that “[Brown] was reaching in his waistband.” (Tr. Vol. 3 at 20). He

      placed Brown in handcuffs and asked if he was carrying a weapon. Brown

      responded that he was not. Officer Jackson then patted him down for weapons

      and “[c]learly felt a weapon on the right side of his body.” (Tr. Vol. 2 at 18).

      He secured the weapon and waited for Officer Baker to return. Brown was

      subsequently arrested and the weapon was given to evidence technician

      Christopher Pickerel to place into the property room.


[5]   The State charged Brown with Class A misdemeanor carrying a handgun

      without a license. Subsequently, the trial court held a bench trial. During the

      trial, the State asked Officer Jackson to identify the handgun. He testified that




      2
       Officer Jackson testified later that “[the elderly man] mentioned something about a bus,” but Officer
      Jackson “was not sure if [the elderly man] was on it or not.” (Tr. Vol. 3 at 18). The contact with the three
      boys and the officers, however, occurred downtown on Illinois Street. (Tr. Vol 3. at 15).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2368 | June 21, 2017                Page 3 of 8
      the handgun brought into court was the same gun found on Brown, and the

      State moved to admit it into evidence. Brown then moved to suppress the

      handgun. (Tr. Vol. 2 at 20). The trial court determined that “the defendant

      [had not] put any evidence before the Court that . . . [was] . . . appropriate for

      suppression” and that “. . . a suppression [was] misplaced at [that] time.” (Tr.

      Vol. 2 at 20-21). The court allowed Brown to state his reasoning for

      suppressing the handgun on the record but ultimately denied his request.


[6]   At the conclusion of the trial, the court convicted Brown. The court imposed a

      365-day sentence and gave Brown 315 days probation. Brown now appeals.


                                                    Decision
[7]   Brown argues that the trial court abused its discretion when it admitted the gun

      into evidence because there was not reasonable suspicion of criminal activity to

      justify Officer Jackson’s investigatory stop and subsequent search that produced

      the gun.3 The admission of evidence is within the discretion of the trial court.

      Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). This Court will reverse a

      ruling on the admission of evidence only for an abuse of that discretion, which




      3
       We do not understand why the trial court felt that Brown’s objection to the State’s request to admit the
      handgun was misplaced. It is well settled that a contemporaneous objection to evidence believed to be
      unlawfully seized is all that is necessary to alert the trial court to a potential legal issue requiring the
      suppression of evidence. Brown v. State, 929 N.E.2d 204 (Ind. 2010). However, we need not address Brown’s
      argument that the trial court erred in finding Brown’s objections “misplaced” because we are addressing his
      objection on its merits. (Brown’s Br. 7).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2368 | June 21, 2017             Page 4 of 8
      occurs when the ruling is clearly against the logic and effect of the facts and

      circumstances and the error affects a party’s substantial rights. Id. at 260.


[8]   The Fourth Amendment protects people from unreasonable searches and

      seizures. U.S. Const. Amend. IV. Warrantless seizures and searches by law

      enforcement officers are per se unreasonable, subject to a few specifically

      established and well-delineated exceptions. Holder v. State, 847 N.E.2d 930

      (Ind. 2006). One of those exceptions involves what is commonly known as a

      “Terry-stop”. This type of seizure permits a police officer to stop and briefly

      detain a person for investigatory purposes without a warrant if that officer has a

      reasonable suspicion, based on specific articulable facts, that criminal activity is

      afoot. Terry v. Ohio, 392 U.S. 1, 21 (1968). In addition, a police officer, for his

      own protection and safety, may conduct a “pat-down” search of the person’s

      outer clothing to find weapons that the officer reasonably believes or suspects

      are then in the possession of the person he has detained. Ybarra v. Illinois, 444

      U.S. 85, 93 (1979) (holding that reasonable suspicion that a person is armed

      applies to pat-downs conducted during investigatory stop). Further, reasonable

      suspicion requires at least a minimal level of objective justification and more

      than a ‘hunch’ that criminal activity is taking place. Terry, 392 at 27. In other

      words, reasonable suspicion exists if the facts known to an officer would cause

      an ordinarily prudent person to believe that criminal activity is occurring.

      Terry, 392 U.S. at 22.


[9]   Brown argues that because the elderly man’s identity and reliability remain

      unknown, the anonymous tip did not give rise to sufficient reasonable suspicion

      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2368 | June 21, 2017   Page 5 of 8
       to stop him. While it is true that an “‘anonymous tip alone seldom

       demonstrates the informant’s basis of knowledge or veracity,’”[] “there are

       situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient

       indicia of reliability to provide reasonable suspicion to make the investigatory

       stop.’” Grayson v. State, 52 N.E.3d 24, 28 (Ind. Ct. App. 2016)(quoting Florida v.

       J.L., 529 U.S. 266, 270 (2000)).


[10]   In Grayson, we found that an anonymous tip leading police to a person inside a

       gray car observed waving a gun was sufficiently reliable when corroborated by

       the police officer. In that case, the officer traveled to the reported location,

       located the gray car, and confirmed there were no other cars matching that

       description. Based on the officer’s corroboration of the facts and the time of

       day (5:20 a.m.), we found that there was reasonable suspicion to justify the

       search. Id.


[11]   Here, the facts are analogous. The elderly man, although anonymous,

       informed police officers that a young black man was showing off a gun on

       Illinois Street. He gave the officers a specific description: a young black male

       wearing a white tee shirt and long jean shorts on Illinois Street. The officers

       went to the reported location and found a group of young black men wearing

       the clothing described by the elderly man. The information given and then

       corroborated by Officer Jackson gave rise to reasonable suspicion that a young

       black male was unlawfully in possession of a firearm. As we noted in Grayson,

       a balance must be struck between the public’s interest in safety and the

       individual’s right to be free from arbitrary interference by police officers. Id. at

       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2368 | June 21, 2017   Page 6 of 8
       28. “Protecting the public from gun violence is a legitimate and paramount

       concern of law enforcement, and the State is legitimately concerned with

       deterring gun violence and possession of firearms by unlicensed individuals.”

       Id. As in Grayson, these concerns and the allegations of a person showing of a

       gun in downtown Indianapolis during the Fourth of July celebration provided

       the officers with reasonable suspicion to justify a brief investigatory stop.


[12]   Brown also contends that Officer Jackson did not have reasonable suspicion to

       pat-down his outer clothing to determine if he had a gun. Specifically, he

       argues that reasonable suspicion was lacking because he did not change his

       behavior or flee like the other young man. As noted above, an officer may

       conduct a pat-down if the officer reasonably believes, based on specific and

       articulable facts, that the particular individual is armed and dangerous. Terry v.

       Ohio, 392 U.S. at 21. The officer need not be absolutely certain that the

       individual is armed so long as a reasonably prudent man would be warranted in

       believing that his safety or that of others was in danger. Terry v. Ohio, 392 U.S.

       at 27.


[13]   During the trial, Officer Baker testified that in downtown on July 4th “in the last

       few years there’s been more reports of violence.” (Tr. Vol. 2 at 14). Similarly,

       Officer Jackson testified that they were patrolling downtown because of a public

       safety concern for the crowd size during the Fourth of July celebration. (Tr.

       Vol. 2 at 16-17). Further, he testified that after the young male fled, Brown

       “was reaching in his waistband.” (Tr. Vol. 3 at 20). Taking into account (1)

       the description provided by the elderly man that a person was showing off a

       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2368 | June 21, 2017   Page 7 of 8
       gun, (2) Brown’s hand movement toward his waistband, (3) the fact that one of

       the young men fled, and (4) the officer’s knowledge of public concern over the

       safety of the crowds downtown during previous Fourth of July celebrations, we

       find that Officer Jackson had sufficient reasonable suspicion to justify a pat-

       down search. See Williams v. State, 754 N.E.2d 584, 588 (Ind. Ct. App. 2001)

       (finding that when a police officer makes a Terry stop and has a reasonable fear

       of danger, he may conduct a carefully limited search of the outer clothing of the

       suspect in an attempt to discover weapons that might be used to harm him). As

       a result, the trial court did not abuse its discretion in admitting the handgun into

       evidence.


[14]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2368 | June 21, 2017   Page 8 of 8
