                                                                            FILED
                                                                        Mar 22 2018, 5:39 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Darren Bedwell                                            Curtis T. Hill, Jr.
      Marion County Public Defender                             Attorney General of Indiana
      Indianapolis, Indiana
                                                                Tyler Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Carl T. Wilson,                                           March 22, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A04-1706-CR-1201
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Shatrese Flowers,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                49G20-1609-F2-35293



      May, Judge.


[1]   Carl T. Wilson brings an interlocutory appeal of the pretrial denial of his

      motion to suppress evidence. Wilson argues the evidence should have been

      suppressed because the search occurred after police officers arrested him

      without probable cause. We reverse.


      Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018                 Page 1 of 10
                               Facts and Procedural History
[2]   On September 6, 2016, a resident of a duplex made a 911 call complaining of a

      car parked in the yard on the unoccupied side of the duplex. 1 She indicated the

      car may be gray and she did not recognize it. Her son had approached the car,

      but the occupants did not respond when he knocked on the window.


[3]   Indianapolis Metropolitan Police Department Officers Joshua Stayton and

      Jeremy Miller responded to the 911 call. Officer Stayton had patrolled the area

      for “roughly three years,” (Tr. at 5), and knew the area was known for

      prostitution and drugs. Officer Stayton described the area as “a high crime

      area.” (Id.) Officer Stayton located a “brownish, grayish color” car in an

      apartment complex parking lot located on the same block as the 911 caller’s

      residence. (Id. at 16.) Shining a spotlight into the car, Officer Stayton saw two

      people inside the vehicle. Officer Miller arrived soon thereafter.


[4]   As the officers approached the car, Officer Stayton recognized the passenger as

      someone with a history of “prostitution and drug use.” (Id. at 7.) A man, later

      identified as Wilson, exited the car but immediately bent back into it and

      reached toward the center console. Because of his knowledge of crime in the

      area and Wilson’s movements inside the vehicle, Officer Stayton drew his

      weapon and ordered Wilson to show his hands. Wilson complied. When

      asked if he was hiding anything, Wilson replied, “[T]here is nothing in the



      1
          The report was not anonymous as the caller provided her name and address.


      Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018       Page 2 of 10
      vehicle, and [officers] could search the vehicle.” (Id. at 9.) The officers patted

      Wilson down and handcuffed him “for [officer] safety.” (Id.)


[5]   After handcuffing Wilson, the officers asked Wilson “[a]t least twice” if they

      could search the vehicle and he said they could. (Id. at 15.) The officers took

      Wilson “maybe twenty feet” away from the car after he was handcuffed. (Id. at

      34.) The officers did not give Wilson Pirtle 2 or Miranda 3 advisements. The

      officers also removed Wilson’s passenger from the car and handcuffed her.

      Then they took turns searching the vehicle. Officer Stayton did not find

      anything in the car but found “a bag of marijuana . . . located towards the rear

      driver side tire, approximately two feet away from the vehicle.” (Id. at 11.)

      Officer Miller searched the car “to make sure that the first officer don’t - -

      doesn’t miss anything[.]” (Id. at 27.) After popping open a loose part of the

      center console, Officer Miller found “a bag of something” which he believed to

      be drugs. (Id. at 25.) Officer Stayton retrieved the bag and found it contained

      heroin and methamphetamine.




      2
        Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975) (requiring persons in police custody be told of
      their right to a lawyer before their consent to a search is valid).
      3
        Miranda v. Arizona, 384 U.S. 436, 444 (1966) (requiring citizens taken into custody be told that they have a
      right to remain silent, that anything they say can be used against them in court, that they have a right to the
      presence of a lawyer, and that a lawyer will be appointed for them if they cannot afford one), reh’g denied.

      Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018                            Page 3 of 10
[6]   The State charged Wilson with Level 2 felony dealing in a narcotic drug, 4 Level

      3 felony possession of a narcotic drug, 5 Level 2 felony dealing in

      methamphetamine, 6 and Level 3 felony possession of methamphetamine. 7 On

      January 22, 2017, Wilson filed a motion to suppress the evidence of the drugs

      retrieved during the search. 8 Wilson alleged the officers’ actions violated his

      state and federal constitutional rights to be free of illegal search and seizure.

      After a hearing and subsequent briefing, on March 28, 2017, the trial court

      denied Wilson’s motion without findings of fact or conclusions of law.



                                     Discussion and Decision
[7]   Our standard of review for the denial of a motion to suppress evidence is similar

      to that of other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct.

      App. 2003), reh’g denied, trans. denied. We determine whether there is substantial

      evidence of probative value to support denial of the motion. Id. We do not

      reweigh the evidence, and we consider conflicting evidence in a light most

      favorable to the trial court’s ruling. Id. However, the review of a denial of a

      motion to suppress is different from other sufficiency matters in that we must




      4
          Ind. Code § 35-48-4-1 (2016).
      5
          Ind. Code § 35-48-4-6 (2014).
      6
          Ind. Code § 35-48-4-1.1 (2016).
      7
          Ind. Code § 35-48-4-6.1 (2014).
      8
          Wilson was not charged with a crime based on the bag of marijuana allegedly found outside the car.


      Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018                        Page 4 of 10
      also consider uncontested evidence that is favorable to the defendant. Id. We

      review de novo a ruling on the constitutionality of a search or seizure. Campos v.

      State, 885 N.E.2d 590, 596 (Ind. 2008).


[8]   Wilson asserts his Fourth Amendment right to be free of illegal search and

      seizure was violated when the officers “detained [him] without reasonable

      suspicion, and arrested him without probable cause when they handcuffed him

      at gunpoint.” 9 (Appellant’s Br. at 13.) He asserts the trial court abused its

      discretion when it denied his motion to suppress the evidence obtained in the

      search. The State counters Wilson was not under arrest as the officers were

      merely acting to protect themselves due to Wilson’s behavior on exiting his

      vehicle.


[9]   The Fourth Amendment to the United States Constitution protects citizens

      against unreasonable searches and seizures by prohibiting them without a

      warrant supported by probable cause. To deter State actors from violating that

      prohibition, evidence obtained in violation of the Fourth Amendment generally

      is not admissible in a prosecution of the citizen whose right was violated. Clark

      v. State, 994 N.E.2d 252, 260 (Ind. 2013). The State has the burden of




      9
       Wilson also claims the search violated Article 1, Section 11 of the Indiana Constitution. However, as we
      hold his Fourth Amendment rights were violated, we need not address that argument. See Reinhart v. State,
      930 N.E.2d 42, 45 n.1 (Ind. Ct. App. 2010) (when case reversed on Fourth Amendment grounds, no state
      constitutional analysis required).

      Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018                      Page 5 of 10
       demonstrating the admissibility of evidence collected during a seizure or search.

       Id.


[10]   An officer may stop and briefly detain an individual for investigatory purposes

       if, based upon specific and articulable facts, the officer has a reasonable

       suspicion of criminal activity, even if the officer lacks probable cause to make

       an arrest. Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009) (citing Terry v. Ohio,

       392 U.S. 1 (1968)). “Reasonable suspicion is satisfied where the facts known to

       the officer at the moment of the stop, together with the reasonable inferences

       arising from such facts, would cause an ordinarily prudent person to believe

       that criminal activity has occurred or is about to occur.” Reinhart v. State, 930

       N.E.2d 42, 45 (Ind. Ct. App. 2010). An officer conducting an investigatory

       stop may “take reasonable steps to ensure his own safety.” Id. at 46. However,

       an investigatory stop may be converted to an arrest depending on the totality of

       the circumstances. Id.


[11]   An “arrest” is “the taking of a person into custody, that he may be held to

       answer for a crime.” Ind. Code § 35-33-1-5. Our Indiana Supreme Court has

       said: “An arrest occurs when a police officer interrupts the freedom of the

       accused and restricts his liberty of movement.” Sears v. State, 668 N.E.2d 662,

       667 (Ind. 1996). Circumstances that would lead a reasonable person to

       conclude they are not free to leave may include “the threatening presence of

       several officers, the display of a weapon by an officer, some physical touching

       of the person of the citizen, or the use of language or tone of voice indicating

       that compliance with the officer’s request might be compelled.” Overstreet v.

       Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018   Page 6 of 10
       State, 724 N.E.2d 661, 664 (Ind. Ct. App. 2000), reh’g denied, trans. denied.

       Police may arrest a suspect if they have probable cause to believe that person

       has committed a felony. Sears, 668 N.E.2d at 667. “Probable cause exists

       when, at the time of the arrest, the arresting officer has knowledge of facts and

       circumstances which would warrant a man of reasonable caution to believe that

       the defendant committed the criminal act in question.” Id.


[12]   In Payne v. State, 854 N.E.2d 1199 (Ind. Ct. App. 2006), trans. denied, we

       reviewed the facts of two cases in which the use of handcuffs constituted an

       arrest 10 and two cases in which the use of handcuffs occurred during an

       investigatory stop, 11 see id. at 1204-05, and held the determination whether a

       citizen was arrested or subject to a Terry stop depended on the totality of the

       circumstances in each case. In Payne, we determined that because the officer

       had requested Payne’s permission to handcuff him and the detention had lasted

       only five minutes, Payne had not been arrested and the encounter was merely

       an investigatory stop. Id. at 1205.


[13]   In Reinhart, we reviewed the totality of circumstances when the officer ordered

       Reinhart from his car at gunpoint. Reinhart, 930 N.E.2d at 47. Reinhart calmly

       complied with all orders given. Id. With the laser sight of the officer’s gun

       fixed on him, Reinhart was ordered to kneel and then lay down on the ground,




       10
            Loving v. State, 647 N.E.2d 1123 (Ind. 1995), and Wright v. State, 766 N.E.2d 1223 (Ind. Ct. App. 2002).
       11
         Crabtree v. State, 762 N.E.2d 241 (Ind. Ct. App. 2002), and Johnson v. State, 710 N.E.2d 925 (Ind. Ct. App.
       1999).

       Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018                           Page 7 of 10
       which he did. Id. Reinhart had given no indication he was armed or

       dangerous. Id. We held a reasonable person would not have believed he was

       free to leave; thus, the officer’s actions constituted an arrest. Id. at 48.


[14]   The situation here is more analogous to Reinhart. Officers Stayton and Miller

       were responding to a dispatch regarding a suspicious vehicle in the backyard of

       the unoccupied portion of the caller’s duplex home. The vehicle they

       eventually approached was not parked in the duplex yard but rather, in the

       parking lot of a nearby apartment complex. As Officer Stayton approached,

       Wilson exited the vehicle “and immediately turn[ed] around and ben[t]

       forward, and ma[de] a lot of movement toward, at the center console area of

       the vehicle.” (Tr. at 22.) Officer Stayton drew his gun and ordered Wilson to

       show his hands. Wilson complied. The officers then handcuffed him. When

       asked if he had “anything inside of the vehicle of concern [:] guns, weapons,

       anything like that[,]” (id. at 9), Wilson said there was nothing in his car and the

       officers could search it.


[15]   Without minimizing the officers’ testimony that they observed Wilson lean into

       the car and they were concerned about a possible firearm or narcotics, such

       behavior is not enough, by itself, to support reasonable suspicion, let alone

       probable cause. See Sanchez v. State, 803 N.E.2d 215, 221 (Ind. Ct. App. 2004),

       trans. denied. What may have begun as an investigatory stop quickly

       transformed into an arrest. Wilson complied with all of the officers’ orders.

       The officers approached Wilson at gunpoint and then handcuffed him. Wilson

       remained handcuffed and guarded by one or the other officer while two

       Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018      Page 8 of 10
       searches of his vehicle were conducted. A reasonable person would not believe

       himself free to leave. See Reinhart, 930 N.E.2d at 47 (a reasonable person

       “would have considered his freedom of movement to have been restrained to

       the degree associated with a formal arrest”).


[16]   Under the facts presented, Officer Stayton’s approach with a gun drawn and the

       subsequent handcuffing of Wilson was more than required to either confirm or

       dispel the officers’ suspicion Wilson had been parked at the duplex. The

       officers’ actions exceeded the scope of an investigatory stop and became an

       arrest without probable cause. As the arrest was without probable cause, the

       admission of evidence obtained from the search was in error. 12 See Sanchez, 803

       N.E.2d at 221 (“fruit of the poisonous tree” doctrine bars illegally obtained

       evidence from admission).



                                                   Conclusion
[17]   We conclude Wilson was under arrest for the purposes of a Fourth Amendment

       search and seizure analysis because the officers drew their weapons and

       handcuffed Wilson, which restrained his freedom of movement. Therefore,

       because the officers lacked probable cause to arrest Wilson prior to their search




       12
         The State argues the search was, nevertheless, valid because Wilson consented to the search. However, as
       Wilson argues, his consent could not have been valid because he was under arrest and was not given the
       warning required by Pirtle. See Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975) (requiring person in
       police custody be told of their right to a lawyer before their consent to a search is valid).

       Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018                           Page 9 of 10
       of his vehicle and seizure of the drugs, the trial court abused its discretion when

       it denied Wilson’s motion to suppress evidence.


[18]   Reversed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1706-CR-1201 | March 22, 2018   Page 10 of 10
