                                                                          Apr 15 2015, 9:15 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Matthew D. Anglemeyer                                     Gregory F. Zoeller
      Marion County Public Defender                             Attorney General of Indiana
      Appellate Division
                                                                Cynthia L. Ploughe
      Indianapolis, Indiana
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      A.A.,                                                    April 15, 2015

      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               49A05-1408-JV-371
              v.                                               Appeal from the Marion Superior
                                                               Court

      State of Indiana,                                        The Honorable Marilyn A. Moores,
                                                               Judge
      Appellee-Petitioner
                                                               The Honorable Geoffrey Gaither,
                                                               Magistrate

                                                               Case No. 49D09-1405-JD-1354




      Crone, Judge


                                               Case Summary

[1]   A.A., a juvenile, appeals a true finding that he committed dangerous possession

      of a firearm, a class A misdemeanor if committed by an adult. He challenges

      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-371| April 15, 2015        Page 1 of 12
      the trial court’s decision to admit the firearm during the factfinding hearing,

      claiming that it was the product of an unconstitutional patdown during an

      investigatory traffic stop. Finding that the patdown was lawful under both the

      United States and Indiana Constitutions, we conclude that the trial court acted

      within its discretion in admitting the firearm. As such, we affirm the true

      finding.


                               Facts and Procedural History
[2]   Just before midnight on May 28, 2014, Indianapolis Metropolitan Police

      Department officers conducted a traffic stop at 38th Street and Georgetown

      Road. During the stop, the officers heard gunshots and sent a radio report of

      gunfire near the 3500 block of Donald Street. Officer Daniel Slightom was

      patrolling nearby and responded to the dispatch by driving his marked police

      cruiser through the area. He observed a vehicle with three occupants, which

      passed by his cruiser slowly. He noticed that the vehicle had an improperly

      displayed temporary license plate. He turned to follow the vehicle and saw it

      roll through a stop sign and turn left. The driver pulled the vehicle off the road

      and stopped near 37th and Donald Streets before the officer activated his patrol

      lights.


[3]   Officer Slightom stopped his cruiser and approached the vehicle. He asked the

      driver for his license and registration and whether he lived at the adjacent

      residence. He informed the driver that he was investigating a report of gunfire

      and asked him whether any weapons were inside the vehicle. In a “fluttered,”


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      “shaky” voice, the driver said “no” without looking at the officer. Tr. at 12.

      Neither the driver nor A.A., the front-seat passenger, could provide any

      identification. The record is silent concerning identification of the backseat

      passenger. The verbal information provided by A.A. could not be confirmed by

      the officer’s computer search.1


[4]   Officer Michael Faulk arrived on the scene as backup. The officers ordered the

      driver out of the vehicle, and an ensuing patdown produced no firearms.

      Officer Slightom had A.A. step out of the vehicle and turn for a patdown. The

      officer described the patdown as follows: “I immediately, I used my right hand,

      went basically where the waistband. As soon as I placed my hand on his

      waistband, I immediately felt the butt end of a gun.” Id. at 26. Officer

      Slightom “detected a flinch” by A.A. and said “gun.” Id. at 27. Officer Faulk

      then assisted in detaining A.A., who said he had a permit for the handgun.2


[5]   On May 30, 2014, the State filed a petition alleging that sixteen-year-old A.A.

      was a delinquent child for an act that would be class A misdemeanor carrying a

      handgun without a license if committed by an adult. At the June 27, 2014

      denial hearing on the petition, A.A. moved to suppress the admission of the




      1
       Officer Slightom testified that he found similar names in his computer search, but they all had different
      birthdates than the one provided by A.A. Tr. at 13.
      2
          Indiana law requires that a person be at least eighteen years of age to obtain a permit to carry a firearm.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-371| April 15, 2015                   Page 3 of 12
      firearm on constitutional grounds. The court denied the motion to suppress,

      entered a true finding, and placed A.A. on probation. A.A. now appeals.


                                   Discussion and Decision
[6]   Because A.A. appeals the denial of his motion to suppress following a

      factfinding hearing, rather than as an interlocutory appeal, we treat the issue as

      a challenge to the trial court’s admission of evidence at the factfinding hearing.

      J.K. v. State, 8 N.E.3d 222, 228 (Ind. 2014). We review a trial court’s decision

      to admit or exclude evidence using an abuse of discretion standard. Id. An

      abuse of discretion occurs when the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before it or where the trial court

      misinterprets the law. Id. In conducting such review, we do not reweigh

      evidence; we construe conflicting evidence in the light most favorable to the

      ruling, but we will also consider any substantial and uncontested evidence

      favorable to the defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014).

      However, where the issue concerns the constitutionality of a search or seizure,

      it presents a question of law, which we review de novo. Id. Similarly, we

      review determinations of reasonable suspicion and probable cause using a de

      novo standard. J.K., 8 N.E.3d at 228.


         Section 1 – The officer did not violate A.A.’s Fourth
                         Amendment rights.
[7]   A.A. characterizes Officer Slightom’s patdown as an unconstitutional search

      under the Fourth Amendment to the United States Constitution, which

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      guarantees “[t]he right of the people to be secure in their persons … against

      unreasonable searches and seizures.” The Fourth Amendment’s safeguards

      “extend to brief investigatory stops of persons or vehicles that fall short of

      traditional arrest.” L.W. v. State, 926 N.E.2d 52, 55 (Ind. Ct. App. 2010). The

      stop involved in this case was an “investigatory” or “Terry stop,” based on Terry

      v. Ohio, 392 U.S. 1 (1968). In conducting a Terry stop, “a police officer may

      briefly detain a person for investigatory purposes without a warrant or probable

      cause if, based upon specific and articulable facts together with rational

      inferences from those facts, the official intrusion is reasonably warranted and

      the officer has a reasonable suspicion that criminal activity ‘may be afoot.’”

      L.W., 926 N.E.2d at 55 (quoting Terry, 392 U.S. at 21-22).

              The “reasonable suspicion” requirement for a Terry stop is satisfied
              when the facts known to the officer, 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. Reasonable suspicion entails something more than an inchoate
              and unparticularized suspicion or hunch, but considerably something
              less than proof of wrongdoing by a preponderance of the evidence.


      Rich v. State, 864 N.E.2d 1130, 1132 (Ind. Ct. App. 2007).


[8]   Reasonable suspicion sufficient to justify an investigatory stop is also less

      demanding than a showing of probable cause. Ertel v. State, 928 N.E.2d 261,

      264 (Ind. Ct. App. 2010), trans. denied. If the facts known by the police at the

      time of the investigatory stop are such that a person of reasonable caution

      would believe the action taken was appropriate, the Fourth Amendment is

      satisfied. Rich, 864 N.E.2d at 1132. “If a police officer has a reasonable fear of

      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-371| April 15, 2015   Page 5 of 12
      danger when making a Terry stop, he may conduct a carefully limited search of

      the suspect’s outer clothing in an attempt to discover weapons that might be

      used to assault him.” Granados v. State, 749 N.E.2d 1210, 1213 (Ind. Ct. App.

      2001), trans. denied.

               [I]n a traffic-stop setting, the first Terry condition—a lawful
               investigatory stop—is met whenever it is lawful for police to detain an
               automobile and its occupants pending inquiry into a vehicular
               violation. The police need not have, in addition, cause to believe any
               occupant of the vehicle is involved in criminal activity. To justify a
               patdown of the driver or a passenger during a traffic stop, however,
               just as in the case of a pedestrian reasonably suspected of criminal
               activity, the police must harbor reasonable suspicion that the person
               subjected to the frisk is armed and dangerous.
      Arizona v. Johnson, 555 U.S. 323, 327 (2009).


[9]   Here, A.A. admits that the officer acted lawfully in detaining the occupants of

      the vehicle3 and in ordering him out of the vehicle. See Appellant’s Br. at 9

      (“Slightom legally ordered A.A. out of the car.”). As for the ensuing patdown,

      A.A. maintains that “Slightom’s additional, more intrusive step of patting [him]

      down [] to search him for weapons was not automatically justified.” Id. He

      cites as support Tumblin v. State, 736 N.E.2d 317, 321-22 (Ind. Ct. App. 2000),




      3
         Officer Slightom did not stop the vehicle in a literal sense; he merely approached the already stopped
      vehicle. In furtherance of investigating the gunfire incident, the officer could have lawfully stopped the
      vehicle. See McKnight v. State, 612 N.E.2d 586, 588 (Ind. Ct. App. 1993) (among the factors supporting a
      finding that officer had reasonable suspicion to conduct a Terry stop was the defendant’s location in vicinity
      of reported incident), trans. denied. Nonetheless, the vehicle was subject to being stopped based on the
      infractions alone.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-371| April 15, 2015                Page 6 of 12
       trans. denied (2002).4 There, the defendant-passenger was subjected to a

       patdown during a routine traffic stop for the driver’s speeding infraction. Id.

       Another panel of this Court found the general exploratory search unlawful and

       reversed Tumblin’s conviction for carrying a handgun without a license. Id. at

       323. The Tumblin court emphasized that before the officer inquired about

       weapons or drugs, the purpose of the initial traffic stop had been completed,

       with the officer having issued the driver a warning. Id. at 322. The court also

       held that vague and general observations of a detainee’s nervousness, fidgeting,

       or averted eyes are not enough to establish reasonable suspicion. Id. at 322-23.


[10]   We find Tumblin distinguishable. Tumblin involved a mere traffic stop for

       speeding, nothing more. The officer testified that the stop had concluded and

       the vehicle’s occupants were “free to go,” although he had not notified them as

       such, when he generally asked whether the vehicle’s occupants had any

       weapons or drugs. Id. at 320. Here, Officer Slightom detained the vehicle’s

       occupants in the midst of investigating reported gunfire in the immediate area

       just minutes before, based on the driver’s infractions and the peculiar behavior

       that he observed. During the stop, the nervousness and avoidance of eye

       contact exhibited by A.A.’s driver was directly related to the officer’s question

       concerning the presence of firearms inside the vehicle.




       4
        A.A. also cites as support State v. Cunningham, 4 N.E.3d 805 (Ind. Ct. App. 2014), trans. granted. Our
       supreme court vacated the opinion, and it may no longer be cited as precedent. See State v. Cunningham, 26
       N.E.3d 21, 26 (Ind. 2015) (reversing trial court’s grant of defendant’s motion to suppress drugs and
       paraphernalia found during patdown he submitted to as condition of exiting vehicle during traffic stop).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-371| April 15, 2015             Page 7 of 12
[11]   A.A. asserts that the driver’s suspicious conduct and demeanor cannot be

       attributed vicariously as support for a finding of reasonable suspicion as to other

       occupants of the vehicle. While generally speaking, we agree, we believe that

       such an inquiry would be heavily fact-sensitive. Where the inquiry concerns a

       matter specific to the driver, for example, whether he is operating while

       intoxicated, the driver’s observable demeanor and behavior certainly would not

       inure to the detriment of his passenger in the sense that one person’s

       intoxication is not transferred by association. However, here, the investigation

       concerned all the vehicle’s occupants, that is, whether any of them possessed a

       firearm. As such, the driver’s flustered demeanor and averted eyes when asked

       if there was a firearm in the vehicle could implicate not merely his own

       possession but also his knowledge of such possession by one of his passengers.


[12]   Numerous articulable facts and circumstances support a finding that Officer

       Slightom was acting on reasonable suspicion and not merely on a hunch when

       he patted down A.A.: (1) Officer Slightom knew that another officer had

       reported hearing gunshots just minutes earlier; (2) the vehicle in which A.A.

       was a passenger was within two blocks of the reported location of the gunshots;

       (3) the vehicle passed by the officer very slowly; (4) the driver behaved

       unusually in pulling off the road after rolling through the stop sign and before the

       officer activated his patrol lights; (5) the driver was shaky and avoided eye

       contact when Officer Slightom asked whether there were any firearms in the

       vehicle; (6) the officer was unable to confirm A.A.’s identity based on the




       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-371| April 15, 2015   Page 8 of 12
       information that he provided;5 (7) the first person patted down (the driver) was

       found to be unarmed; and (8) even after Officer Faulk arrived as backup, the

       officers were outnumbered, three to two.


[13]   Considering the “reasonable inferences that [Officer Slightom] [w]as entitled to

       draw from the facts in light of his experience,” we conclude that he acted within

       the protective purpose of Terry in patting down A.A. Hill v. State, 956 N.E.2d

       174, 177 (Ind. Ct. App. 2011), trans. denied (2012). A patdown search is

       reasonable “if the facts are such that a reasonably prudent person in the same

       circumstances would be warranted in believing that the officer was in danger.”

       Id. The reason that Officer Slightom was patrolling the specific area was to

       investigate the source of the gunshots. As such, the safety risk, especially in the

       dark of night, necessitated even greater caution than a circumstance in which

       the officer’s investigation involves a non-firearm-related incident. For example,

       an undiscovered bag of marijuana or cocaine does not present an imminent

       danger to an officer investigating a drug incident; neither does an undiscovered

       stash of stolen cash. The driver acted suspiciously when directly asked whether

       a firearm was in the vehicle, and the officer patted him down and found him to

       be unarmed. Based on this information, Officer Slightom could reasonably

       suspect that a firearm was otherwise present in the vehicle, either on the person




       5
         Notwithstanding A.A.’s argument that a sixteen-year-old would not ordinarily possess written
       identification if he had never obtained a driver’s license, the problem that Officer Slightom encountered
       concerned various birthdates associated with A.A.’s name that did not match the one A.A. verbally gave to
       the officer.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-371| April 15, 2015            Page 9 of 12
       of one of the passengers – which would make that passenger “armed and

       dangerous” – or stashed elsewhere within the vehicle. The officer then ordered

       the front-seat passenger A.A. to step outside the vehicle, an action that A.A.

       admits was lawful. The ensuing patdown of A.A., which proved only

       minimally intrusive, was lawful based on reasonable inferences Officer

       Slightom drew concerning the presence of firearms either on A.A.’s person or

       elsewhere in the vehicle.6 Based on the foregoing, we conclude that the officer

       did not violate A.A.’s Fourth Amendment rights.


             Section 2 – The officer did not violate A.A.’s rights
                       under the Indiana Constitution.
[14]   A.A. raises a similar claim of illegal search and seizure based on Article 1,

       Section 11 of the Indiana Constitution, which states in pertinent part, “The

       right of the people to be secure in their persons … against unreasonable search

       or seizure, shall not be violated.” While the language tracks that of the Fourth

       Amendment, Indiana’s search and seizure clause is subject to a slightly different

       analysis, that is, we evaluate the reasonableness of the police conduct under the

       “totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359-60 (Ind.

       2005). Subject to other relevant considerations under the circumstances, the

       reasonableness of a search or seizure turns on a balance of: “(1) the degree of

       concern, suspicion, or knowledge that a violation has occurred, (2) the degree of




       6
           It is unclear from the record whether the vehicle’s third occupant was patted down.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-371| April 15, 2015       Page 10 of 12
       intrusion the method of the search or seizure imposes on the citizen’s ordinary

       activities, and (3) the extent of law enforcement needs.” Id. at 361. The State

       bears the burden of establishing that, in the totality of the circumstances, the

       intrusion was reasonable. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001).

[15]              A police stop and brief detention of a motorist is reasonable and
                  permitted under Section 11 if the officer reasonably suspects that the
                  motorist is engaged in, or about to engage in, illegal activity.
                  Reasonable suspicion exists if the facts known to the officer, together
                  with the reasonable inferences arising therefrom, would cause an
                  ordinarily prudent person to believe that criminal activity has or is
                  about to occur.
       Id. at 786-787 (citations omitted). “[R]easonableness under the totality of

       circumstances may include consideration of police officer safety.” Saffold v.

       State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010), trans. denied (2011).


[16]   In balancing the factors enunciated in Litchfield, we note first that Officer

       Slightom’s degree of concern, suspicion, or knowledge of criminal conduct by

       A.A. and his two companions was not initially high, since the report did not

       include descriptions of persons or vehicles. The group was simply driving late

       at night in very close proximity, both geographically and timewise, to the

       reported gunshots. However, the officer could reasonably consider their overall

       conduct in passing him slowly, pulling off the road for no reason, failing to

       provide any authenticatable identification, avoiding eye contact, and acting

       nervous when asked whether they had firearms.7 Notwithstanding, the degree




       7
           As discussed, the presence of firearms in the vehicle was not a question that applied uniquely to the driver.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-JV-371| April 15, 2015                  Page 11 of 12
       of intrusion was minimal, considering that the butt of the handgun was

       protruding from the first place the officer touched – A.A.’s waistband. Finally,

       the extent of law enforcement needs – to ensure the safety of two officers

       outnumbered by three suspects – is very high, specifically because of the gunfire

       report and generally because of the danger posed by the presence of firearms.

       Consequently, we conclude that law enforcement acted reasonably under the

       totality of the circumstances, and as such, did not violate A.A.’s rights under

       Article 1, Section 11 of the Indiana Constitution. Accordingly, we find no

       abuse of discretion in admitting the firearm and therefore affirm.


[17]   Affirmed.


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




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