Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                     Dec 16 2014, 10:42 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH                           GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DJUAN FACESON,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 49A02-1405-CR-305
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Steven R. Eichholtz, Judge
                     The Honorable David M. Seiter, Master Commissioner
                             Cause No. 49G20-1310-FC-66731



                                      December 16, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Djuan Faceson appeals his conviction for carrying a handgun without a license, as

a Class C felony, following a bench trial. He presents a single issue for our review,

namely, whether the trial court abused its discretion when it admitted into evidence the

handgun police found on his person when he was arrested. We affirm.

                      FACTS AND PROCEDURAL HISTORY

      On October 10, 2013, Marion County Sheriff Deputies Drew Butner and

Christopher Beushausen were working part-time security detail at Keystone North

Apartments in Indianapolis (“the complex”). They were wearing their full Sheriff’s

Deputy uniforms and patrolling on foot. The complex provides government-subsidized

housing, which means there are restrictions on who can live there, and residents are

required to have identification with them at all times. The deputies’ duties as private

security guards for the complex included checking people’s identification cards to make

sure they were residents. And the deputies were tasked with keeping people out of the

complex who were included on a “trespass list.” Tr. at 39.

      During their patrol that day, the deputies saw two men attempt to enter two or

three different buildings, but they were unable to open the doors, which were locked.

Only residents have keys to the doors of the buildings, so the deputies assumed that the

men were not residents. The deputies were walking westbound toward a substation

located in the complex when they made contact with the two men, who were walking

southbound.

      When the deputies were “right up next to” the two men and “almost hand in

hand,” the two men “started heading in an opposite direction,” and Deputy Butner said to
                                           2
them, “Hey, how is it going? Do you live out here?” Id. at 44. The two men stopped,

responded that they were “visiting friends,” and Deputy Butner asked “if [they] had

ID[s]” and whether he could see them, and the two men immediately provided their

identification cards. Id. at 45. Deputy Butner checked the men’s names against the

trespass list and discovered that one of the men, Faceson, was on the trespass list. The

deputies arrested Faceson. During a search incident to the arrest, the deputies found a

handgun on Faceson’s person. Faceson did not have a license to carry a handgun.

       The State charged Faceson with carrying a handgun without a license, as a Class C

felony, and trespass, as a Class D felony.1 The State ultimately dismissed the trespass

charge. Prior to trial, Faceson moved to suppress “all evidence recovered from and all

testimony related to such evidence obtained from the warrantless stop, search[,] and

seizure” of Faceson, which the court held in abeyance.                        Appellant’s App. at 37.

Following a bench trial,2 the trial court denied Faceson’s motion to suppress and entered

judgment of conviction for carrying a handgun without a license, as a Class C felony.

The trial court sentenced Faceson to three years of home detention. This appeal ensued.

                                  DISCUSSION AND DECISION

       Faceson contends that the deputies violated his right to be free from an

unreasonable search and seizure under the Fourth Amendment to the United States

Constitution and Article 1, Section 11 of the Indiana Constitution. In particular, Faceson

maintains that the deputies detained and questioned him without reasonable suspicion



       1
          The State initially charged Faceson with two Class A misdemeanors, but each offense was
enhanced because of prior convictions for carrying a handgun without a license and trespass.
       2
           The trial court incorporated the suppression hearing into the bench trial.
                                                      3
that he was engaged in or about to be engaged in criminal activity. The State contends

that the deputies’ interaction with Faceson was consensual and did not implicate

Faceson’s rights under either the federal or state constitution.3 We agree with the State.

        Faceson is appealing from the trial court’s admission of the evidence following a

completed trial. A trial court is afforded broad discretion in ruling on the admissibility of

evidence, and we will reverse such a ruling only upon a showing of an abuse of

discretion. Washington v. State, 784 N.E.2d 84, 587 (Ind. Ct. App. 2003). An abuse of

discretion involves a decision that is clearly against the logic and effect of the facts and

circumstances before the court. Id. We will not reweigh the evidence, and we consider

conflicting evidence in the light most favorable to the trial court’s ruling. Cole v. State,

878 N.E.2d 882, 885 (Ind. Ct. App. 2007).

        In Clark v. State, 994 N.E.2d 252, 260-62 (Ind. 2013), our supreme court set out

the applicable law as follows:

        The Fourth Amendment to the U.S. Constitution protects persons from
        unreasonable search and seizure by prohibiting, as a general rule, searches
        and seizures conducted without a warrant supported by probable cause.
        U.S. Const. amend. IV; Berry v. State, 704 N.E.2d 462, 464-65 (Ind. 1998).
        As a deterrent mechanism, evidence obtained in violation of this rule is
        generally not admissible in a prosecution against the victim of the unlawful
        search or seizure absent evidence of a recognized exception. Mapp v. Ohio,
        367 U.S. 643, 649-55 (1961) (extending exclusionary rule to state court
        proceedings). It is the State’s burden to prove that one of these well-
        delineated exceptions is satisfied. Berry, 704 N.E.2d at 465.

                                                  ***

               Encounters between law enforcement officers and public citizens
        take a variety of forms, some of which do not implicate the protections of
        the Fourth Amendment and some of which do. Finger v. State, 799 N.E.2d

        3
          Faceson concedes that “[t]he analysis of the legality of an investigative stop is the same under
both the Fourth Amendment and Article 1, Section 11.” Appellant’s Br. at 4.
                                                    4
         528, 532 (Ind. 2003). Consensual encounters in which a citizen voluntarily
         interacts with an officer do not compel Fourth Amendment analysis. Id.
         Nonconsensual encounters do, though, and typically are viewed in two
         levels of detention: a full arrest lasting longer than a short period of time,
         or a brief investigative stop. Id. The former of these requires probable
         cause to be permissible; the latter requires a lower standard of reasonable
         suspicion. Id.

                                             ***

                 Determining whether this was a consensual encounter or some level
         of detention “turns on an evaluation, under all the circumstances, of
         whether a reasonable person would feel free to disregard the police and go
         about his or her business.” Id. (citing California v. Hodari D., 499 U.S.
         621, 628 (1991)). The test is objective—not whether the particular citizen
         actually felt free to leave, but “whether the officer’s words and actions
         would have conveyed that to a reasonable person.” Hodari D., 499 U.S. at
         628 (citing United States v. Mendenhall, 446 U.S. 544 (1980)). Examples
         of facts and circumstances that might lead a reasonable person to believe
         that he or she was no longer free to leave could 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. State, 724 N.E.2d 661, 664 (Ind. Ct. App. 2000)
         (citing Mendenhall, 446 U.S. at 554), trans. denied.

         Here, Deputy Butner testified that he and Deputy Beushausen were patrolling the

complex when they observed Faceson and another man try, unsuccessfully, to open the

doors to two or three apartment buildings. The deputies did not change their direction of

travel but converged with the path of the two men, who then changed their direction of

travel before coming into physical contact with the deputies. The two men were in close

range when Deputy Butner asked the two men whether they lived there and whether he

could see their identification, and the two men stopped and produced their identification

cards.

         At trial, Faceson testified that Deputy Butner said, “Stop where you are right

there.” Tr. at 106. And he testified that he did not feel free to leave. In the probable
                                               5
cause affidavit, Deputy Beushausen stated that he and Deputy Butner “stopped both

males and asked if they lived in the complex.” Def. Ex. A. But both Deputy Butner and

Deputy Beushausen testified that neither of them told the men to stop or otherwise

interfered with their movement before the two men voluntarily stopped to talk to the

deputies, who had merely asked whether they could see their identification cards. In

denying Faceson’s motion to suppress and admitting the evidence obtained in the search

incident to his arrest, the trial court found that the deputies did not “stop” Faceson and

that Faceson had voluntarily presented his identification card. Tr. at 127. We will not

reweigh the evidence on appeal.

       Still, Faceson contends that

       [a] reasonable person in Mr. Faceson’s shoes would not have felt free to
       ignore Deputy Butner and walk away without giving him the identification.
       Deputies Butner and Beushausen were in full uniform patrolling the
       complex. Upon seeing the officers, Mr. Faceson and his companion
       attempted to turn their direction of travel to avoid the police but the officers
       approached them and stopped them—either by specifically telling them to
       stop or by hailing them and asking if they lived there. It is of no moment
       the officers did not draw weapons or use physical force to stop Mr.
       Faceson. The officers asserted their authority by calling out to the two men
       when the two started to change their direction to avoid the police.

Appellant’s Br. at 5.

       But, looking at the factors set out in Overstreet, the evidence supports the trial

court’s admission of the evidence. There is no evidence of a “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.” 724 N.E.2d at 664. Faceson and the

other man stopped after Deputy Butner asked them whether they lived at the complex,

                                              6
and they willingly turned over their identification cards after Deputy Butner asked

whether he could see them. Deputy Butner immediately found Faceson’s name on the

trespass list and arrested him. We hold that the brief encounter between the deputies and

Faceson was consensual and did not implicate his rights under the Fourth Amendment or

Article 1, Section 11.

       In the alternative, even if the encounter were not deemed consensual, it was a valid

Terry stop.

       . . . [A police officer does not] need probable cause to detain [someone] if
       he [i]s conducting merely a brief investigatory stop falling short of
       traditional arrest. This sort of brief detention, commonly called a Terry[]
       stop, permits an officer “to stop and briefly detain a person for investigative
       purposes if the officer has reasonable suspicion supported by articulable
       facts that criminal activity ‘may be afoot’ even if the officer lacks probable
       cause.” Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009) (quoting
       United States v. Sokolow, 490 U.S. 1, 7, (1989)). “Such reasonable
       suspicion must be comprised of more than hunches or unparticularized
       suspicions.” State v. Murray, 837 N.E.2d 223, 225-26 (Ind. Ct. App. 2005),
       trans. denied.

              In other words, the stop “must be justified by some objective
       manifestation that the person stopped is, or is about to be, engaged in
       criminal activity.” United States v. Cortez, 449 U.S. 411, 417, (1981).
       “[T]he totality of the circumstances—the whole picture—must be taken
       into account. Based upon that whole picture the detaining officers must
       have a particularized and objective basis for suspecting the particular
       person stopped of criminal activity.” Id. at 417-18; see also Armfield, 918
       N.E.2d at 319 (quoting State v. Bulington, 802 N.E.2d 435, 438 (Ind.
       2004)). In assessing the whole picture, we must examine the facts as
       known to the officer at the moment of the stop. Lyons v. State, 735 N.E.2d
       1179, 1183 (Ind. Ct. App. 2000), trans. denied. We review findings of
       reasonable suspicion de novo. Id. This is necessarily a fact-sensitive
       inquiry.

Clark, 994 N.E.2d at 263-64.

       Here, again, Deputy Butner testified that he and Deputy Beushausen were

patrolling the complex, located in a high-crime area, when they observed Faceson and
                                             7
another man try, unsuccessfully, to open the doors to two or three apartment buildings.

The deputies concluded that the men were not residents of the complex, because residents

have keys to unlock the doors to their respective buildings. The deputies did not change

their direction of travel but converged with the path of the two men, who then changed

their direction of travel before coming into physical contact with the deputies. The two

men were in close range when Deputy Butner asked the two men whether they lived there

and whether he could see their identification, and the two men stopped and produced

their identification cards. Deputy Butner immediately found Faceson’s name on the no-

trespass list and arrested him.

         We hold in the alternative that, under the totality of the circumstances, the

deputies had reasonable suspicion that criminal activity was afoot and engaged in a very

brief investigatory encounter with Faceson before his arrest for trespass. The trial court

did not abuse its discretion when it admitted evidence obtained in the course of the search

incident to Faceson’s arrest.

         In sum, whether the encounter was consensual or was an investigatory stop, the

encounter was lawful and the evidence derived therefrom was admissible at Faceson’s

trial.

         Affirmed.

BAILEY, J., and PYLE, J., concur.




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