MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                    May 26 2020, 10:46 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Katelyn Bacon                                            Caroline G. Templeton
Marion County Public Defender Agency                     Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

E.P.,                                                    May 26, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-JV-3020
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark A. Jones,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Ryan K. Gardner,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D15-1910-JD-1204



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020                 Page 1 of 11
[1]   E.P. appeals his adjudication as a delinquent for committing dangerous

      possession of a firearm. We affirm.


                                       Facts and Procedural History

[2]   At approximately 1:00 a.m. on October 2, 2019, Indianapolis Metropolitan

      Police Officer Jeffrey Newlin, who had the responsibility of patrolling the

      southwest side “answering 9-1-1 calls within the community,” and Officer

      Zachary Taylor received a dispatch to the 1200 block of West Washington

      Street to investigate a report of shots fired by a black male wearing black pants

      and a black sweatshirt, firing a handgun, and walking eastbound on the north

      side of the street. 1 Transcript Volume II at 23. Both Officers Taylor and

      Newlin responded to the area and attempted to locate the suspect.


[3]   Officer Newlin traveled east of the White River, did not initially see anyone,

      and drove to “basically Victory Field” looking for someone matching the

      description. Id. at 24. After a person on a bicycle waved him down, Officer

      Newlin proceeded westbound on Washington Street.


[4]   Meanwhile, Officer Taylor observed one subject, E.P., walking by himself

      westbound on the north side of the street at approximately the 1200 block of

      West Washington Street immediately in front of the zoo. Officer Taylor shined

      the spotlight of his police vehicle and told E.P. to walk towards his vehicle and



      1
       In the summary of argument in his appellant’s brief, E.P. asserts that Officer Taylor’s suspicion was based
      on an anonymous tip. The transcript reveals that the attorneys discussed cases involving anonymous tips, but
      E.P. does not point to the record to suggest the report of shots fired originated from an anonymous tip.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020                   Page 2 of 11
      place his hands on the hood. At some point, Officer Taylor “got on the radio

      and said that . . . he had an individual matching that description” near 1200

      West Washington Street on the north side of the street. Id. at 25. Officer

      Newlin activated his emergency lights and drove to the location as quickly as

      possible due to the nature of the run.


[5]   Before conducting a pat-down search, Officer Taylor asked E.P. if he had any

      weapons on him. E.P. said, “No. Well, yeah, I have a gun in my pocket.” Id.

      at 19. Officer Taylor recovered a handgun from E.P.’s right front pocket,

      placed it on the hood of his vehicle, and had E.P. sit on the curb. Officer

      Newlin arrived at the scene and asked E.P. how old he was, and E.P. said he

      was seventeen years old.


[6]   On October 2, 2019, the State filed a petition alleging E.P. to be a delinquent

      child committing Count I, carrying a handgun without a license, and Count II,

      dangerous possession of a firearm, class A misdemeanors if committed by an

      adult.


[7]   On October 31, 2019, the court held a hearing. During Officer Taylor’s

      testimony, E.P.’s counsel requested permission to ask preliminary questions

      with respect to a motion to suppress and asked to suppress any further

      testimony on the basis of the Fourth Amendment of the United States

      Constitution and Article 1, Section 11 of the Indiana Constitution. After some

      discussion, the court denied the motion. The court entered a true finding as to

      Count II, dangerous possession of a firearm, and stated: “With regard to Count


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020   Page 3 of 11
      1 um, double jeopardy purposes, I will show that uh, find that not true.” Id. at

      31. On November 21, 2019, the court entered a dispositional decree, placed

      E.P. on probation with a suspended commitment, and discharged him to his

      mother’s custody.


                                                  Discussion

[8]   The issue is whether the trial court abused its discretion by admitting evidence

      following the stop. The admission and exclusion of evidence falls within the

      sound discretion of the trial court, and we review the admission of evidence

      only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.

      2002). An abuse of discretion occurs “where the decision is clearly against the

      logic and effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502,

      504 (Ind. 2001). Even if the trial court’s decision was an abuse of discretion, we

      will not reverse if the admission constituted harmless error. Fox v. State, 717

      N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied. “[T]he ultimate

      determination of the constitutionality of a search or seizure is a question of law

      that we consider de novo.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).


      A. Fourth Amendment


[9]   E.P. argues Officer Taylor lacked reasonable suspicion to conduct an

      investigatory stop. He cites Florida v. J.L., 529 U.S. 266 (2000), and asserts that

      this case presents an even more concerning intrusion. He argues Officer Taylor

      was unable to corroborate the information included in the tip and did not

      observe any suspicious behavior. The State argues the tip provided eyewitness

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020   Page 4 of 11
       information that a crime had actually occurred and gave specific information

       regarding the location and description of the suspect.


[10]   The Fourth Amendment to the United States Constitution provides, in

       pertinent part: “[t]he right of people to be secure in their persons, houses,

       papers, and effects, against unreasonable searches and seizures, shall not be

       violated . . . .” U.S. CONST. amend. IV.


[11]   In Terry v. Ohio, the United States Supreme Court established the standard for

       determining the constitutionality of investigatory stops. 392 U.S. 1, 88 S. Ct.

       1868 (1968). The Court ruled that police may, without a warrant or probable

       cause, briefly detain an individual for investigatory purposes if, based on

       specific and articulable facts, the officer has a reasonable suspicion of criminal

       activity. Id. at 27, 88 S. Ct. at 1883. Reasonable suspicion exists if 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. Powell v. State,

       841 N.E.2d 1165, 1167 (Ind. Ct. App. 2006). In judging the reasonableness of

       investigatory stops, courts must strike “a balance between the public interest

       and the individual’s right to personal security free from arbitrary interference by

       law [enforcement] officers.” Carter v. State, 692 N.E.2d 464, 466 (Ind. Ct. App.

       1997) (quoting Brown v. Texas, 443 U.S. 47, 50, 99 S. Ct. 2637, 2640 (1979)).

       When balancing these competing interests in different factual contexts, a central

       concern is “that an individual’s reasonable expectation of privacy is not subject

       to arbitrary invasions solely at the unfettered discretion of officers in the field.”

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020   Page 5 of 11
       Id. (citing Brown, 443 U.S. at 51, 99 S. Ct. at 2640). Therefore, in order to pass

       constitutional muster, reasonable suspicion must be comprised of more than an

       officer’s general “hunches” or unparticularized suspicions. Terry, 392 U.S. at

       27, 88 S. Ct. at 1883. Whether an investigatory stop is justified is determined

       on a case by case basis. Williams v. State, 745 N.E.2d 241, 245 (Ind. Ct. App.

       2001). In making this determination, we consider the totality of the

       circumstances. Id. “Judicial interpretation of what constitutes ‘reasonable

       suspicion’ is fact-sensitive.” Bridgewater v. State, 793 N.E.2d 1097, 1100 (Ind.

       Ct. App. 2003), trans. denied.


[12]   In Terry, the United States Supreme Court held:


               The scheme of the Fourth Amendment becomes meaningful only
               when it is assured that at some point the conduct of those
               charged with enforcing the laws can be subjected to the more
               detached, neutral scrutiny of a judge who must evaluate the
               reasonableness of a particular search or seizure in light of the
               particular circumstances. And in making that assessment it is
               imperative that the facts be judged against an objective standard:
               would the facts available to the officer at the moment of the
               seizure or the search ‘warrant a man of reasonable caution in the
               belief’ that the action taken was appropriate?


       392 U.S. at 21-22, 88 S. Ct. at 1880 (footnote omitted).


[13]   An anonymous tip alone is seldom sufficient to provide the reasonable

       suspicion required to initiate an investigatory Terry stop absent evidence of the

       reliability of the tip, such as an accurate prediction of future behavior of the

       suspect. Alabama v. White, 496 U.S. 325, 329, 332, 110 S. Ct. 2412 (1990).

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020   Page 6 of 11
       However, the United States Supreme Court has held that, even where an

       anonymous tip contained no prediction of future behavior, there was

       nevertheless sufficient indicia of reliability to support a Terry stop where an

       anonymous caller to an emergency police number gave eyewitness knowledge

       of alleged dangerous activity and accurate information identifying the suspect.

       Navarette v. California, 572 U.S. 393, 399-401, 134 S. Ct. 1683, 1688-1690 (2014).

       In Navarette, the Supreme Court clarified that an anonymous tip that

       substantially describes publicly knowable information about a suspect but does

       so through a 9-1-1 emergency system—which often “allow[s] for identifying

       and tracing callers”—and alleges that the suspect is “contemporaneous[ly]”

       engaged in “a specific and dangerous” activity, provides a sufficient basis for a

       Terry stop. Id. at 400, 403, 134 S. Ct. at 1689, 1691.


[14]   Officer Newlin testified that his responsibility as an officer was to “patrol the

       southwest side . . . answering 9-1-1 calls within the community.” Transcript

       Volume II at 23. While the record does not reveal that the caller provided

       specific predictions of E.P.’s future behavior, the caller did provide a

       description of the individual and a specific location. Officer Newlin testified

       that “the run came out” as a “black male wearing black pants and a black

       sweatshirt firing off a handgun” and “walking eastbound on the north side of

       the street.” Id. at 24. Officer Taylor observed E.P. who matched the

       description given by dispatch walking by himself at approximately the 1200

       block of West Washington Street, which is the location where officers were

       dispatched. The dispatch occurred at approximately 1:00 a.m. and Officer


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020   Page 7 of 11
Newlin testified that, once he heard Officer Taylor had an individual matching

the description of the suspect on the north side of the street, he activated his

emergency lights “and got to him as quickly as possible, because of the nature

of the run.” Id. at 25. Unlike in J.L., which involved a mere report of a minor

in possession of a firearm, the present call involved a report of shots fired. See

United States v. Hampton, 585 F.3d 1033, 1038 (7th Cir. 2009) (“As we, and

several of our sister circuits, have previously recognized, J.L. does not apply to

emergency situations, so because we conclude that Smith’s call reported an

ongoing emergency, J.L. does not help [the defendant].” (citing United States v.

Hicks, 531 F.3d 555, 558-559 (7th Cir. 2008)), reh’g and reh’g en banc denied, cert.

denied, 560 U.S. 927, 130 S. Ct. 3345 (2010); see also United States v. Edwards, 761

F.3d 977, 985 (9th Cir. 2014) (addressing a stop following a report of someone

shooting at cars and holding that such a situation distinguished the case from

J.L.); United States v. Holloway, 290 F.3d 1331, 1338-1339 (11th Cir. 2002) (“A

crucial distinction between J.L. and this case is the fact that the investigatory

stop in J.L. was not based on an emergency situation. . . . [W]hen an emergency

is reported by an anonymous caller, the need for immediate action may

outweigh the need to verify the reliability of the caller.”), reh’g and reh’g en banc

denied, cert. denied, 537 U.S. 1161, 123 S. Ct. 966 (2003). Under the totality of

the circumstances as presented by the record, we cannot say that reversal is

warranted on this basis. See Smith v. State, 121 N.E.3d 669, 674-675 (Ind. Ct.

App. 2019) (holding that an anonymous tip had sufficient indicia of reliability

to provide reasonable suspicion of criminal activity justifying a Terry stop of the

defendant’s vehicle where, while the anonymous caller gave no predictions of
Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020   Page 8 of 11
       the defendant’s future behavior to indicate the reliability of the tip, he or she did

       provide the following other indicia of reliability: the call was placed to an

       emergency number; the caller gave a specific description of the vehicle’s color

       and model; the caller stated gunshots were coming from that vehicle; and the

       caller gave a specific location where the vehicle was actually found soon after

       the tip was received), trans. denied. 2


       B. Article 1, Section 11


[15]   E.P. further argues the stop was unreasonable under Article 1, Section 11 of the

       Indiana Constitution. Article 1, Section 11 of the Indiana Constitution

       provides:


                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.


[16]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       § 11 of our Indiana Constitution separately and independently. Robinson v.




       2
         E.P. cites Berry v. State, 766 N.E.2d 805 (Ind. Ct. App. 2002), trans. denied. In that case, an anonymous
       caller reported to the dispatcher that a suspect had produced a firearm, waved it around in a parking lot, and
       said he was going to “cap someone.” 766 N.E.2d at 806. The court noted that “[a]t no point did the caller
       report that the suspect had fired any shots or that the suspect was in pursuit of someone after he left the
       parking lot.” Id. It concluded the officer improperly stopped the suspect because the stop was based solely
       on an anonymous tip that lacked sufficient indicia of reliability. Id. at 810. Unlike in Berry, the present case
       involved a report of shots fired. Further, we note Berry was decided before Navarette. See Smith, 121 N.E.2d
       at 674 n.8 (noting that Berry was decided before Navarette).

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020                        Page 9 of 11
       State, 5 N.E.3d 362, 368 (Ind. 2014). “When a defendant raises a Section 11

       claim, the State must show the police conduct ‘was reasonable under the

       totality of the circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d

       1200, 1205-1206 (Ind. 2008), reh’g denied). “The focus of the exclusionary rule

       under the Indiana Constitution is the reasonableness of police conduct.”

       Hardister v. State, 849 N.E.2d 563, 573 (Ind. 2006). “We consider three factors

       when evaluating 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.’” Robinson, 5 N.E.3d at 368 (quoting Litchfield

       v. State, 824 N.E.2d 356, 361 (Ind. 2005)).


[17]   With respect to the degree of concern, suspicion, or knowledge that a violation

       occurred, the police received a dispatch regarding shots fired at 1:00 a.m.,

       Officers Taylor and Newlin responded to the area, and Officer Taylor observed

       E.P. who matched the description and at the location provided in the dispatch.

       As for the degree of intrusion, Officer Taylor shined a spotlight, had E.P. walk

       towards his vehicle and place his hands on the hood, retrieved a handgun from

       E.P.’s pocket after E.P. stated he had a gun in his pocket, and had him sit on

       the curb. As to the extent of law enforcement needs, “[p]rotecting 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.” Grayson v. State, 52 N.E.3d

       24, 28 (Ind. Ct. App. 2016), trans. denied. Under the totality of the


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020   Page 10 of 11
       circumstances, we conclude that reversal is not warranted under Article 1,

       Section 11 of the Indiana Constitution.


[18]   For the foregoing reasons, we affirm the juvenile court’s adjudication of E.P. as

       a delinquent.


[19]   Affirmed.


       Najam, J., and Kirsch, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3020 | May 26, 2020   Page 11 of 11
