                                                                                  FILED
                                                                             Dec 08 2017, 10:15 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joel M. Schumm                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

J.R.,                                                      December 8, 2017
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           49A02-1704-JV-754
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Marilyn A.
Appellee-Petitioner                                        Moores, Judge
                                                           Trial Court Cause No.
                                                           49D09-1701-JD-70



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017                            Page 1 of 9
[1]   The juvenile court entered true findings that J.R. was delinquent for committing

      acts that would be dangerous possession of a firearm 1 and carrying a handgun

      without a license,2 had they been committed by an adult. J.R. appeals, arguing

      that the police, when conducting a pat-down search, violated his rights under

      the United States and Indiana Constitutions to be free from unreasonable

      searches and that the dual adjudications violate double jeopardy principles.

      Finding that the pat-down search did not violate his rights, but that the

      adjudication for carrying a handgun without a license must be vacated, we

      affirm the adjudication for dangerous possession of a firearm, vacate the

      adjudication for carrying a handgun without a license, and remand with

      instructions.


                                                      Facts     3




[2]   At approximately 8:30 p.m. on January 10, 2017, a police dispatch advised that

      “three black males” wearing “dark clothing” were “trying to open vehicles and

      take items out of cars” in a Family Dollar parking lot on the east side of

      Indianapolis. Tr. p. 8-9. When Indianapolis Metropolitan Police Officer

      Richard Christian responded to the scene, he saw three Black males, two of

      whom were trying to enter a vehicle while the third was standing behind it. No




      1
          Ind. Code § 35-47-10-5(a)
      2
          I.C. § 35-47-2-1(a).
      3
        We heard oral argument on November 9, 2017, at Ivy Tech Community College in Columbus. We thank
      the school’s administration, faculty, and students for their hospitality. We also thank counsel for their
      excellent written and oral advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017                      Page 2 of 9
      one else was at the scene. After Officer Christian shined his light on them, the

      three males fled the area. The officer described one of the men as wearing

      “dark clothing” and another one as “sorta tall, maybe five-ten . . . with a black

      jacket and a white stripe.” Id. at 9.


[3]   Meanwhile, Indianapolis Metropolitan Police Officer Nicholas Snow, who had

      been on the force for only a few months, and Field Training Officer Mark

      Klonne were patrolling a nearby area. After hearing the dispatch regarding the

      fleeing suspects, they went to help set up a perimeter. Approximately five

      minutes later, Officer Snow exited his vehicle and stopped sixteen-year-old J.R.

      and another young man as they walked down a street in Indianapolis because

      they matched the description of two of the suspects. Both J.R. and the other

      man were wearing black; J.R. had “white Adidas stripes down his sleeve.” Id.

      at 21. J.R. told Officer Snow that “I’m not f**king talking to you” and walked

      away. Id. at 27. Officer Snow tried to catch up, but J.R. began walking faster

      and disregarded another order to stop. At that point, Officer Snow grabbed

      J.R. and placed him in handcuffs.


[4]   Officer Snow decided to conduct a pat-down search of J.R. because the officer

      “was in danger of losing eyesight of Officer Klonne,” who was with the other

      young man. Id. at 33. Officer Snow patted down J.R.’s waist and the area

      behind his back where his hands were cuffed. The officer did not find anything

      during his search, and he walked J.R. back to the patrol car.




      Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017   Page 3 of 9
[5]   When they were back at the patrol car, Officer Snow asked J.R. questions to

      ascertain his identity and why he had refused to stop. Officer Snow observed

      that J.R. was “moving his legs in such a manner” and turning as if he was

      “trying to adjust something,” even after being asked to stop moving. Id. at 34.

      Officer Snow conducted a second pat-down that included a “pant sweep . . . up

      the left leg all the way to the groin.” Id. at 39. Officer Snow felt a hard,

      cylindrical object that he believed to be a gun, which he seized. He stated that

      he found the gun “tracking the left side of his pants up underneath his groin . . .

      concealed in-between . . . really his hip joint and, . . . where his scrotum would

      be. It was tucked that far up into his body.” Id. at 43.


[6]   On January 13, 2017, the State filed a petition alleging that J.R. had committed

      dangerous possession of a firearm and carrying a handgun without a license,

      both Class A misdemeanors if committed by an adult. A factfinding hearing

      took place on February 9, 2017, after which the juvenile court entered true

      findings on both allegations. On March 14, 2017, a dispositional hearing took

      place, and the juvenile court placed J.R. on probation with a suspended

      commitment to the Department of Correction. J.R. now appeals.


                                    Discussion and Decision
                                       I. Search and Seizure
[7]   J.R. argues that because there was no reasonable suspicion that he was armed,

      his rights under the Fourth Amendment to the United States Constitution and

      Article 1, Section 11 of the Indiana Constitution were violated when the police

      Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017     Page 4 of 9
      conducted a pat-down search, and as a result, the handgun seized from that pat-

      down search should not have been admitted into evidence.


                                      A. Fourth Amendment
[8]   The Fourth Amendment provides that “[t]he right of the people to be secure in

      their persons, houses, papers and effects against unreasonable searches or

      seizures shall not be violated.” A police officer may conduct “a reasonable

      search for weapons for the protection of the police officer, where he has reason

      to believe that he is dealing with an armed and dangerous individual, regardless

      of whether he has probable cause to arrest the individual for a crime.” Terry v.

      Ohio, 392 U.S. 1, 27 (1968). “The officer need not be absolutely certain that the

      individual is armed; the issue is whether a reasonably prudent man in the

      circumstances would be warranted in the belief that his safety or that of others

      was in danger.” Id. In determining whether the officer acted reasonably,

      weight is given “not to his inchoate and unparticularized suspicion or ‘hunch,’

      but to the specific reasonable inferences which he is entitled to draw from the

      facts in light of his experience.” Id.


[9]   Here, the circumstances supported Officer Snow’s belief that his safety or that

      of others was in danger when he conducted the second pat-down search.4 J.R.

      engaged in activities that drew attention to himself. He was hostile toward




      4
       Although J.R. briefly discusses the initial pat-down search, we note that because Officer Snow did not
      discover anything during that first search, J.R. could not receive relief or any remedy stemming from it.
      Therefore, we focus our analysis on the second pat-down search.

      Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017                          Page 5 of 9
       Officer Snow, telling him that “I’m not f**king talking to you.” Tr. p. 27. He

       did not cooperate with Officer Snow, walking away despite an order to stop,

       and then, after another order to stop, increasing his speed. Even after J.R. was

       placed in handcuffs, he continued to engage in actions that drew attention to his

       body. Officer Snow observed that J.R. was “moving his legs in such a manner”

       and turning as if he was “trying to adjust something” even after being told to

       stop moving. Id. at 34. These actions gave Officer Snow a particularized and

       objective basis for suspecting that J.R. was concealing something on his person

       and justified the officer’s second pat-down search. In short, the second pat-

       down search did not violate J.R.’s rights under the Fourth Amendment.


                                      B. Article 1, Section 11
[10]   Article 1, Section 11 of the Indiana Constitution provides that “[t]he right of the

       people to be secure in their persons, houses, papers, and effects, against

       unreasonable search or seizure, shall not be violated.” Indiana’s search and

       seizure clause is interpreted and applied independently of the Fourth

       Amendment. Baniaga v. State, 891 N.E.2d 615, 618 (Ind. Ct. App. 2008).

       Under the Indiana Constitution, the legality of a search turns on an evaluation

       of the reasonableness of the police conduct under the totality of the

       circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). We will

       consider the following factors in assessing 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. Id. at 361. The State

       Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017   Page 6 of 9
       bears the burden to show that its intrusion was reasonable under the totality of

       the circumstances. State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002).


[11]   The second pat-down search of J.R. was reasonable under the totality of the

       circumstances. First, Officer Snow had a significant degree of suspicion that a

       violation had occurred. J.R. matched the description the officer heard on the

       dispatch; he refused to comply with the officer’s commands to stop; he was

       hostile toward the officer; and even after being placed in handcuffs, he moved

       his body in ways that drew attention to his legs. Second, the pat-down search

       did not involve a degree of intrusion greater than in an ordinary pat-down

       search. Indeed, the second pat-down search was conducted on the outside of

       J.R.’s pants, and there is no evidence that Officer Snow had to manipulate

       J.R.’s genitalia to find the gun. Finally, the extent of law enforcement needs

       was great—Officer Snow needed to be able to conduct his investigation in

       safety. Under the totality of these circumstances, the second pat-down search

       did not violate J.R.’s rights under the Indiana Constitution.


[12]   In sum, the second pat-down search did not violate J.R.’s rights under the

       United States or Indiana Constitutions, and the juvenile court did not err in

       admitting the seized gun into evidence.


                                       II. The Adjudications
[13]   J.R. next contends that his adjudications for dangerous possession of a firearm

       and for carrying a handgun without a license violate double jeopardy principles

       under both the double jeopardy clause of the Indiana Constitution and common

       Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017   Page 7 of 9
       law protections. The State alleged and proved that J.R. possessed only one

       handgun, and that same gun supported both adjudications. The State concedes

       on this issue, and the parties agree that the adjudication for carrying a handgun

       without a license should be vacated.


[14]   We agree that the adjudication for carrying a handgun without a license should

       be vacated, but for different reasons. Indiana Code section 35-47-2-1(a) states

       in relevant part that “a person shall not carry a handgun in any vehicle or on or

       about the person’s body without being licensed under this chapter to carry a

       handgun.” Under that same chapter, Indiana Code section 35-47-2-3(g)(3)

       states that “[a] license to carry a handgun shall not be issued to any person

       who . . . is under eighteen (18) years of age . . . .”


[15]   With respect to minors, Indiana Code section 35-47-10-5(a) states that “[a] child

       who knowingly, intentionally, or recklessly possesses a firearm for any purpose

       other than a purpose described in section 1 of this chapter commits dangerous

       possession of a firearm . . . .” (Emphasis added.) Within that chapter, Indiana

       Code section 35-47-10-3 defines “child” as “a person who is less than eighteen

       (18) years of age.”


[16]   In other words, Indiana Code section 35-47-2-1 applies only to adults who

       possess handguns without a license, and as a matter of law, a person under the

       age of eighteen is not eligible for such a handgun license. Instead, a person

       under the age of eighteen, such as J.R., who possesses a handgun for any

       unauthorized reason commits, and only commits, dangerous possession of a


       Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017   Page 8 of 9
       firearm. As a result, a double jeopardy violation cannot exist in the

       circumstances presented here because Indiana Code section 35-47-2-1, which

       governs the offense of carrying a handgun without a license, applies only to

       adults, and Indiana Code section 35-47-10-5, which governs the offense of a

       child in dangerous possession of a firearm, applies only to minors. The statutes,

       therefore, cannot be simultaneously violated. And because a minor cannot be

       adjudicated delinquent under Indiana Code section 35-47-2-1, J.R.’s conviction

       for carrying a handgun without a license must be vacated. We remand to the

       juvenile court with instructions to vacate J.R.’s adjudication for carrying a

       handgun without a license and resentence if needed.


[17]   The judgment of the juvenile court is affirmed in part, reversed in part, and

       remanded with instructions.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017   Page 9 of 9
