                                                                                   FILED
                                                                              Jan 31 2018, 10:16 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
Joel M. Schumm                                                Curtis T. Hill, Jr.
Christina L. Fisher, Certified Legal Intern                   Attorney General of Indiana
Appellate Clinic
IU Robert H. McKinney School of Law                           Ian McLean
Indianapolis, Indiana                                         Supervising Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
        COURT OF APPEALS OF INDIANA

J.G.,                                                        January 31, 2018
Appellant-Respondent,                                        Court of Appeals Case No.
                                                             49A02-1706-JV-1419
        v.                                                   Appeal from the Marion Superior
                                                             Court
State of Indiana,                                            The Honorable Marilyn A. Moores,
Appellee-Petitioner                                          Judge
                                                             The Honorable Gary K. Chavers,
                                                             Magistrate
                                                             Trial Court Cause No.
                                                             49D09-1703-JD-439



Crone, Judge.




Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                       Page 1 of 25
                                               Case Summary
[1]   J.G. appeals his adjudication as a delinquent for dangerous possession of a

      firearm and carrying a handgun without a license, both class A misdemeanors if

      committed by an adult. He argues that his detention by police officers was

      unconstitutional; that his confession to possessing the handgun was not

      voluntary; that portions of an audio recording played at trial were inadmissible;

      and that the trial court should have vacated the true finding for carrying a

      handgun without a license on double jeopardy grounds. We conclude that his

      detention was not unconstitutional and his confession was voluntary; we

      presume that the trial court disregarded inadmissible portions of the audio

      recording; and we agree that the true finding for carrying a handgun without a

      license must be vacated. Therefore, we affirm the true finding for dangerous

      possession of a firearm and remand with instructions to vacate the true finding

      for carrying a handgun without a license.


                                  Facts and Procedural History
[2]   The facts most favorable to the true findings follow. Around 1:30 a.m. on

      Thursday, March 23, 2017, Indianapolis police officers received a radio

      dispatch about suspicious persons “pacing back and forth in front of” a

      Mexican restaurant in a strip mall on North High School Road. Tr. Vol. 2 at




      Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 2 of 25
      40. According to Officer Jaime Thorn, who had patrolled that area for over

      seven years, “[t]here had been several attempted robberies at this business and

      other Hispanic businesses in the area ….” Id. at 13. Within thirty seconds of

      receiving the dispatch, Officer Thorn arrived at the restaurant, which the owner

      had been closing for the night as the employees were walking to the parking lot.

      Officer Michal Dinnsen, who had patrolled the area for about two years,

      arrived seconds later. Officer Thorn spoke with the restaurant owner and an

      employee, who indicated that two black males wearing black jackets had run

      behind the strip mall. Officer Thorn “dispatched that information out on the

      radio to other officers responding” and asked Officer Dinnsen to drive around

      the back of the building. Id. at 10. Officer Dinnsen did so and saw two males

      “running eastbound into the Gateway apartments” behind the strip mall. Id. at

      38. He “notified other responding officers” of what he had seen. Id.


[3]   By that time, Officer Albert Teaters had driven into the Gateway apartment

      complex, which is in “a fairly high crime area.” Id. at 13. Seconds after

      receiving Officer Dinnsen’s dispatch, Officer Teaters saw two black males

      wearing black jackets; no one else was around. Officer Teaters “told them to

      stop and [he] held them at gunpoint” for his safety “until more officers could

      arrive ….” Id. at 26. There had recently been a “rash of robberies” in the area,

      and Officer Teaters, who had patrolled the area for about two years, “didn’t

      know if weapons were involved” in this situation. Id. at 26, 27. Officer Teaters

      “got on the radio and notified [Officer Dinnsen] that he had two suspects




      Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 3 of 25
      stopped.” Id. at 39. One of the suspects was fifteen-year-old J.G.,1 and the

      other was O.D.


[4]   Officer Dinnsen arrived within “fifteen or twenty seconds” and held the

      suspects at gunpoint while Officer Teaters handcuffed them. Id. Officer

      Dinnsen “asked them how old they were because they both looked young.” Id.

      at 44. “[T]hey both told [him] their age and [he] realized they were both

      juveniles.” Id. Officer Dinnsen notified Officer Thorn, who completed her

      investigation at the restaurant and joined her colleagues about ten minutes

      later.2 The officers patted down J.G. and O.D. for contraband, spoke with a

      robbery detective, and realized that the juveniles’ actions “didn’t rise to the

      level of a robbery due to the fact that there was no demand for property and as a

      result [the officers] were going to take the juveniles back home to their parents.”

      Id.


[5]   Officer Dinnsen drove O.D. home, which took approximately ten or twelve

      minutes, and talked with O.D.’s mother and her boyfriend. The officer told

      them that “it appeared like this could’ve been a robbery” and that the officers

      “were concerned that there may be a gun ….” Id. at 46. Based on this

      conversation, they all returned to the apartment complex. O.D. pointed to a

      bush, under which Officer Dinnsen found a loaded semiautomatic handgun.



      1
       At trial, the parties stipulated that J.G. was born in September 2001. J.G.’s appellate brief incorrectly states
      that he was sixteen years old in March 2017.
      2
        Officer Thorn had requested the assistance of a Spanish-speaking officer, who obtained additional
      information from the restaurant owner about the events that led his employees to call the police.


      Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                         Page 4 of 25
[6]   Meanwhile, Officer Teaters drove J.G. home and talked with his mother.

      Officer Teaters was “getting ready to release” J.G. to his mother when Officer

      Dinnsen contacted him, told him that he had found a gun, and asked him to

      return to the apartment complex with J.G. and his mother. Id. at 33. Officer

      Teaters transported J.G., and J.G.’s mother drove her own car. When they

      arrived at the apartment complex, Officer Dinnsen gave J.G. and his mother a

      juvenile rights waiver form and read it over with them. The officer allowed

      them “to discuss everything” in private near J.G.’s mother’s car. Id. at 50.

      After approximately ten minutes, at 4:29 a.m., J.G.’s mother stated that they

      would talk to the officer.


[7]   Officer Dinnsen documented his interactions with J.G. and his mother with a

      digital audio recorder. The recording indicates that the officer removed J.G.’s

      handcuffs so that he could sign the waiver form. J.G.’s mother also signed the

      form. Both J.G. and his mother were aware that a gun had been found at the

      apartment complex. Officer Dinnsen said that he would test the gun for

      fingerprints and DNA, which would “let us know who’s been touching the

      gun[,]” and asked J.G. if his DNA would be found on the gun. State’s Ex. 3

      (recording). J.G. said no. Officer Dinnsen stated that O.D.’s mother and

      boyfriend heard J.G. say that he had a gun as he and O.D. were leaving O.D.’s

      house that evening. J.G. denied saying that. The officer told J.G. that O.D.

      admitted there was a gun and that “everybody’s saying it’s your gun.” Id.

      Officer Dinnsen told J.G. that it would cost $1000 to test the gun for DNA,

      recounted the events leading to J.G.’s detention and the discovery of the gun,


      Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 5 of 25
      and said, “You see how this is playing out.” Id. J.G.’s mother said, “Yeah,

      y’all had the gun.” Id. J.G. told her to “be quiet.” Id. She replied that O.D.

      and his mother said that J.G. had the gun, and she told her son, “You be the

      fool. You do what you want to do, bro. If you want to continue to tell them

      that, then go ahead, by all means necessary. I’m going back home to my baby.”

      Id. J.G. then admitted that he had the gun. He claimed that he had found it

      several hours earlier, that he gave it to O.D. when the police arrived, and that

      O.D. threw it under the bush.


[8]   The State alleged that J.G. committed dangerous possession of a firearm and

      carrying a handgun without a license, both class A misdemeanors if committed

      by an adult. At trial, J.G. objected to the admission of the handgun and Officer

      Dinnsen’s recording, claiming that his detention was unconstitutional, his

      confession was not voluntary, and the third-party statements on the recording

      were inadmissible. The trial court overruled the objections, entered true

      findings on both counts, and adjudicated J.G. a delinquent. The court stated

      that it would merge the second count into the first count, but the factfinding

      and dispositional orders do not mention merger. J.G. now appeals. Additional

      facts will be provided as necessary.




      Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 6 of 25
                                      Discussion and Decision

                   Section 1 – J.G.’s detention did not violate the
                   Fourth Amendment to the U.S. Constitution.
[9]   J.G. first contends that his detention by police violated the Fourth Amendment

      to the U.S. Constitution, and therefore the trial court should have excluded the

      handgun and his confession as fruits of that illegal seizure. The Fourth

      Amendment provides,


              The right of the people to be secure in their persons, houses,
              papers, and effects against unreasonable searches and seizures,
              shall not be violated, and no Warrants shall issue, but upon
              probable cause, supported by Oath or affirmation, and
              particularly describing the place to be searched, and the persons
              or things to be seized.


      “The protections granted by the Fourth Amendment have been extended to the

      states through the Fourteenth Amendment.” J.B. v. State, 30 N.E.3d 51, 54

      (Ind. Ct. App. 2015). “The fundamental purpose of the Fourth Amendment is

      to protect the legitimate expectations of privacy that citizens possess in their

      persons, homes, and belongings.” State v. Parrott, 69 N.E.3d 535, 541 (Ind. Ct.

      App. 2017), trans. denied. The touchstone of a Fourth Amendment analysis “is

      always ‘the reasonableness in all the circumstances of the particular

      governmental invasion of a citizen’s personal security.’” Pennsylvania v. Mimms,

      434 U.S. 106, 108-09 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). A

      warrantless seizure is per se unreasonable, and the State bears the burden to




      Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 7 of 25
       show that one of the well-delineated exceptions to the warrant requirement

       applies. Jacobs v. State, 76 N.E.3d 846, 850 (Ind. 2017).


[10]   “Generally speaking, evidence obtained pursuant to an unlawful seizure must

       be excluded under the fruit of the poisonous tree doctrine.” Clark v. State, 994

       N.E.2d 252, 266 (Ind. 2013). “This extension of the exclusionary rule bars

       evidence directly obtained by the illegal search or seizure as well as evidence

       derivatively gained as a result of information learned or leads obtained during

       that same search or seizure.” Id.


               We review a trial court’s decision regarding the admission of
               evidence for an abuse of discretion. An abuse of discretion
               occurs when the decision is clearly against the logic and effect of
               the facts before the trial court. We consider any uncontested
               evidence favorable to the defendant, but we will not reweigh the
               evidence and will resolve any conflicts in the evidence in favor of
               the trial court’s ruling. We conduct a de novo review of a trial
               court’s ruling on the constitutionality of a search or seizure.


       Miller v. State, 51 N.E.3d 313, 315 (Ind. Ct. App. 2016) (citations omitted).

       “We may affirm a trial court’s decision regarding the admission of evidence if it




       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 8 of 25
       is sustainable on any basis in the record.” Neeley v. State, 70 N.E.3d 866, 870

       (Ind. Ct. App. 2017).3


[11]   To determine whether J.G.’s detention was an unreasonable seizure, we must

       determine which level of police investigation occurred. Jamerson v. State, 870

       N.E.2d 1051, 1054 (Ind. Ct. App. 2007). “There are three levels of police

       investigation, two of which implicate the Fourth Amendment and one of which

       does not.” Id.


                First, the Fourth Amendment requires that an arrest or detention
                that lasts longer than a short period of time be justified by
                probable cause. Second, pursuant to Fourth Amendment
                jurisprudence, the police may briefly detain an individual for
                investigatory purposes without a warrant or probable cause if,
                based upon specific and articulable facts, the officer has a
                reasonable suspicion that criminal activity has [occurred] or is
                about to occur. The third level of investigation occurs when a
                police officer makes a casual and brief inquiry of a citizen
                involving neither an arrest nor a stop. Such is a consensual
                encounter and does not implicate the Fourth Amendment.


       Id. (citations omitted).




       3
         We note that the handgun was tossed under a bush in the apartment complex before J.G. was detained and
       thus could be considered abandoned for Fourth Amendment purposes. See J.B., 30 N.E.3d at 55 (concluding
       that appellant abandoned handgun by discarding it in a yard, “accessible to all[,]” after seeing officer’s car but
       before he was detained). “It has long been held that abandoned property is not subject to Fourth
       Amendment protection.” Harrison v. State, 32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans. denied. “The same
       is true under Article 1, Section 11 of the Indiana Constitution.” Id. We note, however, that the State did not
       argue abandonment at trial or on appeal and that because we must determine the admissibility of J.G.’s
       confession to possessing the handgun in any event, we do not explore the matter further.

       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                         Page 9 of 25
[12]   J.G.’s encounter with the police officers at the apartment complex was not

       consensual, and thus the Fourth Amendment was implicated. J.G. argues that

       by holding him at gunpoint and handcuffing him, the officers conducted an

       arrest for which they did not have probable cause. “A police officer may arrest

       a suspect without a warrant if the officer has probable cause to believe the

       suspect has committed a felony.” Lamagna v. State, 776 N.E.2d 955, 957-58

       (Ind. Ct. App. 2002). “Probable cause to arrest exists where the facts and

       circumstances within the knowledge of an officer are sufficient to warrant a

       belief by a person of reasonable caution that an offense has been committed and

       that the person to be arrested committed it.” State v. Stevens, 33 N.E.3d 1200,

       1204-05 (Ind. Ct. App. 2015), trans. denied. “The level of proof necessary to

       establish probable cause is less than that necessary to establish guilt beyond a

       reasonable doubt. Probable cause, in fact, requires only a fair probability of

       criminal activity, not a prima facie showing.” Jellison v. State, 656 N.E.2d 532,

       534 (Ind. Ct. App. 1995).


[13]   The State does not argue that the officers had probable cause to arrest J.G. for

       an offense when they held him at gunpoint. Instead, the State asserts that the

       officers had reasonable suspicion to detain J.G. for investigatory purposes and

       used reasonable force in doing so. In Terry, 392 U.S. 1, the U.S. Supreme

       Court established the rule that the police, without a warrant or probable cause,

       can briefly detain a person for investigatory purposes based on a reasonable

       suspicion of criminal activity. Wilson v. State, 670 N.E.2d 27, 29 (Ind. Ct. App.

       1996). “Whether a particular fact situation justifies an investigatory stop is


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 10 of 25
       determined on a case-by-case basis.” Crabtree v. State, 762 N.E.2d 241, 246 (Ind.

       Ct. App. 2002). The Fourth Amendment’s reasonable suspicion requirement

       “is satisfied where 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.” Id. (emphasis

       added).4 “Reasonable suspicion entails something more than an inchoate and

       unparticularized suspicion or hunch, but considerably less than proof of

       wrongdoing by a preponderance of the evidence.” Id. Likewise, “reasonable

       suspicion does not rise to the level of probable cause.” State v. Renzulli, 958

       N.E.2d 1143, 1146 (Ind. 2011). The existence of reasonable suspicion is

       determined by looking at the totality of the circumstances. Dunson v. State, 64

       N.E.3d 250, 253 (Ind. Ct. App. 2016).


[14]   Here, the facts known to the officers who responded to the first dispatch at 1:30

       a.m. were that two persons were “pacing back and forth in front of” a

       restaurant that was located in a “fairly high crime area” and had been the target

       of “several attempted robberies[.]” Tr. Vol. 2 at 40, 13. Seconds after the

       officers arrived, a restaurant employee indicated that two black males wearing

       black jackets had run behind the building. In Illinois v. Wardlow, the U.S.

       Supreme Court acknowledged that “[a]n individual’s presence in an area of

       expected criminal activity, standing alone, is not enough to support a




       4
        J.G.’s suggestion that a completed crime is a prerequisite for a valid investigatory stop is contrary to
       established precedent.


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                        Page 11 of 25
       reasonable, particularized suspicion that the person is committing a crime[,]”

       but emphasized that “officers are not required to ignore the relevant

       characteristics of a location in determining whether the circumstances are

       sufficiently suspicious to warrant further investigation.” 528 U.S. 119, 124

       (2000). The Wardlow court further observed that “[h]eadlong flight” from

       officers, although “not necessarily indicative of wrongdoing, … is certainly

       suggestive of such” and thus may also be considered in determining whether an

       investigatory stop is justified. Id. In response to Wardlow’s argument that

       “there are innocent reasons for flight from police[,]” the court noted,


                Even in Terry, the conduct justifying the stop was ambiguous and
                susceptible of an innocent explanation. The officer observed two
                individuals pacing back and forth in front of a store, peering into
                the window and periodically conferring. All of this conduct was
                by itself lawful, but it also suggested that the individuals were
                casing the store for a planned robbery. Terry recognized that the
                officers could detain the individuals to resolve the ambiguity.


       Id. at 125 (citation omitted).


[15]   In this case, not only did J.G. and O.D. pace back and forth in front of a

       restaurant in a high-crime area at closing time, when the owner was likely to be

       collecting the day’s receipts,5 but they also ran away when police officers

       arrived. All of this conduct was by itself lawful, but it also suggested that J.G.




       5
        See Morris v. State, 271 Ind. 593, 596, 394 N.E.2d 151 (1979) (affirming robbery conviction, where appellant
       entered grocery store with armed companion at closing time: “At that time of the day the day’s receipts
       would be present and the owner could be expected to be found alone.”).


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                     Page 12 of 25
       and O.D. were casing the restaurant for a planned robbery, which would not

       have been the first attempted at that location.6 As the court in Terry stated, “[i]t

       would have been poor police work indeed” for the officers, who were familiar

       with the neighborhood, “to have failed to investigate this behavior further.”

       392 U.S. at 23.


[16]   “An investigatory stop allows a police officer to ‘temporarily freeze the

       situation in order to make an investigative inquiry.’” Billingsley v. State, 980

       N.E.2d 402, 406 (Ind. Ct. App. 2012) (quoting Johnson v. State, 766 N.E.2d 426,

       429 (Ind. Ct. App. 2002), trans. denied), trans. denied (2013). “‘Fourth

       Amendment jurisprudence has long recognized that the right to make an arrest

       or investigatory stop necessarily carries with it the right to use some degree of

       physical coercion or threat thereof to effect it.’” Shotts v. State, 53 N.E.3d 526,

       532 (Ind. Ct. App. 2016) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)),

       trans. denied. “‘Determining whether the force used to effect a particular seizure

       is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the

       nature and quality of the intrusion on the individual’s Fourth Amendment

       interests against the countervailing governmental interests at stake.’” Id.

       (quoting Graham, 490 U.S. at 396). Officer safety is a “legitimate and weighty”

       interest, and “‘it would be unreasonable to require that police officers take

       unnecessary risks in the performance of their duties.’” Mimms, 434 U.S. at 110




       6
        For these reasons, we are unpersuaded by J.G.’s reliance on the factually dissimilar Williams v. State, 477
       N.E.2d 96 (Ind. 1985).


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                       Page 13 of 25
       (quoting Terry, 392 U.S. at 23). “But ‘[n]either Federal nor Indiana

       constitutional jurisprudence has developed a “bright line” test for determining

       when an investigatory detention moves beyond merely a Terry stop and

       becomes an arrest ….’” Shotts, 53 N.E.3d at 532 (quoting Jones v. State, 655

       N.E.2d 49, 55 (Ind. 1995)). “Courts of this State have reached varied

       conclusions based on the unique facts presented by different scenarios.” Id.


[17]   J.G. relies on Reinhart v. State, 930 N.E.2d 42 (Ind. Ct. App. 2010), in arguing

       that he was arrested for Fourth Amendment purposes when he was held at

       gunpoint and handcuffed by Officers Teaters and Dinnsen. In Reinhart, a

       sheriff’s deputy stopped the defendant’s vehicle on suspicion of operating while

       intoxicated after the defendant pulled into and out of several driveways, drove

       left of center, and yelled out the window at the deputy. The deputy ordered

       Reinhart out of his vehicle at gunpoint, had him get on his knees with his

       hands behind his head, and then instructed him to lie on his stomach with his

       arms outstretched. Shortly thereafter, another officer handcuffed him, searched

       him, and discovered marijuana and signs of alcohol consumption. Reinhart

       was convicted of operating while intoxicated and marijuana possession.


[18]   On appeal, Reinhart conceded that the initial traffic stop was valid but argued

       that it was “converted to an arrest requiring probable cause” when he was

       ordered out of vehicle at gunpoint and told to lie on the ground or, “at the very

       least,” when he was placed in handcuffs. Id. at 45. Reinhart argued that the

       officers had no probable cause to arrest him and therefore the incriminating



       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 14 of 25
       evidence obtained after the seizure should have been excluded. The Reinhart

       court stated,


               This court has held that “[h]olding a person at gunpoint certainly
               restrains his liberty of movement and is a clear example of
               arrest,” especially when police have no reason to believe that a suspect is
               armed. See Taylor v. State, 464 N.E.2d 1333, 1335 (Ind. Ct. App.
               1984) (action of holding defendant at gunpoint constituted arrest
               when police had no reason to believe defendant was armed); see
               also Williams v. State, 630 N.E.2d 221, 224 (Ind. Ct. App. 1994)
               (ordering defendant to exit vehicle and lie on ground at gunpoint
               constituted arrest). In addition, placing a person in handcuffs
               may convert an investigatory stop into an arrest depending upon
               the totality of the circumstances. Payne v. State, 854 N.E.2d 1199,
               1204-05 (Ind. Ct. App. 2006), trans. denied.


       Id. at 46 (emphases added). The court observed that the deputy’s “purported

       purpose in stopping Reinhart’s vehicle was to investigate a drunk driver,” and

       that although the deputy testified that “he was concerned with his safety based

       upon” Reinhart pulling into a driveway and “yelling out the window, there

       [was] no evidence suggesting that Reinhart engaged in any behavior which

       could have led to a specific reasonable inference that he was armed with a

       weapon. Therefore, under the circumstances, [the deputy’s] action of ordering

       Reinhart to exit the vehicle at gunpoint was excessive” and “became an arrest

       without probable cause.” Id. at 47, 48.


[19]   In so holding, the Reinhart court contrasted the facts of that case with those of

       Willis v. State, 907 N.E.2d 541 (Ind. Ct. App. 2009), in which officers responded

       to a late-night report that “an African-American male was holding a gun to the

       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018      Page 15 of 25
       head of another African-American male.” Id. at 543. When the officers

       arrived, they saw two African-American males, one of whom was Willis,

       standing on the sidewalk. The officers drew their guns and “ordered the men to

       kneel with their hands raised.” Id. The men were handcuffed, and the officers

       “searched the area to ensure no one had thrown away a handgun as [they] were

       arriving.” Id. An officer noticed a bulge in Willis’s pants pocket that the officer

       believed could contain a handgun. The officer obtained Willis’s consent to

       search the pocket and found a bag of marijuana and a cell phone.


[20]   Willis was convicted of marijuana possession and argued on appeal that he was

       arrested without probable cause when the officers “approached him with their

       guns drawn and put him in handcuffs.” Id. at 545. The court disagreed,

       holding that the officers had reasonable suspicion to stop Willis and did not

       convert the stop into an unlawful arrest:


               Here, the police arrived at the scene moments after a caller
               reported a man holding a handgun to another man’s head. In
               this circumstance, it would be unreasonable to expect a police
               officer to approach a suspect without his gun drawn, because the
               risk to the officer’s safety is simply too great. Similarly, we
               believe the totality of the circumstances justifies the use of
               handcuffs on a suspect during the brief detention required to
               determine only whether that suspect possesses a handgun, which
               might be concealed on the suspect’s person and easily accessible
               if the suspect’s hands are free. We decline to hold the brief
               intrusion into Willis’ privacy and the brief deprivation of his
               liberty of movement were constitutionally unreasonable as an
               investigative stop under the facts facing the officers in this case.


       Id. at 546.
       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 16 of 25
[21]   The facts of this case fall somewhere between those of Reinhart and Willis on the

       Fourth Amendment continuum. Officers Thorn, Dinnsen, and Teaters received

       a report of two persons pacing back and forth in front of a restaurant in a high-

       crime area at 1:30 a.m. The report did not mention a firearm, but the restaurant

       had been the target of robberies (i.e., forcible felonies) in the past, and Officer

       Teaters was by himself when he encountered two males matching the

       description of the pair seen running into the apartment complex behind the

       restaurant. Given the totality of these circumstances, we conclude that it was

       reasonable for Officer Teaters to hold J.G. at gunpoint until Officer Dinnsen

       arrived and for the pair to be handcuffed while the officers investigated their

       suspicious behavior. Officer Dinnsen promptly determined that J.G. was a

       juvenile, at which point the officers had probable cause to detain him for a

       curfew violation. See Ind. Code §§ 31-37-3-2(a) (making it a curfew violation

       for children ages fifteen through seventeen to be in a public place after 11 p.m.

       and before 5 a.m. on Wednesdays and Thursdays), 31-37-2-5 (making a curfew

       violation a delinquent act), and 31-37-4-2 (stating that “[a] child may be taken

       into custody by a law enforcement officer acting with probable cause to believe

       that the child has committed a delinquent act.”).7 In sum, the officers’ use of




       7
        Indiana Code Section 31-37-3-2(b) provides that a law enforcement officer “may not detain a child or take a
       child into custody” for a curfew violation unless the officer, “after making a reasonable determination and
       considering the facts and surrounding circumstances, reasonably believes that” the child has violated curfew
       and “there is no legal defense to the violation.” J.G. does not assert, and the record does not suggest, that he
       had a defense to the curfew violation, such as returning from lawful employment or a school-sanctioned
       activity. See Ind. Code § 31-37-3-3.5 (listing defenses to curfew violation).


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                       Page 17 of 25
       force did not convert the investigatory stop into an arrest without probable

       cause and therefore did not violate the Fourth Amendment.


                     Section 2 – J.G.’s detention did not violate
                  Article 1, Section 11 of the Indiana Constitution.
[22]   J.G. also argues that his detention violated Article 1, Section 11 of the Indiana

       Constitution, which “safeguards the ‘right of the people to be secure in their

       persons, houses, papers, and effects, against unreasonable search or seizure.’”

       Watkins v. State, 85 N.E.3d 597, 600 (Ind. 2017). “Although its text mirrors the

       federal Fourth Amendment, we interpret Article 1, § 11 of our Indiana

       Constitution separately and independently.” Robinson v. State, 5 N.E.3d 362,

       368 (Ind. 2014). A Fourth Amendment analysis turns on whether the subject

       has a reasonable expectation of privacy, whereas a Section 11 analysis “turns

       on whether the police conduct was reasonable under the totality of the

       circumstances.” Carpenter v. State, 18 N.E.3d 998, 1001-02 (Ind. 2014). In

       making this evaluation, we apply the test established by our supreme court in

       Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), which is “our ‘faithful stand-by’

       to determine reasonableness under our Constitution and is appropriate for a

       range of contexts.” Watkins, 85 N.E.3d at 600. 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 intrusion the method

       of the search or seizure imposes on the citizen’s ordinary activities, and 3) the




       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 18 of 25
       extent of law enforcement needs.” Litchfield, 824 N.E.2d at 361.8 “The State

       bears the burden to show the intrusion was reasonable.” Carpenter, 18 N.E.3d

       at 1002.


[23]   Regarding the first Litchfield factor, J.G. argues that “there was no articulable

       suspicion and no knowledge that any violation had occurred. The police

       simply knew … that there had been a report of a suspicious person, without any

       reports of any actual criminal acts.” Appellant’s Br. at 20. Notwithstanding

       the Litchfield court’s use of the past tense (“violation has occurred”), numerous

       pre- and post-Litchfield cases have declared that detentions to investigate

       possible future criminal activity are reasonable under Article 1, Section 11. See,

       e.g., Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001) (“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.”); State v. Cunningham, 26 N.E.2d 21, 26 (Ind. 2015)

       (“Likewise, we have held that Article 1, Section 11 of the Indiana Constitution

       likewise ‘permits police to stop and briefly detain a motorist if the officer

       reasonably suspects that the motorist is engaged in, or about to engage in,

       illegal activity,’ including a traffic violation.”) (quoting Mitchell, 745 N.E.2d at

       787). In this case, the degree of concern or suspicion that J.G. and O.D. were




       8
         Citing pre-Litchfield cases, the State suggests that our Section 11 analysis should be governed by Terry
       instead of Litchfield. Appellee’s Br. at 24-25. Given the plain wording of Litchfield (and in light of Watkins,
       which was handed down after the State filed its appellee’s brief), this suggestion is not well taken.


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                          Page 19 of 25
       about to rob the restaurant was high, given the totality of the circumstances

       mentioned above.


[24]   With respect to the second Litchfield factor, J.G. argues that his detention

       “imposed a substantial, and unreasonable, intrusion on [his] ability to go about

       his ordinary activities. He was detained for three hours, in the middle of the

       night, unable to leave, and generally unable to use his hands, or even put them

       in his pockets to keep them warm in the cold air.” Appellant’s Br. at 20. As a

       juvenile, J.G. should not have been roaming the streets at 1:30 a.m. Officer

       Teaters was alone when he confronted the suspected would-be robbers in the

       apartment complex behind the restaurant. There had been a “rash of robberies”

       in the area, and the officer “didn’t know if weapons were involved” in this

       situation. Tr. Vol. 2 at 26, 27. Under these circumstances, we cannot say that

       the degree of intrusion used to conduct the investigatory stop was unreasonable.

       See Saffold v. State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010) (“In determining

       reasonableness under Section 11, we recognize that Indiana citizens are

       concerned not only with personal privacy but also with safety, security, and

       protection from crime. When government intrusion is challenged under Section

       11, therefore, reasonableness under the totality of circumstances may include

       consideration of police officer safety.”) (citation omitted), trans. denied (2011).

       Once it was determined that J.G. was a juvenile, the officers were justified in

       detaining him for a curfew violation until he could be released to his mother,

       which did not occur due to the discovery of the handgun at the apartment

       complex. J.G. does not specifically argue that it was unreasonable for Officer


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 20 of 25
       Teaters to transport him back to the apartment complex in handcuffs to

       continue the investigation.


[25]   As for the third Litchfield factor, J.G. argues that


               the purposes of law enforcement could have been sufficiently
               served by monitoring the store for actual criminal activity. Even
               if police believed they needed to talk to the suspicious
               individuals, they could have restricted their interaction to a
               conversation—not an arrest at gunpoint—once they had caught
               up with them in the apartment complex.


       Appellant’s Br. at 20. We have already determined that J.G. was not arrested,

       and given the significant possibility that the suspected would-be robbers might

       be armed, the officers’ need to use force to detain the fleeing J.G. for

       investigatory purposes was substantial. All three Litchfield factors weigh in the

       State’s favor, and therefore we conclude that J.G.’s detention did not violate

       Article 1, Section 11 of the Indiana Constitution.


                      Section 3 – J.G.’s confession was voluntary.
[26]   J.G. contends that his incriminating statements to Officer Dinnsen were not

       voluntary and therefore the trial court erred in admitting them.9 “Unlike the

       Federal Constitution, Indiana law imposes on the State the burden of proving




       9
         J.G. does not challenge the voluntariness of his or his mother’s waiver of his rights under the juvenile
       waiver statute and makes only a general voluntariness argument based on a case involving an adult
       defendant. Because J.G. does not make a juvenile-specific argument, we respond to the argument as raised
       in his brief.


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                    Page 21 of 25
       beyond a reasonable doubt that a confession is voluntary.” Wilkes v. State, 917

       N.E.2d 675, 680 (Ind. 2009), cert. denied (2010).


               In evaluating a claim that a statement was not given voluntarily,
               the trial court is to consider the totality of the circumstances,
               including any element of police coercion; the length, location,
               and continuity of the interrogation; and the maturity, education,
               physical condition, and mental health of the defendant. To
               determine that a statement was given voluntarily, the court must
               conclude that inducement, threats, violence, or other improper
               influences did not overcome the defendant’s free will.


       Id. (citation and quotation marks omitted). “On appeal, the trial court’s

       determination of voluntariness is reviewed as other sufficiency matters. We do

       not reweigh the evidence, and we affirm the trial court’s finding if it is

       supported by substantial evidence.” Id. (citation omitted). The trial court in

       this case did not make a specific finding that J.G.’s statements were voluntary,

       but it did admit them over J.G.’s objections.


[27]   J.G. was fifteen years old, with no obvious educational, physical, or mental

       deficits. He was roaming the streets unsupervised at 1:30 on a Thursday

       morning, which explains why he was detained and questioned at such a late

       hour. J.G.’s three-hour detention encompassed the initial investigation at the

       apartment complex, the ride to his mother’s house to be released to her custody,

       and the return trip to the apartment complex for further investigation after the

       handgun was found. The interrogation itself lasted only a matter of minutes

       and occurred after J.G. discussed the situation privately with his mother near

       her vehicle.

       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 22 of 25
[28]   J.G. notes that the weather was cold and that he was not released from his

       handcuffs until after he agreed to sign the waiver form, but there is simply no

       evidence that these considerations factored into his decision to answer Officer

       Dinnsen’s questions.10 J.G. also notes that the officer twice mentioned the

       $1000 cost of DNA testing and asserts that “[t]hese statements exacted pressure

       on [him] to admit that his DNA would be on the gun, so police would not have

       to run the expensive DNA tests.” Appellant’s Br. at 22-23. He further asserts

       that, “[a]s a minor, [he] may well have believed that the officer was telling him

       about the cost of the testing because he would somehow be responsible for the

       cost.” Id. at 23. We agree with the State’s assessment that, “[t]o the extent

       [Officer] Dinnsen’s remark meant anything, it was that no one wanted to do

       DNA testing and that J.G. should tell the truth and dispense with the need for

       testing.” Appellee’s Br. at 32. Based on the foregoing, we conclude that the

       trial court’s implicit ruling that J.G.’s statements were voluntary is supported by

       substantial evidence.


              Section 4 – We presume that the trial court disregarded
            inadmissible portions of Officer Dinnsen’s audio recording.
[29]   Over J.G.’s objections, the trial court listened to Officer Dinnsen’s audio

       recording of his interactions with J.G. and his mother, which contained J.G.’s




       10
         At trial, Officer Dinnsen testified that J.G. was not in handcuffs during his private conversation with his
       mother, but the recording establishes otherwise. The outdoor temperature that night is unknown, but as
       Officer Dinnsen removed J.G.’s handcuffs, he remarked, “I bet your hands are cold out here, man. I’m
       gonna let you put them in your pockets again.” State’s Ex. 3. J.G. was wearing a jacket, and there is no
       indication that anything other than his hands might have been cold.


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                       Page 23 of 25
       confession to possessing the handgun as well as the officer’s account of what

       O.D. and his mother and her boyfriend had said about the handgun. J.G.

       contends that the trial court should have excluded the recording because the

       third-party statements were inadmissible hearsay and violated his right to

       confrontation under the U.S. Constitution.


[30]   It is questionable whether the third-party statements are hearsay.11 In any case,

       the trial court indicated that it would disregard inadmissible statements as it

       listened to the audio recording, and we presume that it did so. See Hinesley v.

       State, 999 N.E.2d 975, 987 (Ind. Ct. App. 2013) (“We generally presume that in

       a proceeding tried to the bench, a court renders its decisions solely on the basis

       of relevant and probative evidence. This longstanding principle has been

       termed the judicial-temperance presumption. We presume that the trial judge is

       aware of and knows the law and considers only evidence properly before him or

       her in reaching a decision. The risk of prejudice is quelled when the evidence is

       solely before the trial court.”) (citations omitted), trans. denied (2014). J.G.

       offers nothing to rebut this presumption in his reply brief, so we find no basis

       for reversal here.




       11
         Hearsay is a statement that “it not made by the declarant while testifying at the trial or hearing” and “is
       offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is not
       admissible unless the evidence rules or other law provides otherwise. Ind. Evidence Rule 802. There is no
       indication that the State offered the third-party statements in evidence to prove that J.G. possessed the
       handgun.


       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018                        Page 24 of 25
        Section 5 – The true finding for carrying a handgun without a
                           license must be vacated.
[31]   Finally, J.G. contends, and the State properly concedes, that the true finding for

       carrying a handgun without a license should be vacated on double jeopardy

       grounds and that remand is necessary to correct the trial court’s orders. We

       affirm the true finding for dangerous possession of a firearm and remand with

       instructions to vacate the true finding for carrying a handgun without a license.


[32]   Affirmed and remanded.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1706-JV-1419 | January 31, 2018   Page 25 of 25
