MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                       Sep 30 2015, 8:31 am
this Memorandum Decision shall not be
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
Gary L. Griner                                           Gregory F. Zoeller
Mishawaka, Indiana                                       Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

James H. Gosnell,                                        September 30, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1502-CR-47
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth Hurley,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         71D08-1207-FD-615



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 1 of 12
                                          Case Summary
[1]   James H. Gosnell was convicted of Class D felony operating a motor vehicle

      while privileges are suspended as a habitual violator of traffic laws (HTV) and

      Class D felony operating a vehicle with a blood-alcohol concentration of at least

      .08 with a prior operating while intoxicated (OWI) conviction within the

      preceding five years. He now appeals both convictions, arguing that the officer

      did not have reasonable suspicion to stop him under the Fourth Amendment of

      the United States Constitution or Article 1, Section 11 of the Indiana

      Constitution. Finding that the officer had reasonable suspicion to conduct an

      investigatory stop based on the concerned-citizen tip, and the circumstances—

      an area with a history of burglaries and thefts, and the time of day—we affirm.



                            Facts and Procedural History
[2]   There is a Save-A-Lot grocery store on the corner of Twelfth Street and Byrkit

      Avenue in Mishawaka, Indiana. Directly across from Save-A-Lot is a 7-Eleven

      gas station that has been the target of armed robbers and shoplifters. Behind

      Save-A-Lot, there is a loading dock. Village Green, a mobile-home community

      that has reported “quite a few burglaries,” is located behind the loading dock,

      across a small grass field. Tr. p. 33.

[3]   Julie Williams lives in Village Green. Around 12:30 a.m. on July 6, 2012, she

      was on her way home from work, driving her truck on Byrkit Avenue. As she

      drove by Save-A-Lot, she noticed a small, black car parked behind the loading


      Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 2 of 12
      dock and she saw the dome lights in the car flash on and off multiple times as

      the doors were opened and closed. Williams became concerned about the car

      and its occupants because there had been “break-ins in Village Green.” Id. at

      13. Because it was dark, the store was closed, and there was no obvious reason

      for a car to be parked at the loading dock, Williams called the police and pulled

      her truck closer to the grass field to continue watching the car until an officer

      arrived. While she was waiting, the car started to leave the parking lot.

      Williams called the police again and then followed the car in her truck. Id. at

      14.

[4]   The car was traveling west on Twelfth Street with Williams following in her

      truck when Mishawaka Police Department Officer Bruce Faltynski spotted it.

      He was heading east on Twelfth Street at the time. Officer Faltynski turned his

      car around and fell in line behind Williams’s truck. When the small, black car

      turned into a parking lot, Williams drove on and Officer Faltynski confirmed

      that the license plate on the car matched the plate number from the dispatcher.

      Id. at 20. He then stopped the car to investigate.


[5]   Gosnell was driving the small, black car with his wife in the passenger seat and

      two minor children in back. The car was in working order and Officer

      Faltynski did not see Gosnell violate any traffic rules. Id. at 30. But when

      Officer Faltynski asked for Gosnell’s identification, he discovered that Gosnell

      did not have a license because he was an HTV. Officer Faltynski asked Gosnell

      to step out of the car and, while he was talking with Gosnell about his license,



      Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 3 of 12
      he smelled alcohol on Gosnell’s breath. Gosnell admitted to Officer Faltynski

      that he had consumed four beers that night.

[6]   The State charged Gosnell with Class D felony operating a motor vehicle while

      privileges are suspended as an HTV, Class C misdemeanor operating a vehicle

      with a blood-alcohol concentration of at least .08, and Class D felony operating

      a vehicle with a blood-alcohol concentration of at least .08 with a prior OWI

      conviction within the preceding five years. Appellant’s App. p. 7-9.

[7]   Gosnell moved to suppress the evidence of his license status and blood-alcohol

      concentration, claiming Officer Faltynski did not have reasonable suspicion of

      criminal activity when he stopped him. The trial court denied Gosnell’s motion

      to suppress and admitted the evidence during trial. A jury found him guilty of

      Class D felony operating a motor vehicle while privileges are suspended as an

      HTV and Class C misdemeanor operating a vehicle with a blood-alcohol

      concentration of at least .08, and he pled guilty to Class D felony operating a

      vehicle with a blood-alcohol concentration of at least .08 with a prior OWI

      conviction within the preceding five years. The court merged the Class C

      misdemeanor for operating a vehicle with a blood-alcohol concentration of at

      least .08 with the Class D felony conviction for operating a vehicle with a

      blood-alcohol concentration of at least .08 with a prior OWI conviction within

      the preceding five years, and sentenced him to concurrent terms of two-and-

      one-half years.

[8]   Gosnell now appeals.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 4 of 12
                                  Discussion and Decision
[9]    Gosnell contends that the trial court erred by admitting evidence resulting from

       the Terry stop—specifically, evidence that he was driving with a suspended

       license, and that his blood-alcohol concentration was over the legal limit. He

       argues that Officer Faltynski lacked reasonable suspicion to stop him and,

       therefore, “all evidence obtained following the stop should be suppressed.”

       Appellant’s Br. p. 4. He raises this issue under both the Fourth Amendment to

       the United States Constitution and Article 1, Section 11 of the Indiana

       Constitution.

[10]   A trial court’s determination of admissibility of evidence is reviewed for abuse

       of discretion and will be reversed only 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). We will not reweigh the evidence, and we consider any

       conflicting evidence in favor of the trial court’s ruling. Collins v. State, 822

       N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied. However, we must also

       consider the uncontested evidence favorable to the defendant. Id.



                                    I. Fourth Amendment
[11]   The Fourth Amendment protects people from unreasonable searches and

       seizures, and this protection has been extended to state action through the

       Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). These two

       constitutional provisions have generally been construed to prohibit warrantless


       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 5 of 12
       searches except in particular circumstances. Berry v. State, 704 N.E.2d 462, 465

       (Ind. 1998). And “when a search is conducted without a warrant, the State has

       the burden of proving that an exception to the warrant requirement existed at

       the time of the search.” Id.


[12]   One such exception to the warrant requirement is the Terry stop. Police officers

       may briefly detain a person for investigatory purposes if they have reasonable

       suspicion that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 21-22

       (1968). In evaluating the legality of a Terry stop, we consider “the totality of the

       circumstances—the whole picture.” United States v. Cortez, 449 U.S. 411, 417

       (1981). The reasonable-suspicion requirement is satisfied where 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. Lyons v. State,

       735 N.E.2d 1179, 1183-84 (Ind. Ct. App. 2000), trans. denied; see also Gipson v.

       State, 459 N.E.2d 366, 368 (Ind. 1984). “Reasonable suspicion” requires

       something “more than an inchoate and unparticularized suspicion or hunch,

       but considerably less than proof of wrongdoing by a preponderance of the

       evidence.” Francis v. State, 764 N.E.2d 641, 644 (Ind. Ct. App. 2002) (citing

       Luster v. State, 578 N.E.2d 740, 743 (Ind. Ct. App. 1991)).


[13]   Gosnell argues that Officer Faltynski did not have reasonable suspicion to stop

       him because neither the officer nor the tipster, Williams, saw anything illegal,

       or anything that would unambiguously suggest criminal activity was afoot.

       Appellant’s Br. p. 6-7. But whether the officer or the tipster saw unambiguously
       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 6 of 12
       criminal activity is not the correct question. “The Fourth Amendment does not

       require a policeman who lacks the precise level of information necessary for

       probable cause to arrest to simply shrug his shoulders and allow a crime to

       occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145 (1972).

       Therefore, the fact that an action might also have an innocent explanation does

       not establish a violation of the Fourth Amendment. Illinois v. Wardlow, 528

       U.S. 119, 125 (2000). The conduct in Terry, for example, was “ambiguous and

       susceptible of an innocent explanation,” but Terry recognized that, “officers

       could detain the individuals to resolve the ambiguity.” Id. The correct question

       is whether Officer Faltynski’s “brief stop of [Gosnell], in order to determine his

       identity or to maintain the status quo momentarily while obtaining more

       information,” was “reasonable in light of the facts known to the officer at the

       time.” See id. at 146.


[14]   Examining the facts that were available to Officer Faltynski in this case, the

       trial court found he had reasonable suspicion that criminal activity was afoot.

       Officer Faltynski discussed three reasons why he stopped Gosnell: (1)

       Williams’s tip that described unusual, but not illegal, activity behind Save-A-

       Lot; (2) Save-A-Lot is positioned between a 7-Eleven, where there have been

       “some armed robberies” and thefts, and the Village Green neighborhood, which

       has reported “quite a few burglaries”; and (3) it was 12:30 in the morning, the

       store was closed, and there was no apparent reason for people to be getting in

       and out of a car multiple times behind the loading dock. Tr. p. 32-33.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 7 of 12
[15]   First, as for Williams’s tip, “it is well-established in Indiana that a tip from a

       concerned citizen may justify an investigatory stop if sufficiently reliable.”

       Russell v. State, 993 N.E.2d 1176, 1180 (Ind. Ct. App. 2013). “The reliability of

       a concerned citizen tip ‘generally must be established by reference to underlying

       facts and circumstances which indicate that the information is trustworthy.’” Id.

       (quoting State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011)). Tips from

       concerned citizens “will be deemed reliable when an individual provides

       specific information to police officers such as a vehicle description.” Renzulli,

       958 N.E.2d at 1148 (quoting Bogetti v. State, 723 N.E.2d 876, 879 (Ind. Ct. App.

       2000)).

[16]   The record reflects multiple indicators that Williams’s tip was sufficiently

       reliable to justify an investigatory stop. She provided a description of the small,

       black car, which included its license-plate number. Tr. p. 20. She called the

       police a second time, when the car began to leave Save-A-Lot, and followed it

       herself, providing the police with specific information about the car’s location

       and direction of travel. Id. at 15; see also Russell, 993 N.E.2d at 1180 (finding a

       tip sufficiently reliable when it was given by a driver who was leading the

       suspicious vehicle to a specific location; during a low-traffic time of day; when

       the tip included particular information about where the suspect was and how to

       identify him; and because the tipster was also present at the scene, rendering

       him susceptible to prosecution for false reporting). Finally, it is reasonable to

       infer that Williams gave her name when she called the police because the State

       was able to call her as a witness. See Renzulli, 958 N.E.2d at 1150 (including the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 8 of 12
       fact that the tipster identified himself as a factor in the totality-of-the-

       circumstances test for reasonable suspicion). Under these circumstances, we

       find that Williams’s tip “provided independent indicia of reliability” sufficient

       to permit Officer Faltynski to rely on it in forming his own reasonable suspicion

       for a Terry stop. See Russell, 993 N.E.2d at 1180.


[17]   Second, Officer Faltynski testified that he knew of “some armed robberies” and

       burglaries occurring in the area around Save-A-Lot, even though the store itself

       had not previously been burglarized. Tr. p. 33. Gosnell cites Wardlow for the

       proposition that, standing alone, the nature of the neighborhood does not justify

       an investigatory stop. Appellant’s Br. p. 7. But it is a relevant consideration

       that may be taken together with the other facts. Wardlow goes on to say 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.” Wardlow, 528 U.S. at 124. The fact that the stop

       occurred in a high-crime area, while not dispositive, is among the relevant

       contextual considerations in a Terry analysis. Id.


[18]   Finally, it was 12:30 in the morning. The store was closed and dark. The lack

       of an obvious reason for a car to be at the loading dock at that hour with its

       doors being opened and closed is what prompted Williams to call the police.

       She was concerned that the occupants of the small, black car had broken into

       the store. Id. at 14.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 9 of 12
[19]   Considering all the facts together—the indicia of reliability in Williams’s tip,

       the history of crimes in the area, and the time of night—we conclude that

       Officer Faltynski had reasonable suspicion of criminal activity based on

       articulable facts to support the stop. Therefore, the trial court did not abuse its

       discretion in admitting evidence obtained from the stop under the Fourth

       Amendment.



                                   II. Article 1, Section 11
[20]   Gosnell also argues that the initial stop by Officer Faltynski violated Article 1,

       Section 11 of the Indiana Constitution. Article 1, Section 11 is identical to the

       Fourth Amendment, but it is analyzed differently. Indiana constitutional

       analysis focuses on the reasonableness of police conduct under the totality of

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

       determine reasonableness under the Indiana Constitution by balancing “1) the

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

       degree of intrusion the method of search or seizure imposes on the citizen's

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

       The State has the burden of proving that the search was reasonable under the

       totality of the circumstances. State v. Bulington, 802 N.E.2d 435, 438 (Ind.

       2004).

[21]   Stopping Gosnell was reasonable under the Indiana Constitution. The degree

       of concern or suspicion that a violation occurred was high in this case: a

       concerned citizen complained of suspicious activity behind a closed grocery

       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 10 of 12
       store, just after midnight, in a neighborhood where there had been “some

       armed robberies” and “quite a few burglaries.” Tr. p. 33. Second, the degree of

       intrusion was slight. Officer Faltynski stopped Gosnell, briefly, to ask for his

       identification. “A brief stop of a suspicious individual, in order to determine his

       identity or to maintain the status quo momentarily while obtaining more

       information, may be most reasonable in light of the facts known to the officer at

       the time.” McDermott v. State, 877 N.E.2d 467, 473 (Ind. Ct. App. 2007)

       (citation omitted) (applying this reasoning to the Indiana constitutional

       analysis), trans. denied.


[22]   Finally, there is a legitimate need for law enforcement to investigate citizens’

       complaints of suspicious activity. Officer Faltynski was investigating

       Williams’s concern. In fact, Williams followed the suspect herself because she

       was so concerned about the possibility that something illegal had happened.

       “[T]he circumstances warranting an immediate response are readily apparent

       here.” Bogetti, 723 N.E.2d at 879.


[23]   Balancing the high degree of concern, suspicion, or knowledge that a violation

       occurred and the needs of law enforcement against the low degree of intrusion,

       we conclude that Officer Faltynski had reasonable suspicion under Article 1,

       Section 11 to justify stopping Gosnell. Therefore, the trial court did not abuse

       its discretion in admitting evidence obtained from the stop under Article 1,

       Section 11 of the Indiana Constitution.

[24]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015   Page 11 of 12
[25]   Robb, J., and Pyle, J., concur.




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