                                                                                                  FILED
                                                                                              Jul 14 2017, 8:29 am

                                                                                                  CLERK
                                                                                              Indiana Supreme Court
                                                                                                 Court of Appeals
                                                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimmerly A. Klee                                           Curtis T. Hill, Jr.
Greenwood, Indiana                                         Attorney General of Indiana

Ruth Ann Johnson                                           Monika Prekopa Talbot
Suzy St. John                                              Caryn Nieman-Szyper
Marion County Public Defender Agency                       Deputy Attorneys General
Indianapolis, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Louis Bell,                                                July 14, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1606-CR-1390
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Alicia Gooden,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           49G21-1509-F4-32048



May, Judge.




Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                 Page 1 of 20
[1]   Louis Bell appeals his convictions of Level 4 felony unlawful possession of a

      firearm by a serious violent felon, 1 Level 5 felony possession of a narcotic drug, 2

      Level 5 felony possession of cocaine, 3 Class B misdemeanor possession of

      marijuana, 4 and Class C misdemeanor possession of paraphernalia. 5 Bell

      asserts his convictions must be overturned because the trial court admitted

      evidence that was obtained unconstitutionally. 6 We affirm.



                                Facts and Procedural History
[2]   On September 7, 2015, around 1:00 a.m., Officer Justin Gough of the

      Indianapolis Metropolitan Police Department (IMPD) observed a man, later

      identified as Bell, riding a bike and trailing another bike by holding its

      handlebars. Bell was “rapidly just kind of looking around the area constantly

      looking if someone is watching or if someone is coming towards” him. (Tr. at

      73.) Officer Gough explained this behavior is called “scanning.” (Id. at 14.)

      State law requires a bike operated at night have a red rear light and a white

      front light. Ind. Code § 9-21-11-9. The bike Bell was riding did not have this




      1
          Ind. Code § 35-47-4-5 (2014).
      2
          Ind. Code § 35-48-4-6 (2014).
      3
          Ind. Code § 35-48-4-6 (2014).
      4
          Ind. Code § 35-48-4-11 (2014).
      5
          Ind. Code § 35-48-4-8.3 (2015).
      6
       We held oral argument on this matter on March 2, 2017, at the Lafayette campus of Ivy Tech Community
      College. We thank counsel for their advocacy and the students and staff at Ivy Tech for their warm
      welcome.

      Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                   Page 2 of 20
      lighting. 7 Officer Gough parked down the road in front of Bell and waited for

      him to approach. When Bell was around twenty feet away, Officer Gough

      asked Bell, “Hey, do you mind if I talk to you for a minute?” (Tr. at 79.) Bell

      replied, “What’s up?” and rode over to Officer Gough. (Id. at 80.)


[3]   When Bell approached Officer Gough, Bell was “still scanning and looking

      around, sweating. His heart was beating extremely fast.” (Id. at 81.) Officer

      Gough asked Bell for his name. Officer Gough “r[a]n [Bell’s name] through

      Control” and learned Bell did not have any warrants. (Id. at 115.) Officer

      Gough asked Bell if he was in possession of anything illegal, and Bell said he

      was not.


[4]   Officer Gough observed a suspicious bulge in Bell’s front pocket. When he

      asked Bell about it, Bell “looked away, started scanning again, and then didn’t

      answer [Officer Gough’s] question.” (Id. at 90.) For “[o]fficer safety,” (id. at

      123), Officer Gough “grabbed [Bell’s] hands to conduct an outer clothes pat-

      down.” (Id. at 90.) The bulge was a gun. Officer Gough asked Bell if he had a

      permit to carry the gun, and Bell said he did not.


[5]   Officer Gough placed Bell under arrest and conducted a search incident to

      arrest. Officer Gough found a screwdriver with a “removable cap.” (Id. at 95.)

      In the cavity under the cap, Officer Gough found “a white plastic baggie [he]

      believed to be [sic] cocaine [and] another clear plastic bag with a brown rock-



      7
          Nor did the bike he was trailing have lights.


      Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017   Page 3 of 20
      like substance [he] believed to be heroin.” (Id.) In a cigarette pack, Officer

      Gough found a “glass smoking pipe . . . and then two small burnt marijuana

      cigars.” (Id. at 98-99.)


[6]   The State charged Bell with Level 4 felony unlawful possession of a firearm by

      a serious violent felon, Level 5 felony possession of a narcotic drug, Level 5

      felony possession of cocaine, Class B misdemeanor possession of marijuana,

      and Class C misdemeanor possession of paraphernalia. Bell filed a motion to

      suppress the fruits of Officer Gough’s search arguing his encounter with Officer

      Gough was not consensual and, as such, the pat-down violated his rights under

      the federal and Indiana constitutions. The trial court denied the motion.

      Following a bench trial, the court convicted Bell of all charges and sentenced

      him accordingly.



                                  Discussion and Decision
[7]   Bell did not seek interlocutory review of the denial of his motion to suppress but

      instead appeals following trial. The issue he raises is therefore “appropriately

      framed as whether the trial court abused its discretion by admitting the evidence

      at trial.” Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). Our

      standard of review for rulings on the admissibility of evidence is essentially the

      same whether the challenge is made by a pre-trial motion to suppress or by trial

      objection. Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). We

      do not reweigh the evidence, and we consider conflicting evidence most



      Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017   Page 4 of 20
      favorable to the trial court’s ruling. Id. However, we must also consider the

      uncontested evidence favorable to the defendant. Id.


[8]   “Although a trial court’s determination of historical facts is entitled to

      deferential review, we employ a de novo standard when reviewing the trial

      court’s ultimate determination of reasonable suspicion and probable cause.”

      Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans. denied.


               In other words, when a trial court has admitted evidence alleged
               to have been discovered as the result of an illegal search or
               seizure, we generally will assume the trial court accepted the
               evidence presented by the State and will not reweigh that
               evidence, but we owe no deference as to whether that evidence
               established the constitutionality of a search or seizure.


      Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied.


                                                  1. Initial Stop8
[9]   Bell asserts that although Officer Gough “was within his right to stop Bell for

      the bicycle violation,” (Appellant’s Br. at 19), he was actually investigating




      8
        The parties disagree whether the interaction between Bell and Officer Gough began as a consensual
      encounter, which would “not compel Fourth Amendment analysis.” McNeal v. State, 62 N.E.3d 1275,
      1280 (Ind. Ct. App. 2016). The trial court concluded the “encounter between [Bell] and Officer
      Gough, leading up to the ‘pat down’ search, was a consensual one[.]” (App. Vol. II at 86.) Thereafter,
      the court concluded that “even if the encounter was not consensual . . . Officer Gough had reasonable
      suspicion to stop [Bell] based upon the totality of the circumstances.” (Id.) Even if we presume Bell
      approached Officer Gough voluntarily, the consensual nature of the stop quickly evolved into an
      investigatory stop. See Combs v. State, 851 N.E.2d 1053, 1059 (Ind. Ct. App. 2006) (consensual stop
      evolved into an investigatory stop on request for identifying information), trans. denied. Thus, we turn
      to whether Officer Gough had at least reasonable suspicion to stop Bell.



      Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                          Page 5 of 20
       whether the second bike was stolen. 9 However, as the State notes, even if the

       traffic stop was pretext to investigate the possibility the second bike was stolen,

       Indiana law allows pretextual traffic stops when the officer has observed a

       traffic violation. See Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001)

       (pretextual traffic stops not unconstitutional “even if the officer may have an

       ulterior motive of furthering an unrelated criminal investigation”).


[10]   In Indiana, “[w]henever a law enforcement officer believes in good faith that a

       person has committed an infraction or ordinance violation, the law enforcement

       officer may detain that person for a time[.]” Ind. Code § 34-28-5-3. “[A] traffic

       stop and limited search is permissible where an officer has at least reasonable

       suspicion that a traffic law, or other law, has been violated.” Sanders v. State,

       989 N.E.2d 332, 335 (Ind. 2013), reh’g denied.


[11]   In the middle of the night, Bell was riding a bike that did not have the lights

       required by law for a bike to be ridden at night. 10 Officer Gough thus had

       reasonable suspicion to detain Bell for the traffic violation. See, e.g., State v.

       Keck, 4 N.E.3d 1180, 1184 (Ind. 2014) (“If an officer observes a driver commit a

       traffic violation, he has probable cause - and thus also the lesser included




       9
        Bell asserts Officer Gough was on a “fishing expedition” in order to “target[] citizens in bad
       neighborhoods.” (Appellant’s Br. at 25.) Bell points to no evidence to support his assertion Officer Gough
       was “targeting citizens;” nor did we see any such evidence in our review of the record.
       10
         Officer Gough acknowledged Bell had a white desk light clipped to the back of his shirt, but that did not
       satisfy the requirement of the statute. See Ind. Code § 9-21-11-9 (requiring red back light and white front light
       on bike operated at night).

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                            Page 6 of 20
       reasonable suspicion [required for a Terry stop] - to stop that driver.”); see also

       State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006) (even a minor traffic violation

       “creates probable cause to stop the driver”). Thus, Bell has not demonstrated

       the trial court erred in determining the initial stop was constitutional.


                                             2. Pat-Down Search
[12]   The parties disagree whether Officer Gough’s pat-down of Bell violated our

       federal and state constitutions. We begin with the federal analysis.


                                               A. Fourth Amendment

[13]   The Fourth Amendment to the United States Constitution protects citizens

       against unreasonable searches and seizures by prohibiting them without a

       warrant supported by probable cause. U.S. Const. amend. IV. To deter State

       actors from violating that prohibition, evidence obtained in violation of the

       Fourth Amendment generally is not admissible in a prosecution of the citizen

       whose right was violated. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). The

       State has the burden of demonstrating the admissibility of evidence collected

       during a seizure or search. Id.


[14]   The trial court concluded Officer Gough had reasonable suspicion to pat Bell

       down for weapons. Bell argues Officer Gough did not have reasonable

       suspicion to conduct a pat-down search because Bell cooperated with Officer

       Gough’s request to talk. Bell asserts his sweating and fast heart-rate could have

       been due to his bike-riding. The State asserts the “pat-down was proper under



       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017    Page 7 of 20
       the Fourth Amendment” because Officer Gough had a reasonable belief his

       safety was in danger. (Appellee’s Br. at 16.)


[15]   To conduct a pat-down during a Terry stop, an “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.” Terry v. Ohio, 392 U.S. 1, 27 (1968). “In addition, a

       police officer ‘justified in believing that the individual whose suspicious

       behavior he is investigating at close range is armed and presently dangerous to

       the officer or to others,’ is entitled to conduct a limited patdown [sic] search of

       the suspect’s outer clothing to search for a weapon.” Jackson v. State, 669

       N.E.2d 744, 747 (Ind. Ct. App. 1996) (quoting Terry, 392 U.S. at 24).


[16]   Here, the encounter occurred after 1:00 a.m. in a high-crime area, Bell had a

       suspicious bulge in his pocket, and Bell did not answer Officer Gough’s

       question about the bulge in his pocket. Officer Gough had observed Bell was

       “still scanning and looking around, sweating [and h]is heart was beating

       extremely fast.” (Tr. at 81.) Because Bell did not answer Officer Gough’s

       question regarding the bulge in his pocket, Officer Gough believed Bell was

       “hiding something or being evasive.” (Id. at 90.) Under these circumstances,

       we conclude it was reasonable for Officer Gough to be concerned for his own

       and the public’s safety. 11 The pat-down search was not a violation of Bell’s




       11
         The dissent notes the determination of sufficient authorization to conduct a lengthier traffic stop and a pat-
       down search is “fact sensitive.” Slip op. at ¶ 23. We agree. We also agree that reasonable suspicion cannot

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                            Page 8 of 20
       Fourth Amendment rights, and the trial court did not err in admitting the

       handgun discovered during the pat-down or the other evidence seized during

       the search incident to arrest. See Scisney v. State, 55 N.E.3d 321, 325 (Ind. Ct.

       App. 2016) (pat-down “constitutionally permissible” when Scisney did not

       respond to a question regarding whether he had any weapons), trans. denied.


                                                B. Article 1, Section 11

[17]   The language of Article 1, Section 11 tracks the Fourth Amendment; however,

       “Indiana has explicitly rejected the expectation of privacy as a test of the

       reasonableness of a search or seizure.” Litchfield v. State, 824 N.E.2d 356, 359

       (Ind. 2005). Instead, the legality of a search “turns on an evaluation of the

       reasonableness of the police conduct under the totality of the circumstances.”

       Id. Reasonableness is determined by balancing: (1) the degree of concern,

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

       intrusion imposed by the search; and (3) the extent of law enforcement needs.

       Id. at 361.


[18]   The trial court concluded the “limited pat down search of [Bell] did not violate

       [] Article I, Section 11 of the Indiana Constitution.” (App. Vol. II at 86.) Bell




       be created solely by Bell’s presence in a high-crime area, see Clark, 994 N.E.2d at 266, that we must be careful
       placing too much weight on a citizen’s nervousness when confronted by police, see Pinner v. State, 74 N.E.3d
       226, 233 (Ind. 2017), and that the law requires a police officer to have particularized suspicion that a person
       is armed and is a threat to safety. See Patterson v. State, 958 N.E.2d 478, 486 (Ind. Ct. App. 2011). We
       disagree with the dissent about the implications of those statements of law for the case at hand. Bell’s
       commission of a traffic infraction gave Officer Gough probable cause to stop Bell, and as we explained
       above, the other circumstances provided Officer Gough particularized suspicion that Bell posed a threat to
       Officer Gough’s safety.

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                            Page 9 of 20
       argues he should not have been patted-down because the stop should not have

       continued after Officer Gough found Bell did not have active warrants. In

       support, he cites State v. Richardson, 927 N.E.2d 379, 384 (Ind. 2010), in which

       our Indiana Supreme Court held observation of an “unusual bulge” is not

       enough to provide reasonable suspicion. The facts here are distinguishable

       because Officer Gough also observed Bell was nervous, he was scanning the

       area, and he did not answer Officer Gough’s question about the bulge in his

       pocket.


[19]   Applying the Litchfield factors to the facts, we hold the warrantless search did

       not violate Article 1, Section 11 of the Indiana Constitution. The degree of

       suspicion was high because Bell’s bikes did not have the required lighting and

       Officer Gough observed Bell “scanning and looking around, sweating. His

       heart was beating extremely fast.” (Tr. at 81.) When Officer Gough asked Bell

       about the bulge in his pocket, Bell “looked away, started scanning again, and

       then didn’t answer [Officer Gough’s] question.” (Id. at 90.) The intrusion into

       Bell’s privacy was minimal as it was merely “an outer clothes pat-down.” (Id.)

       Finally, the law enforcement needs were high given the circumstances leading

       up to the pat-down. Officer Gough was justified to feel concern for officer and

       public safety. Under the totality of circumstances, we conclude the pat-down

       was reasonable. As such, Bell’s Article 1, Section 11 rights were not violated




       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017   Page 10 of 20
       and the admission of evidence found thereafter in the search was not error. 12

       See Johnson v. State, 38 N.E.3d 658, 664 (Ind. Ct. App. 2015) (“outer-clothing

       pat down” of non-compliant defendant was not a violation of Section 11), trans.

       denied.


                                                      Conclusion
[20]   Officer Gough had reasonable suspicion to stop Bell due to the traffic violation

       created by the lack of lights on the bicycle. Once stopped, neither Bell’s Fourth

       Amendment nor Article 1, Section 11 rights were violated by the pat-down

       search. Thus, admission of the evidence was not an abuse of discretion.

       Accordingly, we affirm Bell’s convictions.


[21]   Affirmed.


       Kirsch, J., concurs.


       Robb, J., dissents with separate opinion.




       12
          Bell also claims the State is using his possession of a screwdriver as an after-the-fact justification for Officer
       Gough’s decision to search him for officer safety. (Appellant’s Br. at 23.) In support, he cites Webb v. State,
       714 N.E.2d 787, 789 (Ind. Ct. App. 1999), in which the State “imputed to [the officer] a new theory for the
       stop despite [the officer’s] own testimony as to why he stopped Webb.” Officer Gough’s probable cause
       affidavit indicates the reason for the stop as “the city ordinance infraction, as well as suspicious behavior.”
       (App. Vol. II at 23.) Officer Gough testified during the suppression hearing that his reason for conducting
       the pat-down was because Bell was acting nervous, “had a bulge in his front right pocket as well as a
       screwdriver in his rear right pocket,” (Tr. at 26), and would not answer questions about whether that bulge
       was a weapon. Thus, the State did not impute to Officer Gough a justification that was not advanced by
       Officer Gough himself, and Webb is not relevant.

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                               Page 11 of 20
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Louis Bell,                                                 Court of Appeals Case No.
                                                                   49A05-1606-CR-1390
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Robb, Judge, dissenting.


[22]   I agree with the majority that Officer Gough’s initial stop of Bell was

       appropriate because he observed Bell committing a traffic infraction. However,

       I disagree with the majority that Bell’s constitutional rights were not violated by

       the pat-down search that followed. Therefore, I respectfully dissent.


[23]   As the majority states, Officer Gough observed Bell committing a traffic

       infraction, giving him at least reasonable suspicion for the initial stop of Bell.

       See slip op. at ¶ 11. But it is important to note here that an infraction is not a

       crime. See, e.g., Smith v. State, 38 N.E.3d 218, 223 (Ind. Ct. App. 2015) (noting

       traffic infractions are civil, rather than criminal, in nature). The permissible

       scope of Officer Gough’s encounter with Bell must be viewed through that lens.

       A seizure for a traffic violation justifies an investigation of that violation, but

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                Page 12 of 20
“[a] routine traffic stop . . . is a relatively brief encounter” that is more

analogous to a Terry stop than to a formal arrest. Knowles v. Iowa, 525 U.S. 113,

117 (1998). Thus, “[l]ike a Terry stop, the tolerable duration of police inquiries

in the traffic-stop context is determined by the seizure’s mission—to address the

traffic violation that warranted the stop . . . and attend to related safety

concerns.” Rodriguez v. U.S., 135 S. Ct. 1609, 1614 (2015) (quotation and

citations omitted). Because addressing the infraction is the purpose of the stop,

the stop may last no longer than is necessary to effectuate that purpose. Id. The

Indiana Code recognizes this limitation:

        (a) Whenever a law enforcement officer believes in good faith
        that a person has committed an infraction or ordinance violation,
        the law enforcement officer may detain that person for a time
        sufficient to:


                 (1) inform the person of the allegation;


                 (2) obtain the person’s:


                          (A) name, address, and date of birth; or


                          (B) driver’s license, if in the person’s possession; and


                 (3) allow the person to execute a notice to appear.


Ind. Code § 34-28-5-3. Moreover, “it [is] appropriate to examine whether the

police diligently pursued a means of investigation that was likely to confirm or

dispel their suspicions quickly . . . .” U.S. v. Sharpe, 470 U.S. 675, 686 (1985).

Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017        Page 13 of 20
       A seizure that is lawful at the beginning may nonetheless violate the Fourth

       Amendment “if its manner of execution unreasonably infringes” on protected

       interests. Illinois v. Caballes, 543 U.S. 405, 407 (2005). What is sufficient to

       authorize police to stop a person must be determined by considering the totality

       of the circumstances—“the whole picture.” U.S. v. Cortez, 449 U.S. 411, 417

       (1981). That determination is necessarily fact sensitive. Clark v. State, 994

       N.E.2d 252, 264 (Ind. 2013).


[24]   In ruling on admission of evidence at trial following the denial of a pre-trial

       motion to suppress, the trial court must consider the foundational evidence

       presented at trial as well as any evidence from the suppression hearing that is

       favorable to the defendant and uncontradicted at trial. Gerth v. State, 51 N.E.3d

       368, 372 (Ind. Ct. App. 2016). Here, the evidence from both hearings shows

       Officer Gough saw Bell riding his bike in the late evening hours in a high crime

       area, trailing another bike and “looking at the area back and forth at a very

       rapid pace that wasn’t normal.” Tr. at 14. Officer Gough noticed Bell did not

       have the proper lighting on his bike but also suspected Bell was involved in

       other criminal activity due to the presence of the second bike and decided he

       wanted to investigate the situation. Officer Gough stated Bell was “free to

       disregard” his request to talk, but had Bell not responded positively, “I would

       have gotten into my police vehicle and initiated my lights and made a traffic

       stop.” Id. at 37-38; see also id. at 80-81. When Bell agreed to speak with Officer

       Gough, the officer radioed in at 1:09 a.m. that he was doing an investigation

       and gave control Bell’s name. Less than two minutes later, control determined


       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017   Page 14 of 20
       Bell had no outstanding warrants. As Officer Gough and Bell were talking,

       Officer Gough noticed Bell was sweating “extremely bad,” continued to scan

       the area, and was “extremely nervous because I could . . . see almost where his

       heart was beating in his chest back and forth.” Id. at 22; see also id. at 81-82.

       Officer Gough also noticed a screwdriver in Bell’s back pocket and a “bulge” in

       his front pocket. Id. at 26; 83. Officer Gough asked Bell if he had anything

       illegal on him or anything the officer should know about, and Bell responded,

       “no.” Id. at 26; 89. Officer Gough then specifically asked Bell about the bulge

       in his pocket; Bell did not offer an answer. At that point, Officer Gough

       believed Bell was “hiding something,” id. at 90, grabbed Bell’s hands, pulled

       them behind his back, and began the pat-down that ultimately uncovered a

       firearm approximately thirty minutes later. See id. at 118 (control determined at

       1:41 a.m. that Bell had prior convictions after Officer Gough found the gun and

       requested information).


[25]   Based on his testimony at both the suppression hearing and Bell’s trial, at no

       time did Officer Gough talk with Bell about the infraction giving rise to the

       stop, nor did he ask him about the second bike. See Sharpe, 470 U.S. at 686.

       Rather than addressing the purpose of the stop, Officer Gough asked an open-

       ended question about whether Bell had anything illegal on him, and when Bell

       responded in the negative, asked more specifically about the bulge in Bell’s

       pocket. I do not discount the legitimate concern for officer safety, but I do not

       believe the evidence supports the conclusion that reasonable suspicion

       developed for Officer Gough to conduct the pat-down of Bell even after Bell


       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017   Page 15 of 20
       refused to answer the officer’s question. “[I]n order to pass constitutional

       muster, reasonable suspicion must be comprised of more than an officer’s

       general ‘hunches’ or unparticularized suspicions.” Stalling v. State, 713 N.E.2d

       922, 924 (Ind. Ct. App. 1999) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).


[26]   Officer Gough testified he conducted the pat-down because of Bell’s “behavior

       as well as the bulge in his pocket that he didn’t answer my question about.” Tr.

       at 123. Bell was riding a bike in a high crime area, pulling another bike

       alongside, approaching an intersection with multiple lanes in each direction.

       That Bell was sweating and looking around to assess the area for possible

       threats to his own safety is neither unreasonable nor immediately indicative of

       suspicious behavior. Nor, necessarily, is the fact that Officer Gough believed he

       was nervous. Nervousness is not enough to constitute reasonable suspicion, as

       “it is common for most people to exhibit signs of nervousness when confronted

       by a law enforcement officer whether or not the person is currently engaged in

       criminal activity.” Pinner v. State, 74 N.E.3d 226, 233 (Ind. 2017) (quotation

       omitted). In short, I do not believe Officer Gough’s description of Bell’s

       behavior supports reasonable suspicion that Bell posed a danger to the officer or

       others.


[27]   I acknowledge that “a set of individually innocent facts, when observed in

       conjunction, can be sufficient to create reasonable suspicion of criminal

       activity.” Id. at 534. But I do not believe Bell’s behavior coupled with Officer

       Gough’s observation of a “bulge” in Bell’s pocket is sufficient, either. Officer

       Gough never described the bulge in any detail whatsoever. He simply repeated

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017   Page 16 of 20
       several times over the course of the suppression hearing and bench trial that Bell

       had a bulge in his pocket. On the basis of that testimony, the bulge could have

       been as small as a wad of tissues or bills, it could have been keys or a wallet. Cf.

       State v. Richardson, 927 N.E.2d 379, 381 (Ind. 2010) (officer describing a “very

       large, unusual bulge” in defendant’s pocket); Dunson v. State, 64 N.E.3d 250,

       252 (Ind. Ct. App. 2016) (officer testifying he noticed a bulge in the defendant’s

       groin area stated, “there was a flat top to it with a shirt over top that. Ah,

       there’s a larger bulge beneath that about the waist line . . . .”). In short, Officer

       Gough gave no reason why he found the bulge suspicious and therefore did not

       establish a reasonable belief that Bell was hiding a weapon that could be used to

       harm Officer Gough or others in the area. 13


[28]   Finally, Bell’s failure to answer Officer Gough’s specific question about the

       bulge does not support reasonable suspicion of criminal activity. Defendants

       are not obligated to answer questions unrelated to the purpose of the stop. See

       Florida v. Royer, 460 U.S. 491, 497-98 (1983) (noting that during a Terry stop,

       refusal to answer questions does not, without more, furnish reasonable

       suspicion); Washington v. State, 898 N.E.2d 1200, 1205 (Ind. 2008) (noting

       officer’s brief questioning during a traffic stop about whether the defendant had

       any weapons or drugs did not violate the Fourth Amendment because




       13
          Bell did have a screwdriver. However, it was in plain view, and in the context of this stop, Bell was likely
       carrying the screwdriver as a tool. Based on Bell’s conduct as described by Officer Gough during the stop,
       there is no reason to believe Bell gave Officer Gough any signs or signals he might reach for the screwdriver
       to wield as a weapon.

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                          Page 17 of 20
       defendant did not have to answer the questions). And unlike the situation in

       Scisney v. State, 55 N.E.3d 321 (Ind. Ct. App. 2016), there was no other basis for

       finding Bell’s failure to answer suspicious. In Scisney, officers investigating a

       call of shots fired in a high crime area spotted the defendant walking with a

       man who met the description of the suspect. The defendant touched his

       waistline when he observed officers and then as he walked toward one officer,

       did not respond when asked if he had any weapons. On the basis of all of those

       facts, we found the pat-down did not constitute a constitutional violation. Id. at

       324.


[29]   Recently, our supreme court decided the case of Jacobs v. State, No. 49S02-1509-

       CM-31258 (Ind. June 29, 2017). In Jacobs, there had been multiple reports of

       shots fired by youths wearing red clothing near an apartment complex and

       nearby park in a high crime area. Police increased their focus on that area, and

       two days later, an officer saw several people in the park that he believed should

       have been in school. Some of the people were wearing red, and although the

       defendant briefly had a red shirt slung over his shoulder, he was not wearing

       red. When the group observed a park ranger in a marked car patrol the area,

       the defendant quickly walked away, only to return after the ranger left the area.

       The officer then called for backup and when additional marked cars arrived, the

       defendant again quickly walked away from the assembled group. Officers

       followed in their car and ordered the defendant to stop. Instead, he continued

       to walk away, at which point the officers exited their patrol car and ordered the

       defendant to the ground. The defendant complied and was handcuffed; when


       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017   Page 18 of 20
       defendant got to his feet, the outline of a handgun was clearly visible in his

       pocket. The defendant’s objection to the officers’ testimony and admission into

       evidence of the handgun were overruled at his bench trial and he was convicted

       of possession of a handgun without a license, a Class A misdemeanor. On

       appeal, our supreme court held the search was constitutionally impermissible

       under both the United States and Indiana Constitutions. See Jacobs, slip op. at

       1. Although the officer reasonably believed the defendant was a truant, by the

       time of the stop, school was out of session and suspicion of truancy could not

       justify the stop. That the defendant turned and left the park upon seeing the

       park ranger is insufficient to establish reasonable suspicion. Id. at 5. And the

       fact the defendant temporarily displayed a red shirt—a known gang color—

       when juveniles wearing red had fired shots two days earlier in the same area

       “require[s] one inferential leap too many” because at the time of the stop, the

       defendant was not wearing red and “police had no articulable suspicion that

       [the defendant] specifically was involved in any way with the shooting . . . .” Id.

       Although “taken as a whole,” the defendant’s actions were suspicious and the

       defendant was in fact found to be carrying an unlicensed handgun, “at the time

       police moved to detain [the defendant], police did not have a reasonable

       suspicion that he had engaged in or was about to engage in any criminal

       conduct.” Id. at 6.


[30]   Here, there were no reports of a stolen bike or other criminal activity in the area

       that Officer Gough believed Bell could have been involved with, Bell never

       made a move toward either the visible screwdriver or the alleged “bulge,” and


       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017   Page 19 of 20
       his behavior was similar to the behavior of most people stopped by the police. I

       believe after Officer Gough had confirmation Bell had no outstanding warrants

       and asked Bell if he had anything illegal on him and Bell said he did not,

       Officer Gough should have written a citation for the traffic infraction if that was

       his intent, 14 and allowed Bell to go on his way. When “taken as a whole,” even

       though Bell was committing an infraction and even if his actions were

       suspicious, Officer Gough had only a hunch, not a reasonable suspicion, that

       Bell might be involved in criminal activity when he stopped him. Pursuant to

       Jacobs, this is insufficient to overcome Fourth Amendment protections. See id.


[31]   Again, I do not take lightly the peril police officers are placed in every day.

       However, “[a] generalized suspicion that an individual presents a threat to an

       officer’s safety is insufficient to authorize a pat-down search,” Patterson v. State,

       958 N.E.2d 478, 486 (Ind. Ct. App. 2011), and I believe that is all the evidence

       here shows. I would hold the Fourth Amendment prohibited the pat-down

       search of Bell. 15




       14
          Officer Gough testified at the suppression hearing that he was not intending to issue a citation for the lack
       of bicycle lights because Bell stopped and talked with him. Tr. at 41.
       15
         Likewise, based on the totality of the circumstances, I believe the Indiana Constitution also prohibited the
       pat-down.

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1390 | July 14, 2017                           Page 20 of 20
