                                                                         Aug 15 2013, 5:27 am



FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                             DEBORAH MARKISOHN
Attorney General of Indiana                    Marion County Public Defender Agency
                                               Indianapolis, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                              )
                                               )
       Appellant-Plaintiff,                    )
                                               )
              vs.                              )      No. 49A02-1210-CR-817
                                               )
ROBERT OWENS,                                  )
                                               )
       Appellee-Defendant.                     )


         INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Steven R. Eichholtz, Judge
                       Cause No. 49G20-1108-FA-57583


                                    August 15, 2013

                              OPINION — FOR PUBLICATION

BRADFORD, Judge
      Indianapolis Metropolitan Police Officer Maurice Shipley observed Appellee-

Defendant Robert Owens walk out from behind a school late at night in a high-crime

neighborhood. As Officer Shipley approached, he saw Owens put something in his

mouth and tuck something into the rear of his waistband. Officer Shipley told Owens to

put his hands up and then handcuffed him. By this point, Officer Shipley could smell

marijuana coming from Owens. When Officer Shipley asked Owens what was going on,

Owens admitted that he “just threw a half a blunt in [his] mouth.” Officer Craig Solomon

arrived at around this time and noticed that Owens seemed to be reaching down into the

rear of his boxer shorts. When Owens denied having anything secreted in his shorts,

Officer Shipley told him that if he did not want to admit that he had hidden something in

his shorts, Owens would be arrested and police would find it then.

      When Officer Shipley went to his vehicle to check Owens’s identification, Owens

took flight. Both officers yelled at Owens to stop and gave chase, tackling Owens on the

other side of the street. During the struggle, Owens was bucking and kicking and head-

butted Officer Solomon in the face. As the officers were walking Owens back across the

street, he again attempted to run. When the officers tackled Owens a second time, Owens

kicked Officer Solomon and bit Officer Shipley on the thigh. Both officers saw that

Owens had a baggie containing a white powdery substance in his hand. Officer Shipley

tased Owens twice before Owens finally became compliant.

      In this prosecution of Owens for Class A felony dealing in cocaine, Class A felony

cocaine possession, two counts of Class D felony battery on a law enforcement officer,

two counts of Class D felony resisting law enforcement, and Class D felony obstruction

                                            2
of justice, Appellant-Plaintiff the State of Indiana appeals from the trial court’s grant of

Owens’s motion to suppress evidence. Owens concedes that any evidence relating to

Owens’s alleged flight from or battery of the police officers should not have been

suppressed. The State argues that (1) even if the initial stop of Owens was illegal,

Owens’s subsequent criminal actions were sufficient to remove the taint of that illegal

stop and (2) the officers’ actions were reasonable such that Article I, Section 11 of the

Indiana Constitution does not require suppression of any evidence. Finding the State’s

arguments unpersuasive, we conclude that Owens’s actions following the illegal stop

were not sufficient to dissipate the taint of the stop, and so any evidence gathered

pursuant to the stop should have been suppressed. Consequently, we affirm in part,

reverse in part, and remand for further proceedings.

                       FACTS AND PROCEDURAL HISTORY

       The underlying facts of this appeal do not appear to be in dispute.               At

approximately 11:45 p.m. on August 13, 2011, Officer Shipley was driving east on West

21st Street in Indianapolis past School 44 when he observed Owens, who appeared to be

coming out from behind the building. Officer Shipley described the area as a “very high-

crime area, high-narcotics area.” Tr. p. 8. Officer Shipley, who was in full uniform and

driving a fully-marked police vehicle, approached Owens. While Officer Shipley was

still in his vehicle approximately twenty-five feet away from Owens, he observed Owens

“throw something in his mouth and tuck something behind his waist, the rear of his

waistband.” Tr. p. 10. Officer Shipley told Owens to put his hands up and then to put

them behind his back. Officer Shipley detected the odor of marijuana coming from

                                             3
Owens as he approached on foot more closely, and handcuffed him. After Owens told

Officer Shipley, “I’m not going to lie, I just threw a half a blunt in my mouth[,]” Officer

Shipley noticed pieces of marijuana at Owens’s feet. Tr. p. 12. Around this time, Officer

Solomon arrived.

       Officer Shipley patted Owens down for weapons but did not find anything.

Officer Solomon detected the odor of marijuana and noticed that Owens was “fishing

about the rear of his pants [and] reaching his hands down inside his boxer shorts.” Tr. p.

39.   Officer Solomon asked Owens if he had anything “down his pants or in his

posterior[,]” and Owens denied that he did. Tr. p. 40. Officer Shipley then said to

Owens, “if you don’t want to admit it, we’ll just have you arrested and find it at the

APC.” Tr. p. 40.

       When Officer Shipley attempted to “grab [Owens’s] ID to run … his information

through [his] computer[,] Owens took off running.” Tr. p. 13. Both officers yelled for

Owens to stop and gave pursuit. Owens ran across the street, where he was tackled by

Officer Solomon. During the ensuing struggle, Owens was “basically do[ing] every

manner of resisting he could while still in handcuffs” and “actively trying to grab

whatever was in his shorts[.]” Tr. pp. 14, 41. At some point, Owens head-butted Officer

Solomon in the face.

       The officers managed to temporarily subdue Owens, but he attempted to flee again

as they walked him back across the street, and the officers again took him to the ground.

During the second altercation, Owens bit Officer Shipley on the inner thigh and kicked

Officer Solomon in the chest with both feet. Again Owens was reaching for something in

                                            4
his shorts. At some point, Officer Shipley observed a baggie of white powder in Owens’s

hand, and when Officer Shipley went to grab Owens’s hand, the baggie fell to the ground.

After Owens failed to comply with Officer Shipley’s commands to stay on the ground,

Officer Shipley tased him twice.

       On August 15, 2011, the State charged Owens with Class A felony dealing in

cocaine, Class A felony cocaine possession, two counts of Class D felony battery on a

law enforcement officer, two counts of Class D felony resisting law enforcement, and

Class D felony obstruction of justice. On January 27, 2012, Owens filed a motion to

suppress evidence discovered during his August 13, 2011, encounter with police. On

September 18, 2012, following a hearing, the trial court granted Owens’s motion to

suppress.

                            DISCUSSION AND DECISION

       We review a trial court’s decision to grant a motion to suppress as a matter of

sufficiency. State v. Moriarity, 832 N.E.2d 555, 557-58 (Ind. Ct. App. 2005). When

conducting such a review, we will not reweigh evidence or judge witness credibility.

Moriarity, 832 N.E.2d at 558. In such cases, the State appeals from a negative judgment

and must show that the trial court’s ruling on the suppression motion was contrary to law.

State v. Estep, 753 N.E.2d 22, 24-25 (Ind. Ct. App. 2001). This court will reverse a

negative judgment only when the evidence is without conflict and all reasonable

inferences lead to a conclusion opposite that of the trial court. Id. at 25. As previously

mentioned, there is no conflict regarding the underlying facts of this case. Consequently,

the State’s claims come to us essentially as pure questions of law.

                                             5
                                          Fourth Amendment

       The Fourth Amendment to the United States Constitution provides that

       [t]he 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 overriding function of the Fourth Amendment is to protect personal privacy and

dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S.

757, 767 (1966). “In Wolf [v. People of State of Colorado, 338 U.S. 25, 27 (1949)

(overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961))] we recognized

‘(t)he security of one’s privacy against arbitrary intrusion by the police’ as being ‘at the

core of the Fourth Amendment’ and ‘basic to a free society.’” Id.

                                          Attenuation Doctrine

       Owens concedes that evidence related to his alleged battery of the police officers

and resisting of law enforcement need not be suppressed, even if the initial stop was

illegal. For its part, the State concedes that the initial stop was illegal, which also

amounts to a concession that evidence related to the “blunt” Owens apparently attempted

to ingest should be suppressed.1 The only evidence at issue, then, is evidence of the

suspected cocaine. The State contends that, even if the initial stop of Owens was illegal,

Owens’s subsequent actions in violently resisting law enforcement were sufficient to

remove any taint.



       1
           This is the evidence that supports the obstruction of justice charge.

                                                      6
       [T]he exclusion of evidence is not the result of a simple “but for” test.
       [U.S. v. Green, 111 F.3d 515,] 520 [(7th Cir. 1997)]. The [Green] court
       observed that not all evidence is the “‘fruit of the poisonous tree’” because
       it is the result of an illegal search or seizure. Id. (quoting Wong Sun v.
       United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L. Ed. 2d 441
       (1963)). “Rather, the more apt question in such a case is whether, granting
       establishment of the primary illegality, the evidence to which instant
       objection is made has been come at by exploitation of that illegality or
       instead by means sufficiently distinguishable to be purged of the primary
       taint.” Id. (internal quotations omitted). Evidence may be purged of the
       primary taint if the causal connection between the illegal police conduct
       and the procurement of the evidence is “so attenuated as to dissipate the
       taint of the illegal action.” Id. at 521 (internal quotations omitted).
               … Three factors for consideration in determining whether the causal
       chain is sufficiently attenuated are: “(1) the time elapsed between the
       illegality and the acquisition of the evidence; (2) the presence of
       intervening circumstances; and (3) the purpose and flagrancy of the official
       misconduct.” Id. (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct.
       2254, 2261-62, 45 L.Ed.2d 416 (1975)). The important consideration in the
       third factor is whether the evidence came from “‘the exploitation of that
       illegality or instead by means sufficiently distinguishable to be purged of
       the primary taint.’” Id. (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. at
       417).

Quinn v. State, 792 N.E.2d 597, 600 (Ind. Ct. App. 2003), trans. denied.

       The State acknowledges that the time between the initial stop and the discovery of

the baggie was short but argues that Owens’s voluntary criminal acts committed after the

initial detention and the absence of flagrant police misconduct were sufficient to dissipate

any taint. Under the facts and circumstances of this case, we cannot agree. Although the

alleged cocaine was not actually discovered until after Owens’s attempted flight from and

battery of the officers, the record clearly indicates that the decision to arrest Owens was

made before his flight, rendering discovery of the evidence all but inevitable. Because

the cocaine had all but been discovered before Owens’s flight, his actions cannot be said

to have caused its discovery in any meaningful sense. Under the circumstances of this

                                             7
this case, the causal connection between the illegal police conduct and the discovery of

the cocaine was not broken.

       Our result is consistent with the rationale underlying the attenuation doctrine. As

this court observed in Cole v. State, 878 N.E.2d 882 (Ind. Ct. App. 2007):

               Other courts in this country have held that eluding the police and
       resisting arrest in response to an unconstitutional stop or pat down
       constitute intervening acts and therefore the evidence seized incident to
       those intervening criminal acts will not be subject to suppression. See
       [State v.] Williams, 926 A.2d [340,] 349 [(N.J. 2007)] …. The point of
       these cases is that the law should deter and give no incentive to suspects
       who endanger the police, themselves, and possibly others by not submitting
       to official authority. See id. A defendant should not have the right to use
       an improper stop as justification to commit a new and distinct crime of
       resisting law enforcement. Id. Rather, if a defendant merely stands his
       ground and resorts to the court for a constitutional remedy, then the
       unlawful stop will lead to the suppression of the evidence. Id.
               As the New Jersey Supreme Court recognized in Williams, this
       approach balances both the right of the people to be free from unreasonable
       searches and seizures and their right to be free from the dangers created by
       suspects who physically resist the police and provides sufficient
       disincentives to deter both police misconduct and criminal misconduct by
       suspects. Id.

Id. at 888 (some citations omitted). The result in this case neither rewards Owens for his

alleged flight and battery nor the police for their illegal stop of Owens, fully satisfying

the rationale behind the attenuation doctrine.

       The State contends that this case cannot be distinguished from Cole, in which we

concluded that the act of resisting law enforcement following a detention was sufficient

to purge any taint, even if the initial detention was illegal. Id. In Cole, an Officer Decker

approached a car containing Cole and another person because the officer had seen several

persons approach the parked car in fifteen or twenty minutes of observation. Id. at 884.


                                             8
When Officer Decker approached the car and asked the two occupants for identification,

Cole stepped out and began walking away. Id. Officer Decker twice ordered Cole back

into the car but, instead of complying, Cole ran.           Id.   After a foot chase, police

apprehended Cole, and a pat-down uncovered a loaded .22 caliber revolver. Id. at 884-

85.

       The Cole court first noted the likely impropriety of the initial stop, id. at 885, but

went on to conclude that “even though Officer Decker may not have had reasonable

suspicion to stop Cole, he did have probable cause to believe that Cole violated the

resisting law enforcement statute by fleeing after being ordered to stop and by forcibly

resisting him.” Id. at 887. In Cole, however, there is no indication that the revolver was

ever going to be discovered absent Cole’s flight, which neatly distinguishes that case

from this one. Quite simply, Cole’s actions caused the revolver’s discovery, not the

police misconduct, in contrast to this case, where police misconduct had already made

discovery of the alleged cocaine inevitable before Owens’s actions.2

                                       CONCLUSION




       2
           Because we conclude that the evidence at issue is inadmissible pursuant to the Fourth
Amendment, we need not address its admissibility pursuant to Article I, Section 11 of the Indiana
Constitution.

                                               9
        All agree that evidence related to Owens’s flight from and battery of Officers

Shipley and Solomon should not have been suppressed.3 To the extent that the trial

court’s order suppressed this evidence, we reverse it. We conclude, however, that any

and all evidence related to the “blunt” that Owens allegedly attempted to ingest and the

alleged cocaine found on his person should be suppressed, and affirm that portion of the

trial court’s order.

        The trial court’s order is affirmed in part, reversed in part, and remanded for

further proceedings.

BROWN, J., concurs.

RILEY, J., concurs in part and dissents in part with opinion.




        3
           At oral argument, counsel for Owens conceded that his argument was limited to the physical
evidence seized from Owens and that the trial court’s original order on Owens’s motion to suppress did
not encompass evidence related to his resisting and battery: “[A]t this point, I don’t believe that the
actual resist and battery were something that the trial court had a chance to address or ruled on in [its]
suppression [order]. I think he simply ruled on the physical evidence, the marijuana and cocaine.” State
of Indiana vs. Robert Owens, video recording of oral argument held on June 18, 2013,
https://mycourts.in.gov/arguments/default.aspx?&id=1526&view=detail&yr=&when=&page=1&court=a
pp&search=&direction=%20ASC&future=False&sort=&judge=&county=&admin=False&pageSize=20.
We take this as a concession that no challenge is being made to the admissibility of evidence related to
Owens’s resisting law enforcement and battery charges.
         Even if one concludes that Owens did not concede this point, it is well-established under Indiana
law that a person may not forcibly resist a peaceful arrest. See, e.g., Row v. Holt, 864 N.E.2d 1011, 1017
(Ind. 2007) (“Even if the arrest for battery was invalid, resisting is still an independent offense.”), Shoultz
v. State, 735 N.E.2d 818, 823 (Ind. Ct. App. 2000) (“The general rule in Indiana is that ‘a private citizen
may not use force in resisting a peaceful arrest by an individual who he knows, or has reason to know, is a
police officer performing his duties regardless of whether the arrest in question is lawful or unlawful.’”)
(quoting Casselman v. State, 472 N.E.2d 1310, 1315 (Ind. Ct. App. 1985)), trans. denied. There is no
indication that the encounter between Owens and the police officers was anything other than peaceful
until Owens’s attempted flight.

                                                     10
                                          IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                   )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
              vs.                                   )    No. 49A02-1210-CR-817
                                                    )
ROBERT OWENS,                                       )
                                                    )
       Appellee-Defendant.                          )


RILEY, Judge, concurring and dissenting


       I concur with the majority’s decision to affirm the trial court’s suppression of

evidence pertaining to Owens’s arrest for cocaine dealing, cocaine possession, and

obstruction of justice. However, I respectfully dissent from the majority’s decision to

reverse the trial court’s suppression of evidence pertaining to Owens’s battery upon and

flight from Officers Shipley and Solomon. The majority writes that “[a]ll agree that

evidence related to Owens’s flight from and battery of Officers Shipley and Solomon

should not have been suppressed.” Slip op. at 10.             By merely acknowledging and

recognizing an arguable point, Owens does not make such concession. As the trial court

was in the best position to assess whether Owens’s actions resulted from the officers’

exploitation of the illegal stop, I would affirm the trial court.

       At the suppression hearing, the State relied on Indiana case law establishing that a

private citizen may not use force in resisting a peaceful arrest by an individual he knows,

                                               11
or had reason to know is a police officer performing his duties even though the original

stop might have been unlawful. See Cole v. State, 878 N.E.2d 882, 886-87 (Ind. Ct. App.

2007). However, the trial court rejected the State’s argument:

       [TRIAL COURT]: My position, I just got reversed on that same argument
       where I found that the officer contact [sic], even though […], but he had no
       right to resist.

       [STATE]: Right.

       [TRIAL COURT]: I was just reversed […] and I bought that argument
       from you guys the last time. We got it reversed.

       [* * *]

       [TRIAL COURT]: […]. I don’t think that there was sufficient reasonable
       suspicion stated to do a stop and then a frisk. And then even if there was,
       I’m not sure what was done under the circumstances was reasonable.

(Transcript pp. 49, 52).

       Attenuation, as an exception to the exclusionary rule, applies in cases where the

connection between the illegal police conduct and the subsequent discovery of evidence

becomes so attenuated that the deterrent effect of the exclusionary rule is no longer

justified. See Brown v. Illinois, 422 U.S. 590, 609 (1975). The causal chain must be

sufficiently attenuated to dissipate any taint of an illegal stop. See Quinn v. State, 792

N.E.2d 597, 601 (Ind. Ct. App. 2003), trans. denied. Three factors are evaluated to

determine whether the attenuation doctrine applies: “(1) the time elapsed between the

illegality and the acquisition of the evidence; (2) the presence of intervening

circumstances; and (3) the purpose and flagrancy of the official misconduct.” Id.




                                           12
       With respect to the first factor, the State asserts that “[t]he time between the initial

stop and the discovery of the cocaine was admittedly brief here” and that “the cocaine

evidence here was not first discovered by the police until after [Owens] had committed

new, distinct criminal offenses.” (Appellant’s Br. pp. 14, 16). The State thus concedes

that the illegal stop and Owens’s acts of resistance occurred within a brief time frame.

For the second factor, the State alleges that Owens’s crimes of flight and opposition

constituted an intervening circumstance sufficiently separate from the illegal stop.

       The important consideration in the third factor is whether the evidence came from

the exploitation of the illegality or instead by means sufficiently distinguishable to be

purged of the primary taint. See Quinn, 792 N.E.2d at 599. Here, Officer Shipley

stopped Owens admittedly on a hunch and proceeded to handcuff him. Despite smelling

marijuana as he approached Owens, Officer Shipley’s pat-down revealed nothing. After

Owens told him that he had swallowed marijuana, Officer Shipley threatened to arrest

Owens if he did not admit to possessing drugs. By suppressing this evidence, the trial

court apparently believed that Owens’s actions resulted from the officers’ exploitation of

the illegal stop. As the trial court was in the best position to assess the evidence, I would

uphold its suppression of evidence relating to Owens’s flight from and battery of Officers

Shipley and Solomon. See People v. Felton, 581 N.E.2d 1344, 1345 (N.Y. 1991).




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