      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                               Aug 28 2019, 8:41 am
      court except for the purpose of establishing
                                                                                   CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
      estoppel, or the law of the case.                                             and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Thomas F. Little                                         Curtis T. Hill, Jr.
      Power, Little, Little & Little                           Attorney General of Indiana
      Frankfort, Indiana
                                                               Samuel J. Dayton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Albert Thomas Thorne, III,                               August 28, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-320
              v.                                               Appeal from the Clinton Superior
                                                               Court
      State of Indiana,                                        The Honorable Justin H. Hunter,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               12D01-1808-F2-1194



      Friedlander, Senior Judge.


[1]   Albert Thorne, III brings this interlocutory appeal from the trial court’s denial

      of his motion to suppress. We reverse and remand.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019                   Page 1 of 8
[2]   On August 30, 2018, Officer Pickrell was on patrol and saw Thorne and

      Jennifer Eason walking down the street. Officer Pickrell was familiar with

      Thorne from prior incidents, and, upon seeing Thorne, the officer ran Thorne’s

      name through the computer system. The search revealed that there was an

      outstanding warrant for Thorne, so the officer radioed dispatch to confirm the

      warrant. After confirming only that the name on the warrant matched Thorne’s

      and without reviewing any of the information in the warrant or waiting for a

      response from dispatch, Officer Pickrell turned his car around, pulled up behind

      Thorne and Eason, and asked them to stop. Thorne continued walking away.

      Officer Pickrell instructed him several times to stop, but Thorne yelled at the

      officer and then ran off. The officer ran after Thorne, and, when he caught up

      with Thorne, a struggle ensued. Thorne was eventually taken into custody, at

      which time the backpack he was carrying was searched and found to contain a

      syringe, two clear plastic bags that contained a white powdery substance, and a

      marijuana cigarette. The white powdery substance field tested positive for

      methamphetamine. While still at the scene but after Thorne was in custody,

      Officer Pickrell received information from dispatch that the warrant was from

      New Mexico and was non-extraditable.


[3]   Based upon this incident, Thorne was charged with dealing in
                                                     1
      methamphetamine, a Level 2 felony; possession of methamphetamine, a Level




      1
          Ind. Code § 35-48-4-1.1 (2017).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019   Page 2 of 8
                    2                                                                  3
      3 felony; battery against a public safety official, a Level 6 felony; unlawful
                                                        4
      possession of syringe, a Level 6 felony; resisting law enforcement, a Class A
                           5                                                           6
      misdemeanor; possession of marijuana, a Class B misdemeanor; and with
                                            7
      being an habitual offender. Thorne filed a motion to suppress the evidence

      found in his backpack. Following a hearing, the trial court entered it findings

      and order denying the motion, and Thorne pursued this interlocutory appeal.


[4]   When reviewing a trial court’s denial of a defendant’s motion to suppress, we

      view conflicting factual evidence in the light most favorable to the ruling; yet,

      we also consider substantial and uncontested evidence favorable to the

      defendant. Wertz v. State, 41 N.E.3d 276 (Ind. Ct. App. 2015), trans. denied.

      Nevertheless, the constitutionality of a search or seizure is a question of law,

      which we review de novo. Id.


[5]   Permissible under the Fourth Amendment’s protection against unreasonable

      searches and seizures is the Terry stop. A Terry stop allows an officer to briefly

      stop an individual for investigatory purposes if, based upon specific, articulable

      facts, the officer has a reasonable suspicion that “criminal activity may be




      2
          Ind. Code § 35-48-4-6.1 (2014).
      3
          Ind. Code § 35-42-2-1 (2018).
      4
          Ind. Code § 16-42-19-18 (2015).
      5
          Ind. Code § 35-44.1-3-1 (2016).
      6
          Ind. Code § 35-48-4-11 (2018).
      7
          Ind. Code § 35-50-2-8 (2017).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019       Page 3 of 8
      afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

      This includes reasonable grounds to believe that the individual is wanted for

      past criminal conduct. U.S. v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed.

      2d 604 (1985). Reasonable suspicion entails at least a minimal level of objective

      justification that is more than an unparticularized suspicion or hunch. State v.

      Campbell, 905 N.E.2d 51 (Ind. Ct. App. 2009), trans. denied. However, the

      reasonable suspicion necessary for a Terry stop need not rise to the level of

      suspicion required for probable cause. Id. Whether the officer’s suspicion was

      reasonable is a fact-sensitive inquiry that must be determined on a case-by-case

      basis by considering the totality of the circumstances. Rutledge v. State, 28

      N.E.3d 281 (Ind. Ct. App. 2015). In assessing the reasonableness of

      investigatory stops, courts must strike “a balance between the public interest

      and the individual’s right to personal security free from arbitrary interference by

      law [enforcement] officers.” Carter v. State, 692 N.E.2d 464, 466 (Ind. Ct. App.

      1997). When a defendant challenges the constitutionality of the gathering of

      evidence, the State bears the burden of proving the evidence was admissible.

      Greeno v. State, 861 N.E.2d 1232 (Ind. Ct. App. 2007).


[6]   Here, Thorne asserts that it was unreasonable for Officer Pickrell to confirm

      only his name on the warrant and to neglect to review the remainder of the

      information or to wait for confirmation from dispatch before attempting to

      detain him. The State, on the other hand, argues that the fact that there was a

      warrant and that the name on the warrant matched Thorne’s was enough to

      permit an investigatory stop.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019   Page 4 of 8
[7]   Consideration of the constitutionality of an investigatory stop of an individual

      involves a weighing of the gravity of the public concerns served by the seizure,

      the degree to which the seizure advances the public interest, and the severity of

      the interference with individual liberty. Brown v. Texas, 443 U.S. 47, 99 S. Ct.

      2637, 61 L. Ed. 2d 357 (1979). A central concern in balancing these competing

      considerations is to ensure that an individual’s reasonable expectation of

      privacy is not subject to arbitrary invasions solely at the unfettered discretion of

      officers in the field. Id.


[8]   Moreover, the factors in the balance may be somewhat different when a stop to

      investigate past criminal activity is involved rather than a stop to investigate

      ongoing criminal conduct. Hensley, 469 U.S. 221. For instance, a stop to

      investigate an already completed crime does not necessarily promote the

      interest of crime prevention as directly as a stop to investigate suspected

      ongoing criminal activity. Id. Similarly, the exigent circumstances which

      require a police officer to step in before a crime is committed or while it is in

      progress are not necessarily as pressing when the crime has been completed. Id.

      In addition, “[p]ublic safety may be less threatened by a suspect in a past crime

      who now appears to be going about his lawful business than it is by a suspect

      who is currently in the process of violating the law.” Id. at 228. Finally,

      officers making a stop to investigate a past crime may have “a wider range of

      opportunity to choose the time and circumstances of the stop.” Id. at 228-29.


[9]   Here, the record reveals that when Officer Pickrell saw Thorne, he was walking

      down the street, and the officer had no suspicion that Thorne was engaged in

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019   Page 5 of 8
       any criminal activity. Tr. p. 12. Upon seeing Thorne, Officer Pickrell

       performed a search in his computer and received a “very vague hit” indicating a

       warrant for Thorne. Id. at 8. Officer Pickrell testified at the suppression

       hearing that he confirmed only that the name on the warrant matched Thorne’s

       name. He further testified that there was additional information in the warrant

       that he did not read. Although he contacted dispatch to confirm the warrant,

       he testified that he did not wait for dispatch to get back with him before he

       attempted to detain Thorne. Upon questioning by the court as to whether the

       warrant details were included in the result from the initial computer search and

       overlooked, or whether the information had to be obtained from dispatch,

       Officer Pickrell responded that after the incident he ran the search again and

       noticed that in the “notes” section of the result it indicated whether the warrant

       was extraditable. Id. at 20. Officer Pickrell testified that, had he known the

       warrant was non-extraditable, he would not have stopped Thorne.


[10]   Examining the factors to be balanced, we note that Officer Pickrell had no

       suspicion of any criminal activity by Thorne; therefore, there was no ongoing or

       in-progress criminal activity that would be prevented by his immediate

       detention. In addition, there were no exigent circumstances or threat to public

       safety requiring police intervention. Most notable is that in dealing with a past

       crime, Officer Pickrell had more opportunity to review relevant information

       before making a stop.


[11]   Furthermore, this case does not involve a mistake of fact upon which the officer

       reasonably relied. See State v. Stevens, 33 N.E.3d 1200 (Ind. Ct. App. 2015)

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019   Page 6 of 8
       (stating that good faith exception applies in situations where warrant contains

       defect upon which officer reasonably relies), trans. denied; see also Dowdy v. State,

       83 N.E.3d 755 (Ind. Ct. App. 2017) (stating that even assuming officer was

       ultimately mistaken, traffic stop was based upon good faith belief that infraction

       occurred based upon BMV information). Here, the information in the warrant

       was accurate. Nevertheless, Officer Pickrell failed to exercise due diligence

       when he neglected to review the information in the search result.


[12]   “The ultimate touchstone of the Fourth Amendment is reasonableness.” Wertz,

       41 N.E.3d at 279. In assessing the reasonableness of a search or seizure in light

       of the particular circumstances, it is imperative that the facts be judged against

       this objective standard: would the facts available to the officer at the moment of

       the search or seizure cause a person of reasonable caution to believe that the

       action taken was appropriate. Terry, 392 U.S. 1. Anything less invites intrusion

       upon constitutionally guaranteed rights. Id. Stated another way, evidence

       should be suppressed only if it can be said that the law enforcement officer had

       knowledge, or may properly be charged with knowledge, that the search or

       seizure was unconstitutional under the Fourth Amendment. Shotts v. State, 925

       N.E.2d 719 (Ind. 2010). The facts that were available to Officer Pickrell before

       he attempted to detain Thorne were that the warrant was non-extraditable; yet,

       he failed to review that information. Under these circumstances, Officer

       Pickrell may properly be charged with knowledge of such facts. Consequently,

       he did not have reasonable suspicion to stop Thorne, and the ensuing search of

       Thorne’s backpack was illegal.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019   Page 7 of 8
[13]   Thus, under the unique facts and circumstances before us, we conclude that the

       trial court abused its discretion in denying Thorne’s motion to suppress. We

       accordingly reverse the trial court’s order and remand this matter for further

       proceedings consistent with this opinion.


[14]   Reversed and remanded for further proceedings consistent with this opinion.


       Crone, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019   Page 8 of 8
