Court of Appeals of Indiana | Opinion 49A02-1601-JV-161 | August 24, 2016 Page 1 of 8

ATTORNEY FOR APPELLANT

Ellen F. Hurley

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

J.J.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner.

August 24, 2016

Court of Appeals Case No.

49A02-1601-JV-161

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. 

Moores, Judge

The Honorable Scott Stowers, 

Magistrate

Trial Court Cause No.

49D09-1511-JD-2154

Najam, Judge.

Statement of the Case

[1] J.J., a minor, appeals the juvenile court’s true finding for dangerous possession 

of a firearm as a Class A misdemeanor if committed by an adult. The only 
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issue he raises on appeal is whether the police had reasonable suspicion to stop 

and search him. We affirm and remand with instructions.

Facts and Procedural History

[2] At approximately 2:00 a.m. on November 27, 2015, Andrew Stoops was 

working overnight as an asset protection manager at the Macy’s store located in 

Castleton Square Mall in Indianapolis. Stoops was in his office watching 

security monitors when “a couple” of Macy’s employees alerted him that there 

was “a group of people getting loud” in the men’s department. Tr. at 6. Stoops 

observed the group on his monitors and saw it move to another part of the 

store. Subsequently, several more Macy’s employees called Stoops to alert him 

that the group was “getting . . . loud ruckus [sic].” Id.

[3] Stoops went out to the public part of the Macy’s store and observed two groups 

of people loudly yelling obscenities at each other. This led Stoops to believe 

that a fight might occur, and he became concerned that the two groups might 

interfere with the safety of other customers. The groups started to shout at 

Stoops as well as each other. One unidentified individual in one of the groups 

lifted his shirt, and that action led Stoops to believe the individual had a gun. 

Stoops called mall security on his cellular phone and reported that there were 

two groups involved in a disturbance and that there might be a fight. Stoops 

also “mention[ed]” a gun. Id. at 18, 29. 

[4] Stoops then observed the two groups (one a group of four and the other a group 

of three) leaving Macy’s. He escorted the group of four out of the East entrance 
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and into the Dick’s Sporting Goods parking lot. When mall security and the 

police arrived, Stoops pointed out to a responding officer the group of four 

located next to Dick’s.

[5] Meanwhile, Officer James Russo with the Marion County Sheriff’s Office and 

Officer Brian Silcox with the Indianapolis Metropolitan Police Department, 

who were assisting mall security that night due to the busy holiday season, 

arrived at the mall parking lot. Officer Russo knew from his professional 

experience that, when there is a disturbance at a mall and the individuals 

involved disperse, the individuals often get back together and fight. As Officer 

Russo drove through the parking lot towards Macy’s, he observed three 

individuals walking in the middle of the parking lot and four other individuals 

walking closer to the entrance of Dick’s. Officer Russo also observed Macy’s 

employees by the parking lot pointing to the two groups. Officer Russo and 

other officers approached the group of four individuals closest to Dick’s and 

stopped them to gather their identifications. 

[6] Officer Silcox also drove up to where the group of four individuals had been 

stopped, and a Dick’s employee approached him and told him that three males 

had just run around the corner right as the police pulled up. The employee 

described the three males as one “heavier set male” and two “skinnier males” 

and stated they were all black. Tr. at 29. Officer Silcox conveyed this 

information to Officer Russo and then drove in the direction toward which the 

three males had ran, with Officer Russo following in his own squad car. Officer 

Silcox saw three males matching the description given by the Dick’s employee 
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walking in the parking lot. One of those three males was J.J. There were no 

other people in that area of the parking lot at that time.

[7] Officer Silcox stopped his vehicle where the three males were walking, exited 

his vehicle, and stated “hey guys, we got a call[. . . . I]f you can keep your 

hands where I can see them[?] We got a call saying there’s some kind of 

disturbance[/]fight at Macy’s and they said that there was a weapon involved. 

Do you have any weapons on you?” Id. at 31. As Officer Russo drove up and 

exited his vehicle to join Officer Silcox, one of the males other than J.J. 

responded that he did have a weapon. Upon hearing confirmation that one of 

the males had a gun, both officers became concerned for their safety and the 

safety of other responding officers.

[8] Officer Silcox then patted down the male who said he had a gun and found two 

guns on him. That person then informed Officer Silcox that he had a permit for 

the guns. Meanwhile, Officer Russo informed J.J. that he was going to pat him 

down for safety, and he proceeded to do so. Officer Russo patted down J.J.’s 

front waistband and found a loaded nine millimeter handgun. 

[9] On November 28, 2015, the State filed, and the juvenile court approved, a 

delinquency petition alleging that J.J. had committed dangerous possession of a 

firearm and carrying a handgun without a license, both as Class A 

misdemeanors if committed by an adult. Before his December 16, 2015, factfinding hearing, J.J. filed an oral motion to suppress evidence found during the 

pat-down of his person on the grounds that the officers lacked reasonable 
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suspicion for their initial encounter with him. The juvenile court denied that 

motion. Evidence introduced on the motion to suppress was incorporated into 

the record, and J.J. raised a continuing objection during the fact-finding hearing

to the testimony and evidence resulting from the search and seizure of him. 

The juvenile court denied the objection. At the conclusion of the fact-finding 

hearing, the juvenile court entered a true finding as to Count I, dangerous 

possession of a firearm. As to Count II, the trial court entered either a dismissal 

of that count,1 a merger with Count I,2 or a not true finding.3 The juvenile court 

placed J.J. on probation with a suspended commitment to the Indiana 

Department of Correction. This appeal ensued. 

Discussion and Decision

Standard of Review

[10] J.J. contends that the police lacked reasonable suspicion to stop him in the mall 

parking lot and, therefore, that the gun they found when they searched him was 

inadmissible. 

In reviewing the trial court’s ruling on the admissibility of 

evidence from an allegedly illegal search, an appellate court does 

not reweigh the evidence but defers to the trial court’s factual 

determinations unless clearly erroneous, views conflicting 

 

1

 See App. at 8 (Chronological Case Summary showing Count II “dismissed.”).

2

 See App. at 49 (written Order on Fact Finding Hearing showing Count II “merged at disposition.”).

3

 See Tr. at 51 (trial court stating at conclusion of fact finding hearing, “there is sufficient evidence to support 

a true finding for either count one or count two, but not necessarily both. . . .[I]n light of the fact that count 

one was found true, I will just show count two merged and enter a not true finding as to count two.”).
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evidence most favorably to the ruling, and considers afresh any 

legal question of the constitutionality of a search or seizure.

Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). 

Fourth Amendment and Article 1, Section 11

[11] J.J. asserts that Officer Silcox’s initial approach toward him in the parking lot 

was an investigatory stop for which the officer lacked reasonable suspicion 

under the Fourth Amendment to the United States Constitution4 and Article 1, 

Section 11 of the Indiana Constitution.5 While both federal and state 

constitutional provisions prohibit a search without a warrant unless certain 

narrow exceptions apply, we analyze a Fourth Amendment claim differently 

than a claim under Article 1, Section 11. Under the Fourth Amendment, if a 

search is conducted without a warrant, the State bears the burden of proving an 

exception to the warrant requirement. See, e.g., Swanson v. State, 730 N.E.2d 

205, 208 (Ind. Ct. App. 2000), trans. denied. An officer may briefly detain an 

individual without a warrant or probable cause if the officer observes unusual 

conduct that leads him to conclude, in light of his experience, that criminal 

activity is afoot. Id. at 209 (citing Terry v. Ohio, 392 U.S. 1 (1968)). However, 

 

4

 The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, 

and effects, against unreasonable searches and seizures.”

5

 Article 1, Section 11 provides in relevant part that the “right of the people to be secure in their persons, 

houses, papers, and effects against unreasonable search or seizure, shall not be violated.”
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reasonable suspicion must be based upon specific and articulable facts, not mere 

hunches. Id. 

[12] Under Article 1, Section 11 of the Indiana Constitution, the State must show 

that, in the totality of the circumstances of a detention without a warrant, the 

police behavior was reasonable. Id. This analysis is similar to that set forth in 

Terry; that is, the officer’s actions will be found reasonable where the facts 

known to the officer at the time of the stop and the reasonable inferences drawn 

therefrom would cause an ordinarily prudent person to believe that criminal 

activity has occurred or is about to occur. Davis v. State, 858 N.E.2d 168, 172 

(Ind. Ct. App. 2006).

[13] Here, at the time the officers stopped J.J. and his companions in the mall 

parking lot, they had reasonable suspicion to believe that criminal activity had 

occurred or was about to occur. The officers had received reports that two 

groups of young men were involved in a disturbance in Macy’s and one of them 

had a gun. Officer Russo was aware that such disturbances often result in 

actual fighting after the groups disperse. As he approached the scene, Officer 

Russo observed two groups of males and saw Macy’s employees pointing to the 

two groups. Officer Silcox then arrived on the scene and learned from a Dick’s 

employee that one of the two groups had just run around the corner as the 

police were approaching, and the employee described the three males in that 

group. Officer Silcox then drove around the corner and saw the group of three 

males matching the Dicks employee’s description, and saw no one else in that 

area. At that point, given the collective knowledge of the police and the totality 
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of the surrounding circumstances, Officer Silcox had reasonable suspicion that 

the group of three males, including J.J., had engaged in criminal activity or 

were about to do so, and his investigatory stop of J.J. did not violate the Fourth 

Amendment. For the same reasons, Officer Silcox’s actions toward J.J. were 

reasonable and did not violate Article 1, Section 11.6 

[14] Affirmed and remanded with instructions to clarify the status of Count II, 

carrying a handgun without a license.7

Vaidik, C.J., and Baker, J., concur.

 

6

 J.J. did not argue in the trial court or on appeal that the officer’s pat-down of J.J. was not justified by 

reasonable suspicion that J.J. was armed, so that argument has been waived. See, e.g., Frazier v. Mellowitz, 804 

N.E.2d 796, 801 n.5 (Ind. Ct. App. 2004) (holding appellant waived argument not raised in trial court).

7

 See footnotes 1-3, supra. If the count is “not true,” then it must be vacated. However, if, as the trial court 

indicated at the conclusion of the fact-finding hearing, there is sufficient evidence to find both counts “true” 

but the court cannot enter judgment on both counts due to double jeopardy concerns, merger of the two 

counts is appropriate. See, e.g., Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013).