Court of Appeals of Indiana | Opinion 49A02

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### OPINION

A TTORNEY FOR A PPELLANT

Michael R. Fisher

Marion County Public Defender Agency

Indianapolis, Indiana A TTORNEYS FOR A PPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Henry A. Flores, Jr.

Deputy Attorney General

Indianapolis, Indiana



### I N T H E



# COURT OF APPEALS OF INDIANA

Thomas Pinner,

Appellant

- Defendant,

v.



### State of Indiana,

Appellee

- Plaintiff

. August 24, 2016

Court of Appeals Case No.

49A02

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Appeal from the Marion Superior

Court

The Honorable Shatrese Flowers,

Judge;

The Honorable Peggy Hart,

Commissioner

Trial Court Cause No.

49G 20

- 1503

- F5

- 8548

May, Judge.

[1] Thomas Pinner appeals the denial of his motion to suppress. As no reasonable

suspicion justified the investigatory stop, we reverse.Court of Appeals of Indiana | Opinion 49A02

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# Facts and Procedural History

[2] On February 20, 2015, Indianapolis Metropolitan Police Department officers

Jason Palmer and George Stewart responded to a call from a cab driver

regarding a passenger who dropped a handgun when exiting the cab at the

Studio Movie Grill. The cab driver described the passenger as “a black male

wearing a blue jacket [accompanied by] a black female with blonde hair.”

(App. at 13.) The driver indicated he was fearful of being robbed. Officer

Palmer talked to the cab driver on the phone before attempting to locate the

man. The driver left the scene before the officers arrived and gave no indication

that a robbery had been attempted.

[3] On entering the Studio Movie Grill, the officers saw a blonde

- haired black

woman walking away from Pinner, who matched the driver’s description.

Pinner was on a bench by himself inside the lobby of the theatre when the two

officers walked up to him, stood in front of him, told him there was a report of a

man with a gun, and asked if he had a gun on him. Pinner denied having a gun

but was shuffling nervously and was hesitant to answer. Officer Palmer had

Pinner stand. When Pinner stood up, Officer Palmer could see the butt of a gun

in his front pocket. Officer Palmer secured the gun for police safety and

detained Pinner. He learned Pinner did not have a license to carry a handgun

and placed him under arrest.

[4] The State charged Pinner with Class A misdemeanor carrying a handgun

without a license enhanced to Level 5 felony due to prior commission of aCourt of Appeals of Indiana | Opinion 49A02

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- 2036 | August 24, 2016 Page 3 of 14 felony. 1 Pinner filed a motion to suppress the evidence. The trial court held a

hearing and then denied Pinner’s motion. The trial court found, in accordance

with the State’s argument at the hearing, that the officers had reasonable

suspicion to approach and question Pinner. Pinner filed a Petition to Certify an

Order for Interlocutory Appeal, which the trial court granted. We accepted

jurisdiction and now reverse.



# Discussion and Decision

[5] Our standard of review for the denial of a motion to suppress evidence is similar

to that of other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct.

App. 2003), reh’g denied, trans. denied. We determine whether there is substantial

evidence of probative value to support denial of the motion. Id. We do not

reweigh the evidence, and we consider conflicting evidence that is most

favorable to the trial court’s ruling. Id. But the review of a denial of a motion to

suppress is different from other sufficiency matters in that we must also

consider uncontested evidence that is favorable to the defendant. Id. We

review de novo a ruling on the constitutionality of a search or seizure, but we give

deference to a trial court’s determination of the facts, which will not be

overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind.

2008).

1 Ind. Code § 35

- 47

- 2

- 1 (2014).Court of Appeals of Indiana | Opinion 49A02

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- 2036 | August 24, 2016 Page 4 of 14 [6] The Fourth Amendment to the United States Constitution requires law

enforcement officials to obtain a valid warrant before conducting searches or

seizures. When police conduct a search without a warrant, the State has the

burden of proving that the search falls within an exception to the warrant

requirement. Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006). A police officer

may briefly detain a person without a warrant if, based on articulable facts and

reasonable inferences, the officer believes criminal activity “may be afoot.”

Terry v. Ohio, 392 U.S. 1, 30 (1968).

[7] The interaction between Pinner and the officers was an investigatory stop for

which the officers did not have reasonable suspicion Pinner had engaged in or

was about to engage in criminal activity. Therefore, the Fourth Amendment

required the gun be suppressed. 2



### Consensual Interaction or Investigatory Stop?

[8] Before the trial court, the State conceded “[t]his case involves an investigatory

stop,” (App. at 39), and argued the officers had the reasonable suspicion

required by Terry to approach Pinner. But on appeal, the State argues the

officers’ interaction with Pinner was consensual, and thus not subject to Fourth

Amendment protections, until they saw the gun. This encounter was not

consensual and Pinner was subjected to an investigatory stop.

2 Pinner also asserts the seizure was contrary to Ind. Const., Art. 1, Section 11. However, as the seizure

violated the Fourth Amendment, we need not address Pinner’s other argument.Court of Appeals of Indiana | Opinion 49A02

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- 2036 | August 24, 2016 Page 5 of 14 [9] An encounter between an officer and a private citizen is consensual when the

officer limits his approach to “a casual and brief inquiry and the individual

remains free to leave.” Woodson v. State

, 960 N.E.2d 224, 227 (Ind. Ct. App.

2012). The test for whether an individual remains free to leave is “what a

reasonable person, innocent of any crime, would have thought had he been in

the citizens’ shoes.” Crabtree v. State

, 762 N.E.2d 241, 245 (Ind. Ct. App. 2002).

[10] Here, two armed and uniformed officers approached and questioned Pinner,

who was sitting alone in a theatre lobby. 3 They did not make small talk or pass

the time of day with him. The officers approached Pinner with an official

purpose and asked questions for which the answers could have criminal

implications. See United States v. Mendenhall

, 446 U.S. 544, 554 (1980)

(examples of circumstances that indicate a seizure include the “the use of

language or tone of voice indicating that compliance with the officer’s request

might be compelled”). The two officers stood in front of Pinner

– one to his

right and one to his left

– as he sat on a bench. 4 Though the officers asserted

before the trial court that Pinner could have walked away, we do not believe

any reasonable citizen would have felt free to disengage from the officers

3 This is one fact that distinguishes the facts herein from those in U.S. v. Scott

, 2015 WL 4506864 (S.D. Miss.

July 24, 2015), aff’d

, 624 F. App’x 850 (5th Cir. 2015), cert. denied

, 136 S. Ct. 869 (2016), on which the dissent

relies. Scott was “standing around a car in a manner consistent with drug activity” in a high

- crime area, (¶17

of Dissent), while Pinner was seated alone, presumably waiting for his female companion to return, and not

acting in any manner consistent with illegal activity.

4 This is the second fact that distinguishes Pinner’s situation from Scott

. Scott had room to walk away, see

Scott

, 2015 WL 4506864, at *1, but Pinner could exit the encounter with police only by standing and walking

between the two officers who had already asked him a pointed question.Court of Appeals of Indiana | Opinion 49A02

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- 2036 | August 24, 2016 Page 6 of 14 without answering their question. See State v. Felker

, 819 N.E.2d 870, 875 (Ind.

Ct. App. 2004) (Although not every interaction between police and citizens

implicates the Fourth Amendment, when an “officer has, by means of physical

force or show of authority, in some way restrained the liberty of a citizen,” a

seizure occurs. The reviewing court must take into consideration all the

circumstances that surround the encounter.), trans. denied

. The interaction was

not consensual; it was an investigatory stop, commonly referred to as a Terry

stop.



### Reasonable Suspicion for Terry Stop?

[11] The trial court denied Pinner’s Motion to Suppress Evidence on the ground

there was reasonable suspicion to stop Pinner. Specifically, the trial court

described the stop as a Terry stop throughout the Order and found “the initial

detention amount[ed] to reasonable suspicion and therefore was reasonable.”

(App. at 45.)

[12] On appeal, the State does not address reasonable suspicion. The State had the

burden to demonstrate the interaction with Pinner was supported by reasonable

suspicion and was a valid “exception to the general warrant requirement of the

Fourth Amendment[.]” Segar v. State

, 937 N.E.2d 917, 921 (Ind. Ct. App.

2010). As the State provides no argument, it has not met that burden on

appeal.

[13] Mere possession of a firearm, which is legal, cannot produce reasonable

suspicion to justify a Terry stop. See Malone v. State

, 882 N.E.2d 784 (Ind. Ct.Court of Appeals of Indiana | Opinion 49A02

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- 2036 | August 24, 2016 Page 7 of 14 App. 2008) (evidence suppressed because possession of a handgun on a porch

did not give officers sufficient evidence of criminal activity to justify stop), reh’g

denied

. The State has not directed us to a reason why the police believed when

they stopped Pinner that his possession of the gun was illegal, nor has the State

asserted any other criminal activity was “afoot.” Accordingly, we are

constrained to hold the stop of Pinner was not supported by reasonable

suspicion. See, e.g., id

.



# Conclusion

[14] As the officers did not have reasonable suspicion to stop Pinner and this was

not a consensual encounter, the trial court abused its discretion when it denied

his motion to suppress. As such, we reverse.

[15] Reversed.

Baker, J., concurs.

Brown, J., dissents with separate opinion.Court of Appeals of Indiana | Opinion 49A02

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### I N T H E



# COURT OF APPEALS OF INDIANA

Brown, Judge, dissenting.

[16] I respectfully dissent from the majority’s conclusion that the trial court abused

its discretion when it denied Pinner’s motion to suppress. As this court has

previously observed:

There are three levels of police investigation, two of which

implicate the Fourth Amendment and one of which does not.

First, the Fourth Amendment requires that an arrest or detention

that lasts for more than a short period of time must be justified by

probable cause. Second, pursuant to Fourth Amendment

jurisprudence, the police may, without a warrant or probable 

### Thomas Pinner,

Appellant

- Defendant

, Court of Appeals Case No.

49A02

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v.



### State of Indiana,

Appellee

- Plaintiff

.Court of Appeals of Indiana | Opinion 49A02

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- 2036 | August 24, 2016 Page 9 of 14 cause, briefly detain an individual for investigatory purposes if,

based upon specific and articulable facts, the officer has a

reasonable suspicion that criminal activity has [occurred] or is

about to occur. The third level of investigation occurs when a

police officer makes a casual and brief inquiry of a citizen, which

involves neither an arrest nor a stop. This is a consensual

encounter in which the Fourth Amendment is not implicated.

Powell v. State

, 912 N.E.2d 853, 859 (Ind. Ct. App. 2009) (citations omitted).

Also, determining whether an encounter was consensual or involves some level

of detention

“turns on an evaluation, under all the circumstances, of whether

a reasonable person would feel free to disregard the police and go

about his or her business.” [ Finger v. State

, 799 N.E.2d 528, 532

(Ind. 2003)] (citing California v. Hodari D.

, 499 U.S. 621, 628, 111

S. Ct. 1547, 113 L.Ed.2d 690 (1991)). The test is objective

— not

whether the particular citizen actually felt free to leave, but

“whether the officer’s words and actions would have conveyed

that to a reasonable person.” Hodari D.

, 499 U.S. at 628, 111 S.

Ct. 1547 (citing United States v. Mendenhall

, 446 U.S. 544, 100 S.

Ct. 1870, 64 L.Ed.2d 497 (1980)). Examples of facts and

circumstances that might lead a reasonable person to believe that

he or she was no longer free to leave could include “the

threatening presence of several officers, the display of a weapon

by an officer, some physical touching of the person of the citizen,

or the use of language or tone of voice indicating that compliance

with the officer’s request might be compelled.” Overstreet v. State

,

724 N.E.2d 661, 664 (Ind. Ct. App. 2000) (citing Mendenhall

, 446

U.S. at 554, 100 S. Ct. 1870), trans. denied

.

Clark v. State

, 994 N.E.2d 252, 261

- 262 (Ind. 2013).Court of Appeals of Indiana | Opinion 49A02

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- 2036 | August 24, 2016 Page 10 of 14 [17] I believe that the encounter between Pinner and Officers Palmer and Stewart

was consensual and that reasonable suspicion arose when the officers observed

Pinner’s gun immediately after he told the officers that he was not armed.

Recently, the United States District Court for the Southern District of

Mississippi addressed a similar scenario in U.S. v. Scott

, 2015 WL 4506864 (S.D.

Miss. July 24, 2015), aff’d

, 624 F. App’x 850 (5th Cir. 2015), cert. denied

,

136 S. Ct. 869 (2016). In Scott

, police received an anonymous tip that drugs

were being sold at a specific address in a high

- crime area, and upon arriving

they observed a congregation standing around a car in a manner consistent with

drug activity. Scott

, 2015 WL 4506864, at *1. Detective Corliss Harris

observed Scott “acting nervously and patting or adjusting his waistband before

taking a few steps away,” and he “told Scott that he did not have to leave and

asked him to come back over.” Id. Scott then “lifted his hands gesturing that

he had done nothing wrong, thus revealing a .38 revolver tucked in his

waistband,” and he was arrested for carrying the handgun after having been

previously convicted of at least one felony. Id. Scott entered a guilty plea, but

in doing so reserved the issue of whether the court should have suppressed the

handgun for appeal. Id.

[18] The Court examined the question of at what point in time Scott was seized

under Terry and began by observing that, rather than commanding Scott to

come back, Detective Harris “told Scott, ‘You don’t have to leave’ before

‘asking him to step back over.’” Id. at *2. The Court noted the following:Court of Appeals of Indiana | Opinion 49A02

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- 2036 | August 24, 2016 Page 11 of 14 To begin, “not all personal intercourse between policemen and

citizens involves ‘seizures’ of persons.” Terry v. Ohio

, 392 U.S. 1,

19 n.16, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968). “Moreover,

characterizing every street encounter between a citizen and the

police as a ‘seizure,’

. . . would impose wholly unrealistic

restrictions upon a wide variety of legitimate law enforcement

practices. The [United States Supreme] Court has on other

occasions referred to the acknowledged need for police

questioning as a tool in the effective enforcement of the criminal

laws.” United States v. Mendenhall

, 446 U.S. 544, 554, 100 S. Ct.

1870, 64 L.Ed.2d 497 (1980). Thus, “law enforcement officers

do not violate the Fourth Amendment by merely approaching an

individual on the street or in another public place [or] by asking

him if he is willing to answer some questions.” Florida v. Royer

,

460 U.S. 491, 497, 103 S. Ct. 1319, 75 L.Ed.2d 229 (1983)

(plurality opinion). Finally, “the fact that the officers’ conduct

‘could be somewhat intimidating’ does not mean a seizure has

occurred.” United States v. Valdiosera

- Godinez

, 932 F.2d 1093,

1099 (5th Cir. 1991) (quoting Michigan v. Chesternut

, 486 U.S.

567, 575, 108 S. Ct. 1975, 100 L.Ed.2d 565 (1988))[, reh’g denied

,

cert. denied

, 508 U.S., 113 S. Ct. 2369 (1993)].

Id.

[19] The Court then applied the Mendenhall factors as discussed above in Clark and

ruled that a seizure did not occur until the gun was discovered. Id. at *3. The

Court noted that, although six or seven officers were present, arriving in

undercover vehicles and dressed in tactical gear marked “police,” none of them

drew their weapons and only Detective Harris, who was the first to exit his

vehicle, spoke to Scott before the gun was discovered. Id. It observed that

“[n]one of the officers, through their speech, actions, or position relative to

[Scott], ever prevented him from walking away.” Id. (quoting United States v.Court of Appeals of Indiana | Opinion 49A02

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, 330 F.3d 330, 338 (5th Cir. 2003), reh’g denied

, reh’g en banc denied ). The

Court also found that Detective Harris “neither touched Scott nor physically

impeded his movement in any way” and “did not tell Scott he could not leave,”

and it concluded “that neither Harris’s language nor tone conveyed the need for

compelled compliance.” Id. (citing Florida v. Rodriguez

, 469 U.S. 1, 5

- 6, 105 S.

Ct. 308, 83 L.Ed.2d 165 (1984) (per curiam) (recognizing that “[t]he initial

contact between the officers and respondent, where they simply asked if he

would step aside and talk with them, was clearly the sort of consensual

encounter that implicates no Fourth Amendment interest”); United States v.

Anthony

, 487 F. App’x 921, 922 (5th Cir. 2012) (per curiam) (finding no seizure

when officers parked patrol unit perpendicular to the defendant’s vehicle and

ordered him “to stand in front of the police unit”); United States v. Guevara

, 448

F. App’x 453, 456 (5th Cir. 2011) (finding no seizure when police motioned the

defendant into a store and stating, “[W]e need to talk”), cert. denied

, 132 S. Ct.

1728 (2012); United States v. Simmons

, 918 F.2d 476, 479

- 480 (5th Cir. 1990)

(holding that a reasonable person in the defendant’s situation would not have

believed his freedom was limited when agents approached him, identified

themselves as law

- enforcement officers, and requested to speak to him)). The

Court ended its discussion by reiterating that the test for judging whether the

person felt free to leave is objective, and it held that the encounter was

consensual until the gun had been observed. Id. at *4.

[20] Similarly, in this case when Officers Palmer and Stewart approached Pinner,

neither had their weapons drawn, instead approaching Pinner in a non

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a gun. The record does not indicate that “through their speech, actions, or

position” relative to Pinner did the officers prevent Pinner from walking away.

See Mask

, 330 F.3d at 338. The record also indicates that neither officer

touched Pinner or impeded his movement. At trial, the State asked Officer

Palmer specifically if he asked or ordered Pinner to stand, and Officer Palmer

responded that he “asked [Pinner] if he could stand up for [him].” Transcript at

9. It was at that point that the officers observed the gun in Pinner’s pocket, and

Officer Palmer then ordered Pinner to keep his hands up while he “recovered

the gun for officer safety because [Pinner] had lied to [him] about not having

the gun.” Id. I would conclude that, similar to the circumstances in Scott

, the

interaction between the officers and Pinner was a consensual encounter until

the officers observed the gun in Pinner’s pocket after he lied about not having a

gun.

[21] I would also find that admission of the gun into evidence does not run afoul of

Article 1, Section 11 of the Indiana Constitution. The test under Article 1,

Section 11 focuses not on “the defendant’s reasonable expectation of privacy,”

as under the Fourth Amendment, but instead on “the actions of the police

officer, concluding that the search is legitimate where it is reasonable given the

totality of the circumstances.” Trimble v. State

, 842 N.E.2d 798, 803 (Ind.

2006), adhered to on reh’g

, 848 N.E.2d 278 (Ind. 2006). “We will consider the

following factors in assessing reasonableness: ‘1) the degree of concern,

suspicion, or knowledge that a violation has occurred, 2) the degree of intrusionCourt of Appeals of Indiana | Opinion 49A02

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- 2036 | August 24, 2016 Page 14 of 14 the method of the search or seizure imposes on the citizen’s ordinary act ivities,

and 3) the extent of law enforcement needs.’” Id. (quoting Litchfield v. State

, 824

N.E.2d 356, 361 (Ind. 2005)).

[22] I would find that “the degree of concern, suspicion, or knowledge that a

violation has occurred” was high given that the officers had received a

description of a man and his companion, in which a cab driver expressed fear of

being robbed by the man, that the officers observed Pinner and his companion

who fit the description, that, when asked if he was carrying a gun Pinner

shuffled nervously and was hesitant to answer before ultimately lying and

saying that he did not have a gun, and that the officers promptly observed that,

indeed, he did have a gun on his person. I would find that the degree of

intrusion was especially low, given that one of the officers merely asked Pinner

if he could stand up for him before observing the gun on his person. I would

find that the extent of law enforcement needs was strong in securing the gun

upon observing that Pinner was armed after acting nervous and stating that he

was not armed. Thus, I would find that given the totality of the circumstances,

the interaction between the officers and the confiscation of Pinner’s gun did not

violate Pinner’s rights under Article 1, Section 11 of the Indiana Constitution.

[23] I believe that Pinner’s motion to suppress was correctly denied and would

affirm the trial court.