Jacobs v. State, 49A02–1601–CR–19.

62 N.E.3d 1253

Jordan JACOBS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1601–CR–19.

Court of Appeals of Indiana.

Nov. 7, 2016.

Ruth Johnson, Marion County Public Defender, Darren Bedwell, Marion County Public Defender, Appellate Division, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Christina Pace, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

BRADFORD, Judge.

Case Summary

[1] On September 2, 2015, eighteen-year-old Appellant–Defendant Jordan Jacobs was arrested after he was found to be in possession of a handgun without having a license for said handgun. Appellee–Plaintiff the State of Indiana (“the State”) subsequently charged Jacobs with Class A misdemeanor carrying a handgun without a license. Following a bench trial, Jacobs was found guilty as charged. Jacobs challenges his conviction on appeal, arguing that the trial court abused its discretion in admitting the handgun into evidence at trial. We affirm.

Facts and Procedural History¹

[2] In late-August or early-September of 2015, Indianapolis Metropolitan Police Officer Terry Smith, a detective assigned to investigate potential gang activity, received a complaint from the district commander that there had been multiple runs to the Blackburn Terrace Apartments on East 30th Street because of shots fired by juveniles who wore red clothing and were possible gang members. The Blackburn Terrace Apartments are located in an area which is known to be a high-crime neighborhood. After receiving the complaint from the district commander, Officer Smith went to the Blackburn Terrace Apartments during school hours at approximately 2:00 p.m. on September 2, 2015. Officer Smith observed a group of individuals, many of whom appeared to be juveniles of school age, gathered in a park located just south of the apartment complex. Officer Smith also observed that some of the individuals were wearing red, which Officer Smith knew to be a gang color. Jacobs was present with the group and at one point had a red t-shirt slung across his shoulder.

[3] Officer Smith watched the group, which was gathered around a picnic table, for several hours. He noticed a number of individuals come and go, including several adult males. At some point, Officer Smith's attention was drawn to Jacobs, whom Officer Smith believed to be a juvenile. Officer Smith observed that when a park ranger in a marked vehicle approached the vicinity where the group was located, Jacobs and another individual, who also appeared to be a juvenile, left the group and began walking west toward the apartment complex. Officer Smith observed that Jacobs and the other individual ended up on 30th Street. Jacobs and the other individual returned to the group after the park ranger left the area. In light of his observations, including the “coming and going” of a number of individuals, many of whom were wearing a known gang color and that many of the juveniles appeared to be of school age but were not in school, Officer Smith contacted the north district and requested that marked units be sent to assist in “stopping” the group. Tr. p. 8.

[4] As the marked police vehicles began approaching from the east, Jacobs and the other individual again began to quickly walk away from the group, again heading west. As the police came closer, Jacobs and the other individual picked up their pace. Officer Smith, who was wearing a vest reading “police” on the front, instructed Jacobs and the other individual to stop. Tr. p. 9. The other individual complied with Officer Smith's instruction and stopped, but Jacobs continued walking.

[5] After Jacobs failed to comply with Officer Smith's instruction to stop, Officer Smith and Indianapolis Metropolitan Police Officer Jeremiah Casavan ordered Jacobs to the ground. Jacobs complied with this order. Jacobs was placed in handcuffs but told that he was not under arrest. Officers Smith and Casavan escorted Jacobs and the other individual to the park shelter where the other members of the group were gathered.

[6] As Officer Casavan was escorting Jacobs to the park shelters, he looked at Jacobs's clothing and observed the outline of a handgun in Jacobs's front right pocket. Officer Casavan asked Jacobs whether he had any weapons on him. Jacobs responded that he did not. Officer Casavan then reached inside Jacobs's pocket and removed the handgun. Jacobs was thereafter placed under arrest.

[7] On September 13, 2015, the State charged Jacobs with Class A misdemeanor carrying a handgun without a license. The trial court conducted a bench trial on November 10, 2015. During trial, the State sought to admit the handgun into evidence. Jacobs objected to admission of the handgun, arguing that it was recovered in violation of both the Fourth Amendment to the United States Constitution (“Fourth Amendment”) and Article I, Section 11 of the Indiana Constitution (“Article I, Section 11 ”). The trial court admitted the handgun into evidence over Jacobs's objection. The State also presented evidence at trial that Jacobs did not have a license to carry the handgun. The trial court took the matter under advisement, after which it found Jacobs guilty as charged. The trial court subsequently sentenced Jacobs to a term of 365 days with 357 of those days suspended to probation.

Discussion and Decision

[8] Jacobs contends that the trial court abused its discretion in admitting the handgun into evidence at trial because the handgun was recovered in violation of Jacob's rights under the Fourth Amendment and Article I, Section 11.

I. Standard of Review

[9] The trial court has broad discretion to rule on the admissibility of evidence. [Clark v. State, 994 N.E.2d 252, 259–60 (Ind.2013) ]. We review its rulings “for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” [Id. at 260 ]. But when an appellant's challenge to such a ruling is predicated on an argument that impugns the constitutionality of the search or seizure of the evidence, it raises a question of law, and we consider that question de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind.2013).

Guilmette v. State, 14 N.E.3d 38, 40–41 (Ind.2014). Further, when reviewing a trial court's ruling on the admissibility of evidence obtained from an allegedly illegal search, we do not reweigh the evidence but defer to the trial court's factual determinations unless clearly erroneous. Hansbrough v. State, 49 N.E.3d 1112, 1114–15 (Ind.Ct.App.2016) (citing Meredith v. State, 906 N.E.2d 867, 869 (Ind.2009) ), trans. denied. “We view conflicting evidence most favorable to the ruling, and we consider ‘afresh any legal question of the constitutionality of a search and seizure.’ ” Id. (quoting Meredith, 906 N.E.2d at 869 ).

II. The Fourth Amendment

[10] Jacobs argues that the warrantless search of his person was conducted in violation of his Fourth Amendment rights.

A. Legal Authority

[11] The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness [.]’ ” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). We approach cases involving warrantless searches with the basic understanding that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted)). Where there is no clear practice concerning the constitutionality of a search, the reasonableness of the search is judged by balancing “the degree to which it intrudes upon an individual's privacy and ... the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 299–300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

Wertz v. State, 41 N.E.3d 276, 279 (Ind.Ct.App.2015) (emphasis to words “per se ” in original), trans. denied. Application of the Fourth Amendment has been extended to the States through the Due Process Clause of the Fourteenth Amendment. Hansbrough, 49 N.E.3d at 1114–15.

[12] An officer may briefly detain someone to investigate, without a warrant or probable cause, if specific and articulable facts and the rational inferences therefrom give the officer “reasonable suspicion that criminal activity ‘may be afoot.’ ” Moultry v. State, 808 N.E.2d 168, 171 (Ind.Ct.App.2004). To determine whether there was reasonable suspicion, we must determine whether the totality of the circumstances show “the detaining officer had a particularized and objective basis for suspecting legal wrongdoing.” [Johnson v. State, 992 N.E.2d 955, 958 (Ind.Ct.App.2013), trans. denied ]. During such an investigatory stop, a police officer may conduct a

reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The 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, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).

D.F. v. State, 34 N.E.3d 686, 689 (Ind.Ct.App.2015), trans. denied. “Although reasonable suspicion requires more than inchoate and unparticularized hunches, it is a less demanding standard than probable cause and requires a showing...