K.G. v. State

81 N.E.3d 1078

K.G., Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 32A01-1611-JV-2590

Court of Appeals of Indiana.

July 31, 2017

Attorney for Appellant : Jeffery A. Earl, Danville, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Denise A. Robinson, Deputy Attorney General, Indianapolis, Indiana

May, Judge.

[1] K.G. appeals his adjudication as a delinquent child for having committed acts that, if committed by an adult, would be Class A misdemeanor carrying a handgun without a license,¹ Class C misdemeanor illegal possession of an alcoholic beverage,² and Class C misdemeanor possession of paraphernalia.³ K.G. asserts the evidence supporting his adjudications was inadmissible because it was collected in violation of his constitutional rights to be free of illegal search and seizure. We reverse.

Facts and Procedural History

[2] During the late morning of October 1, 2016, Lieutenant Robert Paris ("Lt. Paris") of the Avon Police Department received a dispatch regarding a suspicious male who was approaching females in a Kroger parking lot and asking to use their cell phones. The dispatch also stated the male had a backpack and might be a runaway. Lt. Paris was given a physical description of the male and, upon his arrival at the store, saw a male who fit that description walking in front of the store. Lt. Paris saw the male—later identified as K.G.—was carrying two backpacks, and the lieutenant suspected K.G. was a runaway.

[3] Lt. Paris got out of his police car and told K.G. to stop. Lt. Paris then asked K.G. his age and whether he was a runaway. K.G. responded he was "almost seventeen" and was not a runaway. (Tr. Vol. 2 at 12.) Lt. Paris then asked who the backpacks belonged to, and K.G. reported the backpacks belonged to someone else. When Lt. Paris asked for that friend's name, K.G. reported "Jacob" but could not provide Jacob's last name, address, or phone number. (Id . at 13.) Lt. Paris then "decided to pat [K.G.] down for [the lieutenant's] own safety." (Id .)

[4] During the pat-down, Lt. Paris "immediately located a—what ended up being a box of ammunition in [K.G.'s] left front pants pocket." (Id . at 14.) Lt. Paris handcuffed K.G. and removed the ammunition from his pocket. Lt. Paris then searched K.G.'s backpacks and found a loaded handgun that contained the same type of ammunition found in K.G.'s pocket, two soda bottles filled with alcohol, and a glass pipe with burnt marijuana residue.

[5] Thereafter, the State filed a petition alleging K.G. was a delinquent child for committing acts that, if committed by an adult, would have been Class A misdemeanor carrying a handgun without a license, Class C misdemeanor illegal possession of an alcoholic beverage, and Class C misdemeanor possession of paraphernalia.

[6] On October 24, 2016, the day of the fact-finding hearing, K.G. filed a motion to suppress the evidence found during the pat-down and search of his backpacks (i.e ., the box of ammunition, handgun, alcohol, and glass pipe). K.G. argued, in relevant part, that Lt. Paris's search of K.G. and his backpacks was a warrantless search in violation of K.G.'s constitutional rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.⁴ Before the fact-finding hearing, the court heard testimony from Lt. Paris and denied K.G.'s motion to suppress.

[7] The court continued immediately into the fact-finding hearing, incorporated Lt. Paris's testimony from the suppression hearing, and overruled K.G.'s renewed objection to the ammunition, gun, alcohol, and glass pipe. After hearing additional testimony, the juvenile court entered true findings that K.G. was a delinquent child for the offenses of carrying a handgun without a license, illegal possession of an alcoholic beverage, and possession of paraphernalia, and it ordered K.G. placed in the Indiana Department of Correction.

Discussion and Decision

[8] K.G. argues the juvenile court abused its discretion when it denied his motion to suppress all the evidence collected by Lt. Paris and admitted that evidence at his delinquency hearing.⁵ Because K.G. appeals following his delinquency hearing, the issue on appeal is whether the juvenile court abused its discretion by admitting the evidence during the fact-finding hearing. See A.M. v. State , 891 N.E.2d 146, 148 (Ind. Ct. App. 2008), trans. denied .

[9] The decision whether to admit evidence falls within the sound discretion of the trial court, and we review the decision only for an abuse of discretion. Wilson v. State , 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Conley v. State , 972 N.E.2d 864, 871 (Ind. 2012), reh'g denied . As we conduct our review, we may not reweigh the evidence, but we consider both the conflicting evidence, which we accept in the light most favorable to the trial court's decision, and any "uncontradicted evidence to the contrary." Pinner v. State , 74 N.E.3d 226, 229 (Ind. 2017). "[W]hen an appellant's challenge ... is premised on a claimed constitutional violation, we review the issue de novo because it raises a question of law." Id .

[10] Specifically, K.G. argues this evidence was inadmissible because the searches violated his rights under the Fourth Amendment to the United States Constitution.⁶ The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons ... against unreasonable search and seizures." For a search to comply with that guarantee of reasonableness, it generally must be conducted with a warrant supported by probable cause. Pinner , 74 N.E.3d at 229. When a seizure or search occurs without a warrant, the State has "the burden to prove that an exception to the warrant requirement existed at the time." Mullen v. State , 55 N.E.3d 822, 827 (Ind. Ct. App. 2016) (quoting Brooks v. State , 934 N.E.2d 1234, 1240 (Ind. Ct. App. 2010), reh'g denied, trans. denied ).

[11] One exception to the warrant requirement is the Terry stop, which permits police officers to stop and briefly detain an individual if the officer has a reasonable and articulable suspicion that criminal activity may be afoot.⁷ Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The dispatch Lt. Paris received, combined with his observation of K.G. in the expected location, provided reasonable suspicion for Lt. Paris to stop K.G. briefly to determine whether K.G. was a runaway or needed assistance calling for help. However, Lt. Paris did not simply stop K.G. and talk to him, Lt. Paris also conducted a pat-down search of K.G.

In addition to detainment, Terry permits a reasonable search for weapons for the protection of the police officer, where the officer 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. Officer safety is of paramount importance. Police officers are daily placed in difficult and dangerous situations, some of which are life threatening. The law has to provide protections for such officers. 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.

Mullen , 55 N.E.3d at 830-31.

[12] Thus, the question we face is whether a reasonably prudent person facing the circumstances herein would have been warranted in believing his safety was in danger. Lt. Paris approached a teenager on the sidewalk in front of Kroger in Avon, Indiana, in the late morning on a Sunday in October. When Lt. Paris stopped K.G., he asked how old K.G. was. K.G. reported he was almost seventeen, and Lt. Paris asked if K.G. was a runaway. K.G. responded "no." (Tr. Vol. 2 at 12.) Lt. Paris then asked if the two backpacks K.G. was carrying belonged to K.G. K.G. reported they belonged to "Jacob." (Id . at 13.) When Lt. Paris asked for Jacob's last name, K.G. "couldn't give me a last name so I decided to pat him down for my own safety."⁸ (Id .)[13] On cross-examination, defense counsel asked Lt. Paris: "What concern for officer safety did you have?" (Id . at 24.)

A He was in possession of property according to him that did not belong to him, could not give me names of who it belonged to, the fact that he was under the age of 17, and he had ammunition on him I was concerned he might also have a weapon.

Q But at the time when you patted him down you did not know he had ammunition on him, is that correct?

A Not until I patted him down, no.

(Id .) On re-direct examination, the following dialogue occurred:

Q Okay. And so during this interaction with [K.G.] did you become at any point concerned for your safety or the safety of anyone around?

A Yes.

Q Okay. And at what point did you put [K.G.] in handcuffs?

A Pretty much immediately after I found the ammunition in his pocket.

(Id . at 28.) Then, on re-cross:

Q ... you were concerned for ... officer safety ... is that right?

A Yes.

Q When were you concerned for officer safety? When did that first become a concern?

A It's always a concern but when I found ammunition on him it became paramount at my [sic] point to get him secured.

(Id . at 29.)⁹

[14] None of Lt. Paris's testimony creates particularized reasonable suspicion that Lt. Paris's safety was in danger because of K.G. or that K.G. was "an armed and dangerous individual," Mullen , 55 N.E.3d at 831, prior to Lt. Paris finding the ammunition in K.G.'s pocket during the pat-down. As Lt. Paris needed particularized suspicion before he conducted that pat-down, K.G.'s Fourth Amendment right to be free of unreasonable search and seizure was violated by the pat-down, see Mitchell v. State , 745 N.E.2d 775, 781 (Ind. 2001) (holding pat-down of properly-stopped citizen violated Fourth Amendment when ...