Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Feb 04 2013, 9:22 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RANDY M. FISHER GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRANDON JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 02A05-1207-CR-357
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1106-FC-159
February 4, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Brandon Johnson appeals his conviction for carrying a handgun without a license,
as a Class C felony, following a jury trial.1 Johnson raises a single issue for our review,
namely, whether the State seized a firearm from Johnson in violation of the Fourth
Amendment to the United States Constitution or Article I, Section 11 of the Indiana
Constitution. We affirm.
FACTS AND PROCEDURAL HISTORY
Around 9:00 p.m. on June 7, 2011, Officers Nicholas Lichtsinn and Christopher
Felton of the Fort Wayne Police Department observed Johnson and Reginald Wilson
walking down the middle of Capitol Street rather than using the sidewalk. Both officers
were in full uniform and in a marked police vehicle. The officers stopped their vehicle
near the two men and began to exit.
As they did so, Johnson became aggressive and thrust his right hand into his right
front pants pocket. Officer Lichtsinn ordered Johnson to remove his hand from his
pocket. Johnson began to back away from the officers and removed his hand from his
pocket. As he did so, Officer Lichtsinn observed a Smith & Wesson .40 caliber semi-
automatic firearm fall to the ground. Johnson then fled from the officers. Officer Felton
chased after him and detained him.
On June 13, the State charged Johnson with carrying a handgun without a license,
as a Class C felony, and resisting law enforcement, as a Class A misdemeanor. On May
16, 2012, the court held Johnson’s jury trial, after which the jury found him guilty of both
1
Johnson does not appeal his conviction for resisting law enforcement, as a Class A
misdemeanor.
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counts. The court entered its judgment of conviction and sentenced Johnson accordingly.
This appeal ensued.
DISCUSSION AND DECISION
Johnson appeals the trial court’s admission of the firearm into evidence. Our
standard of review of a trial court’s admission or exclusion of evidence is an abuse of
discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court
abuses its discretion only if its decision is clearly against the logic and effect of the facts
and circumstances before the court. Id. In reviewing the admissibility of evidence, we
consider only the evidence in favor of the trial court’s ruling and any unrefuted evidence
in the defendant’s favor. Dawson v. State, 786 N.E.2d 742, 745 (Ind. Ct. App. 2003),
trans. denied.
Johnson contends that the State’s seizure of his person was unreasonable under the
Fourth Amendment to the United States Constitution and Article I, Section 11 of the
Indiana Constitution. Both of those constitutional provisions protect citizens from
unreasonable searches and seizures. See Hathaway v. State, 906 N.E.2d 941, 944-45
(Ind. Ct. App. 2009), trans. denied. Generally, a search warrant is a prerequisite to a
constitutionally proper search and seizure. Halsema v. State, 823 N.E.2d 668, 676 (Ind.
2005). When a search or seizure is conducted without a warrant, the State bears the
burden of proving that an exception to the warrant requirement existed at the time of the
search or seizure. Id.
However, in Terry v. Ohio, 392 U.S. 1, 30 (1968), the United States Supreme
Court held that an officer may, consistent with the Fourth Amendment, conduct a brief
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investigatory stop when, based on a totality of the circumstances, the officer has a
reasonable, articulable suspicion that criminal activity is afoot. Hardister v. State, 849
N.E.2d 563, 570 (Ind. 2006). An investigatory stop allows a police officer to
“temporarily freeze the situation in order to make an investigative inquiry.” Johnson v.
State, 766 N.E.2d 426, 429 (Ind. Ct. App. 2002), trans. denied. A Terry stop is a lesser
intrusion on the person than an arrest and may include a request to see identification and
inquiry necessary to confirm or dispel the officer’s suspicions. Id. (citing Hiibel v. Sixth
Judicial Dist. Court of Nev., 542 U.S. 177, 185-89 (2004)). Reasonable suspicion entails
some minimal level of objective justification for making a stop, something more than an
unparticularized suspicion or hunch, but less than the level of suspicion required for
probable cause. Wilson v. State, 670 N.E.2d 27, 29 (Ind. Ct. App. 1996) (citing United
States v. Sokolow, 490 U.S. 1, 7 (1989)). Indiana has adopted the Terry rationale in
determining the legality of an investigatory stop under Article I, Section 11. Id.
Here, Johnson contends that “the police had no reasonable suspicion to initiate a
Terry stop . . . as he was simply walking down the street.” Appellant’s Br. at 12. We
cannot agree. The officers observed Johnson walking down the middle of the street
rather than on the sidewalk, in violation of Indiana Code Section 9-21-17-12. Officer
Lichtsinn testified that, as he was exiting the vehicle to investigate the apparent sidewalk
violation, Johnson became aggressive and placed his hand in his pocket, which led to the
discovery of the firearm.
The officers’ initial encounter with Johnson was well within the definition of a
Terry stop. The officers observed Johnson engaged in behavior contrary to Indiana law.
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Their observation gave them reasonable suspicion to approach Johnson under the Fourth
Amendment and Article I, Section 11. And, once the officers attempted to temporarily
freeze the situation, Johnson’s aggressive behavior and his placing his hand inside his
pocket further justified the officers to order Johnson to remove his hand, which resulted
in the firearm falling out of Johnson’s pocket. E.g., Zelmer v. State, 177 Ind. App. 636,
638-39, 380 N.E.2d 618, 620 (1978). The officers’ seizure of both Johnson and the
firearm was not contrary to law, and the trial court did not abuse its discretion when it
admitted the firearm into evidence.
Affirmed.
FRIEDLANDER, J., and BRADFORD, J., concur.
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