Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN F. HURLEY GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
FILED
Apr 25 2012, 9:17 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
D.M., )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1109-JV-885
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary Chavers, Judge Pro Tempore
The Honorable Geoffrey Gaither, Magistrate
Cause No. 49D09-1107-JD-1829
April 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
D.M. appeals from his adjudication as a delinquent child for carrying a handgun
without a license,1 which would be a Class A misdemeanor if committed by an adult. He
raises the following restated issue: whether the juvenile court abused its discretion when
it admitted evidence found in D.M.’s possession because he contends the police lacked
reasonable suspicion to conduct an investigatory stop of him under the Fourth
Amendment to the United States Constitution.
We affirm.
FACTS AND PROCEDURAL HISTORY
On July 16, 2011, Indianapolis Metropolitan Police Department Officer Michael
Mann (“Officer Mann”) received a dispatch to 556 North Parker Avenue in Indianapolis,
Indiana based on a call to police from Melinda Betts (“Betts”). Betts told police she had
received information that D.M. was located at that address and was in possession of a .25
caliber handgun that he was showing off to others at the address. Betts informed the
police that this handgun had been stolen from her home during a burglary. D.M. was
described as “a black male . . ., approximately [five feet, ten inches in height], thin build,
a short, curly afro.” Tr. at 2.
Officer Mann and a second officer responded to the address, with Officer Mann
approaching the front of the house, and the other officer going to the back door for
containment. There were several individuals in the front area of the house, and Officer
Mann asked them if anyone had seen D.M. Several individuals replied, “no.” Id. at 3.
1
See Ind. Code § 35-47-2-1.
2
Officer Mann then looked to Antonio Bishop (“Bishop”), who he knew resided at the
address, and asked for consent to search the house for D.M. Bishop looked at Nadine
Jenkins (“Jenkins”), who also lived at the address, and Officer Mann repeated his request
to Jenkins, who gave her consent. Officer Mann asked Jenkins to escort him through the
house, and she agreed.
Officer Mann followed Jenkins up the stairs to the second floor. At the top of the
stairs, Jenkins looked down a hallway to her left and said, “[D.M.,] the police want you.”
Id. at 5. Officer Mann looked around the corner and saw an individual who matched the
description of D.M. that the officer had received from dispatch. D.M. walked toward
Officer Mann. The officer placed D.M. in custody and asked who he was, to which he
responded he was D.M. Id. at 6. Officer Mann took D.M. downstairs and handed him
over to Officer Ross Allison (“Officer Allison”). Officer Allison, who testified he had
been trained to pat down a suspect whenever the suspect is transferred from one officer to
another, performed a pat down search of D.M. Id. at 25. When Officer Allison touched
D.M.’s left, front pants pocket, he felt what he knew to be a small handgun. Officer
Allison retrieved the handgun and discovered it to be a small, silver and black, .25 caliber
semi-automatic handgun.
During this time, Officer Mann had been talking with Jenkins and asking for her
consent to search the home for a handgun. While Officer Mann was speaking with
Jenkins, Officer Allison informed Officer Mann that he had found the handgun on D.M.
Officer Mann contacted Betts to find out more about the burglary and the stolen handgun.
Officer Mann also requested that the handgun discovered in D.M.’s possession be run
3
through control to determine if it came back as being stolen, but it came back as not being
reported stolen.2
The State filed a delinquency petition alleging that D.M. committed dangerous
possession of a firearm, which would be a Class A misdemeanor if committed by an
adult, and carrying handgun without a license, which would be a Class A misdemeanor if
committed by an adult. A fact-finding hearing was held on August 11, 2011. During this
hearing, D.M. moved to suppress any evidence resulting from the search, arguing that it
violated D.M.’s rights under the Fourth Amendment to the United States Constitution and
Article I, section 11 of the Indiana Constitution. The trial court denied the motion, and
D.M. made a continuing objection to the admission of the evidence. At the conclusion of
the fact-finding hearing, the juvenile court entered a true finding on only the carrying a
handgun without a license count. Id. at 27. After a dispositional hearing, the juvenile
court ordered that D.M. be placed on probation with a suspended commitment to the
Indiana Department of Correction and with special requirements, including that D.M. be
placed on electronic monitoring for ninety days. D.M. now appeals.
DISCUSSION AND DECISION
D.M. initially challenged the admission of the handgun through a motion to
suppress. However, he is appealing from a completed delinquency hearing, and
therefore, the issue is appropriately framed as whether the trial court abused its discretion
by admitting the evidence at the fact-finding hearing. A.M. v. State, 891 N.E.2d 146,
2
Upon further investigation, it was determined that, although a police report had been made in
reference to the handgun stolen from Betts, Betts did not have the proper information, such as the serial
number, to enter the handgun into “NCIC” as a stolen gun. Tr. at 22.
4
148-49 (Ind. Ct. App. 2008) (citing Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App.
2005), trans. denied.), trans. denied. “Our standard of review on the admissibility of
evidence ‘is essentially the same whether the challenge is made by a pre-trial motion to
suppress or by trial objection.’” Id. A trial court is afforded broad discretion in ruling on
the admissibility of evidence, and we will reverse such a ruling only upon a showing of
an abuse of discretion. S.G. v. State, 956 N.E.2d 668, 674 (Ind. Ct. App. 2011) (citing
Bentley v. State, 846 N.E.2d 300, 304 (Ind. Ct. App. 2006), trans. denied), trans. denied.
An abuse of discretion occurs when a decision is clearly against the logic and effect of
the facts and circumstances before the court. Id. In making this determination, this court
does not reweigh evidence and considers conflicting evidence in a light most favorable to
the trial court’s ruling. Id. (citing Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App.
2007)).
D.M. argues that the juvenile court abused its discretion when it admitted the
handgun discovered by police during a pat down search of his person. He contends that
the pat down search was performed in violation of the Fourth Amendment to the United
States Constitution because the police lacked reasonable suspicion to justify an
investigatory stop and pat down search. D.M. asserts that the police did not have
reasonable suspicion because the information known to the police at the time was based
on an anonymous tip.
The Fourth Amendment to the United States Constitution protects an individual’s
privacy and possessory interests by prohibiting unreasonable searches and seizures.
Washington v. State, 922 N.E.2d 109, 111-12 (Ind. Ct. App. 2010). Generally, a search
5
warrant is a prerequisite to a constitutionally proper search and seizure. Id. (citing
Halsema v. State, 823 N.E.2d 668, 676 (Ind. 2005)). When a search is conducted without
a warrant, the State has the burden of proving that an exception to the warrant
requirement existed at the time of the search. Malone v. State, 882 N.E.2d 784, 786 (Ind.
Ct. App. 2008). One such exception is that a police officer may briefly detain a person
for investigatory purposes without a warrant or probable cause if, based upon specific and
articulable facts together with rational inferences from those facts, the official intrusion is
reasonably warranted, and the officer has reasonable suspicion that criminal activity
“may be afoot.” Moultry v. State, 808 N.E.2d 168, 170–71 (Ind. Ct. App. 2004) (citing
Terry v. Ohio, 392 U.S. 1, 21–22 (1968)).
“Reasonable suspicion is a somewhat abstract concept, not readily reduced to a
neat set of legal rules.” L.W. v. State, 926 N.E.2d 52, 55 (Ind. Ct. App. 2010) (internal
quotations omitted). When making a reasonable suspicion determination, reviewing
courts examine the totality of the circumstances of the case to see whether the detaining
officer had a particularized and objective basis for suspecting legal wrongdoing. Id. The
reasonable suspicion requirement is met where the facts known to the officer, together
with the reasonable inferences arising from such facts, would cause an ordinarily prudent
person to believe criminal activity has occurred or is about to occur. Id. It is well settled
that reasonable suspicion must be comprised of more than an officer’s general hunches or
unparticularized suspicions. Id.
Here, Officer Mann received a dispatch, which specifically named D.M. and
reported that he could be located at an exact address, 556 North Parker Avenue, and that
6
he had been showing off a small, .25 caliber handgun that has been stolen in a recent
burglary. The dispatch included a physical description of D.M and stated that the
information had been provided by Betts, the victim of the burglary. When Officer Mann
arrived at the address, he came in contact with several individuals in the front yard area
of the residence and inquired as to whether any of them had seen D.M. or whether D.M.
was at the address. The individuals all replied in the negative. Officer Mann then
requested consent to search the house from Jenkins, one of residents, which was granted.
The officer asked Jenkins to escort him through the house, and when she took him to the
second floor, she looked down the hall and said, “[D.M.,] the police want you.” Tr. at 5.
D.M., who matched the description received from dispatch, walked toward Officer Mann.
After securing D.M., Officer Mann asked and received D.M.’s verbal confirmation of his
identity. Officer Mann escorted D.M. downstairs and gave him to Officer Allison, who
performed a pat down search of D.M. for officer safety. During this pat down search,
Officer Allison discovered a small, silver and black, .25 caliber semi-automatic handgun.
D.M. argues that the officers did not have reasonable suspicion to stop him and
perform a pat down search because the information they relied upon came from an
anonymous tip. However, the tip the officers received was not anonymous; it was
provided by Betts, who was the victim of a burglary and who believed that D.M. was in
possession of her handgun, which had been stolen during the burglary. Although nothing
in the record indicated how Betts received this information, we believe that her tip was
sufficiently reliable, and the stop was warranted.
“The United States Supreme Court . . . has indicated that while a tip from an
7
identified or known informant may not be sufficient to support a probable cause finding,
such tips are sufficiently reliable to justify an investigatory Terry stop.” Kellems v. State,
842 N.E.2d 352, 355 (Ind. 2006) (citing Alabama v. White, 496 U.S. 325, 330 (1990) and
Adams v. Williams, 407 U.S. 143, 146–47 (1972)), reh’g granted on other grounds. The
Supreme Court has also concluded that tips from identified informants are sufficient to
constitute reasonable suspicion to support an investigatory stop because a known or
identified informant’s “reputation can be assessed and . . . [they may] be held responsible
if [their] allegations turn out to be fabricated . . . .” Id. (quoting Florida v. J.L., 529 U.S.
266, 270 (2000)). In Kellems, our Supreme Court held that while a tip made by a so-
called “concerned citizen” has greater indicia of reliability than that made by a
professional informant, the ultimate test is “one of the totality of the circumstances.” Id.
at 356. And while a concerned citizen who has identified herself makes herself
susceptible to prosecution for false reporting, which “heightens the likelihood of the
report’s reliability,” that is only one factor “bearing on the reasonableness of suspicion.”
Id. at 355–56.
In the present case, the police dispatch was based on information supplied by
Betts, who was a concerned citizen and crime victim. Because she had previously been
the victim of a crime, a police report had been created that contained the details of the
burglary and identifying information of Betts, including presumably her name and
address. Therefore, the police were privy to evidence that verified both Betts’s identity
and her reliability. Such evidence identified Betts in such a way that could place her
credibility at risk and subject her to criminal penalties. Further, Betts provided an
8
accurate description of D.M., as well as his name and the exact address at which he was
located, all of which lent additional credibility to the information given to dispatch and
allowed the police to corroborate her information independently. Therefore, we conclude
that the tip provided by Betts was sufficient to provide the police with reasonable
suspicion to conduct an investigatory stop of D.M.
Additionally, the pat down search conducted on D.M. was supported by
reasonable suspicion. Terry permits an officer “‘to conduct a limited search of the
individual’s outer clothing for weapons if the officer reasonably believes the individual is
armed and dangerous.’” Willis v. State, 907 N.E.2d 541, 547 (Ind. Ct. App. 2009)
(quoting Howard v. State, 862 N.E.2d 1208, 1210 (Ind. Ct. App. 2007)). Here, the
dispatch contained information that D.M. was showing off a .25 caliber handgun that had
been stolen during a burglary. It was therefore reasonable for the officers to suspect that
D.M., who matched the description given in the dispatch and had verbally identified
himself as D.M., could have a weapon in his possession. Based on the totality of the
circumstances of this case, we conclude that reasonable suspicion to justify an
investigatory stop and pat down search existed. The juvenile court did not abuse its
discretion when it admitted the handgun discovered by police during a pat down search of
D.M.
Affirmed.
BARNES, J., and BRADFORD, J., concur.
9
D.M. v. State of Indiana
Combined Opinion