Mar 11 2015, 6:46 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Gregory F. Zoeller
Michelle C. Langdon, Certified Legal Intern Attorney General of Indiana
Indianapolis, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.Y., March 11, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A02-1405-JV-298
v. Appeal from the Marion Superior
Court
State of Indiana, Lower Court Cause No.
49D09-1402-JD-339
Appellee-Plaintiff
The Honorable Marilyn Moores,
Judge
The Honorable Geoffrey Gaither,
Magistrate
Pyle, Judge
Statement of the Case
[1] Defendant/Appellant, D.Y., appeals his adjudication as a delinquent child,
which was based on the juvenile court’s true finding that he had committed
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dangerous possession of a firearm1 and carrying a handgun without a license. 2
D.Y. was a potential suspect in a burglary, and a police officer told him that he
was going to transport him to police headquarters for the burglary investigation.
Prior to putting D.Y. into the police vehicle, the officer patted him down and
discovered a firearm in D.Y.’s jacket. Subsequently, the State filed a petition
alleging that D.Y. was a delinquent child for committing dangerous possession
of a firearm and carrying a handgun without a license, both of which would be
Class A misdemeanors if committed by an adult. D.Y. filed a motion to
suppress the evidence of the firearm, arguing that it was the result of an illegal
search. The juvenile court denied the motion and adjudicated D.Y. a
delinquent child.
[2] On appeal, D.Y. now argues that the juvenile court abused its discretion in
admitting the firearm because it was the result of an unlawful search. He
asserts that the search was unlawful because: (1) it was incident to an unlawful
arrest; (2) it was incident to an unlawful investigatory stop; and (3) the officer
did not have reasonable concerns for safety to justify the search. We conclude
that the juvenile court abused its discretion in admitting the firearm because it
was obtained through a search incident to an unlawful arrest. Because the
evidence of the firearm was an essential element of D.Y.’s charges, we reverse
1
IND. CODE § 35-47-10-5.
2
I.C. § 35-47-2-1.
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and remand to the juvenile court with instructions to vacate its true findings and
D.Y.’s adjudication as a delinquent child.
[3] We reverse and remand with instructions.
Issue
[4] Whether the juvenile court abused its discretion when it admitted evidence of a
firearm found in D.Y.’s pocket during a pat down.
Facts3
[5] On February 17, 2014, Officer Sydney McDaniel (“Officer McDaniel”) of the
Indianapolis Metropolitan Police Department (“IMPD”) was dispatched to the
scene of a disturbance near 12th Street and Concord Street in Indianapolis.
When he arrived, he found two males confronting a juvenile, A.I., about a
burglary that they believed he had committed the previous month (“First
Burglary”). Another male, Brian Smith (“Smith”), was also at the scene and
was confronting A.I. about a separate burglary of his house that had occurred
the prior weekend (“Second Burglary”). Officer McDaniel questioned the three
alleged victims and, based on the information they gave him, detained A.I. and
transported him to the police department’s roll call for questioning. Officer
3
We held an oral argument in this case on February 11, 2015 in the Court of Appeals Courtroom. We thank
counsel for their preparation and presentation.
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McDaniel then followed Smith to his house to make a report of the Second
Burglary.
[6] At Smith’s house, Smith told Officer McDaniel that he and his wife had gone
on a short vacation the previous weekend. When they returned, they found
that someone had kicked in their back door and ripped the plastic that had been
over the door. They also discovered that Smith’s big screen television and
Xbox were missing, although a broken Xbox in another room was still there.
Smith told Officer McDaniel that he suspected that A.I., D.Y., and/or one
other individual had been involved in the burglary because they had frequently
played video games at his house and knew which Xbox was broken.4
[7] Officer McDaniel made a report of the burglary and called IMPD Detective
Mark Howard (“Detective Howard”), who also came to the scene and spoke to
the Smiths. Afterwards, both officers left Smith’s house, and Detective Howard
returned to the IMPD’s southwest district headquarters. There, another
detective contacted Detective Howard and told him that there was a possibility
that D.Y. was also a suspect in the First Burglary. However, Detective Howard
never communicated this information to Officer McDaniel.
[8] Later that day, Officer McDaniel received a dispatch that Smith’s wife had
called to say that D.Y. was on the way to Smith’s house to talk to Smith about
4
Officer McDaniel also testified that D.Y. had known that Smith was going to be out of town for the
weekend. Later, however, Smith himself testified that D.Y. “might have known” he was going to be out of
town, but he could not remember. (Tr. 53).
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his suspicions. Officer McDaniel called Detective Howard with the
information, and Detective Howard told Officer McDaniel to “detain” D.Y.
and bring him into roll call so that he could give a statement. (Tr. 24).
[9] When Officer McDaniel arrived at Smith’s house, Smith and D.Y. were sitting
on the couch talking. Officer McDaniel explained to D.Y. “why it [was] that
[he] was there and that [he] would be transporting [D.Y.] to [IMPD’s] district
roll call for some burglary investigation that he was a possible suspect in.” (Tr.
38). Officer McDaniel then “told [D.Y.] that [he] would have to search him to
put him in [the] police vehicle so that he could be transported.” (Tr. 38).
Thereafter, Officer McDaniel conducted a pat down search of D.Y. and found a
gun in his jacket pocket.5 Because Officer McDaniel was aware that D.Y. was
under the age of eighteen, he secured the weapon, placed D.Y. in handcuffs,
and transported him to the police headquarters.
[10] The next day, on February 18, 2014, the State filed a petition alleging that
sixteen-year-old D.Y. was a delinquent child for committing one count of
dangerous possession of a firearm and one count of carrying a handgun without
a license, both of which would have been Class A misdemeanors if committed
5
The record revealed that the gun was not loaded.
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by an adult. Subsequently, D.Y. moved to suppress the evidence of the firearm
that Officer McDaniel had found as a result of his pat down.6
[11] On March 13, 2014, the juvenile court held a denial and suppression hearing
concerning the State’s petition and D.Y.’s motion to suppress. During the
hearing, D.Y. argued that Officer McDaniel’s pat down had violated his
constitutional rights under the United States and Indiana constitutions and that,
as a result, the juvenile court should suppress the firearm discovered during the
search. The State argued that the pat down did not violate D.Y.’s
constitutional rights because Officer McDaniel had probable cause or
reasonable suspicion that D.Y. had committed a burglary, as well as reasonable
concerns for his safety. D.Y. disputed each of these arguments. Ultimately, the
juvenile court denied D.Y.’s motion to suppress and entered a true finding on
both of D.Y.’s charges, thereby adjudicating him a delinquent child. On April
3, 2014, the court held a dispositional hearing and placed D.Y. on probation to
last until July 31, 2014, for the dangerous possession of a firearm finding. The
juvenile court dismissed the finding of carrying a handgun without a license.
D.Y. now appeals.
6
There is no evidence of a written or oral motion to suppress evidence in the record, but it is clear from the
transcript of the suppression hearing that D.Y. filed such a motion prior to the hearing.
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Decision
[12] On appeal, D.Y. argues that the juvenile court abused its discretion when it
admitted the evidence of the firearm because the firearm was obtained pursuant
to an illegal search. He asserts that the search was illegal because Officer
McDaniel arrested him without a warrant or probable cause and, thus, the
subsequent search violated his right to be free from search and seizure under the
United States and Indiana constitutions. Alternately, D.Y. argues that, even if
Officer McDaniel’s actions did not constitute a seizure or arrest, Officer
McDaniel still conducted an investigatory stop without reasonable suspicion
that he had committed a burglary. Finally, D.Y. contends that, even if Officer
McDaniel had reasonable suspicion to conduct the stop, the officer could not
justify his pat down of D.Y. based on concerns for officer safety because he did
not have a reasonable fear of danger.
[13] Preliminarily, we note that the juvenile court here held a hearing on D.Y.’s
motion to suppress in conjunction with his denial hearing and ruled on the
matter as a question of admissibility. We review a ruling concerning the
admissibility of evidence for an abuse of discretion. S.G. v. State, 956 N.E.2d
668, 674 (Ind. Ct. App. 2011), trans. denied. We will find that a juvenile court
has abused its discretion only when its decision is clearly against the logic and
effect of the facts and circumstances before it. Holbert v. State, 996 N.E.2d 396,
399 (Ind. Ct. App. 2013), trans. denied. In making this determination, we
cannot reweigh the evidence or judge witness credibility, and we must consider
conflicting evidence in the light most favorable to the juvenile court’s ruling.
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Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied.
Further, it is well-settled that when reviewing the constitutionality of a search or
seizure, we must examine “‘any uncontested evidence favorable to the
appellant.’” Id. (quoting Fair v. State, 627 N.E.2d 427, 434 (Ind. 1993)).
“‘Although a trial court’s determination of historical facts is entitled to
deferential review, we employ a de novo standard when reviewing the trial
court’s ultimate determinations of reasonable suspicion and probable cause.’”
Id. (quoting Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans.
denied).
[14] The Fourth Amendment to the United States Constitution protects both privacy
and possessory interests by prohibiting unreasonable searches and seizures. 7
N.W. v. State, 834 N.E.2d 159, 161-62 (Ind. Ct. App. 2005), trans. denied. As a
general rule, the Fourth Amendment prohibits warrantless searches. Id. at 162.
However, the warrant requirement of the Fourth Amendment is subject to a
few well-delineated exceptions. Johnson v. State, 710 N.E.2d 925, 927 (Ind. Ct.
App. 1999). 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. Holbert, 996 N.E.2d at 399. Generally speaking, we must
exclude evidence directly obtained via an illegal search under the fruit of the
poisonous tree doctrine. Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013).
7
It is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Id.
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[15] Here, the State argues that an exception to the warrant requirement existed at
the time of the search because Officer McDaniel had reasonable suspicion to
conduct an investigatory stop of D.Y., as well as reasonable concerns for his
safety to justify a pat down search. In support of this argument, the State cites
our precedent that, in the case of a lawful investigatory stop, an officer may
conduct a
[r]easonable 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.
Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001) (quoting Terry, 392 U.S. 1, 27
(1968)). In response, D.Y. argues that Officer McDaniel’s stop was so intrusive
that it constituted a “seizure”, or arrest, without probable cause or a warrant,
rather than a lawful investigatory stop. The State acknowledges that Officer
McDaniel did not have probable cause or a warrant to arrest D.Y., so we must
first determine whether Officer McDaniel’s stop of D.Y. constituted an
investigatory stop or an arrest.
[16] Under the Fourth Amendment, a full-blown arrest or a detention that lasts for
more than a short period must be justified by probable cause. Reinhart v. State,
930 N.E.2d 42, 45 (Ind. Ct. App. 2010). However, the United States Supreme
Court held in Terry, that an officer may make a brief investigatory stop without
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probable cause if the officer has a reasonable suspicion that the person detained
is involved in criminal activity. 392 U.S. at 88. A Terry stop is a lesser
intrusion than an arrest, and the scope of an investigatory stop accordingly
involves only “‘inquiry necessary to confirm or dispel the officer’s suspicions.’”
Reinhart, 930 N.E.2d at 46 (quoting Hardister v. State, 849 N.E.2d 563, 570 (Ind.
2006)). A Terry stop may qualify as an arrest if it becomes so intrusive that it
“‘interrupts the freedom of the accused and restricts his liberty of movement.’”
Id. (quoting Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996)) (explaining the
difference between an investigative stop and an arrest).
[17] There is no “‘bright line’” test for evaluating whether a stop is investigatory in
nature or an arrest, and we have held that “‘common sense and ordinary
human experience must govern over rigid criteria.’” Id. (quoting Mitchell v.
State, 745 N.E.2d 775, 782 (Ind. 2001)). In Terry, the United States Supreme
Court suggested that a person has been “seized”, or arrested, for Fourth
Amendment purposes only when “the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a citizen.” 392
U.S. at 19, n.16. In U.S. v. Mendenhall, 446 U.S. 544, 554 (1980), the Supreme
Court adhered to this standard, but added that “a person has been ‘seized’
within the meaning of the Fourth Amendment only if, in view of all of the
circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” The Court gave examples of situations
in which a reasonable person may not feel free to leave, including where there
has been “the threatening presence of several officers, the display of a weapon
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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 requests
might be compelled.” Id. The Court also indicated that factors such as age,
race, lack of education, and gender might be relevant, although not dispositive,
to determining whether a reasonable person would feel free to leave. Id. at 558
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).
[18] D.Y. compares the instant case to Dunaway v. New York, 442 U.S. 200 (1979),
where the United States Supreme Court held that police officers had “seized” a
murder suspect when they transported him to police headquarters in a police
car without probable cause to arrest him and then placed him into an
interrogation room. In its opinion, the Supreme Court emphasized that
investigatory stops based on Terry are only allowed because the “narrow
intrusions” associated with investigatory stops fall “far short of the kind of
intrusion associated with an arrest.” Id. at 211. The Court reasoned that:
In contrast to the brief and narrowly circumscribed intrusions
involved in [Terry and its progeny], the detention of [Dunaway]
was in important respects indistinguishable from a traditional
arrest. [Dunaway] was not questioned briefly where he was
found. Instead, he was taken from a neighbor's home to a police
car, transported to a police station, and placed in an interrogation
room. He was never informed that he was “free to go”; indeed,
he would have been physically restrained if he had refused to
accompany the officers or had tried to escape their custody. The
application of the Fourth Amendment's requirement of probable
cause does not depend on whether an intrusion of this magnitude
is termed an “arrest” under state law. The mere facts that
[Dunaway] was not told he was under arrest, was not “booked,”
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and would not have had an arrest record if the interrogation had
proved fruitless, while not insignificant for all purposes,
obviously do not make [Dunaway’s] seizure even roughly
analogous to the narrowly defined intrusions involved in Terry
and its progeny. Indeed, any “exception” that could cover a
seizure as intrusive as that in this case would threaten to swallow
the general rule that Fourth Amendment seizures are
“reasonable” only if based on probable cause.
Id. at 212 (internal citations omitted).
[19] Likewise, in Indiana we have found that involuntary transportation to police
headquarters may be a factor in determining whether a seizure has occurred. In
Buckley v. State, 886 N.E.2d 10, 15 (Ind. Ct. App. 2008), this Court concluded
that a seizure had occurred where police officers had transported a murder
suspect involuntarily to the police station and towed his car to a secure facility.
Id. We noted that it was “not a case where a suspect voluntarily appeared at
police headquarters in response to a request from investigators.” Id. Rather,
“Buckley was clearly seized in the constitutional sense when he was taken
involuntarily to the police station and his car was towed.” Id.
[20] In contrast, in Barber v. State, 418 N.E.2d 563 (Ind. Ct. App. 1981), we held that
a police officer had not seized Barber when Barber voluntarily accompanied an
officer to the police station for questioning regarding robberies in the
community. There, we found it significant that:
Barber had previously been arrested twice. He testified that each
time he was arrested he was told he was under arrest,
handcuffed, and physically placed in the rear seat of a police car.
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But when [O]fficer Sorrell drove Barber to the police station to
talk to Captain Mowery, the defendant rode in the front seat of
the squad car without handcuffs. Sorrell was the only officer in
the automobile. The police never touched the defendant’s
person. Defendant Barber also knew [O]fficer Mowery and had
provided him with information about a crime on a previous
occasion.
[21] Id. at 567. Ultimately, we noted that “[w]ere it not for defendant Barber’s
experience with law enforcement and his relationship with Captain Mowery,
we would [have been] drawn to an opposite result” and would have found that
Barber had been seized. Id. However, based on those factors we concluded
that the officers’ actions did not constitute a seizure. Id.
[22] Similarly, in Laster v. State, 918 N.E.2d 428 (Ind. Ct. App. 2009), we found that
a police officer’s actions did not constitute a seizure. There, the officer gave
Laster the option of riding with him or driving himself to the police station, and
Laster opted to ride with the officer. Id. at 433. He rode in the front passenger
seat of the police vehicle and was not restrained in any way. Id. Also, once he
reached the station, the officer interviewed Laster in his personal office rather
than an interrogation room and told him he was free to leave at any time. Id.
We compared the officer’s initial actions to those of the officer in Faris v. State,
901 N.E.2d 1123, 1126 (Ind. Ct. App. 2009), trans. denied, who allowed a
suspect to drive himself to the station separately from the officer and who told
the suspect that he was free to leave at any time. In both Laster and Faris, we
found that the officers’ actions did not lead to a seizure of their respective
suspects.
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[23] Although there is not a bright line standard for determining when an arrest has
occurred, the above cases demonstrate that when a police officer transports a
suspect to a police station, the voluntariness of the transportation may be a
significant factor in determining whether a seizure has occurred. In Buckley,
where the police involuntarily transported Buckley to the police station, we
concluded that a seizure had occurred. In contrast, we found that evidence of
the defendants’ voluntary actions in Barber, Laster, and Faris demonstrated that
the defendants had not been seized for purposes of the Fourth Amendment.
The evidence of voluntary conduct in those cases included: a pre-existing
relationship with law enforcement, a suspect riding in the front seat of the
police vehicle, an officer giving a suspect the option to drive separately, and an
officer telling a defendant he is free to leave at any time.
[24] Here, the State argues that Officer McDaniel merely conducted an investigatory
stop and not an arrest because he intended to question D.Y. but not to take
D.Y. into custody to “answer for a crime.” I.C. § 35-33-1-5 (“Arrest is the
taking of a person into custody, that he may be held to answer for a crime.”).
However, the above cases demonstrate that whether a seizure has occurred is
dependent on whether a reasonable person would believe that “he [is] not free
to leave,” rather than the police officer’s intent.
[25] Instead, when we compare the instant case to the above cases, we conclude that
Officer McDaniel’s actions amounted to a seizure of D.Y. Officer McDaniel
did not ask D.Y. if he would accompany him to the station, and he did not give
him the option to meet at the police station independently. Instead, he
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explained to D.Y. “why it [was] that [he] was there and that [he] would be
transporting [D.Y.] to [IMPD’s] district roll call for some burglary investigation
that he was a possible suspect in.” (Tr. 38). Based on Officer McDaniel’s
language that he “would” be transporting D.Y. to district roll call, a reasonable
person could have concluded that this transport was mandatory, rather than
optional. (Tr. 38). This is especially true in light of D.Y.’s young age, which as
the Supreme Court noted in Mendenhall, was a relevant factor. 446 U.S. at 558.
[26] Because D.Y. was a juvenile, there was no indication that Officer McDaniel
had contacted D.Y.’s parents, and Officer McDaniel did not give any indication
to D.Y. that his transportation to the police station was voluntary, we conclude
that Officer McDaniel did “seize” D.Y., such that he would not have felt free to
leave, even though the transportation did not occur prior to the pat down. Id. at
554. As the State admits that Officer McDaniel did not have probable cause or
a warrant to arrest D.Y., his seizure of D.Y. violated the Fourth Amendment,
and his subsequent pat down was unlawful. Officer McDaniel therefore
discovered the firearm pursuant to an unlawful search, and it was inadmissible
at D.Y.’s hearing. See Clark, 994 N.E.2d at 266 (noting that we must exclude
evidence directly obtained via an illegal search). Because the firearm was an
essential element of D.Y.’s charges, see I.C. §§ 35-47-10-5, 35-47-2-1, we reverse
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and remand with instructions for the juvenile court to vacate its true findings
and D.Y.’s adjudication as a delinquent child.8 See
[27] Reversed and remanded with instructions.
Barnes, J., and May, J., concur.
8
Since we have found that Officer McDaniel violated D.Y.’s rights against unreasonable search and seizure
under the Fourth Amendment by seizing him without probable cause, we need not address the remainder of
D.Y.’s arguments.
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