May 13 2015, 10:17 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Elizabeth A. Houdek Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.F., May 13, 2015
Appellant-Respondent, Court of Appeals Case No.
49A02-1408-JV-575
v. Appeal from the Marion Superior
Court; The Honorable Marilyn A.
Moores, Judge; The Honorable
State of Indiana, Geoffrey Gaither, Magistrate;
Appellee-Petitioner. 49D09-1405-JD-1115
May, Judge.
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[1] D.F. appeals his adjudication as a delinquent. He asserts the court erred by
admitting the handgun found inside his sweatshirt because the search of his
sweatshirt violated the Fourth Amendment to the United States Constitution
and Article 1, Section 11 of the Indiana Constitution.
[2] We affirm.
Facts and Procedural History
[3] Around 8:00 p.m. on May 6, 2014, a citizen approached a police officer and
reported “a black male with a black hoodie that had a large black gun with a
long magazine in the park on the bleachers.” (App. at 12.) The officer reported
the information and it was released over dispatch. Officer Adam Mingerink
responded to the dispatch.
[4] As Officer Mingerink approached in his vehicle, he saw D.F. on the bleachers
taking off a black hoodie. D.F. sat down on the bleachers next to the hoodie.
As Officer Mingerink walked toward the bleachers, D.F. began “[s]cooting
away from the sweatshirt.” (Tr. at 7.) Officer Mingerink opened the hoodie
and found a gun.
[5] The State filed a delinquency petition alleging D.F. committed an act that
would, if committed by an adult, be Class A misdemeanor dangerous
possession of a firearm1 and Class A misdemeanor carrying a handgun without
1
Ind. Code § 35-47-10-5.
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a license.2 D.F. objected to the admission of the handgun and Officer
Mengerink’s testimony about it. The court overruled the objections and
adjudicated D.F. a delinquent.3
Discussion and Decision
[6] We review rulings regarding the admission of evidence for an abuse of
discretion, which occurs “when a decision is clearly against the logic and effect
of the facts and circumstances before the court.” Johnson v. State, 992 N.E.2d
955, 957 (Ind. Ct. App. 2013), trans. denied. We do not reweigh the evidence or
assess the credibility of witnesses. Id. Instead, we “consider conflicting
evidence in a light most favorable to the trial court’s ruling.” Id.
[7] Where admissibility of evidence is challenged based on the constitutionality of
the search that uncovered the evidence, we also consider any uncontested
evidence favorable to the appellant. Id. “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 determination of reasonable suspicion
and probable cause.” Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009)
(italics in original), trans. denied.
In other words, when a trial court has admitted evidence alleged to
have been discovered as the result of an illegal search or seizure, we
2
Ind. Code § 35-47-2-1.
3
D.F. filed a motion to correct error asserting the two true findings subjected him to double jeopardy, and
the court vacated one of them.
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generally will assume the trial court accepted the evidence presented
by the State and will not reweigh that evidence, but we owe no
deference as to whether that evidence established the constitutionality
of a search or seizure.
Johnson, 992 N.E.2d at 957.
1. Fourth Amendment
[8] The Fourth Amendment prohibits unreasonable government searches and
seizures, and its protection extends to brief investigatory stops that fall short of
traditional arrest. C.H. v. State, 15 N.E.3d 1086, 1092 (Ind. Ct. App. 2014),
trans. denied. 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,
992 N.E.2d at 958. 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 (1968).
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[9] Officer Mingerink responded to a report of a black male in a black sweatshirt
who was on the bleachers in a park and had a gun that “looked like an Uzi like
you saw in the movies. It had the magazine that stuck low out of the gun.”
(Tr. at 6.) He arrived at the park within thirty seconds of receiving the dispatch.
He saw D.F. near the bleachers taking off a black sweatshirt. After removing
the sweatshirt, D.F. sat down on the bleachers next to the sweatshirt. There
were a number of other people in the park at the time, but Officer Mingerink
did not see anyone else who was wearing a black sweatshirt. Several other
juveniles were on the bleachers, which were next to a court where a basketball
game was being played.
[10] In light of Officer Mengerink’s swift arrival on the scene where D.F. was at the
reported location in the reported attire, we cannot say the officer lacked
reasonable suspicion to investigate whether D.F. had a gun. Officer Mengerink
therefore did not violate D.F.’s Fourth Amendment rights when he unfolded
D.F.’s sweatshirt and found a gun. See, e.g., W.H. v. State, 928 N.E.2d 288, 295
(Ind. Ct. App. 2010) (totality of circumstances supported stop of juvenile
believed to be carrying a handgun in a crowded public location), trans. denied.
2. Article 1, Section 11
[11] While Article 1, Section 11 of the Indiana Constitution contains the same
language as the Fourth Amendment, our constitutional analysis is different. Id.
at 298. We “focus on the actions of the police officer and employ a totality-of-
the-circumstances test to evaluate the reasonableness of the officer’s actions.”
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C.H. v. State, 15 N.E.3d 1086, 1093 (Ind. Ct. App. 2014) (quoting Duran v. State,
930 N.E.2d 10, 17 (Ind. 2010)), trans. denied. The State has the burden to
demonstrate the police intrusion was reasonable. C.H., 15 N.E.3d at 1093. To
determine whether an officer’s actions were reasonable under the
circumstances, we must balance “1) the degree of concern, suspicion, or
knowledge that a violation has occurred, 2) the degree of intrusion the method
of the search and seizure imposes on the citizen’s ordinary activities, and 3) the
extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind.
2005). When considering the degree of intrusion, “we consider the nature of
the privacy interest upon which the search intrudes and the character of the
intrusion itself.” C.H., 15 N.E.3d at 1093 (quoting Chest v. State, 922 N.E.2d
621, 624 (Ind. Ct. App. 2009)).
[12] The degree of suspicion was high as a citizen had reported the handgun in a
face-to-face conversation with a police officer just moments before Officer
Mengerink arrived at the scene and found D.F., who matched the citizen’s
description. Second, the intrusion into D.F.’s privacy was minimal, as Officer
Mengerink needed only to unfold the sweatshirt. Finally, the extent of law
enforcement needs was high because police had reason to believe a teenager
had a handgun in a public park where others were present. Officer Mengerink’s
actions were reasonable under the circumstances and did not violate D.F.’s
right under Article 1, Section 11 of the Indiana Constitution. See, e.g., W.H.,
928 N.E.2d at 297 (search did not violate state constitutional rights when police
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were concerned juvenile had handgun, when stop was brief and unintrusive,
and when law enforcement needed to maintain safety of crowd).
Conclusion
[13] Finding no error in the admission of the handgun under either the Fourth
Amendment or Article 1, Section 11, we affirm D.F.’s adjudication as a
delinquent.
[14] Affirmed.
Robb, J., and Mathias, J., concur.
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