MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Sep 30 2015, 8:31 am
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
Gary L. Griner Gregory F. Zoeller
Mishawaka, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James H. Gosnell, September 30, 2015
Appellant-Defendant, Court of Appeals Case No.
71A03-1502-CR-47
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth Hurley,
Appellee-Plaintiff Judge
Trial Court Cause No.
71D08-1207-FD-615
Vaidik, Chief Judge.
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Case Summary
[1] James H. Gosnell was convicted of Class D felony operating a motor vehicle
while privileges are suspended as a habitual violator of traffic laws (HTV) and
Class D felony operating a vehicle with a blood-alcohol concentration of at least
.08 with a prior operating while intoxicated (OWI) conviction within the
preceding five years. He now appeals both convictions, arguing that the officer
did not have reasonable suspicion to stop him under the Fourth Amendment of
the United States Constitution or Article 1, Section 11 of the Indiana
Constitution. Finding that the officer had reasonable suspicion to conduct an
investigatory stop based on the concerned-citizen tip, and the circumstances—
an area with a history of burglaries and thefts, and the time of day—we affirm.
Facts and Procedural History
[2] There is a Save-A-Lot grocery store on the corner of Twelfth Street and Byrkit
Avenue in Mishawaka, Indiana. Directly across from Save-A-Lot is a 7-Eleven
gas station that has been the target of armed robbers and shoplifters. Behind
Save-A-Lot, there is a loading dock. Village Green, a mobile-home community
that has reported “quite a few burglaries,” is located behind the loading dock,
across a small grass field. Tr. p. 33.
[3] Julie Williams lives in Village Green. Around 12:30 a.m. on July 6, 2012, she
was on her way home from work, driving her truck on Byrkit Avenue. As she
drove by Save-A-Lot, she noticed a small, black car parked behind the loading
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dock and she saw the dome lights in the car flash on and off multiple times as
the doors were opened and closed. Williams became concerned about the car
and its occupants because there had been “break-ins in Village Green.” Id. at
13. Because it was dark, the store was closed, and there was no obvious reason
for a car to be parked at the loading dock, Williams called the police and pulled
her truck closer to the grass field to continue watching the car until an officer
arrived. While she was waiting, the car started to leave the parking lot.
Williams called the police again and then followed the car in her truck. Id. at
14.
[4] The car was traveling west on Twelfth Street with Williams following in her
truck when Mishawaka Police Department Officer Bruce Faltynski spotted it.
He was heading east on Twelfth Street at the time. Officer Faltynski turned his
car around and fell in line behind Williams’s truck. When the small, black car
turned into a parking lot, Williams drove on and Officer Faltynski confirmed
that the license plate on the car matched the plate number from the dispatcher.
Id. at 20. He then stopped the car to investigate.
[5] Gosnell was driving the small, black car with his wife in the passenger seat and
two minor children in back. The car was in working order and Officer
Faltynski did not see Gosnell violate any traffic rules. Id. at 30. But when
Officer Faltynski asked for Gosnell’s identification, he discovered that Gosnell
did not have a license because he was an HTV. Officer Faltynski asked Gosnell
to step out of the car and, while he was talking with Gosnell about his license,
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he smelled alcohol on Gosnell’s breath. Gosnell admitted to Officer Faltynski
that he had consumed four beers that night.
[6] The State charged Gosnell with Class D felony operating a motor vehicle while
privileges are suspended as an HTV, Class C misdemeanor operating a vehicle
with a blood-alcohol concentration of at least .08, and Class D felony operating
a vehicle with a blood-alcohol concentration of at least .08 with a prior OWI
conviction within the preceding five years. Appellant’s App. p. 7-9.
[7] Gosnell moved to suppress the evidence of his license status and blood-alcohol
concentration, claiming Officer Faltynski did not have reasonable suspicion of
criminal activity when he stopped him. The trial court denied Gosnell’s motion
to suppress and admitted the evidence during trial. A jury found him guilty of
Class D felony operating a motor vehicle while privileges are suspended as an
HTV and Class C misdemeanor operating a vehicle with a blood-alcohol
concentration of at least .08, and he pled guilty to Class D felony operating a
vehicle with a blood-alcohol concentration of at least .08 with a prior OWI
conviction within the preceding five years. The court merged the Class C
misdemeanor for operating a vehicle with a blood-alcohol concentration of at
least .08 with the Class D felony conviction for operating a vehicle with a
blood-alcohol concentration of at least .08 with a prior OWI conviction within
the preceding five years, and sentenced him to concurrent terms of two-and-
one-half years.
[8] Gosnell now appeals.
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Discussion and Decision
[9] Gosnell contends that the trial court erred by admitting evidence resulting from
the Terry stop—specifically, evidence that he was driving with a suspended
license, and that his blood-alcohol concentration was over the legal limit. He
argues that Officer Faltynski lacked reasonable suspicion to stop him and,
therefore, “all evidence obtained following the stop should be suppressed.”
Appellant’s Br. p. 4. He raises this issue under both the Fourth Amendment to
the United States Constitution and Article 1, Section 11 of the Indiana
Constitution.
[10] A trial court’s determination of admissibility of evidence is reviewed for abuse
of discretion and will be reversed only where the decision is clearly against the
logic and effect of the facts and circumstances. Smith v. State, 754 N.E.2d 502,
504 (Ind. 2001). We will not reweigh the evidence, and we consider any
conflicting evidence in favor of the trial court’s ruling. Collins v. State, 822
N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied. However, we must also
consider the uncontested evidence favorable to the defendant. Id.
I. Fourth Amendment
[11] The Fourth Amendment protects people from unreasonable searches and
seizures, and this protection has been extended to state action through the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). These two
constitutional provisions have generally been construed to prohibit warrantless
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searches except in particular circumstances. Berry v. State, 704 N.E.2d 462, 465
(Ind. 1998). And “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.” Id.
[12] One such exception to the warrant requirement is the Terry stop. Police officers
may briefly detain a person for investigatory purposes if they have reasonable
suspicion that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 21-22
(1968). In evaluating the legality of a Terry stop, we consider “the totality of the
circumstances—the whole picture.” United States v. Cortez, 449 U.S. 411, 417
(1981). The reasonable-suspicion requirement is satisfied where the facts
known to the officer at the moment of the stop, together with the reasonable
inferences arising from such facts, would cause an ordinarily prudent person to
believe that criminal activity has occurred or is about to occur. Lyons v. State,
735 N.E.2d 1179, 1183-84 (Ind. Ct. App. 2000), trans. denied; see also Gipson v.
State, 459 N.E.2d 366, 368 (Ind. 1984). “Reasonable suspicion” requires
something “more than an inchoate and unparticularized suspicion or hunch,
but considerably less than proof of wrongdoing by a preponderance of the
evidence.” Francis v. State, 764 N.E.2d 641, 644 (Ind. Ct. App. 2002) (citing
Luster v. State, 578 N.E.2d 740, 743 (Ind. Ct. App. 1991)).
[13] Gosnell argues that Officer Faltynski did not have reasonable suspicion to stop
him because neither the officer nor the tipster, Williams, saw anything illegal,
or anything that would unambiguously suggest criminal activity was afoot.
Appellant’s Br. p. 6-7. But whether the officer or the tipster saw unambiguously
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criminal activity is not the correct question. “The Fourth Amendment does not
require a policeman who lacks the precise level of information necessary for
probable cause to arrest to simply shrug his shoulders and allow a crime to
occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145 (1972).
Therefore, the fact that an action might also have an innocent explanation does
not establish a violation of the Fourth Amendment. Illinois v. Wardlow, 528
U.S. 119, 125 (2000). The conduct in Terry, for example, was “ambiguous and
susceptible of an innocent explanation,” but Terry recognized that, “officers
could detain the individuals to resolve the ambiguity.” Id. The correct question
is whether Officer Faltynski’s “brief stop of [Gosnell], in order to determine his
identity or to maintain the status quo momentarily while obtaining more
information,” was “reasonable in light of the facts known to the officer at the
time.” See id. at 146.
[14] Examining the facts that were available to Officer Faltynski in this case, the
trial court found he had reasonable suspicion that criminal activity was afoot.
Officer Faltynski discussed three reasons why he stopped Gosnell: (1)
Williams’s tip that described unusual, but not illegal, activity behind Save-A-
Lot; (2) Save-A-Lot is positioned between a 7-Eleven, where there have been
“some armed robberies” and thefts, and the Village Green neighborhood, which
has reported “quite a few burglaries”; and (3) it was 12:30 in the morning, the
store was closed, and there was no apparent reason for people to be getting in
and out of a car multiple times behind the loading dock. Tr. p. 32-33.
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[15] First, as for Williams’s tip, “it is well-established in Indiana that a tip from a
concerned citizen may justify an investigatory stop if sufficiently reliable.”
Russell v. State, 993 N.E.2d 1176, 1180 (Ind. Ct. App. 2013). “The reliability of
a concerned citizen tip ‘generally must be established by reference to underlying
facts and circumstances which indicate that the information is trustworthy.’” Id.
(quoting State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011)). Tips from
concerned citizens “will be deemed reliable when an individual provides
specific information to police officers such as a vehicle description.” Renzulli,
958 N.E.2d at 1148 (quoting Bogetti v. State, 723 N.E.2d 876, 879 (Ind. Ct. App.
2000)).
[16] The record reflects multiple indicators that Williams’s tip was sufficiently
reliable to justify an investigatory stop. She provided a description of the small,
black car, which included its license-plate number. Tr. p. 20. She called the
police a second time, when the car began to leave Save-A-Lot, and followed it
herself, providing the police with specific information about the car’s location
and direction of travel. Id. at 15; see also Russell, 993 N.E.2d at 1180 (finding a
tip sufficiently reliable when it was given by a driver who was leading the
suspicious vehicle to a specific location; during a low-traffic time of day; when
the tip included particular information about where the suspect was and how to
identify him; and because the tipster was also present at the scene, rendering
him susceptible to prosecution for false reporting). Finally, it is reasonable to
infer that Williams gave her name when she called the police because the State
was able to call her as a witness. See Renzulli, 958 N.E.2d at 1150 (including the
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fact that the tipster identified himself as a factor in the totality-of-the-
circumstances test for reasonable suspicion). Under these circumstances, we
find that Williams’s tip “provided independent indicia of reliability” sufficient
to permit Officer Faltynski to rely on it in forming his own reasonable suspicion
for a Terry stop. See Russell, 993 N.E.2d at 1180.
[17] Second, Officer Faltynski testified that he knew of “some armed robberies” and
burglaries occurring in the area around Save-A-Lot, even though the store itself
had not previously been burglarized. Tr. p. 33. Gosnell cites Wardlow for the
proposition that, standing alone, the nature of the neighborhood does not justify
an investigatory stop. Appellant’s Br. p. 7. But it is a relevant consideration
that may be taken together with the other facts. Wardlow goes on to say that
“officers are not required to ignore the relevant characteristics of a location in
determining whether the circumstances are sufficiently suspicious to warrant
further investigation.” Wardlow, 528 U.S. at 124. The fact that the stop
occurred in a high-crime area, while not dispositive, is among the relevant
contextual considerations in a Terry analysis. Id.
[18] Finally, it was 12:30 in the morning. The store was closed and dark. The lack
of an obvious reason for a car to be at the loading dock at that hour with its
doors being opened and closed is what prompted Williams to call the police.
She was concerned that the occupants of the small, black car had broken into
the store. Id. at 14.
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[19] Considering all the facts together—the indicia of reliability in Williams’s tip,
the history of crimes in the area, and the time of night—we conclude that
Officer Faltynski had reasonable suspicion of criminal activity based on
articulable facts to support the stop. Therefore, the trial court did not abuse its
discretion in admitting evidence obtained from the stop under the Fourth
Amendment.
II. Article 1, Section 11
[20] Gosnell also argues that the initial stop by Officer Faltynski violated Article 1,
Section 11 of the Indiana Constitution. Article 1, Section 11 is identical to the
Fourth Amendment, but it is analyzed differently. Indiana constitutional
analysis focuses on the reasonableness of police conduct under the totality of
circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). We
determine reasonableness under the Indiana Constitution by balancing “1) the
degree of concern, suspicion, or knowledge that a violation has occurred, 2) the
degree of intrusion the method of search or seizure imposes on the citizen's
ordinary activities, and 3) the extent of law enforcement needs.” Id. at 361.
The State has the burden of proving that the search was reasonable under the
totality of the circumstances. State v. Bulington, 802 N.E.2d 435, 438 (Ind.
2004).
[21] Stopping Gosnell was reasonable under the Indiana Constitution. The degree
of concern or suspicion that a violation occurred was high in this case: a
concerned citizen complained of suspicious activity behind a closed grocery
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store, just after midnight, in a neighborhood where there had been “some
armed robberies” and “quite a few burglaries.” Tr. p. 33. Second, the degree of
intrusion was slight. Officer Faltynski stopped Gosnell, briefly, to ask for his
identification. “A brief stop of a suspicious individual, in order to determine his
identity or to maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts known to the officer at
the time.” McDermott v. State, 877 N.E.2d 467, 473 (Ind. Ct. App. 2007)
(citation omitted) (applying this reasoning to the Indiana constitutional
analysis), trans. denied.
[22] Finally, there is a legitimate need for law enforcement to investigate citizens’
complaints of suspicious activity. Officer Faltynski was investigating
Williams’s concern. In fact, Williams followed the suspect herself because she
was so concerned about the possibility that something illegal had happened.
“[T]he circumstances warranting an immediate response are readily apparent
here.” Bogetti, 723 N.E.2d at 879.
[23] Balancing the high degree of concern, suspicion, or knowledge that a violation
occurred and the needs of law enforcement against the low degree of intrusion,
we conclude that Officer Faltynski had reasonable suspicion under Article 1,
Section 11 to justify stopping Gosnell. Therefore, the trial court did not abuse
its discretion in admitting evidence obtained from the stop under Article 1,
Section 11 of the Indiana Constitution.
[24] Affirmed.
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[25] Robb, J., and Pyle, J., concur.
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