Feb 09 2016, 8:13 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicole Miller, February 9, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1507-CR-789
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jose D. Salinas,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G14-1405-FD-25893
Baker, Judge.
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[1] Nicole Miller appeals the trial court’s interlocutory order denying her motion to
suppress evidence. A police officer, responding to a call of a “disturbance” but
lacking probable cause or reasonable suspicion of any criminal activity, asked
Miller to speak with him. When she instead walked away, she was arrested for
resisting law enforcement. Reasserting the principles of Gaddie v. State, 10
N.E.3d 1249 (Ind. 2014), we find that this arrest violated Miller’s well-
established right to walk away; consequently, the subsequent search incident to
the arrest violated her Fourth Amendment rights. We reverse and remand.
Facts
[2] On May 17, 2014, two Indianapolis police officers received a message over their
radio that a woman was causing a disturbance at a local convenience store. As
the officers arrived at the intersection, they saw a woman—later identified as
Miller—walking across the street away from the store. An employee of the
store came outside and pointed at her. The officers drove toward Miller and
turned on their emergency lights.
[3] By the time the officers pulled up, Miller was approaching the door of an
apartment. One officer exited his vehicle and said, “Hey, I need to talk to
you.” Tr. 10. Miller turned, looked at the officer, ignored him, and entered the
apartment.
[4] The officers went up to the porch of the residence and knocked on the door. A
different woman answered and told the officers that Miller was using the
restroom. Ten to fifteen minutes later, Miller came outside. When asked why
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she did not initially stop to speak with the officer, she said, “I didn’t know what
you wanted to talk to me about.” Tr. 11. The officer immediately placed
Miller under arrest for resisting law enforcement. He patted her down and
found what he believed to be Spice and a single Ecstasy pill.
[5] The other officer then walked back to the convenience store and spoke with the
clerk. The clerk alleged that he and Miller got into an argument over the price
of a soda; he further alleged that Miller became upset and damaged the EBT
card reader. All of this information was relayed to the arresting officer after the
arrest and search had been completed.
[6] On May 18, 2014, Miller was charged with class D felony possession of a
controlled substance, class A misdemeanor criminal mischief, class A
misdemeanor possession of a synthetic drug or synthetic drug lookalike, and
class A misdemeanor resisting law enforcement. On March 18, 2015, Miller
filed a motion to suppress the evidence found on her person, arguing that it was
the product of an unconstitutional search. After an April 21, 2015, hearing, the
trial court denied the motion, but certified the order for interlocutory appeal.
We granted Miller’s motion for interlocutory appeal.
Discussion and Decision
[7] We review a trial court’s decision regarding the admission of evidence for an
abuse of discretion. Smith v. State, 889 N.E.2d 836, 839 (Ind. Ct. App. 2008).
An abuse of discretion occurs when the decision is clearly against the logic and
effect of the facts before the trial court. Figures v. State, 920 N.E.2d 267, 271
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(Ind. Ct. App. 2010). We consider any uncontested evidence favorable to the
defendant, but we will not reweigh the evidence and will resolve any conflicts in
the evidence in favor of the trial court’s ruling. Widduck v. State, 861 N.E.2d
1267, 1269 (Ind. Ct. App. 2007). We conduct a de novo review of a trial court’s
ruling on the constitutionality of a search or seizure. Belvedere v. State, 889
N.E.2d 286, 287 (Ind. 2008).
[8] Miller claims that the officers did not have probable cause to arrest her, and that
therefore the subsequent search violated her Fourth Amendment rights. The
Fourth Amendment to the United States Constitution protects “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. . . .” Typically, any search conducted
without a warrant is unreasonable unless it falls within a “few specifically
established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,
357 (1967). One recognized exception is the search incident to arrest, Edwards
v. State, 759 N.E.2d 626, 629 (Ind. 2001); but for a search incident to arrest to be
valid, the initial arrest must be lawful. Jones v. State, 467 N.E.2d 1236, 1239
(Ind. Ct. App. 1984). An arrest is lawful if it is supported by probable cause.
K.K. v. State, 40 N.E.3d 488, 491 (Ind. Ct. App. 2015).
[9] We make two initial observations. First, Miller’s arrest cannot be legitimized
by her activities in the convenience store. At the time of her arrest, the officers
only had a report of a “disturbance,” coupled with the clerk pointing at Miller.
Our Supreme Court has explained that “a report of a disturbance, without
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more, is not a sufficient basis upon which to conduct an investigatory stop,”
much less an arrest. Gaddie v. State, 10 N.E.3d 1249, 1255 (Ind. 2014).
[10] Second, Miller’s arrest cannot be legitimized by her jaywalking. It is true that
Indianapolis-Marion County Municipal Code section 441-108(a) requires
pedestrians to cross streets at intersections; that Indiana Code section 34-28-5-
3(a) permits officers to detain violators of municipal codes in order to identify
the person and inform her of the allegation; and that those who refuse to
provide information to an officer who has stopped them for an ordinance
violation commit a class C misdemeanor. I.C. § 34-28-5-3.5(1). But there is no
evidence in the record that Miller refused to give the officers information, or
that she was informed of the alleged violation. The undisputed evidence shows
that the officer asked Miller why she did not stop, she answered, and then she
was immediately placed under arrest.
[11] We are left with the rationale on which the trial court relied: that the officer had
probable cause to believe that Miller had committed the crime of resisting law
enforcement by fleeing.1 That crime can be divided into three elements: (1)
Miller knowingly fled; (2) from a law enforcement officer who had identified
1
The State has not argued, at the trial or appellate level, that the doctrine of inevitable discovery applies. See
Nix v. Williams, 467 U.S. 431, 443-44 (1984). If the officers had spoken with the clerk before arresting Miller,
they might have obtained probable cause to arrest Miller for criminal mischief, in which case they perhaps
would have found the evidence at issue. We note, however, that the burden is on the State to prove that this
exception to the warrant requirement applies. Clark v. State, 994 N.E.2d 252, 272 (Ind. 2013). As the State
has not argued, much less proved, that this exception applies, the doctrine of inevitable discovery cannot be a
basis to admit the evidence at issue.
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himself or herself; (3) after that officer ordered the person to stop. Ind. Code §
35-44.1-3-1.
[12] The parties argue over whether the officer’s statement, “Hey, I need to talk to
you,” along with his flashing emergency lights, constituted an order to stop.
We find these arguments to be beside the point; following our Supreme Court’s
decision in Gaddie, we believe that even if Miller had disobeyed a direct and
unambiguous order from the officer to stop, she could not be subjected to an
arrest or a search based solely on her failure to obey the order.
[13] Prior to Gaddie, some appellate decisions upheld convictions for resisting law
enforcement even where the police had no basis to order the defendant to stop.
See, e.g., Cole v. State, 878 N.E.2d 882, 886 (Ind. Ct. App. 2007) (“we do not
even need to decide whether Officer Decker had reasonable suspicion to stop
Cole because Cole had no right to flee from . . . Officer Decker”); Daindridge v.
State, 810 N.E.2d 746, 749 (Ind. Ct. App. 2004) (“[i]n Indiana, an individual
may not flee from a police officer who has ordered the person to stop, regardless
of the apparent or ultimate lawfulness of the officer’s order”).
[14] Our Supreme Court abrogated this line of cases, holding that the third element
of the resisting law enforcement by fleeing statute “must be understood to
require that such order to stop rest on probable cause or reasonable suspicion,
that is, specific, articulable facts that would lead the officer to reasonably
suspect that criminal activity is afoot.” Gaddie, 10 N.E.3d at 1255. Anything
less would violate a “person’s well-established freedom to walk away. . . .” Id.
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at 1254. Since that officer lacked probable cause or reasonable suspicion that a
crime other than resisting law enforcement was taking place, Gaddie’s
conviction was vacated. Id. at 1256.
[15] Although the present case comes to us in a different procedural posture—a
motion to suppress evidence rather than a conviction for resisting law
enforcement—we find Gaddie’s rationale to compel a reversal. Our Supreme
Court recognized that a person’s freedom to walk away is rendered illusory if
she is subjected to criminal penalty for exercising that freedom. Just the same,
a person’s freedom to walk away is rendered illusory if she is subjected to arrest
for exercising that freedom.2
[16] If a conviction for resisting law enforcement cannot be sustained, absent
probable cause or reasonable suspicion of criminal activity, without running
afoul of the Fourth Amendment, neither can an arrest. And if such an arrest
cannot be constitutionally sustained, neither can the search incident to that
arrest. 3
2
We emphasize, however, that the freedom to walk away from police is not absolute, and would be limited
by probable cause or reasonable suspicion that criminal activity is afoot, or in certain “community caretaker”
exceptions. See Gaddie, 10 N.E.3d at 1255 n.3. None of these circumstances are present in this case.
3
Because we find that the search violated Miller’s Fourth Amendment rights, we decline to address her
argument regarding the Indiana Constitution as it would be superfluous.
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[17] The judgment of the trial court is reversed and remanded for further
proceedings consistent with this opinion.
Bradford, J., and Pyle, J., concur.
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