Mar 08 2016, 8:20 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tyrone Grayson, March 8, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1505-CR-350
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff Flowers, Judge
The Honorable David M. Seiter,
Commissioner
Trial Court Cause No.
49G20-1402-FB-9085
Mathias, Judge.
[1] Tyrone Grayson (“Grayson”) was convicted in Marion Superior Court of Class
B felony unlawful possession of a firearm by a serious violent felon. He appeals
his conviction and argues that the trial court abused its discretion when it
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admitted into evidence the handgun discovered during a warrantless search of
his vehicle. Specifically, he argues that the officer lacked reasonable suspicion
to conduct a Terry stop because the report of alleged illegal activity was
provided by an anonymous tipster.
Facts and Procedural History
[2] On February 23, 2014, at approximately 5:20 a.m., Indianapolis Metropolitan
Police Department Officer Jonathan Schultz (“Officer Schultz”) responded to a
dispatch that an anonymous caller reported a person inside a silver or gray
vehicle waving a firearm at Washington Point Apartments. When Officer
Schultz arrived at the apartment complex, he saw a silver vehicle with its
headlights off parked perpendicular to the parking spots. As the officer pulled
into the parking lot and was driving toward the vehicle, the vehicle pulled into a
parking space. The officer did not see any other silver or gray occupied vehicles
in the parking lot.
[3] Officer Schultz activated his rear emergency lights and parked his vehicle at an
“angle towards where he was parked at, off to the side.”1 Tr. p. 71. Then the
officer, who was in full uniform and carrying a flashlight, approached the
driver’s side of the vehicle. The driver identified himself as Grayson. Officer
1
At the suppression hearing, Grayson’s passenger testified that Officer Schultz parked his vehicle “like at a
cattycorner position” from behind. While the testimony is unclear, no one testified that Officer Shultz’s
vehicle prevented Grayson from backing his vehicle out of its parking space. Tr. pp. 94, 97.
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Schultz asked Grayson if he lived at the apartment complex, and Grayson
stated that he did not but that his passenger did.
[4] Next, Officer Schultz mentioned the dispatch about a person waving a gun. As
he continued his conversation with Grayson, through the open driver’s side
window, Officer Schultz observed the butt of a firearm underneath the driver’s
seat between Grayson’s feet. Officer Shultz asked if any firearms were in the
vehicle, and Grayson stated that there were not, a statement that was clearly a
lie, based on Officer Schultz’s personal observation.
[5] At about this time, Officer Michael Wagner-Gilbert (“Officer Wagner-Gilbert”)
who also responded to the dispatch, arrived on the scene and approached the
passenger side of the vehicle. Officer Schultz then asked Grayson to step out of
the vehicle. He asked Grayson if he had a permit to carry a firearm, and
Grayson replied that he did not.
[6] Officer Schultz asked if he could look through the vehicle, and Grayson gave
the officers permission to search. Officer Schultz placed Grayson in handcuffs
and walked him to the rear of the vehicle. Officer Wagner-Gilbert looked into
the driver’s side of the vehicle and, like Officer Schultz, Officer Wagner-Gilbert
saw the butt of the firearm underneath the driver’s seat. Officer Wagner-Gilbert
removed the firearm from the vehicle and placed it in an evidence bag. After he
determined that Grayson had prior felony convictions, Officer Schultz arrested
Grayson for unlawful possession of a firearm by a serious violent felon. The
passenger in Grayson’s vehicle was released at the scene.
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[7] Grayson was subsequently charged with Class B felony unlawful possession of
a firearm by a serious violent felon.2 Prior to trial, Grayson filed a motion to
suppress the firearm found during the warrantless search. A hearing was held
on the motion on August 6, 2014. In his post-hearing memorandum, Grayson
claimed that the officer lacked reasonable suspicion to conduct a Terry stop and
that he was not advised of his Pirtle rights before the vehicle was searched. In its
response to Grayson’s arguments, the State conceded that Grayson was in
custody when Officer Schultz “pulled his marked police vehicle up behind the
silver vehicle that Grayson was operating.” Appellant’s App. p. 49. However,
the court concluded that the officer had reasonable suspicion to believe criminal
activity had occurred, and Pirtle warnings were not necessary because Officer
Schultz had probable cause to search the vehicle after seeing the handgun
between Grayson’s feet. Id. at 49-50.
[8] Grayson’s bench trial was held on March 11, 2015. Grayson objected to the
admission of the firearm for the reasons raised in the motion to suppress, and
he also argued that the investigatory stop was unreasonable because it was
based solely on an anonymous tip. Specifically, Grayson argued that the
anonymous caller only reported a person waving a gun in a silver vehicle at the
apartment complex and did not provide his or her name or address. The trial
court overruled the objection and found Grayson guilty of Class B felony
2
During the search incident to arrest, cocaine was found on Grayson’s person. He was also charged with
Class C felony possession of cocaine and a firearm. This count was dismissed at trial.
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unlawful possession of a firearm by a serious violent felon. The trial court
ordered him to serve twelve years executed in the Department of Correction.
Grayson now appeals.3
Standard of Review
[9] Although Grayson filed a pre-trial motion to suppress, because he appeals
following a completed trial, the issue is properly framed as whether the trial
court abused its discretion in admitting the evidence. Clark v. State, 994 N.E.2d
252, 259 (Ind. 2013). The admission of evidence is within the discretion of the
trial court. Id. at 259-60. We will reverse a ruling on the admission of evidence
only for an abuse of that discretion, which occurs only when the ruling is
clearly against the logic and effect of the facts and circumstances and the error
affects a party's substantial rights. Id. at 260.
Discussion and Decision
[10] The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons . . . against unreasonable searches and seizures.”4 “Encounters
between law enforcement officers and public citizens take a variety of forms,
some of which do not implicate the protections of the Fourth Amendment and
some of which do.” Id. at 261. Consensual encounters in which a citizen
3
On February 11, 2016, we held oral argument in this case at the Indiana University Robert H. McKinney
School of Law. We commend counsel for the quality of their advocacy and extend our thanks to the faculty,
especially Professor Schumm, to the students, and to staff for their hospitality.
4
Grayson does not challenge the stop under Article One, Section Eleven of the Indiana Constitution.
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voluntarily interacts with a police officer do not compel Fourth Amendment
analysis. Id. Nonconsensual encounters typically fall into two categories. Id.
The first is a full arrest, which requires probable cause. Id. The second is a brief
investigative stop, which requires a lower standard of reasonable suspicion. Id.
[11] Specifically, law enforcement officers may stop and briefly detain a person if the
officer has reasonable suspicion to believe that criminal activity has occurred or
is about to occur or that “‘criminal activity may be afoot.’” Holly v. State, 918
N.E.2d 323, 325 (Ind. 2009) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
Specifically, in Terry the United States Supreme Court held:
where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal
activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous, where in the
course of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in
the initial stages of the encounter serves to dispel his reasonable
fear for his own or others’ safety, he is entitled for the protection
of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.
392 U.S. at 30.
[12] However, “‘[s]uch reasonable suspicion must be comprised of more than
hunches or unparticularized suspicions.”’ Clark, 994 N.E.2d at 263 (quoting
State v. Murray, 837 N.E.2d 223, 225-26 (Ind. Ct. App. 2005), trans. denied).
Taking into account the totality of the circumstances or the whole picture, the
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detaining officers must have a particularized and objective basis for suspecting
the particular person stopped of criminal activity. Id. at 264. In making this
determination, we must examine the facts as known to the officer at the
moment of the stop. Id. Findings of reasonable suspicion are reviewed de novo,
and this is necessarily a fact-sensitive inquiry. Id.
[13] Grayson argues that the trial court abused its discretion when it admitted the
firearm into evidence because the officers lacked reasonable suspicion to
conduct a Terry stop.5 Specifically, he argues that the anonymous tip did not
provide any details beyond what the general public might observe and that
Officer Schultz’s observations did not corroborate the anonymous tip.
[14] “[A]n anonymous tip alone is not likely to constitute the reasonable suspicion
necessary for a valid Terry stop.” Sellmer v. State, 842 N.E.2d 358, 361 (Ind.
2006). The United States Supreme Court has similarly concluded that an
“anonymous tip alone seldom demonstrates the informant’s basis of knowledge
or veracity,” but “there are situations in which an anonymous tip, suitably
corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable
suspicion to make the investigatory stop.’” Florida v. J.L., 529 U.S. 266, 270
(2000) (citation omitted).
[15] In the case before us, the anonymous tipster reported a person inside a silver or
5
The State does not argue that the encounter was consensual but refers to it as an investigatory stop
throughout its brief.
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gray vehicle at Washington Point Apartments waving a firearm. Certain details
provided by the anonymous tipster were corroborated by Officer Schultz. When
he arrived at Washington Point Apartments shortly after he heard the dispatch,
the officer observed a silver or gray vehicle with its headlights off parked
perpendicular to the parking spots. As the officer pulled into the parking lot and
was driving toward the vehicle, the vehicle pulled into a parking space. The
officer did not see any other occupied silver or gray vehicles in the dark parking
lot at 5:20 a.m. A reasonable inference can be made that vehicular traffic was
minimal given the time of day.
[16] When we consider the reasonableness of this investigatory stop, we “must strike
‘a balance between the public interest and the individual’s right to personal
security free from arbitrary interference by law [enforcement] officers.’” Rutledge
v. State, 28 N.E.3d 281, 290 (Ind. Ct. App. 2015) (quoting Carter v. State, 692
N.E.2d 464, 466 (Ind. Ct. App. 1997) (quoting Brown v. Texas, 443 U.S. 47, 50
(1979))). Protecting the public from gun violence is a legitimate and paramount
concern of law enforcement, and the State is legitimately concerned with
deterring gun violence and possession of firearms by unlicensed individuals.
These concerns and the danger of the allegations of the anonymous tipster
warranted an immediate response by law enforcement officers for the safety of
the general public.
[17] Here, Officer Schultz responded immediately to a dispatch involving an
individual “waving a gun” just before dawn, while it was still dark. Cf. State v.
Renzulli, 958 N.E.2d 1143, 1148 (Ind. 2011) (observing that the concerned
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citizen reported a drunk driver, which warranted an “immediate response by
the police for the safety of the general public”). Officer Schultz parked his
vehicle near and at an angle to Grayson’s, turned on the vehicle’s rear
emergency lights, and approached Grayson’s vehicle in full uniform, armed,
and using a flashlight, in order to ask Grayson a few questions based on the
anonymous tip. This is reasonable, appropriate, and laudable community
policing, the type of law enforcement activity that is consistent with the balance
citizens want struck between personal independence and personal safety. See
R.H. v. State, 916 N.E.2d 260, 268 (Ind. Ct. App. 2009) (stating “[a] healthy,
civil society is most robust when it feels safe and when that feeling of safety is
validated through interaction with vigilant and responsive law enforcement
engaged in the important business of policing neighborhoods within a
community”) (Mathias, J., concurring), trans. denied.
[18] Grayson relies on Florida v. J.L., 529 U.S. 266 (2000), in support of his
argument that the anonymous tip was not sufficiently corroborated by Officer
Schultz, and therefore, the officer lacked reasonable suspicion to make an
investigatory stop. In J.L., an anonymous caller reported that a young black
male wearing a plaid shirt and standing at a particular bus stop was carrying a
gun. When Miami police officers arrived at the bus stop several minutes later,
they observed three black males, and one of the three, later identified as J.L.,
was wearing a plaid shirt. The officers did not see a firearm or any other
threatening or unusual movement. One of the officers approached J.L., ordered
him to put his hands on the bus stop, frisked him, and seized a gun from his
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pocket. After concluding that the officers lacked reasonable suspicion necessary
to justify a Terry stop, the Supreme Court held that “an anonymous tip lacking
indicia of reliability . . . does not justify a stop and frisk whenever and however
it alleges the illegal possession of a firearm. Id. at 274.
[19] In our case, the tipster alleged that an individual was waving a gun. When the
officer arrived at the apartment complex and approached the vehicle described
in the dispatch, the vehicle slowly moved into a parking spot. Finally, this case
does not involve a stop and frisk. Officer Schultz simply approached the vehicle
and asked Grayson a couple of questions, and while doing so, saw the firearm
in plain sight, belying Grayson’s claims that no weapon was in the car. For
these reasons, we are not persuaded by Grayson’s reliance on J.L.
[20] Finally, we do not believe our holding is inconsistent with Sellmer, another case
upon which Grayson relies. In Sellmer, an anonymous tipster reported that a
silver Dodge parked backwards in a parking lot in front of a Noblesville hair
salon contained a large amount of drugs, and the court observed:
[P]recedent dictates that for an anonymous tip to constitute the
reasonable suspicion necessary for a valid investigatory stop, at
least two conditions must be met. First, “significant aspects of the
tip [must be] corroborated by the police.” Such corroboration
requires that an anonymous tip give the police something more
than details regarding facts easily obtainable by the general public
to verify its credibility. . . . Second, an anonymous tip, if it is to
be considered reliable enough to constitute reasonable suspicion
to conduct an investigatory stop, must also demonstrate an
intimate familiarity with the suspect’s affairs and be able to
predict future behavior.
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842 N.E.2d at 361 (internal citations omitted). The Sellmer Court determined
that the anonymous tip “lacked any information that would allow the police to
corroborate the caller’s claim that illegal activity was afoot” and did not
“provide the Noblesville police any information regarding Sellmer’s future acts
that would bolster its reliability.” Id. at 362.
[21] A comparison of the underlying facts in Sellmer and those before us is revealing
and compelling. The tipster in Sellmer reported ongoing, non-violent, criminal
conduct, i.e. possession of drugs. The anonymous tipster in this case reported
witnessing criminal conduct risking serious bodily injury to those in the
immediate vicinity. A report of an individual waving a gun involves an
immediate threat to the general public. This is an allegation that warrants
“immediate response by the police for the safety of the general public[.]” See
Renzulli, 958 N.E.2d at 1148, 1150 (involving a report of a drunk driver and
concluding that there was reasonable suspicion to justify an investigatory stop
where “the circumstances include[d] the time of day with little vehicular traffic,
vehicle color and make, location of the vehicle, and almost immediate response
and arrival at the scene by the police”); Bogetti v. State, 723 N.E.2d 876, 879
(Ind. Ct. App. 2000) (concluding that there was reasonable suspicion to justify
an investigatory stop where an unidentified individual told officers that Bogetti
was possibly intoxicated and had just exited a McDonald’s restaurant driving a
white semi truck); But see Berry v. State, 766 N.E.2d 805, 810 (Ind. Ct. App.
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2002) (concluding that the anonymous tip lacked sufficient indicia of reliability
because the officer did not observe any activity to corroborate the tip that a
white male in a green jacket waving a firearm in a parking lot threatened to
“cap someone” and drove away in an S10 Blazer), trans. denied. Here, Grayson
also lied to Officer Schultz about whether he had a firearm early in their
conversation, precisely while Officer Schultz observed the butt of a gun in plain
view on the driver’s side floorboard of the vehicle.
Conclusion
[22] For all of these reasons, we conclude that Officer Schultz had reasonable
suspicion to justify the investigatory stop at issue in this case. The anonymous
tip alleged personal observation of gun-related recklessness and the serious risk
of gun-related violence. Before he approached Grayson’s vehicle, the movement
of Grayson’s vehicle when Officer Schultz entered the parking lot confirmed the
likelihood that an occupant of the vehicle was involved in the criminal activity
alleged. Officer Schultz’s response was also appropriate as an act of community
policing and in light of the State’s compelling interest in protecting the general
public from incipient gun violence. Because the investigatory stop was proper,
the trial court did not abuse its discretion when it admitted into evidence the
firearm discovered during that stop.
[23] Affirmed.
Kirsch, J., and Bradford, J., concur.
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