MEMORANDUM DECISION FILED
Apr 28 2016, 6:05 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Barbara Simmons Gregory F. Zoeller
Oldenburg, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lorenzo Adams, April 28, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1509-CR-1334
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Carol Ann Terzo,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
49G10-1503-CM-8679
Najam, Judge.
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Statement of the Case
[1] Lorenzo Adams appeals his conviction for carrying a handgun without a
license, as a Class A misdemeanor, following a bench trial. Adams raises a
single issue for our review, namely, whether the trial court abused its discretion
when it admitted into evidence a handgun recovered from his person after a
Terry stop. We affirm.
Facts and Procedural History
[2] On March 9, 2015, Indianapolis Metropolitan Police Department (“IMPD”)
Officer Dominic Smith received a radio dispatch concerning a tip that a resident
of the Meadowlark Apartment complex (“Meadowlark”) had seen a “person
with a gun” in the complex. Tr. at 7. The resident, who identified herself as
Edith Williams to the 9-1-1 operator, described the person as having a “[w]hite
jacket with red stripes.” Id. at 7. No further description of the suspect was
provided by Williams.
[3] Meadowlark is located in Indianapolis in an area with a “very high” level of
crime. Id. at 6. Meadowlark, a federally-subsidized complex, has a “no[-]gun
policy,” and the IMPD is permitted to “trespass anybody from the apartment
complex that the apartment complex wants [the IMPD] to trespass.” Id. at 6.
At the time of the dispatch to Meadowlark on March 9, Officer Smith was
aware of an incident on March 7, when shots had been fired at Meadowlark.
[4] Two to three minutes after receiving the dispatch, Officer Smith arrived on the
scene, and he saw a man wearing a white jacket with red stripes, later identified
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as Adams, standing on a sidewalk in the apartment complex. Because Officer
Smith had reason to believe that Adams had a gun, Officer Smith drew his gun
and approached Adams, who had his hands in his jacket pockets. Officer Smith
instructed Adams to “get his hands up.” Id at 8. Upon hearing that command,
Adams began to reach “back a little bit . . . towards his right pocket” before
complying and raising his hands. Id. at 9. After placing Adams in handcuffs,
Officer Smith found a .22 caliber handgun on Adams’ person. Adams admitted
that he did not have a gun permit.
[5] The State charged Adams with carrying a gun without a license, as a Class A
misdemeanor. During a bench trial, Adams moved to suppress the evidence of
the handgun, but the trial court denied that motion and found Adams guilty as
charged. The trial court sentenced Adams to 365 days with 341 days suspended
and twenty-four days credit. This appeal ensued.
Discussion and Decision
[6] Adams asserts that the trial court erred when it permitted the State to introduce
the handgun into evidence. Initially, we address Adams’ characterization of
Williams as an “anonymous tipster” throughout his brief on appeal. It is
undisputed that Williams gave her name to the 9-1-1 operator when she called
to report the man with a gun in Meadowlark. Accordingly, depending on the
totality of the circumstances of her tip, Williams may be considered a
“concerned citizen.” As our supreme court has explained,
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[a concerned citizen tip] is made up of people who may have
been victims of crime or have witnessed a crime. [Pawloski v.
State, 269 Ind. 350, 380 N.E.2d 1230, 1232 (1978)]. These
individuals generally come forward with information out of a
spirit of good citizenship and a desire to help law enforcement.
Id. Some jurisdictions have therefore held informants of this type
are considered more reliable. Id. In Kellems [v. State, 842 N.E.2d
352 (Ind. 2006), rev’d on other grounds, 849 N.E.2d 1110 (Ind.
2006)], we again reaffirmed our belief that there “may well be
great indicia of reliability in the report of the ‘concerned citizen’
as distinguished from the ‘professional informant’—though again
the totality of the circumstances controls.” 842 N.E.2d at 356.
These concerned citizens are usually one-time informants, and
no basis exists from prior contacts to determine their reliability,
such as in the case of an undercover police informant. Kellems,
842 N.E.2d at 356.
State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011).
[7] Here, again, Williams identified herself to the 9-1-1 operator when she called in
the tip. Williams described a person wearing a distinctive jacket and armed
with a gun in Meadowlark in violation of the no-gun policy. Officer Smith
arrived at the scene approximately two or three minutes after Williams’ call and
found Adams, who was wearing a jacket matching the description given by
Williams. We hold that, under the totality of the circumstances, Williams was
a concerned citizen tipster.
[8] Adams’ sole contention on appeal is that Officer Smith did not have reasonable
suspicion to conduct an investigatory stop under the Fourth Amendment to the
United States Constitution and Article I, Section 11 of the Indiana
Constitution. Both of those constitutional provisions protect citizens from
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unreasonable searches and seizures. See Hathaway v. State, 906 N.E.2d 941,
944-45 (Ind. Ct. App. 2009), trans. denied. Generally, a search warrant is a
prerequisite to a constitutionally proper search and seizure. Halsema v. State,
823 N.E.2d 668, 676 (Ind. 2005). When a search or seizure is conducted
without a warrant, the State bears the burden of proving that an exception to
the warrant requirement existed at the time of the search or seizure. Id.
[9] However, in Terry v. Ohio, 392 U.S. 1, 30 (1968), the United States Supreme
Court held that an officer may, consistent with the Fourth Amendment,
conduct a brief investigatory stop when, based on a totality of the
circumstances, the officer has a reasonable, articulable suspicion that criminal
activity is afoot. Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006). An
investigatory stop allows a police officer to “temporarily freeze the situation in
order to make an investigative inquiry.” Johnson v. State, 766 N.E.2d 426, 429
(Ind. Ct. App. 2002), trans. denied. A Terry stop is a lesser intrusion on the
person than an arrest and may include a request to see identification and
inquiry necessary to confirm or dispel the officer’s suspicions. Id. (citing Hiibel
v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 185-89 (2004)). Reasonable
suspicion entails some minimal level of objective justification for making a stop,
something more than an unparticularized suspicion or hunch, but less than the
level of suspicion required for probable cause. Wilson v. State, 670 N.E.2d 27,
29 (Ind. Ct. App. 1996) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).
Indiana has adopted the Terry rationale in determining the legality of an
investigatory stop under Article 1, Section 11. Id. Tips from concerned citizens
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may justify a Terry stop. See Kellems, 842 N.E.2d at 355. Still, the test for
determining the validity of a Terry stop is the totality of the circumstances
before the officers. Id. at 356.
[10] Based on the totality of the circumstances here, the investigating officer had a
reasonable, articulable suspicion that criminal activity was afoot. Officer Smith
responded to a 9-1-1 call from Williams, a concerned citizen, and arrived at the
scene within two or three minutes. Meadowlark is located in a high-crime area
of Indianapolis. According to Williams, a person wearing a white jacket with
red stripes was at Meadowlark and had a gun. Officer Smith knew that shots
had been fired at Meadowlark only two days prior, and he knew that
Meadowlark had a no-gun policy. As soon as Officer Smith arrived, he drew
his weapon for officer safety “due to the nature of the call” and “previous
incidents in the area.” Tr. at 8. Officer Smith then approached Adams and told
him to put his hands in the air. Instead of complying with the command,
Adams reached for his back pocket. Officer Smith repeated the command, and
Adams complied. Officer Smith placed Adams in handcuffs and found a
handgun on Adams’ person.
[11] Based on the totality of the facts and circumstances known to Officer Smith at
the time he detained Adams, we conclude that Officer Smith had a reasonable
and articulable suspicion that Adams may have been involved in criminal
activity. Accordingly, Officer Smith’s Terry stop of Adams did not violate
Adams’ Fourth Amendment rights. See, e.g., Billingsley v. State, 980 N.E.2d 402,
411 (Ind. Ct. App. 2012), trans. denied. For the same reasons, Adams’ claim
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under Article 1, Section 11 of the Indiana Constitution must fail. See id. Officer
Smith’s Terry stop of Adams was not contrary to law, and the trial court did not
abuse its discretion when it admitted the evidence seized pursuant to that stop.
[12] Affirmed.
Robb, J., and Crone, J., concur.
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