FILED
May 25 2016, 8:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Randy M. Fisher Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill James B. Martin
Fort Wayne, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kelly C. Mullen, May 25, 2016
Appellant-Defendant, Court of Appeals Case No.
02A05-1511-CR-1959
v. Interlocutory Appeal from the
Allen Superior Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D04-1507-F4-47
Crone, Judge.
Case Summary
[1] The State charged Kelly C. Mullen with level 4 felony possession of a firearm
by a serious violent felon (“SVF”) and class A misdemeanor resisting law
enforcement. Mullen now brings this interlocutory appeal challenging the trial
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court’s denial of his motion to suppress. He contends that the handgun
recovered by police was seized in violation of the federal constitutional
guarantees against unreasonable search and seizure. We conclude that the
police had reasonable suspicion that criminal activity had occurred justifying an
investigatory stop of Mullen and a reasonable belief that he was armed.
Therefore, we conclude that the handgun was constitutionally seized and affirm
the denial of Mullen’s motion to suppress.
Facts and Procedural History
[2] In July 2015, the Villages of Hanna Apartment Complex (“the Villages”) in
Fort Wayne was the site of frequent drug activity and gun violence. There had
been several homicides in the area including one that had occurred a few
months earlier. The Villages had posted no-loitering signs over all the building
entrances because management believed that the high level of loitering was
related to the drug activity and violence. Additionally, the Villages had
contacted the Fort Wayne Police Department for assistance in controlling
loitering, specifically requesting that the police stop and identify individuals on
the property to determine whether they were legally on the property. Tr. at 6.
[3] At about 10:06 p.m. one evening that July, Detective Marc Deshaies was
observing the southern doorway of the Villages Building 2 from about 100 to
140 feet away. Building 2 had two doorways at opposite ends allowing access
to an interior hallway, which was lined by the individual apartment doors.
Because the interior hallway was lit, Detective Deshaies could see a large group
of males in the hallway, but he could not determine how many there were. He
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observed that one or two males would sometimes lean out of the entry, look
both ways down the outside of the building, and then lean back in. Detective
Deshaies had worked ten years as an officer in vice, narcotics, and the gang task
force and knew from experience that such behavior was not consistent with
people who were just hanging out. Rather, he knew that it was “very consistent
with open air drug sales in which you have people in the hallways dealing
drugs, [and] you have people looking out to see if there’s police coming [or]
looking for any other threats that might be coming up to the doorways.” Id. at
8. Detective Deshaies did not see any actual crimes being committed.
[4] Detective Deshaies asked Detective Stacey Jenkins to enter the doorway at the
other end of Building 2 to see how the group in the hallway responded.
Detective Jenkins entered the doorway and radioed to Detective Deshaies the
exact time of his entry. Once inside the hallway, Detective Jenkins saw Mullen
leave one of the apartments and proceed toward the exit that Detective
Deshaies was observing.
[5] Within a second of Detective Jenkins’s entry into Building 2, Detective
Deshaies saw two males, one of whom was Mullen, hurriedly exit the building.
“Instead of walking down the sidewalk [the two males] instead chose to walk
very closely to the side of the building … and were walking so fast that it was
between a walk and a run.” Id. at 9. Both men were looking over their right
shoulder directly toward the door they had just exited.
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[6] Detective Deshaies and his partner approached the two men from an angle
coming across the parking lot. Detective Deshaies used his flashlight to
illuminate the men and identified himself as a police officer. Detective
Deshaies did not tell the men to stop or to come to him. One of the men
stopped, but the other man, later identified as Mullen, increased his pace and
changed direction. Detective Matthew Foote and his partner engaged the man
who had stopped walking. Detective Deshaies increased his pace to catch up
with Mullen.
[7] Mullen turned and faced Detective Deshaies, holding his ID in his hand.
Detective Deshaies asked Mullen if he lived there and where he lived. “Mullen
kept pointing at the building but couldn’t give [Detective Deshaies] an address.”
Id. at 11. At some point, Detective Deshaies told Mullen that “the reason that
he was being stopped was because he was loitering in the other building.” Id. at
21-22. Rather than squarely facing Detective Deshaies, Mullen “turned his
body at an angle” to him. Id. at 11. Detective Deshaies considered this “a
fighting stance” and “that sort of mannerism immediately drew [his] attention
that [Mullen] might either be preparing to fight or might have a weapon on
him.” Id. While maintaining his angled stance, Mullen began backing away
from Detective Deshaies with his eyes darting left to right. Detective Deshaies
believed that Mullen “might be preparing to flee.” Id. at 12. From Detective
Deshaies’s perspective, Mullen was not free to leave. Id. at 21. Detective
Deshaies “was concerned for weapons,” and he asked Mullen if he had any
weapons on his person. Id. at 13. Mullen told Detective Deshaies that he
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“couldn’t search him.” Id. Detective Deshaies told Mullen that he “wasn’t
searching him” and asked Mullen again if he had any weapons on his person.
Id. Mullen again told the detective that he “couldn’t search [him], and he
finally stated that [he had] a knife in [his] pocket, and when he said that he
immediately reached down to his pocket.” Id. “He reached his hand down to
his waist area as if he was gonna draw the knife.” Id.
[8] In response to Mullen’s gesture, Detective Deshaies grabbed Mullen’s right
wrist and his partner grabbed Mullen’s left wrist. Mullen pulled aggressively
with both shoulders trying to free himself and “was still shouting that [the
officers] couldn’t search him.” Id. at 14. Meanwhile Detective Foote, who was
about twenty feet away, saw the struggle and approached to assist. He saw the
outline of a handle of a gun through Mullen’s shirt, and said, “[G]un.” Id. at
30. The officers forced Mullen to the ground. The officers discovered a 1911-
style Llama .45 caliber handgun in Mullen’s waistband on his right hip, where
he had been reaching.
[9] After police found the gun, Mullen provided an address where he said he lived.
Id. at 25. Police went to that apartment and spoke with the occupant, who
informed them that Mullen lived with her but was not on the lease and was not
supposed to live there. Id. Mullen was not legally authorized to live there
because it was government-subsidized housing. Id. at 25-26.
[10] The State charged Mullen with level 4 felony possession of a firearm by a SVF
and class A misdemeanor resisting law enforcement. Mullen filed a motion to
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suppress all evidence obtained as a result of his allegedly unconstitutional
seizure and a supporting memorandum of law. The trial court held an
evidentiary hearing. At the conclusion of the hearing, the trial court denied
Mullen’s motion. The trial court determined that the facts and circumstances
established an escalating situation that began with police observation of Mullen
and others violating the apartment rules and that police had been asked by the
property owners to assist with enforcement of these rules within the complex.
The trial court concluded that the circumstances supported Detective
Deshaies’s right to ask Mullen for identification. The trial court also
determined that Mullen acted suspiciously in refusing to specifically answer
Detective Deshaies about where he lived, yelling that the police could not
search him, and reaching for his pocket after telling the detective that he had a
knife. The trial court concluded that these additional circumstances gave the
officers reasonable suspicion to “make a stop,” apparently referring to the
moment that the officers put their hands on Mullen. Id. at 57. On Mullen’s
request, the trial court certified its order denying his motion to suppress for
interlocutory appeal.
Discussion and Decision
[11] Mullen argues that the police seized the handgun in violation of the Fourth
Amendment to the United States Constitution, and therefore the gun was
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inadmissible. 1 “We review a trial court’s denial of a defendant’s motion to
suppress deferentially, construing conflicting evidence in the light most
favorable to the ruling, but we will also consider any substantial and
uncontested evidence favorable to the defendant.” Robinson v. State, 5 N.E.3d
362, 365 (Ind. 2014). We accept the trial court’s findings of fact unless they are
clearly erroneous, and we do not reweigh the evidence. Id. However, the
constitutionality of a search or seizure is a question of law that we review de
novo. Lewis v. State, 949 N.E.2d 1243, 1246 (Ind. 2011). 2
[12] The Fourth Amendment states,
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
1
Mullen also raises a claim under Article 1, Section 11 of the Indiana Constitution. Although Mullen cited
the Indiana Constitution in his motion to suppress, he did not present any state constitutional argument to
the trial court. “‘A party generally waives appellate review of an issue or argument unless that party
presented that issue or argument before the trial court.’” Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct. App.
2014) (quoting Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied).
Therefore, Mullen’s state constitutional claim is waived.
2
The State asserts that “[Mullen] has the burden of showing that the trial court’s ruling was contrary to
law.” Appellee’s Br. at 12-13 (citing State v. McCaa, 963 N.E.2d 24, 29 (Ind. Ct. App. 2012), trans. denied).
However, in McCaa, the State was appealing from the grant of a motion to suppress. On appeal from the
grant of a motion to suppress, “the State appeals from a negative judgment and must show that the trial
court’s ruling on the suppression motion was contrary to law.” 963 N.E.2d at 29. “The State has the burden
of demonstrating that the measures it used to seize the information or evidence were constitutional.” State v.
Augustine, 851 N.E.2d 1022, 1025 (Ind. Ct. App. 2006). Here, Mullen is not appealing from a negative
judgment because the State always bears the primary burden of proving the constitutionality of a search or
seizure.
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“The fundamental purpose of the Fourth Amendment ‘is to protect the
legitimate expectations of privacy that citizens possess in their persons, their
homes, and their belongings.’” Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct.
App. 2013) (quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).
This protection has been extended to the states through the Fourteenth
Amendment to the United States Constitution. Krise v. State, 746 N.E.2d 957,
961 (Ind. 2001). In general, the Fourth Amendment prohibits searches and
seizures conducted without a warrant that is supported by probable cause.
Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). As a deterrent mechanism,
evidence obtained without a warrant is not admissible in a prosecution unless
the search or seizure falls into one of the well-delineated exceptions to the
warrant requirement. Id. “Where a search or seizure is conducted without a
warrant, the State bears the burden to prove that an exception to the warrant
requirement existed at the time of the search or seizure.” Brooks v. State, 934
N.E.2d 1234, 1240 (Ind. Ct. App. 2010), trans. denied (2011).
[13] Initially, the parties dispute when Mullen was “seized” for purposes of Fourth
Amendment protection. Mullen argues that he was unconstitutionally detained
from the onset of his encounter with Detective Deshaies. The State maintains
that their initial encounter was consensual and that a seizure did not occur until
the officers grabbed Mullen’s wrists, by which time Mullen’s “behavior
provided articulable facts reasonably leading Detective Deshaies to believe that
[Mullen] was armed and dangerous.” Appellee’s Br. at 14.
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[14] “‘Not every encounter between a police officer and a citizen amounts to a
seizure requiring objective justification.’” McLain v. State, 963 N.E.2d 662, 667
(Ind. Ct. App. 2012) (quoting Powell v. State, 912 N.E.2d 853, 859 (Ind. Ct.
App. 2009)).
Determining whether this was a consensual encounter or some
level of detention turns on an evaluation, under all the
circumstances, of whether a reasonable person would feel free to
disregard the police and go about his or her business. The test is
objective–not whether the particular citizen actually felt free to
leave, but whether the officer’s words and actions would have
conveyed that to a reasonable person. Examples of facts and
circumstances that might lead a reasonable person to believe that
he or she was no longer free to leave could include the
threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person of the citizen,
or the use of language or tone of voice indicating that compliance
with the officer’s request might be compelled.
Clark, 994 N.E.2d at 261-62 (citations and quotation marks omitted).
[15] Specifically, Mullen contends, “At the time Detective Deshaies stopped,
questioned, and detained [him], he was not free to return to his home at
Apartment 2A and therefore [the circumstances] cannot possibly constitute a
consensual encounter between [him] and police officers.” Appellant’s Br. at 13.
He claims that we “should only consider the events and circumstances prior to
Mr. Mullen being ordered to stop by Detective Deshaies.” Id. (emphasis added).
Significantly, the record reveals no evidence that Detective Deshaies ordered
Mullen to stop. If Detective Deshaies had ordered Mullen to stop, in addition
to identifying himself as a police officer and shining his flashlight on Mullen,
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Detective Deshaies’s actions would have constituted a show of authority. See
Williams v. State, 745 N.E.2d 241, 245 (Ind. Ct. App. 2001) (“Williams was
‘seized’ for Fourth Amendment purposes when Officer Tyndall ordered him to
stop.”); Murphy v. State, 747 N.E.2d 557, 559 (Ind. 2001) (“[A] seizure of the
individual does not occur until ‘the officer, by means of physical force or show
of authority, has in some way restrained the liberty of a citizen.’”) (quoting
Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968)). But that is not what happened here.
In this case, Mullen stopped to show Detective Deshaies his ID without being
ordered to stop.
[16] The record shows that at around 10:06 p.m., Detective Deshaies and his partner
walked toward Mullen and his companion. At about the same time, Detective
Foote and his partner also approached the men. Detective Deshaies shined his
flashlight on the men and identified himself as a police officer. Whether these
circumstances amount to a show of authority such that a reasonable person
would have believed that he or she was not free to leave is not a question we
need to decide. Assuming, without deciding, that Mullen yielded to a show of
authority when he stopped to show Detective Deshaies his ID, the seizure
would not have been unconstitutional because the facts known to Detective
Deshaies at that time supported a reasonable suspicion of criminal activity.
[A]n officer may conduct a brief investigatory stop of an
individual when, based on a totality of the circumstances, the
officer has a reasonable, articulable suspicion that criminal
activity is afoot. The investigatory stop, also known as 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
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confirm or dispel the officer’s suspicions. Reasonable suspicion
is determined on a case by case basis. The reasonable suspicion
requirement is met where the facts known to the officer at the
moment of the stop, together with the reasonable inferences from
such facts, would cause an ordinarily prudent person to believe
criminal activity has occurred or is about to occur.
J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App. 2015) (citations and quotation
marks omitted).
[17] Before applying the reasonable suspicion requirement to the facts of this case,
we must first address Mullen’s claim that Terry does not apply to private
property. Mullen relies on State v. Atkins, 834 N.E.2d 1028, 1032 (Ind. Ct. App.
2005), trans. denied. The Atkins court observed that “the Terry stop and frisk rule
applies to cases involving a brief encounter between a citizen and a police
officer on a public street.” Id. (citing Illinois v. Wardlow, 528 U.S. 119, 123
(2000)). The Atkins court concluded that the reasonable suspicion analysis
articulated in Terry did not apply because the encounter between Atkins and the
police did not occur on a public street but on Atkins’s “own property [the
property on the side of his house], in a place where he had a right to be.
Therefore, the trial court properly suppressed evidence of the handgun because,
absent probable cause, Officer DeJong had no right to encounter and stop
Atkins on his own property.” Id. Subsequent jurisprudence shows that a
simple bright-line distinction between public and private property alone does
not dictate whether an investigatory stop based on reasonable suspicion
comports with the Fourth Amendment.
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[18] In Hardister v. State, 849 N.E.2d 563 (Ind. 2006), our supreme court considered
whether the police had reasonable suspicion of criminal activity to stop and
detain individuals on private property. There, the police received an
anonymous tip that persons with guns were “cooking drugs” at a residence
located on one side of a duplex. Id. at 568. The police entered the front porch
of the duplex and knocked on the door. Two men looked out the windows and
made eye contact with the police. The police then heard running footsteps, and
they looked through the windows and saw the silhouettes of two men fleeing to
the rear of the residence. The police believed that the two men were trying to
exit through the back door, so they followed a sidewalk alongside the house to
the rear. When no one exited, the police looked through a rear window and
saw a man pouring white powder down the kitchen sink. The Hardister court
concluded that
the tip that residents were “cooking drugs” disclosed neither a
basis of knowledge nor evidence of reliability, and was
insufficient standing alone to establish reasonable suspicion.
However, the residents’ headlong flight toward the rear of the
house coupled with the anonymous tip and [the duplex’s]
location in an area known for narcotics traffic furnished
reasonable suspicion justifying an investigatory stop of the fleeing
occupants. The officers’ efforts to intercept the fleeing pair were
therefore justified as necessary to pursue the investigation.
Id. at 570-71. The court noted that “[i]n the typical Terry case police acting
upon reasonable suspicion detain a suspect in a public place,” and
acknowledged that “[t]his case is unusual in that police pursuit involved an
invasion of the curtilage of a residence.” Id. at 571. Nevertheless, the court
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rejected Hardister’s contention that the police could not invade the curtilage of
a residence without probable cause.
[19] In Perez v. State, 981 N.E.2d 1242 (Ind. Ct. App. 2013), another panel of this
Court relied on Hardister in rejecting Perez’s argument that his detention by
police was unconstitutional solely because police officers were on his private
property. Id. at 1249. The court held that the police had reasonable suspicion
that criminal activity had occurred or was about to occur, and therefore could
lawfully detain Perez and place him in handcuffs to control the scene while they
conducted their investigation. Id. See also Jadrich v. State, 999 N.E.2d 1022,
1027-29 (Ind. Ct. App. 2013) (discussing Hardister and cases outside Indiana
that have addressed whether police may enter onto curtilage where it is justified
by observations that indicated reasonable suspicion that criminal activity might
be afoot); J.D. v. State, 902 N.E.2d 293, 295 n.2 (Ind. Ct. App. 2009) (observing
that Atkins relied on boiler-plate language from Wardlow, 528 U.S. at 123, and
that the applicability of Terry in places such as a front porch was not an issue in
that case), trans. denied. Accordingly, we reject Mullen’s contention that the
police were not permitted to conduct a Terry stop just because they were on
private property. 3
3
A number of factors are important in considering whether police conduct complies with the Fourth
Amendment, such as an individual’s expectation of privacy, the nature of the property, and the needs of law
enforcement. Here, although Mullen purportedly lived in the Villages, he did not have a legal right to reside
there because he was not on the lease and was prohibited from living in government-subsidized housing.
Furthermore, behavior that supports a reasonable suspicion that an individual is on another’s private
property without the owner’s permission may justify a Terry stop. See United States v. Aragones, 483 F. App'x
415, 417-18 (10th Cir. 2012) (“In light of these facts, a reasonable officer could have suspected that Mr.
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[20] As for whether Detective Deshaies had reasonable suspicion that criminal
activity had occurred to justify a Terry stop, we observe that Detective Deshaies
knew that the Villages had had considerable problems with drug activity and
gun violence and that the management believed that these problems were linked
to the loitering occurring on its property. He also knew that to address these
problems, the Villages had posted no-loitering signs and had asked the police to
help them enforce the no-loitering policy and to stop and identify individuals
who were not legally on the property. Detective Deshaies observed a large
group of men loitering in Building 2, despite the no-loitering signs that had been
posted. In addition, some of the men appeared to be acting as lookouts, which
was consistent with illegal drug activity. Then, when Detective Jenkins entered
the opposite doorway, two men quickly exited, walked close to the building
rather than on the sidewalk, and kept their eyes on the door behind them as if
someone might be coming after them. From these circumstances, an officer in
Detective Deshaies’s position could reasonably infer that the two men who had
just exited Building 2 had been engaged in illegal drug activity or had no right
to be present on the property. Therefore, Detective Deshaies was justified in
stopping Mullen to ask him for his identification and what he was doing on the
property. 4 Appellant’s Br. at 13.
Aragones wasn’t a welcome guest and did not have consent to look into the home. And reasonable suspicion
of criminal activity like this is enough to permit an officer to effect a brief investigative detention to determine
whether or not a legal violation is, in fact, taking place.”).
4
Mullen relies on Stalling v. State, 713 N.E.2d 922, 924 (Ind. Ct. App. 1999), to argue that “the color of one’s
skin, the neighborhood one happens to be in, the time of night, and the fact that one turns away from police
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[21] Once Mullen stopped, his subsequent failure to specifically answer questions
about where he lived and adoption of a fighting stance caused Detective
Deshaies to ask him whether he was armed. “In addition to detainment, Terry
permits a reasonable search for weapons for the protection of the police officer,
where the officer 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.” Malone v. State, 882 N.E.2d 784, 786-87 (Ind. Ct. App.
2008) (citing Terry, 392 U.S. at 27). “Officer safety is of paramount importance.
Police officers are daily placed in difficult and dangerous situations, some of
which are life threatening. The law has to provide protections for such
officers.” Id. at 787. “‘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.’” Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001) (quoting
Terry, 392 U.S. at 27). When Mullen told the police that he had a knife and
reached toward his pockets as though he was going to draw it, the police were
permitted under the Fourth Amendment to secure Mullen and do a patdown
are not sufficient individual or collectively, to establish reasonable suspicion of criminal activity.” The three
circumstances identified by Mullen simply fall short of describing all the facts that were available to Detective
Deshaies, and therefore Mullen’s reliance on Stalling is unavailing.
In Stalling, the police saw a boy, known to be a truant, around noon on a school day standing at a corner with
a group of four to five other young men in a high crime area. As the police approached the group, the boys
began to disperse. One officer saw Stalling move as if to place something into the waistband of his pants.
The officer confronted Stalling and asked him what he had put in his waistband. Stalling remained standing
but did not say anything. The officer then conducted a patdown search and found a baggy containing
cocaine tucked inside Stalling’s waistband. The Stalling court concluded that the police lacked reasonable
suspicion to conduct an investigatory stop, and therefore the cocaine was inadmissible. 713 N.E.2d at 924.
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search. Accordingly, we affirm the denial of Mullen’s motion to suppress the
fruits of that search.
[22] Affirmed.
Najam, J., and Robb, J., concur.
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