FILED
Nov 07 2016, 9:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Darren Bedwell Monika Prekopa Talbot
Marion County Public Defender Christina Pace
Appellate Division Deputy Attorneys General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jordan Jacobs, November 7, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1601-CR-19
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Linda Brown,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G10-1509-CM-31258
Bradford, Judge.
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 1 of 28
Case Summary
[1] On September 2, 2015, eighteen-year-old Appellant-Defendant Jordan Jacobs
was arrested after he was found to be in possession of a handgun without
having a license for said handgun. Appellee-Plaintiff the State of Indiana (“the
State”) subsequently charged Jacobs with Class A misdemeanor carrying a
handgun without a license. Following a bench trial, Jacobs was found guilty as
charged. Jacobs challenges his conviction on appeal, arguing that the trial court
abused its discretion in admitting the handgun into evidence at trial. We
affirm.
Facts and Procedural History 1
[2] In late-August or early-September of 2015, Indianapolis Metropolitan Police
Officer Terry Smith, a detective assigned to investigate potential gang activity,
received a complaint from the district commander that there had been multiple
runs to the Blackburn Terrace Apartments on East 30th Street because of shots
fired by juveniles who wore red clothing and were possible gang members. The
Blackburn Terrace Apartments are located in an area which is known to be a
high-crime neighborhood. After receiving the complaint from the district
commander, Officer Smith went to the Blackburn Terrace Apartments during
1
We held oral argument in this case on October 6, 2016, at Peru High School in Miami County. We thank
the members of the Miami County Bar Association and the students, faculty, and staff of Peru High School
for their gracious hospitality. We also commend counsel for the high quality of their arguments.
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 2 of 28
school hours at approximately 2:00 p.m. on September 2, 2015. Officer Smith
observed a group of individuals, many of whom appeared to be juveniles of
school age, gathered in a park located just south of the apartment complex.
Officer Smith also observed that some of the individuals were wearing red,
which Officer Smith knew to be a gang color. Jacobs was present with the
group and at one point had a red t-shirt slung across his shoulder.
[3] Officer Smith watched the group, which was gathered around a picnic table, for
several hours. He noticed a number of individuals come and go, including
several adult males. At some point, Officer Smith’s attention was drawn to
Jacobs, whom Officer Smith believed to be a juvenile. Officer Smith observed
that when a park ranger in a marked vehicle approached the vicinity where the
group was located, Jacobs and another individual, who also appeared to be a
juvenile, left the group and began walking west toward the apartment complex.
Officer Smith observed that Jacobs and the other individual ended up on 30 th
Street. Jacobs and the other individual returned to the group after the park
ranger left the area. In light of his observations, including the “coming and
going” of a number of individuals, many of whom were wearing a known gang
color and that many of the juveniles appeared to be of school age but were not
in school, Officer Smith contacted the north district and requested that marked
units be sent to assist in “stopping” the group. Tr. p. 8.
[4] As the marked police vehicles began approaching from the east, Jacobs and the
other individual again began to quickly walk away from the group, again
heading west. As the police came closer, Jacobs and the other individual
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picked up their pace. Officer Smith, who was wearing a vest reading “police”
on the front, instructed Jacobs and the other individual to stop. Tr. p. 9. The
other individual complied with Officer Smith’s instruction and stopped, but
Jacobs continued walking.
[5] After Jacobs failed to comply with Officer Smith’s instruction to stop, Officer
Smith and Indianapolis Metropolitan Police Officer Jeremiah Casavan ordered
Jacobs to the ground. Jacobs complied with this order. Jacobs was placed in
handcuffs but told that he was not under arrest. Officers Smith and Casavan
escorted Jacobs and the other individual to the park shelter where the other
members of the group were gathered.
[6] As Officer Casavan was escorting Jacobs to the park shelters, he looked at
Jacobs’s clothing and observed the outline of a handgun in Jacobs’s front right
pocket. Officer Casavan asked Jacobs whether he had any weapons on him.
Jacobs responded that he did not. Officer Casavan then reached inside Jacobs’s
pocket and removed the handgun. Jacobs was thereafter placed under arrest.
[7] On September 13, 2015, the State charged Jacobs with Class A misdemeanor
carrying a handgun without a license. The trial court conducted a bench trial
on November 10, 2015. During trial, the State sought to admit the handgun
into evidence. Jacobs objected to admission of the handgun, arguing that it was
recovered in violation of both the Fourth Amendment to the United States
Constitution (“Fourth Amendment”) and Article I, Section 11 of the Indiana
Constitution (“Article I, Section 11”). The trial court admitted the handgun
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into evidence over Jacobs’s objection. The State also presented evidence at trial
that Jacobs did not have a license to carry the handgun. The trial court took the
matter under advisement, after which it found Jacobs guilty as charged. The
trial court subsequently sentenced Jacobs to a term of 365 days with 357 of
those days suspended to probation.
Discussion and Decision
[8] Jacobs contends that the trial court abused its discretion in admitting the
handgun into evidence at trial because the handgun was recovered in violation
of Jacob’s rights under the Fourth Amendment and Article I, Section 11.
I. Standard of Review
[9] The trial court has broad discretion to rule on the admissibility of
evidence. [Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013)].
We review its rulings “for abuse of that discretion and reverse
only when admission is clearly against the logic and effect of the
facts and circumstances and the error affects a party’s substantial
rights.” [Id. at 260]. But when an appellant’s challenge to such a
ruling is predicated on an argument that impugns the
constitutionality of the search or seizure of the evidence, it raises
a question of law, and we consider that question de novo. Kelly
v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).
Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014). Further, when reviewing a
trial court’s ruling on the admissibility of evidence obtained from an allegedly
illegal search, we do not reweigh the evidence but defer to the trial court’s
factual determinations unless clearly erroneous. Hansbrough v. State, 49 N.E.3d
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1112, 1114-15 (Ind. Ct. App. 2016) (citing Meredith v. State, 906 N.E.2d 867,
869 (Ind. 2009)), trans. denied. “We view conflicting evidence most favorable to
the ruling, and we consider ‘afresh any legal question of the constitutionality of
a search and seizure.’” Id. (quoting Meredith, 906 N.E.2d at 869).
II. The Fourth Amendment
[10] Jacobs argues that the warrantless search of his person was conducted in
violation of his Fourth Amendment rights.
A. Legal Authority
[11] 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....” “[T]he ultimate touchstone of the Fourth
Amendment is ‘reasonableness[.]’” Brigham City v. Stuart, 547
U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). We
approach cases involving warrantless searches with the basic
understanding that “searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to a
few specifically established and well-delineated exceptions.”
Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d
485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88
S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted)). Where
there is no clear practice concerning the constitutionality of a
search, the reasonableness of the search is judged by balancing
“the degree to which it intrudes upon an individual’s privacy and
... the degree to which it is needed for the promotion of legitimate
governmental interests.” Wyoming v. Houghton, 526 U.S. 295,
299-300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).
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Wertz v. State, 41 N.E.3d 276, 279 (Ind. Ct. App. 2015) (emphasis to words “per
se” in original), trans. denied. Application of the Fourth Amendment has been
extended to the States through the Due Process Clause of the Fourteenth
Amendment. Hansbrough, 49 N.E.3d at 1114-15.
[12] An officer may briefly detain someone to investigate, without a
warrant or probable cause, if specific and articulable facts and the
rational inferences therefrom give the officer “reasonable
suspicion that criminal activity ‘may be afoot.’” Moultry v. State,
808 N.E.2d 168, 171 (Ind. Ct. App. 2004). To determine
whether there was reasonable suspicion, we must determine
whether the totality of the circumstances show “the detaining
officer had a particularized and objective basis for suspecting
legal wrongdoing.” [Johnson v. State, 992 N.E.2d 955, 958 (Ind.
Ct. App. 2013), trans. denied]. During such an investigatory stop,
a police officer may conduct a
reasonable search for weapons for the protection of
the police officer, where he 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. 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.
Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889
(1968).
D.F. v. State, 34 N.E.3d 686, 689 (Ind. Ct. App. 2015), trans. denied. “Although
reasonable suspicion requires more than inchoate and unparticularized
hunches, it is a less demanding standard than probable cause and requires a
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showing of ‘considerably less’ proof than that required to establish wrongdoing
by a preponderance of the evidence.” Bridgewater v. State, 793 N.E.2d 1097,
1100 (Ind. Ct. App. 2003) (quoting Cardwell v. State, 666 N.E.2d 420, 422 (Ind.
Ct. App. 1996), trans. denied).
B. Analysis
[13] In arguing that the handgun was recovered in violation of his Fourth
Amendment rights, Jacobs asserts that Officers Smith and Casavan lacked
reasonable suspicion that he was engaged in criminal activity. For its part, the
State asserts that the handgun was not recovered in violation of Jacobs’s Fourth
Amendment rights because at the time Jacobs was detained, Officers Smith and
Casavan had reasonable suspicion to believe that Jacobs was committing the
status offense of truancy.2
[14] A determination of whether the totality of the circumstances indicate that the
law enforcement officer had reasonable suspicion to believe that criminal
activity was afoot includes a determination of whether the defendant’s own
actions were suspicious. Stalling v. State, 713 N.E.2d 922, 924 (Ind. Ct. App.
1999). Further, while presence in a high-crime neighborhood alone may not
constitute reasonable suspicion, presence in a high-crime area can be considered
2
Status offenses, including truancy, are offenses that would not be a crime if committed by an adult, but for
which a juvenile may still be adjudicated to be a delinquent child. See R.B. v. State, 839 N.E.2d 1282, 1284
(Ind. Ct. App. 2005) (providing that status offenses include leaving home without permission; truancy;
habitually disobeying the reasonable and lawful commands of the child’s parent, guardian, or custodian;
violating curfew; and violating laws concerning minors and alcoholic beverages).
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as a factor in the totality of the circumstances confronting an officer at the time
of a stop. Bridgewater, 793 N.E.2d at 1100. Similarly, avoiding the police or
turning away from them is not enough by itself to constitute reasonable
suspicion.
However, we note the [United States] Supreme Court’s comment
that “[N]ervous, evasive behavior is a pertinent factor in
determining reasonable suspicion. Headlong flight—wherever it
occurs—is the consummate act of evasion: it is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such.”
Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145
L.Ed.2d 570 (2000) (citations omitted). The Supreme Court
noted that allowing police and the courts to consider flight as a
factor in determining whether reasonable suspicion existed does
not conflict with the principle that an individual has the right to
ignore police and go about his business if the officer approaches
an individual without probable cause. The Court explained:
[A]ny “refusal to cooperate, without more, does not
furnish the minimal level of objective justification
needed for a detention or seizure.” But unprovoked
flight is simply not a mere refusal to cooperate.
Flight, by its very nature, is not “going about one’s
business”; in fact, it is just the opposite. Allowing
officers confronted with such flight to stop the
fugitive and investigate further is quite consistent
with the individual’s right to go about his business or
to stay put and remain silent in the face of police
questioning.
Id. at 125, 120 S.Ct. at 676 (citations omitted).
Judicial interpretation of what constitutes “reasonable suspicion”
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is fact-sensitive. Wilson v. State, 670 N.E.2d 27, 30-31 (Ind. Ct.
App. 1996).
Id.
1. Stalling and Bridgewater
[15] In support of his claim that the handgun was recovered in violation of his
Fourth Amendment rights, Jacobs relies on this court’s opinions in Stalling and
Bridgewater. In Stalling, investigating officers observed a young man who was
known to be a truant standing on a street corner with a group of four to five
other young men, one of whom was later identified to be Stalling. 713 N.E.2d
at 923. The young men had congregated in an empty lot near the street corner
and across the street from a local food mart. Id. The area was known to be a
high crime area as it had been the site of a number of incidents of robbery, drug
dealing, and gun shots being fired. Id. Given that it was around noon on a
school day, the officers approached the suspected truant. As the officers
approached, the suspected truant rode away on his bicycle and the rest of the
group began to disperse. Id. One of the officers recognized Stalling from a
previous investigation and observed him “move as if to place something into
the waistband of his pants near the belt buckle.” Id. The officer then
confronted Stalling, who remained standing in front of the officer but did not
say anything. Id. The officer approached Stalling and conducted a patdown
search during which he found a plastic baggy containing two small rocks of
cocaine. Id. Stalling was then arrested and charged with possession of cocaine.
Id.
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[16] Stalling argued on appeal that all evidence relating to the bag containing the
cocaine should have been excluded because it was recovered in violation of his
Fourth Amendment rights. Upon review, this court concluded that the facts
presented “would not cause an ordinarily prudent person to believe that
criminal activity had or was about to occur.” Id. at 925. In reaching this
conclusion, the court stated that “merely looking suspicious is not sufficient to
overcome Fourth Amendment protections against arbitrary and abusive police
practices.” Id. (internal citations omitted).
[17] Likewise, in Bridgewater, officers were patrolling a high crime area at
approximately 11:30 p.m. when the officers observed Bridgewater standing
outside an apartment building talking with an older man and woman.
Bridgewater, 793 N.E.2d at 1099.
After observing the three people for several minutes, the officers
drove by the building. Bridgewater ran inside the building,
closed the door, and watched the officers from an upstairs
window.
After a few minutes, Bridgewater came back outside and
continued to talk to the older man who remained outside. The
officers then walked down the sidewalk toward the building.
When the officers approached, Bridgewater looked at them and
then ran inside the building again. The officers had talked to the
older man for a few minutes when Bridgewater and another man
came out of the building and walked past the officers.
Id. One of the officers then stopped Bridgewater, asked him why he had run
when he saw them, and instructed Bridgewater to remove his hands from his
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jacket pockets. Id. Bridgewater initially complied but then put his hands back
in his pockets. Id. At that point, the officer decided to perform a pat-down
search for weapons to ensure his safety. Id. While the officer was patting down
Bridgewater’s pants, he felt a large bag. Id. It was immediately apparent to the
officer that the object was a bag of cocaine. Id. Bridgewater was then placed
under arrest and a bag containing cocaine and marijuana was removed from his
pants. Id.
[18] Bridgewater argued on appeal that all evidence relating to the bag containing
the cocaine and marijuana should have been excluded because it was recovered
in violation of his Fourth Amendment rights. Upon review, this court
concluded that the State failed to demonstrate facts that the officers had the
requisite reasonable suspicion of criminal activity to complete the investigatory
search. Id. at 1103. In reaching this conclusion, the court stated the following:
We recognize that the officers were watching the apartment
building because of complaints about drug dealing and that the
building was located in a high-crime-area. We also do not
minimize the fact that Bridgewater twice fled into the building
after seeing the officers. However, the officers did not observe
any sort of transaction or interaction among Bridgewater and the
other two people standing with him other than talking. He was
not carrying anything unusual, nor was he doing anything else
suspicious. The mere fact that he walked or ran from the police
into the building is simply not enough to meet the State’s burden
in this case.
Id.
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2. The Instant Matter
[19] Upon review, we conclude that the circumstances are such that both Bridgewater
and Stalling can be distinguished from the instant matter. The record reveals
that at approximately 2:00 p.m. on September 2, 2015, Officer Smith observed
“several juveniles who looked like they should be in school [like] they were
school age.” Tr. p. 7. Jacobs, who himself appeared to be a juvenile, was
congregated with this group. Some members of the group were wearing red, a
known gang color in the area, and Jacobs had a red shirt flung over his shoulder
at some point. Officer Smith testified that he was watching the park because
there had been reports of gang activity and juveniles engaging in gun violence.
While watching the park, Officer Smith observed that Jacobs “and another
juvenile” walked away quickly when the park ranger approached. Tr. p. 8.
One could reasonably infer from this statement that Officer Smith believed that
both Jacobs and the other individual were juveniles.
[20] Furthermore, Officer Casavan testified that he responded to a call from Officer
Smith who indicated that he had observed “several juveniles hanging out in the
park during the day during school hours.” Tr. pp. 20-21. Officer Casavan also
testified that when he stopped Jacobs, “I still thought he was a juvenile.” Tr. p.
25. In addition, Officer Casavan indicated that upon detaining Jacobs, he
walked him over to the shelters “where the other juveniles had remained.” Tr.
p. 24. Again, one could reasonably infer from this statement that Officer
Casavan believed that Jacobs was a juvenile.
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[21] In addition, while flight alone is not sufficient to establish reasonable suspicion
of wrongdoing, it is a factor that could be considered. See Bridgewater, 793
N.E.2d at 1100. In fact, the Indiana Supreme Court has held that evidence of
flight may be considered as circumstantial evidence of consciousness of guilt.
See Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015). The fact that Jacobs and
another apparent juvenile left each time a law enforcement official approached
the area could reasonably lead Officer Smith to believe that Jacobs and his
cohort had a consciousness of guilt for being in the park at a time when they
should have been in school.
[22] Further, as is stated above, in determining whether an officer had reasonable
suspicion of criminal or delinquent activity, the trial court should consider the
totality of the circumstances. See Stalling, 713 N.E.2d at 924. This includes
consideration of whether a defendant’s actions were suspicious. Id. Jacobs’s
actions were indeed suspicious. Jacobs, who appeared to be a juvenile, was
congregating for a relatively lengthy period of time with suspected gang
members in a park during a time of day that juveniles should have been in
school and was in possession of gang colors himself. Jacobs quickly left the
area where the group was congregated whenever he observed law enforcement
in the general vicinity, returned only after law enforcement had left the general
vicinity, and increased his speed in leaving the area as law enforcement came
closer. In addition, Jacobs failed to stop when initially ordered to do so by
Officer Smith. On top of these facts, Jacobs and the group were congregated in
a high crime area where there had been recent episodes of violence, i.e., the
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firing of gunshots by juveniles who were believed to be gang members. Upon
review, we conclude that these facts are sufficient to establish reasonable
suspicion that Jacobs was engaged in criminal activity. Jacobs failed to
establish that the search of his person was conducted in violation of his rights
under the Fourth Amendment.3
[23] In addition, review of the record further indicates that the search of Jacobs’s
person, which again occurred after the initial detention, was supported by
reasonable suspicion. The record reveals that after the initial detention, Jacobs
lied about being in possession of a weapon despite the fact that the outline of
the weapon in his pocket was clearly visible. Because he could clearly see the
outline of the weapon in Jacobs’s pocket, Officer Casavan had reasonable
suspicion to believe that Jacobs was armed despite his lie indicating otherwise.
III. Article I, Section 11
[24] Jacobs alternatively argues that even if the search of his person was not
conducted in violation of his Fourth Amendment rights, it was conducted in
violation of his rights under Article I, Section 11.
3
We note that to the extent that Jacobs relies on the Indiana Supreme Court’s opinion in Gaddie v. State, 10
N.E.3d 1249 (Ind. 2014), for the proposition that he acted within his rights by continuing to walk away after
being ordered to stop by Officer Smith, Jacobs’s reliance on Gaddie is misplaced because we conclude that
Officer Smith had reasonable suspicion to believe that Jacobs was committing the status offense of truancy
when he stopped Jacobs. In Gaddie, the Indiana Supreme Court held that a person cannot be held criminally
liable for walking away from a police officer when the officer stops the individual without reasonable suspicion
or probable cause. 10 N.E.3d at 1254 (emphasis added).
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A. Legal Authority
[25] Article I, Section 11 reads:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
“Although this language tracks the Fourth Amendment verbatim, we proceed
somewhat differently when analyzing the language under the Indiana
Constitution than when considering the same language under the Federal
Constitution.” Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006). “Instead of
focusing on the defendant’s reasonable expectation of privacy, we focus on the
actions of the police officer, concluding that the search is legitimate where it is
reasonable given the totality of the circumstances.” Id. The State has the
burden to demonstrate that the police intrusion was reasonable. D.F., 34
N.E.3d at 690.
[26] When reviewing whether the police intrusion was reasonable, we will consider
the following factors in assessing reasonableness: “1) the degree of concern,
suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion
the method of the search or seizure imposes on the citizen’s ordinary activities,
and 3) the extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356,
361 (Ind. 2005). When considering the degree of intrusion, we consider the
nature of the privacy interest upon which the search intrudes and the character
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of the intrusion itself. D.F., 34 N.E.2d at 690 (internal citation and quotation
omitted). The degree of intrusion is viewed from the point of view of the
defendant. See Duran v. State, 930 N.E.2d 10, 19 (Ind. 2010).
B. Analysis
1. Degree of Concern, Suspicion, or Knowledge of Wrongdoing
[27] Jacobs argues that the police intrusion was unreasonable because Officer Smith
had little suspicion that criminal or delinquent activity was occurring. In
making this argument, Jacobs acknowledges that many of the individuals
congregated together appeared to be juveniles and were either wearing or in
possession of gang colors but notes that the reported gang activity and gunfire
had not occurred on the day in question. Moreover, Jacobs argues that because
truancy is not a crime but rather a status offense, see W.R.S. v. State, 759 N.E.2d
1121, 1124 (Ind. Ct. App. 2001), the fact that a number of the individuals
congregated appeared to be truant from school should not be found to be
sufficient to reasonably lead one to suspect that criminal or delinquent activity
had occurred. We disagree.
[28] Review of the record indicates that when Officer Smith arrived at the park, it
appeared that a number of the individuals gathered were school-age juveniles
who were truant from school. In addition, although it turned out that Jacobs
was eighteen at the time he was arrested, Jacobs looked as if he were a juvenile,
leading Officers Smith and Casavan to believe that he could have also been one
of the individuals truant from school. The group, which again included Jacobs,
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was congregated in a high-crime area with many of the individuals wearing or
in possession of gang colors. There had been multiple recent police runs to the
area because of reports of gunshots fired by juveniles who were suspected to be
gang members. In addition, Jacobs and another apparent juvenile walked away
from the group any time a law enforcement official approached. Jacobs also
refused to stop when initially ordered to so do by Officer Smith. This flight
could be considered circumstantial evidence that Jacobs and his cohort had a
consciousness of guilt, i.e., that they knew they should have been in school
rather than in the park on the afternoon in question. See Myers, 27 N.E.3d at
1077. At the very least, this behavior was arguably suspicious and could have
reasonably lead Officers Smith and Casavan to suspect that Jacobs and his
cohort were hiding something.
[29] The totality of the circumstances are sufficient to give rise to a high degree of
suspicion that criminal or delinquent activity was occurring or had just
occurred. We will therefore consider this factor in the State’s favor.
2. Degree of Intrusion
[30] Jacobs also argues that the police intrusion was unreasonable because the
degree of intrusion upon him was high. The State acknowledges that the degree
of intrusion was not minimal because the police instructed Jacobs to lie on the
ground, handcuffed him, and then took him to the area where the rest of the
group was located. We note, however, that while the degree of intrusion on
Jacobs was undoubtedly high, the degree of the intrusion was increased because
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of Jacobs’s own actions, namely his failure to stop when instructed by Officer
Smith to do so. We will nevertheless consider this factor in Jacobs’s favor.
3. Law Enforcement Needs
[31] Jacobs last argues that the law enforcement needs in the instant matter were
minimal. We cannot agree. Officer Smith was sent to investigate possible gang
activity in a high-crime area where there had been recent reports of gunshots
being fired by potential gang members. It is reasonable to infer that the needs of
law enforcement to protect the community by attempting to stop this repeated
gun violence were great.
[32] Further, Jacobs and his companions looked as if they could have been the
suspected juvenile gang members who were believed to be responsible for the
recent reports of gunshots fired. Many of those gathered were either wearing or
in possession of gang colors. While Jacobs was not wearing the gang colors, at
one point during Officer Smith’s observation of the group Jacobs had a t-shirt
matching the gang colors slung across his shoulder. Further, it appeared that at
least some of those gathered were truant from school. Jacobs, himself, looked
as if he could have been committing the status offense of truancy. In addition,
Jacobs behaved in a suspicious fashion whenever law enforcement approached
the vicinity where the group was gathered, indicating a possible consciousness
of guilt. It is also of note that after the initial detention but before the search of
Jacobs’s person, Jacobs lied to Officer Casavan, who could clearly see the
outline of the handgun in Jacobs’s pocket as he walked Jacobs back to the rest
of the group after restricting Jacobs but before placing him under arrest, about
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whether he was in possession of a weapon. The facts support a finding that law
enforcements needs were great. We will therefore consider this factor in the
State’s favor.
[33] Because we conclude that two of the three Litchfield factors should be
considered in the State’s favor, we further conclude the detention of Jacobs and
the subsequent search of his person were not completed in violation of Jacobs’s
rights under Article I, Section 11.
Conclusion
[34] Having concluded that the handgun in question was not recovered in violation
of either the Fourth Amendment or Article I, Section 11, we conclude that the
trial court did not abuse its discretion in admitting the handgun into evidence.
[35] The judgment of the trial court is affirmed.
Altice, J., concurs.
Crone, J., dissents with opinion.
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 20 of 28
IN THE
COURT OF APPEALS OF INDIANA
Jordan Jacobs, Court of Appeals Case No.
49A02-1601-CR-19
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Crone, Judge, dissenting.
[36] In reversing a criminal defendant’s conviction almost a century ago, the Indiana
Supreme Court stated, “‘Refusal to receive evidence when illegally seized tends
to discourage the practice and thereby protects the innocent as well as the guilty
from obnoxious and disgraceful invasions of their right to privacy and retains
the Fourth Amendment and similar state constitutional provisions
unimpaired.’” Evans v. State, 198 Ind. 487, 490, 154 N.E. 280, 281 (1926)
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 21 of 28
(quoting CORNELIUS ON SEARCH AND SEIZURE at 56).4 In this case, Jacobs is
undeniably guilty of carrying a handgun without a license. But in holding that
the police did not invade his right to privacy by ordering him to the ground and
handcuffing him based on a tenuous suspicion of truancy, the majority has
impaired the Fourth Amendment and Article 1, Section 11 of the Indiana
Constitution for innocent Hoosiers who wish to exercise their constitutional
right to walk away from approaching officers who have no valid reason to
detain them. See Gaddie v. State, 10 N.E.3d 1249, 1254 (Ind. 2014) (“A person
approached by police ‘need not answer any question put to him; indeed, he may
decline to listen to the questions at all and may go on his way. He may not be
detained even momentarily without reasonable, objective grounds for doing so
….’”) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).5
Fourth Amendment
[37] “The Fourth Amendment to the U.S. Constitution protects persons from
unreasonable search and seizure by prohibiting, as a general rule, searches and
4
See also Minnesota v. Carter, 525 U.S. 83, 109 (1998) (“If the illegality of the activity made constitutional an
otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only,
would have little force in regulating police behavior toward either the innocent or the guilty.”) (Ginsburg, J.,
dissenting); United States v. Quinn, 751 F.2d 980, 981 (9th Cir. 1984) (“The Fourth Amendment protects the
guilty because only by doing so can the innocent be protected. The innocent are not mere incidental
beneficiaries of an amendment designed to protect the guilty. The innocent are its primary beneficiaries; the
reasonableness of any expectation of privacy should be ascertained from their standpoint.”) (Sneed, J.,
dissenting), cert. dismissed (1986).
5
See also Olmstead v. United States, 277 U.S. 438, 478 (1928) (“The makers of our Constitution undertook to
secure conditions favorable to the pursuit of happiness.… They conferred, as against the government, the
right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”)
(Brandeis, J., dissenting).
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 22 of 28
seizures conducted without a warrant supported by probable cause.” Clark, 994
at 260. “When a defendant challenges a warrantless search, it is the State’s
burden to prove the search fell within an exception to the warrant
requirement.” J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App. 2014). A person
may be detained without a warrant on less than probable cause if the officer has
a justifiable suspicion that “the suspect has committed a crime, providing the
intrusiveness and nature of the seizure is ‘reasonably related in scope to the
justification for [its] initiation. The officer must be able to point to specific and
articulable facts which reasonably warrant the intrusion upon the individual’s
right of privacy.’” Manigault v. State, 881 N.E.2d 679, 685 (Ind. Ct. App. 2008)
(alteration in Manigault) (quoting Terry, 392 U.S. at 21). “Reasonable suspicion
entails at least a minimal level of objective justification that is more than an
unparticularized suspicion or hunch.” Pugh v. State, 52 N.E.3d 955, 964-65
(Ind. Ct. App. 2016), trans. denied. “Even if justified, a reasonable suspicion
only permits the officer to temporarily freeze the situation for inquiry and does
not give him all the rights attendant to an arrest.” Burkett v. State, 736 N.E.2d
304, 306 (Ind. Ct. App. 2000).
[38] The only arguably relevant facts that Officers Smith and Casavan were able to
articulate as a basis for invading Jacobs’s privacy are that he appeared to be a
juvenile who should have been in school that afternoon,6 walked away from
6
Officer Smith did not specifically state that Jacobs himself appeared to be a juvenile; he merely referred to
Jacobs “and another juvenile[,]” apparently implying that Jacobs also was a juvenile, which he was not. Tr.
at 8 (emphasis added).
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 23 of 28
two marked vehicles that approached him, and disregarded Officer Smith’s
order to stop. Officer Smith was conducting surveillance based on reports that
allegedly gang-affiliated juveniles wearing red clothing had fired gunshots in the
area several days earlier. He watched Jacobs for several hours and saw nothing
to indicate that Jacobs had a gun or was engaging in any gang-related or
criminal activity. Jacobs wore no red clothing that day,7 nor did he flee from
the park ranger or the police officers. Instead, Jacobs merely walked quickly
away from them, which was his constitutional right as well as an
understandable response in light of well-publicized encounters between law
enforcement authorities and other young African-American males. This Court
has previously stated that “[t]he color of one’s skin, the neighborhood one
happens to be in, and the fact that one turns away from the police are not
sufficient, individually or collectively, to establish a reasonable suspicion of
criminal activity.” Tumblin v. State, 664 N.E.2d 783, 785 (Ind. Ct. App. 1996)
(citing Williams v. State, 477 N.E.2d 96, 99 (Ind. 1985)).8
[39] Under the Fourth Amendment, “[t]he baseline rule is that a search or seizure is
ordinarily unreasonable absent individualized suspicion of criminal activity.”
7
Officer Smith testified only that Jacobs had a red t-shirt slung over his shoulder for an unspecified length of
time. There is no evidence that Jacobs owned the t-shirt or had it in his possession when the officers stopped
him.
8
The majority finds it “suspicious” that “Jacobs, who appeared to be a juvenile, was congregating for a
relatively lengthy period of time with suspected gang members in a park during a time of day that juveniles
should have been in school ….” Slip op. at 14. Under that logic, the same could be said for the same group
of juveniles waiting on a school bus in that neighborhood.
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 24 of 28
State v. Gerschoffer, 763 N.E.2d 960, 964 (Ind. 2002) (emphasis added) (citing
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000)). “[M]erely ‘looking
suspicious’ is not sufficient to overcome Fourth Amendment protections against
arbitrary and abusive police practices.” Stalling, 713 N.E.2d at 925 (quoting
Tumblin, 664 N.E.2d at 784). At most, the officers reasonably could have
suspected that Jacobs was truant from school, which is a status offense, not a
criminal offense.9 The State cites no caselaw holding that this suspicion was a
constitutionally permissible reason for stopping Jacobs to investigate, but
assuming for argument’s sake that it was, the stop should have been no more
intrusive than asking him for identification to determine his age. At that point,
the officers had no reason to fear for their safety and no individualized
suspicion that Jacobs had committed a crime or possessed a weapon of any
kind. Nevertheless, they ordered Jacobs to the ground and handcuffed him.
[40] The U.S. Supreme Court has stated that “a seizure that is lawful at its inception
can violate the Fourth Amendment if its manner of execution unreasonably
infringes interests protected by the Constitution.” Illinois v. Caballes, 543 U.S.
405, 407 (2005). I am doubtful that any seizure of Jacobs was lawful under the
totality of the circumstances, but I am convinced that the overly forceful
manner of its execution unreasonably infringed his Fourth Amendment right to
9
The officers did not testify as to how old they believed Jacobs to be. With certain limited exceptions for
those at least sixteen years of age, students are required to attend school until they either graduate or turn
eighteen, whichever occurs first. Ind. Code § 20-33-2-6.
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 25 of 28
be secure from unreasonable seizures.10 Jacobs’s handgun was obtained as a
direct result of this illegality and therefore should have been excluded as fruit of
the poisonous tree. See, e.g., Wilson v. State, 754 N.E.2d 950, 956 (Ind. Ct. App.
2001) (explaining fruit of the poisonous tree doctrine).11
Article 1, Section 11
[41] The purpose of Article 1, Section 11 of the Indiana Constitution “is to protect
from unreasonable police activity those areas of life that Hoosiers regard as
private. This provision must receive a liberal construction in its application to
guarantee the people against unreasonable search and seizure.” Perez v. State,
981 N.E.2d 1242, 1251 (Ind. Ct. App. 2013) (citation omitted), trans. denied. I
respectfully disagree with the majority’s determination that the officers’ conduct
in this case was reasonable under the three-part Litchfield analysis.
[42] First, the officers’ degree of concern, suspicion, or knowledge that Jacobs had
committed a violation of any kind was low. At most, he appeared to be a
juvenile who should have been in school, and he walked away from marked
vehicles and disregarded Officer Smith’s order to stop; as an adult who was
10
“[P]lacing a person in handcuffs may convert an investigatory stop into an arrest depending upon the
totality of the circumstances.” Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010). It is unnecessary to
determine whether handcuffing Jacobs converted his stop into an arrest, but assuming that it did, the arrest
would have been illegal due to a lack of probable cause that he committed an offense of any kind. Cf. State v.
Stevens, 33 N.E.3d 1200, 1204-05 (Ind. Ct. App. 2015) (“Probable cause to arrest exists where the facts and
circumstances within the knowledge of an officer are sufficient to warrant a belief by a person of reasonable
caution that an offense has been committed and that the person to be arrested committed it.”), trans. denied.
11
Any suggestion that the officers would have seen Jacobs’s handgun in his pocket during a less intrusive
seizure is pure speculation.
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 26 of 28
unaware of the officers’ suspicions that he was a truant, Jacobs reasonably
thought that he had every right to do this. He may have been in a high-crime
area near suspected gang members and truant juveniles, but the officers never
saw him engage in any gang-related or criminal activity and never suspected
that he had a weapon until after they seized and handcuffed him.
[43] Second, the majority properly concedes that the degree of police intrusion was
high, although it unfairly blames him for the amount of force used to subdue
him. Instead of briefly detaining Jacobs and asking him for proof of age to
dispel their suspicions of truancy, the officers ordered him to the ground and
handcuffed him. This was unnecessary and unreasonable.
[44] And third, the extent of law enforcement needs in this case was minimal.
Officer Smith was on the lookout for suspected gang members wearing red
clothing who had allegedly fired gunshots in the apartment complex several
days earlier. He had no prior contact with Jacobs, who was not wearing red,
did not appear to have a gun, and did not engage in any gang-related or
criminal activity during the several hours of police surveillance. At most,
Jacobs appeared to be a truant juvenile who had walked away from two marked
vehicles, which would be understandable for someone guilty of a status offense
(which he was not) as well as prudent for any young African-American male
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 27 of 28
who wished to avoid a confrontation with law enforcement. 12 I find it both
interesting and troubling that after watching the people in the park for several
hours and observing no criminal activity, Officer Smith suddenly became
concerned that some of them might be truant from school. His alleged concern
about truancy is undercut by the fact that he waited until after regular school
hours to apprehend them.13
[45] In my view, the balance of these factors weighs decisively in Jacobs’s favor, and
therefore his seizure was unreasonable under Article 1, Section 11 of the
Indiana Constitution. The trial court should have excluded the handgun that
was obtained as a result of the unconstitutional seizure. See Webster v. State, 908
N.E.2d 289, 293 (Ind. Ct. App. 2009) (acknowledging exclusionary rule under
Indiana Constitution), trans. denied. Consequently, I would reverse Jacobs’s
misdemeanor conviction for carrying a handgun without a license.
12
In concluding its Litchfield analysis, the majority gratuitously notes that Jacobs lied to Officer Casavan
about having a handgun in his pocket. This fact is irrelevant to the reasonableness of Jacobs’s seizure under
the Indiana Constitution.
13
Therefore, it likely would have been impossible for the officers to comply with the dictates of Indiana Code
Section 20-33-2-3 if Jacobs had actually been truant. See Ind. Code § 20-33-2-23 (providing that police officer
“may take into custody any child … who is required to attend school … and … is found during school hours
… in a public place …. [T]he officer shall immediately deliver the child to the principal of the … school in
which the child is enrolled.”). The circumstances surrounding the stop militate heavily in favor of a finding
that it was pretextual.
Court of Appeals of Indiana | Opinion 49A02-1601-CR-19 | November 7, 2016 Page 28 of 28