MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Sep 28 2018, 10:23 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ricky Hill, September 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-550
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese Flowers,
Appellee-Plaintiff Judge
The Honorable James Kevin
Snyder, Commissioner
Trial Court Cause No.
49G20-1711-F4-45646
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-550 | September 28, 2018 Page 1 of 8
Case Summary
[1] Ricky Hill appeals his conviction for level 4 felony unlawful possession of a
firearm by a serious violent felon. He argues that the trial court abused its
discretion in admitting a firearm, which he contends was seized in violation of
his right against unreasonable search and seizure guaranteed in Article 1,
Section 11 of the Indiana Constitution. We agree and therefore reverse.1
Facts and Procedural History
[2] On November 22, 2017, around 6:30 a.m., Indiana State Trooper Shana
Kennedy drove to an Indianapolis McDonald’s to meet Probationary Trooper
McKinley Finley. As Trooper Kennedy drove into the parking lot, she passed
the handicapped parking spots and observed that a black Chevrolet without
either a handicapped license plate or placard was parked in one of the spaces.
She also noticed a person, later identified as Hill, in the front passenger seat
who appeared to be asleep. Trooper Kennedy parked in the parking row facing
the handicapped spots. Trooper Finley had already arrived and walked over to
Trooper Kennedy’s vehicle. Trooper Kennedy said to Trooper Finley, “[L]et’s
go over there and find out where the driver’s at.” Tr. Vol. 2 at 12. Trooper
Kennedy wanted to find out where the driver of the Chevrolet was so that she
could issue a parking citation because the car was illegally parked. Id. at 15.
Additionally, Trooper Kennedy had been informed by McDonald’s personnel
1
Because we reverse on state constitutional grounds, we do not address Hill’s claim based on the Fourth
Amendment to the United States Constitution.
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that people had been using syringes in the parking lot, so when she noticed
someone sleeping she conducted a well-being check. Id. at 13-14.
[3] Trooper Kennedy went to the Chevrolet’s driver’s side window, and Trooper
Finley went to the passenger window. Trooper Kennedy observed that “it
didn’t appear that [Hill] was in distress or anything[,] but because it was cold
and he had a jacket on[,] it was also hard to see movement of the chest.” Id. at
15 (vocal hesitations omitted). Trooper Kennedy told Trooper Finley “to knock
on the window to wake [Hill] up and … find where was the driver.” Id.
Trooper Finley knocked on the window but failed to wake up Hill. Trooper
Kennedy started knocking on the window and immediately saw Hill start
patting down his side and front and around his pockets with both hands. Based
on her twenty-seven years of experience, Trooper Kennedy believed that the
way Hill was patting himself indicated that he had a weapon or was trying to
dispose of something that he did not want the police to find. Id. at 16. As soon
as she saw Hill start to pat himself, Trooper Kennedy told Trooper Finley to get
Hill out of the car. Id.
[4] Trooper Finley opened the door, and Hill exited the vehicle “with no problem.”
Id. at 17. Trooper Kennedy came around the front of the car and “grabbed,
touched … kind of pushed [Hill] around [be]cause [she] wanted him to face the
car.” Id. She told Hill, “I need you to turn around [and] face the car,” and Hill
complied. Id. Trooper Kennedy informed Hill, “[W]e’re just going to
temporarily detain you for our safety and yours until we figure out what’s going
on here.” Id. As Trooper Kennedy held Hill’s right wrist, Trooper Finley
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began putting a handcuff on Hill’s left wrist. At that moment, Trooper
Kennedy thought that Trooper Finley said her name, which caused her to look
down, and she saw a revolver in a holster on Hill’s right hip. Trooper Kennedy
removed the gun and put the handcuff on Hill’s right wrist. The gun was
identified as a .357 caliber Taurus revolver. A records check revealed that Hill
had a conviction for class B felony conspiracy to commit robbery.
[5] The State charged Hill with level 4 felony unlawful possession of a firearm by a
serious violent felon. In January 2018, a bench trial was held. Trooper
Kennedy testified for the State. Hill objected to the admission of the revolver
on the basis that the patdown search the officers intended to perform was
unconstitutional. The trial court overruled the objection and admitted the
revolver. Hill was found guilty and sentenced to six years. This appeal ensued.
Discussion and Decision
[6] Hill asserts that the gun was inadmissible because it was confiscated in violation
of his state constitutional right against unreasonable search and seizure.
“When reviewing a trial court’s ruling on the admissibility of evidence resulting
from an allegedly illegal search, we do not reweigh the evidence, and we
consider conflicting evidence most favorable to the trial court’s ruling.” Conn v.
State, 89 N.E.3d 1093, 1097 (Ind. Ct. App. 2017), trans. denied (2018).
However, the constitutionality of a search or seizure is a pure question of law
that we review de novo. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
[7] Article 1, Section 11 of the Indiana Constitution provides,
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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.
[8] “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). “In cases
involving a warrantless search, the State bears the burden of proving an
exception to the warrant requirement.” Id. “[E]vidence obtained pursuant to
an illegal search is inadmissible at trial.” Blankenship v. State, 5 N.E.3d 779, 782
(Ind. Ct. App. 2014). The purpose of the exclusionary rule is to deter police
misconduct and encourage compliance with constitutional standards. Id.
[9] “Although its text mirrors the federal Fourth Amendment, we interpret Article
1, § 11 of our Indiana Constitution separately and independently.” Robinson v.
State, 5 N.E.3d 362, 368 (Ind. 2014).
Notably, instead of focusing on the defendant’s reasonable
expectation of privacy, we focus on the actions of the police
officer, and employ a totality-of-the-circumstances test to
evaluate the reasonableness of the officer’s actions. We give
Article 1, Section 11 a liberal construction in favor of protecting
individuals from unreasonable intrusions on privacy. Further, it
is the State’s burden to prove its intrusion was reasonable under
the circumstances. To determine reasonableness, we consider:
“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,
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and 3) the extent of law enforcement needs.” Litchfield v. State,
824 N.E.2d 356, 361 (Ind. 2005).
Randall v. State, 101 N.E.3d 831, 841 (Ind. Ct. App. 2018) (citations and
quotation marks omitted), trans. denied.
[10] Hill asserts that the troopers had no legitimate reason to approach the vehicle.2
We disagree. The troopers were aware that syringes had been found in the
parking lot, and Hill appeared to be asleep or unconscious, which together
supported a reasonable concern as to Hill’s well-being. In addition, it is
undisputed that a parking infraction had been committed by the driver of the
vehicle that Hill was sitting in, and Hill’s presence in the vehicle supported a
reasonable belief that he would have information regarding the driver’s
whereabouts. Police officers “may engage in limited interaction with citizens,
short of seizing the individual, to help determine whether further investigation
is or is not warranted.” State v. Lefevers, 844 N.E.2d 508, 516 (Ind. Ct. App.
2006), trans. denied.
[11] In any event, because the troopers saw the gun and removed it while they were
handcuffing Hill in preparation to pat him down, the key question is whether
2
The State argues that Hill waived any claim that the troopers’ “initial contact and detention” violated his
constitutional right because he failed to present this argument to the trial court. Appellee’s Br. at 14. At trial,
Hill’s attorney objected to the legality of the patdown search, but at one point appeared to concede that the
troopers could have legally ordered him out of the vehicle as part of their investigation of the parking
infraction. Given the facts of this case, the decision of the troopers to remove Hill from the vehicle is
intrinsically linked to their decision to pat down Hill, and therefore we decline to find that Hill waived any
argument related to his removal from the vehicle.
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the troopers’ removal of Hill from the vehicle specifically to handcuff him to
perform a pat down was reasonable under the totality of the circumstances.
Clearly, the degree of intrusion imposed on Hill was significant. Hill was
sleeping in the passenger seat of a parked vehicle in a fast-food restaurant
parking lot when he was disturbed by knocking on the window, then suddenly
removed from the vehicle, pushed by a trooper to face the vehicle, grabbed by
two troopers, and handcuffed. When balanced against the degree of concern
that a crime had been committed and the needs of law enforcement, we cannot
conclude that this degree of intrusion was constitutionally reasonable. The
troopers were investigating a parking infraction, which they did not suspect Hill
of committing. Although the vehicle was illegally parked in a handicapped
spot, it was not blocking traffic or otherwise creating a hazard. Further,
although the troopers may initially have had a legitimate basis to check on
Hill’s well-being, when Trooper Kennedy looked into the vehicle, Hill did not
appear to be in any distress. Significantly, the troopers did not observe any
evidence, such as a syringe in or near the car, that remotely suggested that Hill
might have been using drugs.
[12] When the troopers knocked on the windows to ask him about the driver, Hill
was startled and patted himself. Trooper Kennedy testified that Hill’s
movements precipitated his removal from the vehicle for a patdown. However,
we cannot agree that Hill’s act of patting himself upon being suddenly
awakened indicated, by itself, that he posed any material threat to the troopers’
safety. See Swanson v. State, 730 N.E.2d 205, 211 (Ind. Ct. App. 2000)
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(concluding, in the context of both federal and state constitutional challenges to
a patdown, that defendant’s presence in an area known for drugs and his having
his hands in his pockets were not sufficient to cause a reasonable officer to fear
for his safety), trans. denied. The troopers did not suspect Hill of having
committed any crime or wrongdoing. Thus, the need for law enforcement to
remove Hill from the vehicle, handcuff him, and pat him down was minimal at
most. Based on the totality of the circumstances, we conclude that the troopers’
removal of Hill from the vehicle to handcuff him and perform a pat down was
unreasonable and violated Hill’s Indiana constitutional right against
unreasonable search and seizure. Accordingly, the gun discovered by the
troopers during the handcuffing was inadmissible, and the trial court abused its
discretion in admitting it. Because the State offered no other evidence against
Hill, we must reverse his conviction.
[13] Reversed.
Najam, J., and Pyle, J., concur.
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