L.W. v. State

BRADFORD, Judge,

dissenting.

Believing, as I do, that ample reasonable suspicion existed to stop and frisk LW., I would not reverse L.W.'s delinquency adjudications on the basis that reasonable suspicion did not exist. I would first like to take this opportunity to include a few words on the general nature of reasonable suspicion.

*61The officer [making a Terry stop] ... must be able to articulate something more than an inchoate and unparticular-ized suspicion or hunch. The Fourth Amendment requires some minimal level of objective justification for making the stop. That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means a fair probability that contraband or evidence of a crime will be found, and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.

Alabama v. White, 496 U.S. 825, 329-30, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (citations and quotation marks omitted). Along the same lines, the Indiana Supreme Court has recently noted that "[rJeasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, but it still requires at least a minimal level of objective justification and more than an inchoate and unpar-ticularized suspicion or "hunch" of criminal activity. State v. Schlechty, 926 N.E.2d 1, 7-8 (Ind.2010) (citing Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). It is clear from the above that a police officer does not need to have anything close to proof that a certain person committed a crime in order to justify a Terry stop, a threshold easily met in this case, in my view.

As an initial matter, as the majority acknowledges, the record indicates that the tip received by police was not, in fact, anonymous, but provided by one Brandon Shockley. (Tr. 18). Although the record is not explicit as to when Shockley's identity was discovered, the most reasonable inference is that he identified himself to police when providing his tip. Moreover, it is of no moment that Officer Cantrell was not aware of Shockley's identity before the stop of LW., so long as somebody in the Lawrence Police Department was. "In Indiana, the knowledge of the entire police force may be imputed to an arresting or searching officer." Mayfield v. State, 402 N.E.2d 1301, 1306 n. 4 (Ind.Ct. App.1980) (citing State v. Mooney, 398 N.E.2d 698, 700 (Ind.Ct.App.1979)). Unlike the majority, I am not inclined to disregard evidence that the tipster's identity was known, regardless of the State's lack of reliance on it. I believe this approach to be consistent with the standard of review we employ when reviewing the validity of a search and seizure, which requires us to "consider the evidence most favorable to the ruling and any uncontra-dicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling." Callahan v. State, 719 N.E.2d 4830, 434 (Ind.Ct.App.1999) (citing Melton v. State, 705 N.E.2d 564, 566 (Ind.Ct.App.1999)). Moreover, it is well-settled that "[wle are bound to affirm the action of the [Juvenile] court if any valid basis exists to support it." State v. Keith, 482 N.BE.2d 751, 754 (Ind.Ct.App.1985). So, at the outset, I would consider the evidence that the tipster was known and not, in fact, anonymous.

With this in mind, I believe that the fact that the tipster's identity was known to police was sufficient, by itself, to justify Officer Cantrell's stop. "The United States Supreme Court ... has indicated that while a tip from an identified or known informant may not be sufficient to support a probable ecause finding, such tips are sufficiently reliable to justify an investigatory Terry stop." Kellems v. State, 842 N.E.2d 352, 355 (Ind.2006) (citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) and Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). This is not, *62however, the only indication of the tip's reliability, in my view.

I also believe that the fact that Shockley was apparently a concerned citizen (as opposed to a professional police informant) further indicates the tip's reliability. The Indiana Supreme Court has observed that information received from concerned citizens is generally more reliable than that received from professional informants and that concerned citizens

generally come forward with information out of the spirit of good citizenship and the desire to assist law enforcement officials in solving erime. They are usually one-time informants and no basis exists from prior dealings to determine their reliability. Further, information of this type usually goes to past completed crimes rather than future or continuing crimes. Some jurisdictions have therefore held that informants of this type are to be considered reliable ... unless incriminating cireumstances exist which cast suspicion upon the informant's reliability.

Pawloski v. State, 269 Ind. 350, 354, 380 N.E.2d 1230, 1232-33 (Ind.1978). Given that there are no circumstances casting suspicion on Shockley's honesty, his status as a concerned citizen further increases the reliability of his information.

Finally, I believe that the tip indicates Shockley's inside knowledge, bolstering its reliability even more. See, e.g., Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ("As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop."" (citation omitted)). Even though the record does not disclose the precise information conveyed, Shockley's tip obviously contained at least one piece of information not yet available to the general public, i.e., that a burglary had recently occurred in the area.4 The tip was therefore corroborated by what the police already knew. When Officer Cantrell encountered LW. two blocks from Chisolm's home, he fit Shockley's description "to a T" and had bulging pockets, which might have contained a weapon.

In summary, I1 believe that Officer Cantrell's stop of LW. was justified by reasonable suspicion that he was involved in the burglary of Chisolm's residence. Moreover, Officer Cantrell was justified in patting LW. down solely on the basis that he was suspected of committing the inherently dangerous crime of burglary. See N.W. v. State, 834 N.E.2d 159, 165 (Ind.Ct.App.2005), trans. denied. I would not reverse L.W.'s adjudications on the basis that police lacked reasonable suspicion to stop him under the Fourth Amendment.

As for LW .s claim on appeal that the pat-down ran afoul of Article 1, Section 11, of the Indiana Constitution, LW. did not make that argument below and I would conclude that he has waived it for appellate consideration. See, e.g., N.W. v. State, 834 N.E.2d 159, 162 n. 2 (Ind.Ct.App.2005), trans. denied. Moreover, after evaluating L.W.'s remaining claims on appeal, I find them to be without merit and so would affirm the juvenile court's judgment in all respects. As such, I must respectfully dissent.

. We know this because the police dispatcher broadcast the description Shockley gave them as being that of the suspect in the burglary at Chisolm's residence.