MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 28 2016, 8:27 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Gregory F. Zoeller
Brooke Smith Attorney General of Indiana
Keffer Barnhart, LLP
Indianapolis, Indiana Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Venus G. Graves, November 28, 2016
Appellant-Defendant, Court of Appeals Case No.
82A04-1509-CR-1309
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli Fink,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1412-F4-5251
May, Judge.
[1] Venus G. Graves appeals the denial of her motion to suppress the evidence
collected from her after a police officer stopped her outside a Target store.
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Because the officer had reasonable suspicion to conduct the brief investigatory
stop, we affirm and remand for further proceedings.
Facts and Procedural History
[2] On December 13, 2014, Jason Martin was working as a security officer at a
Target in Evansville, Indiana. He was at the front of the store when two
women, later identified as Graves and Valerie Nelson, entered the store.
Martin recognized the women because they had shoplifted alcohol from the
store in the past month. Martin retreated to the security room to watch the
women’s movements with the store’s video surveillance. From the security
cameras, Martin saw Nelson walking toward the alcohol aisle, but he could not
immediately locate Graves. Martin saw Nelson place two bottles of alcohol in
her purse. Martin called 9-1-1 and reported he had two women in his store who
had shoplifted together on a prior occasion and one of them had just placed two
bottles of alcohol in her purse. Martin relayed descriptions of the two women
to the operator. Martin continued watching and saw the two women meet and
then separate again to continue shopping.
[3] Officer Nick Sammet of the Evansville Police Department was dispatched to
the store for a “theft in progress.” (Tr. Vol. 1 at 21.) He parked his cruiser
along the sidewalk just outside the entrance to the store and waited for one of
the women to exit. He testified:
The information I had from dispatch was that there were two
black females in the store, they gave two different clothing
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descriptions, said that they had concealed alcohol, and that they
had separated, and one of them was beginning to exit the store.
(Id. at 22.) Because Graves matched the descriptions he had received, Officer
Sammet “decided to basically stop her and determine if she was involved.” (Id.
at 23.) He approached Graves and
asked her if she knew why I was stopping her, I asked her to step
to the side out of the road, which she did, she started to walk
over to the sidewalk area of the front of the store. I asked her if
she had anything on her, and as I started to ask her that, she
started putting her hands in her pockets, and I noticed that she
started dropping items from the ground or from her pockets to
the ground even after I asked her to remove her hands. She just
continually kept putting her hands in and out of her pockets. . . .
[S]he continually reached in her pockets and pulled more items
out after I had told her to get her hands out of her pockets. . . .
She wasn’t throwing [the items] or tossing them, but it was just
pulling her hand out and dropping whatever she grabbed.
(Id. at 25-26.) The dropped items included “lots of jewelry,” (id. at 26), which
Officer Sammet collected, and then he walked Graves back into the Target store
to determine whether the jewelry had been stolen from the store. After loss
prevention workers determined the jewelry matched that available in the store,
Officer Sammet placed Graves under arrest for theft and, incident to that arrest,
searched her purse for additional items stolen from Target. In her purse, he
found two clear bags, one containing a white substance and one containing a
green leafy substance.
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[4] The State charged Graves with Level 4 felony dealing in cocaine, 1 Level 6
felony theft, 2 and Class A misdemeanor possession of a synthetic drug. 3 Graves
filed a motion to suppress the evidence collected from her when Officer
Sammet stopped her. After a hearing, the trial court denied her motion.
Graves moved for the court to stay proceedings and to certify its denial for
interlocutory appeal. The trial court certified its order, and the appellate court
granted permission for Graves to file an interlocutory appeal.
Discussion and Decision
[5] 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.
We defer to the trial court’s findings of fact unless they are clearly
erroneous, and we will not reweigh the evidence. When the trial
court’s denial of a defendant’s motion to suppress concerns the
constitutionality of a search or seizure, however, it presents a
question of law, and we address that question de novo.
Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014) (internal citations omitted).
1
Ind. Code §§ 35-48-4-1 (2014).
2
Ind. Code § 35-43-4-2(a) (2014).
3
Ind. Code § 35-48-4-11.5(c).
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Fourth Amendment
[6] The Fourth Amendment to the United States Constitution protects citizens
against unreasonable searches and seizures by generally prohibiting them from
occurring without a warrant supported by probable cause. U.S. Const. amend.
IV. To deter State actors from violating that prohibition, evidence obtained in
violation of the Fourth Amendment generally is not admissible in a prosecution
of the citizen whose right was violated. Clark v. State, 994 N.E.2d 252, 260 (Ind.
2013). The State has the burden of demonstrating the admissibility of evidence
collected during a seizure or search. Id.
[7] One exception to that general prohibition against warrantless search or seizure
is the Terry stop, which permits an officer to stop and briefly detain someone for
investigation if the articulable facts known to the officer create a reasonable
suspicion that criminal activity “may be afoot.” Robinson, 5 N.E.3d at 367
(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). The officer need not have
probable cause to conduct such a stop, but there must be objective facts to
justify thinking the citizen “stopped is, or is about to be, engaged in criminal
activity.” Id. (quoting Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009)).
Reasonable suspicion must be based on more than “hunches.” Clark, 994
N.E.2d at 263.
The totality of the circumstances - the whole picture - must be
taken into account. Based upon that whole picture the detaining
officers must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity. In
assessing the whole picture, we must examine the facts as known
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to the officer at the moment of the stop. We review findings of
reasonable suspicion de novo. This is necessarily a fact-sensitive
inquiry.
Id. at 264 (internal citation and quotations omitted).
[8] At the moment Officer Sammet approached Graves, he had received
information she had entered the store with a second woman, Nelson, with
whom, on a prior occasion, Graves reportedly had shoplifted alcohol. He had
received information Nelson had, on this occasion, placed bottles of alcohol
into her purse, but had not yet left the store. He also received information the
women had separated inside the store and Target employees were unsure
whether or not Graves had any stolen merchandise on her person as she left the
store because they had not been able to find her on the security cameras at all
times.
[9] While those facts would not have produced probable cause for Officer Sammet
to place Graves under arrest at that moment, they did not need to produce
probable cause. See, e.g., Mayfield v. State, 402 N.E.2d 1301, 1306 (Ind. Ct. App.
1980) (“A police officer does not need to have probable cause to arrest in order
to make an investigatory stop.”), reh’g denied. Instead, Officer Sammet needed a
particularized and objective basis to suspect Graves was part of the criminal
activity that was “afoot.” Terry, 392 U.S. at 30. It was reasonable for Officer
Sammet to momentarily freeze the situation to investigate Graves’ connection
to the theft that Nelson was in the process of committing. See Mack v. State, 177
Ind. App. 537, 542-3, 380 N.E.2d 592, 596 (1978) (where car matched
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description of car spotted in vicinity of a theft and the occupants “may have
been involved” in the theft, investigatory stop of car was permissible under the
Fourth Amendment). The trial court did not err by declaring the evidence was
admissible under the Fourth Amendment.
Article One, Section 11
[10] Article One, Section 11 of the Indiana Constitution provides:
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.
[11] When an investigatory stop occurs, a citizen’s right to that constitutional
protection is implicated. State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind. 2011).
Nevertheless, a citizen’s right to move about freely is not “absolute,” as we
must balance each person’s right to be free from interference against the public
interest in investigating crimes and protecting itself. Id.
When a defendant raises a Section 11 claim, the State must show
the police conduct “was reasonable under the totality of the
circumstances.” We consider three factors when evaluating
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.”
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Robinson, 5 N.E.3d 368 (internal citations omitted).
[12] Officer Sammet stopped Graves momentarily to assess whether she was
involved in the shoplifting in progress by Nelson, with whom Graves arrived at
the store and with whom Graves had shoplifted less than one month earlier.
That brief stop was not so great an intrusion as to be unreasonable in light of
Nelson’s ongoing crime and Graves’ connection to Nelson. See, e.g., J.J. v.
State, 58 N.E.3d 1002, 1005-6 (Ind. Ct. App. 2016) (investigatory stop
reasonable under Article 1, Section 11 when officers knew juveniles leaving
scene of verbal altercation with another group of juveniles may return to fight).
Conclusion
[13] Officer Sammet had reasonable suspicion to conduct an investigatory stop
under the Fourth Amendment of the United States Constitution, and the stop
was reasonable under Section 11 of Article 1 of the Indiana Constitution.
Accordingly, we affirm the trial court’s denial of Graves’ motion to suppress
and remand for further proceedings.
[14] Affirmed and remanded.
Baker, J., and Brown, J., concur.
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