Derek Scisney v. State of Indiana
2016 Ind. App. LEXIS 162
| Ind. Ct. App. | 2016Background
- Officers received a dispatch of “shots fired” by a white male in a high‑crime area and began canvassing nearby streets.
- Officer Fekkes located a white male in a blue shirt and a black male (Scisney) walking together; she activated lights, contacted the white male, and patted him down.
- As Fekkes spoke with the white male, Scisney quickened his pace, avoided eye contact, and touched the right side of his waistband.
- Officer Wogan parked, exited his marked car (no lights), asked Scisney if he could speak with him and whether he had any weapons; Scisney did not answer.
- As Scisney approached and came within reach, Wogan immediately performed a Terry pat‑down, felt a pistol, attempted to remove it, and Scisney fled; the gun fell and Scisney was later apprehended.
- Scisney moved to suppress the firearm; the trial court denied the motion, convicted him of unlawful possession by a serious violent felon and resisting law enforcement, and the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Scisney) | Held |
|---|---|---|---|
| Whether the encounter with Officer Wogan was consensual or a seizure triggering Fourth Amendment scrutiny | Officer: question to speak made the encounter non‑consensual given marked cars, uniforms, and activated lights — reasonable person would not feel free to leave | Scisney: the encounter was consensual, so no Fourth Amendment issue | Court: encounter became non‑consensual when officer asked to speak; Fourth Amendment applies |
| Whether Officer Wogan had reasonable suspicion to justify a Terry stop and pat‑down for weapons | The totality (shots‑fired dispatch, high‑crime area, matching pair where one matched suspect description, Scisney’s avoidance, waistband touch) established reasonable suspicion that criminal activity was afoot and that he might be armed | Scisney: touching his waistband and walking away were insufficient to create particularized reasonable suspicion for a stop or a weapons pat‑down | Court: affirming trial court, these facts gave particularized, objective reasonable suspicion and justified the protective pat‑down; admission of the firearm was proper |
Key Cases Cited
- Clark v. State, 994 N.E.2d 252 (Ind. 2013) (standard for reviewing admission of evidence and distinguishing consensual encounters, arrests, and Terry stops)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (establishes reasonable‑suspicion standard for brief investigative stops and limited protective searches)
- Ybarra v. Illinois, 444 U.S. 85 (U.S. 1979) (limits scope of Terry pat‑downs to persons reasonably suspected of being armed)
- Holly v. State, 918 N.E.2d 323 (Ind. 2009) (discusses that officers must have reasonable suspicion that criminal activity is afoot)
- Bell v. State, 13 N.E.3d 543 (Ind. Ct. App. 2014) (pat‑down permissible where officer reasonably believes person is armed and dangerous)
- Bridgewater v. State, 793 N.E.2d 1097 (Ind. Ct. App. 2003) (presence in a high‑crime area is a factor but not alone dispositive)
- Stalling v. State, 713 N.E.2d 922 (Ind. Ct. App. 1999) (movement toward waistband alone insufficient to support reasonable suspicion)