Jordan JACOBS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 49A02-1601-CR-19.
Court of Appeals of Indiana.
Nov. 7, 2016.
1253
Conclusion
[12] As the evidence was sufficient to prove Thacker knowingly or intentionally exerted unauthorized control over a stolen vehicle and resisted law enforcement, we affirm.
[13] Affirmed.
KIRSCH, J., and CRONE, J., concur.
Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Christina Pace, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
BRADFORD, Judge.
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 History1
[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
Ruth Johnson, Marion County Public Defender, Darren Bedwell, Marion County
[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 30th 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 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
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 Jacobs‘s rights under the
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 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
A. Legal Authority
[11] The
[12] An officer may briefly detain someone to investigate, without a warrant or probable cause, if specific and articulable facts and the rational infer-
B. Analysis
[13] In arguing that the handgun was recovered in violation of his
[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 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
[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” is fact-sensitive. Wilson v. State, 670 N.E.2d 27, 30-31 (Ind. Ct.App.1996).
1. Stalling and Bridgewater
[15] In support of his claim that the handgun was recovered in violation of his
[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
[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
[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
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.
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.
[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 indeed 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 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
[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.
III. Article I, Section 11
[24] Jacobs alternatively argues that even if the search of his person was not conducted in violation of his
A. Legal Authority
[25]
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
[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 of the intrusion itself. D.F., 34 N.E.3d 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 Casa-
[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 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 whether he was in possession of a weapon. The facts support a finding that law enforcement needs were great. We will therefore consider this factor in the State‘s favor.
Conclusion
[34] Having concluded that the handgun in question was not recovered in violation of either the
[35] The judgment of the trial court is affirmed.
ALTICE, J., concurs.
CRONE, J., dissents with opinion.
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
[37] “The
[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 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
[40] The U.S. Supreme Court has stated that “a seizure that is lawful at its inception can violate the
Article 1, Section 11
[41] The purpose of
[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 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
[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 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
In re the Termination of the Parent-Child Relationship of A.W. and G.S.:
H.S. (Mother), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
No. 54A01-1604-JT-1090.
Court of Appeals of Indiana.
Nov. 10, 2016.