Giavonda Chandler v. State of Indiana (mem. dec.) ( 2016 )


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  • MEMORANDUM DECISION                                                FILED
    Dec 21 2016, 7:48 am
    Pursuant to Ind. Appellate Rule 65(D), this
    Memorandum Decision shall not be regarded as                       CLERK
    Indiana Supreme Court
    precedent or cited before any court except for the                Court of Appeals
    and Tax Court
    purpose of establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
    David L. Joley                                         Gregory F. Zoeller
    Fort Wayne, Indiana                                    Attorney General of Indiana
    Angela N. Sanchez
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Giavonda Chandler,                                         December 21, 2016
    Appellant-Defendant,                                       Court of Appeals Case No.
    02A04-1606-CR-1460
    v.                                                 Appeal from the Allen Superior
    Court
    State of Indiana,                                          The Hon. Wendy Davis, Judge
    The Hon. David M. Zent, Magistrate
    Appellee-Plaintiff.
    Trial Court Cause No. 02D04-1511-
    CM-4574
    Bradford, Judge.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 1 of 10
    Case Summary
    [1]   Early on a morning in November of 2015, two Fort Wayne Police Officers
    responded to a report of a disturbance with shots fired from either a black
    Cadillac or a pickup truck. When the officers encountered a vehicle matching
    the reported description one block away and driving away from the scene, they
    stopped it. Appellant-Defendant Giavanda Chandler and a passenger were
    ordered from the vehicle at gunpoint, patted down for weapons, and
    handcuffed. When one officer attempted to secure the vehicle, he noticed a
    handgun sticking out of a purse on the driver’s seat. Once it was determined
    that Chandler was not licensed to carry a handgun, officers placed her under
    arrest. A search of Chandler’s person revealed a plastic baggie containing
    marijuana, and a search of her purse uncovered a marijuana cigarette. The
    State charged Chandler with Class A misdemeanor carrying a handgun without
    a license and Class B misdemeanor marijuana possession, and the trial court
    found her guilty as charged. Chandler contends that the trial court abused its
    discretion in admitting evidence (1) regarding the course of the officers’
    investigation and (2) seized as a result of the officers’ stop of her vehicle and
    searches of her person and her purse. Because we conclude that Chandler has
    waived her argument with regard to course-of-the-investigation testimony and
    that evidence was not seized from her in violation of her constitutional rights,
    we affirm.
    Facts and Procedural History
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 2 of 10
    [2]   At approximately 4:00 a.m. on November 29, 2015, Fort Wayne Police Officers
    Jason Fuhrman and David Bush responded to a report of a disturbance in the
    1600 block of Elmrow Street. Both officers were informed en route that shots
    had been fired by the occupants of either a black Cadillac or a pickup truck.
    Officer Fuhrman, who was only three blocks away when he received the report,
    approached and observed a black Cadillac STS driving away from the area.
    The STS was approximately one block away from the scene of the disturbance.
    [3]   As Officer Bush approached, driving toward the STS, the STS signaled a turn
    down a roadway on which Officer Fuhrman was approaching but ended up
    continuing through the intersection. Eventually, both officers fell in behind the
    STS and initiated a stop. Both officers remained shielded behind their vehicles’
    doors, drew their weapons, and ordered the driver of the STS to emerge.
    Chandler emerged from the driver’s side, and the officers ordered her to walk
    back to the patrol cars, where they handcuffed her and patted her down for
    weapons. The officers followed the same procedure for the passenger.
    [4]   While Officer Fuhrman was checking the passenger for weapons, Officer Bush
    approached the STS, on which Chandler and the passenger had left the front
    doors open. Officer Bush observed a large handbag on the driver’s seat with a
    handgun clearly visible inside. The officers determined that Chandler did not
    possess a handgun license and arrested her. During a search of Chandler’s
    person, the officers located a small plastic bag of marijuana. The officers also
    conducted an inventory search of the STS before towing it and found a
    marijuana cigarette in Chandler’s handbag.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 3 of 10
    [5]   Later the same day (November 29, 2015), the State charged Chandler with
    Class A misdemeanor carrying a handgun without a license and Class B
    misdemeanor marijuana possession. On April 15, 2016, the trial court found
    Chandler guilty as charged and sentenced her to 180 days of incarceration for
    each count, to be served concurrently. On May 25, 2016, the trial court denied
    Chandler’s motion to correct error.
    Discussion and Decision
    [6]   Both of Chandler’s arguments are that the trial court abused its discretion in
    admitting certain evidence. The admissibility of evidence is within the sound
    discretion of the trial court. Curley v. State, 
    777 N.E.2d 58
    , 60 (Ind. Ct. App.
    2002), trans. denied. We will only reverse a trial court’s decision on the
    admissibility of evidence upon a showing of an abuse of that discretion. 
    Id.
     An
    abuse of discretion may occur if the trial court’s decision is clearly against the
    logic and effect of the facts and circumstances before the court, or if the court
    has misinterpreted the law. 
    Id.
     The Court of Appeals may affirm the trial
    court’s ruling if it is sustainable on any legal basis in the record, even though it
    was not the reason enunciated by the trial court. Moore v. State, 
    839 N.E.2d 178
    , 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh the evidence
    and consider the evidence most favorable to the trial court’s ruling. Hirshey v.
    State, 
    852 N.E.2d 1008
    , 1012 (Ind. Ct. App. 2006), trans. denied.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 4 of 10
    I. Course-of-the-Investigation Evidence
    [7]   Chandler contends that the trial court abused its discretion in admitting course-
    of-the-investigation evidence tending to show why Officers Fuhrman and Bush
    stopped her Cadillac, treated the stop as high-risk, etc. In this appeal, Chandler
    asserts that the course-of-the-investigation testimony was inadmissible hearsay
    that violated her constitutional right to confront those witnesses against her.
    However, the basis on which Chandler now claims that the testimony was
    erroneously admitted, i.e., it tends to show why the officers acted in the manner
    they did, is the very basis on which she conceded it was admissible below.
    Because Chandler is making an argument inconsistent with the one made
    below, she has waived the issue for appellate consideration. The purpose of the
    contemporaneous objection rule is to promote a fair trial by preventing a party from
    sitting idly by and appearing to assent to an offer of evidence or ruling by the court
    only to cry foul when the outcome goes against him. Purifoy v. State, 
    821 N.E.2d 409
    , 412 (Ind. Ct. App. 2005), trans. denied (citation omitted). By assenting to the
    offer of evidence below on the ground that she now challenges, Chandler has
    waived this argument.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 5 of 10
    II. Article 1, Section 11 of the Indiana Constitution
    [8]   Chandler also contends that the trial court abused its discretion in admitting all
    of the evidence seized from her as a result of the stop and search. Article 1,
    Section 11, of the Indiana Constitution1 provides that
    [t]he 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.
    [9]   The Indiana Supreme Court has noted that
    [w]hile almost identical in wording to the federal Fourth
    Amendment, the Indiana Constitution’s Search and Seizure clause
    is given an independent interpretation and application. Mitchell v.
    State, 
    745 N.E.2d 775
    , 786 (Ind. 2001); Baldwin v. Reagan, 
    715 N.E.2d 332
    , 337 (Ind. 1999); Moran v. State, 
    644 N.E.2d 536
    , 540
    (Ind. 1994). To determine whether a search or seizure violates the
    Indiana Constitution, courts must evaluate the “reasonableness of
    the police conduct under the totality of the circumstances.”
    Litchfield v. State, 
    824 N.E.2d 356
    , 359 (Ind. 2005) (citing Moran,
    644 N.E.2d at 539). “We believe that the totality of the
    circumstances requires consideration of both the degree of
    intrusion into the subject’s ordinary activities and the basis upon
    which the officer selected the subject of the search or seizure.” Id.
    at 360. In Litchfield, we summarized this evaluation as follows:
    1
    Chandler also argues on appeal that her rights pursuant to the Fourth Amendment to the United States
    Constitution were violated. Chandler’s argument at trial, however, was limited to an alleged violation of the
    Indiana Constitution. Chandler may not now raise this ground on appeal. “A party may not object on one
    ground at trial and raise a different ground on appeal.” White v. State, 
    772 N.E.2d 408
    , 411 (Ind. 2002).
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016         Page 6 of 10
    In sum, although we recognize there may well be
    other relevant considerations under the
    circumstances, we have explained reasonableness of a
    search or seizure as turning on a balance of: 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
    citizens’ ordinary activities, and 3) the extent of law
    enforcement needs.
    Id. at 361.
    Myers v. State, 
    839 N.E.2d 1146
    , 1153 (Ind. 2005).
    [10]           Investigatory stops invoke the Article 1, Section 11 protections of
    the Indiana Constitution. Rutledge v. State, 
    426 N.E.2d 638
    , 642
    (Ind. 1981). An individual’s right of free movement under
    Article 1, Section 11 is not absolute, for society has a right to
    protect itself. Williams v. State, 
    261 Ind. 547
    , 551, 
    307 N.E.2d 457
    , 460 (Ind. 1974). In balancing these factors, our courts gauge
    the reasonableness of an investigatory stop by striking “‘a balance
    between the public interest [behind the investigation] and the
    individual’s right to personal security free from arbitrary
    interference from law officers.’” Platt v. State, 
    589 N.E.2d 222
    ,
    225 (Ind. 1992) (alteration in original) (quoting United States v.
    Brignoni-Ponce, 
    422 U.S. 873
    , 878, 
    95 S. Ct. 2574
    , 45 L .Ed. 2d
    607 (1975)).
    An investigatory stop of a citizen by a police officer does not
    violate that citizen’s constitutional rights if the officer has a
    reasonably articulable suspicion of criminal activity. Lampkins v.
    State, 
    682 N.E.2d 1268
    , 1271 (Ind. 1997) (citing Terry v. Ohio, 
    392 U.S. 1
    , 30, 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
     (1968); United States
    v. Hatch, 
    827 F. Supp. 536
    , 541 (N.D. Ind. 1993)). Reasonable
    suspicion is a “somewhat abstract” concept that is not readily
    reduced to a “neat set of legal rules.” United States v. Arvizu, 
    534 U.S. 266
    , 274, 
    122 S. Ct. 744
    , 151 L .Ed. 2d 740 (2002). As the
    Court of Appeals has written on the topic,
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 7 of 10
    A police officer may briefly detain a person for investigatory
    purposes without a warrant or probable cause if, based upon
    specific and articulable facts together with rational inferences
    from those facts, the official intrusion is reasonably warranted
    and the officer has a reasonable suspicion that criminal activity
    “may be afoot.”
    Combs v. State, 
    851 N.E.2d 1053
    , 1057 (Ind. Ct. App. 2006).
    State v. Renzulli, 
    958 N.E.2d 1143
    , 1146 (Ind. 2011).
    [11]   Here, the officers were provided information regarding an alleged shooting by
    police dispatch, the source of which information was not divulged at trial.
    Consequently, we shall assume that the source was an anonymous tip.
    The trustworthiness of hearsay from an informant can be
    established in a number of ways, including where (1) the
    informant has given correct information in the past; (2)
    independent police investigation corroborates the informant’s
    statements; (3) some basis for the informant’s knowledge is
    shown; or (4) the informant predicts conduct or activities by the
    suspect that are not ordinarily easily predicted. Scott v. State, 
    883 N.E.2d 147
     (Ind. Ct. App. 2008). Where a tip from a
    confidential informant is “completely lacking in indicia of
    reliability and the record offers no evidence that the confidential
    informant was reliable[,] the tip [is] ... inadequate” to establish
    reasonable suspicion. Johnson v. State, 
    659 N.E.2d 116
    , 119 (Ind.
    1995).
    Teague v. State, 
    891 N.E.2d 1121
    , 1128-29 (Ind. Ct. App. 2008), trans. denied.
    [12]   Under the circumstances of this case, we conclude that the police had a
    reasonably high degree of concern that Chandler’s vehicle had been involved in
    a shooting. Officers initially responded to a report of a disturbance and were
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 8 of 10
    soon thereafter informed that it was believed that shots had been fired from a
    black Cadillac or pickup truck. Although there is no indication that either the
    officers or dispatch knew the identity of the tipster, the evolving nature of the
    information provided to the officers over a short period of time leads to an
    inference that the tipster was a witness at the scene, with dispatch passing along
    information to the officers as it was received.
    [13]   Of greater importance, the officers were able to corroborate the information
    relayed to them almost immediately. Officer Fuhrman was three blocks away
    from the reported scene of the shooting when he responded, encountering a
    black Cadillac a block away from the scene traveling away from it. It should
    also be noted that the Cadillac signaled a turn onto a street occupied by Officer
    Bush but did not complete the turn. It may be inferred that Chandler decided
    not to complete her turn upon observing Officer Bush in his fully-marked police
    vehicle. Finally, the events at issue occurred at 4:00 a.m., when traffic is likely
    to be very light, thereby greatly lessening the chances that police would stop a
    vehicle based on mistaken identity. The time of day; the fact that Chandler’s
    vehicle matched the description; the seeming attempt to evade the police; the
    proximity to, and travel away from, the scene of the alleged shooting; and the
    very short time that elapsed before Chandler’s vehicle was seen provided
    officers with sufficient specific information to corroborate the tip and
    reasonably believe that her Cadillac STS was the one that had been involved in
    the alleged shooting.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 9 of 10
    [14]   Also considering the circumstances, the degree of intrusion into Chandler’s
    activities was not inappropriately severe. Officers, reasonably believing that
    they were stopping a vehicle from which shots had just been fired, employed
    procedures for a high-risk stop. While protecting themselves, the officers
    ensured first that the visible passengers were not armed and dangerous and then
    verified that no other possible shooters remained in the Cadillac. It was Officer
    Bush in the process of securing the vehicle who noticed the handgun in plain
    sight in Chandler’s purse. Only after determining that Chandler was not
    licensed to possess a handgun were further searches conducted incident to the
    arrests of her and her passenger.
    [15]   Finally, the needs of law enforcement were great. Officers were responding to a
    report of a disturbance with shots fired, possibly to confront a person who had
    already fired a weapon, was fleeing the scene, and was likely still armed. The
    need to respond quickly to a report of shots fired in order to protect the public
    and authorities is obvious. Under the circumstances, the officers’ actions in
    stopping Chandler’s vehicle—and afterwards—were reasonable. Chandler has
    failed to establish that her rights pursuant to Article 1, Section 11 were violated.
    [16]   The judgment of the trial court is affirmed.
    Vaidik, C.J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016   Page 10 of 10