L.L. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 31 2019, 9:25 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Isabella H. Bravo Curtis T. Hill, Jr.
Monroe Co. Public Defender Attorney General of Indiana
Bloomington, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
L.L., May 31, 2019
Appellant, Court of Appeals Case No.
18A-JV-2768
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Stephen R. Galvin,
Appellee. Judge
Trial Court Cause No.
53C07-1808-JD-610
Pyle, Judge.
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Statement of the Case
[1] L.L. (“L.L.”) appeals the juvenile court’s true finding that he committed a
delinquent act, which, if committed by an adult, would constitute Class A
misdemeanor conversion.1 Specifically, the juvenile court concluded that L.L.
had exercised unauthorized control over Robert Drew’s (“Drew”) personal
checks (“the Checks”). L.L., however, argues that the juvenile court abused its
discretion when it admitted the Checks into evidence. Findings no abuse of the
court’s discretion, we affirm L.L.’s adjudication as a delinquent child.
[2] We affirm.
Issue
Whether the juvenile court abused its discretion in admitting the
Checks into evidence.
Facts
[3] In the early morning hours of June 26, 2018, residents from Bloomington’s
Stonegate neighborhood contacted the police three times to report three
suspicious males walking around the neighborhood. Bloomington Police
Department Officer Matthew Lucas (“Officer Lucas”) was dispatched to the
neighborhood at 12:40 a.m. and again at 2:30 a.m. but was unable to find the
three males. The third and final dispatch at 4:17 a.m. reported that a handgun
1
IND. CODE § 35-43-4-3.
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had just been stolen from a parked vehicle in the area. Officer Lucas returned
to the neighborhood and noticed three young men walking in the middle of the
street.
[4] One of the young men ran when he noticed Officer Lucas’ marked police
vehicle. L.L. and the other young man turned and walked in opposite
directions. Because the three young men had dispersed to different places,
Officer Lucas, who remained in his car, turned on his white spot light to
illuminate the area. The officer immediately noticed L.L., who was
approximately twenty yards away, reach into his pockets, pull items out, and
drop them on the sidewalk and in a yard. Officer Lucas also noticed the other
young man reach into his waistband and pockets. Concerned about the stolen
firearm, Officer Lucas exited his vehicle, identified himself as a police officer,
and loudly ordered the two young men to walk towards his marked police
vehicle.
[5] Officer Lucas, who found a handgun during a pat down of the second young
man, secured him and L.L. He then walked to the area where he had seen L.L.
dropping items out of his pockets and found two personal checks and a
flashlight. The first check was written from William Shobe to Jeb Drew (“Jeb”)
and was dated December 25, 2017, and the other was a blank check from
Kipley Drew with “void” written on it.
[6] Later that morning, Drew noticed that his wallet and two checks were missing
from his vehicle, which had been parked in the Stonegate neighborhood. The
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first check was one that his grandfather, William Shobe, had written to Drew’s
brother, Jeb. Jeb had apparently left the check at his grandfather’s house, and
the grandfather gave the check to Drew to return to his brother. The second
check was a void check that Drew’s mother had given him to use the routing
number for his electric bill.
[7] The State filed a delinquency petition alleging that L.L. had committed
unauthorized entry of a motor vehicle, a Class B misdemeanor if committed by
an adult, and conversion, a Class A misdemeanor if committed by an adult.
L.L. filed a motion to suppress the Checks. The juvenile court denied the
motion after a hearing.
[8] At the hearing on the delinquency petition, Officer Lucas testified as follows
during cross examination:
So my lights were activated, once the male um took off and both
um [L.L.] and [the other young man] started splitting off into
yards, um once they had reached the grass, I activated my light.
It wasn’t an emergency, it was just a large bright flood light uh
just to illuminate the street uh at that point I exited my vehicle,
once I started seeing him pull the objects out of his pockets and
dump them on the ground, I had a better idea of what was going
on at that point uh so I started giving loud verbal commands to
come back to my vehicle. . . . Um so my headlights were on as I
pulled behind them. Um I didn’t activate my uh the large deck
light on the front of my vehicle, I did not activate that um until as
I said the male was running off and then both [the other young
man] and [L.L.] started walking into the yards, digging into their
pockets and abandoning property onto the sidewalk and the
residential yards. . . . Um as soon as both males reached the
sidewalks, as I said, and started dumping property out, I had a
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general idea of what was going on. I was suspicious, or had
suspected one of the males as possibly having the stolen handgun
from that area, uh so at that point, I began giving loud verbal
commands to come back to my vehicle.
(Tr. Vol. 2 at 15, 23, 26).
[9] The juvenile court adjudicated L.L. to be a delinquent child for committing a
delinquent act, which, if committed by an adult, would have constituted Class
A misdemeanor conversion. L.L. now appeals.
Decision
[10] At the outset we note that L.L. did not seek an interlocutory appeal after the
juvenile court denied his motion to suppress. Instead, he proceeded to the
delinquency hearing where he objected to the admission of the Checks into
evidence. In this procedural posture, the appellate issue is framed as whether
the trial court erred in admitting evidence. See Campbell v. State, 841 N.E.2d
624, 627 (Ind. Ct. App. 2006).
[11] A juvenile court has broad discretion in ruling on the admissibility of evidence.
B.K.C. v. State, 781 N.E.2d 1157, 1162 (Ind. Ct. App. 2003). We will only
reverse a ruling on the admissibility of evidence when the juvenile court has
abused its discretion. Id. An abuse of discretion occurs when the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court. Campbell, 841 N.E.2d at 627.
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[12] L.L. argues that the juvenile court erred in admitting the Checks into evidence
because they were discovered pursuant to an investigatory stop that Officer
Lucas made without reasonable suspicion. Thus, according to L.L., the stop
violated the Fourth Amendment to the United States Constitution and Article
1, Section 11 of the Indiana Constitution. The State responds that the Fourth
Amendment and Article 1, Section 11 were not implicated because L.L.
abandoned the Checks. The State is correct.
[13] Abandoned property is not subject to protection under the Fourth Amendment
or Article 1, Section 11. Campbell, 841 N.E.2d at 627. Abandonment rests
upon whether the defendant so relinquished his interest in the property that he
no longer maintained a reasonable expectation of privacy in it at the time of the
seizure. See State v. Machlah, 505 N.E.2d 873, 879 (Ind. Ct. App. 1987), trans.
denied.
[14] For example, in Campbell, 841 N.E.2d at 624, officers were patrolling a
neighborhood based on a tip that drug activity was occurring in the area. As
they approached a residence, they noticed Campbell standing behind a vehicle.
When he started to move, one of the officers shined a spotlight on him. While
illuminated by the spotlight, Campbell crouched down, pulled an object from
his waistband, and tossed it under the car he had been standing behind. The
officers later determined that the object that Campbell had tossed under the car
was a handgun.
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[15] After Campbell had been convicted of Class C felony carrying a handgun
without a license, he appealed and argued that the trial court had erred in
admitting the handgun into evidence over his objection. Campbell specifically
contended that the investigatory stop that led to the discovery of the handgun
was made without reasonable suspicion and therefore violated the Fourth
Amendment and Article 1, Section 11.
[16] This Court pointed out that Campbell’s argument was premised upon the
assumption that he was seized when the police shined a spotlight on him.
Campbell, 841 N.E.2d at 627. We noted that a person is seized when, by means
of physical force or a show of authority, a police officer has in some way
restrained the liberty of a citizen. Id. We further noted that our review of the
circumstances surrounding the encounter revealed that at the time Campbell
tossed the gun underneath the car, the police had only illuminated a spotlight.
Id. at 629. The police had not used their sirens or flashers and had not verbally
ordered Campbell to stop. Id. In addition, the officers had not physically
touched Campbell or displayed their weapons before Campbell had tossed the
gun underneath the car. Id. We also pointed out that all six officers were still
in their vehicles, and only one of those vehicles was a marked police car. Id.
[17] Based on these circumstances surrounding the encounter, we could not say that
the shining of the spotlight alone amounted to a show of such authority that a
reasonable person would have believed that he was not free to leave. Id. at 630.
We therefore concluded that, at the time Campbell had tossed the handgun
underneath the car, he had not been seized under the Fourth Amendment or
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Article 1, Section 11. Id. We further concluded that the handgun was
abandoned property not subject to the protections of the Fourth Amendment or
Article 1, Section 11, and the trial court did not abuse its discretion by
admitting it into evidence. Id.
[18] The facts before us are analogous to those in Campbell. Here, Officer Lucas was
patrolling the Stonegate Neighborhood based on a tip about three suspicious
young men. As Officer Lucas approached the young men, one of them ran
away. The other two walked in opposite directions, and Officer Lucas shined
his spotlight on the area. While illuminated by the spotlight, L.L. pulled objects
from his pockets and threw them on the ground. Officer Lucas later determined
that two of the objects were Drew’s personal checks.
[19] At the time L.L. dropped the Checks on the ground, Officer Lucas had only
illuminated the spotlight. The officer had not activated the sirens or flashers
before that time. He had not verbally ordered L.L. to stop or displayed his
weapon to L.L before L.L. had thrown the checks on the ground. Further,
Officer Lucas had remained in his car until after L.L. had thrown the checks on
the ground.
[20] Here, as in Campbell, based on the circumstances surrounding the encounter,
the shining of the spotlight alone did not amount to such a show of authority
that a reasonable person would have believed that he was not free to leave.
Therefore, at the time L.L. threw the checks on the ground, he was not seized
under the Fourth Amendment or Article 1, Section 11. Id. We further
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conclude that the Checks were abandoned property not subject to the
protections of the Fourth Amendment or Article 1, Section 11, and the trial
court did not abuse its discretion by admitting them into evidence. 2 Id.
[21] Affirmed.
Riley, J., and Bailey, J., concur.
2
L.L. directs us to additional testimony from Officer Lucas that L.L. claims supports his argument that he
dropped the Checks after the officer had seized him. However, our review of this testimony reveals that L.L.
has misinterpreted it. Specifically, this testimony is consistent with both the officer’s previous and subsequent
testimony that L.L. began dropping items after the officer turned on the spotlight but before the officer exited
his vehicle, identified himself as a police officer, and ordered the young men to walk towards his vehicle.
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