J.R. v. State of Indiana ( 2017 )

FILED
Dec 08 2017, 10:15 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel M. Schumm Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.R., December 8, 2017
Appellant-Respondent, Court of Appeals Case No.
49A02-1704-JV-754
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn A.
Appellee-Petitioner Moores, Judge
Trial Court Cause No.
49D09-1701-JD-70
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017 Page 1 of 9
[1] The juvenile court entered true findings that J.R. was delinquent for committing
acts that would be dangerous possession of a firearm 1 and carrying a handgun
without a license,2 had they been committed by an adult. J.R. appeals, arguing
that the police, when conducting a pat-down search, violated his rights under
the United States and Indiana Constitutions to be free from unreasonable
searches and that the dual adjudications violate double jeopardy principles.
Finding that the pat-down search did not violate his rights, but that the
adjudication for carrying a handgun without a license must be vacated, we
affirm the adjudication for dangerous possession of a firearm, vacate the
adjudication for carrying a handgun without a license, and remand with
instructions.
Facts 3
[2] At approximately 8:30 p.m. on January 10, 2017, a police dispatch advised that
“three black males” wearing “dark clothing” were “trying to open vehicles and
take items out of cars” in a Family Dollar parking lot on the east side of
Indianapolis. Tr. p. 8-9. When Indianapolis Metropolitan Police Officer
Richard Christian responded to the scene, he saw three Black males, two of
whom were trying to enter a vehicle while the third was standing behind it. No
1
Ind. Code § 35-47-10-5(a)
2
I.C. § 35-47-2-1(a).
3
We heard oral argument on November 9, 2017, at Ivy Tech Community College in Columbus. We thank
the school’s administration, faculty, and students for their hospitality. We also thank counsel for their
excellent written and oral advocacy.
Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017 Page 2 of 9
one else was at the scene. After Officer Christian shined his light on them, the
three males fled the area. The officer described one of the men as wearing
“dark clothing” and another one as “sorta tall, maybe five-ten . . . with a black
jacket and a white stripe.” Id. at 9.
[3] Meanwhile, Indianapolis Metropolitan Police Officer Nicholas Snow, who had
been on the force for only a few months, and Field Training Officer Mark
Klonne were patrolling a nearby area. After hearing the dispatch regarding the
fleeing suspects, they went to help set up a perimeter. Approximately five
minutes later, Officer Snow exited his vehicle and stopped sixteen-year-old J.R.
and another young man as they walked down a street in Indianapolis because
they matched the description of two of the suspects. Both J.R. and the other
man were wearing black; J.R. had “white Adidas stripes down his sleeve.” Id.
at 21. J.R. told Officer Snow that “I’m not f**king talking to you” and walked
away. Id. at 27. Officer Snow tried to catch up, but J.R. began walking faster
and disregarded another order to stop. At that point, Officer Snow grabbed
J.R. and placed him in handcuffs.
[4] Officer Snow decided to conduct a pat-down search of J.R. because the officer
“was in danger of losing eyesight of Officer Klonne,” who was with the other
young man. Id. at 33. Officer Snow patted down J.R.’s waist and the area
behind his back where his hands were cuffed. The officer did not find anything
during his search, and he walked J.R. back to the patrol car.
Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017 Page 3 of 9
[5] When they were back at the patrol car, Officer Snow asked J.R. questions to
ascertain his identity and why he had refused to stop. Officer Snow observed
that J.R. was “moving his legs in such a manner” and turning as if he was
“trying to adjust something,” even after being asked to stop moving. Id. at 34.
Officer Snow conducted a second pat-down that included a “pant sweep . . . up
the left leg all the way to the groin.” Id. at 39. Officer Snow felt a hard,
cylindrical object that he believed to be a gun, which he seized. He stated that
he found the gun “tracking the left side of his pants up underneath his groin . . .
concealed in-between . . . really his hip joint and, . . . where his scrotum would
be. It was tucked that far up into his body.” Id. at 43.
[6] On January 13, 2017, the State filed a petition alleging that J.R. had committed
dangerous possession of a firearm and carrying a handgun without a license,
both Class A misdemeanors if committed by an adult. A factfinding hearing
took place on February 9, 2017, after which the juvenile court entered true
findings on both allegations. On March 14, 2017, a dispositional hearing took
place, and the juvenile court placed J.R. on probation with a suspended
commitment to the Department of Correction. J.R. now appeals.
Discussion and Decision
I. Search and Seizure
[7] J.R. argues that because there was no reasonable suspicion that he was armed,
his rights under the Fourth Amendment to the United States Constitution and
Article 1, Section 11 of the Indiana Constitution were violated when the police
Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017 Page 4 of 9
conducted a pat-down search, and as a result, the handgun seized from that pat-
down search should not have been admitted into evidence.
A. Fourth Amendment
[8] The Fourth Amendment provides that “[t]he right of the people to be secure in
their persons, houses, papers and effects against unreasonable searches or
seizures shall not be violated.” A police officer may conduct “a reasonable
search for weapons for the protection of the police officer, where he has reason
to believe that he is dealing with an armed and dangerous individual, regardless
of whether he has probable cause to arrest the individual for a crime.” Terry v.
Ohio, 392 U.S. 1, 27 (1968). “The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others
was in danger.” Id. In determining whether the officer acted reasonably,
weight is given “not to his inchoate and unparticularized suspicion or ‘hunch,’
but to the specific reasonable inferences which he is entitled to draw from the
facts in light of his experience.” Id.[9] Here, the circumstances supported Officer Snow’s belief that his safety or that
of others was in danger when he conducted the second pat-down search.4 J.R.
engaged in activities that drew attention to himself. He was hostile toward
4
Although J.R. briefly discusses the initial pat-down search, we note that because Officer Snow did not
discover anything during that first search, J.R. could not receive relief or any remedy stemming from it.
Therefore, we focus our analysis on the second pat-down search.
Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017 Page 5 of 9
Officer Snow, telling him that “I’m not f**king talking to you.” Tr. p. 27. He
did not cooperate with Officer Snow, walking away despite an order to stop,
and then, after another order to stop, increasing his speed. Even after J.R. was
placed in handcuffs, he continued to engage in actions that drew attention to his
body. Officer Snow observed that J.R. was “moving his legs in such a manner”
and turning as if he was “trying to adjust something” even after being told to
stop moving. Id. at 34. These actions gave Officer Snow a particularized and
objective basis for suspecting that J.R. was concealing something on his person
and justified the officer’s second pat-down search. In short, the second pat-
down search did not violate J.R.’s rights under the Fourth Amendment.
B. Article 1, Section 11
[10] Article 1, Section 11 of the Indiana Constitution 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.” Indiana’s search and
seizure clause is interpreted and applied independently of the Fourth
Amendment. Baniaga v. State, 891 N.E.2d 615, 618 (Ind. Ct. App. 2008).
Under the Indiana Constitution, the legality of a search turns on an evaluation
of the reasonableness of the police conduct under the totality of the
circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). 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. Id. at 361. The State
Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017 Page 6 of 9
bears the burden to show that its intrusion was reasonable under the totality of
the circumstances. State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002).
[11] The second pat-down search of J.R. was reasonable under the totality of the
circumstances. First, Officer Snow had a significant degree of suspicion that a
violation had occurred. J.R. matched the description the officer heard on the
dispatch; he refused to comply with the officer’s commands to stop; he was
hostile toward the officer; and even after being placed in handcuffs, he moved
his body in ways that drew attention to his legs. Second, the pat-down search
did not involve a degree of intrusion greater than in an ordinary pat-down
search. Indeed, the second pat-down search was conducted on the outside of
J.R.’s pants, and there is no evidence that Officer Snow had to manipulate
J.R.’s genitalia to find the gun. Finally, the extent of law enforcement needs
was great—Officer Snow needed to be able to conduct his investigation in
safety. Under the totality of these circumstances, the second pat-down search
did not violate J.R.’s rights under the Indiana Constitution.
[12] In sum, the second pat-down search did not violate J.R.’s rights under the
United States or Indiana Constitutions, and the juvenile court did not err in
admitting the seized gun into evidence.
II. The Adjudications
[13] J.R. next contends that his adjudications for dangerous possession of a firearm
and for carrying a handgun without a license violate double jeopardy principles
under both the double jeopardy clause of the Indiana Constitution and common
Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017 Page 7 of 9
law protections. The State alleged and proved that J.R. possessed only one
handgun, and that same gun supported both adjudications. The State concedes
on this issue, and the parties agree that the adjudication for carrying a handgun
without a license should be vacated.
[14] We agree that the adjudication for carrying a handgun without a license should
be vacated, but for different reasons. Indiana Code section 35-47-2-1(a) states
in relevant part that “a person shall not carry a handgun in any vehicle or on or
about the person’s body without being licensed under this chapter to carry a
handgun.” Under that same chapter, Indiana Code section 35-47-2-3(g)(3)
states that “[a] license to carry a handgun shall not be issued to any person
who . . . is under eighteen (18) years of age . . . .”
[15] With respect to minors, Indiana Code section 35-47-10-5(a) states that “[a] child
who knowingly, intentionally, or recklessly possesses a firearm for any purpose
other than a purpose described in section 1 of this chapter commits dangerous
possession of a firearm . . . .” (Emphasis added.) Within that chapter, Indiana
Code section 35-47-10-3 defines “child” as “a person who is less than eighteen
(18) years of age.”
[16] In other words, Indiana Code section 35-47-2-1 applies only to adults who
possess handguns without a license, and as a matter of law, a person under the
age of eighteen is not eligible for such a handgun license. Instead, a person
under the age of eighteen, such as J.R., who possesses a handgun for any
unauthorized reason commits, and only commits, dangerous possession of a
Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017 Page 8 of 9
firearm. As a result, a double jeopardy violation cannot exist in the
circumstances presented here because Indiana Code section 35-47-2-1, which
governs the offense of carrying a handgun without a license, applies only to
adults, and Indiana Code section 35-47-10-5, which governs the offense of a
child in dangerous possession of a firearm, applies only to minors. The statutes,
therefore, cannot be simultaneously violated. And because a minor cannot be
adjudicated delinquent under Indiana Code section 35-47-2-1, J.R.’s conviction
for carrying a handgun without a license must be vacated. We remand to the
juvenile court with instructions to vacate J.R.’s adjudication for carrying a
handgun without a license and resentence if needed.
[17] The judgment of the juvenile court is affirmed in part, reversed in part, and
remanded with instructions.
Najam, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 49A02-1704-JV-754 | December 8, 2017 Page 9 of 9