State of Indiana v. Deja Canady, Jamel Hoskin, and Anthony Harmon (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 27 2018, 9:56 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Curtis T. Hill, Jr. Victoria L. Bailey
Attorney General of Indiana Marion County Public Defender
Indianapolis, Indiana
Angela N. Sanchez
Deputy Attorney General Kurt A. Young
Indianapolis, Indiana Nashville, Indiana
Michael C. Borschel
Indianapolis, Indiana
Matthew D. Anglemeyer
Marion County Public Defender
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, August 27, 2018
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1710-CR-2285
v. Appeal from the Marion Superior
Court
Deja Canady, Jamel Hoskin, and The Honorable Marc T.
Anthony Harmon, Rothenberg, Judge
Appellees-Defendants. Trial Court Cause Nos.
49G02-1702-F3-5493
49G02-1702-F3-5492
49G02-1704-F3-13118
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49G02-1702-F3-5490
49G02-1704-F3-13122
Barnes, Senior Judge.
Case Summary
[1] The State of Indiana appeals the trial court’s grant of motions to suppress filed
by Deja Canady, Jamel Hoskin, and Anthony Harmon. We affirm.
Issue
[2] The State raises one issue, which we restate as whether the trial court properly
granted the motions to dismiss filed by the Defendants regarding whether the
traffic stop violated the Fourth Amendment of the United States Constitution.
Facts
[3] On the evening of February 6, 2017, several robberies occurred in the area of
the Spanish Oaks apartment complex and the Hacienda apartment complex in
Indianapolis. This area of Indianapolis is a high crime district with the
reputation of being one of the most violent districts in Indianapolis.
[4] In the first incident, officers from the Indianapolis Metropolitan Police
Department (“IMPD”) were dispatched at approximately 8:00 p.m. to the
Spanish Oaks apartment complex regarding an armed robbery. A couple told
officers that, as they got out of their vehicle, they were approached by two black
men wearing masks. One of the men had a gun, and they demanded money
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and cell phones. They took money from the woman, and money and cash from
the man. The woman pulled a mask off one of the men and saw curly hair.
[5] While officers were at the scene of the first robbery, they received a dispatch to
a second location in the same apartment complex at approximately 8:23 p.m.
A man reported that he was approached by two black men, that he was shot,
that the men took his cell phone, and that the men fled.
[6] Officer Christopher Mills and Officer Freddie Haddad started working shortly
after the second robbery and were patrolling together. At 11:20 p.m., they were
dispatched to an apartment in the Hacienda apartment complex, which is
across the street from the Spanish Oaks apartment complex, for a report of a
third robbery. The victims reported that two black men broke into their
apartment and took a cell phone. One victim was assaulted, and the other
victim was shot.
[7] Officers Mills and Haddad went to back to the Spanish Oaks apartment
complex and parked to watch traffic and provide a police presence. They saw a
mid-90’s green Camaro drive past with a dark-skinned male “sitting low in the
front passenger seat.” Tr. Vol. II p. 42. Officer Mills had never seen the vehicle
before.
[8] At 12:45 a.m., the officers were dispatched to another location in the Spanish
Oaks apartment complex regarding an armed robbery. A woman reported that
she was approached in the parking lot by a black male wearing a ski mask and a
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gray hoodie. The man was approximately 5’5” tall, was carrying a silver gun,
and took her cell phone.
[9] At 1:10 a.m., officers were dispatched to a fifth robbery. This robbery occurred
in a residential neighborhood near the Spanish Oaks apartment complex. The
victim reported that two black males, one wearing a black hoodie and one
wearing a gray hoodie, attempted to rob him and shot his window out.
[10] Officer Mills and Officer Haddad started driving through the neighborhood and
saw the same green Camaro parked by a curb. Officer Mills saw a black female
driving the vehicle, but he could not see any occupants. As they passed the
vehicle, its lights came on. Officer Dustin Greathouse saw the vehicle and
shined his spotlight through the windshield. He saw a black female driving the
vehicle and two passengers wearing hoodies. When he shined the spotlight into
the vehicle, the occupants stared straight ahead and did not look at the officer,
which he found strange. Officer Greathouse turned around and got behind the
Camaro. Officer Mills also turned around and saw that the Camaro was
moving and that Officer Greathouse was behind it. Officer Mills radioed to
Officer Greathouse that they “might want to stop that car” because he “had
seen it in Spanish Oaks earlier in the night.” Id. at 51. Officer Greathouse
activated his emergency lights to stop the Camaro. The Camaro stopped after a
few seconds, and Canady, Hoskin, and Harmon were removed from the vehicle
and handcuffed. The officers then found a handgun under the front passenger
seat.
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[11] In Cause Number 49G02-1702-F3-5493, the State charged Canady with Level 3
attempted armed robbery, two counts of Level 3 felony robbery, two counts of
Level 5 felony battery, and one count of Level 6 felony criminal recklessness.
In Cause Number 49G02-1702-F3-5490, the State charged Harmon with Level
3 attempted armed robbery, two counts of Level 3 felony robbery, two counts of
Level 5 felony battery, and one count of Level 6 felony criminal recklessness.
In Cause Number 49G02-1702-F3-5492, the State charged Hoskin with Level 3
attempted armed robbery, two counts of Level 3 felony robbery, two counts of
Level 5 felony battery, and one count of Level 6 felony criminal recklessness.
In Cause Number 49G02-1704-F3-13118, the State charged Hoskin and
Harmon with Level 3 felony robbery and Level 5 felony battery.
[12] Harmon and Hoskin filed motions to suppress in their cases. They argued that
the stop of the vehicle violated the Fourth Amendment of the United States
Constitution and Article 1, Section 11 of the Indiana Constitution because the
officers did not have reasonable suspicion that the occupants of the vehicle were
involved in the robberies. They requested that all evidence obtained as a result
of the stop be suppressed. After a hearing, the trial court granted Harmon’s and
Hoskin’s motions to suppress as follows:
5. Evidence presented at the hearing supported the
conclusion that Officer Mills stopped the vehicle in
question, a green Camaro with a female driver, because he
was familiar with the area, and did not recognize the
vehicle, in addition to robbery reports in the area.
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6. There was no description of the vehicle, or of suspects of
the robberies other than there were two African American
males.
7. The evidence presented does not support that a reasonable
suspicion of criminal activity existed specifically involving
the green Camaro that allowed for an investigatory stop on
February 6, 2017.
Appellants’ App. Vol. II pp. 196; Appellants’ App. Vol. III p. 200. The trial
court suppressed all evidence discovered as a result of the traffic stop and all
evidence that stemmed from that evidence. The State filed a motion to
reconsider because the ruling was issued before the State’s brief was filed. The
trial court reconsidered its ruling in light of the State’s brief, and the trial court
again granted the motions to suppress as follows:
2. Upon review, the Court’s position remains unchanged.
The evidence presented at hearing, even in consideration
with the factors raised by the State, still amounts to an
officer stopping a vehicle because it was unfamiliar to him.
3. There must be a reasonable suspicion that the vehicle
stopped had been involved in criminal activity. Terry v.
Ohio, 392 U.S. 1 (1968).
4. While the totality of the circumstances certainly point to
there being criminal activity in the area, the circumstances
do not point to the vehicle stopped in this matter being
involved in that activity to a level of reasonable suspicion
required. Even the de[s]cription of the suspects, two
[A]frican-[A]merican males, did not match the actual
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people in the vehicle, two [A]frican-[A]merican Males and
an [A]frican-[A]merican female.
5. The evidence presented at the hearing, at one point, was
an officer telling another, “We need to stop that car” for
no specific reason other than it was unfamiliar to the
police in that area.
6. While, after the stop, evidence of the crime may have been
discovered, the reasons for the stop did not arise to the
required reasonable suspicion standard.
Appellants’ App. Vol. II p. 216; Appellants’ App. Vol. III p. 213. Canady filed
a motion to incorporate the suppression order from Hoskin’s and Harmon’s
cases, which the trial court granted. The State then filed motions to dismiss the
charges against the Defendants, which the trial court granted. The State now
appeals pursuant to Indiana Code Section 35-38-4-3.
Analysis
[13] On appeal, the State argues that the trial court erred by granting the motions to
suppress. “When the State appeals from a negative judgment, it bears the
burden to ‘show that the trial court’s ruling on the suppression motion was
contrary to law.’” State v. Keck, 4 N.E.3d 1180, 1183 (Ind. 2014) (quoting State
v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008)). We evaluate the trial
court’s findings of fact deferentially, neither reweighing the evidence nor
reassessing the credibility of the witnesses. Id. “We will affirm if we find
within the record ‘substantial evidence of probative value’ to support the
judgment.” Id. (quoting State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)). We
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review the trial court’s conclusions of law, including determinations of
reasonable suspicion, de novo. Id.
[14] The Fourth Amendment to the United States Constitution guarantees:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV. Our jurisprudence reflects two types of police
encounters that implicate Fourth Amendment protection: the investigatory stop
and the custodial arrest. Keck, 4 N.E.3d at 1184. “An investigatory stop is
generally brief in duration and is constitutionally permissible so long as the law
enforcement officer ‘has a reasonable suspicion supported by articulable facts
that criminal activity may be afoot.’” Id. (quoting United States v. Sokolow, 490
U.S. 1, 7, 109 S. Ct. 1581 (1989), and Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct.
1868 (1968)). The custodial arrest constitutes a greater restriction upon the
subject’s liberty and requires a commensurately greater justification: probable
cause. Id. An investigatory stop (or Terry stop) is at issue here, not a custodial
arrest. “When determining whether an officer had reasonable suspicion for a
Terry stop, we consider whether ‘the totality of the circumstances’ presented ‘a
particularized and objective basis’ for the officer’s belief that the subject was
engaged in criminal activity.” Id. (quoting Sellmer v. State, 842 N.E.2d 358, 360
(Ind. 2006)). “Law enforcement officers must have more than an inchoate and
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unparticularized suspicion or hunch, but need not have the level of suspicion
necessary for probable cause.” State v. Belcher, 725 N.E.2d 92, 94 (Ind. Ct. App.
2000), trans. denied.
[15] The State argues that, given the five robberies within hours of each other and
near the same location, the “only question is whether the officers had
reasonable suspicion to suspect that the occupants of the green Camaro may be
involved.” Appellant’s Br. p. 17. In support of its argument, the State relies
upon Arcuri v. State, 775 N.E.2d 1095 (Ind. Ct. App. 2002), trans. denied. In
Arcuri, an armed man wearing a ski mask and a hooded, gray sweatshirt robbed
a gas station. The man was described as being only 5’3” to 5’4” tall, and a
direction of travel was dispatched to the police. Officers were then told that the
suspect had an accent. An officer drove to a nearby bicycle path that he
believed could have been an easy route for the robber to flee. He saw a vehicle
containing a short, Hispanic passenger who seemed to “be slouching down in
the front passenger seat evasively.” Arcuri, 775 N.E.2d at 1097. The officer
then stopped the vehicle and arrested the passenger. The defendant filed a
motion to suppress, which the trial court denied.
[16] On appeal, we affirmed, concluding:
Besides the fact that Arcuri fit the description of the robber, in the
case at bar, the robbery was “freshly committed” and Officer
O’Donnell believed he was in the area to which the robber was
headed based upon the gas station attendant’s account of the
direction he headed. Under the totality of the facts and
circumstances of this case and based upon “[t]he need for swift
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and effective law enforcement[,]” Officer O’Donnell’s stop of the
vehicle in which Arcuri was riding was not improper; rather, it
was good police work. Marsh v. State, 477 N.E.2d 877, 878 (Ind.
1985) (citing Terry, 392 U.S at 1, 88 S. Ct. 1868; Williams v. State,
261 Ind. 547, 307 N.E.2d 457 (1974)).
Id. at 1099.
[17] We conclude that this case is distinguishable from Arcuri. Evidence presented
at the hearing on the motion to suppress showed that the robbers had been
described by the various victims as: (1) two black men wearing masks, one with
curly hair; (2) two black men; (3) two black men; (4) a black male wearing a ski
mask and a gray hoodie, approximately 5’5” tall, and carrying a silver gun; and
(5) two black males, one wearing a black hoodie and one wearing a gray
hoodie. None of the victims described a woman, a get-away vehicle, or a
direction of travel of the robbers. When Officer Mills first observed the Camaro
in the Spanish Oaks apartment complex, he saw a dark-skinned male sitting low
in the passenger seat. When he saw the vehicle again in the neighborhood, he
saw a black female driving the vehicle, but he could not see any other
occupants. Officer Greathouse saw a black female driving the vehicle and two
passengers wearing hoodies. When he shined the spotlight into the vehicle, the
occupants stared straight ahead and did not look at the officer. Officer
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Greathouse initiated a traffic stop of the vehicle, but he did not observe any
traffic violations.1
[18] The police here were not aware of a direction of travel of the robbers. The
description of the robbers from the victims was inconsistent and also did not
match the individuals that the officers saw in the Camaro. The State relies
upon evidence that the distinctive green Camaro had not been seen by the
officer before the night of the robberies, the vehicle’s occupants did not react
when Officer Greathouse shined a spotlight into the vehicle, and the two
passengers were wearing hoodies. The fact that the two passengers in the
Camaro were wearing hoodies in February does not connect them to the
robberies. Moreover, the fact that the officers had not seen the Camaro before
in the area also does not connect the vehicle’s occupants to the robberies.
Finally, the fact that the occupants did not react when the officer shined a
spotlight on them also does not connect them to the robberies or imply that they
were the robbers. As Hoskin points out in his Appellee’s Brief, “People may
wish to avoid contact with and even ignore police for a variety of valid
reasons.” Hoskin’s Appellee’s Brief p. 13. The officers here had a hunch—
perhaps a good hunch, but a hunch nonetheless—that the vehicle’s occupants
were involved in the robberies. A hunch, however, does not amount to
1
“If an officer observes a driver commit a traffic violation, he has probable cause—and thus also the lesser
included reasonable suspicion—to stop that driver.” Keck, 4 N.E.3d at 1184.
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reasonable suspicion. Belcher, 725 N.E.2d at 94. We conclude that the trial
court properly granted the motion to suppress.2
Conclusion
[19] The trial court properly granted the Defendants’ motion to suppress. We
affirm.
[20] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
2
Because we conclude that the traffic stop violated the Fourth Amendment of the United States
Constitution, we need not address the parties’ arguments regarding the Indiana Constitution.
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