Derek Scisney v. State of Indiana

FILED
May 20 2016, 10:17 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Michael Gene Worden
Ellen H. Meilaender
Chandra Hein
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derek Scisney, May 20, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1504-CR-227
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff. Flowers, Judge
Trial Court Cause No.
49G20-1410-F4-45982
Mathias, Judge.
[1] Derek Scisney (“Scisney”) was convicted in Marion Superior Court of unlawful
possession of a firearm by a serious violent felon (“SVF”) and resisting law
enforcement. Scisney appeals his conviction for unlawful possession of a
firearm by an SVF and argues that the trial court abused its discretion when it
Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016 Page 1 of 8
admitted the firearm into evidence. Specifically, he argues that his encounter
with the law enforcement officer was not consensual and the officer lacked
reasonable suspicion to conduct a Terry stop and the accompanying pat down
search.
[2] We affirm.
Facts and Procedural History
[3] On September 26, 2014, Indianapolis Metropolitan Police Department Officers
Brenda Fekkes (“Officer Fekkes”) and William Wogan (“Officer Wogan”)
received a dispatch of “shots fired” by a white male wearing a blue shirt near
800 North Drexel, a “high crime area” in Indianapolis. Appellant’s App. p. 52.
While searching for the suspect, Officer Fekkes spotted a white male wearing a
blue shirt walking southbound in the 700 block of Linwood Avenue, which runs
parallel to Drexel Avenue one block to the west.1
[4] The white male was walking with a black male, who was later identified as
Scisney. Officer Fekkes activated her emergency lights and approached the
1
Neither officer testified as to the time frame between receipt of the dispatch and locating the suspect. The
probable cause affidavit states that Officers Samm (a.k.a. Fekkes) and Wogan drove through the Linwood
Apartment complex after receiving the dispatch but did not find any person matching the suspect’s
description. The officers returned to Linwood Avenue and proceeded northbound. Officer Fekkes
immediately spotted the white male and black male walking side-by-side after turning onto Linwood Avenue.
The probable cause affidavit states that approximately six minutes elapsed from the time the dispatch was
received to the time the two males were observed. Appellant’s App. p. 18.
Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016 Page 2 of 8
white male. She exited her vehicle and made contact with the white male and
conducted a pat down search. She did not find any weapons.
[5] Officer Wogan had been following Officer Fekkes and observed her interaction
with the white male. As Officer Fekkes approached Scisney’s companion,
Scisney put his head down and continued walking at a quicker pace. Officer
Wogan also saw Scisney touch the right side of his waist. Officer Wogan
parked his police vehicle close to Scisney, without activating his emergency
lights, and stepped out of the vehicle. He then asked Scisney if he could speak
to him. Officer Wogan suspected that Scisney had a weapon because Scisney
had touched his waistline. Tr. p. 16. As Scisney approached the officer, Wogan
asked Scisney if he had any weapons. Scisney did not respond to the officer’s
question.
[6] Once Scisney was within reach, Officer Wogan “immediately” conducted a
“Terry pat down.” Tr. p. 17. The officer felt the grip of a pistol on Scisney’s
waistline and attempted to remove it from Scisney. At that moment, Scisney
ran from the officer. Officer Wogan lost his grip on the pistol, and it fell to the
ground as Scisney fled. Officer Wogan ordered Scisney to stop, but he
continued to run toward Drexel Avenue. Scisney was apprehended in the
backyard of a house in the 800 block of Drexel Avenue.
[7] On October 1, 2014, Scisney was charged with Level 4 felony unlawful
possession of a firearm by a SVF, and two counts of Class A misdemeanor
resisting law enforcement. Scisney filed a motion to suppress the firearm
Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016 Page 3 of 8
discovered during the pat down search. The trial court heard argument on the
motion during the February 11, 2015 bench trial.
[8] The trial court denied Scisney’s motion to suppress on February 20, 2015.
Thereafter, Scisney was found guilty on all counts. He was sentenced to serve
eight years for the unlawful possession of a firearm by an SVF conviction, with
four years executed and four years suspended to probation. He was also ordered
to serve concurrent terms of 360 days for the resisting law enforcement
convictions. Scisney now appeals.2
Discussion and Decision
[9] Scisney argues that the trial court abused its discretion when it admitted the
firearm discovered during the pat down search into evidence because the search
was unconstitutional under the Fourth Amendment to the United States
Constitution.3 The Fourth Amendment guarantees “[t]he right of the people to
be secure in their persons . . . against unreasonable searches and seizures.”
[10] Although Scisney filed a pre-trial motion to suppress, because he appeals
following a completed trial, the issue is properly framed as whether the trial
court abused its discretion in admitting the evidence. Clark v. State, 994 N.E.2d
2
On April 22, 2016, we held oral argument in this case at the Indiana Tech Law School in Ft. Wayne,
Indiana. We extend our gratitude to the Allen County Bar Association and to the law school’s faculty, staff,
and students for their hospitality. We also commend counsel for the quality of their written and oral
advocacy.
3
Scisney does not challenge the pat down search under Article One, Section Eleven of the Indiana
Constitution.
Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016 Page 4 of 8
252, 259 (Ind. 2013). The admission of evidence is within the discretion of the
trial court. Id. at 259-60. We will reverse a ruling on the admission of evidence
only for an abuse of that discretion, which occurs only when the ruling is
clearly against the logic and effect of the facts and circumstances and the error
affects a party's substantial rights. Id. at 260.
[11] “Encounters between law enforcement officers and public citizens take a variety
of forms, some of which do not implicate the protections of the Fourth
Amendment and some of which do.” Id. at 261. Consensual encounters in
which a citizen voluntarily interacts with a police officer do not compel Fourth
Amendment analysis. Id. Nonconsensual encounters do and typically fall into
two categories. Id. The first is a full arrest, which requires probable cause. Id.
The second is a brief investigative stop, often known as a Terry stop, which
requires a lower standard of reasonable suspicion. Id.
[12] Scisney argues both that his initial encounter with Officer Wogan was not
consensual and that Officer Wogan lacked reasonable suspicion to conduct a
Terry stop and pat down search. The consensual nature of Scisney’s encounter
with Officer Wogan was extinguished once the officer asked to speak to
Scisney. At that point, a reasonable person in Scisney’s situation would not feel
free to walk away from the officer because two officers were present in marked
police vehicles, emergency lights were activated on one vehicle, and the officers
were in full uniform with their police issued firearm readily visible. See Dowdell
v. State, 747 N.E.2d 564, 567 (Ind. Ct. App. 2001), trans. denied (concluding that
a “reasonable person when faced with a police officer pulling up to him in a
Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016 Page 5 of 8
marked vehicle and calling for him to come over to the car would not assume
that he can just turn and walk away”). Therefore, we must determine whether
Officer Wogan had reasonable suspicion to stop Scisney when the officer asked
to speak with him.
[13] The fundamental principle upon which a Terry stop is based is that the officer
must have reasonable suspicion to believe that criminal activity has occurred or
is about to occur or that “‘criminal activity may be afoot.’” Holly v. State, 918
N.E.2d 323, 325 (Ind. 2009) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
Specifically, in Terry the United States Supreme Court held:
where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal
activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous, where in the
course of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in
the initial stages of the encounter serves to dispel his reasonable
fear for his own or others’ safety, he is entitled for the protection
of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.
392 U.S. at 30.
[14] However, “‘[s]uch reasonable suspicion must be comprised of more than
hunches or unparticularized suspicions.”’ Clark, 994 N.E.2d at 263 (quoting
State v. Murray, 837 N.E.2d 223, 225-26 (Ind. Ct. App. 2005), trans. denied).
Taking into account the totality of the circumstances or the whole picture, the
Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016 Page 6 of 8
detaining officers must have a particularized an objective basis for suspecting
the particular person stopped of criminal activity. Id. at 264. In making this
determination, we must examine the facts as known to the officer at the
moment of the stop. Id. Findings of reasonable suspicion are reviewed de novo,
and this is necessarily a fact-sensitive inquiry. Id.
[15] Consistent with Terry, our court has observed that “[a] patdown search for
weapons may be conducted if the officer is ‘justified in believing that the
individual whose suspicious behavior he is investigating at close range is armed
and presently dangerous to the officer or to others.’” Bell v. State, 13 N.E.3d
543, 545 (Ind. Ct. App. 2014) (quoting Jackson v. State, 669 N.E.2d 744, 747
(Ind.Ct.App.1996) (quoting Terry, 392 U.S. 1 at 24). However, “[n]othing in
Terry can be understood to allow a generalized ‘cursory search for weapons’ or
indeed, any search whatever for anything but weapons.” Ybarra v. Illinois, 444
U.S. 85, 93-94 (1979).
[16] In this case, Officers Fekkes and Wogan received a dispatch of shots fired by a
white male in a high crime area.4 Scisney was walking with a white male
matching the description of the suspect. As Officers Fekkes parked her vehicle
4
Presence in a high crime area alone does not constitute reasonable suspicion, but it can be “considered as a
factor in the totality of the circumstances confronting an officer at the time of a stop.” Bridgewater v. State, 793
N.E.2d 1097, 1100 (Ind. Ct. App. 2003), trans. denied. Moreover, the fact that the officers were responding to
the report of gunshots fired distinguishes this case from Stalling v. State, 713 N.E.2d 922, 925 (Ind. Ct. App.
1999), in which our court reversed the trial court’s denial of Stalling’s motion to suppress after observing
Stalling’s “movement toward his waistline, without more,” did not reasonably support the officer’s
“suspicion that criminal activity was afoot.”
Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016 Page 7 of 8
and asked to speak to his companion, Scisney “hurried his pace just a little bit.”
Tr. p. 8. He continued to walk southbound on Linwood Avenue away from his
companion who stopped to speak to Officer Fekkes at her request. Tr. p. 16.
Officer Wogan, who had been following Officer Fekkes, noticed that Scisney
avoided eye contact with him, and the officer stepped out of his vehicle. After
he saw Scisney touch “the right side of his waist line,” Officer Wogan asked
Scisney if he could “speak with him for a second.” Tr. p. 16.
[17] Considering the totality of these circumstances, we agree with the trial court
that when he asked to speak of Scisney, Officer Wogan reasonably believed that
Scisney had participated in criminal activity and that he was armed and
possibly dangerous to the officers. Cf. W.H. v. State, 928 N.E.2d 288 (Ind. Ct.
App. 2010), trans. denied; Willis v. State, 907 N.E.2d 541 (Ind. Ct. App. 2009).
Moreover, as Scisney walked toward him, Officer Wogan asked if he had any
weapons. When Scisney did not respond, the officer immediately performed a
Terry pat down search. Because the officer was justifiably concerned for officer
and public safety, the pat down search was constitutionally permissible. See Bell,
13 N.E.3d at 545. For all of these reasons, the trial court did not abuse its
discretion when it admitted the firearm discovered during the pat down search
into evidence.
[18] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 49A02-1504-CR-227 | May 20, 2016 Page 8 of 8