K.G. v. State of Indiana

FILED
Jul 31 2017, 6:10 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery A. Earl Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
Denise A. Robinson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
K.G., July 31, 2017
Appellant-Defendant, Court of Appeals Case No.
32A01-1611-JV-2590
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Karen M. Love,
Appellee-Plaintiff Judge
Trial Court Cause No.
32D03-1610-JD-250
May, Judge.
[1] K.G. appeals his adjudication as a delinquent child for having committed acts
that, if committed by an adult, would be Class A misdemeanor carrying a
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handgun without a license, 1 Class C misdemeanor illegal possession of an
alcoholic beverage, 2 and Class C misdemeanor possession of paraphernalia. 3
K.G. asserts the evidence supporting his adjudications was inadmissible
because it was collected in violation of his constitutional rights to be free of
illegal search and seizure. We reverse.
Facts and Procedural History
[2] During the late morning of October 1, 2016, Lieutenant Robert Paris (“Lt.
Paris”) of the Avon Police Department received a dispatch regarding a
suspicious male who was approaching females in a Kroger parking lot and
asking to use their cell phones. The dispatch also stated the male had a
backpack and might be a runaway. Lt. Paris was given a physical description of
the male and, upon his arrival at the store, saw a male who fit that description
walking in front of the store. Lt. Paris saw the male—later identified as K.G.—
was carrying two backpacks, and the lieutenant suspected K.G. was a runaway.
[3] Lt. Paris got out of his police car and told K.G. to stop. Lt. Paris then asked
K.G. his age and whether he was a runaway. K.G. responded he was “almost
seventeen” and was not a runaway. (Tr. Vol. 2 at 12.) Lt. Paris then asked
who the backpacks belonged to, and K.G. reported the backpacks belonged to
1
Ind. Code § 35-47-2-1.
2
Ind. Code § 7.1-5-7-7(a)(1).
3
Ind. Code § 35-48-4-8.3(b)(1).
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someone else. When Lt. Paris asked for that friend’s name, K.G. reported
“Jacob” but could not provide Jacob’s last name, address, or phone number.
(Id. at 13.) Lt. Paris then “decided to pat [K.G.] down for [the lieutenant’s]
own safety.” (Id.)
[4] During the pat-down, Lt. Paris “immediately located a – what ended up being a
box of ammunition in [K.G.’s] left front pants pocket.” (Id. at 14.) Lt. Paris
handcuffed K.G. and removed the ammunition from his pocket. Lt. Paris then
searched K.G.’s backpacks and found a loaded handgun that contained the
same type of ammunition found in K.G.’s pocket, two soda bottles filled with
alcohol, and a glass pipe with burnt marijuana residue.
[5] Thereafter, the State filed a petition alleging K.G. was a delinquent child for
committing acts that, if committed by an adult, would have been Class A
misdemeanor carrying a handgun without a license, Class C misdemeanor
illegal possession of an alcoholic beverage, and Class C misdemeanor
possession of paraphernalia.
[6] On October 24, 2016, the day of the fact-finding hearing, K.G. filed a motion to
suppress the evidence found during the pat-down and search of his backpacks
(i.e., the box of ammunition, handgun, alcohol, and glass pipe). K.G. argued,
in relevant part, that Lt. Paris’s search of K.G. and his backpacks was a
warrantless search in violation of K.G.’s constitutional rights under the Fourth
Amendment to the United States Constitution and Article 1, Section 11 of the
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Indiana Constitution. 4 Before the fact-finding hearing, the court heard
testimony from Lt. Paris and denied K.G.’s motion to suppress.
[7] The court continued immediately into the fact-finding hearing, incorporated Lt.
Paris’s testimony from the suppression hearing, and overruled K.G.’s renewed
objection to the ammunition, gun, alcohol, and glass pipe. After hearing
additional testimony, the juvenile court entered true findings that K.G. was a
delinquent child for the offenses of carrying a handgun without a license, illegal
possession of an alcoholic beverage, and possession of paraphernalia, and it
ordered K.G. placed in the Indiana Department of Correction.
Discussion and Decision
[8] K.G. argues the juvenile court abused its discretion when it denied his motion
to suppress all the evidence collected by Lt. Paris and admitted that evidence at
his delinquency hearing. 5 Because K.G. appeals following his delinquency
hearing, the issue on appeal is whether the juvenile court abused its discretion
4
In his motion, K.G. also argued “any and all statements” should be suppressed because he had not been
provided with an opportunity for meaningful consultation under Indiana Code Section 31-32-5-1. (App. Vol.
2 at 15.) K.G. makes no corresponding argument on appeal.
5
The hearing on K.G.’s motion to suppress immediately preceded the hearing on the petition alleging K.G.
was a delinquent. At the end of the hearing on the motion to suppress, the court denied the motion and said:
“Continue on then with the fact finding.” (Tr. Vol. 2 at 36.) The parties agreed to incorporate into the trial
record the testimony Lt. Paris had given in the suppression hearing, and then K.G.’s counsel said: “And I
guess Judge for the record since we’re technically at the trial I renew my motion to suppress objection.” (Id.
at 37.) The Court responded: “Yeah I’m denying that.” (Id.) K.G.’s renewal of that suppression argument
at the trial on the merits preserved for appeal any error in the trial court’s denial of K.G.’s motion to
suppress. See Ind. Evidence Rule 103(b) (2014) (“Once the court rules definitively on the record at trial a
party need not renew an objection or offer of proof to preserve a claim of error for appeal.”).
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by admitting the evidence during the fact-finding hearing. See A.M. v. State, 891
N.E.2d 146, 148 (Ind. Ct. App. 2008), trans. denied.
[9] The decision whether to admit evidence falls within the sound discretion of the
trial court, and we review the decision only for an abuse of discretion. Wilson v.
State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when
the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g
denied. As we conduct our review, we may not reweigh the evidence, but we
consider both the conflicting evidence, which we accept in the light most
favorable to the trial court’s decision, and any “uncontradicted evidence to the
contrary.” Pinner v. State, 74 N.E.3d 226, 229 (Ind. 2017). “[W]hen an
appellant’s challenge . . . is premised on a claimed constitutional violation, we
review the issue de novo because it raises a question of law.” Id.[10] Specifically, K.G. argues this evidence was inadmissible because the searches
violated his rights under the Fourth Amendment to the United States
Constitution. 6 The Fourth Amendment guarantees “[t]he right of the people to
be secure in their persons . . . against unreasonable search and seizures.” For a
search to comply with that guarantee of reasonableness, it generally must be
conducted with a warrant supported by probable cause. Pinner, 74 N.E.3d at
6
K.G. also asserts the search violated his right to be free from unreasonable search and seizure under Article
1, Section 11 of the Indiana Constitution. Because we conclude the frisk of K.G. violated the federal
constitution, we need not address his claims under the Indiana Constitution. See Pinner, 74 N.E.3d at 229 n.1
(declining to review under state constitution after concluding federal constitution was violated).
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229. When a seizure or search occurs without a warrant, the State has “the
burden to prove that an exception to the warrant requirement existed at the
time.” Mullen v. State, 55 N.E.3d 822, 827 (Ind. Ct. App. 2016) (quoting Brooks
v. State, 934 N.E.2d 1234, 1240 (Ind. Ct. App. 2010), reh’g denied, trans. denied).
[11] One exception to the warrant requirement is the Terry stop, which permits
police officers to stop and briefly detain an individual if the officer has a
reasonable and articulable suspicion that criminal activity may be afoot. 7 Terry
v. Ohio, 392 U.S. 1 (1968). The dispatch Lt. Paris received, combined with his
observation of K.G. in the expected location, provided reasonable suspicion for
Lt. Paris to stop K.G. briefly to determine whether K.G. was a runaway or
needed assistance calling for help. However, Lt. Paris did not simply stop K.G.
and talk to him, Lt. Paris also conducted a pat-down search of K.G.
In addition to detainment, Terry permits a reasonable search for
weapons for the protection of the police officer, where the officer
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. Officer safety is of
paramount importance. Police officers are daily placed in
difficult and dangerous situations, some of which are life
threatening. The law has to provide protections for such officers.
The officer need not be absolutely certain that the individual is
7
The State asserts on appeal: “With regard to Respondent’s Fourth Amendment claim, the initial encounter
was consensual as Lt. Paris merely approached Respondent asking him what he was doing. There was no
display of force, nor any indication to Respondent that negative consequences would follow if he failed to
respond.” (Br. of Appellee at 8.) As Lt. Paris testified he ordered K.G. to stop, (Tr. Vol. 2 at 27) (“he was
actually behind me at this point and I had to stop for – and tell him to stop”), we reject the State’s suggestion
the interaction was consensual.
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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.
Mullen, 55 N.E.3d at 830-31.
[12] Thus, the question we face is whether a reasonably prudent person facing the
circumstances herein would have been warranted in believing his safety was in
danger. Lt. Paris approached a teenager on the sidewalk in front of Kroger in
Avon, Indiana, in the late morning on a Sunday in October. When Lt. Paris
stopped K.G., he asked how old K.G. was. K.G. reported he was almost
seventeen, and Lt. Paris asked if K.G. was a runaway. K.G. responded “no.”
(Tr. Vol. 2 at 12.) Lt. Paris then asked if the two backpacks K.G. was carrying
belonged to K.G. K.G. reported they belonged to “Jacob.” (Id. at 13.) When
Lt. Paris asked for Jacob’s last name, K.G. “couldn’t give me a last name so I
decided to pat him down for my own safety.” 8 (Id.)
8
Lt. Paris construed K.G.’s lack of answer as his being “evasive and nervous.” (Tr. Vol. 2 at 13.) The State,
relying on a 1984 United States Supreme Court case, argues “nervous and evasive behavior is a pertinent
factor in determining whether reasonable suspicion exists.” (Br. of Appellee at 13, citing Florida v. Rodriguez,
469 U.S. 1, 6 (1984).) However, our Indiana Supreme Court recently reiterated: “nervousness is of limited
significance when determining reasonable suspicion . . . because it is common for most people to exhibit
signs of nervousness when confronted by a law enforcement officer whether or not the person is currently
engaged in criminal activity.” Pinner, 74 N.E.3d at 233 (internal quotations and citations omitted). While
evasiveness can combine with other factors to create reasonable concern for the safety of an officer or the
public, see, e.g., Scisney v. State, 55 N.E.3d 321, 325 (Ind. Ct. App. 2016) (pat-down “constitutionally
permissible” when Scisney did not respond to a question regarding whether he had any weapons), trans.
denied, we cannot say K.G.’s evasiveness about the owner of the backpacks, under the specific circumstances
that faced Lt. Paris, was sufficient to create reasonable concern for officer safety.
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[13] On cross-examination, defense counsel asked Lt. Paris: “What concern for
officer safety did you have?” (Id. at 24.)
A He was in possession of property according to him that did
not belong to him, could not give me names of who it belonged
to, the fact that he was under the age of 17, and he had
ammunition on him I was concerned he might also have a
weapon.
Q But at the time when you patted him down you did not
know he had ammunition on him, is that correct?
A Not until I patted him down, no.
(Id.) On re-direct examination, the following dialogue occurred:
Q Okay. And so during this interaction with [K.G.] did you
become at any point concerned for your safety or the safety of
anyone around?
A Yes.
Q Okay. And at what point did you put [K.G.] in handcuffs?
A Pretty much immediately after I found the ammunition in
his pocket.
(Id. at 28.) Then, on re-cross:
Q . . . you were concerned for . . . officer safety . . . is that
right?
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A Yes.
Q When were you concerned for officer safety? When did
that first become a concern?
A It’s always a concern but when I found ammunition on
him it became paramount at my [sic] point to get him secured.
(Id. at 29.) 9
[14] None of Lt. Paris’s testimony creates particularized reasonable suspicion that
Lt. Paris’s safety was in danger because of K.G. or that K.G. was “an armed
and dangerous individual,” Mullen, 55 N.E.3d at 831, prior to Lt. Paris finding
the ammunition in K.G.’s pocket during the pat-down. As Lt. Paris needed
particularized suspicion before he conducted that pat-down, K.G.’s Fourth
Amendment right to be free of unreasonable search and seizure was violated by
the pat-down, see Mitchell v. State, 745 N.E.2d 775, 781 (Ind. 2001) (holding pat-
down of properly-stopped citizen violated Fourth Amendment when “the
officer’s testimony did not express or explain any reasons for his safety
concerns” to justify a search), and the juvenile court should have suppressed the
evidence collected by Lt. Paris during and following the pat-down. As such,
9
We note Lt. Paris also testified that he “called for immediate back up,” (Tr. Vol. 2 at 30), because K.G.
reported Jacob, who owned the backpacks, was still in the area, and Lt. Paris “didn’t know if there was a –
he had a compatriot that was watching what we were doing.” (Id. at 30-31.) However, none of Lt. Paris’s
testimony explained when Lt. Paris received that information from K.G. or when Lt. Paris called for backup.
As the State has “the burden to prove” the admissibility of evidence seized without a warrant, Mullen, 55
N.E.3d at 827, we decline to presume Lt. Paris had that information and called for backup prior to his pat-
down of K.G.
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there was no admissible evidence to support K.G.’s adjudication as a
delinquent, and we must reverse that adjudication. See, e.g., L.W. v. State, 926
N.E.2d 52, 60 (Ind. Ct. App. 2010) (where officer’s stop of juvenile was based
on conjecture, rather than “specific and articulable facts” objectively
implicating the particular juvenile stopped, Fourth Amendment was violated
and delinquency adjudications had to be reversed), reh’g denied.
Conclusion
[15] Because the State has not demonstrated that Officer Paris’s pat-down of K.G.
during the Terry stop was supported by particularized reasonable suspicion, the
pat-down was improper under the Fourth Amendment. The juvenile court,
therefore, should have suppressed the ammunition found during that pat-down
and all evidence discovered during the searches that occurred thereafter.
Accordingly, we reverse the true findings of delinquency entered against K.G.
[16] Reversed.
Brown, J., and Pyle, J., concur.
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