Darius Lea v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 09 2018, 6:09 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy E. Stucky Curtis T. Hill, Jr.
Stucky, Lauer & Young, LLP Attorney General of Indiana
Fort Wayne, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darius Lea, October 9, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1004
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff. Jr., Judge
The Honorable David M. Zent,
Magistrate
Trial Court Cause No.
02D06-1710-CM-4318
Sharpnack, Senior Judge.
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Statement of the Case
[1] Darius Lea appeals his conviction of possession of a handgun without a license,
1
a Class A misdemeanor. We affirm.
Issue
[2] Lea raises one issue, which we restate as: whether the trial court erred in
admitting evidence obtained by police officers through an investigatory stop
and pat down.
Facts and Procedural History
[3] At 1:10 a.m. on September 27, 2017, Officers Robert Geiger and Daniel Chiu of
the Fort Wayne Police Department were dispatched to a neighborhood to
investigate a report of men “with hooded sweatshirts on, backpacks, looking
into vehicles, presumed to be possibly breaking into vehicles.” Trial Tr. p. 7.
The officers drove through the area, looking for persons that matched the
description. By 2 a.m., the officers were in a different part of their patrol area
and saw two men walking in the street, even though there was a sidewalk
nearby. The men wore hooded sweatshirts and one of them carried a backpack.
Officer Geiger activated his car’s emergency lights and stopped his car.
[4] Officer Chiu got out of the car and called to the two men, telling them to come
closer. The two men complied. Officer Geiger then got out of the car to talk
1
Ind. Code § 35-47-2-1 (2017).
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with one of the men, later identified as Lea, while Officer Chiu spoke with
Lea’s companion. Geiger noted the following:
While I was speaking with Mr. Lea, he would not direct his body
towards me and he was standing in a bladed stance with his right
side angled away from me. Never during the encounter when I
speaking [sic] with him did he squarely, square his body up to me
as we were engaging in conversation. He avoided eye contact.
He kept making nervous mannerisms with his hands as if he
didn’t know what to do with them. You know, pulling them up
and down, I also noticed he touched around his pocket area
multiple times with his hands.
Id. at 23.
[5] In Officer Geiger’s experience, a person in a “bladed stance” could be preparing
to “attack” or could be trying to hide contraband. Id. at 24, 52-53. Further,
based on his training, Geiger knew that when a person avoided eye contact with
an officer he was nervous and possibly considering ways “to flee.” Id. at 47.
Lea did not have any identification. Geiger learned from his brief questioning
that Lea claimed to be going to his mother’s home but did not know her house
number. In addition, Lea kept attempting to interfere with Officer Chiu’s
questioning of his companion, trying “to control both conversations.” Id.[6] Officer Geiger became concerned for his safety based on Lea’s behavior “and
the fact that he kept trying to control the entire conversation[ ].” Id. Geiger
decided to conduct a pat down of Lea for weapons. He first asked Lea if Lea
had any weapons, and Lea indicated he did not.
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[7] Next, Officer Geiger ordered Lea to turn around, raise his arms, and spread his
feet. He complied, and Geiger patted down Lea starting at his head and
moving down. Geiger felt objects in each of Lea’s front pants pockets. He
recognized the item in the left pocket as a cell phone, but he could not
immediately identify the object in Lea’s right front pocket. Geiger asked Lea
what was in his right pocket, and he replied that it was a cell phone. Geiger
“could clearly tell it was not a flat cell phone.” Id. at 26. At that point, he
recognized it as the grip of a handgun and removed it from Lea’s pocket.
[8] Lea did not have a license to carry the gun. Officer Geiger handcuffed him and
put him in his car. Lea then admitted to Geiger that the gun belonged to him.
In total, two minutes elapsed from the time Geiger activated his emergency
lights to the discovery of the gun.
[9] The State charged Lea with possession of a handgun without a license, a Class
A misdemeanor. Lea filed a motion to suppress evidence obtained from the
stop and the pat down. The trial court held a hearing and denied the motion.
Lea filed a second motion to suppress on the day of his bench trial. The court
denied the second motion and proceeded with the trial, during which Lea
objected to the admission of evidence obtained from the stop and the pat down.
The court overruled the objection and, at the end of the trial, determined Lea
was guilty. The court imposed a sentence, and this appeal followed.
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Discussion and Decision
[10] Lea argues the officers violated his federal and state constitutional protections
against unreasonable search and seizure by detaining him and patting him
down. He claims the court should not have admitted any evidence discovered
during the stop.
[11] In general, decisions to admit or exclude are matters for the trial court’s
discretion. Price v. State, 765 N.E.2d 1245, 1248 (Ind. 2002). Where, as here,
an appellant’s challenge to the admissibility of evidence is premised on a
challenge to the constitutionality of a search or seizure, we review the issue de
novo because it raises a question of law. Guilmette v. State, 14 N.E.3d 38, 40-41
(Ind. 2014).
I. Fourth Amendment
[12] The Fourth Amendment provides:
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.
[13] “The U.S. Supreme Court has declared that the Fourth Amendment’s
‘protections extend to brief investigatory stops of persons or vehicles that fall
short of traditional arrest.’” Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009)
(quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L.
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Ed. 2d 740 (2002)). The police can “stop and briefly detain a person for
investigative purposes” without probable cause “if the officer has a reasonable
suspicion supported by articulable facts that criminal activity ‘may be afoot.’”
U.S. v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)
(quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889(1968)). An investigatory stop must be justified by some objective
manifestation that the person stopped is, or is about to be, engaged in criminal
activity. U.S. v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621(1981).
[14] Pursuant to Indiana Code section 34-28-5-3 (2014):
(a) Whenever a law enforcement officer believes in good faith
that a person has committed an infraction or ordinance violation,
the law enforcement officer may detain that person for a time
sufficient to:
(1) inform the person of the allegation;
(2) obtain the person’s:
(A) name, address, and date of birth; or
(B) driver’s license, if in the person’s possession; and
(3) allow the person to execute a notice to appear.
[15] Officer Geiger saw Lea and his companion walking on the street even though
accessible, unobstructed sidewalks were nearby. “If a sidewalk is provided and
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the sidewalk’s use is practicable, a pedestrian may not walk along and upon an
adjacent roadway.” Ind. Code § 9-21-17-12 (1991). A violation of Indiana
Code section 9-21-17-12 is a Class C infraction. Ind. Code § 9-21-17-24 (1991).
Lea’s commission of an infraction provided reasonable suspicion for Officer
Geiger to conduct an investigatory stop.
[16] Lea cites Stalling v. State, 713 N.E.2d 922 (Ind. Ct. App. 1999), in support of his
argument that the officers lacked reasonable suspicion to detain him, but that
case is factually dissimilar. In Stalling, a panel of this court determined officers
lacked reasonable suspicion for an investigatory stop because Stalling merely
turned and walked away from officers in a high crime neighborhood. Id. at 924.
The officers were aware that Stalling had previously engaged in criminal
activity, but knowledge of his past conduct was insufficient to establish
reasonable suspicion on the night in question. Id. By contrast, in the current
case Officer Geiger saw Lea commit an infraction.
[17] Lea further claims Officer Geiger had no reason to conduct a pat down of his
clothing, claiming he fully cooperated with the officers’ requests. The Fourth
Amendment allows privacy interests protected by the Amendment to be
balanced against the interests of officer safety. Wilson v. State, 745 N.E.2d 789,
792 (Ind. 2001). For pat downs for weapons, the key is whether a reasonably
prudent person in the officer’s circumstances would be warranted in the belief
that his or her safety, or the safety of others, was in danger. Terry, 392 U.S. at
27, 88 S. Ct. at 1883. In determining the reasonableness of the officer’s
conduct, “due weight must be given, not to his inchoate and unparticularized
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suspicion or ‘hunch,’ but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience.” Id. at 27, 88 S. Ct. at
1883.
[18] When Officer Geiger questioned Lea, Lea would not make eye contact with
him and kept moving his hands toward his pockets. Further, he did not face
Geiger directly, choosing instead to stand at an angle in a manner that indicated
an imminent attack or an attempt to hide something. Lea indicated he was
going to his mother’s house, but he did not know her house number. He also
kept interfering in his companion’s conversation with Officer Chiu, trying to
control both conversations. In Geiger’s experience, failure to make eye contact
was a “red flag.” Trial Tr. p. 47. Based on these specific facts and Geiger’s
experience, it was reasonable for him to be concerned for his safety and pat Lea
down for weapons. See Redfield v. State, 78 N.E.3d 1104, 1108 (Ind. Ct. App.
2017) (seizure of suspect justified by officer’s reasonable fear for his own safety;
suspect was nervous, stood in a “blade[d]” stance hiding one side of his body
from the officer, and made hand gestures consistent with drawing a gun), trans.
denied.
[19] Lea argues the investigatory stop and pat down were improper because the
officers extended the duration of the stop beyond the time necessary to
investigate the infraction. “A police stop exceeding the time needed to handle
the matter for which the stop was made violates the Constitution’s shield
against unreasonable seizures.” Rodriguez v. State, __ U.S. __, 135 S. Ct. 1609,
1612, 191 L. Ed. 2d 492 (2015). Indiana Code section 34-28-5-3 provides that
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an officer may detain a person for a time sufficient to inform the person of the
alleged infraction and obtain the person’s personal information, including
name, address, date of birth, and identification, if any.
[20] Officer Geiger quickly noticed Lea’s failure to make eye contact, his repeated
movement of his hands toward his pockets, his “bladed stance,” and his
nervousness and attempts to control Officer Chiu’s conversation with Lea’s
companion. Based on Geiger’s observations, the questioning quickly segued
into the pat down. Less than two minutes passed from the officers’ activation
of their emergency lights to Geiger’s discovery of the handgun. We conclude
the officers did not extend the stop beyond the duration necessary to investigate
the infraction. Lea has failed to demonstrate a Fourth Amendment violation.
II. Article I, Section 11
[21] Article I, section 11 of the Indiana Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
[22] Although its text mirrors the Fourth Amendment, Indiana courts interpret
section 11 separately and independently. Robinson v. State, 5 N.E.3d 362, 368
(Ind. 2014). The validity of a search under the Indiana Constitution “turns on
an evaluation of the reasonableness of the police conduct under the ‘totality of
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the circumstances.’” Garcia v. State, 47 N.E.3d 1196, 1199 (Ind. 2016), emphasis
omitted (quoting Litchfield v. State, 824 N.E.2d 356, 360 (Ind. 2005)). In
determining whether a search was reasonable, we balance: 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. Litchfield, 824 N.E.2d at
361.
[23] The officers had a high degree of knowledge that Lea had committed a
violation because they saw him walking in the street, which is an infraction.
Further, the degree of intrusion was modest: the officers turned their
emergency lights on and told the men to approach them, and then briefly
conversed with them before Geiger conducted a pat down over Lea’s clothes.
Finally, the law enforcement need for the pat down was substantial because
Geiger’s observations of Lea would have caused a reasonable person to feel
concerned for his or her safety. For these reasons, we conclude the
investigatory stop and pat down were reasonable and did not violate section 11.
See Bell v. State, 81 N.E.3d 233, 238-39 (Ind. Ct. App. 2017) (pat down did not
violate section 11; Bell kept looking around rather than at the officer, was
sweating, and had a suspicious bulge in his pocket that he refused to discuss),
trans. denied. The trial court did not err in admitting evidence obtained during
the investigatory stop and pat down.
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Conclusion
[24] For the reasons stated above, we affirm the judgment of the trial court.
[25] Affirmed.
Najam, J., and Bradford, J., concur.
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