MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 28 2019, 8:41 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas F. Little Curtis T. Hill, Jr. Power, Little, Little & Little Attorney General of Indiana Frankfort, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Albert Thomas Thorne, III, August 28, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-320 v. Appeal from the Clinton Superior Court State of Indiana, The Honorable Justin H. Hunter, Appellee-Plaintiff. Judge Trial Court Cause No. 12D01-1808-F2-1194
Friedlander, Senior Judge.
[1] Albert Thorne, III brings this interlocutory appeal from the trial court’s denial
of his motion to suppress. We reverse and remand.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 1 of 8 [2] On August 30, 2018, Officer Pickrell was on patrol and saw Thorne and
Jennifer Eason walking down the street. Officer Pickrell was familiar with
Thorne from prior incidents, and, upon seeing Thorne, the officer ran Thorne’s
name through the computer system. The search revealed that there was an
outstanding warrant for Thorne, so the officer radioed dispatch to confirm the
warrant. After confirming only that the name on the warrant matched Thorne’s
and without reviewing any of the information in the warrant or waiting for a
response from dispatch, Officer Pickrell turned his car around, pulled up behind
Thorne and Eason, and asked them to stop. Thorne continued walking away.
Officer Pickrell instructed him several times to stop, but Thorne yelled at the
officer and then ran off. The officer ran after Thorne, and, when he caught up
with Thorne, a struggle ensued. Thorne was eventually taken into custody, at
which time the backpack he was carrying was searched and found to contain a
syringe, two clear plastic bags that contained a white powdery substance, and a
marijuana cigarette. The white powdery substance field tested positive for
methamphetamine. While still at the scene but after Thorne was in custody,
Officer Pickrell received information from dispatch that the warrant was from
New Mexico and was non-extraditable.
[3] Based upon this incident, Thorne was charged with dealing in 1 methamphetamine, a Level 2 felony; possession of methamphetamine, a Level
1 Ind. Code § 35-48-4-1.1 (2017).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 2 of 8 2 3 3 felony; battery against a public safety official, a Level 6 felony; unlawful 4 possession of syringe, a Level 6 felony; resisting law enforcement, a Class A 5 6 misdemeanor; possession of marijuana, a Class B misdemeanor; and with 7 being an habitual offender. Thorne filed a motion to suppress the evidence
found in his backpack. Following a hearing, the trial court entered it findings
and order denying the motion, and Thorne pursued this interlocutory appeal.
[4] When reviewing a trial court’s denial of a defendant’s motion to suppress, we
view conflicting factual evidence in the light most favorable to the ruling; yet,
we also consider substantial and uncontested evidence favorable to the
defendant. Wertz v. State, 41 N.E.3d 276 (Ind. Ct. App. 2015), trans. denied.
Nevertheless, the constitutionality of a search or seizure is a question of law,
which we review de novo. Id.
[5] Permissible under the Fourth Amendment’s protection against unreasonable
searches and seizures is the Terry stop. A Terry stop allows an officer to briefly
stop an individual for investigatory purposes if, based upon specific, articulable
facts, the officer has a reasonable suspicion that “criminal activity may be
2 Ind. Code § 35-48-4-6.1 (2014). 3 Ind. Code § 35-42-2-1 (2018). 4 Ind. Code § 16-42-19-18 (2015). 5 Ind. Code § 35-44.1-3-1 (2016). 6 Ind. Code § 35-48-4-11 (2018). 7 Ind. Code § 35-50-2-8 (2017).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 3 of 8 afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
This includes reasonable grounds to believe that the individual is wanted for
past criminal conduct. U.S. v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed.
2d 604 (1985). Reasonable suspicion entails at least a minimal level of objective
justification that is more than an unparticularized suspicion or hunch. State v.
Campbell, 905 N.E.2d 51 (Ind. Ct. App. 2009), trans. denied. However, the
reasonable suspicion necessary for a Terry stop need not rise to the level of
suspicion required for probable cause. Id. Whether the officer’s suspicion was
reasonable is a fact-sensitive inquiry that must be determined on a case-by-case
basis by considering the totality of the circumstances. Rutledge v. State, 28
N.E.3d 281 (Ind. Ct. App. 2015). In assessing the reasonableness of
investigatory stops, courts must strike “a balance between the public interest
and the individual’s right to personal security free from arbitrary interference by
law [enforcement] officers.” Carter v. State, 692 N.E.2d 464, 466 (Ind. Ct. App.
1997). When a defendant challenges the constitutionality of the gathering of
evidence, the State bears the burden of proving the evidence was admissible.
Greeno v. State, 861 N.E.2d 1232 (Ind. Ct. App. 2007).
[6] Here, Thorne asserts that it was unreasonable for Officer Pickrell to confirm
only his name on the warrant and to neglect to review the remainder of the
information or to wait for confirmation from dispatch before attempting to
detain him. The State, on the other hand, argues that the fact that there was a
warrant and that the name on the warrant matched Thorne’s was enough to
permit an investigatory stop.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 4 of 8 [7] Consideration of the constitutionality of an investigatory stop of an individual
involves a weighing of the gravity of the public concerns served by the seizure,
the degree to which the seizure advances the public interest, and the severity of
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 28 2019, 8:41 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas F. Little Curtis T. Hill, Jr. Power, Little, Little & Little Attorney General of Indiana Frankfort, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Albert Thomas Thorne, III, August 28, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-320 v. Appeal from the Clinton Superior Court State of Indiana, The Honorable Justin H. Hunter, Appellee-Plaintiff. Judge Trial Court Cause No. 12D01-1808-F2-1194
Friedlander, Senior Judge.
[1] Albert Thorne, III brings this interlocutory appeal from the trial court’s denial
of his motion to suppress. We reverse and remand.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 1 of 8 [2] On August 30, 2018, Officer Pickrell was on patrol and saw Thorne and
Jennifer Eason walking down the street. Officer Pickrell was familiar with
Thorne from prior incidents, and, upon seeing Thorne, the officer ran Thorne’s
name through the computer system. The search revealed that there was an
outstanding warrant for Thorne, so the officer radioed dispatch to confirm the
warrant. After confirming only that the name on the warrant matched Thorne’s
and without reviewing any of the information in the warrant or waiting for a
response from dispatch, Officer Pickrell turned his car around, pulled up behind
Thorne and Eason, and asked them to stop. Thorne continued walking away.
Officer Pickrell instructed him several times to stop, but Thorne yelled at the
officer and then ran off. The officer ran after Thorne, and, when he caught up
with Thorne, a struggle ensued. Thorne was eventually taken into custody, at
which time the backpack he was carrying was searched and found to contain a
syringe, two clear plastic bags that contained a white powdery substance, and a
marijuana cigarette. The white powdery substance field tested positive for
methamphetamine. While still at the scene but after Thorne was in custody,
Officer Pickrell received information from dispatch that the warrant was from
New Mexico and was non-extraditable.
[3] Based upon this incident, Thorne was charged with dealing in 1 methamphetamine, a Level 2 felony; possession of methamphetamine, a Level
1 Ind. Code § 35-48-4-1.1 (2017).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 2 of 8 2 3 3 felony; battery against a public safety official, a Level 6 felony; unlawful 4 possession of syringe, a Level 6 felony; resisting law enforcement, a Class A 5 6 misdemeanor; possession of marijuana, a Class B misdemeanor; and with 7 being an habitual offender. Thorne filed a motion to suppress the evidence
found in his backpack. Following a hearing, the trial court entered it findings
and order denying the motion, and Thorne pursued this interlocutory appeal.
[4] When reviewing a trial court’s denial of a defendant’s motion to suppress, we
view conflicting factual evidence in the light most favorable to the ruling; yet,
we also consider substantial and uncontested evidence favorable to the
defendant. Wertz v. State, 41 N.E.3d 276 (Ind. Ct. App. 2015), trans. denied.
Nevertheless, the constitutionality of a search or seizure is a question of law,
which we review de novo. Id.
[5] Permissible under the Fourth Amendment’s protection against unreasonable
searches and seizures is the Terry stop. A Terry stop allows an officer to briefly
stop an individual for investigatory purposes if, based upon specific, articulable
facts, the officer has a reasonable suspicion that “criminal activity may be
2 Ind. Code § 35-48-4-6.1 (2014). 3 Ind. Code § 35-42-2-1 (2018). 4 Ind. Code § 16-42-19-18 (2015). 5 Ind. Code § 35-44.1-3-1 (2016). 6 Ind. Code § 35-48-4-11 (2018). 7 Ind. Code § 35-50-2-8 (2017).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 3 of 8 afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
This includes reasonable grounds to believe that the individual is wanted for
past criminal conduct. U.S. v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed.
2d 604 (1985). Reasonable suspicion entails at least a minimal level of objective
justification that is more than an unparticularized suspicion or hunch. State v.
Campbell, 905 N.E.2d 51 (Ind. Ct. App. 2009), trans. denied. However, the
reasonable suspicion necessary for a Terry stop need not rise to the level of
suspicion required for probable cause. Id. Whether the officer’s suspicion was
reasonable is a fact-sensitive inquiry that must be determined on a case-by-case
basis by considering the totality of the circumstances. Rutledge v. State, 28
N.E.3d 281 (Ind. Ct. App. 2015). In assessing the reasonableness of
investigatory stops, courts must strike “a balance between the public interest
and the individual’s right to personal security free from arbitrary interference by
law [enforcement] officers.” Carter v. State, 692 N.E.2d 464, 466 (Ind. Ct. App.
1997). When a defendant challenges the constitutionality of the gathering of
evidence, the State bears the burden of proving the evidence was admissible.
Greeno v. State, 861 N.E.2d 1232 (Ind. Ct. App. 2007).
[6] Here, Thorne asserts that it was unreasonable for Officer Pickrell to confirm
only his name on the warrant and to neglect to review the remainder of the
information or to wait for confirmation from dispatch before attempting to
detain him. The State, on the other hand, argues that the fact that there was a
warrant and that the name on the warrant matched Thorne’s was enough to
permit an investigatory stop.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 4 of 8 [7] Consideration of the constitutionality of an investigatory stop of an individual
involves a weighing of the gravity of the public concerns served by the seizure,
the degree to which the seizure advances the public interest, and the severity of
the interference with individual liberty. Brown v. Texas, 443 U.S. 47, 99 S. Ct.
2637, 61 L. Ed. 2d 357 (1979). A central concern in balancing these competing
considerations is to ensure that an individual’s reasonable expectation of
privacy is not subject to arbitrary invasions solely at the unfettered discretion of
officers in the field. Id.
[8] Moreover, the factors in the balance may be somewhat different when a stop to
investigate past criminal activity is involved rather than a stop to investigate
ongoing criminal conduct. Hensley, 469 U.S. 221. For instance, a stop to
investigate an already completed crime does not necessarily promote the
interest of crime prevention as directly as a stop to investigate suspected
ongoing criminal activity. Id. Similarly, the exigent circumstances which
require a police officer to step in before a crime is committed or while it is in
progress are not necessarily as pressing when the crime has been completed. Id.
In addition, “[p]ublic safety may be less threatened by a suspect in a past crime
who now appears to be going about his lawful business than it is by a suspect
who is currently in the process of violating the law.” Id. at 228. Finally,
officers making a stop to investigate a past crime may have “a wider range of
opportunity to choose the time and circumstances of the stop.” Id. at 228-29.
[9] Here, the record reveals that when Officer Pickrell saw Thorne, he was walking
down the street, and the officer had no suspicion that Thorne was engaged in
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 5 of 8 any criminal activity. Tr. p. 12. Upon seeing Thorne, Officer Pickrell
performed a search in his computer and received a “very vague hit” indicating a
warrant for Thorne. Id. at 8. Officer Pickrell testified at the suppression
hearing that he confirmed only that the name on the warrant matched Thorne’s
name. He further testified that there was additional information in the warrant
that he did not read. Although he contacted dispatch to confirm the warrant,
he testified that he did not wait for dispatch to get back with him before he
attempted to detain Thorne. Upon questioning by the court as to whether the
warrant details were included in the result from the initial computer search and
overlooked, or whether the information had to be obtained from dispatch,
Officer Pickrell responded that after the incident he ran the search again and
noticed that in the “notes” section of the result it indicated whether the warrant
was extraditable. Id. at 20. Officer Pickrell testified that, had he known the
warrant was non-extraditable, he would not have stopped Thorne.
[10] Examining the factors to be balanced, we note that Officer Pickrell had no
suspicion of any criminal activity by Thorne; therefore, there was no ongoing or
in-progress criminal activity that would be prevented by his immediate
detention. In addition, there were no exigent circumstances or threat to public
safety requiring police intervention. Most notable is that in dealing with a past
crime, Officer Pickrell had more opportunity to review relevant information
before making a stop.
[11] Furthermore, this case does not involve a mistake of fact upon which the officer
reasonably relied. See State v. Stevens, 33 N.E.3d 1200 (Ind. Ct. App. 2015)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 6 of 8 (stating that good faith exception applies in situations where warrant contains
defect upon which officer reasonably relies), trans. denied; see also Dowdy v. State,
83 N.E.3d 755 (Ind. Ct. App. 2017) (stating that even assuming officer was
ultimately mistaken, traffic stop was based upon good faith belief that infraction
occurred based upon BMV information). Here, the information in the warrant
was accurate. Nevertheless, Officer Pickrell failed to exercise due diligence
when he neglected to review the information in the search result.
[12] “The ultimate touchstone of the Fourth Amendment is reasonableness.” Wertz,
41 N.E.3d at 279. In assessing the reasonableness of a search or seizure in light
of the particular circumstances, it is imperative that the facts be judged against
this objective standard: would the facts available to the officer at the moment of
the search or seizure cause a person of reasonable caution to believe that the
action taken was appropriate. Terry, 392 U.S. 1. Anything less invites intrusion
upon constitutionally guaranteed rights. Id. Stated another way, evidence
should be suppressed only if it can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the search or
seizure was unconstitutional under the Fourth Amendment. Shotts v. State, 925
N.E.2d 719 (Ind. 2010). The facts that were available to Officer Pickrell before
he attempted to detain Thorne were that the warrant was non-extraditable; yet,
he failed to review that information. Under these circumstances, Officer
Pickrell may properly be charged with knowledge of such facts. Consequently,
he did not have reasonable suspicion to stop Thorne, and the ensuing search of
Thorne’s backpack was illegal.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 7 of 8 [13] Thus, under the unique facts and circumstances before us, we conclude that the
trial court abused its discretion in denying Thorne’s motion to suppress. We
accordingly reverse the trial court’s order and remand this matter for further
proceedings consistent with this opinion.
[14] Reversed and remanded for further proceedings consistent with this opinion.
Crone, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-320 | August 28, 2019 Page 8 of 8