Brian E. Green v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 9, 2013
• Docket: 63A04-1203-CR-141
• Status: Unpublished

Opinion

FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jan 09 2013, 9:12 am any court except for the purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

THOMAS A. DYSERT GREGORY F. ZOELLER Petersburg, Indiana Attorney General of Indiana

RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

BRIAN E. GREEN, ) ) Appellant-Defendant, ) ) vs. ) No. 63A04-1203-CR-141 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE PIKE CIRCUIT COURT The Honorable Jeffrey L. Biesterveld, Judge Cause No. 63C01-0912-FC-745

January 9, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge STATEMENT OF THE CASE

Brian E. Green (“Green”) appeals the trial court’s interlocutory order denying his

motion to suppress evidence seized after officers stopped the vehicle in which Green was

a passenger.

We affirm.

ISSUE

Whether the trial court abused its discretion in denying Green’s motion to suppress evidence seized after a traffic stop.

FACTS AND PROCEDURAL HISTORY

At approximately 4:15 p.m. on November 27, 2009, Indiana Department of

Natural Resources Law Enforcement Division Officers Duane Englert (“Officer Englert”)

and Trent Stinson (“Officer Stinson”) (collectively, “the officers”) were patrolling in Pike

County. Officer Englert had stopped the vehicle at a stop sign on a road that intersected a

curve on a second road. Motorists on the second road had the right of way.

The officers had received numerous complaints of occupants in slow-moving

vehicles illegally firing shots at deer from inside their vehicles, and one of the officers’

purposes was to look for such slow-moving vehicles. Occupants of these slow-moving

vehicles in rural areas were often looking for deer to hunt, while some were looking to

poach by shooting the deer from the vehicle.

The officers noticed a pickup truck “from a ways away” approaching them at a

“fairly slow speed.” (Tr. 6, 52-53). When the pickup approached the point in the road

2 near where the officers were stopped, it came to a near or complete stop, and the driver of

the pickup, later identified as James Dillard (“Dillard”), waved the officers through the

intersection. The passenger, Green, sat in the vehicle with his head down.

When the officers did not move, Dillard increased his speed and continued down

the road. The officers ran a license plate check that revealed no violations and then

began to follow the pickup. The officers observed Dillard pull the pickup into the first

available driveway, which was on the property of a family named Anson. After watching

Dillard stop the pickup approximately fifty to seventy-five yards into the driveway,

Officer Englert pulled in behind the pickup, blocking the driveway by parking at a ninety

degree angle. The patrol car was approximately twenty to fifty feet behind the pickup.

Officer Englert exited the patrol car and approached the driver’s side of the

pickup, and Officer Stinson approached the passenger side. Dillard and Green told the

officers that they had pulled into the driveway to turn around, but neither could explain

why they had pulled so far into the driveway. Dillard had no explanation for waving the

officers through the intersection.

Officer Eglert obtained Dillard’s driver’s license, while Officer Stinson had Green

identify himself. As Officer Englert returned to his patrol car to conduct a records check,

Officer Stinson stayed with the pickup. Officer Stinson observed the silver butt of a

handgun sticking out between the split in the seat, and he asked the men whether they had

licenses to carry a handgun. The men did not initially respond, and Officer Stinson asked

3 them to exit the pickup. After the men exited the pickup, Officer Stinson handcuffed

them.

Officer Stinson advised both men of their Miranda rights, and he then obtained the

gun from the pickup. It was loaded with its safety turned off. Green told Officer Stinson

how to unload the handgun. He further stated that the gun belonged to his wife and that

he had been carrying it.

Green admitted that he did not have a license to carry a handgun, and the officers

arrested him. An inventory search at the jail revealed that Green had hidden

methamphetamine in his sock. Green also had drug paraphernalia on his person.

Because Green had a prior felony conviction within fifteen (15) years, the State

charged Green with carrying a handgun without a license as a class C felony. See Ind.

Code § 35-47-2-23(c)(2)(B). The State also charged Green with possession of

methamphetamine, a class D felony; and possession of paraphernalia, a class A

misdemeanor. Green filed a motion to suppress the evidence on the basis that it was

unlawfully obtained. After a suppression hearing, the trial court denied the motion.

Upon Green’s further motion, the trial court certified its order for interlocutory appeal

and stayed the proceedings pending a decision by this Court. We accepted jurisdiction.

DECISION

Green contends that the trial court erred in denying his motion to suppress. He

reasons that he was unlawfully detained under both the Fourth Amendment of the United

States Constitution and Article 1, Section 11 of the Indiana Constitution. However,

4 Green does not develop a specific argument pursuant to the Indiana Constitution, and he

has waived the issue. See Carroll v. State, 822 N.E.2d 1083, 1087 (Ind. Ct. App. 2005)

(failure to provide independent analysis and cogent argument under Article I, § 11 of

Indiana Constitution results in waiver of issue on appeal).

We review the denial of a motion to suppress “in a manner similar to other

sufficiency matters.” Harper v. State, 922 N.E.2d 75, 78 (Ind. Ct. App. 2010), trans.

denied. In conducting our review, we do not reweigh the evidence, and we consider

conflicting evidence most favorable to the trial court’s ruling. Id. However, unlike the

typical sufficiency of the evidence cases where only the evidence favorable to the

judgment is considered, we must consider the uncontested evidence favorable to the

defendant. Id. at 78-79. “Although we generally review a trial court’s decision to admit

evidence despite a motion to suppress under an abuse of discretion standard, the ultimate

determination of whether an officer had reasonable suspicion to conduct an investigatory

stop is reviewed de novo.” Id. at 79.

“The Fourth Amendment regulates nonconsensual encounters between citizens

and law enforcement officials and does not deal with situations in which a person

voluntarily interacts with a police officer.” Finger v. State, 799 N.E.2d 528, 532 (Ind.

2003). A full-blown arrest or a detention that lasts for more than a short period of time

must be justified by probable cause. Id. A brief investigative stop, however, may be

justified by reasonable suspicion that the persons detained are involved in criminal

activity. Id.

5 The State argues that the officers’ discussion with Dillard and Green was

consensual up to the time that the officers saw the handgun. “Detention turns on an

evaluation, under all circumstances, of whether a reasonable person would feel free to

disregard the police and go about his or her business.” Id. Here, Officer Englert blocked

all or most of the driveway with his vehicle; thus, Dillard would have had to risk hitting

the patrol vehicle as he slowly backed out of the driveway. We cannot conclude that a

reasonable person would feel free to disregard the blocking of the driveway under these

circumstances. Dillard and Green were detained at the time Officer Englert blocked their

egress.

The issue before us, then, is whether the officers had reasonable suspicion to stop

Dillard and Green. A trial court’s determination that the officer had reasonable suspicion

for the stop is reviewed de novo, but due weight is given to inferences drawn from the

facts by the trial court. Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009). Moreover,

when making our determination regarding reasonable suspicion, we consider the totality

of the circumstances of the case in order to determine whether the officer had a

particularized and objective basis for suspecting wrongdoing by the person being

stopped. Id. Reasonable suspicion is an abstract concept that is not readily reduced to a

neat set of rules; however, the reasonable suspicion requirement is satisfied where “the

facts known to the officer, together with the reasonable inferences arising from such

facts, would cause an ordinarily prudent person to believe criminal activity has occurred

or is about to occur.” L.W. v. State, 926 N.E.2d 52, 55 (Ind. Ct. App. 2010). Stated

6 differently, an officer is permitted stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by articulable facts that

criminal activity “may be afoot,” even if the officer lacks probable cause. Terry v. Ohio,

392 U.S. 1, 9 (1968). Reasonable suspicion requires more than mere hunches or

unparticularized suspicions. Finger, 799 N.E.2d at 534 (Ind. 2003). Officers must be

able to point to specific facts giving rise to reasonable suspicion of criminal activity.

In this case, at the time they stopped the pickup, Officers Englert and Stinson

relied on the following facts: (1) Dillard was driving extremely slowly in a sparsely

populated area where hunters break the law by trolling for deer and illegally shooting

them from a vehicle; (2) Dillard, who did not have a stop sign, stopped or nearly stopped

in the middle of the road to wave the officers across the road; (3) after the officers

refused to move their patrol car, Dillard increased his speed and turned into the first

available driveway; (4) Dillard pulled some distance into the driveway, indicating that he

was not trying to turn around; and (5) the officers knew that Dillard was pulling into

another person’s driveway.

First, the officers were put on alert by the exceedingly slow speed of the pickup

that Dillard and Green might be engaging in the illegal poaching of deer. Second,

Dillard’s odd behavior of attempting to wave the officers away further raised suspicion

that he did not want the officers in the area and that he especially did not want the

officers to follow the pickup. Finally, Dillard’s excessive ingress into the next available

driveway further caused the officers to believe that he did not want the officers to know

7 what he was doing. While none of these actions, standing alone, were sufficient to

constitute reasonable suspicion that criminal activity was afoot, the totality of the

circumstances gave rise to such suspicion. In short, the circumstances combined to cause

the officers to believe that Dillard and Green had or were about to commit an act that

made them attempt to avoid the officers.

Under the totality of the circumstances, Officers Englert and Stinson had

reasonable suspicion to briefly detain Dillard. A legal arrest and search, as well as legal

seizure of the handgun, the methamphetamine, and drug paraphernalia, resulted from the

circumstances arising after the detention.

Affirmed.

ROBB, C.J., and MAY, J., concur.