Crabtree v. State

762 N.E.2d 241, 2002 Ind. App. LEXIS 180, 2002 WL 193858

Opinions

OPINION

MATTINGLY-MAY, Judge.

Ervin Crabtree appeals the denial of his motion to suppress evidence. He raises two issues on appeal, which we restate as:

1. Whether a person is subjected to an investigatory stop when an officer shines his flashlight on the suspect and shouts "get your hands up," but the suspect does not comply and instead crouches down and throws an object away; and

2. Whether an officer has reasonable suspicion to support an investigatory stop when the officer has been dispatched to investigate a group of people around a loud car stereo but finds a lone suspect hiding behind a car from which no sound is emanating.

We find that Crabtree was subjected to an investigatory stop but that the police had reasonable suspicion to support the stop,¹ and we accordingly affirm.

FACTS AND PROCEDURAL HISTORY²

On May 11, 2001 at about 4:30 a.m., two Indianapolis police officers in two different cars were dispatched to the 3100 block of Broadway after police received an anonymous report of a loud car stereo. As one car approached the scene, the officer in the second car, Thomas Stout, stopped on 31st street and turned the car's lights off so he wouldn't be seen. The anonymous report had indicated there were several African-American males around the car with the loud stereo, so Officer Stout was looking for a group of people.

Stout saw Crabtree, who appeared to be hiding behind a car that had its lights off and was not running. The car was legally parked and there was no music coming from it. Officer Stout assumed Crabtree was hiding because he was crouched down and was straining to look over the car.

Stout turned onto Broadway so he could talk to Crabtree. As Crabtree stood up, Officer Stout left his car, began walking toward Crabtree, shined a flashlight on him and ordered him to "get your bands up." (Ir. at 21.) Officer Stout had not observed any illegal activity at that point, but ordered Crabtree to raise his hands for the officer's safety. At the hearing on the motion to suppress, Officer Stout testified that as he approached Crabtree "several people began running," (Tr. at 22), but he also testified that "in the area where [Crabtree] was, there was no one else." (Id. at 10.) ³

As Crabtree was ordered to put his hands up, he threw a plastic bag toward a fence. Crabtree then "laid down and put his hands out." (Id. at 25.) Officer Stout found a bag of marijuana on the seat of the car where Crabtree was hiding and he then handcuffed Crabtree. At some point, the officer drew his gun on Crabtree because Crabtree "wasn't doing what I was telling him to do." .(Id. at 26.) Officer Stout retrieved the bag Crabtree threw and found cocaine in it. Crabtree moved to suppress the cocaine and marijuana evi-denee, and his motion was denied.

DISCUSSION AND DECISION

We review the denial of a motion to suppress evidence in a manner similar to allegations of insufficient evidence. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, in reviewing a denial of a motion to suppress, we must also consider the uncontested evidence most favorable to the defendant. Washington v. State 740 N.E.2d 1241, 1243 (Ind.Ct.App.2000), transfer denied 753 N.E.2d 7 (Ind.2001). 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 whether an officer had reasonable suspicion to conduct an investigatory stop is reviewed de novo. Burkett v. State, 736 N.E.2d 304, 306 (Ind.Ct.App.2000).

1. The Investigatory Stop

Crabtree was subjected to an investigatory stop when the officer left his car, began walking toward Crabtree, shined a flashlight on him and ordered him to "get your hands up." An officer may stop and briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion of criminal activity even if the officer lacks probable cause to make an arrest. Lockett v. State, 747 N.E.2d 539, 544 (Ind.2001), reh'g denied, citing Terry v. Oho, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In determining whether a Terry stop is reasonable, we apply a two-part test: "whether the officer's action was justified at its inception, and whether it was reasonably related in seope to the cireumstances which justified the interference in the first place." Id., quoting Terry, 392 U.S. at 19-20, 88 S.Ct. 1868. The reasonableness of a Terry stop is judged against an objective standard because "[alnything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction." Id., quoting Terry, 392 U.S. at 21-22, 88 S.Ct. 1868.

In determining whether a contact between a citizen and a police officer is a "stop" that implicates the Terry protections, the crucial consideration is whether the citizen was under a reasonable impression that he was not free to leave the officer's presence. United States v. Wylie, 569 F.2d 62, 68 (D.C.Cir.1977). The test for whether such a reasonable impression existed is what a reasonable person, innocent of any crime, would have thought had he been in the citizen's shoes. Id.

The State characterizes Crabtree's encounter with Officer Stout as the type of "casual and brief inquiry of a citizen which involves neither an arrest nor a stop." Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000), transfer denied 741

N.E.2d 1251 (Ind.2000). In this type of "consensual encounter," the State contends, no Fourth Amendment interest is implicated. Id. In Overstreet, an officer saw Overstreet look in a mailbox at about 6:00 a.m., then close the mailbox door and hurriedly walk to a parked car and drive away. Overstreet drove to a nearby gas station and was pumping air into one of his automobile tires when the officer approached him. The officer got out of his vehicle, walked up to Overstreet, asked Overstreet what he had been doing at the mailbox and asked him for identification. Overstreet volunteered that his operator's license was suspended.

We noted that Overstreet was not detained and the officer did not restrict his movement in any way. Rather, the officer merely asked Overstreet about his actions at the mailbox and asked him for identification. Accordingly, we declined to hold that

this brief encounter and inquiry constitutes a Terry stop that required a reasonable suspicion of criminal activity. Not every encounter between a police officer and a citizen amounts to a seizure requiring objective justification ... [als long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy to require some particularized and objective justification. Examples of cireumstances under which a reasonable person would have believed he was not free to leave include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Id. at 664 (citations and footnote omitted).

Officer Stout's interaction with Crabtree was not the kind of "casual and brief inquiry"⁴ involved in Overstreet. The first words from Officer Stout were his shout "get your hands up," and after Crabtree failed to comply he was immediately apprehended and handcuffed. Stout, unlike the officer in Overstreet, did not merely ask Crabtree for identification and inquire whether Crabtree was involved with the offense that was being investigated.

The Seventh Cireuit found in United States v. Packer, 15 F.3d 654, 657 (7th Cir.1994) that somewhat similar police behavior was an investigatory stop that must be supported by reasonable suspicion. In Packer, the police responded to an anonymous tip regarding a suspicious vehicle in a bad neighborhood at about one in the morning. The officers parked their cars in front of and behind the defendant's car and shined a light into the car. As an officer approached the car, she asked the occupants to put their hands in the air where she could see them. "While the officer's prudential procedures are of course fully justified by concerns for police safety, a reasonable person in defendant's position would not feel that he was free to leave." Id. Similarly, a reasonable person in Crabtree's position would not feel that he was free to leave.

2. Reasonable Suspicion

While Crabtree was subjected to an investigatory stop, Officer Stout had reasonable suspicion to justify the stop. Law enforcement officers may make a brief investigatory stop of a person provided they have a reasonable and articulable suspicion that the person has been, is, or is about to be engaged in breaking the law.⁵ Whether a particular fact situation justifies an investigatory stop is determined on a case-by-case basis. The "reasonable suspi-clon" requirement of the Fourth Amendment is satisfied if the facts known to the officer at the moment of the stop are such that a person "of reasonable caution" would believe that the "action taken was appropriate." Lyons v. State, 735 N.E.2d 1179, 1183-84 (Ind.Ct.App.2000). In other words, the 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 that criminal activity has occurred or is about to occur. Reasonable suspicion entails something more than an inchoate and unparticular-ized suspicion or hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence. Consideration of the totality of the cireumstances necessarily includes a determination of whether the defendant's own actions were suspicious. Id. at 1184.

At the outset, we note that neither presence in a high-crime neighborhood alone, nor an anonymous tip alone that is not confirmed in significant aspects, may constitute reasonable suspicion. Burkett, 736 N.E.2d at 306-07. However, presence in a high-crime area can be considered as a factor in the totality of the cireumstances confronting an officer at the time of a stop. Green v. State, 719 N.E.2d 426, 429 (Ind.Ct.App.1999). Crabtree was seen next to a car with an open door. The car was at a location where there had been a complaint of a loud car stereo. Crabtree appeared to be hiding behind the car. He was crouched down and was straining to look over the car. In addition, it was approximately 4:80 in the morning. The State argues the officer had "a reasonable suspicion that Defendant had turned down his car stereo when Defendant observed the other patrol car and was hiding from that patrol car." (Br. of Appellee at 5-6.) In light of the totality of the circumstances, we cannot say the trial court erred to the extent it determined the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity had occurred or was about to occur.

CONCLUSION

Officer Stout's interaction with Crabtree was an investigatory stop that implicated the Terry Fourth Amendment protections; however, the admission of the evidence seized pursuant to the stop was not error because the Officer had reasonable suspicion that criminal activity had occurred.

Affirmed.

BARNES, J., concurs. DARDEN, J., dissents with opinion.

Footnotes

1

. Because we find the investigatory stop was supported by reasonable suspicion, we do not address Crabtree's alternative argument that his abandonment of the cocaine was involuntary because it was done in response to improper police conduct.

2

. Oral argument was held on October 9, 2001 at Decatur Central High School. We gratefully acknowledge the hospitality of the Decatur Central students, faculty, and administration and the capable advocacy of counsel.

3

. The court heard other varying testimony as to whether Crabtree was alone. One officer announced on his radio that "he didn't see anybody." (App. at 30.) Officer Stout stated in a deposition that he tried to radio the other officer to tell him "there were several people" and one was hiding behind a car. (Fd. at 31.)

4

. The State characterizes the officer's shout of "get your hands up" as "merely ask{ing] Defendant to raise his hands because [the officer] was concerned for his own safety." (Br. of Appellee at 4.)

5

. The dissent suggests the initial stop was invalid in part because Officer Stout was investigating an ordinance violation and not criminal activity. We note that a brief detention is permitted when a police officer believes a person has committed an infraction or an ordinance violation. Conwell v. State, 714 N.E.2d 764, 766 (Ind.Ct.App.1999). And see Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 LEd.2d 343 (1979).