James H. Gosnell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 30, 2015
• Docket: 71A03-1502-CR-47
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Sep 30 2015, 8:31 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gary L. Griner Gregory F. Zoeller Mishawaka, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James H. Gosnell, September 30, 2015 Appellant-Defendant, Court of Appeals Case No. 71A03-1502-CR-47 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth Hurley, Appellee-Plaintiff Judge Trial Court Cause No. 71D08-1207-FD-615

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 1 of 12 Case Summary [1] James H. Gosnell was convicted of Class D felony operating a motor vehicle

while privileges are suspended as a habitual violator of traffic laws (HTV) and

Class D felony operating a vehicle with a blood-alcohol concentration of at least

.08 with a prior operating while intoxicated (OWI) conviction within the

preceding five years. He now appeals both convictions, arguing that the officer

did not have reasonable suspicion to stop him under the Fourth Amendment of

the United States Constitution or Article 1, Section 11 of the Indiana

Constitution. Finding that the officer had reasonable suspicion to conduct an

investigatory stop based on the concerned-citizen tip, and the circumstances—

an area with a history of burglaries and thefts, and the time of day—we affirm.

Facts and Procedural History [2] There is a Save-A-Lot grocery store on the corner of Twelfth Street and Byrkit

Avenue in Mishawaka, Indiana. Directly across from Save-A-Lot is a 7-Eleven

gas station that has been the target of armed robbers and shoplifters. Behind

Save-A-Lot, there is a loading dock. Village Green, a mobile-home community

that has reported “quite a few burglaries,” is located behind the loading dock,

across a small grass field. Tr. p. 33.

[3] Julie Williams lives in Village Green. Around 12:30 a.m. on July 6, 2012, she

was on her way home from work, driving her truck on Byrkit Avenue. As she

drove by Save-A-Lot, she noticed a small, black car parked behind the loading

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 2 of 12 dock and she saw the dome lights in the car flash on and off multiple times as

the doors were opened and closed. Williams became concerned about the car

and its occupants because there had been “break-ins in Village Green.” Id. at

13. Because it was dark, the store was closed, and there was no obvious reason

for a car to be parked at the loading dock, Williams called the police and pulled

her truck closer to the grass field to continue watching the car until an officer

arrived. While she was waiting, the car started to leave the parking lot.

Williams called the police again and then followed the car in her truck. Id. at

14.

[4] The car was traveling west on Twelfth Street with Williams following in her

truck when Mishawaka Police Department Officer Bruce Faltynski spotted it.

He was heading east on Twelfth Street at the time. Officer Faltynski turned his

car around and fell in line behind Williams’s truck. When the small, black car

turned into a parking lot, Williams drove on and Officer Faltynski confirmed

that the license plate on the car matched the plate number from the dispatcher.

Id. at 20. He then stopped the car to investigate.

[5] Gosnell was driving the small, black car with his wife in the passenger seat and

two minor children in back. The car was in working order and Officer

Faltynski did not see Gosnell violate any traffic rules. Id. at 30. But when

Officer Faltynski asked for Gosnell’s identification, he discovered that Gosnell

did not have a license because he was an HTV. Officer Faltynski asked Gosnell

to step out of the car and, while he was talking with Gosnell about his license,

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 3 of 12 he smelled alcohol on Gosnell’s breath. Gosnell admitted to Officer Faltynski

that he had consumed four beers that night.

[6] The State charged Gosnell with Class D felony operating a motor vehicle while

privileges are suspended as an HTV, Class C misdemeanor operating a vehicle

with a blood-alcohol concentration of at least .08, and Class D felony operating

a vehicle with a blood-alcohol concentration of at least .08 with a prior OWI

conviction within the preceding five years. Appellant’s App. p. 7-9.

[7] Gosnell moved to suppress the evidence of his license status and blood-alcohol

concentration, claiming Officer Faltynski did not have reasonable suspicion of

criminal activity when he stopped him. The trial court denied Gosnell’s motion

to suppress and admitted the evidence during trial. A jury found him guilty of

Class D felony operating a motor vehicle while privileges are suspended as an

HTV and Class C misdemeanor operating a vehicle with a blood-alcohol

concentration of at least .08, and he pled guilty to Class D felony operating a

vehicle with a blood-alcohol concentration of at least .08 with a prior OWI

conviction within the preceding five years. The court merged the Class C

misdemeanor for operating a vehicle with a blood-alcohol concentration of at

least .08 with the Class D felony conviction for operating a vehicle with a

blood-alcohol concentration of at least .08 with a prior OWI conviction within

the preceding five years, and sentenced him to concurrent terms of two-and-

one-half years.

[8] Gosnell now appeals.

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 4 of 12 Discussion and Decision [9] Gosnell contends that the trial court erred by admitting evidence resulting from

the Terry stop—specifically, evidence that he was driving with a suspended

license, and that his blood-alcohol concentration was over the legal limit. He

argues that Officer Faltynski lacked reasonable suspicion to stop him and,

therefore, “all evidence obtained following the stop should be suppressed.”

Appellant’s Br. p. 4. He raises this issue under both the Fourth Amendment to

the United States Constitution and Article 1, Section 11 of the Indiana

Constitution.

[10] A trial court’s determination of admissibility of evidence is reviewed for abuse

of discretion and will be reversed only where the decision is clearly against the

logic and effect of the facts and circumstances. Smith v. State, 754 N.E.2d 502,

504 (Ind. 2001). We will not reweigh the evidence, and we consider any

conflicting evidence in favor of the trial court’s ruling. Collins v. State, 822

N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied. However, we must also

consider the uncontested evidence favorable to the defendant. Id.

I. Fourth Amendment [11] The Fourth Amendment protects people from unreasonable searches and

seizures, and this protection has been extended to state action through the

Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). These two

constitutional provisions have generally been construed to prohibit warrantless

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 5 of 12 searches except in particular circumstances. Berry v. State, 704 N.E.2d 462, 465

(Ind. 1998). And “when a search is conducted without a warrant, the State has

the burden of proving that an exception to the warrant requirement existed at

the time of the search.” Id.

[12] One such exception to the warrant requirement is the Terry stop. Police officers

may briefly detain a person for investigatory purposes if they have reasonable

suspicion that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 21-22

(1968). In evaluating the legality of a Terry stop, we consider “the totality of the

circumstances—the whole picture.” United States v. Cortez, 449 U.S. 411, 417

(1981). The reasonable-suspicion requirement is satisfied where the facts

known to the officer at the moment of the stop, 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. Lyons v. State,

735 N.E.2d 1179, 1183-84 (Ind. Ct. App. 2000), trans. denied; see also Gipson v.

State, 459 N.E.2d 366, 368 (Ind. 1984). “Reasonable suspicion” requires

something “more than an inchoate and unparticularized suspicion or hunch,

but considerably less than proof of wrongdoing by a preponderance of the

evidence.” Francis v. State, 764 N.E.2d 641, 644 (Ind. Ct. App. 2002) (citing

Luster v. State, 578 N.E.2d 740, 743 (Ind. Ct. App. 1991)).

[13] Gosnell argues that Officer Faltynski did not have reasonable suspicion to stop

him because neither the officer nor the tipster, Williams, saw anything illegal,

or anything that would unambiguously suggest criminal activity was afoot.

Appellant’s Br. p. 6-7. But whether the officer or the tipster saw unambiguously Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 6 of 12 criminal activity is not the correct question. “The Fourth Amendment does not

require a policeman who lacks the precise level of information necessary for

probable cause to arrest to simply shrug his shoulders and allow a crime to

occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145 (1972).

Therefore, the fact that an action might also have an innocent explanation does

not establish a violation of the Fourth Amendment. Illinois v. Wardlow, 528

U.S. 119, 125 (2000). The conduct in Terry, for example, was “ambiguous and

susceptible of an innocent explanation,” but Terry recognized that, “officers

could detain the individuals to resolve the ambiguity.” Id. The correct question

is whether Officer Faltynski’s “brief stop of [Gosnell], in order to determine his

identity or to maintain the status quo momentarily while obtaining more

information,” was “reasonable in light of the facts known to the officer at the

time.” See id. at 146.

[14] Examining the facts that were available to Officer Faltynski in this case, the

trial court found he had reasonable suspicion that criminal activity was afoot.

Officer Faltynski discussed three reasons why he stopped Gosnell: (1)

Williams’s tip that described unusual, but not illegal, activity behind Save-A-

Lot; (2) Save-A-Lot is positioned between a 7-Eleven, where there have been

“some armed robberies” and thefts, and the Village Green neighborhood, which

has reported “quite a few burglaries”; and (3) it was 12:30 in the morning, the

store was closed, and there was no apparent reason for people to be getting in

and out of a car multiple times behind the loading dock. Tr. p. 32-33.

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 7 of 12 [15] First, as for Williams’s tip, “it is well-established in Indiana that a tip from a

concerned citizen may justify an investigatory stop if sufficiently reliable.”

Russell v. State, 993 N.E.2d 1176, 1180 (Ind. Ct. App. 2013). “The reliability of

a concerned citizen tip ‘generally must be established by reference to underlying

facts and circumstances which indicate that the information is trustworthy.’” Id.

(quoting State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011)). Tips from

concerned citizens “will be deemed reliable when an individual provides

specific information to police officers such as a vehicle description.” Renzulli,

958 N.E.2d at 1148 (quoting Bogetti v. State, 723 N.E.2d 876, 879 (Ind. Ct. App.

2000)).

[16] The record reflects multiple indicators that Williams’s tip was sufficiently

reliable to justify an investigatory stop. She provided a description of the small,

black car, which included its license-plate number. Tr. p. 20. She called the

police a second time, when the car began to leave Save-A-Lot, and followed it

herself, providing the police with specific information about the car’s location

and direction of travel. Id. at 15; see also Russell, 993 N.E.2d at 1180 (finding a

tip sufficiently reliable when it was given by a driver who was leading the

suspicious vehicle to a specific location; during a low-traffic time of day; when

the tip included particular information about where the suspect was and how to

identify him; and because the tipster was also present at the scene, rendering

him susceptible to prosecution for false reporting). Finally, it is reasonable to

infer that Williams gave her name when she called the police because the State

was able to call her as a witness. See Renzulli, 958 N.E.2d at 1150 (including the

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 8 of 12 fact that the tipster identified himself as a factor in the totality-of-the-

circumstances test for reasonable suspicion). Under these circumstances, we

find that Williams’s tip “provided independent indicia of reliability” sufficient

to permit Officer Faltynski to rely on it in forming his own reasonable suspicion

for a Terry stop. See Russell, 993 N.E.2d at 1180.

[17] Second, Officer Faltynski testified that he knew of “some armed robberies” and

burglaries occurring in the area around Save-A-Lot, even though the store itself

had not previously been burglarized. Tr. p. 33. Gosnell cites Wardlow for the

proposition that, standing alone, the nature of the neighborhood does not justify

an investigatory stop. Appellant’s Br. p. 7. But it is a relevant consideration

that may be taken together with the other facts. Wardlow goes on to say that

“officers are not required to ignore the relevant characteristics of a location in

determining whether the circumstances are sufficiently suspicious to warrant

further investigation.” Wardlow, 528 U.S. at 124. The fact that the stop

occurred in a high-crime area, while not dispositive, is among the relevant

contextual considerations in a Terry analysis. Id.

[18] Finally, it was 12:30 in the morning. The store was closed and dark. The lack

of an obvious reason for a car to be at the loading dock at that hour with its

doors being opened and closed is what prompted Williams to call the police.

She was concerned that the occupants of the small, black car had broken into

the store. Id. at 14.

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 9 of 12 [19] Considering all the facts together—the indicia of reliability in Williams’s tip,

the history of crimes in the area, and the time of night—we conclude that

Officer Faltynski had reasonable suspicion of criminal activity based on

articulable facts to support the stop. Therefore, the trial court did not abuse its

discretion in admitting evidence obtained from the stop under the Fourth

Amendment.

II. Article 1, Section 11 [20] Gosnell also argues that the initial stop by Officer Faltynski violated Article 1,

Section 11 of the Indiana Constitution. Article 1, Section 11 is identical to the

Fourth Amendment, but it is analyzed differently. Indiana constitutional

analysis focuses on the reasonableness of police conduct under the totality of

circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). We

determine reasonableness under the Indiana Constitution by balancing “1) the

degree of concern, suspicion, or knowledge that a violation has occurred, 2) the

degree of intrusion the method of search or seizure imposes on the citizen's

ordinary activities, and 3) the extent of law enforcement needs.” Id. at 361.

The State has the burden of proving that the search was reasonable under the

totality of the circumstances. State v. Bulington, 802 N.E.2d 435, 438 (Ind.

2004).

[21] Stopping Gosnell was reasonable under the Indiana Constitution. The degree

of concern or suspicion that a violation occurred was high in this case: a

concerned citizen complained of suspicious activity behind a closed grocery

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 10 of 12 store, just after midnight, in a neighborhood where there had been “some

armed robberies” and “quite a few burglaries.” Tr. p. 33. Second, the degree of

intrusion was slight. Officer Faltynski stopped Gosnell, briefly, to ask for his

identification. “A brief stop of a suspicious individual, in order to determine his

identity or to maintain the status quo momentarily while obtaining more

information, may be most reasonable in light of the facts known to the officer at

the time.” McDermott v. State, 877 N.E.2d 467, 473 (Ind. Ct. App. 2007)

(citation omitted) (applying this reasoning to the Indiana constitutional

analysis), trans. denied.

[22] Finally, there is a legitimate need for law enforcement to investigate citizens’

complaints of suspicious activity. Officer Faltynski was investigating

Williams’s concern. In fact, Williams followed the suspect herself because she

was so concerned about the possibility that something illegal had happened.

“[T]he circumstances warranting an immediate response are readily apparent

here.” Bogetti, 723 N.E.2d at 879.

[23] Balancing the high degree of concern, suspicion, or knowledge that a violation

occurred and the needs of law enforcement against the low degree of intrusion,

we conclude that Officer Faltynski had reasonable suspicion under Article 1,

Section 11 to justify stopping Gosnell. Therefore, the trial court did not abuse

its discretion in admitting evidence obtained from the stop under Article 1,

Section 11 of the Indiana Constitution.

[24] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 11 of 12 [25] Robb, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1502-CR-47 |September 30, 2015 Page 12 of 12