L.L. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 31, 2019
• Docket: 18A-JV-2768
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 31 2019, 9:25 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Isabella H. Bravo Curtis T. Hill, Jr. Monroe Co. Public Defender Attorney General of Indiana Bloomington, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

L.L., May 31, 2019 Appellant, Court of Appeals Case No. 18A-JV-2768 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Stephen R. Galvin, Appellee. Judge Trial Court Cause No. 53C07-1808-JD-610

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2768 | May 31, 2019 Page 1 of 9 Statement of the Case [1] L.L. (“L.L.”) appeals the juvenile court’s true finding that he committed a

delinquent act, which, if committed by an adult, would constitute Class A

misdemeanor conversion.1 Specifically, the juvenile court concluded that L.L.

had exercised unauthorized control over Robert Drew’s (“Drew”) personal

checks (“the Checks”). L.L., however, argues that the juvenile court abused its

discretion when it admitted the Checks into evidence. Findings no abuse of the

court’s discretion, we affirm L.L.’s adjudication as a delinquent child.

[2] We affirm.

Issue Whether the juvenile court abused its discretion in admitting the Checks into evidence.

Facts [3] In the early morning hours of June 26, 2018, residents from Bloomington’s

Stonegate neighborhood contacted the police three times to report three

suspicious males walking around the neighborhood. Bloomington Police

Department Officer Matthew Lucas (“Officer Lucas”) was dispatched to the

neighborhood at 12:40 a.m. and again at 2:30 a.m. but was unable to find the

three males. The third and final dispatch at 4:17 a.m. reported that a handgun

1 IND. CODE § 35-43-4-3.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2768 | May 31, 2019 Page 2 of 9 had just been stolen from a parked vehicle in the area. Officer Lucas returned

to the neighborhood and noticed three young men walking in the middle of the

street.

[4] One of the young men ran when he noticed Officer Lucas’ marked police

vehicle. L.L. and the other young man turned and walked in opposite

directions. Because the three young men had dispersed to different places,

Officer Lucas, who remained in his car, turned on his white spot light to

illuminate the area. The officer immediately noticed L.L., who was

approximately twenty yards away, reach into his pockets, pull items out, and

drop them on the sidewalk and in a yard. Officer Lucas also noticed the other

young man reach into his waistband and pockets. Concerned about the stolen

firearm, Officer Lucas exited his vehicle, identified himself as a police officer,

and loudly ordered the two young men to walk towards his marked police

vehicle.

[5] Officer Lucas, who found a handgun during a pat down of the second young

man, secured him and L.L. He then walked to the area where he had seen L.L.

dropping items out of his pockets and found two personal checks and a

flashlight. The first check was written from William Shobe to Jeb Drew (“Jeb”)

and was dated December 25, 2017, and the other was a blank check from

Kipley Drew with “void” written on it.

[6] Later that morning, Drew noticed that his wallet and two checks were missing

from his vehicle, which had been parked in the Stonegate neighborhood. The

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2768 | May 31, 2019 Page 3 of 9 first check was one that his grandfather, William Shobe, had written to Drew’s

brother, Jeb. Jeb had apparently left the check at his grandfather’s house, and

the grandfather gave the check to Drew to return to his brother. The second

check was a void check that Drew’s mother had given him to use the routing

number for his electric bill.

[7] The State filed a delinquency petition alleging that L.L. had committed

unauthorized entry of a motor vehicle, a Class B misdemeanor if committed by

an adult, and conversion, a Class A misdemeanor if committed by an adult.

L.L. filed a motion to suppress the Checks. The juvenile court denied the

motion after a hearing.

[8] At the hearing on the delinquency petition, Officer Lucas testified as follows

during cross examination:

So my lights were activated, once the male um took off and both um [L.L.] and [the other young man] started splitting off into yards, um once they had reached the grass, I activated my light. It wasn’t an emergency, it was just a large bright flood light uh just to illuminate the street uh at that point I exited my vehicle, once I started seeing him pull the objects out of his pockets and dump them on the ground, I had a better idea of what was going on at that point uh so I started giving loud verbal commands to come back to my vehicle. . . . Um so my headlights were on as I pulled behind them. Um I didn’t activate my uh the large deck light on the front of my vehicle, I did not activate that um until as I said the male was running off and then both [the other young man] and [L.L.] started walking into the yards, digging into their pockets and abandoning property onto the sidewalk and the residential yards. . . . Um as soon as both males reached the sidewalks, as I said, and started dumping property out, I had a

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2768 | May 31, 2019 Page 4 of 9 general idea of what was going on. I was suspicious, or had suspected one of the males as possibly having the stolen handgun from that area, uh so at that point, I began giving loud verbal commands to come back to my vehicle.

(Tr. Vol. 2 at 15, 23, 26).

[9] The juvenile court adjudicated L.L. to be a delinquent child for committing a

delinquent act, which, if committed by an adult, would have constituted Class

A misdemeanor conversion. L.L. now appeals.

Decision [10] At the outset we note that L.L. did not seek an interlocutory appeal after the

juvenile court denied his motion to suppress. Instead, he proceeded to the

delinquency hearing where he objected to the admission of the Checks into

evidence. In this procedural posture, the appellate issue is framed as whether

the trial court erred in admitting evidence. See Campbell v. State, 841 N.E.2d

624, 627 (Ind. Ct. App. 2006).

[11] A juvenile court has broad discretion in ruling on the admissibility of evidence.

B.K.C. v. State, 781 N.E.2d 1157, 1162 (Ind. Ct. App. 2003). We will only

reverse a ruling on the admissibility of evidence when the juvenile court has

abused its discretion. Id. An abuse of discretion occurs when the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before the court. Campbell, 841 N.E.2d at 627.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2768 | May 31, 2019 Page 5 of 9 [12] L.L. argues that the juvenile court erred in admitting the Checks into evidence

because they were discovered pursuant to an investigatory stop that Officer

Lucas made without reasonable suspicion. Thus, according to L.L., the stop

violated the Fourth Amendment to the United States Constitution and Article

1, Section 11 of the Indiana Constitution. The State responds that the Fourth

Amendment and Article 1, Section 11 were not implicated because L.L.

abandoned the Checks. The State is correct.

[13] Abandoned property is not subject to protection under the Fourth Amendment

or Article 1, Section 11. Campbell, 841 N.E.2d at 627. Abandonment rests

upon whether the defendant so relinquished his interest in the property that he

no longer maintained a reasonable expectation of privacy in it at the time of the

seizure. See State v. Machlah, 505 N.E.2d 873, 879 (Ind. Ct. App. 1987), trans.

denied.

[14] For example, in Campbell, 841 N.E.2d at 624, officers were patrolling a

neighborhood based on a tip that drug activity was occurring in the area. As

they approached a residence, they noticed Campbell standing behind a vehicle.

When he started to move, one of the officers shined a spotlight on him. While

illuminated by the spotlight, Campbell crouched down, pulled an object from

his waistband, and tossed it under the car he had been standing behind. The

officers later determined that the object that Campbell had tossed under the car

was a handgun.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2768 | May 31, 2019 Page 6 of 9 [15] After Campbell had been convicted of Class C felony carrying a handgun

without a license, he appealed and argued that the trial court had erred in

admitting the handgun into evidence over his objection. Campbell specifically

contended that the investigatory stop that led to the discovery of the handgun

was made without reasonable suspicion and therefore violated the Fourth

Amendment and Article 1, Section 11.

[16] This Court pointed out that Campbell’s argument was premised upon the

assumption that he was seized when the police shined a spotlight on him.

Campbell, 841 N.E.2d at 627. We noted that a person is seized when, by means

of physical force or a show of authority, a police officer has in some way

restrained the liberty of a citizen. Id. We further noted that our review of the

circumstances surrounding the encounter revealed that at the time Campbell

tossed the gun underneath the car, the police had only illuminated a spotlight.

Id. at 629. The police had not used their sirens or flashers and had not verbally

ordered Campbell to stop. Id. In addition, the officers had not physically

touched Campbell or displayed their weapons before Campbell had tossed the

gun underneath the car. Id. We also pointed out that all six officers were still

in their vehicles, and only one of those vehicles was a marked police car. Id.

[17] Based on these circumstances surrounding the encounter, we could not say that

the shining of the spotlight alone amounted to a show of such authority that a

reasonable person would have believed that he was not free to leave. Id. at 630.

We therefore concluded that, at the time Campbell had tossed the handgun

underneath the car, he had not been seized under the Fourth Amendment or

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2768 | May 31, 2019 Page 7 of 9 Article 1, Section 11. Id. We further concluded that the handgun was

abandoned property not subject to the protections of the Fourth Amendment or

Article 1, Section 11, and the trial court did not abuse its discretion by

admitting it into evidence. Id.

[18] The facts before us are analogous to those in Campbell. Here, Officer Lucas was

patrolling the Stonegate Neighborhood based on a tip about three suspicious

young men. As Officer Lucas approached the young men, one of them ran

away. The other two walked in opposite directions, and Officer Lucas shined

his spotlight on the area. While illuminated by the spotlight, L.L. pulled objects

from his pockets and threw them on the ground. Officer Lucas later determined

that two of the objects were Drew’s personal checks.

[19] At the time L.L. dropped the Checks on the ground, Officer Lucas had only

illuminated the spotlight. The officer had not activated the sirens or flashers

before that time. He had not verbally ordered L.L. to stop or displayed his

weapon to L.L before L.L. had thrown the checks on the ground. Further,

Officer Lucas had remained in his car until after L.L. had thrown the checks on

the ground.

[20] Here, as in Campbell, based on the circumstances surrounding the encounter,

the shining of the spotlight alone did not amount to such a show of authority

that a reasonable person would have believed that he was not free to leave.

Therefore, at the time L.L. threw the checks on the ground, he was not seized

under the Fourth Amendment or Article 1, Section 11. Id. We further

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2768 | May 31, 2019 Page 8 of 9 conclude that the Checks were abandoned property not subject to the

protections of the Fourth Amendment or Article 1, Section 11, and the trial

court did not abuse its discretion by admitting them into evidence. 2 Id.

[21] Affirmed.

Riley, J., and Bailey, J., concur.

2 L.L. directs us to additional testimony from Officer Lucas that L.L. claims supports his argument that he dropped the Checks after the officer had seized him. However, our review of this testimony reveals that L.L. has misinterpreted it. Specifically, this testimony is consistent with both the officer’s previous and subsequent testimony that L.L. began dropping items after the officer turned on the spotlight but before the officer exited his vehicle, identified himself as a police officer, and ordered the young men to walk towards his vehicle.

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