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

• Court: Indiana Court of Appeals
• Decided: September 27, 2018
• Docket: 18A-CR-284
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 27 2018, 6:53 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria L. Bailey Curtis T. Hill, Jr. Deborah Markisohn Attorney General of Indiana Marion County Public Defender Agency Indianapolis, Indiana Caroline G. Templeton Lee M. Stoy, Jr. Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael L. Elliott, September 27, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-284 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Alicia A. Gooden, Judge Trial Court Cause Nos. 49G21-1702-F2-5794 49G21-1409-F2-45627

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 1 of 11 [1] After a bench trial, Michael L. Elliott was convicted of unlawful possession of a

firearm by a serious violent felon,1 a Level 4 felony, possession of cocaine,2 a

Level 4 felony, and possession of marijuana,3 a Class A misdemeanor. He was

sentenced to eight years, with three years suspended. On appeal, Elliott raises

two issues, which we consolidate and restate as whether the trial court abused

its discretion when it admitted evidence seized by the police after he was

stopped for suspected drug activity in violation of his rights under the Fourth

Amendment of the United States Constitution and Article I, Section 11 of the

Indiana Constitution.

[2] We affirm.

Facts and Procedural History [3] Officers Dane Elkins and Bryan Zotz investigated narcotics complaints for the

north district of the Indianapolis Metropolitan Police District. Tr. Vol. II at 6,

55. Officer Zotz attended basic narcotics training and had investigated more

than 100 drug cases during his career. Id. at 228, 232. Officer Elkins began

narcotics work in 2010. Id. at 55. He had patrolled the neighborhood that

included Nicholas Avenue his entire career and knew the area as one plagued

1 See Ind. Code § 35-47-4-5(c). 2 See Ind. Code § 35-48-4-6(a). 3 See Ind. Code § 35-48-4-11(a)(1).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 2 of 11 by robberies, shootings, and other narcotics-related crimes, which made it one

of the most dangerous neighborhoods in the state. Id. at 8, 60.

[4] On the evening of February 7, 2017, Officers Elkins and Zotz were working

undercover, driving an old blue pickup truck and wearing flannel jackets over

their shirts. Id. at 88, 200, 230. Just before midnight, they began surveilling

3245 Nicholas Avenue after receiving a complaint of narcotics activity. Id. at

60, 181-83. They parked on the east side of Nicholas Avenue, right in front of

the home, looking north. Id. at 9, 11, 57, 230. Although they observed no

drug-related activity at the address, they did notice suspicious behavior at 3255

Nicholas Avenue – about two houses north -- that was consistent with the

narcotics trade. Id. at 11-15; 183, 231. They saw two cars pull up, and people

from the cars enter the home for only a few minutes before leaving. Id. at 186.

Officer Elkins saw a man go into the house with grocery bags, remain inside for

about eight minutes, and then leave without the bags. Id. at 184. Everyone the

officers observed appeared to enter and leave the house through the door on the

north side. Id. at 181-84. However, the officers could not see people walk in

and out of the door itself because the door was not within their line of sight. Id.

at 16, 19.

[5] Thirty minutes later, the officers saw Elliott walk the same path as those who

had visited the home earlier. Id. at 187, 236. They did not actually see Elliott

enter or exit the house, but Elliott came from the same area of the house and

walked the same route as those who had exited earlier. Id. at 16, 18, 42, 67,

187, 236. After walking away from the house, Elliott walked directly toward

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 3 of 11 the officers. Id. at 188, 237. He was carrying something in his right hand and

shopping bags in his left hand. Id. 188, 236.

[6] Because it was dark, neither officer could identify the object in Elliott’s right

hand, but Officer Zotz thought it looked like a gun. Id. at 188, 236. When

Elliott was about ten feet from the truck, Officer Elkins turned on the

headlights, revealing that Elliott was indeed carrying a gun. Id. at 188. The

gun was pointed down, but Elliott held it in such a manner that he could raise

and fire it quickly. Id. at 199. The officers exited the truck, drew their

weapons, and ordered Elliott to drop his gun and get on the ground. Id. at 188-

89. Elliott complied.

[7] Sergeant Anthony McLemore arrived to help Officers Elkins and Zotz. Tr. Vol.

III at 15, 16. He handcuffed Elliott and performed a pat down search. He

smelled raw marijuana and found cocaine, marijuana, and $2,084 in cash. Tr.

Vol. III at 19-20; 23-24.

[8] Elliott was charged with dealing cocaine, a Level 2 felony, unlawful possession

of a firearm by a serious violent felon, a Level 4 felony, possession of cocaine, a

Level 4 felony, dealing in marijuana with a prior conviction, a Level 6 felony,

and possession of marijuana, a Class A misdemeanor. Appellant’s App. Vol. II at

123. Elliott filed a motion to suppress, alleging that the officers violated his

rights under the Fourth Amendment to the United States Constitution and

Article I, Section 11 of the Indiana Constitution. Id. at 179. The trial court

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 4 of 11 denied the motion. The State dismissed the possession of marijuana charge

prior to trial. Id. at 131.

[9] At trial, Elliott renewed his objection to the officers’ stopping him, claiming

that the officers violated his rights under the federal and state constitutions. Tr.

Vol. II at 196. He testified that there was an innocent explanation for why he

was in an area of apparent drug dealing, claiming that he was returning home

from a friend’s home that is next door to 3255 Nicholas Avenue. Id. at 129-31;

134. Elliott testified that he walked through the tree line that separated his

friend’s home from 3255 Nicholas Avenue and did so because that was the

most direct path to his house further south on Nicholas Avenue. Id. at 130-31.

[10] The trial court denied Elliott’s objection and found that the officers had

reasonable suspicion that Elliott was engaged in criminal activity because the

events occurred late at night in a high crime area and that the officers observed

Elliott come from a suspected drug house while holding a gun. Tr. Vol. III at

30. The trial court acquitted Elliott of dealing cocaine but found him guilty of

unlawful possession of a firearm by a serious violent felon, possession of

cocaine, and possession of marijuana. Elliott was sentenced to an aggregate

sentence of eight years, with three years suspended. Id. at 135. Elliott now

appeals.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 5 of 11 Discussion and Decision

I. Fourth Amendment [11] Elliott argues that the officers lacked reasonable suspicion that he was involved

in criminal activity. Appellant’s Br. at 25, 27. Elliott argues that the only reason

the officers stopped him was because he was walking toward them while

carrying a gun, which he correctly observes is not a per se violation of the law.

Id. Elliott also proffers an “innocent” explanation for his behavior: “He was in

his own neighborhood, walking home from a friend’s house.” Id.

[12] Because Elliott appeals from a completed trial, we review the trial court’s

evidentiary ruling for an abuse of discretion. See Grayson v. State, 52 N.E.3d 24,

26 (Ind. Ct. App. 2016). An abuse of discretion occurs only when admission of

evidence is clearly against the logic and effect of the facts and circumstances,

and the error affects a party’s substantial rights. Clark v. State, 994 N.E.2d 252,

260 (Ind. 2013). We will not reweigh the evidence, and we resolve any conflicts

in the evidence in favor of the trial court’s ruling. See J.G. v. State, 93 N.E.3d

1112, 1119 (Ind. Ct. App. 2018), trans. denied. When the challenge to the trial

court’s ruling is premised on a constitutional violation, the issue is reviewed de

novo because it raises a question of law. Pinner v. State, 74 N.E.3d 226, 229 (Ind.

2017).

[13] The Fourth Amendment guarantees the right of the people to be secure in their

persons against unreasonable searches and seizures. Grayson, 52 N.E.3d at 27.

Police may stop an individual for investigatory purposes if, based upon specific,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 6 of 11 articulable facts, the officer has reasonable suspicion that criminal activity may

be afoot. Pinner, 74 N.E.3d at 229 (citing Terry v. Ohio, 293 U.S. 1, 30 (1968)).

This analysis considers the totality of the circumstances because facts that

appear innocent when viewed in isolation may, taken together, create

reasonable suspicion of criminal activity. Grayson, 52 N.E.3d at 27; Polson v.

State, 49 N.E.3d 186, 190 (Ind. Ct. App. 2015).

[14] This standard is satisfied when the facts and the reasonable inferences drawn

therefrom would cause an ordinarily prudent person to believe that criminal

activity has occurred or is about to occur. Ross v. State, 844 N.E.2d 537, 541

(Ind. Ct. App. 2006). Whether detention of a suspect violates the Fourth

Amendment is evaluated by an objective standard, not the subjective motives or

perceptions of law enforcement officers. Ashcroft v. al-Kidd, 563 U.S. 731

(2011); compare Stevens v. State, 701 N.E.2d 277, 280 (Ind. Ct. App. 1998) and

Roberts v. State, 599 N.E.2d 595, 598 (Ind. 1992) (both stating that probable

cause to arrest may exist even though an officer’s subjective evaluation says

otherwise).

[15] Although presence in a high crime area on its own is insufficient to support a

finding of reasonable suspicion, officers are not required to ignore the location

in determining whether to further investigate. Illinois v. Wardlow, 528 U.S. 119,

124 (2000); Bridgewater v. State, 793 N.E.2d 1097, 1100 (Ind. Ct. App. 2002).

Officers may also consider the time of day when deciding if reasonable

suspicion exists. See Johnson v. State, 659 N.E.2d 116, 119 (Ind. 1995)

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 7 of 11 (“Reasonable suspicion is more easily attained at 2:15 a.m. in a high crime

area”).

[16] Here, the totality of the circumstances created reasonable suspicion that Elliott

was engaged in criminal activity, and the stop and seizure did not violate his

rights under the Fourth Amendment. Officers Elkins and Zotz were trained,

experienced narcotics officers. They were familiar with the high crime rate in

the neighborhood, one of the state’s most dangerous. They observed Elliott in

the neighborhood, late at night, walking in the same area where others, minutes

before, had been behaving in ways consistent with drug dealing. As he left that

area, Elliott walked directly toward the officers’ truck, carrying a gun, and

coming within ten feet of the truck before the officers finally confronted Elliott.

Such facts established reasonable suspicion that Elliott was engaging in criminal

behavior, and the trial court did not abuse its discretion in denying Elliott’s

request to exclude the evidence from trial.

[17] Reasonable suspicion is determined by an objective standard and not by the

subjection perceptions of officers. This principle overrides Elliott’s claim that

there was no reasonable suspicion because Officer Elkins testified that he did

not suspect that Elliott was involved in criminal activity. Tr. Vol. II at 193. The

most reasonable interpretation of Officer Elkins’s testimony is that while

Elliott’s walking toward the truck while carrying a gun, standing alone, did not

create reasonable suspicion, the facts in toto did create reasonable suspicion.

Guided by an objective standard, we find that an ordinarily prudent person

looking at all the facts would conclude that reasonable suspicion existed. See

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 8 of 11 Ross, 844 N.E.2d at 541. The trial court did not abuse its discretion when it

allowed the evidence from the officers’ stop of Elliott to be admitted into

evidence.

II. Article I, Section 11 [18] Elliott also argues that the stop was illegal under the Indiana Constitution

because the degree of concern that Elliott had committed a crime was low. See

Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). He claims the degree of

intrusion was great because even though he was engaged in innocent activity,

the officers drew their weapons on him, ordered him to the ground, handcuffed

him, and searched him. See id. He contends the needs for law enforcement to

detain him were low because by walking toward officers while carrying a gun,

he was engaged in innocent behavior. See id.

[19] Although the language of Article I, Section 11 tracks the language of the Fourth

Amendment, the primary focus is on the reasonableness of police conduct

under the totality of the circumstances. Litchfield, 824 N.E.2d at 359.

Therefore, we balance “1) the degree of concern, suspicion, or knowledge that a

violation has occurred, 2) the degree of intrusion the method of the search or

seizure imposes on the citizen’s ordinary activities, and 3) the extent of law

enforcement needs.” Id. at 361.

[20] The reasonableness inquiry focuses not only on personal privacy but also on

safety, security, and protection from crime. Mitchell v. State, 745 N.E.2d 775,

786 (Ind. 2001). The Indiana Constitution was adopted to the end that “justice

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 9 of 11 be established, public order maintained, and liberty perpetuated.” Ind. Const.

preamble. Article 1 of the Bill of Rights declares that government is “instituted

for [the people’s] peace, safety, and well-being.” Ind. Const. art. 1, § 1.

Therefore, when government intrusion is challenged under Section 11,

reasonableness under the totality of circumstances may include consideration of

police officer safety. Mitchell, 745 N.E.2d at 786.

[21] Here, the officers had a significant degree of concern. They observed Elliott,

late at night, in the same area as others who appeared to be dealing drugs, in

one of the state’s most dangerous neighborhoods, carrying a gun, and walking

directly toward them. The officers’ training and experience allowed them to

conclude that the degree of concern was high. See Austin v. State, 997 N.E.2d

1027, 1035 (Ind. 2013) (concluding that the degree of concern was significant

where the defendant’s behaviors were potential indicators of a drug smuggling

operation, especially to officers familiar with the practices of drug dealers).

[22] While the degree of intrusion the officers used when detaining Elliott was not

minimal, see Jacobs v. State, 76 N.E.3d 846, 852 (Ind. 2017), the degree of

intrusion was not excessive because reasonableness also considers officer safety.

See Mitchell, 745 N.E.2d at 787. The officers said they were afraid that Elliott

was going to rob or shoot them. Tr. Vol. II at 52, 75, 198, 239. Elliott was

carrying a gun, which he held in a way that would let him raise and fire it

quickly, and the officers acted prudently in detaining Elliott, making the degree

of intrusion reasonable. Cf. Shotts v. State, 925 N.E.2d 719, 726-27 (Ind. 2010)

(degree of intrusion from arrest and incarceration was strong but arrest was

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 10 of 11 necessary and intrusion reasonable considering needs of law enforcement and

governmental interests at stake).

[23] The need of the officers to stop Elliott was also high. Officers have a duty to

deter crime and intercept criminal activity. Accordingly, in balancing the

degree of concern that Elliott was committing a crime, the degree of intrusion

on Elliott, and the extent of law enforcement needs, we conclude that the stop

of Elliott was reasonable under the Indiana Constitution. See Litchfield, 824

N.E.2d at 361.

[25] Affirmed.

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-284 | September 27, 2018 Page 11 of 11