FILED Mar 30 2020, 10:49 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kelly Starling Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Payton Bell, March 30, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2354 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara Crawford, Appellee-Plaintiff. Judge The Honorable Amy Barbar, Magistrate Trial Court Cause No. 49G01-1905-F5-20711
Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 1 of 17 STATEMENT OF THE CASE [1] Appellant-Defendant, Payton Bell (Bell), appeals his conviction for carrying a
handgun without a license having a previous felony conviction within fifteen
years, a Level 5 felony, Ind. Code §§ 35-47-2-1(a), (e)(2).
[2] We affirm.
ISSUES [3] Bell presents this court with three issues, which we consolidate and restate as
the following two:
(1) Whether his seizure and frisk of his person complied with the Fourth Amendment; and
(2) Whether his seizure and frisk of his person was reasonable under Article 1, Section 11 of the Indiana Constitution.
FACTS AND PROCEDURAL HISTORY [4] The Indianapolis Motor Speedway (IMS) owns the Coke Lot (the Lot), which
is an open parking area next to the track facility where thousands of
Indianapolis 500 attendees may park their recreational vehicles, camp, and
socialize during the race weekend. The IMS has a “no-weapons” policy for the
Lot. Anyone entering the Lot is provided a written copy of the Lot rules and
policies.
[5] On May 29, 2019, Deputy Darrius Austin (Deputy Austin) and Deputy Joshua
Tyler (Deputy Tyler) of the Marion County Sheriff’s Office were on-duty in
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 2 of 17 uniform at the Lot during the Indianapolis 500 weekend. Their duty that day
was to enforce the Lot rules and policies. Up to 100,000 people were present on
the Lot that day. The deputies were approached by two people who said they
had driven to the Lot with Bell and that he had a handgun they thought might
be stolen in his back pocket, which made them feel unsafe. They provided a
description of Bell as a white male of average height and build with a tattoo
near his right eye, and they told the deputies that they could find Bell in a
certain portion of the Lot by a camper with a flag.
[6] The deputies rode to the indicated portion of the Lot in a Kubota UTV, which
is similar to a golf cart but more solid. They located a man fitting the
description given, later determined to be Bell. The deputies hailed Bell and
asked him to approach so they could speak, which Bell did, although he seemed
hesitant and reluctant. Bell stopped his approach where he would be out of the
deputies’ reach. The deputies told Bell that they had a report of a possible
weapon in the area and reminded Bell that there was a “no-weapons” policy on
the Lot. The deputies explained to Bell that if he had a firearm, they would
“run it.” (Transcript p. 25). If there were no issues with the firearm, they
would allow him to stow it in his vehicle off the Lot.
[7] The deputies asked Bell if he had a weapon, which he denied. Bell then became
irate, began shaking nervously, cursed at the deputies, and stated that they
needed a warrant to speak to him. Bell took a few backwards steps away from
the deputies. The deputies told Bell to calm down and to “stand still, stop[.]”
(Tr. p. 34). Bell did not calm down and continued to move away from the
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 3 of 17 deputies, changing his direction as the deputies changed theirs. By that time,
another deputy, Deputy Steven Hall (Deputy Hall), had situated himself behind
Bell. Bell turned his body slightly to the right, assuming a fighting stance. As
he did this, Deputy Hall observed the butt of a handgun poking out of Bell’s
back pocket. At the same moment, Deputy Hall saw Bell’s hand coming down.
Deputy Hall yelled that Bell had a gun and grabbed Bell’s arm. The other
deputies also secured Bell, who was then placed in handcuffs and transported
across the Lot.
[8] Subsequent investigation revealed that Bell did not possess a permit to carry the
handgun. On May 29, 2019, the State filed an Information, charging Bell with
Class A misdemeanor carrying a handgun without a license. The State also
alleged that the charge should be elevated to a Level 5 felony due to Bell having
a prior felony conviction within the last fifteen years.
[9] On August 20, 2019, the trial court held Bell’s bench trial. Bell moved to
suppress any evidence obtained from his interaction with the deputies on May
29, 2019, arguing that the deputies did not have reasonable suspicion to stop
him when they initially asked to approach so that they could speak. The trial
court denied the suppression motion, ruling that the initial encounter between
the deputies and Bell was consensual, Bell had escalated the situation with his
behavior, Bell was not seized until Deputy Hall grabbed Bell’s arm, and that
Bell was subsequently frisked, not searched. The trial court granted Bell’s
request to incorporate the evidence from the suppression hearing into the trial
proceedings and admitted the challenged evidence over Bell’s objections.
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 4 of 17 During his suppression argument in response to a question by the trial court
regarding the extent that police may enforce the rules and policies of private
property owners, Bell’s counsel argued as follows:
That’s what we have here. It’s a private organization, [Bell]’s a paying member, he’s there legally. At most he’s violating their policy and at most is to [sic] kick him off their property but police can’t use a no firearms policy to circumvent the Indiana and United States Constitution[s] and detain somebody until they can prove there was no wrong doing.
(Tr. p. 45).
[10] The trial court found Bell guilty of carrying a handgun without a license. Bell
then admitted that he had a prior felony conviction for forgery in 2017. On
September 7, 2019, the trial court sentenced Bell to three years, with one year
executed with the Department of Correction, one year served with Community
Corrections on work release, and one year suspended.
[11] Bell now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[12] As a general matter, we review a trial court’s decision to admit evidence for an
abuse of discretion. Price v. State, 765 N.E.2d 1245, 1248 (Ind. 2002).
However, when a defendant’s challenge to the admissibility of evidence
implicates the constitutionality of a search or seizure, we review the issue de
novo because it raises questions of law. Guilmette v. State, 14 N.E.3d 38, 40-41
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 5 of 17 (Ind. 2014). Regardless, we do not reweigh the evidence. Campos v. State, 885
N.E.2d 590, 596 (Ind. 2008). We also construe conflicting evidence in the light
most favorable to the trial court’s suppression ruling. Marshall v. State, 117
N.E.3d 1254, 1258 (Ind. 2019). In addition, we will consider any substantial
and uncontested evidence that supports the defendant’s position. Id.
II. Fourth Amendment
[13] The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures”
and generally prohibits searches and seizures without a warrant supported by
probable cause. U.S. Const. amend. IV; Clark v. State, 994 N.E.2d 252, 260
(Ind. 2013). As a result, evidence obtained without a warrant is generally
inadmissible unless it falls within one of few well-delineated exceptions. Id.
The State has the burden to show that one of these well-delineated exceptions
was met. Id.
A. Consensual Encounter
[14] This court has summarized the three levels of police investigations as follows:
First, the Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause. Probable cause to arrest exists where the facts and circumstances within the knowledge of the officers are sufficient to warrant a belief by a person of reasonable caution that an offense has been committed and that the person to be arrested has committed it. Second, it is well-settled Fourth Amendment jurisprudence that police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion that Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 6 of 17 criminal activity may be afoot. Accordingly, limited investigatory stops and seizures on the street involving a brief question or two and a possible frisk for weapons can be justified by mere reasonable suspicion. Finally, the third level of investigation occurs when a law enforcement officer makes a casual and brief inquiry of a citizen which involves neither an arrest nor a stop. In this type of consensual encounter no Fourth Amendment interest is implicated.
Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000) (citations and
quotation omitted), trans. denied. Whether a citizen has been detained for
purposes of the Fourth Amendment turns on a determination of whether,
considering all the circumstances, a reasonable person would feel free to
disregard the police and go about his or her business. Negash v. State, 113
N.E.3d 1281, 1288 (Ind. Ct. App. 2018). “Examples of circumstances under
which a reasonable person would believe he was not free to leave include: (1)
the threatening presence of several officers, (2) the display of a weapon by an
officer, (3) physical touching of the person, or (4) the use of language or tone of
voice indicating that compliance with the officer’s request might be compelled.”
Id.
[15] Bell’s counsel argued at trial that the deputies had the right to remove Bell from
the Lot for having a gun in contravention of IMS policy, an argument which
pre-supposes they had the right to approach him and ask him whether he had a
gun. In an apparent concession that the initial encounter between him and the
deputies was reasonable, Bell does not address the initial encounter but argues
that he was subject to an investigatory stop when deputies told him to “stand
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 7 of 17 still, stop” which occurred after the deputies had asked Bell to approach them
and after he had begun answering their questions. (Tr. p. 34). Bell also
contends that the deputies lacked reasonable suspicion to support such a stop.
The State counters that Bell was not seized until Deputy Hall grabbed Bell’s
hand and that the deputies had reasonable suspicion of criminal activity at that
time.
[16] We conclude that the initial encounter was consensual. Only two deputies
initially approached Bell, not several. Although they were in uniform, the
deputies did not swoop in on Bell in their cruiser with its lights activated. There
is no evidence in the record that the Kubota UTV they drove was even
demarcated as a police vehicle. The deputies did not draw or display their
weapons; they did not touch Bell; they did not yell at Bell, but, rather, spoke to
him in a calm and polite manner. In light of the totality of these circumstances,
we conclude that Bell was not seized and subjected to an investigatory stop
when the deputies initially approached him. See id.
B. Investigatory Stop and Frisk for Weapons
[17] We also conclude that, after this initial consensual encounter, reasonable
suspicion developed to support an investigatory stop and a frisk for weapons.
Contrary to Bell’s assertion, he was not seized and subjected to an investigatory
stop when the deputies told him to “stand still, stop” after he had taken a few
steps backwards away from them. (Tr. p. 34). A “seizure” does not occur
until, through physical force or a show of authority, an officer has actually
restrained the liberty of an individual. Terry v. Ohio, 392 U.S. 1, 20 n.6, 88 S.Ct.
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 8 of 17 1868, 1879 n.16, 20 L.E.2d 889 (1968). The Supreme Court has also held that
no seizure occurred for Fourth Amendment purposes where a subject continued
to flee after being commanded by officers to “Stop, in the name of the law!” See
California v. Hodari D., 499 U.S. 621, 624-26, 111 S.Ct. 1547, 1550, 113 L.E.2d
690 (1991).
[18] Here, Bell stepped away from the deputies, and they told him to stand still and
stop. The deputies did not touch Bell, draw their firearms, or use an aggressive
tone of voice with Bell as they attempted to de-escalate the situation. After
being told to stand still and stop, Bell failed to comply with that directive and
continued to evade the deputies by moving in the opposite direction of
whatever direction they moved. Thus, Bell’s liberty was not constrained until
Deputy Hall grabbed Bell’s arm.
[19] However, even if the deputies’ directive to stand still and stop had amounted to
a seizure, it was supported by reasonable suspicion. In assessing whether a stop
was justified by particularized reasonable suspicion, we consider the totality of
the circumstances, including the defendant’s conduct. Glasgow v. State, 99
N.E.3d 251, 257 (Ind. Ct. App. 2018). We will conclude that reasonable
suspicion existed if the facts known to the officer, together with any reasonable
inferences, would cause a person of ordinary prudence to believe that criminal
activity has or is about to occur. Campos, 885 N.E.2d at 597. We also take into
account “the nature of the suspected offense when assessing reasonable
suspicion” and we have “‘required less evidence when the stop is to intercept a
man suspected of being armed with a gun.’” W.H. v. State, 928 N.E.2d 288, 295
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 9 of 17 (Ind. Ct. App. 2010) (quoting 4 Wayne R. LaFave, Search & Seizure: A Treatise
on the Fourth Amendment § 9.5(c) n.96), trans. denied. In addition, “[o]fficers are
not required to rule out all possibility of innocent behavior before initiating a
stop.” Id. at 294.
[20] Here, during the initial consensual encounter, the deputies reminded Bell that
there was a “no-weapons” rule on the Lot, and Bell denied having a weapon.
They also explained to Bell that if he had a firearm, they would “run it” and, if
there were no issues with the firearm, it would be returned to him so that he
could take it off the Lot. (Tr. p. 25). Bell again denied having a weapon, but he
also became aggressive, cursed the deputies, began shaking nervously, and took
a few backwards steps away from the deputies, causing the deputies to tell him
to “stand still, stop[.]” (Tr. p. 34). Thus, immediately after being told that if he
possessed a gun legally, he would be allowed to leave the Lot with it, Bell
became aggressive and evasive with the deputies. Given that we do not require
as much evidence to support the stop of someone suspected of being armed
with a firearm and given the context of the location of the stop amid thousands
of people, we conclude that the totality of the circumstances gave rise to
reasonable suspicion that Bell possessed a firearm and that his possession of the
firearm was not legal.
[21] In addition, Bell’s subsequent actions further justified a frisk of Bell for
weapons. During an investigatory stop supported by reasonable suspicion, an
officer may undertake a limited frisk for weapons if he has a reasonable belief
that “he is dealing with an armed and dangerous individual, regardless of
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 10 of 17 whether he has probable cause to arrest the individual for a crime.” Terry,
392 U.S. at 27, 88 S.Ct. at 1868. In Redfield v. State, 78 N.E.3d 1104, 1107-08
(Ind. Ct. App. 2017), trans. denied, this court found that an officer had such
reasonable suspicion. The officer responded to an anonymous tip that a black
male, who was wearing a grey shirt and a hat, had a gun at a bar. Id. at 1105.
Outside the bar the officer spotted Redfield, who fit the description provided in
the tip. Id. The officer told Redfield that there was a report of somebody with a
gun there. Id. Redfield became nervous, started to walk away from the officer,
and moved the right side of his body away from the officer’s line of sight. Id.
When he was five feet away from the officer, Redfield made a motion with his
hand several times as if he were drawing a gun. Id. at 1105-06. The officer
drew his gun and commanded Redfield to stop and show his hands. Id. at
1106. Redfield fled but was subsequently detained, and a firearm was found on
his person. Id.
[22] Redfield was charged with unlawful possession of a firearm by a serious violent
felon and argued that evidence from the stop should be suppressed because the
officer’s initial encounter was not supported by reasonable suspicion. Id. at
1106-07. In upholding the trial court’s denial of Redfield’s suppression motion,
the court found that the officer’s initial encounter with Redfield was consensual
and that “[i]t is settled law that, if an officer has commenced a nonseizure
confrontation without a pre-existing reasonable suspicion supporting a frisk, but
such suspicion suddenly appears (most likely because of the suspect’s conduct),
then the officer is entitled to frisk for his own protection.” Id. at 1107
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 11 of 17 (quotation omitted). The court found that the officer had reasonable suspicion
to seize Redfield and frisk him because Redfield, after hearing that there had
been a report of a person with a firearm, became nervous, had turned his body
away from the officer, and made a motion consistent with drawing a firearm.
Id. at 1108.
[23] Here, after learning that the deputies had received a report that he was carrying
a firearm but that he would be allowed to leave the Lot if he were legally
carrying it, Bell became nervous and aggressive. Bell also began moving away
from the deputies. As the other two deputies were interacting with Bell, Deputy
Hall positioned himself behind Bell. Bell eventually turned his body away from
the other two deputies and assumed a fighting stance, giving Deputy Hall a
plain view of the gun in Bell’s pocket. Deputy Hall testified that he then saw
Bell’s hand “coming down,” which we infer from the circumstances was a
movement toward the gun. (Tr. p. 32). Following Redfield, we conclude that
these circumstances gave rise to a reasonable suspicion supporting a frisk of
Bell’s person for weapons. See id.
C. Bell’s Arguments
[24] Bell argues that the tip received from the two people who had ridden to the Lot
with him was not sufficiently reliable to support an investigatory stop.
However, for purposes of our analysis we have assumed, without deciding, that
the tip was insufficient to supply reasonable suspicion to support an
investigatory stop. We have also concluded that the deputies’ initial encounter
with Bell was consensual, a type of contact between law enforcement and
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 12 of 17 citizen that requires no level of suspicion to justify. See, e.g., State v. Augustine,
851 N.E.2d 1022, 1025-26 (Ind. Ct. App. 2006) (observing that the officer’s
approach to the defendant was a consensual encounter which did not implicate
the Fourth Amendment). Following that initial encounter, we have concluded
that Bell’s own conduct, not the tip, provided reasonable suspicion for an
investigatory stop and frisk.
[25] Bell also likens his case to Pinner v. State, 74 N.E.3d 226, 230 (Ind. 2017), in
which our supreme court held that a suspect’s mere possession of a firearm,
without more, cannot provide reasonable suspicion for an investigatory stop. In
Pinner, law enforcement seized Pinner based on a report that a man at a theater
had a gun and Pinner’s hesitant and nervousness reaction when told of the
report and asked if he had a gun. Id. at 228. Our supreme court held that no
reasonable suspicion existed for the seizure because the report had not indicated
any criminal or suspicious behavior, Pinner made no furtive or suspicious
movements, did not reach for the gun, and did not attempt to flee. Id. at 229-
30. However, we find Pinner to be distinguishable because, here, the deputies
did more than tell Bell there had been a report of a gun and ask him if he had
one. They also told Bell that if he had a gun and possessed it legally, he would
be allowed to leave the Lot with it. Bell reacted by attempting to evade the
deputies, turning his body away from them, assuming a fighting stance, and
moving his hand toward a gun which was plainly visible in his back pocket.
Accordingly, there was much more giving rise to a reasonable suspicion that
Bell illegally possessed a firearm than his mere possession.
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 13 of 17 [26] Bell also briefly argues that no probable cause supported his arrest. His only
contention in this regard is that, since there was no reasonable suspicion that he
was engaged in criminal activity to support a stop, there could be no probable
cause because probable cause is a higher standard to meet. As we have
concluded that reasonable suspicion existed to support an investigatory stop
and frisk for weapons, and this is the only argument Bell offers, we do not
address the issue further.
III. Article 1, Section 11
[27] Bell contends that his state constitutional rights were violated by the deputies
when they seized him. Bell also briefly argues that his state rights were
infringed by his arrest, but our review of the record of the trial proceedings
revealed that Bell addressed his arguments only to the initial encounter and
seizure, with nothing argued regarding his arrest. Therefore, we only address
whether the deputies’ conduct up to the moment when he was seized by Deputy
Hall was within constitutional parameters. See Leonard v. State, 80 N.E.3d 878,
884 n.4 (Ind. 2017) (finding issue raised for the first time on appeal to be
waived, as declining to review an unpreserved issue is a cardinal principle of
sound judicial administration).
[28] Article 1, Section 11 of the Indiana Constitution, like the Fourth Amendment,
protects the “right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable search and seizure[.]” However, although
Article 1, Section 11 and the Fourth Amendment share similar language and
protect similar interests, we interpret our state constitutional provision
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 14 of 17 independently. Randall v. State, 101 N.E.3d 831, 841 (Ind. Ct. App. 2018),
trans. denied. Rather than focusing on the defendant’s reasonable privacy
expectations, we look at the actions of the officer and the totality of the
circumstances to evaluation the reasonableness of the officer’s actions. Id. As
part of the examination of the totality of the circumstances, we consider: “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.”
Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).
[29] Here, although the deputies may have initially had a low degree of concern,
suspicion, or knowledge that a violation had occurred when they approached
Bell, he became irate and physically evasive after being told that if he had a
firearm legally, he would be able to leave the Lot with it. This conduct
provided at least a moderate degree of suspicion that Bell illegally possessed a
firearm. Then, after being told to stand still and stop, Bell continued to attempt
to evade the deputies, turned his body away from them, assumed a fighting
stance, and reached for the gun that had become visible to Deputy Hall, giving
rise to a high degree of suspicion that he illegally possessed a firearm.
[30] The degree of intrusion is assessed from the defendant’s point of view. Duran v.
State, 930 N.E.2d 10, 18 (Ind. 2010). At the beginning of the encounter, the
degree of intrusion was low because the deputies simply asked Bell to come
speak to them which entailed walking a short distance. Bell was not pleased
and testified at the suppression hearing that he felt like he was obligated to
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 15 of 17 comply, but he intentionally chose to stand in a spot that was out of the
deputies’ reach, thus demonstrating he still felt a degree of liberty. After Bell
was told that if he legally possessed a firearm he could leave the Lot with it and
Bell reacting by being physically evasive, cursing, and assuming a fighting
stance, all of which ultimately revealed the firearm in his pocket, the degree of
intrusion became high, as Deputy Hall and then other deputies physically
restrained him.
[31] Although the degree of suspicion and the degree of intrusion are both high in
this case, we conclude that the extent of the needs of law enforcement tips the
balance in favor of reasonableness. As Bell acknowledges on appeal, the
“protection of the public is a legitimate and important law enforcement
function.” Carpenter v. State, 18 N.E.3d 998, 1002 (Ind. 2014). And, as the
State brings to our attention, this court has recognized that “[p]rotecting the
public from gun violence is a legitimate and paramount concern of law
enforcement, and the State is legitimately concerned with deterring gun
violence by unlicensed individuals.” Grayson v. State, 52 N.E.3d 24, 28 (Ind. Ct.
App. 2016), trans. denied. While initially their need was low when the deputies
encountered Bell, the need of the deputies to protect the large crowd present on
the Lot, as well as themselves, from potentially being shot by Bell became great
when Bell assumed a fighting stance against the deputies and made a movement
for his plainly-visible gun. Accordingly, we conclude that the deputies did not
infringe upon Bell’s state constitutional rights when they seized him and frisked
him for weapons.
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 16 of 17 CONCLUSION [32] Based on the foregoing, we conclude that neither Bell’s Fourth Amendment nor
his Article 1, Section 11 rights were infringed upon when his own conduct led
to the deputies’ reasonable actions.
[33] Affirmed.
[34] Mathias, J. and Tavitas, J. concur
Court of Appeals of Indiana | Opinion 19A-CR-2354 | March 30, 2020 Page 17 of 17