Billingsley v. State

• Decision Date: 07 December 2012
• Docket Number: No. 02A05–1204–CR–216.,02A05–1204–CR–216.
• Parties: Phillip T. BILLINGSLEY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

980 N.E.2d 402

Phillip T. BILLINGSLEY, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 02A05–1204–CR–216.

Court of Appeals of Indiana.

Dec. 7, 2012.

Thomas C. Allen, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Phillip T. Billingsley appeals his conviction for possession of marijuana, as a Class D felony, following a bench trial. Billingsley raises three issues for our review, which we consolidate and restate as the following two issues:

1. Whether the officer responding to a 9–1–1 call initiated an investigatory stop of Billingsley or, instead, placed Billingsley under arrest when the officer withdrew his firearm upon his arrival at the scene; and

2. Whether the responding officer had a reasonable and articulable suspicion to initiate an investigatory stop of Billingsley.

We hold, based on the totality of the facts and circumstances available to the responding officer at the time he detained Billingsley, that the responding officer initiated an investigatory stop of Billingsley based on a reasonable and articulable suspicion that he was engaged in criminal activity. Accordingly, the trial court did not abuse its discretion when it admitted into evidence marijuana seized following the officer's detention of Billingsley, and we affirm his conviction.

FACTS AND PROCEDURAL HISTORY

Around 2:34 a.m. on November 5, 2011, the 9–1–1 dispatch center of the Fort Wayne Police Department ("FWPD") received a call from a woman. The woman said there was a "young man" at the Veterans of Foreign Wars ("VFW") building who had "held [her] hostage" a week or two before and that she "want[ed] the police to come up here and lock him up." Def.'s Ex. B. She then stated that he was "going to leave right now" and that she did not "want him to leave because that's the same dude who did the shooting at Mookie's nightclub." Id. The caller stated that the man was currently armed, though she could not specify the type of firearm; that his name was Phillip Billingsley; and that he was sitting as a passenger in a "newer," "tan-brown" or "tan-gray" Dodge Durango with tinted windows.Id. She further stated that the man sitting in the driver's seat of the vehicle was also armed.

During her five-minute phone call with 9–1–1, the caller turned her attention away from the dispatch operator to tell a third party that she was not "talking to the police I'm talking to my brother." Id. At the dispatch operator's request, the caller then identified herself as Renita Brown and said she was calling from a friend's cell phone. The FWPD dispatched Officer Nicholas Lichtsinn to the scene.

Officer Lichtsinn knew the VFW was "not the most friendly environment" and also knew Billingsley from having personally arrested him on prior allegations of possession of cocaine, resisting arrest, fleeing, and criminal trespass. Motion to Suppress Hearing Transcript at 14, 19. Officer Lichtsinn further knew that Billingsley had also been arrested for possession of a handgun by a felon and that Billingsley used to "hang around with" two people who have since been convicted of murder. Id. at 29.

Upon arriving at the VFW, Officer Lichtsinn did not see a Dodge Durango but did observe an SUV—a Chevrolet Trailblazer—that, "in the darker light ... appear[ed] to be brown[, but] when the sun's out, it appear[ed] to be silver." Id. at 40. Officer Lichtsinn knew from his experiences as an officer that, "often when people call [9–1–1], colors [of vehicles] are goofy and makes and models of vehicles are goofy." Id. at 30. Officer Lichtsinn then observed Billingsley in the passenger seat of the Trailblazer and parked his patrol vehicle in front of the Trailblazer. Officer Lichtsinn called for backup and exited his vehicle with his sidearm drawn. He ordered Billingsley to place his hands on the roof of the SUV while they waited for backup to arrive, which Billingsley did.

Backup officers arrived shortly thereafter. Officer Lichtsinn then holstered his weapon and ordered Billingsley to exit the vehicle. Officer Lichtsinn handcuffed Billingsley and patted him down for weapons. While doing so, Officer Lichtsinn smelled an "overpowering odor of [raw] marijuana," which he recognized based on "[n]umerous" prior arrests he had made involving marijuana. Id. at 18. Officer Lichtsinn then observed "on the front passenger seat where [Billingsley] was sitting ... a clear plastic baggie containing ... a green leafy plant substance that [Officer Lichtsinn] immediately recognized ... to be marijuana." State's Exh. 1. The substance field tested positive for marijuana and was later measured at 229.7 grams. No firearm was found on or near Billingsley.

The State charged Billingsley with possession of marijuana, as a Class D felony. Billingsley moved to suppress the seized marijuana and, after a hearing, the trial court denied Billingsley's motion. Billingsley renewed his objections during the ensuing bench trial, and the court overruled them. The court then found Billingsley guilty as charged and sentenced him accordingly. This appeal ensued.

DISCUSSION AND DECISION

Billingsley contends that the trial court abused its discretion when it admitted the seized marijuana into evidence because the State's seizure of the marijuana from the front passenger seat of the SUV violated his rights under the federal and Indiana constitutions. A trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse such a ruling only upon a showing of an abuse of discretion. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. We will not reweigh the evidence, and we consider conflicting evidence in the light most favorable to the trial court's ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007).

Issue One: Investigatory Stop or Arrest

The parties first dispute whether Officer Lichtsinn exiting his vehicle with his firearm drawn upon his arrival at the VFW subjected Billingsley to an investigatory stop or an arrest. An investigatory stop allows a police officer to "temporarily freeze the situation in order to make an investigative inquiry." Johnson v. State, 766 N.E.2d 426, 429 (Ind.Ct.App.2002), trans. denied. In Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that an officer may, consistent with the Fourth Amendment, conduct a brief investigatory stop when, based on a totality of the circumstances, the officer has a reasonable, articulable suspicion that criminal activity is afoot. Hardister v. State, 849 N.E.2d 563, 570 (Ind.2006). A Terry stop is a lesser intrusion on the person than an arrest and may include a request to see identification and inquiry necessary to confirm or dispel the officer's suspicions. Id. (citing Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 185–89, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) ). Reasonable suspicion entails some minimal level of objective justification for making a stop, something more than an unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. Wilson v. State, 670 N.E.2d 27, 29 (Ind.Ct.App.1996) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ).

An arrest, on the other hand, occurs "when a police officer interrupts the freedom of the accused and restricts his liberty of movement." Sears v. State, 668 N.E.2d 662, 667 (Ind.1996). An arrest requires probable cause. See, e.g., Reinhart v. State, 930 N.E.2d 42, 45 (Ind.Ct.App.2010). There is no question that "[h]olding a person at gunpoint certainly restrains his liberty of movement" and may be an example of an arrest. Taylor v. State, 464 N.E.2d 1333, 1335 (Ind.Ct.App.1984). But "there is no ‘bright line’ for evaluating whether an investigative detention is unreasonable" such that it has been transformed into a full arrest. See Mitchell v. State, 745 N.E.2d 775, 782 (Ind.2001) (quoting United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ).

This court recently considered the fine line between an investigatory stop and an arrest when the attending officer has drawn his firearm. In Willis v. State, 907 N.E.2d 541, 545 (Ind.Ct.App.2009), we held that, based on the facts of that case, an investigatory stop had occurred. In particular, we noted that "the police arrived at the scene moments after a caller reported a man holding a handgun to another man's head." Id. Upon arriving at the scene, the police immediately observed two individuals matching the description provided by the caller. We held that under the totality of those circumstances the police did not convert an investigatory stop into an arrest when they immediately withdrew their firearms to investigate whether the suspect had a firearm. Id.; accord United States v. Askew, 403 F.3d 496, 507 (7th Cir.2005) (holding that officers conducted a Terry stop and not an arrest even though the officers blockaded Askew's car and approached with guns drawn, based on the officers' "reasonable suspicion" that Askew was in the car and "the inherent danger in stopping those suspected of drug trafficking, for which guns are known tools of the trade").

About a year after this court's decision in Willis, we held on a different set of facts that an officer's withdrawal of his firearm from its holster placed the suspect citizen under arrest. Specifically, in Reinhart, we held as follows:

Unlike in Willis, the facts presented here indicate that what may have begun as a Terry investigatory stop was quickly converted to an arrest requiring probable cause. "[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution

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