D.S. v. State
| Decision Date | 08 July 2022 |
| Docket Number | 21A-JV-2392 |
| Parties | D.S., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff, |
| Court | Court of Appeals of Indiana |
Pursuant to Ind. Appellate Rule 65(D), 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.
Appeal from the Marion Superior Court No. 49D09-2107-JD-6296 The Honorable Geoffrey Gaither, Judge
Attorney for Appellant
Indianapolis, Indiana
Attorneys for Appellee
Theodore E. Rokita
Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
[¶1] D.S. was adjudicated a delinquent child for committing dangerous possession of a firearm, a Class A misdemeanor. D.S. appeals the adjudication, raising three issues for our review that we consolidate and restate as: 1) whether the juvenile court erred in admitting evidence obtained as a result of an allegedly unconstitutional seizure; 2) whether there was sufficient evidence to support the adjudication; and 3) whether the case should be remanded for the dispositional order to be corrected. We conclude the juvenile court did not err in admitting evidence because neither the Fourth Amendment to the United States Constitution nor Article 1, section 11 of the Indiana Constitution was violated, and we further conclude there was sufficient evidence that D.S. constructively possessed a firearm. Therefore, we affirm D.S.'s adjudication as a delinquent. We also agree with D.S. and the State that the dispositional order and Chronological Case Summary ("CCS") contain errors and we therefore remand for the juvenile court to correct those errors as explained herein.
[¶2] On the night of July 26, 2021, Officers Austin Kirby and Dante Granger of the Indianapolis Metropolitan Police Department were on duty in full uniform and driving fully marked police vehicles when they responded to a dispatch reporting shots fired from the second-floor balcony of apartment J9 at a complex on East 38th Place. The building in which apartment J9 is situated has four apartments on the first floor and four apartments on the second floor.
The exterior door to the building opens into a two-story common area with stairs to the second floor to the left of the door. The second-floor hallway is open to the common area below and the doors to all second-floor apartments are visible from the first-floor common area. The anonymous call that reported the shots provided no further details as to the number, age, or description of the suspects.
[¶3] The officers arrived at the apartment building within minutes of receiving the dispatch. Walking toward the building, Officer Kirby observed one male sitting outside and then saw several other males start to exit the building. When those individuals saw Officer Kirby, they immediately turned and went back inside. As Officer Kirby approached the open door, he saw several males in the second-floor hallway trying to get into apartment J9. He testified that he "heard a heavy item hit the floor . . . as I approached the doorway [and t]hat's when I drew my weapon." Transcript of Evidence, Volume II at 27. Officer Kirby immediately told the males to "put your f**king hands up now!" The Exhibits - Media/Audio, Volume II at 2 (State's Exhibit 6, DVD at 0:02:04). Standing in the open doorway, Officer Kirby saw several males in the upstairs hallway with their backs to him. With his weapon drawn, Officer Kirby commanded the males to get on the ground and show their hands. "[O]nly some of them were putting their hands up[,]" so Officer Kirby more aggressively commanded them to do so. Tr., Vol. II at 17; Ex., Vol. II at 2 (). Officer Granger also drew his weapon for "officer safety" because "it was obvious[] that the kids were attempting to avoid" the officers. Tr., Vol. II at 61.[1] Eventually, all the males complied and were then ordered to come down the stairs one at a time with their hands raised and were each handcuffed.[2]
[¶4] The officers had their guns trained on D.S. and his companions for approximately three and one-half to four minutes from the time Officer Kirby drew his weapon until all the males had exited the building. During that time, additional officers arrived, and Officer Kirby and other officers loudly and repeatedly expressed their orders for the males to keep their hands up. Twice, someone inside apartment J9 opened the door and was instructed to shut the door and go back inside.
[¶5] After the males were handcuffed, Officer Kirby went upstairs and found a firearm (Taurus G2c 9mm) on the floor at the top of the stairs and a second firearm (Smith & Wesson M&P Shield 9mm) in the fire extinguisher box on the wall to the left of the door to apartment J9. During the three-to-four minutes the males were on the second floor, Officer Kirby had seen D.S. standing directly in front of that fire extinguisher box and had also seen D.S. sitting near the top of the stairs. However, he did not see D.S. holding a gun, throwing a gun, or hiding a gun. No fingerprints or DNA were found on the firearms.
[¶6] IMPD Officer Mitchell Hubner, who had responded to the scene when backup was requested, took D.S. to his patrol car "because of the crowd that had . . . gathered" and searched him incident to arrest. Id. at 71. Officer Hubner found five live rounds of 9mm ammunition that had "a gold tip with a greyish steel casing" in D.S.'s left front pants pocket and one live round of 9mm ammunition that was "red tipped [and] totally different from the other five" in D.S.'s right front pants pocket. Id. at 74. Officer Huber described D.S.'s demeanor when he found the bullets as seeming surprised, "like a, 'oh, whoops forgot about those'" reaction. Id. at 72.
[¶7] The State filed a delinquency petition alleging D.S. had committed the delinquent act of dangerous possession of a firearm, a Class A misdemeanor, and carrying a handgun without a license, a Class A misdemeanor if committed by an adult. A fact-finding hearing was held at which D.S. moved to suppress[3]"any further testimony or evidence" after Officer Kirby testified he had unholstered his gun and ordered the males to get on the floor and raise their hands, arguing the investigatory stop converted to a warrantless arrest requiring probable cause at that point. Id. at 17. The juvenile court heard argument on the motion and denied it. The fact-finding hearing continued with the juvenile court noting D.S.'s continuing objection to the admission of evidence. Officers Kirby, Granger, and Hubner testified to the events described above.
[¶8] At the conclusion of the hearing, the juvenile court announced its decision:
Id. at 85. Following a dispositional hearing, the juvenile court issued a dispositional order stating:
Appealed Order at 1-2.[4] The juvenile court discharged D.S. to the custody of Transitions Academy to participate in services there and closed the case. D.S. now appeals.
[¶9] The juvenile court has broad discretion in ruling on the admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). However, when a challenge to the admissibility of evidence is predicated on the constitutionality of a search or seizure, our review is de novo. Id. Similarly, determinations of reasonable suspicion and probable cause are reviewed de novo. Myers v. State, 839 N.E.2d 1146, 1150 (Ind. 2005).
[¶10] D.S. contends his warrantless arrest was unreasonable under the Fourth Amendment to the United States Constitution because the anonymous call did not give rise to probable cause, D.S.'s behavior upon seeing police did not constitute flight, and when responding officers held D.S. at gunpoint, the interaction went beyond a permissible investigatory stop and became an arrest requiring probable cause. He therefore argues the juvenile court abused its discretion when it admitted evidence obtained as a result of an unlawful arrest.
[¶11] The Fourth Amendment protects against unreasonable searches and seizures. Combs v. State, 168 N.E.3d 985, 991 (Ind. 2021), cert. denied, 142 S.Ct. 1125 (2022). The touchstone of a Fourth Amendment analysis "is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (internal quotation omitted). A warrantless search or seizure is per se unreasonable, and the State must prove that one of the well-delineated exceptions to the warrant requirement applies. Combs, 168 N.E.3d at 991.
[¶12] Two such exceptions are the...
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