Francis v. State

Citation764 N.E.2d 641
Decision Date20 February 2002
Docket NumberNo. 49A02-0108-CR-525.,49A02-0108-CR-525.
PartiesGregory FRANCIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Victoria Ursulskis, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Gregory Francis appeals his conviction for unlawful possession of a firearm by a serious felon, a class B felony.1 Francis raises one issue, which we revise and restate as whether the trial court abused its discretion by denying Francis's motion to suppress evidence gotten from an investigatory stop. We affirm.

The relevant facts follow. On the evening of December 8, 2000, Officer Robert Donaldson of the Lawrence Police Department was sitting in his patrol car at a gas station. A car pulled up alongside Officer Donaldson's patrol car and a man and woman, who wished not to be identified in any reports of the matter (collectively, the "Informants"), reported to Officer Donaldson that a relative's car had been stolen. The Informants stated that "Gregory Francis" was driving the stolen car and that he had an open arrest warrant issued against him. Transcript at 11. The Informants also told Officer Donaldson that the car was a white, four-door Pontiac, and that the car could be found at Will Estates Trailer Park ("Trailer Park"). After receiving this information, Officer Donaldson called dispatch to confirm whether there were any open arrest warrants pending against a white male named "Gregory Francis." Id. at 11-12. Dispatch responded that "Gregory Francis" did have an open warrant, and Officer Donaldson then drove to the Trailer Park. Id. at 12.

Immediately upon entering the Trailer Park, Officer Donaldson spotted a white, four-door Pontiac. Officer Donaldson followed the car through the Trailer Park, and the driver eventually pulled the car into a driveway. Officer Donaldson parked his patrol car in front of that driveway and activated his emergency lights. As the driver began to exit the car, Officer Donaldson ordered the driver to return to, and remain in, the car. Officer Donaldson approached the car and asked for the driver's name. The driver identified himself as "Gregory Francis." Id. at 15. As he spoke with Francis, Officer Donaldson saw the barrel of a shotgun in the front passenger seat of the Pontiac. When Officer Donaldson removed the gun from the car, he saw that it was loaded. Officer Donaldson also found five shotgun shells in the front passenger seat of the Pontiac.

The State charged Francis with unlawful possession of a firearm by a serious violent felon as a class B felony. After a bench trial, the trial court found Francis guilty as charged. The trial court sentenced Francis to six years at the Indiana Department of Correction.

The sole issue is whether the trial court abused its discretion by denying Francis's motion to suppress evidence gotten from an investigatory stop. The trial court is afforded broad discretion in ruling on the admissibility of evidence, and we will reverse its ruling only upon a showing of abuse of discretion. Smoote v. State, 708 N.E.2d 1, 3 (Ind.1999). Additionally, we review the denial of a motion to suppress evidence in a manner similar to allegations of insufficient evidence. Taylor v. State, 689 N.E.2d 699, 702 (Ind.1997). We do not reweigh the evidence, and we consider conflicting evidence most favorably to the trial court's ruling. Id. However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, in reviewing a denial of a motion to suppress, we must also consider any uncontested evidence that is favorable to the defendant. Fair v. State, 627 N.E.2d 427, 434 (Ind. 1993). Here, Francis claims that the trial court abused its discretion when it denied his motion to suppress because the investigatory stop violated his rights under both the United States and Indiana Constitutions.

A.

The Fourth Amendment to the United States Constitution provides, in pertinent part: "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. CONST. amend. IV. The Fourth Amendment's protection against unreasonable search and seizure has been extended to the states through the Fourteenth Amendment. See Berry v. State, 704 N.E.2d 462, 464-65 (Ind.1998)

. As a general rule, the Fourth Amendment prohibits a warrantless search. Id. Consequently, when a search is conducted without a warrant, the State has the burden of proving that the search falls into one of the exceptions to the warrant requirement. Id. at 465.

One exception to the warrant requirement was recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the United States Supreme Court established the rule that a police officer may, without a warrant or probable cause, briefly detain a person for investigatory purposes if, based upon specific and articulable facts together with rational inferences from those facts, "official intrusion upon the constitutionally protected interests" of private citizens is reasonably warranted, and the officer has a reasonable suspicion that criminal activity "may be afoot." Id. at 21-22, 30, 88 S.Ct. at 1879-1880, 1884, 20 L.Ed.2d 889.

The Supreme Court has stated that "[t]he concept of reasonable suspicion, like probable cause, is not readily, or even usefully, reduced to a neat set of legal rules." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citations omitted). Rather, in evaluating the legality of a Terry stop, we must consider "the totality of the circumstances—the whole picture." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Therefore, the reasonable-suspicion inquiry is fact-sensitive and must be determined on a case-by-case basis. Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind.1997), modified on reh'g on other grounds, 685 N.E.2d 698. The reasonable suspicion requirement is satisfied where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Lyons v. State, 735 N.E.2d 1179, 1183-1184 (Ind.Ct.App.2000); see also Gipson v. State, 459 N.E.2d 366, 368 (Ind.1984)

. Thus, reasonable suspicion entails something more than an inchoate and unparticularized suspicion or hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence. Luster v. State, 578 N.E.2d 740, 743 (Ind. Ct.App.1991). We review a trial court's determination regarding reasonable suspicion de novo. Burkett v. State, 736 N.E.2d 304, 306 (Ind.Ct.App.2000).

Francis asserts that the information offered by the Informants did not provide Officer Donaldson with the requisite reasonable suspicion to conduct a valid Terry stop and, thus, the trial court should have suppressed the evidence seized as a result of the stop. We have previous held that anonymous or unidentified informants can supply information that gives police reasonable suspicion.2Bogetti v. State, 723 N.E.2d 876, 879 (Ind.Ct.App.2000). However, as a general rule, an anonymous tip alone is not likely to constitute the reasonable suspicion necessary for a valid Terry stop unless significant aspects of the tip are corroborated by the police. Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 2415-16, 110 L.Ed.2d 301 (1990); see also Lampkins, 682 N.E.2d at 1271

.

To support his assertion that Officer Donaldson did not have reasonable suspicion to conduct a Terry stop of his car, Francis relies upon the recent cases of Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) and Washington v. State, 740 N.E.2d 1241 (Ind.Ct. App.2000), trans. denied. In J.L., an anonymous caller reported to the police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. J.L., 529 U.S. at 268, 120 S.Ct. at 1377. The police responded and found three black males at the bus stop, one wearing a plaid shirt. Id. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct, as they did not see a firearm and J.L. made no threatening or otherwise unusual movements. Id. The officers performed a Terry frisk on all three males, seizing a gun from J.L. Id. The United States Supreme Court stated that:

The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. .... The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

Id. at 271, 120 S.Ct. at 1379. The Court held that the anonymous tip, which was not suitably corroborated, was insufficient indicia of reliability to provide the police with reasonable suspicion to make the investigatory stop. Id. at 271, 120 S.Ct. at 1378.

Similarly, in Washington, a citizen called the police to report a possible drunk driver. Washington, 740 N.E.2d at 1243. The informant, whose identity and reliability remained unknown, informed police that a black Cadillac with a white top and a specific license plate number was heading southbound on Interstate 65. Id. A police officer, who located the Cadillac and verified the license plate number, pulled the car over without personally observing any evidence of drunk or erratic driving. Id. We held that the officer did not have reasonable suspicion to stop the...

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