J.G. v. State

• Decision Date: 31 January 2018
• Docket Number: Court of Appeals Case No. 49A02–1706–JV–1419
• Citation: 93 N.E.3d 1112
• Parties: J.G., Appellant–Respondent, v. STATE of Indiana, Appellee–Petitioner
• Court: Indiana Appellate Court

93 N.E.3d 1112

J.G., Appellant–Respondent,

v.STATE of Indiana, Appellee–Petitioner

Court of Appeals Case No. 49A02–1706–JV–1419

Court of Appeals of Indiana.

Filed January 31, 2018

Attorney for Appellant : Joel M. Schumm, Christina L. Fisher, Certified Legal Intern, Appellate Clinic, IU Robert H. McKinney School of Law, Indianapolis, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] J.G. appeals his adjudication as a delinquent for dangerous possession of a firearm and carrying a handgun without a license, both class A misdemeanors if committed by an adult. He argues that his detention by police officers was unconstitutional; that his confession to possessing the handgun was not voluntary; that portions of an audio recording played at trial were inadmissible; and that the trial court should have vacated the true finding for carrying a handgun without a license on double jeopardy grounds. We conclude that his detention was not unconstitutional and his confession was voluntary; we presume that the trial court disregarded inadmissible portions of the audio recording; and we agree that the true finding for carrying a handgun without a license must be vacated. Therefore, we affirm the true finding for dangerous possession of a firearm and remand with instructions to vacate the true finding for carrying a handgun without a license.

Facts and Procedural History

[2] The facts most favorable to the true findings follow. Around 1:30 a.m. on Thursday, March 23, 2017, Indianapolis police officers received a radio dispatch about suspicious persons "pacing back and forth in front of" a Mexican restaurant in a strip mall on North High School Road. Tr. Vol. 2 at 40. According to Officer Jaime Thorn, who had patrolled that area for over seven years, "[t]here had been several attempted robberies at this business and other Hispanic businesses in the area ...." Id. at 13. Within thirty seconds of receiving the dispatch, Officer Thorn arrived at the restaurant, which the owner had been closing for the night as the employees were walking to the parking lot. Officer Michal Dinnsen, who had patrolled the area for about two years, arrived seconds later. Officer Thorn spoke with the restaurant owner and an employee, who indicated that two black males wearing black jackets had run behind the strip mall. Officer Thorn "dispatched that information out on the radio to other officers responding" and asked Officer Dinnsen to drive around the back of the building. Id. at 10. Officer Dinnsen did so and saw two males "running eastbound into the Gateway apartments" behind the strip mall. Id. at 38. He "notified other responding officers" of what he had seen. Id.[3] By that time, Officer Albert Teaters had driven into the Gateway apartment complex, which is in "a fairly high crime area." Id. at 13. Seconds after receiving Officer Dinnsen's dispatch, Officer Teaters saw two black males wearing black jackets; no one else was around. Officer Teaters "told them to stop and [he] held them at gunpoint" for his safety "until more officers could arrive ...." Id. at 26. There had recently been a "rash of robberies" in the area, and Officer Teaters, who had patrolled the area for about two years, "didn't know if weapons were involved" in this situation. Id. at 26, 27. Officer Teaters "got on the radio and notified [Officer Dinnsen] that he had two suspects stopped." Id. at 39. One of the suspects was fifteen-year-old J.G.,¹ and the other was O.D.

[4] Officer Dinnsen arrived within "fifteen or twenty seconds" and held the suspects at gunpoint while Officer Teaters handcuffed them. Id. Officer Dinnsen "asked them how old they were because they both looked young." Id. at 44. "[T]hey both told [him] their age and [he] realized they were both juveniles." Id. Officer Dinnsen notified Officer Thorn, who completed her investigation at the restaurant and joined her colleagues about ten minutes later.² The officers patted down J.G. and O.D. for contraband, spoke with a robbery detective, and realized that the juveniles' actions "didn't rise to the level of a robbery due to the fact that there was no demand for property and as a result [the officers] were going to take the juveniles back home to their parents." Id.

[5] Officer Dinnsen drove O.D. home, which took approximately ten or twelve minutes, and talked with O.D.'s mother and her boyfriend. The officer told them that "it appeared like this could've been a robbery" and that the officers "were concerned that there may be a gun ...." Id. at 46. Based on this conversation, they all returned to the apartment complex. O.D. pointed to a bush, under which Officer Dinnsen found a loaded semiautomatic handgun.

[6] Meanwhile, Officer Teaters drove J.G. home and talked with his mother. Officer Teaters was "getting ready to release" J.G. to his mother when Officer Dinnsen contacted him, told him that he had found a gun, and asked him to return to the apartment complex with J.G. and his mother. Id. at 33. Officer Teaters transported J.G., and J.G.'s mother drove her own car. When they arrived at the apartment complex, Officer Dinnsen gave J.G. and his mother a juvenile rights waiver form and read it over with them. The officer allowed them "to discuss everything" in private near J.G.'s mother's car. Id. at 50. After approximately ten minutes, at 4:29 a.m., J.G.'s mother stated that they would talk to the officer.

[7] Officer Dinnsen documented his interactions with J.G. and his mother with a digital audio recorder. The recording indicates that the officer removed J.G.'s handcuffs so that he could sign the waiver form. J.G.'s mother also signed the form. Both J.G. and his mother were aware that a gun had been found at the apartment complex. Officer Dinnsen said that he would test the gun for fingerprints and DNA, which would "let us know who's been touching the gun [,]" and asked J.G. if his DNA would be found on the gun. State's Ex. 3 (recording). J.G. said no. Officer Dinnsen stated that O.D.'s mother and boyfriend heard J.G. say that he had a gun as he and O.D. were leaving O.D.'s house that evening. J.G. denied saying that. The officer told J.G. that O.D. admitted there was a gun and that "everybody's saying it's your gun." Id. Officer Dinnsen told J.G. that it would cost $1000 to test the gun for DNA, recounted the events leading to J.G.'s detention and the discovery of the gun, and said, "You see how this is playing out." Id. J.G.'s mother said, "Yeah, y'all had the gun." Id. J.G. told her to "be quiet." Id. She replied that O.D. and his mother said that J.G. had the gun, and she told her son, "You be the fool. You do what you want to do, bro. If you want to continue to tell them that, then go ahead, by all means necessary. I'm going back home to my baby." Id. J.G. then admitted that he had the gun. He claimed that he had found it several hours earlier, that he gave it to O.D. when the police arrived, and that O.D. threw it under the bush.

[8] The State alleged that J.G. committed dangerous possession of a firearm and carrying a handgun without a license, both class A misdemeanors if committed by an adult. At trial, J.G. objected to the admission of the handgun and Officer Dinnsen's recording, claiming that his detention was unconstitutional, his confession was not voluntary, and the third-party statements on the recording were inadmissible. The trial court overruled the objections, entered true findings on both counts, and adjudicated J.G. a delinquent. The court stated that it would merge the second count into the first count, but the factfinding and dispositional orders do not mention merger. J.G. now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Section 1—J.G.'s detention did not violate the Fourth Amendment to the U.S. Constitution.

[9] J.G. first contends that his detention by police violated the Fourth Amendment to the U.S. Constitution, and therefore the trial court should have excluded the handgun and his confession as fruits of that illegal seizure. The Fourth Amendment provides,

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

"The protections granted by the Fourth Amendment have been extended to the states through the Fourteenth Amendment." J.B. v. State , 30 N.E.3d 51, 54 (Ind. Ct. App. 2015). "The fundamental purpose of the Fourth Amendment is to protect the legitimate expectations of privacy that citizens possess in their persons, homes, and belongings." State v. Parrott , 69 N.E.3d 535, 541 (Ind. Ct. App. 2017), trans. denied . 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, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). A warrantless seizure is per se unreasonable, and the State bears the burden to show that one of the well-delineated exceptions to the warrant requirement applies. Jacobs v. State , 76 N.E.3d 846, 850 (Ind. 2017).

[10] "Generally speaking, evidence obtained pursuant to an unlawful seizure must be excluded under the fruit of the poisonous tree doctrine." Clark v. State , 994 N.E.2d 252, 266 (Ind. 2013). "This extension of the exclusionary rule bars evidence directly obtained by the illegal search or seizure as well as evidence derivatively gained as a result of information learned or leads obtained during that same search or seizure." Id.

We review a trial court's decision regarding the admission of evidence for

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