L.W v. State Of Ind.

• Decision Date: 28 July 2010
• Docket Number: No. 49A02-0909-JV-841.,49A02-0909-JV-841.
• Parties: L.W., Appellant-Respondent,v.STATE of Indiana, Appellee-Petitioner.
• Court: Indiana Appellate Court

926 N.E.2d 52

L.W., Appellant-Respondent,v.STATE of Indiana, Appellee-Petitioner.

No. 49A02-0909-JV-841.

Court of Appeals of Indiana.

April 22, 2010.

Rehearing Denied July 28, 2010.

COPYRIGHT MATERIAL OMITTED

David Pardo, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

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

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

L.W. appeals his adjudications as a delinquent child for committing Burglary, as a Class B felony when committed by an adult, and Theft, as a Class D felony when committed by an adult. L.W. raises several issues on appeal, but we address a single dispositive issue, namely, whether police had reasonable suspicion to conduct an investigatory stop of him under the Fourth Amendment to the United States Constitution.

We reverse.

FACTS AND PROCEDURAL HISTORY

On May 28, 2009, at approximately 10:00 p.m., Ebony Chisolm notified police regarding a burglary at her residence in Indianapolis. Chisolm had left home at approximately 8:30 p.m. that evening, and when she came home, she found an open window and a broken interior door. Missing from Chisolm's home were jewelry, money, a video game system, and a plastic water jug full of change.

Shortly thereafter, Lawrence Police Department Officer Tracy Cantrell was patrolling the area. In the meantime, a man who identified himself as Brandon Shockley called police and reported that the burglary suspect was a “tall black male wearing [a] black shirt and black shoes.” Transcript at 19. Dispatch relayed that tip to Officer Cantrell. When he was driving approximately two blocks away from Chisolm's house, Officer Cantrell saw a pedestrian, later identified as L.W. Officer Cantrell thought that L.W. “fit [the suspect's] description to a ‘T’ ”, so he stopped his car and approached L.W. Officer Cantrell said to L.W., “Hey, come here.” Id. at 20. L.W. stopped, but, according to Officer Cantrell, L.W. “looked like he wanted to run but he didn't.” Id. So Officer Cantrell ordered L.W. to get down on the ground, and L.W. complied.

Officer Cantrell helped L.W. stand up again and he asked him where he had come from. L.W. replied that he had just been playing basketball at his cousin's house. At that point, Officer Cantrell considered the encounter with L.W. a Terry stop, and he patted L.W. down “for weapons only.” Id. During the pat down, Officer Cantrell did not feel anything like a weapon, but he did feel what seemed like a large number of coins in L.W.'s front pockets, and he could hear what sounded like coins “moving around.” Id. After Officer Cantrell learned that the burglary suspect had stolen a large quantity of change, he arrested L.W. Thereafter, Officer Cantrell found some of Chisolm's jewelry and coins in L.W.'s pockets.

The State filed a petition against L.W. alleging his delinquency for burglary and theft. During the hearing on the petition, L.W. objected to the admissibility of the evidence obtained by police, arguing that Officer Cantrell's investigatory stop and ensuing search were illegal. The juvenile court admitted the evidence and ultimately adjudicated L.W. a delinquent child on both counts. This appeal ensued.

DISCUSSION AND DECISION

L.W. contends that Officer Cantrell did not have reasonable suspicion to support an investigatory stop and that his seizure of him violated the Fourth Amendment.¹ The Fourth Amendment prohibits unreasonable searches and seizures by the government, and its safeguards extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Moultry v. State, 808 N.E.2d 168, 170 (Ind.Ct.App.2004). However, a police officer may briefly detain a person for investigatory purposes without a warrant or probable cause if, based upon specific and articulable facts together with rational inferences from those facts, the official intrusion is reasonably warranted and the officer has a reasonable suspicion that criminal activity “may be afoot.” Id. at 170-71 (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

Reasonable suspicion is a “ ‘somewhat abstract’ ” concept, not readily reduced to “ ‘a neat set of legal rules.’ ” Id. at 171 (quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). “When making a reasonable suspicion determination, reviewing courts examine the ‘totality of the circumstances' of the case to see whether the detaining officer had a ‘particularized and objective basis' for suspecting legal wrongdoing.” Id. (quoting Arvizu, 534 U.S. at 273, 122 S.Ct. 744). The reasonable suspicion requirement is met where the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe criminal activity has occurred or is about to occur. Id. It is well settled that reasonable suspicion must be comprised of more than an officer's general “ ‘hunches' ” or unparticularized suspicions. Webb v. State, 714 N.E.2d 787, 788 (Ind.Ct.App.1999) (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868).

Here, the dispositive question is whether the tip Shockley provided to police was sufficient to support a determination of reasonable suspicion to perform an investigatory stop of L.W. The dissent maintains that “the fact that the tipster's identity was known to police was sufficient, by itself, to justify Officer Cantrell's stop.” But this contention is contrary to our opinion in State v. Glass, 769 N.E.2d 639, 643 (Ind.Ct.App.2002) trans. denied, where we recognized that, “The fact that a named caller with an untested reputation called the police does not in itself establish reasonable suspicion.” Indeed, both the United States Supreme Court and the Indiana Supreme Court have consistently held that the totality of the circumstances test applies to a determination of reasonable suspicion, even where a tipster identifies himself.

The dissent's reliance on Kellems v. State, 842 N.E.2d 352, 355 (Ind.2006) rev'd on reh'g on other grounds, 849 N.E.2d 1110 (Ind.2006), also goes too far. In Kellems our Supreme Court stated that the United States Supreme Court “has indicated that while a tip from an identified or known informant may not be sufficient to support a probable cause finding, such tips are sufficiently reliable to justify an investigatory Terry stop.” 842 N.E.2d at 355 (citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). But this language from Kellems is misleading when taken out of context.

What the Supreme Court actually meant in Alabama was not that such tips necessarily are-but that such tips may be-sufficiently reliable to justify a Terry stop. The Court observed that in Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court had found a tip made by an identified tipster sufficient to support reasonable suspicion, but not probable cause. 496 U.S. at 330, 110 S.Ct. 2412. In Adams, the Court noted that the informant was personally known to the police officer and had previously provided the officer with information. 407 U.S. at 146, 92 S.Ct. 1921. And the Court also noted that the informant “came forward personally to give information that was immediately verifiable at the scene” and that the informant subjected himself to arrest for false complaint. Thus, the Adams Court held that the tip “carried enough indicia of reliability” to justify the stop. Id. In Alabama, the Supreme Court summarized the formula for reasonable suspicion as follows:

Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors-quantity and quality-are considered in the “totality of the circumstances-the whole picture,” United States v. Cortez, 449 U.S. 411, 417 [101 S.Ct. 690, 66 L.Ed.2d 621] (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.

Alabama, 496 U.S. at 330, 110 S.Ct. 2412; see also,

Adams, 407 U.S. at 146-47, 92 S.Ct. 1921.

Likewise, in Kellems, our Supreme Court held that while a tip made by a so-called “concerned citizen” has greater indicia of reliability than that made by a professional informant, the ultimate test is “one of the totality of the circumstances.” See 842 N.E.2d at 356. And while a concerned citizen who has identified himself makes himself susceptible to prosecution for false reporting, which “heightens the likelihood of the report's reliability,” that is only one factor “bearing on the reasonableness of suspicion.” See id. at 355-56. The Court concluded that:

[w]hile we agree with the logic that the prospect of prosecution for making a false report heightens the likelihood of the report's reliability, we think the State pushes the envelope too far to say that the prospect of prosecution for making a false report, standing alone, will in all cases constitute reasonable suspicion.

Id. at 355. In sum, neither the United States Supreme Court nor the Indiana Supreme Court has held that a tip from a tipster whose identity is known to the police is sufficient per se to establish reasonable suspicion. Thus, our analysis does not end with the fact that Shockley identified himself to dispatch.

Here, there is no evidence in the record that law enforcement had verified Shockley's identity or that his reliability was known prior to the investigatory stop of L.W. On this record, while Shockley identified himself, he was nonetheless a virtual stranger. Neither Officer Cantrell nor the police department knew whether he was “a concerned citizen, a prankster, or an imposter.” See Glass, 769 N.E.2d at 643. And there is no evidence that...