Mullen v. State

• Decision Date: 25 May 2016
• Docket Number: No. 02A05–1511–CR–1959.,02A05–1511–CR–1959.
• Citation: 55 N.E.3d 822
• Parties: Kelly C. MULLEN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

55 N.E.3d 822

Kelly C. MULLEN, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 02A05–1511–CR–1959.

Court of Appeals of Indiana.

May 25, 2016.

Randy M. Fisher, Deputy Public Defender, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, for Attorneys for Appellee.

CRONE

, Judge.

Case Summary

[1] The State charged Kelly C. Mullen with level 4 felony possession of a firearm by a serious violent felon (“SVF”) and class A misdemeanor resisting law enforcement. Mullen now brings this interlocutory appeal challenging the trial court's denial of his motion to suppress. He contends that the handgun recovered by police was seized in violation of the federal constitutional guarantees against unreasonable search and seizure. We conclude that the police had reasonable suspicion that criminal activity had occurred justifying an investigatory stop of Mullen and a reasonable belief that he was armed. Therefore, we conclude that the handgun was constitutionally seized and affirm the denial of Mullen's motion to suppress.

Facts and Procedural History

[2] In July 2015, the Villages of Hanna Apartment Complex (“the Villages”) in Fort Wayne was the site of frequent drug activity and gun violence. There had been several homicides in the area including one that had occurred a few months earlier. The Villages had posted no-loitering signs over all the building entrances because management believed that the high level of loitering was related to the drug activity and violence. Additionally, the Villages had contacted the Fort Wayne Police Department for assistance in controlling loitering, specifically requesting that the police stop and identify individuals on the property to determine whether they were legally on the property. Tr. at 6

.

[3] At about 10:06 p.m. one evening that July, Detective Marc Deshaies was observing the southern doorway of the Villages Building 2 from about 100 to 140 feet away. Building 2 had two doorways at opposite ends allowing access to an interior hallway, which was lined by the individual apartment doors. Because the interior hallway was lit, Detective Deshaies could see a large group of males in the hallway, but he could not determine how many there were. He observed that one or two males would sometimes lean out of the entry, look both ways down the outside of the building, and then lean back in. Detective Deshaies had worked ten years as an officer in vice, narcotics, and the gang task force and knew from experience that such behavior was not consistent with people who were just hanging out. Rather, he knew that it was “very consistent with open air drug sales in which you have people in the hallways dealing drugs, [and] you have people looking out to see if there's police coming [or] looking for any other threats that might be coming up to the doorways.” Id. at 8. Detective Deshaies did not see any actual crimes being committed.

[4] Detective Deshaies asked Detective Stacey Jenkins to enter the doorway at the other end of Building 2 to see how the group in the hallway responded. Detective Jenkins entered the doorway and radioed to Detective Deshaies the exact time of his entry. Once inside the hallway, Detective Jenkins saw Mullen leave one of the apartments and proceed toward the exit that Detective Deshaies was observing.

[5] Within a second of Detective Jenkins's entry into Building 2, Detective Deshaies saw two males, one of whom was Mullen, hurriedly exit the building. “Instead of walking down the sidewalk [the two males] instead chose to walk very closely to the side of the building ... and were walking so fast that it was between a walk and a run.” Id. at 9. Both men were looking over their right shoulder directly toward the door they had just exited.

[6] Detective Deshaies and his partner approached the two men from an angle coming across the parking lot. Detective Deshaies used his flashlight to illuminate the men and identified himself as a police officer. Detective Deshaies did not tell the men to stop or to come to him. One of the men stopped, but the other man, later identified as Mullen, increased his pace and changed direction. Detective Matthew Foote and his partner engaged the man who had stopped walking. Detective Deshaies increased his pace to catch up with Mullen.

Mullen turned and faced Detective Deshaies, holding his ID in his hand. Detective Deshaies asked Mullen if he lived there and where he lived. “Mullen kept pointing at the building but couldn't give [Detective Deshaies] an address.” Id. at 11. At some point, Detective Deshaies told Mullen that “the reason that he was being stopped was because he was loitering in the other building.” Id. at 21–22. Rather than squarely facing Detective Deshaies, Mullen “turned his body at an angle” to him. Id. at 11. Detective Deshaies considered this “a fighting stance” and “that sort of mannerism immediately drew [his] attention that [Mullen] might either be preparing to fight or might have a weapon on him.” Id. While maintaining his angled stance, Mullen began backing away from Detective Deshaies with his eyes darting left to right. Detective Deshaies believed that Mullen “might be preparing to flee.” Id. at 12. From Detective Deshaies's perspective, Mullen was not free to leave. Id. at 21. Detective Deshaies “was concerned for weapons,” and he asked Mullen if he had any weapons on his person. Id. at 13. Mullen told Detective Deshaies that he “couldn't search him.” Id. Detective Deshaies told Mullen that he “wasn't searching him” and asked Mullen again if he had any weapons on his person. Id. Mullen again told the detective that he “couldn't search [him], and he finally stated that [he had] a knife in [his] pocket, and when he said that he immediately reached down to his pocket.” Id. “He reached his hand down to his waist area as if he was gonna draw the knife.” Id.

[8] In response to Mullen's gesture, Detective Deshaies grabbed Mullen's right wrist and his partner grabbed Mullen's left wrist. Mullen pulled aggressively with both shoulders trying to free himself and “was still shouting that [the officers] couldn't search him.” Id. at 14. Meanwhile Detective Foote, who was about twenty feet away, saw the struggle and approached to assist. He saw the outline of a handle of a gun through Mullen's shirt, and said, “[G]un.” Id. at 30. The officers forced Mullen to the ground. The officers discovered a 1911–style Llama .45 caliber handgun in Mullen's waistband on his right hip, where he had been reaching.

[9] After police found the gun, Mullen provided an address where he said he lived. Id. at 25. Police went to that apartment and spoke with the occupant, who informed them that Mullen lived with her but was not on the lease and was not supposed to live there. Id. Mullen was not legally authorized to live there because it was government-subsidized housing. Id. at 25–26.

[10] The State charged Mullen with level 4 felony possession of a firearm by a SVF and class A misdemeanor resisting law enforcement. Mullen filed a motion to suppress all evidence obtained as a result of his allegedly unconstitutional seizure and a supporting memorandum of law. The trial court held an evidentiary hearing. At the conclusion of the hearing, the trial court denied Mullen's motion. The trial court determined that the facts and circumstances established an escalating situation that began with police observation of Mullen and others violating the apartment rules and that police had been asked by the property owners to assist with enforcement of these rules within the complex. The trial court concluded that the circumstances supported Detective Deshaies's right to ask Mullen for identification. The trial court also determined that Mullen acted suspiciously in refusing to specifically answer Detective Deshaies about where he lived, yelling that the police could not search him, and reaching for his pocket after telling the detective that he had a knife. The trial court concluded that these additional circumstances gave the officers reasonable suspicion to “make a stop,” apparently referring to the moment that the officers put their hands on Mullen. Id. at 57. On Mullen's request, the trial court certified its order denying his motion to suppress for interlocutory appeal.

Discussion and Decision

[11] Mullen argues that the police seized the handgun in violation of the Fourth Amendment to the United States Constitution, and therefore the gun was inadmissible.¹ “We review a trial court's denial of a defendant's motion to suppress deferentially, construing conflicting evidence in the light most favorable to the ruling, but we will also consider any substantial and uncontested evidence favorable to the defendant.” Robinson v. State, 5 N.E.3d 362, 365 (Ind.2014)

. We accept the trial court's findings of fact unless they are clearly erroneous, and we do not reweigh the evidence. Id. However, the constitutionality of a search or seizure is a question of law that we review de novo. Lewis v. State, 949 N.E.2d 1243, 1246 (Ind.2011).²

[12] The Fourth Amendment states,

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 fundamental purpose of the Fourth Amendment ‘is to protect the legitimate expectations of privacy that citizens possess in their persons, their homes, and their belongings.’ ” Hines v. State, 981 N.E.2d 150, 153 (Ind.Ct.App.2013)

(quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind.Ct.App.2010) ). This protection has been extended to the states through the Fourteenth Amendment to the United States Constitution. Krise v. State, 746 N.E.2d 957, 961 (Ind.2001)....