Pinner v. State

• Decision Date: 09 May 2017
• Docket Number: No. 49S02-1611-CR-610,49S02-1611-CR-610
• Citation: 74 N.E.3d 226
• Parties: Thomas PINNER, Appellant (Defendant below), v. STATE of Indiana, Appellees (Plaintiff below).
• Court: Indiana Supreme Court

74 N.E.3d 226

Thomas PINNER, Appellant (Defendant below),

v.STATE of Indiana, Appellees (Plaintiff below).

No. 49S02-1611-CR-610

Supreme Court of Indiana.

May 9, 2017

Attorneys for Appellant: Ruth Ann Johnson, Marion County Public Defender Agency, Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, Indiana.

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Henry Albert Flores, Jr., Deputy Attorney General, Caryn Nieman-Szyper, Deputy Attorney General, Indianapolis, Indiana.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-1511-CR-2036

Rucker, Justice.

Charged with possession of a firearm Defendant moved to suppress the evidence on both federal and state constitutional grounds. The trial court denied the motion. After de novo review, we reverse the judgment of the trial court.

Facts and Procedural History

On February 20, 2015, patrol officers with the Indianapolis Metropolitan Police Department received a dispatch advising "there was a couple in a taxi cab. And upon exiting the taxi cab ... a black male dropped a handgun and the taxi driver [felt] he was going to be robbed, he was afraid." Tr. at 5. The taxi driver described the man as "[a] black male wearing a blue jacket" with a "black female with blonde hair." Tr. at 7. Officer Jason Palmer responded to the dispatch and was the first officer to arrive on the scene—the Studio Movie Grill. Because the taxi driver left before the police arrived, Officer Palmer called the driver directly to get more information. The driver "said the gun had fell [sic]," although Officer Palmer was not sure "if it was on the ground or in the taxi cab." Tr. at 6. And although the taxi driver reported "he was feared [sic] that he might be robbed," in fact "he wasn't actually robbed." Tr. at 12. And the driver made no claim the man had threatened him with the weapon. Tr. at 13.

As Officer Palmer proceeded inside the establishment Officer George Stewart arrived to assist. While speaking to security personnel, the officers observed "a black female with blonde hair walking away from a bench area" and then "observed a black male wearing a blue jeans [sic] and sweatshirt" seated on a bench in the area from which the woman had left. Tr. at 7, 8. The man was later identified as Thomas Pinner. The bench was next to a wall that was positioned behind Pinner. The officers approached the seated Pinner with Officer Palmer "standing on one side and Officer Stewart was standing on the other side[.]" Tr. at 15. Officer Palmer introduced himself and informed Pinner that they had received a call that "someone of [his] description ... has a handgun on him." Tr. at 8. Officer Palmer then asked Pinner if he possessed a weapon. Pinner paused "for a few seconds" during which "he was kind of a little rocking back and forth [wringing] his hands." Tr. at 8. Although hesitant to answer, he denied having a weapon. Officer Palmer then instructed Pinner to "stand up and keep his hands up" where they could be seen; Tr. at 22, Pinner complied and Officer Palmer saw the butt of a gun in Pinner's front pocket. Officer Palmer secured the weapon and detained Pinner for further investigation.

Pinner was arrested and charged with class A misdemeanor carrying a handgun without a license enhanced to a level 5 felony due to a prior felony conviction. He filed a motion to suppress, contending the search and seizure were conducted in violation of both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Following a hearing, the trial court denied the motion concluding the officers had reasonable suspicion to approach and question Pinner. App. at 45 (Order on Def.'s Mot. to Suppress Evid. at 3) ("The knowledge and facts known to this officer at the time of the stop was sufficiently particularized and objective to infer possible criminal activity or that criminal activity ‘may be afoot ’. Court finds the initial detention amounted to reasonable suspicion and therefore was reasonable."). Pinner filed a Petition to Certify the Order for Interlocutory Appeal, which the trial court granted. The Court of Appeals accepted jurisdiction and, in a divided opinion, reversed the judgment of the trial court, concluding "no reasonable suspicion justified the investigatory stop...." Pinner v. State , 59 N.E.3d 275, 276 (Ind. Ct. App. 2016). The State petitioned for transfer which this Court previously granted. Additional facts are set forth below.

Standard of Review

We review a trial court's denial of the Defendant's motion to suppress based upon a standard similar to that employed for other sufficiency of evidence issues. Litchfield v. State , 824 N.E.2d 356, 358 (Ind. 2005). Although "[w]e do not reweigh the evidence" and we generally "consider conflicting evidence most favorably to the trial court's ruling," id. , the Court will consider "uncontradicted evidence to the contrary, to decide whether the evidence is sufficient to support the ruling." Holder v. State , 847 N.E.2d 930, 935 (Ind. 2006). Further, when an appellant's challenge to such a ruling is premised on a claimed constitutional violation, we review the issue de novo because it raises a question of law. Guilmette v. State , 14 N.E.3d 38, 40-41 (Ind. 2014).

Discussion

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons ... against unreasonable search and seizures."¹ Generally, to be reasonable, a search must be conducted pursuant to a properly-issued warrant supported by probable cause. Membres v. State , 889 N.E.2d 265, 275 (Ind. 2008). However, police may—without a warrant—stop an individual for investigatory purposes if, based upon specific, articulable facts, the officer has reasonable suspicion that criminal activity "may be afoot." Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here Pinner contends the officers lacked reasonable suspicion that he was committing or was about to commit a crime to justify the investigatory stop. Specifically, he alleges the tip from the cab driver did not provide the officers with information sufficient to demonstrate he was engaged in or about to engage in criminal activity.

The State first responds that Pinner's initial encounter with the officers "did not implicate the Fourth Amendment because it was a consensual encounter." Br. of Appellee at 11. It is, of course, true that "[c]onsensual encounters in which a citizen voluntarily interacts with an officer do not compel Fourth Amendment analysis." Clark v. State , 994 N.E.2d 252, 261 (Ind. 2013). Indeed, "[a]s long as the person to whom questions are put remains free to disregard the questions and walk away," the encounter remains consensual. United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

At the time the officers approached, Pinner was seated alone on a bench with a wall behind him. Both officers were in full uniform and stood in front of him—one flanked on either side. Although nervous, Pinner made no furtive or suspicious movements, nor did he reach for the weapon; and he made no attempt to flee. The officers introduced themselves, immediately stated that they were searching for a man with a handgun, and asked whether Pinner was in possession of such a weapon. When Pinner answered negatively, Officer Palmer directed him to "stand up" and "keep his hands up high."² Tr. at 20, 21.

Assuming for the sake of argument that on these facts Pinner was "free to disregard the questions and walk away," Mendenhall , at 554, 100 S.Ct. 1870, the encounter quickly shifted from a supposed consensual encounter to an investigative stop. See Clark , 994 N.E.2d at 263 (finding the encounter between police and defendant moved from a consensual encounter to a seizure when the officer "required the men to sit on the ground so he could respond more quickly to their movements—once he employed his authority to control and restrict their freedom to depart—the encounter moved past what would be considered ‘consensual’ "). And such a stop is permissible if, based upon specific, articulable facts, the officer has reasonable suspicion that criminal activity "may be afoot." Terry , 392 U.S. at 30, 88 S.Ct. 1868.

At the time the officers ordered Pinner to stand, the information from the tip provided to them was as follows: (1) "[a] black male wearing a blue jacket[,]" Tr. at 7 ; (2) with a "black female with blonde hair[,]" Tr. at 7 ; (3) "dropped a handgun[,]" Tr. at 5 ; and "the taxi driver [felt] he was going to be robbed, he was afraid." Tr. at 5. We observe that "[e]ven a reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.’ " Navarette v. California , 572 U.S. ––––, ––––, 134 S.Ct. 1683, 1690, 188 L.Ed.2d 680 (2014) (emphasis added) (quoting Terry , 392 U.S. at 30, 88 S.Ct. 1868 ). Assuming without deciding the tip from the taxicab driver was reliable, the threshold question is whether the mere allegation that Pinner possessed a handgun—without more—is sufficient to establish that Pinner "[wa]s, or [wa]s about to be, engaged in criminal activity." Clark , 994 N.E.2d at 264 (citation omitted). And the criminal activity advanced by the State in this case is that "Defendant was carrying a handgun for which he had no license ... or that some other criminal activity was afoot." Br. of Appellee at 18 (quotation omitted).

Recognizing the Second Amendment right to bear arms,³ all states permit the exercise of this constitutional right under certain prescribed circumstances. Some jurisdictions have found that where an individual is reported as having visibly displayed a firearm in public contrary to state law, the requirement that the police have reasonable suspicion of criminal activity is satisfied.⁴ But in instances where, as in this jurisdiction, possession of a weapon is not per se illegal, states are...