W.H v. State Of Ind., 49A02-0912-JV-1166.

• Decision Date: 17 June 2010
• Docket Number: No. 49A02-0912-JV-1166.,49A02-0912-JV-1166.
• Citation: 928 N.E.2d 288
• Parties: W.H., Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

928 N.E.2d 288

W.H., Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0912-JV-1166.

Court of Appeals of Indiana.

June 17, 2010.

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Joel M. Schumm, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

W.H. appeals his juvenile delinquency adjudication for Class A misdemeanor carrying a handgun without a license. W.H. was standing on a street corner during an outdoor summer convention. He lifted his shirt and showed something in his waistband to a person nearby. Uniformed police officers approached W.H. and asked him to come with them. The officers ultimately searched W.H. and discovered a handgun in his pants pocket. At his delinquency fact-finding hearing, W.H. moved to suppress the State's evidence as the product of an unconstitutional search and seizure. The juvenile court denied the motion. We find that W.H.'s detention was supported by reasonable suspicion and did not offend his federal constitutional rights. We also hold that the stop did not violate W.H.'s state constitutional protections, as the level of suspicion and extent of law enforcement needs outweighed the degree of intrusion. We conclude that the State's evidence was properly admitted and affirm the judgment of the juvenile court.

Facts and Procedural History

On July 18, 2009, members of the Indianapolis Metropolitan Police Department were on duty at the Indiana Black Expo. The Black Expo is a summer celebration which takes place in downtown Indianapolis. Police officers called “spotters” were positioned inside buildings to observe crowds from above. Officers Rick Jones and Brycen Garner were outside, standing at the intersection of Maryland Street and Capitol Avenue. They were in full police uniform.

One of the spotters radioed that a subject was on the corner, “making hand [ ] movements towards his waist,” “lifting up his shirt,” and “showing something from his waistband to another person.” Tr. p. 4, 17. The subject was a black male wearing a white shirt with red stripes and black jeans or shorts.

Officers Jones and Garner received the transmission and headed into the crowd. There were fifty to one hundred people in the vicinity. Officer Jones suspected that the subject was carrying a firearm. He was concerned for his own safety and the safety of those around him. The officers walked toward a suspect who matched the radioed description. The suspect was later identified as fifteen-year-old W.H.

Officer Garner approached W.H. and told him to “come with me.” Id. at 30. Officer Garner would testify that W.H. “was not free to leave” and “was being detained” based on the radio report. Id. at 36. W.H. looked at Officer Jones and took a couple steps toward him, “following the other officer's direction.” Id. at 8. W.H. then turned away and placed his left hand inside his left front pants pocket. Officer Jones grabbed W.H. by his left elbow and wrist. W.H. “began to have happy feet” and tried to resist id. at 21, at which time Officer Jones took hold of W.H.'s other arm. The officers brought W.H. toward a police car parked roughly ten feet away.

Officer Garner asked W.H. if he had any weapons on him. W.H. said he did not. Officer Garner noticed a bulge on W.H.'s right side underneath his shirt. He lifted W.H.'s shirt and discovered a handgun sticking out of his pocket. Officer Garner grabbed the firearm and alerted other officers. The gun was a loaded .9 millimeter semi-automatic pistol for which W.H. did not have a license. The officers cuffed W.H. and took him into custody.

The State charged W.H. with, among other things, Class A misdemeanor carrying a handgun without a license, Ind.Code § 35-47-2-1, and Class A misdemeanor dangerous possession of a firearm id. § 35-47-10-5.

The State called Officers Jones and Garner to testify at W.H.'s delinquency fact-finding hearing. The State also offered W.H.'s handgun into evidence.

W.H. moved to suppress the State's evidence as the product of an unconstitutional search and seizure. The parties argued the motion throughout the fact-finding hearing. W.H. directed the juvenile court's attention to Stalling v. State, 713 N.E.2d 922 (Ind.Ct.App.1999), to support his contention that the search was unlawful. In Stalling, police stopped and searched the defendant on the street after seeing him “move as if to place something into the waistband of his pants near the belt buckle.” Id. at 923. A panel of this Court found the stop was not supported by reasonable suspicion and was therefore unconstitutional. Id. at 925. The juvenile court discussed the facts of Stalling but concluded they were “different than what we have here.” Tr. p. 20. The court denied W.H.'s suppression motion and admitted the State's evidence over objection.

The court merged the weapons charges and entered a true finding on Class A misdemeanor carrying a handgun without a license.

After the juvenile court entered its findings, W.H.'s father sought permission to address the court. W.H.'s father was concerned about the propriety of the police officers' conduct. The following colloquy ensued:

[FATHER]: I was reading the motion myself and a part of what I read and what I heard the officer say, that the description that they gave of my son. I mean it could've been several people down there to fit the description. Did anybody else fit the description like that?

THE COURT: ... [L]et me ask you this, did your son have a gun on that day?

[FATHER]: Did my son have a gun on that day?

THE COURT: Yeah.

[FATHER]: I have no idea. I have absolutely no idea.

THE COURT: The officer plant it?

[FATHER]: No sir.

THE COURT: Okay.

[FATHER]: Do I believe my son had a gun on him? Yes, sir, I absolutely do.

THE COURT: Okay. Let me ask you this ...

[FATHER]: I absolutely do.

THE COURT: From one parent to another. It would seem to me that would be the primary concern. Lesser what the police ... Lesser what the police did. As a parent.

[FATHER]: Yes, sir.

THE COURT: I mean, as a lawyer, obviously more concerned about the rights.

[FATHER]: Right.

THE COURT: But as a parent, why is your son down at Black Expo with a loaded gun?

[FATHER]: Your Honor, I am truly, truly concerned about it. That's my number 1 concern.

THE COURT: Really?

[FATHER]: That my son ... That my son ... The officer arrested my son and took the gun from my son ...

THE COURT: Yeah.

[FATHER]: ... Before my son could've got himself in some serious trouble.

THE COURT: Yeah.

[FATHER]: That is my concern. But my concern also is ...

THE COURT: If your son would've done something stupid, this officer would've killed him.

[FATHER]: Yes, sir.

THE COURT: We would've been having a totally different conversation.

[FATHER]: Yes, sir.

THE COURT: ... I'll talk with [defense counsel] about rights and constitutional obligations and so. I can't have that conversation with you .... You know, I'm just not there as a, as a father and as a parent, I can't have that conversation with you when [your] child's out at expo with a loaded gun.

[FATHER]: Yes, Your Honor, I understand. This is not the conversation that I really (inaudible) I just used that to, to approach you with the conversation ...

THE COURT: Yeah.

[FATHER]: Here I am ... I'm concerned about the law. And I know if they had been at a (inaudible) concert and they had seen a bunch of people, white guys on the corner, it would've been a totally different situation.

THE COURT: Apples and oranges. Because we're not there. You know, we're talking about Black Expo and your son. I can't ... I don't know what went on during Brickyard. I don't know what went on during Indy 500 or when the Grand Prix, I don't know about that. All I know is on this day, your son was downtown with a loaded gun. And put himself at risk and everybody else.

[FATHER]: I agree.

THE COURT: Cause if these officers had been, had been inexperienced officers and were jumpy, how many stories have you read about young black males not making it ... Not making it alive when they get into police custody? Come on now. Come on dad, real talk.

[FATHER]: Okay, listen to me.... How many blacks do you know have been accused of things they didn't do, they end up going to jail for something they didn't do, just because the officer decided you know ...

THE COURT: Did your son have a gun?

[FATHER]: I'm so embarrassed.

THE COURT: ... That's a totally different conversation.

[FATHER]: He had a gun. Your Honor, my son had a gun.

THE COURT: ... Lets not talk about false accusations cause this is ... This is not a situation about false accusations. Your son in fact had a gun.

[FATHER]: Yes, sir.

THE COURT: Now we can ... We can agree to disagree about what police ... Whether or not police observed the constitutional law and so forth. We can ... That's not, you know, we can discuss that. Your son had a gun.

[FATHER]: Yes, sir. No doubt about it.

THE COURT: Okay. So it's not about false accusation. It's not ... I mean this isn't the Scottsboro[ ] trials....

Id. at 43-46.

W.H. now appeals.

Discussion and Decision

W.H. raises three issues which we reorder and restate as follows: (1) whether, in light of the juvenile court's statements to W.H.'s father, we should remand the case so that the juvenile court can articulate or clarify the basis of its ruling on the suppression motion, (2) whether the police officers' search and seizure violated W.H.'s rights under the Fourteenth Amendment to the United States Constitution, and (3) whether the search and seizure violated his rights under Article 1, Section 11 of the Indiana Constitution.

I. The Juvenile Court's Comments to W.H.'s Father

W.H. argues that “the juvenile court offered no explanation for the constitutional basis of its [suppression] ruling but instead chastised Respondent's father at length for his son having a gun.” Appellant's Br. 10. W.H. requests that we remand the case so that the juvenile court can “explain...