ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT D. KING STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CHRISTOPHER L. LaFUSE
Deputy Attorney General
ERVIN CRABTREE, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-0102-CR-96 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION FOR PUBLICATION
Ervin Crabtree appeals the denial of his motion to suppress evidence. He
raises two issues on appeal, which we restate as:
1. Whether a person is subjected to an investigatory stop when an officer shines his flashlight on the suspect and shouts get your hands up, but the suspect does not comply and instead crouches down and throws an object away; and
2. Whether an officer has reasonable suspicion to support an investigatory stop when the officer has been dispatched to investigate a group of people around a loud car stereo but finds a lone suspect hiding behind a car from which no sound is emanating.
We find that Crabtree was subjected to an investigatory stop but that the police had reasonable suspicion to support the stop, See footnote and we accordingly affirm.
Id. at 664 (citations and footnote omitted).
Officer Stouts interaction with Crabtree was not the kind of casual and brief
See footnote involved in
Overstreet. The first words from Officer Stout were his
shout get your hands up, and after Crabtree failed to comply he was
immediately apprehended and handcuffed. Stout, unlike the officer in Overstreet, did not
merely ask Crabtree for identification and inquire whether Crabtree was involved with the
offense that was being investigated.
The Seventh Circuit found in United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) that somewhat similar police behavior was an investigatory stop that must be supported by reasonable suspicion. In Packer, the police responded to an anonymous tip regarding a suspicious vehicle in a bad neighborhood at about one in the morning. The officers parked their cars in front of and behind the defendants car and shined a light into the car. As an officer approached the car, she asked the occupants to put their hands in the air where she could see them. While the officers prudential procedures are of course fully justified by concerns for police safety, a reasonable person in defendants position would not feel that he was free to leave. Id. Similarly, a reasonable person in Crabtrees position would not feel that he was free to leave.
2. Reasonable Suspicion
While Crabtree was subjected to an investigatory stop, Officer Stout had reasonable suspicion to justify the stop. Law enforcement officers may make a brief investigatory stop of a person provided they have a reasonable and articulable suspicion that the person has been, is, or is about to be engaged in breaking the law. See footnote Whether a particular fact situation justifies an investigatory stop is determined on a case-by-case basis. The reasonable suspicion requirement of the Fourth Amendment is satisfied if the facts known to the officer at the moment of the stop are such that a person "of reasonable caution" would believe that the "action taken was appropriate." Lyons v. State, 735 N.E.2d 1179, 1183-84 (Ind. Ct. App. 2000). In other words, the requirement is satisfied where the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Reasonable suspicion entails something more than an inchoate and unparticularized suspicion or hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence. Consideration of the totality of the circumstances necessarily includes a determination of whether the defendant's own actions were suspicious. Id. at 1184.
At the outset, we note that neither presence in a high-crime neighborhood alone, nor an anonymous tip alone that is not confirmed in significant aspects, may constitute reasonable suspicion. Burkett, 736 N.E.2d at 306-07. However, presence in a high-crime area can be considered as a factor in the totality of the circumstances confronting an officer at the time of a stop. Green v. State, 719 N.E.2d 426, 429 (Ind. Ct. App. 1999). Crabtree was seen next to a car with an open door. The car was at a location where there had been a complaint of a loud car stereo. Crabtree appeared to be hiding behind the car. He was crouched down and was straining to look over the car. In addition, it was approximately 4:30 in the morning. The State argues the officer had a reasonable suspicion that Defendant had turned down his car stereo when Defendant observed the other patrol car and was hiding from that patrol car. (Br. of Appellee at 5-6.) In light of the totality of the circumstances, we cannot say the trial court erred to the extent it determined the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity had occurred or was about to occur.
DARDEN, Judge, dissenting
I would respectfully dissent from the portion of the majority's decision with regard to the existence of a reasonable suspicion to justify the investigatory stop. I believe that Officer Stout's equivocal testimony, including his admission of an inability to recall the timing of the sequence of the events, especially the drawing of his weapon to force Crabtree's compliance with his requests, together with his admission that Crabtree's actions were consistent with legal activity, forecloses a determination that the investigatory stop was supported by a reasonable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 19-20 (1968).
As explained in the majority decision, the Terry two-part reasonableness test requires a reviewing court to discern "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. The State failed to present evidence of reasonableness as required by the Terry standard, i.e., that the stop was justified at its inception and was reasonably related to the activity upon which the officer based the intrusion.
"[T]he ultimate determination of reasonable suspicion is reviewed de novo." Burkett v. State, 736 N.E.2d 304, 306 (Ind. Ct. App. 2000). The evidence to support a reasonable suspicion that criminal activity is afoot must rise to "some minimum level of objective justification" for the investigatory stop of a person to be valid. Id. Reasonable suspicion must be based upon more than an officer's "inchoate and unparticularized suspicion or 'hunch.'" Terry, 392 U.S. at 27; see also Webb v. State, 714 N.E.2d 787, 788 (Ind. Ct. App. 1999).
After reviewing the evidence in the record and the evidence relied upon by the State and recited by the majority, I believe the State failed to present any evidence of criminal activity, or the timing of the sequence of the events to justify the stop. In fact, during cross-examination of Officer Stout at the suppression hearing, he admitted that he could not recall the order of the events that occurred. He also agreed that Crabtree's conduct when the first officer drove by was consistent with legal activity, such as tying a shoelace. Ultimately, when Officer Stout was pressed for a characterization of Crabtree's actions before Officer Stout approached him, the following colloquy occurred:
Q. . . . [W]hat suspected illegal activity had he engaged in when you told him to get his hands up?
Q. And then you eventually drew your gun on Mr. Crabtree, is that correct?
Q. And why did you draw your gun on him?
A. He wasn't doing what I was telling him to do.
Q. So, is it your testimony here today that when you approached Mr. Crabtree,
decided to investigate a loud car stereo and his connection to that loud
car stereo, he hadn't done anything wrong other than crouching down
maybe tying his shoes.
Q. But does that well did I misstate that. Is that
A. No that's correct.
The State's evidence at the suppression hearing does not reveal an objective basis to support a reasonable suspicion that criminal activity was afoot. Review of the evidence from the entire suppression hearing reveals that: 1) the police were called to investigate a loud stereo, the playing of which would likely constitute a local ordinance violation; 2) Officer Stout stated that Crabtree's actions were consistent with legal activity; and 3) Officer Stout could not recall the timing of the sequence of the events that occurred, including when he drew his weapon to require Crabtree's compliance with his requests.
From its inception, the stop was invalid. Officer Stout was investigating a possible ordinance violation, not criminal activity, when he saw Crabtree engaging in actions consistent with legal conduct. To say that Crabtree's actions before Officer Stout approached him were consistent with legal activity but also "suspicious" would be incongruent. Officer Stout's testimony belies the State's assertion that Officer Stout had a reasonable suspicion to initiate an investigatory stop of Crabtree.
In light of Officer Stout's testimony, the trial court could not, and we may not, speculate as to whether any of the events that took place after Officer Stout approached Crabtree were of a nature that would supply the necessary reasonable suspicion for the investigatory stop. See Washington v. State, 740 N.E.2d 1241, 1243 (Ind. Ct. App. 2000) (on review of a motion to suppress, we must consider the uncontested evidence most favorable to the defendant); Cuto v. State, 709 N.E.2d 356, 365 (Ind. Ct. App. 1999) (courts on review do not engage in speculation).
Further, the necessary reasonable suspicion must exist prior to the investigatory stop. See Terry, 392 U.S. at 19-20; cf. D.K. v. State, 736 N.E.2d 758, 762 (Ind. Ct. App. 2000) (where officer decided not to cite the defendant after he, inter alia, committed traffic offenses and refused to roll down his window at the officer's request, the State could not rely upon those factors to justify a subsequent Terry-type investigatory stop by a canine sweep based upon reasonable suspicion). Absent unambiguous evidence of the timing of the sequence of events, we should not view the jumble of circumstances which occurred after Officer Stout approached Crabtree and assume that one or more might have occurred prior to Officer Stout drawing his weapon and requiring Crabtree to raise his hands which would have revealed the object he held and then threw.
Without the requisite specific and articulable facts to justify the investigatory stop based upon a reasonable suspicion of criminal activity, we are left with the "inchoate and unparticularized suspicion or 'hunch'" of the police officer. See Terry, 392 U.S. at 27. Thus, to find justification for the investigatory stop under these circumstances, it is apparent that the trial court improperly assumed the timing of the sequence of events.
In addition to Crabtree's actions, the only other basis offered by the State and Officer Stout for ordering Crabtree to raise his hands was officer safety. Officer Stout testified that when he asked Crabtree to raise his hands, he did so for his own safety and without suspicion that Crabtree "had engaged in . . . any illegal activity." (Tr. 26). Officer safety is a factor that may allow an officer to conduct a limited weapons search under Terry once a reasonable suspicion of criminal activity has established a basis for an investigatory stop. Here, we do not have a reasonable basis for an investigatory stop. Standing alone, officer safety cannot form the basis for an objectively reasonable suspicion of criminal activity. Cf. Webb, 714 N.E.2d at 788 (reasonable suspicion not established when defendant who turned away from officer and placed his hands down the front of his pants, was subjected to search for officer safety); see also Camp v. State, 751 N.E.2d 299, 302 (Ind. Ct. App. 2001) (expressing concern that officer routinely conducts "Terry searches" because in his profession he always had reason to believe that people had a weapon).
The need for a Terry-type pat-down search most commonly occurs during traffic stops. See Wilson v. State, 745 N.E.2d 789, 791-93 (Ind. 2001). However, then the justification for the investigatory stop is provided by the traffic violation. The question becomes whether the pat-down or other search is reasonable for officer safety. Id. (expressing concern that officers may not routinely place motorists in their patrol cars as a pretext for conducting pat-down searches for officer safety); but see Lockett v. State, 747 N.E.2d 539, 542-43 (Ind. 2001) (during routine traffic stops, for officer safety reasons officers may inquire whether motorists have a weapon). It would be circular reasoning indeed if an officer without reasonable suspicion to conduct an investigatory stop, nonetheless, could order citizens to raise their hands or allow a pat-down search of their person for the safety of the officer approaching them. See footnote
The motion to suppress should have been granted.