FOR PUBLICATION
STATE OF INDIANA, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-9906-CR-212
)
RODNEY BELCHER, )
)
Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
The State of Indiana charged Rodney Belcher with one count of carrying a
handgun without a license, a class C felony, and one count of resisting
law enforcement, a class A misdemeanor. Prior to trial, the trial court
granted Belchers motion to suppress evidence relative to a handgun Belcher dropped at
the time of his arrest. The State presents as the sole issue
for review the correctness of that ruling.
We reverse.
The undisputed facts are that the southwest quadrant of the City of
Fort Wayne is a high crime area. At approximately 3 a.m. on
August 8, 1998, the Fort Wayne Police Department (FWPD) and the Allen County
Police Department (ACPD) were conducting a saturation patrol of that quadrant. FWPD
Officer Scott Adam and ACPD Officer Stan Pflueger were patrolling the area in
a marked squad car and Officers Gary Isley and Todd Battershell were patrolling
the area in a different car. There was a public pay telephone
located on a street corner at that location. Officer Battershell, a three-year
FWPD veteran, chose that particular location because drug dealers, prostitutes, and pimps in
the area were known to use that telephone.
At approximately the same time, the officers in the two cars spotted Belcher
walking down the street. Although it was hot and humid, Belcher was
walking with his hands inside the pockets of the nylon jacket that he
was wearing. When Belcher saw the police cruisers, he changed direction and
did not make eye contact with the officers as he continued to walk
away. As Officers Battershell and Isley observed from a distance, Officer Adam
activated his flashing lights and pulled over beside Belcher on the opposite side
of the road.
Officer Adam rolled down his window and asked Belcher, How are you doing?
Can you step over here? Record at 33. Belcher, who
did not remove his hands from his pockets, responded, I didnt do anything.
Id. Officer Adam opened his door and Belcher took off running.
Officer Adam ordered Belcher to stop, but Belcher did not comply.
Officer Adam saw two objects fall from Belchers pockets as he ran.
Officers Battershell and Isley joined in the pursuit. Officers Adam and Isley
apprehended Belcher after a brief chase. Officer Battershell returned to the spot
where he saw the items drop from Belchers pocket. He found a
handgun and an accompanying ammunition magazine lying on the ground. Belcher was
subsequently charged with carrying a handgun without a license and resisting law enforcement.
He submitted a motion to suppress the handgun and the magazine, contending
that they were the fruits of an illegal arrest. The trial court
agreed with Belcher and granted the motion to suppress.
We review a trial courts decision to grant a motion to suppress as
a matter of sufficiency. Wilson v. State, 670 N.E.2d 27 (Ind. Ct.
App. 1996). When conducting such a review, we neither reweigh evidence nor
judge witness credibility. Id. The trial court in this instance granted
the motion to suppress on the basis that the observations made by Officers
Adam, Battershell, Isley, and Pflueger were insufficient to justify an investigatory stop of
Belcher. Record at 18. The trial courts conclusion was erroneous.
In Wilson v. State, 670 N.E.2d 27, this court was confronted with a
factual scenario similar in some important respects to the instant case. In
Wilson, the defendant was standing in a vacant lot located in a high
crime area at 1:00 a.m. Police officers observed as the defendant and
another person exchanged an object. The officers pulled their squad car over
and shined their spotlight on the defendant and the other man. The
two men turned and walked between two nearby houses, where it appeared they
attempted to hide. The police officers got out of their car, advanced
on the men, and shouted, Stop! Police! Id. at 29.
The defendant and the other man fled and the police pursued, once again
ordering the two fleeing suspects to halt. During the chase, one of
the police officers saw the defendant put a balled up piece of brown
paper in his mouth. Police eventually caught up with the defendant.
While the officer conducted a pat down search, the defendant spit out the
object he had placed into his mouth.
The trial court denied the defendants motion to suppress and the defendant appealed.
This courts analysis centered upon the question of whether the police in
that case had conducted a valid Terry stop. In Terry v. Ohio,
392 U.S. 1 (1968), the United States Supreme Court ruled that, without probable
cause or a warrant, the police can briefly detain a person for investigatory
purposes if the officer has a reasonable suspicion of criminal activity. The
Court determined that such a stop need not be based upon probable cause
necessary to effect an arrest under the Fourth Amendment, but must be based
upon specific and articulable facts that give rise to a reasonable suspicion of
criminal activity. Indiana has adopted the Terry rationale for the purpose of
determining the legality of an investigatory stop under Article 1, Section 11 of
the Indiana Constitution. Wilson v. State, 670 N.E.2d 27.
When a defendant challenges the constitutionality of a Terry stop, the argument often
centers upon the question of whether law enforcement officers had a reasonable suspicion
to initiate the stop. Such is a focal point in this case.
The United States Supreme Court has stated that [t]he concept of reasonable
suspicion, like probable cause, is not readily, or even usefully, reduced to a
neat set of legal rules. United States v. Sokolow, 109 S.Ct. 1581,
1585 (1989) (quoting Illinois v. Gates, 103 S.Ct. 2317, 2329 (1983)). Rather,
in evaluating the legality of a Terry stop, we must consider the totality
of the circumstancesthe whole picture. United States v. Cortez, 101 S.Ct. 690,
695 (1981). Therefore, the reasonable-suspicion inquiry is fact-sensitive and thus must be
determined on a case-by-case basis. Lampkins v. State, 682 N.E.2d 1268 (Ind.
1997), modified on rehg on other grounds, 685 N.E.2d 698. Reasonable suspicion
entails at least a minimal level of objective justification for making a stop.
Illinois v. Wardlow, No. 98-1036, 2000 WL 16315 (U.S. January 12, 2000);
Wilson v. State, 670 N.E.2d 27. Law enforcement officers must have more
than an inchoate and unparticularized suspicion or hunch, but need not have the
level of suspicion necessary for probable cause. Lampkins v. State, 682 N.E.2d
1268.
In Wilson, we focused on the defendants flight from the police officers and
how that act impacted the determination of whether police had a reasonable suspicion
to make an investigatory stop. We observed that flight from a police
officer is sufficient to justify an investigatory stop. Further, we held that
there is no seizure if the defendant refuses to yield. The following
excerpt is relevant to the instant case:
It appears then, that whether a defendant flees from police may determine whether
there was reasonable suspicion for a stop. This is so because seizure
of the individual does not occur until the officer, by means of physical
force or show of authority, has in some way restrained the liberty of
a citizen. [Terry , 392 U.S. at 20, n.16.] The United
States Supreme Court has subsequently interpreted that requirement in Terry to mean that
seizure does not occur when the suspect fails to yield. California v.
Hodari D., 499 U.S. [621] at 624-26, 111 S.Ct. at 1550 [1991].
It [seizure] does not remotely apply, however, to the prospect of a policeman
yelling Stop, in the name of the law! at a fleeing form that
continues to flee. Id. Thus, there can be no violation of the
Fourth Amendment until a physical seizure of the person has been accomplished.
Wilson v. State, 670 N.E.2d at 30-31. We went on to note
the irony in the fact that, had the defendant in that case not
fled, it would have enhanced his argument against the presence of reasonable suspicion.
In the instant case, Belcher was observed walking along the street at 3
a.m. in a high crime area (although presence in a high crime area
, standing alone, is insufficient to justify an investigatory stop, it is a
relevant contextual consideration in a Terry analysis, Illinois v. Wardlow, 2000 WL 16315;
Green v. State, 719 N.E.2d 426 (Ind. Ct. App. 1999); reasonable suspicion is
more easily attained at 2:15 a.m. in a high crime area, Wilson v.
State, 670 N.E.2d at 31) near a pay phone frequently used by drug
dealers. Although it was hot and humid, he wore a nylon sweat
jacket. As he walked, he kept his hands in his jacket pockets,
changed direction when he saw a police car (totality of circumstances includes whether,
after becoming aware of police presence, the defendant attempts to avoid police, Wilson
v. State, 670 N.E.2d 27; but see Stalling v. State, 713 N.E.2d 922,
924 (Ind. Ct. App. 1999) (the fact that one turns away from the
police in a high crime neighborhood is not sufficient, individually or collectively, to
establish a reasonable suspicion of criminal activity)) and did not look up at
the officers as they approached. Finally, when Officer Adam asked to speak
with him, Belcher ran away, and did not heed Officer Adams command to
stop. Thus, Belcher fled from police officers before he was seized.
See Wilson v. State, 670 N.E.2d 27.
The United States Supreme Court recently determined that flight is a proper consideration
in a Terry analysis. N]ervous, evasive behavior is a pertinent factor in
determining reasonable suspicion. Headlong flightwherever it occursis the consummate act of evasion:
it is not necessarily indicative of wrongdoing, but it is certainly suggestive of
such. Illinois v. Wardlow, 2000 WL 16315, at *4 (citations omitted).
The Court noted that allowing police and the courts to consider flight as
a factor in determining whether reasonable suspicion existed does not conflict with the
principle that an individual has the right to ignore police and go about
his business if the officer approaches an individual without probable cause. The
Court explained,
[A]ny refusal to cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure. But unprovoked flight is
simply not a mere refusal to cooperate. Flight, by its very nature,
is not going about ones business; in fact, it is just the opposite.
Allowing officers confronted with such flight to stop the fugitive and investigate
further is quite consistent with the individuals right to go about his business
or to stay put and remain silent in the face of police questioning.
Id. at *4 (citations omitted).
None of the aforementioned circumstances, when considered by itself, gave rise to a
reasonable suspicion of criminal activity. See U.S. v. Sokolow, 490 U.S. 1
(1989); Wilson v. State, 670 N.E.2d 27. When viewed in totality, however,
Belchers flight, combined with the other facts, presented the police officers with a
reasonable suspicion of criminal activity. Illinois v. Wardlow, 2000 WL 16315; Wilson
v. State, 670 N.E.2d 27. Therefore, the officers executed a lawful Terry
stop for investigative purposes. However, for purposes of search and seizure law,
the stop did not occur until Belcher was apprehended following a brief chase.
Police need not obtain a warrant in order to lawfully seize abandoned property.
Emerson v. State, 648 N.E.2d 705 (Ind. Ct. App. 1995). The
question of whether property has been abandoned is one of intent. Intent
in such cases can be ascertained from words, acts, and other objective facts.
Id. We will find that an object has been abandoned where
it appears the defendant has relinquished all interest in the property. Id.
Belcher let the gun and the ammunition magazine drop from his pocket onto
the curb of a public street as he ran from the police officers,
and before he was seized. Because he left the gun and the
magazine in a place where he had no expectation of privacy, we find
that Belcher abandoned the items. Id. Therefore, police officers did not
require a warrant in order to retrieve the gun and the magazine from
the street curb.
In summary, we hold that Belcher was not seized within the meaning of
the Fourth Amendment when he fled from Officers Adam and Pflueger. Thus,
the items that fell from his pocket were not subject to the Terry
analysis because they were discarded before the officers initiated the legal Terry stop,
and thus before Belcher was seized. Finally, Belcher abandoned the gun and
the magazine in a place where he had no reasonable expectation of privacy.
Therefore, the police did not require a warrant to seize them.
The trial court erred in granting Belchers motion to suppress.
Judgment reversed.
GARRARD, Sr.J., and DARDEN, J., concur.