from the Marion Superior Court The Honorable Shatrese
Flowers, Judge; The Honorable Peggy Hart, Commissioner Trial
Court Cause No. 49G20-1503-F5-8548
ATTORNEY FOR APPELLANT Michael R. Fisher Marion County Public
Defender Agency Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of
Indiana Henry A. Flores, Jr. Deputy Attorney General
Thomas Pinner appeals the denial of his motion to suppress.
As no reasonable suspicion justified the investigatory stop,
and Procedural History
February 20, 2015, Indianapolis Metropolitan Police
Department officers Jason Palmer and George Stewart responded
to a call from a cab driver regarding a passenger who dropped
a handgun when exiting the cab at the Studio Movie Grill. The
cab driver described the passenger as "a black male
wearing a blue jacket [accompanied by] a black female with
blonde hair." (App. at 13.) The driver indicated he was
fearful of being robbed. Officer Palmer talked to the cab
driver on the phone before attempting to locate the man. The
driver left the scene before the officers arrived and gave no
indication that a robbery had been attempted.
entering the Studio Movie Grill, the officers saw a
blonde-haired black woman walking away from Pinner, who
matched the driver's description. Pinner was on a bench
by himself inside the lobby of the theatre when the two
officers walked up to him, stood in front of him, told him
there was a report of a man with a gun, and asked if he had a
gun on him. Pinner denied having a gun but was shuffling
nervously and was hesitant to answer. Officer Palmer had
Pinner stand. When Pinner stood up, Officer Palmer could see
the butt of a gun in his front pocket. Officer Palmer secured
the gun for police safety and detained Pinner. He learned
Pinner did not have a license to carry a handgun and placed
him under arrest.
State charged Pinner with Class A misdemeanor carrying a
handgun without a license enhanced to Level 5 felony due to
prior commission of a felony. Pinner filed a motion to suppress
the evidence. The trial court held a hearing and then denied
Pinner's motion. The trial court found, in accordance
with the State's argument at the hearing, that the
officers had reasonable suspicion to approach and question
Pinner. Pinner filed a Petition to Certify an Order for
Interlocutory Appeal, which the trial court granted. We
accepted jurisdiction and now reverse.
standard of review for the denial of a motion to suppress
evidence is similar to that of other sufficiency issues.
Jackson v. State, 785 N.E.2d 615, 618 (Ind.Ct.App.
2003), reh'g denied, trans. denied. We determine
whether there is substantial evidence of probative value to
support denial of the motion. Id. We do not reweigh
the evidence, and we consider conflicting evidence that is
most favorable to the trial court's ruling. Id.
But the review of a denial of a motion to suppress is
different from other sufficiency matters in that we must also
consider uncontested evidence that is favorable to the
defendant. Id. We review de novo a ruling
on the constitutionality of a search or seizure, but we give
deference to a trial court's determination of the facts,
which will not be overturned unless clearly erroneous.
Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).
Fourth Amendment to the United States Constitution requires
law enforcement officials to obtain a valid warrant before
conducting searches or seizures. When police conduct a search
without a warrant, the State has the burden of proving that
the search falls within an exception to the warrant
requirement. Taylor v. State, 842 N.E.2d 327, 330
(Ind. 2006). A police officer may briefly detain a person
without a warrant if, based on articulable facts and
reasonable inferences, the officer believes criminal activity
"may be afoot." Terry v. Ohio, 392 U.S. 1,
interaction between Pinner and the officers was an
investigatory stop for which the officers did not have
reasonable suspicion Pinner had engaged in or was about to
engage in criminal activity. Therefore, the Fourth Amendment
required the gun be suppressed.
Interaction or ...