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J.J. v. State

Court of Appeals of Indiana

August 24, 2016

J.J., Appellant-Respondent,
State of Indiana, Appellee-Petitioner.

         Appeal from the Marion Superior Court The Honorable Marilyn A. Moores, Judge The Honorable Scott Stowers, Magistrate Trial Court Cause No. 49D09-1511-JD-2154

          Ellen F. Hurley Marion County Public Defender Agency Indianapolis, Indiana ATTORNEY FOR APPELLANT

          Gregory F. Zoeller Attorney General of Indiana, Lyubov Gore Deputy Attorney General Indianapolis, Indiana ATTORNEYS FOR APPELLEE

          Najam, Judge.

         Statement of the Case

         [1] J.J., a minor, appeals the juvenile court's true finding for dangerous possession of a firearm as a Class A misdemeanor if committed by an adult. The only issue he raises on appeal is whether the police had reasonable suspicion to stop and search him. We affirm and remand with instructions.

         Facts and Procedural History

         [2] At approximately 2:00 a.m. on November 27, 2015, Andrew Stoops was working overnight as an asset protection manager at the Macy's store located in Castleton Square Mall in Indianapolis. Stoops was in his office watching security monitors when "a couple" of Macy's employees alerted him that there was "a group of people getting loud" in the men's department. Tr. at 6. Stoops observed the group on his monitors and saw it move to another part of the store. Subsequently, several more Macy's employees called Stoops to alert him that the group was "getting . . . loud ruckus [sic]." Id.

         [3] Stoops went out to the public part of the Macy's store and observed two groups of people loudly yelling obscenities at each other. This led Stoops to believe that a fight might occur, and he became concerned that the two groups might interfere with the safety of other customers. The groups started to shout at Stoops as well as each other. One unidentified individual in one of the groups lifted his shirt, and that action led Stoops to believe the individual had a gun. Stoops called mall security on his cellular phone and reported that there were two groups involved in a disturbance and that there might be a fight. Stoops also "mention[ed]" a gun. Id. at 18, 29.

         [4] Stoops then observed the two groups (one a group of four and the other a group of three) leaving Macy's. He escorted the group of four out of the East entrance and into the Dick's Sporting Goods parking lot. When mall security and the police arrived, Stoops pointed out to a responding officer the group of four located next to Dick's.

         [5] Meanwhile, Officer James Russo with the Marion County Sheriff's Office and Officer Brian Silcox with the Indianapolis Metropolitan Police Department, who were assisting mall security that night due to the busy holiday season, arrived at the mall parking lot. Officer Russo knew from his professional experience that, when there is a disturbance at a mall and the individuals involved disperse, the individuals often get back together and fight. As Officer Russo drove through the parking lot towards Macy's, he observed three individuals walking in the middle of the parking lot and four other individuals walking closer to the entrance of Dick's. Officer Russo also observed Macy's employees by the parking lot pointing to the two groups. Officer Russo and other officers approached the group of four individuals closest to Dick's and stopped them to gather their identifications.

         [6] Officer Silcox also drove up to where the group of four individuals had been stopped, and a Dick's employee approached him and told him that three males had just run around the corner right as the police pulled up. The employee described the three males as one "heavier set male" and two "skinnier males" and stated they were all black. Tr. at 29. Officer Silcox conveyed this information to Officer Russo and then drove in the direction toward which the three males had ran, with Officer Russo following in his own squad car. Officer Silcox saw three males matching the description given by the Dick's employee walking in the parking lot. One of those three males was J.J. There were no other people in that area of the parking lot at that time.

         [7] Officer Silcox stopped his vehicle where the three males were walking, exited his vehicle, and stated "hey guys, we got a call[. . . . I]f you can keep your hands where I can see them[?] We got a call saying there's some kind of disturbance[/]fight at Macy's and they said that there was a weapon involved. Do you have any weapons on you?" Id. at 31. As Officer Russo drove up and exited his vehicle to join Officer Silcox, one of the males other than J.J. responded that he did have a weapon. Upon hearing confirmation that one of the males had a gun, both officers became concerned for their safety and the safety of other responding officers.

         [8] Officer Silcox then patted down the male who said he had a gun and found two guns on him. That person then informed Officer Silcox that he had a permit for the guns. Meanwhile, Officer Russo informed J.J. that he was going to pat him down for safety, and he proceeded to do so. Officer Russo patted down J.J.'s front waistband and found a loaded nine millimeter handgun.

         [9] On November 28, 2015, the State filed, and the juvenile court approved, a delinquency petition alleging that J.J. had committed dangerous possession of a firearm and carrying a handgun without a license, both as Class A misdemeanors if committed by an adult. Before his December 16, 2015, fact-finding hearing, J.J. filed an oral motion to suppress evidence found during the pat-down of his person on the grounds that the officers lacked reasonable suspicion for their initial encounter with him. The juvenile court denied that motion. Evidence introduced on the motion to suppress was incorporated into the record, and J.J. raised a continuing objection during the fact-finding hearing to the testimony and evidence resulting from the search and seizure of him. The juvenile court denied the objection. At the conclusion of the fact-finding hearing, the juvenile court entered a true finding as to Count I, dangerous possession of a firearm. As to Count ...

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