Fabian Lavell Bennett v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Nov 03 2014, 10:03 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KAREN M. HEARD GREGORY F. ZOELLER
Vanderburgh County Public Defender Attorney General of Indiana
Evansville, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FABIAN LAVELL BENNETT, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1403-CR-150
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
INTERLOCUTORY APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable David D. Kiely, Judge
The Honorable Kelli E. Fink, Magistrate
Cause No. 82C01-1308-FC-891
November 3, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
On the night of August 13, 2013, Evansville Police Officer William Shirley was
following a car in which the Defendant-Appellant Fabian Bennett was a passenger. Before
Officer Shirley could initiate a traffic stop, the car pulled into the parking lot of a business
that had closed for the night. Bennett exited the vehicle and began walking toward the back
of the building. Officer Shirley followed the car into the parking lot, exited his vehicle and
asked Bennett to stop and talk to him. Bennett ignored Officer Shirley’s requests and fled
behind the building. Officer Shirley found Bennett crouched next to an air conditioning unit,
arrested him, and subsequently found a firearm nearby, which Bennett admitted was his.
While Bennett was being booked at the police station, officers found a small amount of
marijuana in Bennett’s pocket.
Plaintiff-Appellee the State of Indiana (the “State”) charged Bennett with Class C
felony convicted felon carrying a handgun without a license, Class A misdemeanor
possession of marijuana, and with being a habitual offender. Bennett filed a motion to
suppress all evidence discovered and statements made subsequent to his arrest. Bennett
argues that Officer Shirley did not have reasonable suspicion to effectuate a stop, and thus
the arrest was a violation of Bennett’s Fourth Amendment rights and that the evidence found
incident to that arrest is inadmissible as ‘fruit of the poisonous tree.’ Finding that Officer
Shirley did have reasonable suspicion to justify the stop, we affirm the trial court’s denial of
Bennett’s motion to suppress evidence, albeit on different grounds.
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FACTS AND PROCEDURAL HISTORY
On August 13, 2013, Evansville Police Officer William Shirley was patrolling the
1000 block of Covert Avenue. (Tr. 5) In the two weeks prior, there had been six to eight
calls to police reporting shots fired in the area. (Tr. 6) Two other officers, Thiry and
DeYoung, were parked on the same block, watching the house at 1067 Covert Avenue for
suspicious activity. (Tr. 8) The officers had previously conducted a ‘knock and talk’1 at the
house after receiving a report of several individuals on the porch carrying guns. (Tr. 22)
Officers Thiry and DeYoung witnessed Bennett entering the house. (Tr. 23)
Sometime later, a female left the house in a car in which Bennett was a passenger. (Tr. 8, 17)
Officer Shirley began following the car, at which point he noticed that the license plate light
was out. (Tr. 8, 18) Officer Shirley planned to initiate a traffic stop for this reason and
called Officers Thiry and DeYoung for backup. (Tr. 8-9) Before Officer Shirley could
initiate the stop, the car pulled into a Burger King drive-through. (Tr. 9) Officer Shirley
parked on a nearby street and waited for the car to leave. (Tr. 9) Upon receiving the food,
the car pulled directly to an adjacent parking lot of a Rent One-Auto Zone, a business which
was closed at the time. (Tr. 9-10) As Officer Shirley was driving toward the Auto Zone
parking lot, Bennett exited the car and began to walk in the opposite direction from Officer
Shirley. (Tr. 10, 19) After Officer Shirley parked and exited his vehicle, he asked Bennett to
come back and speak with him. (Tr. 11) Bennett mumbled that he was “going to check on
1
An investigative technique where one or more police officers approaches a private residence, knocks
on the door, asks occupants about a criminal complaint(s), and requests consent from the owner to search the
residence. Hayes v. State, 794 N.E.2d 492, 496 (Ind. Ct. App. 2003)
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the guys back there” while continuing to walk away from Officer Shirley. Tr. p. 11
Upon reaching the corner of the building, Bennett darted behind the building, at which
point Officer Shirley ran after him. (Tr. 12) Officer Shirley found Bennett crouched next to
an air conditioning unit behind the building and took him into custody. (Tr. 13) Soon after,
Officer Thiry found a firearm near the air conditioning unit. (Tr. 13) After reading Bennett
his Miranda2 rights, Bennett admitted to Officer Shirley that he knew he could not have a gun
and that he would be going away for a while. (Tr. 15) While Bennett was being processed at
the police station, Officer Shirley found a clear plastic baggie containing marijuana in
Bennett’s pocket. (App. 42)
The State charged Bennett with Class C felony convicted felon carrying a handgun
without a license, Class A misdemeanor possession of marijuana, and with being a habitual
offender. (App. 9, 11) Bennett filed a motion to suppress all evidence discovered and all
statements made subsequent to his arrest. (App. 12-14) Following a hearing, the trial court
denied the motion, finding that no seizure occurred until Bennett was found behind the
building and, by that time, Officer Shirley had reasonable suspicion to investigate Bennett for
criminal trespass. (App. 40-41) Bennett brings this interlocutory appeal challenging the trial
court’s denial of his motion to suppress as to the handgun and marijuana.3 (Appellant’s Br.
3)
DISCUSSION AND DECISION
2
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Our standard of review for the denial of a motion to suppress evidence is similar to
other sufficiency issues. Davis v. State, 858 N.E.2d 168, 171 (Ind. Ct. App. 2006) (citing
Gonser v. State, 843 N.E.2d 947, 949 (Ind. Ct. App. 2006). We will not reweigh the
evidence, and will consider conflicting evidence in the light most favorable to the trial
court’s ruling. Davis, 858 N.E.2d at 171. “On appellate review, we will affirm the trial
court’s ruling on a motion to suppress if it is sustainable on any legal theory supported by the
record, even if the trial court did not use that theory.” Id.
A. The Firearm
Bennett argues that Officer Shirley lacked the articulable reasonable suspicion
necessary to effectuate a valid stop under the Fourth Amendment to the United States
Constitution. Therefore, he argues, the gun seized subsequent to the arrest should be
suppressed. However, the legitimacy of the stop is irrelevant to this inquiry because Bennett
abandoned the gun prior to the arrest.
Abandoned property is not subject to Fourth Amendment protection and is subject to
lawful seizure without a warrant. Wilson v. State, 825 N.E.2d 49, 51 (Ind. Ct. App. 2005);
Gooch v. State, 834 N.E.2d 1052, 1053-54 (Ind. Ct. App. 2005). For Fourth Amendment
purposes, an individual is not “seized” by police until he is stopped through physical force or
submits to the assertion of authority by police. California v. Hodari D., 499 U.S. 621 (1991);
Wilson, 825 N.E.2d at 51. This court and the United States Supreme Court have concluded
3
In this appeal, Bennett does not argue that his statements made to officers subsequent to his arrest
should have been suppressed. Nevertheless, those statements would be admissible for the same reasons
outlined in Section II of this memorandum decision.
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that evidence which a suspect drops prior to being “seized” by police is abandoned, whether
or not the subsequent seizure is lawful. Wilson, 825 N.E.2d at 52; Gooch, 834 N.E.2d at
1054; Hodari D., 499 U.S. 621.
The facts in Wilson are as follows:
[T]wo police officers were patrolling an Indianapolis neighborhood. One of
the officers saw Wilson, who was on a bicycle, leaning inside a red vehicle.
The vehicle was located in a high drug trafficking area. Suspecting that
Wilson was attempting to sell drugs, the officers circled around to speak with
Wilson. As the officers approached the intersection from behind, the driver of
the vehicle drove away. After seeing the officers approaching, Wilson also left
the intersection. The officers exited their vehicle and ordered Wilson to stop.
Wilson continued to ride away and dropped a black bag under a parked car.
The officers again ordered Wilson to stop, and when he refused, the officers
removed him from the bicycle and placed him in handcuffs. One of the
officers recovered the bag, which contained cocaine. After being charged with
possession of cocaine, Wilson moved to suppress the evidence, which the trial
court subsequently denied. Wilson was then found guilty of the charged
offense.
Gooch, 834 N.E.2d at 1054 (citing Wilson, 825 N.E.2d at 50). In affirming the conviction,
we observed that “[w]hen Wilson threw the black cloth bag to the ground, the items were
subject to lawful seizure by the police. Wilson had not been “seized” at the time he dropped
the black cloth bag; therefore, the bag containing cocaine was not the product of a seizure
and was properly admitted into evidence over Wilson’s Fourth Amendment objection.”
Wilson, 825 N.E.2d at 52. We reached the same conclusion in Gooch, 834 N.E.2d at 1054-55
(Gooch, after being commanded to stop by police, tossed a bag of cocaine under a parked
vehicle, and was immediately arrested thereafter. “Gooch had not been ‘seized’ at the time
he tossed the bag of cocaine, so the drugs were not the product of an illegal seizure.”); See
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also Hodari, 499 U.S. 621 (Hodari dropped crack cocaine as he fled a police officer.
Although the officer did not have reasonable suspicion to justify stopping Hodari, the court
found that the seizure did not occur until Hodari was tackled by the officer, and so the
abandoned crack cocaine was admissible.).
In the instant case, Bennett abandoned his firearm prior to being seized by Officer
Shirley. Bennett was not seized until Officer Shirley found him near the air conditioning unit
and placed him in handcuffs. Bennett then admitted that he “tried to ditch the gun.” Tr. p.
15. Because the gun was found by Officer Thiry after it had been abandoned, it was subject
to lawful seizure without a warrant and not discovered incident to the arrest. Wilson, 825
N.E.2d at 51; Gooch, 834 N.E.2d at 1053-54. Hence, the firearm was properly admitted into
evidence, and the trial court properly denied Bennett’s motion to suppress it.
B. The Marijuana
Bennett also argues that the marijuana found during process was found as a result of
an unlawful arrest and should be suppressed. Specifically, Bennett contends that Officer
Shirley had no reasonable suspicion that Bennett was engaged in criminal activity when he
asked Bennett to stop and talk to him, and therefore, Bennett had the right to ignore that
request and walk away.
The Fourth Amendment to the United States Constitution provides that the right of the
people to be secure in their persons against unreasonable search and seizure shall not be
violated. U.S. Const. amend. IV. At a minimum, the government’s seizure of a citizen must
rest on specific, articulable facts that lead an officer to reasonably suspect that criminal
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activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968).
In Gaddie v. State, the Indiana Supreme Court held that a law enforcement officer’s
order to stop must be based on reasonable suspicion or probable cause of criminal activity.
10 N.E.3d 1249, 1256 (Ind. 2014). The Court found that Gaddie had the right to walk away
from an officer and ignore the officer’s request that he stop because the officer had no
reasonable suspicion that he was engaged in criminal activity. Id. In Murdock v. State, the
Indiana Supreme Court clarified the bounds of its decision in Gaddie, finding that an officer
had reasonable suspicion to stop Murdock due to his attempted flight:
In this case, the defendant ran when the officer appeared, engaged in furtive
and evasive activity in a high-crime area, was uncooperative, and matched the
description of the suspect. [Illinois v. Wardlow, 528 U.S. 119, 124-125, 120 S.
Ct. 673, 676, 145 L. Ed. 2d 570, 576-77 (2000)] (concluding that a suspect’s
unprovoked flight upon noticing the police in an area known to have a high
incidence of drug trafficking supported a finding of reasonable suspicion).
10 N.E.3d 1265, 1268 (Ind. 2014). The Court in Murdock went on to distinguish the facts
from Gaddie:
In contrast, the police officer in Gaddie responded to a disturbance report.
When the officer arrived, a number of people were standing in the front area of
a private residence, but the defendant was walking away from the scene,
towards the backyard, and continued walking away after the officer’s order to
stop. The officer in Gaddie testified that he had not seen the defendant or
anyone else commit a crime prior to ordering the defendant to stop. While a
refusal to cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure, “nervous, evasive
behavior is a pertinent factor in determining reasonable suspicion.”
Gaddie, 10 N.E.3d at 1256 (quoting Illinois v. Wardlow, 528 U.S. 119, 124,
120 S. Ct. 673, 676, 145 L. Ed. 2d 570, 576 (2000)); see State v. Atkins, 834
N.E.2d 1028, 1033-34 (Ind. Ct. App. 2005) (holding that the investigatory stop
lacked reasonable suspicion that criminal activity was afoot but adding that
“[t]his case might have been different if [the defendant] had fled, engaged in
furtive activity, and was uncooperative, or if [the officer] had a description of
8
the suspect that was corroborated upon seeing [the defendant].”).
10 N.E.3d at 1267 (emphasis added); see also Wilson v. State, 670 N.E.2d 27, 31 (Ind. Ct.
App. 1996) (“It appears then, that whether a defendant flees from police may determine
whether there was reasonable suspicion for a stop.”)
In State v. Belcher, this court was confronted with a factual scenario similar to the
instant case. 725 N.E.2d 92 (Ind. Ct. App. 2000). In Belcher, officers were patrolling a
high-crime area at night when they observed Belcher walking down the street. Id. at 93.
Belcher changed direction upon seeing the officers’ car, at which point the officers pulled up
to Belcher and asked him to come over to the car. Id. Belcher responded that he “didn’t do
anything” and then took off running when the officers began exiting their car. Id. Before
being apprehended by the officers, Belcher threw a handgun and magazine from his pockets
while fleeing. Id. Although we found that the firearm was abandoned, and so not subject to
Fourth Amendment protections, we also addressed whether the officers had reasonable
suspicion of criminal activity necessary to initiate the investigatory Terry stop. Id. at 95.
We concluded that none of the circumstances of the stop, when considered alone, would have
given rise to reasonable suspicion, however, “[w]hen viewed in totality, [] Belcher’s flight,
combined with the other facts, presented the police officers with a reasonable suspicion of
criminal activity.” Id. The facts supporting this determination were the high-crime area, late
hour of the night, Belcher was wearing a nylon jacket with his hands in his pockets despite
the heat and humidity, Belcher turned in the opposite direction upon seeing police, and
Belcher’s attempted flight. Id.
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As in Belcher, the totality of circumstances of the instant case were sufficient to create
reasonable suspicion. Although Bennett is correct in his assertion that he had the right to
walk away, the evidence shows that Bennett was walking only until he reached the corner of
the Rent One building, at which point he “took off” and “darted” behind the building which
“caused [Officer Shirley] to run to try to catch up.” Tr. pp. 12-13. As in Murdock and
Belcher, Bennett engaged in furtive and evasive activity (fleeing and hiding), was
uncooperative (ignored Officer Shirley’s request to stop), and had come from a house where
there was believed to be a significant amount of criminal activity. Specifically, the house
Bennett had left was the subject of six to eight “shots fired” reports in the prior two weeks
and there were bullet holes in the side of the house. Additionally, Bennett was walking in a
parking lot which was marked with “no trespass” signs at a time when the business was
closed. Bennett’s refusal to cooperate, in addition to the other indicia of criminal activity
were sufficient to create reasonable suspicion necessary to justify a stop. Accordingly, the
marijuana found on Bennett as a result of the stop was properly admitted into evidence.
The judgment of the trial court is affirmed.
BARNES, J., and BROWN, J., concur
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