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Date: 04-14-2019

Case Style:

Tre Ron Smith v. State of Indiana

Case Number: 18A-CR-1633

Judge: L. Mark Bailey

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney: J.T. Whitehead
Tyler G. Banks
Deputy Attorneys General

Defendant's Attorney: Daniel Hageman
Marion County Public Defender Agency

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On November 26, 2017, at approximately 1:15 a.m., Indianapolis Metropolitan
Police Department Officer Kevin Moore (“Officer Moore”) received a “shots
fired” radio run from dispatch indicating that gunshots were fired from a
vehicle “in the area” of Market Street in downtown Indianapolis. Tr. at 6, 14.3
Dispatch had received a report4 from an anonymous caller that gunshots were
fired from a silver or gray Trailblazer in that area. Id. The caller further noted
that the vehicle had damage “all over” it. Id. at 11. When Officer Moore

1 Ind. Code § 35-47-2-1(e). 2 We held oral argument in this case on February 7, 2019, at Seymour High School. We thank the school for its hospitality and counsel for their advocacy. 3 Officer Moore testified that he detained Smith at the corner of Market and Delaware Streets, Tr. at 6, because he had probable cause to believe there was a gun in the vehicle “based on the gray vehicle and the run that came out stating that there was [sic] shots fired in the area…,” id. at 14. 4 At trial, the State did not present a recording or transcript of the 9-1-1 call from the anonymous source.
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 3 of 19

arrived at the corner of Delaware and Market Streets soon thereafter,5 he
observed a vehicle matching the description he had received from dispatch.
Officer Moore and other officers on the scene stopped the vehicle. Smith was
in the driver’s seat of the vehicle and there were two passengers.
[4] Based on the information from the “shots-fired” report, Officer Moore believed
there was a firearm in Smith’s vehicle. Id. at 12. Therefore, Officer Moore and
other officers on the scene approached the vehicle with their guns drawn,
instructed Smith and the passengers to exit the vehicle, and placed them in
handcuffs while they searched the vehicle. Officer Moore saw a handgun on
the driver’s side floor of the vehicle in plain view. After they completed the
search of the vehicle, the police read Smith a Miranda6 warning and asked him if
the gun belonged to him. Smith admitted that the gun was his; however, he did
not have a license for it. The police arrested Smith.
[5] That same day the State charged Smith with carrying a handgun without a
license, as a Class A misdemeanor. At his June 14, 2018, bench trial, Smith
made an oral motion to suppress the handgun found in his vehicle on the
grounds that the search violated his rights under the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the Indiana
Constitution. The trial court denied that motion and overruled Smith’s

5 Officer Moore testified that the “shots-fired run” came out at 1:15 a.m. and there were “quite a few vehicles” and people “on the street” at 1:15 a.m. Tr. at 16-17. 6 Miranda v. Arizona, 384 U.S. 436 (1966).
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 4 of 19

subsequent objection to Officer Moore’s testimony about the search. The trial
court found Smith guilty as charged and sentenced him to 361 days of
probation. This appeal ensued.
Discussion and Decision
Standard of Review
[6] Smith objected to the admission of the evidence in an oral motion to suppress at
the beginning of his bench trial and renewed his objection when the State
offered Officer Moore’s testimony and the handgun evidence. Because Smith
appeals following his conviction and is not appealing the trial court’s order
denying his motion to suppress, the question before us is properly framed as
whether the trial court erred in admitting the evidence. Clark v. State, 994
N.E.2d 252, 259 (Ind. 2013).
In ruling on admissibility following the denial of a motion to suppress, the trial court considers the foundational evidence presented at trial. [Guilmette v. State, 14 N.E.3d 38,] 40 n.1 (Ind. 2014)]. It also considers the evidence from the suppression hearing that is favorable to the defendant only to the extent it is uncontradicted at trial. Id. Because the trial court is best able to weigh the evidence and assess witness credibility, we review its rulings on admissibility for abuse of discretion and reverse only if a ruling is “clearly against the logic and effect of the facts and circumstances and the error affects a party’s substantial rights.” Clark, 994 N.E.2d at 260. But the ultimate determination of the constitutionality of a search or seizure is a question of law that we consider de novo. McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014).
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 5 of 19

Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
[7] Smith raises claims under both the federal and state constitutions. Although the
Fourth Amendment of the United States Constitution and Article 1, Section 11
of the Indiana Constitution contain textually similar language, each must be
separately analyzed. Marshall v. State, No. 18S-CR-00464, slip op. at 5-6 (Ind.
Feb. 27, 2019).
Fourth Amendment
[8] Smith maintains that the police violated his Fourth Amendment rights when
they stopped his vehicle and, therefore, evidence found in the subsequent search
of his vehicle should have been excluded at trial.7 The Fourth Amendment
prohibits warrantless searches and seizures unless the State can prove that an
exception to the warrant requirement existed at the time of the search. See, e.g.,
Marshall, slip op. at 6. However, police may, “without a warrant or probable
cause, briefly detain an individual for investigatory purposes if, based on
specific and articulable facts, the officer has a reasonable suspicion that criminal
activity ‘may be afoot.’” Edmond v. State, 951 N.E.2d 585, 588 (Ind. Ct. App.
2011) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). “We often call these
encounters Terry [s]tops,” Marshall, slip op. at 6, and such a stop must be both

7 Evidence obtained by an unconstitutional search and seizure is inadmissible. Mapp v. Ohio, 367 U.S. 643 (1961). Smith only challenges the constitutionality of the initial stop, not the subsequent search.
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 6 of 19

justified at its inception and reasonably related in scope to the circumstances
which justified it at its inception, Terry, 392 U.S. at 18-19.
Justified at Inception
[9] An anonymous tip alone is seldom sufficient to provide the reasonable
suspicion required to initiate an investigatory Terry stop absent evidence of the
reliability of the tip, such as an accurate prediction of future behavior of the
suspect. Alabama v. White, 496 U.S. 325, 329, 332 (1990). However, the United
States Supreme Court has held that, even where an anonymous tip contained
no prediction of future behavior, there was nevertheless sufficient indicia of
reliability to support a Terry stop where an anonymous caller to an emergency
police number gave eyewitness knowledge of alleged dangerous activity and
accurate information identifying the suspect. Navarette v. California, 572 U.S.
393, 399-400 (2014). In Navarette, the Supreme Court clarified that an
anonymous tip that substantially describes publicly knowable information
about a suspect but does so through a 9-1-1 emergency system—which often
“allow[s] for identifying and tracing callers”—and alleges that the suspect is
“contemporaneous[ly]” engaged in “a specific and dangerous” activity,
provides a sufficient basis for a Terry stop. See also U.S. v. Jeanes, No. 3:16-CR
070 JD, 2016 WL 11281168, *6 (N.D. Ind. Nov. 29, 2016) (citing U.S. v. Drake,
456 F.3d 771, 775 (7th Cir. 2006)) (holding that there was reasonable suspicion
to conduct a Terry stop where an anonymous caller reported witnessing an
immediate threat to public safety—i.e., a person waving a gun around on the
downtown streets—and the caller provided sufficient details to allow the police
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 7 of 19

to identify the suspect); Grayson v. State, 52 N.E.3d 24, 29-30 (Ind. Ct. App.
2016) (noting an immediate response by police was warranted where the
anonymous tipster “reported witnessing criminal conduct risking serious bodily
injury to those in the immediate vicinity”), trans. denied.8
[10] In Navarette, the Court noted that the facts in that case were in contrast to
situations in which an anonymous caller accurately describes a person and
merely alleges criminal activity, without more. 572 U.S. at 399. For example,
in Florida v. J.L., 529 U.S. 266 (2000), an anonymous caller described a person
standing at a bus stop and simply alleged that the person was carrying a gun
without any explanation of how he or she knew the suspect had a gun or any
expression of special familiarity with the suspect’s affairs. In that situation, the
police had no basis for believing “that the tipster ha[d] knowledge of concealed
criminal activity.” Id. at 272; see also Beal v. Beller, 847 F.3d 897, 904 (7th Cir.
2017) (holding that an anonymous tip that accurately described a location and
person still lacked sufficient indicia of reliability where the caller merely
asserted the suspect was selling drugs without alleging witnessing a drug sale or
other further “details that corroborated the criminal aspect of the anonymous
tip”). Sellmer v. State, 842 N.E.2d 358 (Ind. 2006), upon which the dissent
relies, similarly involved a tip with accurate identifying information but only a

8 In Berry v. State, 766 N.E.2d 805, 810 (Ind. Ct. App. 2002), trans. denied, we determined that there were insufficient indicia of reliability of an anonymous tip where the tipster reported witnessing a person waving a gun around in public but did not provide any predictions of the defendant’s future behavior. However, we note that that case was decided before Navarette.
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 8 of 19

bare allegation of criminal activity and no “information that would allow the
police to corroborate the caller’s claim that criminal activity was afoot.” 842
N.E.2d at 362.
[11] The instant case is more like Navarette than J.L. or Sellmer. While the
anonymous caller gave no predictions of Smith’s future behavior to indicate the
reliability of the tip, he or she did provide the following other indicia of
reliability: the call was placed to an emergency number; the caller gave a
specific description of the vehicle’s color and model (a gray Trailblazer); the
caller gave even more specific information that the vehicle had damage “all
over” it, Tr. at 11, thus distinguishing it from other gray Trailblazers that might
have been in the specified location; the caller gave a statement that “gunshots
were coming from that vehicle,” Tr. at 9, thus indicating the caller actually
witnessed the criminal activity; and the caller gave a specific location (the area
of Market Street in downtown Indianapolis) where the vehicle was actually
found (at the corner of Market and Delaware Streets downtown) soon after the
tip was received (1:15 a.m.). The anonymous tip had sufficient indicia of
reliability to provide reasonable suspicion of criminal activity justifying the
Terry stop of Smith’s vehicle at its inception.
Reasonably Related in Scope
[12] Furthermore, the stop of Smith’s vehicle was reasonably related in scope to the
circumstances which justified the stop at its inception. Terry, 392 U.S. at 18-19.
Smith contends that the stop went beyond the permissible scope of the Terry
stop to become an arrest when the police approached him with weapons drawn,
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 9 of 19

ordered him out of the vehicle, and handcuffed him during the search of the
vehicle.
[13] An investigatory Terry stop may be converted to an arrest depending on the
totality of the circumstances. Wilson v. State, 96 N.E.3d 655, 658 (Ind. Ct. App.
2018) (citing Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010)), trans.
denied. However, “[a]s part of a valid Terry stop, the investigating officer is
entitled to take reasonable steps to ensure his own safety, including ordering a
detainee to exit the vehicle.” Reinhart, 930 N.E.2d at 46. Moreover, although
handcuffing a suspect during a search for weapons “should be the rare case[,]”
there are “‘a limited set of circumstances in which handcuffs are appropriate
without converting a Terry stop into a full arrest.’” U.S. v. Vaccaro, No. 18-1753,
915 F.3d 431, 2019 WL 473381, *3 (7th Cir. Feb. 7, 2019) (quoting Howell v.
Smith, 853 F.3d 892, 898 (7th Cir. 2017)). Chief among those reasons is
“‘officer safety and the possibility of the presence of a weapon.’” Id. Thus, in
Vaccaro, for example, given the officers’ concern that Vaccaro might have
armed himself with a weapon when they observed his furtive movements while
he was inside the vehicle, the court held it was reasonable for the police to draw
their guns, order him out of the vehicle, and handcuff him in order to conduct a
pat-down search as part of a Terry stop. Id. at *1, 3; see also Billingsley v. State,
980 N.E.2d 402, 407-08 (Ind. Ct. App. 2012) (holding an officers’ limited use of
a firearm to detain a suspect is pursuant to an investigatory stop, rather than an
arrest, if the totality of the circumstances before the officer at the time
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 10 of 19

demonstrate a “specific and reasonable belief” that the suspect may be armed
with a weapon), trans. denied.
[14] Here, as already noted, the police had reasonable suspicion to believe a person
or persons in the vehicle driven by Smith were shooting guns out of the vehicle
and were, therefore, armed and dangerous. Consequently, the officers’ actions
in drawing their guns, ordering Smith and the passengers out of the vehicle, and
handcuffing them while conducting the search of the vehicle were reasonable
steps the officers took to ensure their safety. Those steps were reasonably
related to the justification for the Terry stop—i.e., to investigate alleged
dangerous, criminal activity involving firearms—and did not convert the Terry
stop into an arrest. Vaccaro, 2019 WL 473381, at *1, 3.
Article 1, Section 11 of the Indiana Constitution
[15] The stop of Smith was also constitutional under Article 1, Section 11 of the
Indiana Constitution. Under a state constitutional analysis, we make
reasonable suspicion determinations “by looking at the totality of the
circumstances of each case to see whether the detaining officer has a
particularized and objective basis for suspecting legal wrongdoing.” State v.
Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011) (citations and quotations omitted).
[16] As under the federal analysis, an anonymous tip is generally insufficient to
provide the reasonable suspicion required to conduct a Terry investigative stop
absent evidence of the reliability of the tip. Id. Such evidence may be in the
form of accurate predictions of future behavior of the suspect, or other
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 11 of 19

“independent indicia of reliability.” Id. at 1148. A tip is “deemed reliable
when an individual provides specific information to police officers such as a
vehicle description” and a specific location and time of day. Id. (quoting Bogetti
v. State, 723 N.E.2d 876, 879 (Ind. Ct. App. 2000)). Thus, in Renzulli our
Supreme Court held that a tip had sufficient independent indicia of reliability to
support a Terry stop—even when the tipster did not provide predictions of
future behavior—where the tipster gave the color and make of the vehicle and
the location where the vehicle was found soon after the tip was given. Id.
Moreover, the Court noted that the circumstances in that case—i.e., a suspected
intoxicated driver—“warranted an immediate response by the police for the
safety of the general public.” Id.; see also Grayson, 52 N.E.3d at 28 (noting
legitimate state concerns in protecting the public from gun violence and the
anonymous tipster’s allegations that the suspect was waving a firearm in public
“warranted an immediate response by law enforcement officers for the safety of
the general public”), trans. denied.
[17] This case is similar to Renzulli. That is, looking at the totality of the
circumstances, it is clear that the anonymous tip had independent indicia of
reliability even though the tipster did not predict future behavior. As noted
above, the anonymous tip gave: a specific description of the vehicle’s color,
model, and unique, damaged condition; a statement indicating the caller
witnessed criminal activity; and a specific location where the vehicle was
actually found soon after the tip was received. Furthermore, the tipster’s
allegation was that the suspect was engaged in criminal behavior (i.e., firing a
Court of Appeals of Indiana | Opinion 18A-CR-1633 | April 10, 2019 Page 12 of 19

gun out of a vehicle) that could place the public in grave danger, thus
warranting an immediate response by law enforcement to ensure public safety.
Renzulli, 958 N.E.2d at 1148; Grayson, 52 N.E.3d at 28. The stop of Smith did
not violate his constitutional rights under Article 1, Section 11 of the Indiana
Constitution.

Outcome: Under both the federal and state constitutions, the police had reasonable
suspicion to conduct a Terry stop of Smith, and they did not exceed the
permissible scope of such a stop. Therefore, the trial court did not err when it
allowed into evidence the firearm found in the search conducted after the Terry
stop.

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

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