Amari D. Lyons v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jul 25 2019, 10:11 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael C. Borschel Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Amari D. Lyons, July 25, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-254 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff Judge The Honorable Anne Flannelly, Magistrate Trial Court Cause No. 49G04-1709-F5-37350

Altice, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-254 | July 25, 2019 Page 1 of 9

Case Summary [1] Amari D. Lyons appeals his conviction for carrying a handgun without a

license, a Level 5 felony. Lyons contends that the trial court committed

reversible error by admitting evidence obtained during a warrantless search.

We affirm.

Facts and Procedural History [2] On the evening of September 27, 2017, Indianapolis Metropolitan Police

Department (IMPD) officers responded to a report of an attempted robbery

with a firearm at an apartment complex. IMPD Officers Mollie

Johannigsmeier and John Dicicco arrived at about the same time in their

marked police vehicles. Zane Dickson, the 911 caller, had been involved in a

meetup for sale of goods to another individual arranged on the website OfferUp

when the attempted robbery occurred. Dickson ran up to the officers and

frantically told them that a black male had pointed a rifle at him in the parking

lot. According to Dickson, the suspect then fled toward the apartment building.

Dickson directed the officers to speak with Lyons, a possible witness, who was

in the parking lot. [3] Lyons informed Officer Johannigsmeier that he had seen someone running

away from the apartment building but had no further information. After

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speaking briefly with Lyons, the officers moved Dickson to the apartment

leasing office to calm him down and question him further. While moving

Dickson, the officers noticed Lyons driving a silver Chevy Impala towards the

complex exit. As Lyons drove off, Dickson told Officer Johannigsmeier that

after the attempted robbery, the suspect had tried to enter the silver Impala. [4] Five minutes later, Lyons returned to the parking lot in the silver Impala.

When Lyons got out of his car, Officer Dicicco approached and said he needed

to speak with him. Officer Johanningsmeier joined Officer Dicicco and asked

Lyons for additional information about the robbery. Lyons told Officer

Johanningsmeier that he knew the suspect’s name, that the suspect often spent

time in the area, and that the suspect had run off immediately after the

attempted robbery. [5] While Officer Johanningsmeier spoke with Lyons, Officer Dicicco shined a

flashlight through the windows of the Impala and saw a handgun on the driver-

side floorboard as well as a loaded magazine in the cupholder. He alerted

Officer Johanningsmeier, who placed Lyons in handcuffs. A pat-down revealed

an empty firearm holster on Lyons’s hip and a tactical light for a handgun in his

pocket. Reading the serial number of the firearm through the passenger

window, officers ran checks on both the gun and Lyons and found that he did

not have a valid handgun license and that he had a previous conviction for

carrying a handgun without a license. IMPD Officers Nicholas Rainbolt and

Christopher Dian, who had arrived to assist, retrieved the weapon and searched

Lyons’s car. The handgun was a loaded Glock 19 pistol with a 30-round

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magazine. The officers also found a rifle magazine in the glove box, a 15-round

magazine in one of the cupholders, and a mask in the trunk. [6] Lyons was charged with carrying a handgun without a license, a Class A

misdemeanor, and carrying a handgun without a license while having a prior

conviction for the same offense, a Level 5 Felony. Following a bifurcated trial,

Lyons was convicted of the Level 5 Felony and sentenced to four years in

Marion County Community Corrections’ work release program.

Discussion and Decision [7] On appeal, Lyons argues that the trial court abused its discretion and

committed reversible error by admitting evidence in violation of the Fourth

Amendment of the United States Constitution and Article 1, Section 11 of the

Indiana Constitution. Specifically, he contends the trial court erred in

admitting the handgun discovered in the vehicle in violation of his rights

against unreasonable searches and seizures.

Standard of Review [8] Lyons’s appeal comes after the completion of his trial; therefore, it is properly

viewed as an admission of evidence issue rather than an appeal of the denial of

his motion to suppress. Our review here is based on a standard similar to that

used in other sufficiency of evidence issues. Litchfield v. State, 824 N.E.2d 356,

358 (Ind. 2005). We will not reweigh the evidence and “we will consider the

evidence favorable to the trial court’s ruling, as well as substantial

uncontradicted evidence to the contrary, to decide whether the evidence is

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sufficient to support the ruling.” Holder v. State, 847 N.E.2d 930, 935 (2006).

We will 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.”

Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).

Fourth Amendment Analysis [9] The Fourth Amendment to the United States Constitution protects individuals

against unreasonable searches and seizures by government agents. “A search

without a warrant requires the State to prove an exception to the warrant

requirement applicable at the time of the search.” Holder, 847 N.E.2d at 935. [10] Not all encounters between police and individuals implicate Fourth

Amendment protections. “Consensual encounters in which a citizen

voluntarily interacts with an officer do not compel Fourth Amendment

analysis.” Clark v. State, 994 N.E.2d 252, 261 (Ind. 2013). A stop remains at the

consensual level based on whether a reasonable person would have felt they

were free to leave. State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App. 2008).

Factors to be considered in determining whether a reasonable person felt free to

leave include “(1) the threatening presence of several officers, (2) the display of

a weapon by an officer, (3) the physical touching of the person, or (4) the use of

language or tone of voice indicating that compliance with the officers request

might be compelled.” Id. [11] Nonconsensual encounters typically fall into one of two categories, brief

investigative stops and full arrests. Id. With respect to the former, the Supreme

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Court has held that a police officer can briefly detain an individual for

investigative purposes if the officer has reasonable suspicion that criminal

activity is afoot. Terry v. Ohio, 392 U.S. 1 (1968). A full arrest, in which the

individual is detained for longer than a short time, requires probable cause. Id. [12] Lyons argues that his second interaction with police constituted a

nonconsensual encounter. We disagree with Lyons as to the nature of the

encounter at that point. That is, during this second encounter, police sought

further information from Lyons after Dickson informed them that the suspect

had tried to enter the silver Impala that Lyons was seen driving. The

conversation prior to the discovery of the handgun pertained to Lyons’s status

as a potential witness. Nothing about the nature of the second encounter differs

from Lyons’s first conversation, which he agrees was consensual. The number

of police present did not increase, nor did the police display their weapons,

physically touch him, or restrain his movement. Officer Dicicco said that he

needed to speak with Lyons, but gave no reasonable indication that Lyons was

under any form of detention, only that he wanted to ask more questions about

what Lyons may have seen. [13] Only after Officer Dicicco spotted a firearm in open view 1 in the car Lyons had

been driving did the encounter evolve into a Terry stop. Considering Dickson’s

1 The “open view” principle applies when “a police officer sees contraband from an area that is not constitutionally protected” in an area that is protected, such as a home or a vehicle. Sayre v. State, 471 N.E.2d 708, 712 (Ind. Ct. App. 1984). For a police officer to lawfully seize contraband in open view, either a search warrant or a justifiable exception to warrantless seizure is required. Id.

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account that the suspect was armed and had tried to enter the Impala, Officers

Dicicco and Johanningsmeier then acted on reasonable suspicion that Lyons

may have been involved in the attempted robbery. The officers’ brief detention

of Lyons while they searched his person and ran a check on the firearm was

acceptable under Terry as part of their investigation. [14] The subsequent search of the vehicle and seizure of the handgun fell within the

automobile exception. “If a car is readily mobile and probable cause exists to

believe it contains contraband, the Fourth Amendment thus permits police to

search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938, 940

(1996). With regards to the “readily mobile” component, the Indiana Supreme

Court has held “a vehicle that is temporarily in police control or otherwise

confined is generally considered to be readily mobile and subject to the

automobile exception to the warrant requirement if probable cause is present.”

Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005). Police did not seize the

handgun until it was determined that Lyons did not have a license for it and

that he had a prior conviction for illegally possessing a firearm, thereby giving

them the requisite probable cause. As such, the seizure of the firearm from

inside the vehicle did not violate Lyons’s Fourth Amendment rights.

Article 1 Section 11 Analysis [15] Although Article 1, Section 11 of the Indiana Constitution contains identical

language to the Fourth Amendment, we interpret the language independently

and separately. Litchfield, 824 N.E.2d at 359. Our interpretation is based on an

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assessment of the reasonableness of the actions of the police officer when the

totality of the circumstances are considered. Id. Reasonableness is determined

by balancing: “1) the degree of concern, suspicion, or knowledge that a

violation has occurred, 2) the degree of intrusion the method of the search or

seizure imposes on the citizen’s ordinary activities, and 3) the extent of law

enforcement needs.” Id. Indiana courts have held that the Fourth Amendment

automobile exception applies during an Article 1, Section 11 analysis. Myers v.

State, 839 N.E.2d 1146, 1154 (Ind. 2005). [16] Regarding the Litchfield factors, the police on the scene had a high degree of

concern and suspicion that an armed robbery had occurred and they had been

told by Dickson that the suspect had attempted to enter Lyons’s vehicle.

Lyons’s interaction with police was minimally intrusive up until the handgun

was discovered, when he was handcuffed and briefly detained as a suspect. The

seizure of the handgun from Lyons’s car falls within the established automobile

exception. The totality of the circumstances shows that the actions taken by

police were based on the pressing need to investigate an attempted armed

robbery and recover the potential weapon or weapons used in the crime, which

outweighed the intrusion into Lyons’s activities. Therefore, the seizure of the

handgun from the vehicle did not violate Lyons’s rights under Article 1, Section

11 of the Indiana Constitution.

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Conclusion [17] The warrantless search of Lyons’s vehicle did not violate the search and seizure

provisions of either the Fourth Amendment or Article 1, Section 11 of the

Indiana Constitution. The trial court did not abuse its discretion in admitting

the handgun into evidence.

Judgment affirmed.

Kirsch, J. and Vaidik C.J., concur.

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