Crabtree v. State

DARDEN, Judge,

dissenting.

I would respectfully dissent from the portion of the majority's decision with regard to the existence of a reasonable suspicion to justify the investigatory stop. I believe that Officer Stout's equivocal testimony, including his admission of an inability to recall the timing of the sequence of the events, especially the drawing of his weapon to force Crabtree's compliance with his requests, together with his admission that Crabtree's actions were consistent with legal activity, forecloses a determination that the investigatory stop was supported by a reasonable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 19-20 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

As explained in the majority decision, the Terry two-part reasonableness test requires a reviewing court to discern "whether the officer's action was justified at its inception, and whether it was reasonably related in seope to the cireumstances which justified the interference in the first place." Id. The State failed to present evidence of reasonableness as required by the Terry standard, i.e., that the stop was justified at its inception and was reasonably related to the activity upon which the officer based the intrusion.

"[T Ihe ultimate determination of reasonable suspicion is reviewed de novo." Burkett v. State, 736 N.E.2d 304, 306 (Ind.Ct.App.2000). The evidence to support a reasonable suspicion that criminal activity is afoot must rise to "some minimum level of objective justification" for the investigatory stop of a person to be valid. Id. Reasonable suspicion must be based upon more than an officer's "inchoate and un-particularized suspicion or 'hunch"" Terry, 392 U.S. at 27 , 88 S.Ct. 1868 ; see also Webb v. State, 714 N.E.2d 787, 788 (Ind.Ct.App.1999).

After reviewing the evidence in the ree-ord and the evidence relied upon by the State and recited by the majority, I believe the State failed to present any evidence of criminal activity, or the timing of the sequence of the events to justify the stop. In fact, during cross-examination of Officer Stout at the suppression hearing, he admitted that he could not recall the order of the events that occurred. He also agreed that Crabtree's conduct when the first officer drove by was consistent with, legal activity, such as tying a shoelace. Ulti *248 mately, when Officer Stout was pressed for a characterization of Crabtree's actions before Officer Stout approached him, the following colloquy occurred: .

Q. - ... [(Wlhat suspected illegal activity had he engaged in when you told him to get his hands up?,

A. Nothing.

Q. ' And then you eventually drew your gun on Mr. Crabtree, is that correct?

A. Yes.

Q. And why did you draw your gun on him? ~

A. He wasn't doing what I was telling him to do.

Q. So, is it your testimony here today that when you approached Mr. Crabtree, decided to investigate a loud car stereo and his connection to that loud car stereo, he hadn't done anything wrong-other than crouching down-maybe tying his shoes.

A. No.

Q. But does that-well-did I misstate that. Is that your testimony?

A. No-that's correct.

(Tr. 26). 6

The State's evidence at the suppression hearing does not reveal an objective basis to support a reasonable suspicion that criminal activity was afoot. Review of the evidence from the entire suppression hearing reveals that: 1) the police were called to investigate a loud stereo, the playing of which would likely constitute a local ordinance violation; 2) Officer Stout stated that Crabtree's actions were consistent with legal activity; and 8) Officer Stout could not recall the timing of the sequence of the events that occurred, including when he drew his weapon to require Crabtree's compliance with his requests.

From its inception, the stop was invalid. Officer Stout was investigating a possible ordinance violation, not criminal activity, when he saw Crabtree engaging in actions consistent with legal conduct. To say that Crabtree's actions before Officer Stout approached him were consistent with legal activity but also "suspicious" would be in-congruent. Officer Stout's testimony belies the State's assertion that Officer Stout had a reasonable suspicion to initiate an investigatory stop of Crabtree.

In light of Officer Stout's testimony, the trial court, could not, and we may not, speculate as to whether any of the events that took place after Officer Stout approached Crabtree were of a nature that would supply the necessary reasonable suspicion for the investigatory stop. See Washington v. State, 740 N.E.2d 1241, 1243 (Ind.Ct.App.2000) (on review of a motion to suppress, we must consider the uncontested evidence most favorable to the defendant); Cuto v. State, 709 N.E.2d 356, 365 (Ind.Ct.App.1999) (courts on review do not engage in speculation).

Further, the necessary reasonable suspi-clon must exist prior to the investigatory stop. See Terry, 392 U.S. at 19-20 , 88 S.Ct. 1868 ; cf. D.K. v. State, 736 N.E.2d 758, 762 (Ind.Ct.App.2000) (where officer decided not to cite the defendant after he, inter alia, committed traffic offenses and refused to roll down his window at the officer's request, the State could not rely upon those factors to justify a subsequent Terry-type investigatory stop by a canine sweep based upon reasonable suspicion). *249 Absent unambiguous evidence of the timing of the sequence of events, we should not view the jumble of cireumstances which occurred after Officer Stout approached Crabtree and assume that one or more might have occurred prior to Officer Stout drawing his weapon and requiring Crabtree to raise his hands which would have revealed the object he held and then threw.

Without the requisite specific and articu-lable facts to justify the investigatory stop based upon a reasonable suspicion of erim-inal activity, we are left with the "inchoate and unparticularized suspicion or 'hunch'" of the police officer. See Terry, 392 U.S. at 27 , 88 S.Ct. 1868 . Thus, to find justification for the investigatory stop under these cireumstances, it is apparent that the trial court improperly assumed the timing of the sequence of events.

In addition to Crabtree's actions, the only other basis offered by the State and Officer Stout for ordering Crabtree to raise his hands was officer safety. Officer Stout testified that when he asked Crab-tree to raise his hands, he did so for his own safety and without suspicion that Crabtree "had engaged in ... any illegal activity." (Tr. 26). Officer safety is a factor that may allow an officer to conduct a limited weapons search under Terry once a reasonable suspicion of criminal activity has established a basis for an investigatory stop. Here, we do not have a reasonable basis for an investigatory stop. Standing alone, officer safety cannot form the basis for an objectively reasonable suspicion of criminal activity. Cf. Webb, 714 N.E.2d at 788 (reasonable suspicion not established when defendant who turned away from officer and placed his hands down the front of his pants, was subjected to search for officer safety); see also Camp v. State, 751 N.E.2d 299, 302 (Ind.Ct.App.2001) (expressing concern that officer routinely conducts "Terry searches" because in his profession he always had reason to believe that people had a weapon).

The need for a Terry-type pat-down search most commonly occurs during traffic stops. See Wilson v. State, 745 N.E.2d 789, 791-93 (Ind.2001). However, then the justification for the investigatory stop is provided by the traffic violation. The question becomes whether the pat-down or other search is reasonable for officer safety. Id. (expressing concern that officers may not routinely place motorists in their patrol cars as a pretext for conducting pat-down searches for officer safety); but see Lockett v. State, 747 N.E.2d 539, 542-43 (Ind.2001) (during routine traffic stops, for officer safety reasons officers may inquire whether motorists have a weapon). It would be cireular reasoning indeed if an officer without reasonable suspicion to conduct an investigatory stop, nonetheless, could order citizens to raise their hands or allow a pat-down search of their person for the safety of the officer approaching them. 7

The motion to suppress should have been granted.

. On redirect examination, Officer Stout stated that he ordered Crabtree to raise his hands because for his own safety, he "wanted to be able to see that he had nothing in his hands." (Tr. 27). As discussed below, officer safety concerns do not provide a reasonable suspicion under the Terry test.

. In United States v. Burton, 228 F.3d 524, 527-28 (4th Cir.2000), the court determined that an officer may, to the extent any citizen can, seek cooperation from citizens on the street without a reasonable suspicion of criminal activity. However, the citizen encountered without reasonable suspicion is free to ignore a police interrogator. Id. An officer may not conduct a search of a citizen for his safety or that of his fellow officers during a routine police-citizen encounter absent specific articulable facts upon which to base a reasonable suspicion for an investigatory detention. Id.