Opinion
Court of Appeals Case No. 20A-CR-2202
09-30-2021
Jimmy Earl HENDRICKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Theodore J. Minch, Sovich Minch, LLP, Indianapolis, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Carole G. Templeton, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Theodore J. Minch, Sovich Minch, LLP, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Carole G. Templeton, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Bradford, Chief Judge.
Case Summary
[1] On June 11, 2020, Officer Jared Scudder of the Shelbyville Police Department was parked in a parking lot finishing a report on his computer when he noticed two men at a nearby gas station who appeared to be arguing and potentially about to fight. Without activating his emergency lights or sirens, Officer Scudder pulled his vehicle up to the two men, got out of the vehicle, and asked the men how they were doing. At some point in the conversation, before any search or pat-downs, one of the men, who would later be identified as Jimmy Hendricks, turned away from Officer Scudder and began reaching around near his waistband. Officer Scudder drew his firearm, pointed it at Hendricks, and ordered him to show his hands. Hendricks did not comply, turned his head around to look at Officer Scudder, and then fled. As Hendricks fled, Officer Scudder noticed a firearm in his hands. Eventually, Officer Scudder and other officers who had arrived at the scene caught up with Hendricks, and placed him under arrest. During a subsequent search, officers recovered the firearm, methamphetamine in various packages, a digital scale, and ammunition from the area where Hendricks ran and Hendricks's person. Before trial, Hendricks filed a motion to suppress, alleging that the officers had violated his Fourth Amendment and Article 1, Section 11 rights, which was denied. At the conclusion of evidence, Hendricks moved for a directed verdict and renewed his motion to suppress. The trial court denied his motions, and a jury found Hendricks guilty of dealing methamphetamine, carrying a handgun without a license, unlawful possession of a syringe, and resisting law enforcement. Hendricks subsequently admitted to being a habitual offender. The trial court sentenced Hendricks to a twenty-four-year term in the Department of Correction ("DOC") and two years suspended to probation. Hendricks appeals, arguing that the evidence gathered subsequent to Officer Scudder's stop should have been suppressed because his federal and Indiana constitutional rights were violated by an unlawful detention, search, and seizure. He also argues that his sentence is inappropriate. Because we do not believe that Officer Scudder's stop, search, and seizure was unlawful or that Hendricks's sentence is inappropriate, we affirm.
Facts and Procedural History
[2] On June 11, 2020, Officer Scudder was parked in a parking lot finishing a report on his computer when he noticed two persons at a nearby gas station. Officer Scudder thought that the two persons were about to fight, as they appeared to be arguing, were making animated arm movements, and one of the men appeared to be yelling as he was walking backwards while facing the other man. Without activating his emergency lights or sirens, Officer Scudder pulled his vehicle up to the two men, got out of the vehicle, and asked the men how they were doing. Officer Scudder recognized one of the two men as Kenneth Ehrenberg, and the other was later identified to be Hendricks. When Officer Scudder asked the men for identification, Ehrenberg responded that he did not have his identification with him but would provide his information to Officer Scudder, while Hendricks repeatedly asked Officer Scudder why he had stopped the two of them. While Officer Scudder was taking Ehrenberg's information, Hendricks turned his back to Officer Scudder and reached his right hand near his waistband, where Officer Scudder could not see it. After observing Hendricks's "elbow moving like he was digging for something," Officer Scudder worried that Hendricks might be reaching for a weapon, drew his firearm and ordered Hendricks to show his hands. Tr. Vol. II p. 219. Hendricks looked over his shoulder at Officer Scudder and then started running. As Hendricks ran, Officer Scudder observed a gun in Hendricks's right hand. Officer Hendricks pursued Hendricks on foot, yelling "Stop! Police" to Hendricks multiple times. Tr. Vol. II p. 220
[3] Eventually, after being pursued some ways by Officer Scudder, Hendricks doubled back, but tripped as his pants fell down. Hendricks was then ordered to lay on his stomach and taken into custody by Officer Adam Buckley, who had arrived on the scene. Hendricks informed Officer Buckley that he had a syringe in his pocket, but in fact the syringe had fallen out of his pocket onto the sidewalk while he was running. Officer Scudder eventually arrived, handcuffed Hendricks, and found two plastic bags containing methamphetamine, one of which contained ten paper bindles of methamphetamine, in Hendricks's pockets. Officers also recovered a handgun with a full magazine and a bullet in its chamber, an extra magazine, and Hendricks's backpack, which contained a digital scale and additional ammunition.
[4] After being advised of his Miranda rights, Hendricks admitted to police that he sold drugs in "approximately 15 surrounding counties," that he sold between a quarter pound and a pound of methamphetamine daily, and that he sold an ounce of heroin daily. Tr. Vol. III p. 129. Hendricks also told officers that he had purchased a handgun for his own protection after being shot during a previous drug deal.
Miranda v. Arizona , 384 U.S. 436 (1966).
[5] Hendricks was charged with Level 3 felony dealing in methamphetamine, Level 5 felony carrying a handgun without a license with a prior conviction for carrying without a license, Level 5 felony possession of methamphetamine, Level 6 felony unlawful possession of a syringe, Class A misdemeanor carrying a handgun without a license, Class A misdemeanor possession of a look-a-like substance, and Class A misdemeanor resisting law enforcement. Before trial, Hendricks filed a motion to suppress, alleging that the officers had violated his Fourth Amendment and Article 1, Section 11, rights. In making this argument, Hendricks requested that the court consider the reason for Officer Scudder's initial stop.
[6] At the September 21, 2020 trial, Hendricks did not object to the admission of any evidence, told the trial court that he had no objection to the admission of the handgun or methamphetamine found on his person, and did not object to the admission of testimony concerning his statements to the police. Despite indicating that he had no objection to the admission of the above-described evidence, at the conclusion of the parties’ presentation of evidence, Hendricks moved for a directed verdict and renewed his motion to suppress. That same day, the trial court denied his request for a directed verdict and renewed motion to suppress, and Hendricks was found guilty of dealing methamphetamine, carrying a handgun without a license, unlawful possession of a syringe, resisting law enforcement. Hendricks also admitted to being a habitual offender. On November 12, 2020, Hendricks was sentenced to fourteen years of incarceration for dealing in methamphetamine, one year for carrying a handgun without a license, two years for unlawful possession of a syringe, and one year for resisting law enforcement. The trial court ordered that the sentences would be served concurrently, enhanced the term by ten years due to Hendricks's status as a habitual offender, and suspended two years to probation.
Discussion and Decision
I. Unlawful Search and Seizure
[7] The State claims that, because Hendricks did not preserve his constitutional claims that the evidence against him was obtained in violation of the federal and Indiana constitutions by objecting at trial, and that he has waived all review of his constitutional claims on appeal except for fundamental error. However, Hendricks does not argue that the trial court committed fundamental error. Fundamental error allows for "an exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal." Kelly v. State , 122 N.E.3d 803, 805 (Ind. 2019). "The ‘fundamental error’ exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Matthews v. State , 849 N.E.2d 578, 587 (Ind. 2006) (quoting Boesch v. State , 778 N.E.2d 1276, 1279 (Ind. 2002) ). However, "parties may not raise an issue, such as fundamental error, for the first time in a reply brief." Curtis v. State , 948 N.E.2d 1143, 1148 (Ind. 2011). Regardless of Hendricks's waiver of the fundamental error exception and his constitutional claims, we will review his claims on the merits.
A. Fourth Amendment
[8] The Fourth Amendment to the United States Constitution protects an individual's privacy and possessory interests by prohibiting unreasonable searches and seizures. Howard v. State , 862 N.E.2d 1208, 1210 (Ind. Ct. App. 2007).
Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. Halsema v. State , 823 N.E.2d 668, 676 (Ind. 2005). When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. Malone [v. State ], 882 N.E.2d [784,] [ ] 786 [(Ind. Ct. App. 2008)]. One such exception is that a police officer may briefly detain a person for investigatory purposes without a warrant or probable cause if, based upon specific and articulable facts together with rational inferences from those facts, the official intrusion is reasonably warranted, and the officer has reasonable suspicion that criminal activity "may be afoot." Moultry v. State , 808 N.E.2d 168, 170–71 (Ind. Ct. App. 2004) (citing Terry v. Ohio , 392 U.S. 1, 21–22, 88 [...] (1968)).
Washington v. State , 922 N.E.2d 109, 111–12 (Ind. Ct. App. 2010). "Reasonable suspicion requires more than mere hunches or unparticularized suspicions." Potter v. State , 912 N.E.2d 905, 907 (Ind. Ct. App. 2009). When determining whether an officer had reasonable suspicion, we must consider "the totality of the circumstances—the whole picture—must be taken into account." U.S. v. Cortez , 449 U.S. 411, 417 (1981). "Where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe criminal activity has occurred or is about to occur[,]" reasonable suspicion exists. Moultry , 808 N.E.2d at 171.
[9] Hendricks argues that the Officer Scudder unlawfully detained him without reasonable suspicion, violating his constitutional rights, and therefore invalidating evidence collected subsequent to the stop. We are unconvinced. An officer need not observe a crime being committed to create reasonable suspicion that one has occurred or is about to occur, that suspicion need only be sufficient "considering the totality of the circumstances." J.D. v. State , 902 N.E.2d 293, 296 (Ind. Ct. App. 2009) (providing that where, though an officer may not have seen a minor drinking beer, the officer had reasonable suspicion after observing a minor sitting so near to empty and partially empty containers of alcohol and marijuana). Officer Scudder observed Hendricks and Ehrenberg moving their arms animatedly, shouting at each other energetically, and walking in such a way that he believed "[i]t looked like they were arguing and possibly going to fight." Tr. Vol. II. p. 214. Believing this, Officer Scudder had more than a hunch that a fight was about to occur, and thus a reasonable suspicion that criminal activity was about to occur. See Moultry , 808 N.E.2d at 171 (stating that an officer may conduct a stop if there is a reasonable suspicion that a crime is about to occur). Because Officer Scudder had reasonable suspicion, the trial court did not commit error, let alone fundamental error, in admitting evidence stemming from Officer Scudder's stop.
B. Indiana Constitution Article 1, Section 11
[10] The Indiana Supreme Court has noted that Article 1, Section 11, of the Indiana Constitution provides certain protections against unreasonable search and seizure:
This section is identical in text to the Fourth Amendment but Indiana has developed a distinct approach to search and seizure. "Instead of focusing on the defendant's reasonable expectation of privacy, we focus on the actions of the police officer," and employ a totality-of-the-circumstances test to evaluate the reasonableness of the officer's actions. Trimble [v. State ], 842 N.E.2d [798,] [ ] 803 (Ind. 2006). Reasonableness is assessed by balancing: "1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs." Litchfield v. State , 824 N.E.2d 356, 361 (Ind. 2005).
Duran v. State , 930 N.E.2d 10, 17–18 (Ind. 2010). Although the text closely follows the Fourth Amendment, we interpret the language of the Indiana Constitution separately and independently. Robinson v. State , 5 N.E.3d 362, 368 (Ind. 2014).
[11] We do not believe that the trial court abused its discretion in concluding that the stop was justified under the requirements of Litchfield . First, we consider the degree of concern, suspicion, or knowledge that a violation has occurred. Officer Scudder had a high degree of suspicion based on his observations that Hendricks and Ehrenberg were moving their arms animatedly, shouting at each other energetically, and one of them walked backwards, shouting at the other, leading him to believe that "[i]t looked like they were arguing and possibly going to fight." Tr. Vol. II. p. 214.
[12] Second "we consider the degree of intrusion from the defendant's point of view. Carpenter v. State , 18 N.E.3d 998, 1002 (Ind. 2014). "[W]hen examining the degree of intrusion into the citizen's ordinary activities, we consider the intrusion into both the citizen's physical movements and the citizen's privacy." Hardin v. State, 148 N.E.3d 932, 944 (Ind. 2020).
[B]y focusing on the degree of intrusion caused by the method of the search or seizure, we're saying that how officers conduct a search or seizure matters. For example, we have found a high degree of intrusion when officers executed a search warrant using a battering ram, flash-bang grenade, and SWAT team as well as when officers conducted a warrantless strip search of a misdemeanor arrestee as a matter of course. [ Watkins v. State , 85 N.E.3d 597, 601–02 (Ind. 2017) ] (search warrant); [ Garcia v. State , 47 N.E.3d 1196, 1201–02 ] (citing Edwards v. State , 759 N.E.2d 626, 629 (Ind. 2001) ) (strip search). In examining the way that officers conduct a search or seizure, we continue to consider the totality of the circumstances and look at "all of the attendant circumstances"—not a single aspect of the search or seizure in isolation. Garcia , 47 N.E.3d at 1202.
Id. at 945 (emphasis in original). The State concedes that the degree of intrusion in this case was high and we agree. However, it is clear to us that what began as a low-intrusion stop, in which Officer Scudder was simply asking Hendricks and Ehrenberg what they were doing and for their information, escalated solely due to Hendricks's behavior. While the level of intrusion escalated when Officer Scudder intruded on Hendricks's autonomy by pointing a gun at him, this only occurred after Hendricks made furtive movements, which Officer Scudder correctly determined to be Hendricks reaching for a weapon.
[13] Third, we look to the needs of law enforcement. "It is because of concerns among citizens about safety, security, and protection that some intrusions upon privacy are tolerated, so long as they are reasonably aimed toward those concerns." Carpenter v. State , 18 N.E.3d 998, 1002 (Ind. 2014) (citing Holder v. State , 847 N.E.2d 930, 941 (Ind. 2006) ). Here, what started out as a relatively low-need situation, in which Officer Scudder stopped two men who were arguing to ask questions, get some information, and prevent a fight, escalated to a firearm being pointed at Hendricks. Though, as we stated above, this degree of intrusion may have been high, law-enforcement needs necessitated such an escalation. Everything that followed Hendricks's furtive movements was justified by a law-enforcement need to secure a potentially dangerous individual. Again, we do not believe that any error, let alone a fundamental error, occurred at trial violating Hendrick's Article 1, Section 11 rights.
II. Indiana Appellate Rule 7(B)
[14] Hendricks also contends that his sentence is inappropriate. Indiana Appellate Rule 7(B) provides that "[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." In reviewing such claims, "[t]he principal role ... should be to leaven the outliers, ... but not to achieve a perceived correct result in each case." Cardwell v. State, 895 N.E.2d 1219, 1125 (Ind 2008). Ultimately, we "do not look to see whether the defendant's sentence is appropriate or if another sentence might be more appropriate; rather, the test is whether the sentence is inappropriate." Barker v. State , 994 N.E.2d 306, 315 (Ind. Ct. App. 2013) (internal quotations omitted). The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[15] Hendricks does not argue that the nature of his offenses warrant a reduction in his sentence. Hendricks admitted that he sold significant amounts of methamphetamine and heroin and that he purchased a firearm because he had already been shot during a drug deal. Hendricks also reached for a firearm during an interaction with a police officer and fled from police. We believe his crimes to be serious, and Hendricks does not argue otherwise.
[16] Hendricks argues, specifically, that
the trial court's sentence was inappropriate given the fact that Appellant is clearly an addict and in extraordinarily poor health at the time of sentencing, and, in light of Shelby County Probation's recommendation, after investigating the Case and Appellant's background, was five (5) years lower than the trial court's ultimate sentence[.]
Appellant's Br. p. 15. We disagree. "When considering the character of the offender, one relevant fact is the defendant's criminal history." Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The trial court found Hendricks's criminal history and juvenile delinquency to be an aggravating factor which outweighed any mitigators, and Hendricks makes no counter argument regarding his criminal history. Hendricks has also been given the opportunity to participate in probation and community corrections previously but violated the terms of those conditional release programs five of the six times that he was given the chance.
Hendricks had seven juvenile referrals resulting in five adjudications and his adult record includes twenty-one total arrests resulting in eight felony and seven misdemeanor convictions. Hendricks has also been placed on adult probation three times, which was revoked twice, and has been on supervised work release and home detention three times and violated the terms of all those supervisions. (Appellant's App. Vol. II. p. 190)
[17] Further, Hendricks's history of addiction does not support a sentence revision. While Hendricks may be addicted to drugs, he has failed to avail himself of opportunities for substance-abuse treatment that have been offered to him. See Moyer v. State , 83 N.E.3d 136, 143-44 (Ind. Ct. App. 2017) (noting that a failure to take advantage of substance-abuse treatment does not reflect well on a defendant's character). In light of Hendricks's failure to take advantage of substance abuse treatment and his extensive criminal history, Hendricks has failed to convince us that his sentence is inappropriate. See Sanchez, 891 N.E.2d at 176 ("The defendant bears the burden of persuading us that his sentence is inappropriate.").
[18] The judgment of the trial court is affirmed.
Robb, J., and Altice, J., concur.