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COA splits over reversing possession conviction

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A divided Court of Appeals upheld a man’s possession of marijuana conviction that stemmed from a 911 call. Dissenting Judge James Kirsch doesn’t believe that the providing of a name by a 911 caller removes this case from the category of an anonymous caller, thus the call doesn’t give police enough evidence to stop the car the defendant was in.

Officer Nicholas Lichtsinn responded to a 911 call that Phillip Billingsley was armed at a VFW post in Fort Wayne. The caller, who identified herself as Renita Brown, said Billingsley was the same person who “held her hostage” previously and that he was in a tan or brown Dodge Durango.

Lichtsinn knew the VFW to be a dangerous area, knew Billingsley, knew Billingsley to be a convicted felon, and knew Billingsley had a history of dangerous acquaintances when he responded to the call.

Lichtsinn found Billingsley in the passenger side of a Chevy Trailblazer that matched the color description. He called for backup, drew his gun and ordered Billingsley to put his hands on the roof of the SUV. After other officers arrived, Lichtsinn holstered his gun, patted Billingsley down and found marijuana on the seat where Billingsley sat.

He was charged and convicted of Class D felony possession of marijuana. The trial court denied Billingsley’s motion to suppress.

Judges Edward Najam and Melissa May upheld the conviction, finding the original detainment of Billingsley to be an investigatory stop. Litchtsinn’s use of his firearm was limited and he only had it drawn until backup arrived, Najam wrote.

They also rejected Billingsley’s claim that Brown’s 911 call was akin to an anonymous tip because the state and defense counsel couldn’t locate her.

“Moreover, Brown was not an anonymous caller but a concerned citizen. In her 9-1-1 call, she claimed both to have been a recent victim of Billingsley’s criminal activity and to be witnessing his ongoing criminal activity,” Najam wrote in Phillip T. Billingsley v. State of Indiana, 02A05-1204-CR-216.

Kirsch pointed out in his dissent that nothing known to Lichtsinn, nor provided to the court, allows the court to determine the accuracy or inaccuracy of the information provided by the caller. The only information that Brown accurately provided was that Billingsley was in the passenger seat of an SUV in the parking lot of the VFW and the color of that vehicle.

“I also do not believe that the information known to the investigating officer was sufficient to satisfy the standards established by our Supreme Court and the Supreme Court of the United States for investigatory stops,” he wrote.

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  1. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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