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Felon firearm possession charge affirmed on appeal

May 20, 2016

An Indianapolis man convicted of possession of a firearm by a serious violent felon failed to persuade the Indiana Court of Appeals that the search that led to discovery of the gun wasn’t supported by reasonable suspicion.

Derek Scisney was found guilty in a bench trial of the Level 4 felony and two misdemeanor counts of resisting law enforcement. He was sentenced to four years executed in the Department of Correction.

Scisney, who is black, was walking with another man, who is white, in a high-crime neighborhood in Indianapolis. The white man wore a blue shirt, matching the description from a 911 caller who reported a suspect had fired shots one block away.

When police arrived, they immediately conducted a pat-down search of the white man, and no gun was found. Officers saw Scisney touch his waistline, and they asked if he had any weapons on him. Scisney did not respond and began to walk away, according to the record. At that point, police conducted a pat-down search that led to discovery of a firearm.

Scisney moved to suppress the search evidence, arguing police lacked reasonable suspicion for the search and that his encounter with police was not consensual.

“Considering the totality of these circumstances, we agree with the trial court," Judge Paul Mathias wrote for the panel in Derek Scisney v. State of Indiana, 49A02-1504-CR-227. Mathias wrote that when a policeman asked to talk to Scisney, the officer "reasonably believed that Scisney had participated in criminal activity and that he was armed and possibly dangerous to the officers.

“Because the officer was justifiably concerned for officer and public safety, the pat down search was constitutionally permissible.”

Oral arguments in the case were heard April 22 at Indiana Tech Law School in Fort Wayne.

 



 

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