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COA: Gun evidence lawfully obtained

May 25, 2016

In its third Fourth Amendment case in two weeks, the Indiana Court of Appeals ruled evidence obtained during a stop of a man who was loitering around an apartment complex and then left suspiciously was lawfully seized. The judges affirmed the trial court’s denial of his motion to suppress on interlocutory appeal.

The Villages of Hanna Apartment Complex in Fort Wayne was having trouble with drug activity and violence and asked the Fort Wayne Police Department for help in controlling loitering, which it believed was a big part of its problems. Detective Marc Deshaies observed many people loitering at a building in the complex and sent his partner into the building to see how they would react. Many left right away, including Kelly Mullen.

Deshaies observed Mullen walking quickly along the side of the building and looking back like he was checking to see if anyone was following him. Deshaies caught up to Mullen when Mullen stopped and showed Deshaies his ID. After Deshaies told Mullen he was loitering, which is why he was stopped, Mullen turned his body at an angle to Deshaies and began backing away. Mullen reached into his pocket and it looked to Deshaies like he was going to grab the knife Mullen said he had. Deshaies then detained Mullen with the help of his partner. When the searched him, they found a .45 caliber handgun.

Mullen was charged with possession of a firearm by a serious violent felon, a Level 4 felony, and Class A misdemeanor resisting law enforcement. He filed a motion to suppress the evidence, saying the search of his person violated his Fourth Amendment rights. The motion was denied and Mullen challenged on interlocutory appeal.

Mullen claimed that the stop and interaction between he and Deshaies was not a consensual encounter, but in an opinion written by Judge Terry Crone, the COA said that doesn’t matter because the evidence was enough to justify the stop. He wrote that Deshaies knew there were a lot of problems at the apartment complex with drugs and the apartment complex had asked the police to help with its loitering problem. The behavior of all the men in the building Deshaies was observing looked like suspicious activity, as it appeared some were acting as look outs, and they were loitering where they shouldn’t have been.

When Deshaies stopped Mullen, Mullen’s refusal to answer direct questions and adoption of a fighting stance were enough for Deshaies to become concerned for his safety and detain him as well as search him.

Mullen argued that the stop should not have been conducted because it was on private property, but the COA rejected that argument as well.

The case is Kelly C. Mullen v. State of Indiana,  02A05-1511-CR-1959.
 

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