By a 2-1 vote, the Indiana Court of Appeals reversed the denial of an Indianapolis man’s motion to suppress a handgun found on him after officers questioned him in a lobby of a movie theater. The majority ruled the officers had no reasonable suspicion to justify the investigatory stop.
Indianapolis police officers Jason Palmer and George Stewart responded to a call from a cab driver who said a passenger dropped a handgun when exiting the cab at Studio Movie Grill. He indicated he was fearful of being robbed, but the driver left the scene before officers arrived. The driver gave a description of a black male wearing a blue jacket who was with a black female with blonde hair.
The officers saw a woman matching that description walk away from Thomas Pinner, who matched the male’s description. The officers approached Pinner, who was alone on a bench in the lobby, told him there was a report of a man with a gun and asked if he had a gun on him. Pinner denied having one, but was hesitant to answer. When officers asked him to stand, Palmer saw a butt of a gun in his front pocket. Pinner was arrested when Palmer discovered he didn’t have a license to carry.
The Class A misdemeanor carrying a handgun without a license charge was elevated to a Level 5 felony due to a prior commission of a felony. Pinner filed a motion to suppress, and the trial court denied it, finding the officers had reasonable suspicion to approach and question Pinner.
On interlocutory appeal, the Court of Appeals reversed. The majority found it was not a consensual encounter where Pinner would feel free to get up and walk away. Two armed officers did not make small talk and stood in front of him as they asked him questions, Judge Melissa May wrote. This was an investigatory stop, which required reasonable suspicion. Mere possession of a firearm, which is legal, cannot produce a reasonable suspicion to justify a Terry stop, she wrote. The state presented no evidence as to why the police believed Pinner’s possession of the gun was illegal or that other criminal activity was afoot.
Judge Elaine Brown dissented, citing a recent Mississippi case, U.S. v. Scott, 2015 WL 450864 (S.D. Miss. July 24, 2015), which was affirmed by the 5th Circuit Court of Appeals. In Scott, officers responded to an anonymous tip that drugs were being sold in a specific spot in a high-crime area. Officers saw Scott acting nervously and adjust his waistband. He was told he did not have to leave. When Scott lifted his arms, officers saw a gun in his waistband. The court held a seizure did not occur until the gun was discovered.
But the majority pointed out that Pinner was alone in a movie theater lobby, not acting in any manner consistent with illegal activity. Also, Scott had room to walk away whereas Pinner could only exit by standing and walking between the two officers who had already asked him pointed questions.
The case is Thomas Pinner v. State of Indiana, 49A02-1511-CR-2036.