COA divided over search producing gun, affirms conviction

November 7, 2016

The admission of a gun obtained without a warrant from a man later convicted of carrying a handgun without a license did not violate the man’s constitutional protections against unreasonable search and seizure and, thus, does not warrant the reversal of his conviction.

That was the decision of a divided Indiana Court of Appeals Monday in Jordan Jacobs v. State of Indiana, 49A02-1601-CR-19. Indianapolis Metropolitan Police Department Officer Terry Smith was at the Blackburn Terrace Apartments at approximately 2 p.m. in September 2015 when he observed a group of mostly juveniles gathered in the parking lot. Some members of the group, including Jordan Jacobs, were wearing the color red, which was known as the color of a violent gang in that area of Indianapolis.  

After observing the group for several hours, Smith noticed that when a park ranger in a marked vehicle approached the area, Jacobs and another individual, both of whom Smith assumed to be juveniles, left the group and did not return until the park ranger left. Smith also noticed during his observations that several members of the group, many of whom were wearing the gang color, were coming and going, so he called for assistance from other officers in marked units in “stopping” the group.

When the marked police vehicles began to arrive, Jacobs and the other individual again began to walk quickly away from the group and picked up the pace as the police came closer. Officer Smith instructed the two to stop, but Jacobs continued walking. IMPD Officer Jeremiah Casavan then joined Smith, and together the two officers ordered Jacobs to the ground and were able to handcuff him, although he was not yet under arrest.

Casavan then noticed the outline of a handgun in Jacobs’ front right pocket, but Jacobs claimed he did not have any weapons on him. Casavan then reached inside Jacobs’ pocked, removed the handgun and placed him under arrest.

During Jacobs’ trial in the Marion Superior Court, the state sought to admit the handgun as evidence, but Jacobs objected, saying it was recovered in violation of the Fourth Amendment of the U.S. Constitution and Article I, Section 11 of the Indiana Constitution, which protect against unreasonable search and seizure. The trial court admitted the handgun, and because Jacobs did not have a license to carry the gun, he was found guilty of Class A misdemeanor carrying a handgun without a license.

Jacobs appealed, arguing that the trial court abused its discretion by allowing the admittance of the handgun as evidence in violation of his state and federal constitutional rights. But a divided Indiana Court of Appeals rejected both of Jacobs’ constitutional arguments and affirmed his conviction.

In regard to the Fourth Amendment claim, Judge Cale Bradford wrote for the majority joined by Judge Robert Altice that Smith established that he believed Jacobs was a juvenile and, thus, was truant. Further, Bradford wrote that Jacobs’ repeated flight away from the group each time a law enforcement official approached could have reasonably led Smith to believe that Jacobs had a consciousness of guilty for not being in school.

Based on those facts, and the fact that Casavan could see the outline of the handgun, the officers had a reasonable suspicion that Jacobs was guilty of an offense, which gave them the right to recover the firearm, Bradford wrote.

Similarly, in regard to Jacobs’ claim of violation of his state constitutional rights, Bradford wrote that “the totality of the circumstances (were) sufficient to give rise to a high degree of suspicion that criminal activity or delinquent activity was occurring or had just occurred.” Bradford did concede, however, that the officers’ degree of intrusion against Jacobs was high because he was forced to the ground and handcuffed before his arrest.

Judge Terry Crone dissented, writing that “in holding that the police did not invade his right to privacy by ordering him to the ground and handcuffing him based on a tenuous suspicion of truancy, the majority has impaired the Fourth Amendment and Article I Section 11 … for innocent Hoosiers who wish to exercise their constitutional rights to walk away from approaching officers who have no valid reason to detain them.”


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