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Divided COA upholds weapons conviction after traffic stop

April 10, 2019

A man convicted on a weapons-related charge failed to convince the Indiana Court of Appeals to overturn his conviction, arguing unsuccessfully that officers unconstitutionally stopped him and searched his vehicle. A dissenting judge, however, believes officers lacked reasonable suspicion to stop the man.

After receiving a shots-fired call in the early morning hours of Nov. 26, 2017, Indianapolis Metropolitan Police Department Officer Kevin Moore and other officers approached Tre Ron Smith’s vehicle with guns drawn. The vehicle matched the description Moore had received from dispatch, and Moore believed there was a firearm in the car.

After Smith and his passengers exited the vehicle, Moore saw a handgun on the driver’s side floor in plain view. Smith admitted the gun was his, but he did not have a license to carry it.

Thus, Smith was arrested and charged with carrying a handgun without a license as a Class A misdemeanor, and the case proceeded to a bench trial. At the trial, Smith moved to suppress the gun, arguing the search of his vehicle was unconstitutional under the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution, but the Marion Superior Court disagreed. Smith was then convicted and sentenced to 361 days of probation.

A majority of the Indiana Court of Appeals upheld Smith’s conviction Wednesday in Tre Ron Smith v. State of Indiana, 18A-CR-1633, with Judge L. Mark Bailey writing that police had reasonable suspicion to conduct a Terry stop. Specifically, Bailey noted the anonymous caller who prompted the shots-fired dispatch gave a specific description of the vehicle and its identifying features, including damage, and provided a location where the vehicle was found, among other specific information.

Further, Bailey – writing for a majority joined by Judge Edward Najam – said the stop “was reasonably related in scope to the circumstances which justified the stop at its inception.”

“Here, as already noted, the police had reasonable suspicion to believe a person or persons in the vehicle driven by Smith were shooting guns out of the vehicle and were, therefore, armed and dangerous,” Bailey wrote. “Consequently, the officers’ actions in drawing their guns, ordering Smith and the passengers out of the vehicle, and handcuffing them while conducting the search of the vehicle were reasonable steps the officers took to ensure their safety.”

Thus, the majority determined Moore and the other officers had reasonable suspicion to conduct the Terry stop under both the federal and state constitutions. But in a dissenting opinion, Judge Melissa May said she would have held that the search of the vehicle violated the Fourth Amendment.

In her dissent, May said the information provided by the anonymous caller was not sufficiently reliable to establish reasonable suspicion. She noted Moore did not testify that dispatch had provided him with a license plate number, nor did he indicate when dispatch received the call.

“I cannot agree that an anonymous tip of shots fired from a grey SUV with moderate damage all over it somewhere near Market Street with an indeterminate time frame, unknown location of the caller, and lack of additional information regarding the vehicle or the vehicle’s occupants gave Officer Moore reasonable suspicion to stop Smith’s vehicle, order the occupants out of the vehicle at gunpoint, handcuff the occupants, move them to the rear of the car, and conduct a search of Smith’s vehicle without Smith’s consent,” she wrote, distinguishing Smith’s case from Navarette v. California, 572 U.S. 393 (2014), which the majority relied on. “Therefore, I respectfully dissent.”

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