X.B., Appellant-Respondent v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] X.B. appeals his delinquency adjudication for committing Class A misdemeanor dangerous possession of a firearm. He claims that his arrest was not supported by probable cause and was unreasonable such that it violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution, and, therefore, the handgun seized from his backpack following his arrest should not have been admitted into evidence.

[2] We affirm.

Facts & Procedural History 1

[3] In June 2024, Annalise Johnson was employed with a private security company as a canine officer for Castleton Square Mall (the Mall). On the evening of June 22, 2024, Johnson was on duty patrolling the exterior of the Mall in her vehicle when two individuals approached and told her that they had been confronted by “three young adult males” who had “pulled a firearm on them”² and then ran into the Mall. Transcript at 19, 20. Upon entering the Mall, Johnson saw the suspected males “turning the corner,” and she radioed to other Mall security that three male juveniles were “running through the [M]all and were said to have a firearm on them” and had “possibly pulled a handgun on somebody.” Id. at 20, 28.

[4] Johnson caught up with one of the youths in the Dick's Sporting Goods store and determined he did not have a firearm. The other two, including fifteen-year-old X.B., exited the Mall at Dick's Sporting Goods and ran across the parking lot. The Mall's director of security, Jesus Lara, joined Johnson in chasing the juveniles. X.B. was wearing a black backpack at the time.

[5] Meanwhile, Dane Elkins, an IMPD officer who was working off-duty as security at the Mall that day, also heard the radio communications reporting that there were three juvenile males, believed to be armed, running through the Mall and headed to the Dick's exit. In response, Elkins drove to that location and saw two males running across the parking lot toward a Bucca di Beppo restaurant (the Restaurant), and one – X.B. – was wearing a black backpack. Elkins lost sight of them, but Johnson and Lara saw the two juveniles enter the Restaurant. Lara contacted law enforcement and waited outside with Johnson for police to arrive.

[6] IMPD Officer Austin Gray responded to the police dispatch. He entered the Restaurant with Johnson and Lara, and Johnson pointed out the two juveniles, who were seated at two different tables and looking at their phones. Johnson noticed that X.B. “had the backpack between his legs.” Id. at 21. Officer Gray instructed X.B. to stand up, handcuffed him, and escorted him outside to sit on the Restaurant's steps.

[7] Lara, who remained inside the Restaurant, looked under the tables and discovered a black backpack on the floor where X.B. had been seated. Lara opened it and observed a handgun in it. He handed the backpack to Officer Gray, informing him of the gun. Officer Gray, once outside, looked in the backpack and placed it in the trunk of his vehicle. At some point that day or the next, security guard Elkins “called and talked to the victims.” Id. at 26.

[8] On June 24, 2024, the State filed a petition alleging X.B. to be a delinquent child because he committed acts that, if committed by an adult, would constitute (1) Level 5 felony intimidation, (2) Level 6 felony criminal recklessness, (3) Class A misdemeanor dangerous possession of a firearm, and (4) Class A misdemeanor disorderly conduct. The trial court held a denial hearing on August 20, 2024. At the State's request, the trial court dismissed all of the allegations against X.B. except dangerous possession of a firearm.

[9] After Lara had testified, without objection, that he saw the black backpack on the floor, opened it, and saw a handgun in it, X.B. asked Lara during cross-examination whether, at the time that he looked in the backpack, X.B. had already been detained. When Lara confirmed such, X.B. moved to suppress the search of the backpack, arguing that at the time of the arrest, there was no probable cause that X.B. had a firearm or that a crime had been committed, rendering the arrest and ensuing search invalid. The State responded that Lara, who opened the backpack of his own accord and not at the direction of police, was not a government actor, but rather he was a private security guard, and that the Fourth Amendment was not violated by the actions of a private citizen. The court denied X.B.’s motion to suppress:

For that and ․ other reasons, there's been testimony regarding some sort of disturbance or other reason to call the attention of [Johnson] and then subsequently ․ Mr. Lara that would give reasonable suspicion to ․ stop them[,] and Mr. Lara was not one of the ones that detained either ․ [X.B.] or the other gentleman, and as [the State] argues, the Court agrees that Mr. Lara is not a governmental actor ․ [and was] under private employment of the Mall. So, the motion to suppress is denied.

Transcript at 32 (cleaned up).

[10] Thereafter, as IMPD Officer Gray was testifying about placing the backpack in the trunk of his police car, the State asked him if he knew what was inside it. As Officer Gray began to describe looking in the backpack, X.B. reasserted a motion to suppress, arguing that, pursuant to both federal and state constitutional provisions, Officer Gray needed a warrant to look in the backpack as there were no circumstances present that justified any exception to the warrant requirement. The State responded by soliciting from Officer Gray that he was dispatched to investigate “a group of juveniles – supposedly with a gun ․ running ․ through the parking lot.” Id. at 37. He further testified that as the backpack was handed to him, Lara told him that there was a gun in it. The State argued that because Officer Gray was informed by Mall security that there was a handgun in the backpack, it was not “unreasonable or a violation of any constitutional rights” for Officer Gray to open the backpack and confirm its contents before putting it in his car. Id. at 38.

[11] The exchange continued, with X.B. renewing his motion to suppress and arguing that being told there was a handgun in the bag was “all the more reason” for Officer Gray to get a warrant. Id. at 41. The State responded, in part, that officers should not have to “take the time ․ to get a warrant for a bag where an officer has reason – well, he now knows there's a gun ․ in a restaurant with other patrons.” Id. The trial court denied the motion to suppress. Officer Gray's body camera footage at the scene was played for the court, with the trial court noting for the record that the backpack was unzipped when Officer Gray looked inside it.

[12] Marion County Sheriff's Deputy Billy Johnson, who was working off-duty as security at the Mall that day and transported the backpack from the Restaurant to IMPD's evidence room, testified that the gun recovered from the backpack was a .38 semi-automatic Taurus handgun that contained one live round. X.B. renewed his motion to suppress during Deputy Johnson's testimony, arguing again that the warrantless search of the backpack violated X.B.’s state and federal constitutional rights. The trial court maintained its previous order denying the motion to suppress, noting that Lara was a private actor who saw the gun and that, when the backpack was handed to Officer Gray, it was unzipped.

[13] The court entered a true finding for Class A misdemeanor possession of a firearm and adjudicated X.B. a delinquent child. X.B. waived his right to a predispositional report, and the juvenile court entered its dispositional decree on August 22, 2024, ordering X.B. to be placed on formal probation with three special conditions: remain in school; complete a gun violence prevention program; and participate in homebased casework. X.B. now appeals.

Discussion & Decision

[14] Ind. Code § 35-47-10-5, the statute under which X.B. was adjudicated delinquent, provides that “a child who knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in section 1 of this chapter commits dangerous possession of a firearm, a Class A misdemeanor.” X.B. argues on appeal that the seized handgun should have been excluded from evidence, and, thus, the delinquency adjudication should be vacated.

[15] It is well settled that a trial court has broad discretion to rule on the admissibility of evidence, and generally we review evidentiary rulings for an abuse of discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances. R.B. v. State, 43 N.E.3d 648, 650 (Ind. Ct. App. 2015). However, the ultimate determination of the constitutionality of a search or seizure is a question of law that we consider de novo. K.C. v. State, 84 N.E.3d 646, 649 (Ind. Ct. App. 2017), trans. denied.

[16] X.B. argues that the handgun was seized pursuant to an invalid arrest that violated the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The Fourth Amendment, incorporated against the states through the Fourteenth Amendment, protects people against unreasonable searches and seizures.³ Combs v. State, 168 N.E.3d 985, 991 (Ind. 2021), cert. denied (2022). The language of Article 1, Section 11 mirrors the Fourth Amendment's protections, and its purpose “is to protect those areas of life that Hoosiers consider private from unreasonable police activity.” State v. Washington, 898 N.E.2d 1200, 1206 (Ind. 2008).

[17] As the State highlights, the person who first opened the backpack and saw the handgun was Lara, a security officer privately employed by the Mall.⁴ As such, his actions were not constrained by the Fourth Amendment or Article 1, Section 11.⁵ See Hutchinson v. State, 477 N.E.2d 850, 853 (Ind. 1985) (explaining that federal and state constitutional prohibitions against unreasonable searches and seizures provide protection from such acts by the government and do not apply to, even unauthorized, acts of private citizens).⁶ That said, we recognize the evolving nature of the scene at the Restaurant, the involvement of both private security guards and police officers, and the discovery of the handgun shortly after X.B. had been handcuffed and removed from the premises. To the extent that the set of circumstances present in this case could be considered a search incident to arrest for which federal and state constitutional search and seizure protections apply, we find no violation and address each below.

Fourth Amendment

[18] The Fourth Amendment generally prohibits a warrantless search or seizure unless a valid exception to the warrant requirement exists. Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013). The State bears the burden of proving that a warrantless search falls within an exception to the warrant requirement. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). Relevant here, where Officer Gray looked in the backpack after arresting X.B., a search conducted incident to lawful arrest is one such exception.⁷ See id. at 953. The Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause. Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans. denied. “Probable cause to arrest arises when, at the time of the arrest, the arresting officer has knowledge of facts and circumstances, which would warrant a person of reasonable caution to believe that the defendant committed the criminal act in question.” Thomas v. State, 81 N.E.3d 621, 625 (Ind. 2017). Evaluating whether probable cause existed is a mixed question of law and fact based on common sense and is done on a case-by-case basis. Id. at 625.

[19] Here, X.B. contends that Officer Gray did not have probable cause to arrest him because “he did so without any information suggesting X.B. committed a crime.” Appellant's Brief at 9. X.B. acknowledges that Officer Gray responded to a dispatch for “a group of juveniles” who were running “supposedly with a gun,” but argues that the dispatch was based on information that “was akin to an anonymous tip regarding a firearm” and did not provide the officer with probable cause. Appellant's Brief at 10; Transcript at 37. In support, X.B. relies on Florida v. J.L., 529 U.S. 266 (2000), which he argues is “a factually similar case.” Appellant's Brief at 10.

[20] In J.L., an anonymous caller reported to police that a young black male standing at a particular location and wearing a plaid shirt was carrying a gun. Officers were dispatched to the scene and, upon arrival, observed three black males, including one wearing a plaid shirt. The officers did not observe a firearm or any unusual movements and, apart from the tip, officers had no reason to suspect any of them of illegal conduct. One of the officers frisked fifteen-year-old J.L. and seized a gun from his pocket. The Florida Supreme Court held the search invalid under the Fourth Amendment. See J.L. v. Florida, 727 So.2d 204, 209 (Fla. 1998).

[21] In affirming the Florida Supreme Court, the United States Supreme Court observed that the officers’ suspicion that J.L. was carrying a weapon arose not from their own observations but solely from a “the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” J.L., 529 U.S. at 271. X.B. urges that, here, “[t]he limited information to which Officer Gray was privy when he arrested X.B.” – namely a “bare bones” radio dispatch report – is comparable to the anonymous tip in J.L. and lacked sufficient indicia of reliability to arrest X.B. Appellant's Brief at 12, 13. We disagree for several reasons.

[22] First, an in-person report to Mall security by patrons that three young males had just approached them in the parking lot, brandished a firearm, and then ran into the Mall, and who were then seen by security guards running through and out of the Mall, clearly is not the equivalent of an anonymous phone call tip to police. See e.g., State v. Glass, 769 N.E.2d 639, 643 (Ind. Ct. App. 2002) (recognizing that “[g]enerally, information gleaned from a telephone caller differs from that obtained in a face-to-face encounter” as in the latter, “a trained officer has the opportunity to assess credibility and motive by observing facial expressions and subtle body language), trans. denied.

[23] Second, and as the J.L. Court observed, being able to identify an informant and, if necessary, hold them responsible for providing false information is relevant in determining whether a tip gives rise to reasonable suspicion. J.L., 529 U.S. at 270. Here, Officer Elkins, who was working off-duty as Mall security that day, telephoned and spoke to the two victims after the incident.⁸ Thus, unlike in J.L., the reporting individuals’ identities were known to police.

[24] Furthermore, our Supreme Court has recognized:

Where police officers in the street act in good faith reliance on a dispatch from their own or another police agency that a crime has been committed, there is no need to show the source of the dispatcher's information or the reliability of the dispatcher's informant. It is ludicrous to assert the police officer on the street must be provided with some assurance the dispatcher at the police station has not merely fabricated tales about a crime that was, in fact, never committed and a description of suspects that do not exist.

Moody v. State, 448 N.E.2d 660, 663 (Ind. 1983) (internal citation omitted). We have subsequently recognized that Moody should not be understood to mean that “every call to a dispatcher is sufficient in itself to satisfy the Fourth Amendment,” as that would “paint[ ] Fourth Amendment jurisprudence with too broad a brush.” Glass, 769 N.E.2d at 643, n.6. We agree with Glass on that point but are satisfied that the IMPD dispatch in this case – based on Lara's telephone call to police summoning assistance to the Restaurant with potentially still-armed teens who security pursued on foot through and out of the Mall – provided sufficient indicia of reliability for Officer Gray to reasonably rely on it. Contrast Glass, 769 N.E.2d at 644 (affirming grant of motion to suppress and finding that police dispatch for suspected reckless driving did not provide sufficient indicia of reliability to justify traffic stop and ensuing search, where identity of reporting caller was unidentified, caller's reliability was unknown, and officer did not confirm reliability of any content provided by caller).

[25] Moreover, X.B.’s argument asserting that the report was akin to an anonymous tip and unreliable overlooks that Officer Gray did not rely solely on the IMPD dispatch before arresting X.B. That is, before entering the Restaurant, Officer Gray met and spoke to security guards Lara and Johnson, who had been in active pursuit of the fleeing teens. Once inside, Johnson pointed out the suspects to Officer Gray. Thus, before arresting X.B., Officer Gray was armed not only with the dispatched information, but also direct corroboration from Lara and Johnson of what they had observed. On this record, we find that X.B.’s arrest was supported by probable cause. Accordingly, any search by Officer Gray of the backpack did not violate the Fourth Amendment.

Article 1, Section 11

[26] We turn next to X.B.’s claim that, even if the arrest was not problematic under the Fourth Amendment, it did not comply with Article 1, Section 11. Notwithstanding the textual similarity of Article 1, Section 11 to that of the Fourth Amendment, Section 11 is interpreted separately and independently from Fourth Amendment jurisprudence. Washington, 898 N.E.2d at 1205-06. Our investigation under Section 11 places the burden on the State to demonstrate that each relevant intrusion was reasonable in light of the totality of the circumstances. Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006). The reasonableness of a search or seizure turns on a balance of: (1) the degree of concern, suspicion, or knowledge that a violation has occurred, (2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and (3) the extent of law enforcement needs. Watkins v. State, 85 N.E.3d 597, 599 (Ind. 2017) (citing Litchfield v. State, 824 N.E.2d 356, 359-61 (Ind. 2005)). Article 1, Section 11 in some cases confers greater protections to individual rights than the Fourth Amendment affords. W.H. v. State, 928 N.E.2d 288, 296 (Ind. Ct. App. 2010), trans. denied. The focus of the exclusionary rule under the Indiana Constitution is the reasonableness of police conduct. C.P. v. State, 39 N.E.3d 1174, 829 (Ind. Ct. App. 2015), trans. denied.

[27] X.B. argues that his arrest and the accompanying search of his backpack was unreasonable in light of the facts and circumstances. Applying the Litchfield factors, he maintains that “Officer Gray's degree of concern, suspicion, or knowledge a violation occurred was almost nil,” as he had only heard the dispatch but not personally observed any behavior that would suggest X.B. was engaged in criminal activity; the degree of intrusion on X.B. was significant, as he was handcuffed and escorted out to sit on the Restaurant steps; and the needs of law enforcement were low, as Officer Gray had not observed any criminal, or even furtive, activity and thus there was no need to “to immediately arrest X.B. without additional inquiry into the situation.” Appellant's Brief at 14, 15. On balance, X.B. argues, the Litchfield factors weigh in his favor, and he was the “victim of an unreasonable seizure.” Id. at 16. We do not agree.

[28] As to the degree of suspicion, concern, and knowledge that X.B. had committed – or was committing – dangerous possession of a firearm, the level was high. Law enforcement had been dispatched on a report from Mall security that juveniles had pulled a gun on patrons, after which they ran into the Mall; this presented not just the suspicion of a juvenile illegally carrying a handgun but an active threat to the public. Further, the juveniles ran through – and out of – the Mall, while being pursued by Mall security personnel. X.B. was observed wearing a black backpack, which was found on the floor next to where he was seated at the Restaurant. While the State conceded at oral argument that the intrusion on X.B. was not low, the extent of law enforcement needs were significant and justified the intrusion. We agree that law enforcement “needed to terminate X.B.’s unlawful possession of a firearm,” already reported as having been brandished to Mall patrons, “and protect the community,” including the Restaurant's staff and any guests. Appellee's Brief at 22. Balancing the Litchfield factors, we find no violation of Article 1, Section 11 in this case.

[29] Judgment affirmed.

FOOTNOTES

2.   Firearms were prohibited on the Mall's property.

3.   The Fourth Amendment reads:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV.

4.   X.B. did not object when Lara testified that he looked in the backpack, saw a handgun, and turned the backpack over to police.

5.   X.B. argued during oral argument before this court that the Mall security officers, including Lara, were acting as agents or instrumentalities of the police. However, X.B. did not raise that argument to the trial court or in his briefs on appeal. Thus, the argument is waived. See Miller v. State, 201 N.E.3d 683, 689 n.6 (Ind. Ct. App. 2022) (recognizing that issues are waived when raised for the first time at oral argument), trans. denied.

6.   As persuasive authority, we recognized that panels of this court have recently reaffirmed that federal and state constitutional protections against unreasonable search and seizure do not apply to private individuals not acting as agents of the government. See Hopkins v. State, No. 23A-CR-1506, at *3 (Ind. Ct. App. Jan. 19, 2024) (mem.) (where EMT found methamphetamine on defendant while searching for his identification to provide him with medical assistance); Bradley v. State, No. 23A-CR-202, at *4, 6 (Ind. Ct. App. Nov. 28, 2023) (mem.) (where ICU nurse looked in defendant's coat pocket per hospital policy to document patient's belongings and found methamphetamine).

7.   The exception for exigent circumstances was argued to the trial court, but neither party addresses that exception on appeal.

8.   Although Officer Elkins did not expressly testify as to when he called them, the record reflects that he did so before Deputy Johnson prepared a probable cause affidavit on June 23, the day following the incident at the Mall.

Altice, Chief Judge.

Judges Weissmann and DeBoer concur. Weissmann, J. and DeBoer, J., concur.