Corey L. Gilbert, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Corey Gilbert was convicted of Level 1 felony attempted murder. On appeal, Gilbert raises two issues for our review, which we restate as: (1) whether the trial court abused its discretion by admitting a pistol found following an investigative stop and pat-down search of Gilbert; and (2) whether the State presented sufficient evidence to support Gilbert's attempted murder conviction. The seizure and search of Gilbert was lawful, and sufficient evidence exists to support Gilbert's conviction. We affirm.

Facts and Procedural History

[2] On May 9, 2023, Gilbert and his girlfriend, Mary Wagers, were staying in a hotel on Emerson Avenue in Indianapolis. Around 1:00 p.m., the couple returned to the hotel after visiting a nearby fast food establishment. At 1:23 p.m., Wagers returned to the hotel room, alone, and sat at a desk. She began listening to music through her earbuds and exchanging text messages with her father. Gilbert returned to the room around 1:35 p.m., stood behind Wagers, and fired a Glock 10 mm semiautomatic pistol three times, hitting Wagers twice—once in the back near her abdomen and once in her hip. Wagers repeatedly screamed and cried out: “You shot me! Why would you do that, Corey?” Tr. Vol. III p. 82; Ex. 5 Video 3659 at 00:00-00:05.¹ Gilbert then exited their room while tucking a black object into his waistband and walked out of the hotel.

[3] Wagers called 9-1-1, then stumbled from the room and into the lobby, where she collapsed. Hotel staff also called 9-1-1. Within a few minutes, emergency responders arrived and administered aid to Wagers. Wagers was hospitalized, where she suffered a stroke. She later testified that the stroke impaired her memory, and she only remembers “bits and pieces” of the incident. Tr. Vol. III p. 74. She did not recall seeing Gilbert enter the room, asking Gilbert why he shot her, or arguing with Gilbert prior to the shooting.

[4] At 1:37 p.m., two minutes after the shooting occurred, dispatch aired a call that a woman had been shot at the Emerson Avenue hotel. A minute later, dispatch updated the call, noting that a male shot the female and had left the scene. Meanwhile, Amtrak Police Officer Kellen Malloy was driving his police vehicle when he observed Gilbert jogging past a fast-food restaurant—just a block northeast of the hotel. Malloy also heard the dispatch about the shooting. When Gilbert saw Malloy's police vehicle, he stopped jogging and began to walk. After walking past Malloy's vehicle, Gilbert repeatedly looked over his shoulder in Malloy's direction in a manner Malloy described as “blading his shoulders[.]” Tr. Vol. II p. 36, 43. Malloy radioed in and asked if there was a description of the shooter and was informed that no description was available at that time. Finding Gilbert's behavior suspicious, Malloy radioed a second time, advising Gilbert should be stopped. Gilbert was the only pedestrian in the area and was just beginning to walk through the parking lot of an abandoned fast-food establishment.

[5] Beech Grove Police Officer Christopher Whittaker was responding to the dispatch and was enroute to the hotel, close to Gilbert's location. With his emergency lights active, Whittaker pulled into the parking lot and asked Gilbert to “come back and talk [with Whittaker.]” Id. at 61. As Gilbert approached, dispatch radioed at 1:39:39 p.m., stating the shooter's first name was “Corey.” Id. at 63. Then, Whittaker asked Gilbert for his name. Upon hearing the first names matched, Whittaker exited his vehicle and activated his body camera, which initialized at approximately 1:39:42 p.m. Whittaker handcuffed Gilbert for officer safety and later testified, “if [Gilbert] was the suspect[,] he possibly had a weapon on him because of the shooting.” Tr. Vol. III p. 67. Whittaker then patted Gilbert down for weapons and recovered a pistol from inside Gilbert's waistband. Forensic testing confirmed the recovered gun was the Glock 10 mm semiautomatic pistol that was used to fire all three shots in the hotel room.

[6] On May 12, 2023, the State charged Gilbert with Level 1 felony attempted murder, Level 3 felony aggravated battery, and Level 4 felony unlawful possession of a firearm by a serious violent felon—the State later added a habitual offender enhancement. In April 2024, Gilbert filed a motion to suppress the pistol evidence. The trial court held a hearing and subsequently denied the motion, finding there was reasonable suspicion to justify the stop “[g]iven the closeness in time to the commission of the crime, proximity to the scene of the crime, the nature of the offense reported, and based on the behavior observed by Officer Malloy[.]” App. Vol. II p. 168.

[7] Gilbert's bench trial was held on July 16. During trial, he renewed his motion to suppress, which the trial court again denied. At the conclusion of the bench trial, Gilbert was found guilty of Level 1 felony attempted murder and Level 3 felony aggravated assault.²

[8] On September 25, the trial court tried Gilbert on the habitual offender enhancement and thereafter held a sentencing hearing. The trial court found the State did not meet its burden of proof for the habitual offender enhancement. The court sentenced Gilbert to thirty years executed in the Indiana Department of Correction for his attempted murder conviction and vacated the aggravated battery conviction due to double jeopardy concerns. Gilbert now appeals.

Discussion and Decision

I. The trial court did not abuse its discretion by admitting evidence found during a pat-down search of Gilbert following an investigative stop.

A. Standard of Review

[9] Gilbert argues the trial court erred in admitting the pistol found during the stop and pat-down search. Thus, we review whether the trial court abused its discretion in admitting the evidence at trial. See Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (citing Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013)). An abuse of discretion occurs when the ruling is “clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Clark, 994 N.E.2d at 260. However, “the ultimate determination of the constitutionality of a search or seizure is a question of law that we consider de novo.” Carpenter, 18 N.E.3d at 1001 (citing McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014)). The State bears the burden of proving that a warrantless search or seizure was lawful and that the challenged evidence is admissible. Edwards v. State, 759 N.E.2d 626, 630 (Ind. 2001). “Generally speaking, evidence obtained pursuant to an unlawful seizure must be excluded[.]” Clark, 994 N.E.2d at 266.

[10] Gilbert raises claims under both the federal and state constitutions. “Although the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution contain textually similar language, each must be separately analyzed.” Smith v. State, 121 N.E.3d 669, 673 (Ind. 2019) (citing Marshall v. State, 117 N.E.3d 1254, 1259 (Ind. 2019)). We first address Gilbert's Fourth Amendment claim then address his Article 1, Section 11 claim.

B. Gilbert was lawfully stopped and searched under the Fourth Amendment.

[11] The Fourth Amendment protects against unreasonable searches and seizures by generally prohibiting such acts without a warrant supported by probable cause. U.S. amend. IV; Clark, 994 N.E.2d at 260. There are levels to police encounters with the public, with varying degrees of implication for the Fourth Amendment. Clark, 994 N.E.2d at 261. Relevant to this appeal, an investigative stop—otherwise known as a Terry stop—permits police to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” Robinson v. State, 5 N.E.3d 362, 367 (Ind. 2014) (quoting Terry v. Ohio, 392 U.S. 30, 88 (1968)). Reasonable suspicion is more than an inchoate suspicion or hunch, and a “stopping officer must be able to articulate some facts that provide a particularized and objective basis” for the investigative stop. Marshall, 117 N.E.3d at 1259 (citing State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014)).

[12] Whether an investigative stop converts to an arrest turns on the totality of the circumstances. Wilson v. State, 96 N.E.3d 655, 658 (Ind. Ct. App. 2018) (citing Reinhart v. State, 930 N.E.2d 42, 46 (Ind. 2010)). An investigating officer is entitled to “take reasonable steps to ensure his own safety[ ]” during an investigative stop. Reinhart, 930 N.E.2d at 46. Handcuffing a suspect due to concerns for “officer safety and the possibility of the presence of a weapon” does not elevate an investigative stop to an arrest requiring probable cause. Smith, 121 N.E.3d at 675 (quoting U.S. v. Vaccaro, 915 F.3d 431, 436 (7th Cir. 2019)).

[13] Whittaker initiated an investigative stop when he called Gilbert over to his police vehicle while the emergency lights were activated. See, e.g., Dowdell v. State, 747 N.E.2d 564, 567 (Ind. Ct. App. 2001) (“A reasonable person when faced with a police officer pulling up to him in a marked vehicle and calling for him to come over to the car would not assume that he can just turn and walk away.”). Therefore, our analysis turns to whether Whittaker had reasonable suspicion at the time he called Gilbert over to his vehicle.

[14] Before we begin the reasonable suspicion analysis, we note Gilbert briefly addresses the collective-knowledge doctrine. See Appellant's Br. p. 16 n. 5. The collective-knowledge doctrine provides that “an officer's personal knowledge of facts that establish the necessary suspicion may be imputed to another officer.” Miller v. State, 188 N.E.3d 871, 876 (Ind. 2022) (internal citations omitted). “This means an officer without personal knowledge can initiate a stop if he acts upon information from an officer with personal knowledge.” Id. (internal citation omitted). Citing to Griffith v. State, he argues Amtrak Police Officer Malloy's knowledge of Gilbert's behavior cannot be imputed to Whittaker because the officers are employed by different law enforcement organizations. 788 N.E.2d 835, 840 (Ind. 2003).

[15] However, the collective knowledge doctrine is inapplicable here. Malloy never imparted any knowledge about Gilbert's behavior, and we have previously declined to apply the collective-knowledge doctrine when the officer effectuating the search or seizure did not have the opportunity to receive information from other law enforcement agents. See State v. M.J.M., 837 N.E.2d 223, 226 (Ind. Ct. App. 2005) (“In order to rely on collective knowledge, the knowledge sufficient for reasonable suspicion must be conveyed to the investigating officer before the stop is made [and the] collective knowledge cannot be relied upon after the fact.”); see, e.g., Jamerson v. State, 870 N.E.2d 1051, 1057 (Ind. Ct. App. 2007) (holding collective-knowledge doctrine is inapplicable where unidentified officer broadcasted message regarding defendant's alleged involvement in crime but included no facts that led to suspicion defendant was involved). Simply put, Whittaker was not privy to Malloy's knowledge of Gilbert's behavior. Thus, we look solely to Whittaker's personal knowledge in determining whether he had reasonable suspicion to stop Gilbert.

[16] Gilbert argues Whittaker did not have a sufficient basis to form reasonable suspicion. To support his argument, Gilbert cites Jacobs v. State, 76 N.E.3d 846 (Ind. 2017). Jacobs is easily distinguishable from the case before us. In Jacobs, law enforcement received multiple reports of shots fired by “youths wearing red clothing, a known gang color[ ]” in a “high crime” area. Id. at 849. Two days later, an officer observed a group of youths, some wearing red, in the same “high crime” area that he believed were truant. Id. Jacobs, a youth among the group who had a red t-shirt slung over his shoulder, attempted to leave upon noticing law enforcement. Id. Before he could leave, officers initiated an investigative stop and discovered a handgun on his person. Id. Our Supreme Court held there was no reasonable suspicion where Jacobs was wearing a red shirt and amongst a group of youths in the same area where a shooting was two days prior: this “require[d] one inferential leap too many” because “police had no articulable suspicion that Jacobs specifically was involved in any way with the shooting ․” Id. at 851 (emphasis in original).

[17] Unlike in Jacobs, Gilbert was the only person in the area, rather than in a group, and was seen walking through an abandoned parking lot and away from the hotel a mere three minutes after the shooting—not two days later—and police were on the lookout for a male suspect who had shot a female and had recently fled the hotel. Under these circumstances, Whittaker had a sufficient and particularized basis for reasonable suspicion, since Gilbert was the only person in the area moments after the shooting and Whittaker knew it would take someone two or three minutes to walk to Gilbert's location from the hotel. See, e.g., Whitt v. State, 91 N.E.3d 1082, 1090-91 (Ind. Ct. App. 2018) (finding reasonable suspicion where officer received report that a shooter was fleeing in an SUV to Kentucky and four minutes later discovered a sole SUV on the only nearby route to Kentucky).

[18] Further, the seizure of Gilbert did not convert into an arrest when Whittaker acted prudently by handcuffing Gilbert prior to conducting a pat-down. Whittaker was responding to a recent shooting and stopped a potential suspect named Corey, who was likely armed and dangerous. Whittaker testified that “if [Gilbert] was the suspect[,] he possibly had a weapon on him because of the shooting.” Tr. Vol. III p. 67. And as we previously noted, an investigating officer is entitled to “take reasonable steps to ensure his own safety[ ]” during an investigative stop. Reinhart, 930 N.E.2d at 46. Thus, Whittaker did not violate Gilbert's Fourth Amendment rights when Whittaker called Gilbert over to his vehicle, initiated an investigative stop, and thereafter handcuffed and patted-down Gilbert.

C. Gilbert was lawfully stopped and searched under Article 1, Section 11 of the Indiana Constitution.

[19] Gilbert also argues his rights were violated under Article 1, Section 11 of the Indiana Constitution.³ “The Indiana Constitution's Article 1, Section 11 [ ] protects Hoosiers’ persons, property, and peace from unreasonable State intrusion.” Marshall, 117 N.E.3d at 1261 (Ind. 2019) (internal citation omitted). “To maintain its vigor in guarding citizens from unreasonable searches and seizures, we give Article 1, Section 11 ‘a liberal construction’ when applying it.” Id. (quoting Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006). In such cases, the State must show that the challenged police action “was reasonable under the totality of the circumstances.” Robinson, 5 N.E.3d at 368 (Ind. 2014) (internal quotation omitted). Evaluating reasonableness turns on a balance of three factors: “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.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).

[20] First, when considering an officer's degree of concern, suspicion, or knowledge that a violation has occurred, “we consider all the information available to the officer at the time of the search or seizure.” Ramirez v. State, 174 N.E.3d 181, 191 (Ind. 2021) (citing Hardin v. State, 148 N.E.3d 932, 943 (Ind. 2020)). Whittaker knew a shooting just occurred at the hotel and observed Gilbert a mere three minutes later traveling from the direction of the shooting. Whittaker knew it would take someone two or three minutes to travel from the hotel to Gilbert's location and observed no one else in the area except for Gilbert, who was walking through an abandoned parking lot. Once Whittaker called Gilbert over, dispatch noted the suspect's first name may be Corey, which matched the name Gilbert gave Whittaker upon request. Based on the above, Whittaker had a high degree of concern, suspicion, or knowledge that a shooting occurred nearby, and that Gilbert may be the shooter based on his proximity to the hotel shortly after the shooting and his matching first name.

[21] Second, we evaluate the degree of intrusion and method of search and seizure imposed by considering “both a defendant's physical movements and privacy, focusing on how officers conducted the search or seizure.” Id. at 192 (citing Hardin, 148 N.E.3d at 944-45)). Gilbert was walking away from the hotel when Whittaker parked his car and asked Gilbert to speak with him. Whittaker's emergency lights were active, but Whittaker never drew his weapon nor displayed any show of force. Whittaker learned through dispatch that the suspect's first name was Corey and then confirmed Gilbert's first name. Thereafter, he placed Gilbert in handcuffs for officer safety and conducted a brief pat-down. Our Supreme Court has previously described an investigative stop as a “relatively minor” intrusion. Robinson, 5 N.E.3d at 368. Here, the degree of intrusion and method of search and seizure imposed upon Gilbert was relatively minor under the circumstances. See Bell v. State, 81 N.E. 3d 233, 238 (Ind. Ct. App. 2017) (concluding that an outer clothes pat-down was a minimal intrusion into defendant's privacy).

[22] Third, we evaluate the extent of law enforcement needs by examining “not only the needs of officers ‘to act in a general way,’ but also officers’ needs ‘to act in the particular way and at the particular time they did.’ ” Ramirez, 174 N.E.3d at 192 (quoting Hardin, 148 N.E.3d at 946-47). Whittaker was investigating a recent shooting and understood the suspect may still be armed and nearby, since the dispatch went out three minutes before Whittaker stopped Gilbert. Here, law enforcement's needs were high to locate and apprehend a shooter who was minutes away from the scene and still at large. See Negash v. State, 113 N.E.3d 1281, 1290 (Ind. Ct. App. 2018) (holding law enforcement needs were high when “police were investigating a shooting where an alleged suspect was still at large.”). Gilbert's rights under Article 1, Section 11 were not violated.

II. Sufficient Evidence Exists to Sustain Gilbert's Conviction.

[23] Gilbert also argues insufficient evidence supports his conviction for attempted murder—specifically, that the State presented insufficient evidence to prove Gilbert's specific intent to kill Wagers. Our sufficiency of evidence standard is well-settled:

Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury. A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it.

Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (internal quotation marks and citations omitted).

[24] “A person attempts to commit a crime when ․ the person engages in conduct that constitutes a substantial step toward commission of the crime.” Ind. Code § 35-41-5-1(a) (2014). And when a person “knowingly or intentionally kills another human being ․ [that person] commits murder, a felony.” Ind. Code § 35-42-1-1 (2018). Gilbert correctly notes that a conviction of attempted murder requires the State to prove he specifically intended to kill Wagers. See Rosales v. State, 23 N.E.3d 8, 11-12 (Ind. 2015). Yet a defendant's “intent to kill may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or serious injury.” Powell v. State, 151 N.E.3d 256, 270-71 (Ind. 2020) (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008)).

[25] Gilbert argues that because Wagers was shot in her hip and the middle of her back, the evidence does not support this inference. We disagree. Gilbert stood behind Wagers and shot at her while she was preoccupied with her phone and listening to music. Gilbert shot at Wagers three times, hitting her once in the back near her abdomen and once in her hip. Afterwards, Gilbert is seen on hotel surveillance footage calmly exiting their hotel room and leaving the hotel while Wagers’ cries rang out. Sufficient evidence exists to prove Gilbert specifically intended to kill Wagers.

Conclusion

[26] The trial court properly determined law enforcement's investigative stop of Gilbert was based on reasonable suspicion supported by articulable facts. Law enforcement did not violate Gilbert's rights under the Fourth Amendment and their conduct was reasonable under Article 1, Section 11. Sufficient evidence exists to support Gilbert's conviction of attempted murder, specifically that Gilbert intended to kill Wagers. We affirm Gilbert's conviction for attempted murder.

[27] Affirmed.

FOOTNOTES

1.   State's Exhibit 5 is a single USB device containing several video files from the hotel's surveillance cameras. In its brief, the State refers to the individual video files by the last four digits of their file name. We do the same.

2.   The State dismissed the Level 4 felony unlawful possession of a firearm by a serious violent felon charge on the day of the bench trial.

3.   Gilbert breaks his encounter with Whittaker into two separate instances: when Whittaker first called Gilbert over to speak, and when Whittaker conducted a pat-down of his person. The State does not delineate and treats the entire affair as one encounter. We do the same and consider the “totality of the circumstances.” Robinson, 5 N.E.3d at 368 (Ind. 2014) (internal quotation omitted).

Scheele, Judge.

Judges May and Weissmann concur. May, J., and Weissmann, J., concur.