Griffin v. State, No. 49A02-1212-CR-964, __ N.E.2d_ (Ind. Ct. App., Oct. 23, 2013).

Shepard, Senior Judge

Citizens are obliged to obey a police officer’s order to stop when the officer has probable cause or reasonable suspicion to believe that criminal activity may be afoot. When there is no indication of possible criminal activity, does a citizen who walks away commit the crime of resisting arrest by departing? We think it cannot be so, consistent with the Fourth Amendment, and reverse appellant Phillip Griffin’s conviction for resisting law enforcement.

. . . .

On June 27, 2012, Officer Matthew Miller of the Lawrence Police Department was on patrol, in uniform and in a marked police car. He passed Phillip Griffin, who was walking down the street. When Miller looked in his rearview mirror, Griffin appeared to be gesturing at him. It appeared to Officer Miller that Griffin was “maybe unstable,” Tr. p. 6, so Miller called for backup as he turned around and drove back to Griffin.

Miller got out of his car and asked Griffin what was happening. Griffin, shouting in a “kind of incoherent” manner, id., accused Miller of trying to run him over. Next, although the two men were standing fifteen feet apart, Griffin threw “two kind of shadow punches” at Miller and ran away from him. Id.

Miller pursued Griffin, shouting at him to stop and warning that he would use his Taser if necessary. When Griffin did not stop, Miller deployed his Taser, which struck Griffin and caused him to fall to the ground. Griffin stood up and struck Miller with his hands and feet as Miller attempted to handcuff him. At this point, several other officers arrived. They tackled Griffin, tased him four times, and eventually handcuffed him. Tr. pp. 18-20.

. . . .

To convict Griffin of resisting law enforcement as charged, the State was required to prove beyond a reasonable doubt that: (1) Griffin (2) fled (3) from Miller, a law enforcement officer, (4) after Miller, by visible or audible means, identified himself and ordered Griffin to stop. Ind. Code § 35-44-3-3.

The State cites to a number of cases in this Court which hold that the resisting statute does not require that the order to stop be lawful. In Cole v. State, 878 N.E.2d 882, 884 (Ind. Ct. App. 2007), for example, an officer drove up to a vehicle around which he saw several people gathered. He did not see any actual sign of criminal activity, though the comings and goings were loosely suggestive of drug dealing. When the officer exited his car and asked the driver and the passenger, Cole, for identification, Cole got out of the car and began walking away. Cole disregarded several orders to get back in the car and then ran away, ignoring the officer’s commands to halt. Another officer tasered Cole, who was subsequently subdued and placed in handcuffs.

The Cole panel was led to “doubt the propriety of the investigatory stop,” id. at 886, but held it unnecessary to address Cole’s claim of a Fourth Amendment violation, stating, “It is well settled that ‘[i]n Indiana, an individual may not flee from a police officer who has ordered the person to stop, regardless of the apparent or ultimate lawfulness of the officer’s order.’” Id. at 886 (quoting Dandridge v. State, 810 N.E.2d 746, 749 (Ind. Ct. App. 2004), trans. denied).  [Footnote omitted.]

While this may adequately describe the structure of the statute, we think it but states the obvious that the government’s seizure of a citizen is subject to limitation under the Fourth Amendment. As the Indiana Supreme Court has observed: “The Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause.” Woods v. State, 547 N.E.2d 772, 778 (Ind. 1989), overruled in part on other grounds by Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Even brief detentions for investigatory purposes must rest on articulable facts that lead an officer to reasonable suspicion that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

. . . .

Most persons choose to stay when officers ask them to do so, but citizens who choose to depart cannot be regarded as committing a crime. As Justice Stewart wrote in Mendenhall, “The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” Id. at 553-54 (quotation and citation omitted).  [Footnote omitted.]

As a recent decision of this Court declared, “We hold that as long as a seizure has not taken place within the meaning of the Fourth Amendment, a person is free to disregard a police officer’s order to stop and cannot be convicted of resisting law enforcement for fleeing.” Gaddie v. State, 991 N.E.2d 137, 141 (Ind. Ct. App. 2013), trans. pending.

In the present case, the State explicitly argues that it need not establish any facts giving rise to probable cause or articulable suspicion that would have warranted detaining Griffin in order to sustain the conviction. This position fits with the record, which does not reveal any facts warranting a detention. Griffin appeared to Miller to be unstable, and he threw “shadow punches” from a considerable distance before running away, but none of Griffin’s actions suggested any criminal offense. Without evidence demonstrating grounds for detention, Griffin’s conviction for resisting law enforcement must be reversed.

. . . .

In this case, the court costs were $166, and the court ordered Griffin to perform twenty-four hours of community service in lieu of payment. To be sure, it is well established that a trial court may impose community service as a condition of probation, Ind. Code § 35-38-2-2.3(a)(13) (2009), but the court did not impose community service as a condition of probation.

In resolving Griffin’s claim, we follow this Court’s recent decision in Vaughn v. State, 982 N.E.2d 1071, 1075 (Ind. Ct. App. 2013). The Vaughn panel declared that in the absence of statutory authority, a court may not impose community service in lieu of costs and fees. Id. Per the holding in Vaughn, we conclude the trial court erred by requiring Griffin to perform community service in lieu of paying court costs. We reverse the court’s order to perform community service and remand to address the question of payment of costs.

MATHIAS, J., concurs with separate opinion:

I agree that Officer Miller lacked reasonable suspicion to detain Griffin for the purpose of investigating a possible crime, and therefore, Griffin was free to disregard Officer Miller’s order to stop. Accordingly, I concur fully in the majority’s conclusion that Griffin’s conviction for resisting law enforcement must be reversed. However, I write separately to address concerns about Officer Miller’s conduct in this case, particularly given his suspicion that Griffin suffered from a mental illness at the time in question.

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Finally, it is important to remember that Officer Miller did what he was trained to do in the situation. What I hope and mean to suggest is that law enforcement officials throughout Indiana can best reaffirm their commitment to serve all of Indiana’s citizens by remembering the criteria for mental health intervention as an initial alternative to treating troubling and troubled, but otherwise innocuous, conduct as a possible crime.

BAILEY, J., concurs in part and dissents in part with separate opinion:

In Cole v. State, 878 N.E.2d 882, 886 (Ind. Ct. App. 2007), a panel of this Court recognized:

Because of the danger flight poses and the fact that a defendant has judicial remedies if he does not flee, the rule in our State is that even if a police officer does not have reasonable suspicion to stop a defendant, the defendant has no right to flee when the officer orders him to stop.. . . .

. . . .

I would follow the settled law as discussed in Cole. For this reason, I dissent from the reversal of Griffin’s conviction for resisting law enforcement.

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