COA splits over reversing possession conviction

A divided Court of Appeals upheld a man’s possession of marijuana conviction that stemmed from a 911 call. Dissenting Judge James Kirsch doesn’t believe that the providing of a name by a 911 caller removes this case from the category of an anonymous caller, thus the call doesn’t give police enough evidence to stop the car the defendant was in.

Officer Nicholas Lichtsinn responded to a 911 call that Phillip Billingsley was armed at a VFW post in Fort Wayne. The caller, who identified herself as Renita Brown, said Billingsley was the same person who “held her hostage” previously and that he was in a tan or brown Dodge Durango.

Lichtsinn knew the VFW to be a dangerous area, knew Billingsley, knew Billingsley to be a convicted felon, and knew Billingsley had a history of dangerous acquaintances when he responded to the call.

Lichtsinn found Billingsley in the passenger side of a Chevy Trailblazer that matched the color description. He called for backup, drew his gun and ordered Billingsley to put his hands on the roof of the SUV. After other officers arrived, Lichtsinn holstered his gun, patted Billingsley down and found marijuana on the seat where Billingsley sat.

He was charged and convicted of Class D felony possession of marijuana. The trial court denied Billingsley’s motion to suppress.

Judges Edward Najam and Melissa May upheld the conviction, finding the original detainment of Billingsley to be an investigatory stop. Litchtsinn’s use of his firearm was limited and he only had it drawn until backup arrived, Najam wrote.

They also rejected Billingsley’s claim that Brown’s 911 call was akin to an anonymous tip because the state and defense counsel couldn’t locate her.

“Moreover, Brown was not an anonymous caller but a concerned citizen. In her 9-1-1 call, she claimed both to have been a recent victim of Billingsley’s criminal activity and to be witnessing his ongoing criminal activity,” Najam wrote in Phillip T. Billingsley v. State of Indiana, 02A05-1204-CR-216.

Kirsch pointed out in his dissent that nothing known to Lichtsinn, nor provided to the court, allows the court to determine the accuracy or inaccuracy of the information provided by the caller. The only information that Brown accurately provided was that Billingsley was in the passenger seat of an SUV in the parking lot of the VFW and the color of that vehicle.

“I also do not believe that the information known to the investigating officer was sufficient to satisfy the standards established by our Supreme Court and the Supreme Court of the United States for investigatory stops,” he wrote.