Justices consider ‘reasonable suspicion’ standard in gun tip case

After receiving a tip about a man carrying a handgun in an Indianapolis movie theater, police officers approached Thomas Pinner, ordered him to stand up and discovered that he was in possession of a handgun without a license. The Marion Superior Court denied Pinner’s request to suppress the evidence, but the Indiana Court of Appeals overturned that decision, holding that the police lacked reasonable suspicion to conduct such an investigatory stop. 

Now, the Indiana Supreme Court must decide if the officers had reasonable suspicion to question and arrest Pinner after hearing arguments in the case of Thomas Pinner v. State of Indiana, 49S02-1611-CR-00610.

During oral arguments Thursday, Michael Fisher, counsel for Pinner, reaffirmed the Court of Appeals’ opinion that Indianapolis Metropolitan Police Department officers Jason Palmer and George Stewart lacked reasonable suspicion to “seize” Pinner. Although he conceded that the officers were within the realm of their duties when they approached Pinner and asked if he had a gun, Fisher told the justices that they overstepped their bounds when they “ordered” Pinner to stand up, an order that constituted a seizure of Pinner and violated his constitutional rights.

Fisher focused on the trial court’s finding that the officers had “ordered” Pinner to stand up, telling the justices that an order, versus a request, gave the officers excess power by allowing them to control Pinner’s freedom.  Further, Fisher said because the officers lacked the “particularized, objective basis” to believe Pinner was involved in some sort of criminal activity, as required by the Supreme Court of the United States, they did not have reasonable suspicion to seize Fisher by ordering him to stand.

But Caryn Szyper, who argued on behalf of the state, told the justices that although the circumstances surrounding Pinner’s interaction with the officers may have appeared innocent when taken individually, adding those circumstances together led the officers to the necessary reasonable suspicion standard.

For example, when the officers approached Pinner, he began exhibiting nervous behaviors, such as wringing his hands, rocking back and forth, and hesitating before answering the officers’ inquiry as to whether he had a gun, Szyper said.

Justice Robert Rucker noted that being approached by two police officers might make anyone nervous, but Szyper told the most senior justice caselaw holds that the fact that an officer is armed and in uniform does not add to the coerciveness of a civilian encounter. But Rucker also noted that most average citizens would not know they have the power to walk away when they are approached by an officer in uniform.

Aside from his nervousness, Pinner also lied when he told the Palmer and Stewart that he did not have a gun, and the lie became apparent when the gun could be seen in his pocket after he stood up. Because the officers had received a tip about a man matching Pinner’s description carrying a gun, the officers had reasonable suspicion to believe that Pinner was that man, and his lie solidified that suspicion, Szyper said.

But when Justice Mark Massa asked Fisher if Pinner’s lie made a difference to the reasonable suspicion standard, the appellant’s attorney told the justices that without a “particularized, objective basis” to seize Pinner, even his lie and nervous body language were not enough to allow the officers to take control of Pinner’s freedom.

Chief Justice Loretta Rush asked Fisher what circumstances would have been necessary to have created reasonable suspicion for the officers, and Fisher told her that the police could have asked Pinner to identify himself, run his name and information and learned he was a convicted felon who was not licensed to carry a gun.

In that situation, reasonable suspicion would have existed and the officers could have asked Pinner to stand and lawfully arrested him for carrying the gun without a license. But absent those circumstances, Stewart and Palmer’s actions were a high level of intrusion against Pinner and, thus, were a violation of his constitutional rights under Article 1, Section 11 of the Indiana Constitution.

Referencing the 2012 movie theater shooting in Aurora, Colorado, Massa told Fisher that if Aurora police had received a tip about shooter James Holmes entering the theater with weapons, they could have been dispatched to the theater to assess the situation before he began shooting. Based on that illustration, Massa wanted to know why Pinner’s case could not have been considered a “common sense inquiry” by the police based on the tip they received.

Fisher conceded that he understood such a concern, but also said that law enforcement duties can’t override citizens’ constitutional rights. However, Szyper said Stewart and Palmer’s actions were the least intrusive approach they could have taken to following up on the tip about a man with a gun in a public place.