On December 7, 2012, the Indiana Court of Appeals decided Billingsley v. State [i] which serves as an excellent review of reasonable suspicion and the reasonableness of an officer’s show of force during a Terry stop.  The facts of Billingsley, taken directly from the case, are as follows:

Around 2:34 a.m. on November 5, 2011, the 9-1-1 dispatch center of the Fort Wayne Police Department (“FWPD”) received a call from a woman. The woman said there was a “young man” at the Veterans of Foreign Wars (“VFW”) building who had “held [her] hostage” a week or two before and that she “want[ed] the police to come up here and lock him up.”  She then stated that he was “going to leave right now” and that she did not “want him to leave because that’s the same dude who did the shooting at Mookie’s nightclub.” The caller stated that the man was currently armed, though she could not specify the type of firearm; that his name was Phillip Billingsley; and that he was sitting as a passenger in a “newer,” “tan-brown” or “tan-gray” Dodge Durango with tinted windows. She further stated that the man sitting in the driver’s seat of the vehicle was also armed.

During her five-minute phone call with 9-1-1, the caller turned her attention away from the dispatch operator to tell a third party that she was not “talking to the police I’m talking to my brother.” At the dispatch operator’s request, the caller then identified herself as Renita Brown and said she was calling from a friend’s cell phone. The FWPD dispatched Officer Nicholas Lichtsinn to the scene.

Officer Lichtsinn knew the VFW was “not the most friendly environment” and also knew Billingsley from having personally arrested him on prior allegations of possession of cocaine, resisting arrest, fleeing, and criminal trespass. Officer Lichtsinn further knew that Billingsley had also been arrested for possession of a handgun by a felon and that Billingsley used to “hang around with” two people who have since been convicted of murder.

Upon arriving at the VFW, Officer Lichtsinn did not see a Dodge Durango but did observe an SUV—a Chevrolet Trailblazer—that, “in the darker light . . . appear[ed] to be brown[, but] when the sun’s out, it appear[ed]  to be silver.” Officer Lichtsinn knew from his experiences as an officer that, “often when people call [9-1-1], colors [of vehicles] are goofy and makes and models of vehicles are goofy.” Officer Lichtsinn then observed Billingsley in the passenger seat of the Trailblazer and parked his patrol vehicle in front of the Trailblazer. Officer Lichtsinn called for backup and exited his vehicle with his sidearm drawn. He ordered Billingsley to place his hands on the roof of the SUV while they waited for backup to arrive, which Billingsley did.

Backup officers arrived shortly thereafter. Officer Lichtsinn then holstered his weapon and ordered Billingsley to exit the vehicle. Officer Lichtsinn handcuffed Billingsley and patted him down for weapons. While doing so, Officer Lichtsinn smelled an “overpowering odor of [raw] marijuana,” which he recognized based on “[n]umerous” prior arrests he had made involving marijuana. Officer Lichtsinn then observed “on the front passenger seat where [Billingsley] was sitting . . . a clear plastic baggie containing . . . a green leafy plant substance that [Officer Lichtsinn] immediately recognized . . . to be marijuana.” State’s  The substance field tested positive for marijuana and was later measured at 229.7 grams. No firearm was found on or near Billingsley. [ii]

Billingsley was charged with drug offenses and filed a motion to suppress the evidence.  The motion was denied and he was convicted at a bench trial.  He subsequently appealed to the Indiana Court of Appeals.

The two issues on appeal were identified as follows:

1. Whether the officer responding to a 9-1-1 call initiated an investigatory stop of Billingsley or, instead, placed Billingsley under arrest when the officer withdrew his firearm upon his arrival at the scene; and

2. Whether the responding officer had a reasonable and articulable suspicion to initiate an investigatory stop of Billingsley. [iii]

Regarding the first issue, the court first examined legal principals involved.  The court first noted that investigatory stops are based upon the legal standard of reasonable suspicion.  Reasonable suspicion requires a lower standard of proof than probable cause.  The court stated:

In Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court held that an officer may, consistent with the Fourth Amendment, conduct a brief investigatory stop when, based on a totality of the circumstances, the officer has a reasonable, articulable suspicion that criminal activity is afoot. Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006). A Terry stop is a lesser intrusion on the person than an arrest and may include a request to see identification and inquiry necessary to confirm or dispel the officer’s suspicions. Id. (citing Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 185-89, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004)).  Reasonable suspicion entails some minimal level of objective justification for making a stop, something more than an unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. Wilson v. State, 670 N.E.2d 27, 29 (Ind. Ct. App. 1996) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)). [iv]

Regarding arrests, the court stated:

An arrest, on the other hand, occurs “when a police officer interrupts the freedom of the accused and restricts his liberty of movement.” Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996). An arrest requires probable cause. See, e.g., Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010). There is no question that “[h]olding a person at gunpoint certainly restrains his liberty of movement” and may be an example of an arrest. Taylor v. State, 464 N.E.2d 1333, 1335 (Ind. Ct. App. 1984). But “there is no ‘bright line’ for evaluating whether an investigative detention is unreasonable” such that it has been transformed into a full arrest. See Mitchell v. State, 745 N.E.2d 775, 782 (Ind. 2001) (quoting United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985)). [v]

Thus, the court had to decide whether the officer’s display of his firearm at Billingsley until back-up arrived, transformed what would normally have been considered an investigatory stop into an arrest by significantly restricting Billingsley’s freedom of movement.    If the display of the firearm was an “arrest,” then probable cause would have been required for the encounter at the moment the incident evolved into an arrest.  If there was no probable cause, then the encounter would be deemed a constitutional violation and evidence obtained, such as the drugs, must be suppressed.

After considerable analysis by the court, the court held that encounter was not an arrest, despite the display of the weapon.  The court articulated the standard as follows:

[W]hether an officer’s use of a firearm to detain a suspect is pursuant to an investigatory stop or an arrest is dependent on whether the totality of the facts and circumstances before the officer at that time demonstrated a specific and reasonable belief that the suspect may be armed with a weapon. [vi]

The court held that it was reasonable for the officer to display his weapon at Billingsley because (1) the officer knew the area of the call was a dangerous area, (2) the officer knew Billingsley was a convicted felon, (3), the officer knew Billingsley associated with other dangerous people, and (4) the officers display of the firearm was limited in that he holstered when back-up arrived.  The court then stated:

Officer Lichtsinn’s limited use of his firearm temporarily froze the situation until backup could arrive and he could complete his investigative inquiry in a safer environment without his firearm. We conclude that the totality of these circumstances describes an investigatory stop under Terry v. Ohio and not an arrest. [vii]

Since the court held the encounter was an investigatory stop, they now had to determine whether there was sufficient reasonable suspicion to justify that stop.  Billingsley argued that the original caller, Renita Brown, should be considered an anonymous caller because she could not be subsequently located.

Whether the caller, Ms. Brown, is considered an anonymous caller is significant in that information provided by anonymous callers are given less credibility or weight in an analysis as to whether reasonable suspicion existed for the stop.  Specifically, the court stated:

Reliability of the professional informant or anonymous tipster generally must be established by reference to underlying facts and circumstances which indicate that the information is trustworthy. Our requirement for corroboration is necessitated because this type of information may be unreliable or self-serving, especially if given in return for favors such as money or leniency in possible criminal prosecution. On the other hand, we recognize a concerned citizen tip is different. This tip is made up of people who may have been victims of crime or have witnessed a crime. These individuals generally come forward with information out of a spirit of good citizenship and a desire to help law enforcement. Some jurisdictions have therefore held informants of this type are considered more reliable. In Kellems [v. State, 842 N.E.2d 352, 356 (Ind. 2006), rev’d on other grounds, 849 N.E.2d 1110 (Ind. 2006)], we again reaffirmed our belief that there “may well be great indicia of reliability in the report of the ‘concerned citizen’ as distinguished from the ‘professional informant’—though again the totality of the circumstances controls.” These concerned citizens are usually one-time informants, and no basis exists from prior contacts to determine their reliability . . . .State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011) (citations omitted); see also Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) (distinguishing known informants from anonymous informants);… [viii]

The court also noted that Billingsley was misstating the standard that must be applied.  The correct standard was whether the information received by the officer at the moment of the stop would, taken together with rationale inferences, would lead a person to believe criminal activity was afoot. [ix]  In light of this, the court examined several facts that establish that the officer did possess a reasonable belief that criminal activity was taking place when he detained Billingsley.

First, Brown called 911 to report an emergency, rather than merely calling a police station to provide information.  The police are entitled to give 911 calls greater credibility because they must respond to dispatches and emergencies. [x] Second, Brown was considered a concerned citizen rather than an anonymous caller; therefore, her information is given greater weight or credibility than an anonymous caller.  Third, upon arrival, the officer located Billingsley at the described vehicle, which verified the caller’s information.  Fourth, the officer believed Brown would be located after their initial response.  Additionally, the court noted that the police are not required to conduct a pre-response verification of a caller’s identity before responding to a 911 call.  As such, the court held that:

[B]ased on the totality of the facts and circumstances known to Officer Lichtsinn at the time he detained Billingsley, we conclude that Officer  Lichtsinn had a reasonable and articulable suspicion that Billingsley may have been involved in criminal activity. Officer Lichtsinn had been informed, by a concerned citizen who had called 9-1-1, of a known felon with a firearm at a location known to be dangerous. Accordingly, Officer Lichtsinn’s Terry stop of Billingsley did not violate Billinglsey’s Fourth Amendment rights. For the same reasons, Billingsley’s claim under Article I, Section 11 of the Indiana Constitution must fail.E.g., Sowers v. State, 724 N.E.2d 588, 591-92 (Ind. 2000). [xi]


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] 980 N.E. 2d 402 (Ind. Ct. App. 2012); 2012 Ind. App. LEXIS 601

[ii] Id. at 2-5

[iii] Id. at 1

[iv] Id. at 6-7

[v] Id. at 7

[vi] Id. at 9-10

[vii] Id. at 11

[viii] Id. at 13-14

[ix] Id. at 15-16

[x] Id, at 18

[xi] Id. at 19-20

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