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FOR PUBLICATION

ATTORNEY FOR APPELLANT: BRUCE E. ANDIS Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEVIN COLE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A05-0704-CR-208

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Amy Barbar, Magistrate Cause No. 49G02-0608-FC-155946

December 31, 2007 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary After a police officer ordered Kevin Cole ("Cole") back into the car from which he had just exited, Cole fled on foot and then forcibly resisted the officer when the officer later caught up with him. Following Cole's arrest for resisting law enforcement, a pat down search revealed a handgun, and Cole was ultimately convicted of Count I: Carrying a Handgun Without a License as a Class C Felony, Count II: Resisting Law Enforcement as a Class A Misdemeanor (by resisting), and Count III: Resisting Law Enforcement as a Class A Misdemeanor (by fleeing). On appeal, Cole argues that the officer did not have reasonable suspicion to stop him and therefore the handgun later found on his person must be suppressed pursuant to the exclusionary rule. Even assuming the officer did not have reasonable suspicion to order Cole back into the car, by fleeing from and forcibly resisting the officer, Cole committed two new criminal offenses. These actions purged the taint from the unconstitutional investigatory stop, making the exclusionary rule inapplicable. We therefore affirm Cole's convictions. Facts and Procedural History On August 20, 2006, in the early evening, Indianapolis Police Department Officer Shane Decker ("Office Decker") was patrolling the 1400 Block of North King Avenue in Indianapolis, which is in an area known as Haughville, when he noticed a parked, white vehicle with several men standing around it and two men sitting inside. As Officer Decker drove by, some of the men slowly walked away. This behavior caught Officer Decker's attention. So, he parked his car on 12th Street, walked up King Avenue, and observed for fifteen to twenty minutes. During that time, Officer Decker noticed that one 2

of the men who had walked away was outside the car again, leaning in and talking to the two men inside. Additionally, a few of the other men had returned and were standing on the sidewalk next to the car. Officer Decker watched a car pull up and stop alongside the white vehicle for a few moments. Shortly after another car did the same. While the cars were stopped, Officer Decker saw one of the men who was standing outside the white vehicle walk back and forth between it and each of the visiting cars. Moreover, Officer Decker observed a couple of people approach the white vehicle on foot, converse shortly with the men inside, and walk away. Although Officer Decker did not see anything exchanged and merely saw the men in the white vehicle conversing with the various passersby, he called for backup, returned to his patrol car, and pulled up alongside the white vehicle. The men standing outside the vehicle dispersed as Officer Decker exited his car and asked the driver and Cole, who was seated in the passenger's seat, for their identification. At that time, Cole exited the car and began walking away. Officer Decker ordered Cole back into the car. Cole immediately stopped, turned around, and placed both of his hands on the roof of the car. As Officer Decker began to walk around the back of the car, Cole walked toward the front. Then, when Officer Decker walked the other direction, Cole did as well. So, Officer Decker again ordered Cole back into the car. Cole ran. Officer Decker chased Cole on foot, continuously ordering him to stop and lie on the ground. Officer Decker and Cole fell, Officer Decker grabbed Cole, and Cole broke free by pushing Officer Decker away and continued to run through backyards and alleys. In the meantime, Officer Decker's backup, Officer Julian Wilkerson ("Officer 3

Wilkerson"), arrived on the scene. As Cole ran into a front yard, Officer Wilkerson tasered him. Subsequently, Officer Decker handcuffed Cole, placed him under arrest for resisting law enforcement, and read him his Miranda rights. Although Officer Decker briefly patted Cole down, he did not perform a thorough pat down because Cole urinated on himself and Officer Decker did not have rubber gloves. However, once the wagon arrived to transport Cole, another officer performed a complete pat down and found a loaded .22 caliber revolver in Cole's pocket. Thereafter, the State charged Cole with Count I: Carrying a Handgun Without a License as a Class C Felony,1 Count II: Resisting Law Enforcement as a Class A Misdemeanor (by resisting),2 and Count III: Resisting Law Enforcement as a Class A Misdemeanor (by fleeing).3 Before trial, Cole filed a motion to suppress the handgun. The trial court denied the motion, holding that watching people going back and forth between cars provided Officer Decker with reasonable suspicion that criminal activity was afoot. See Appellant's App. p. 31-33; Tr. p. 50-51. At his bench trial, Cole was found guilty of all three counts and sentenced to two years on Count I and one year each for Counts II and III, all sentences to be served concurrently on Community Corrections home detention. Cole now appeals.

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