May, J.
Thomas Pinner appeals the denial of his motion to suppress. As no reasonable suspicion justified the investigatory stop, we reverse.
On February 20, 2015, Indianapolis Metropolitan Police Department officers Jason Palmer and George Stewart responded to a call from a cab driver regarding a passenger who dropped a handgun when exiting the cab at the Studio Movie Grill. …
On entering the Studio Movie Grill, the officers …told him there was a report of a man with a gun, and asked if he had a gun on him. Pinner denied having a gun but was shuffling nervously and was hesitant to answer. … When Pinner stood up, Officer Palmer could see the butt of a gun in his front pocket. Officer Palmer secured the gun for police safety and detained Pinner. He learned Pinner did not have a license to carry a handgun and placed him under arrest.
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Here, two armed and uniformed officers approached and questioned Pinner, who was sitting alone in a theatre lobby. … The officers approached Pinner with an official purpose and asked questions for which the answers could have criminal implications. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) … The two officers stood in front of Pinner – one to his right and one to his left – as he sat on a bench. Though the officers asserted before the trial court that Pinner could have walked away, we do not believe any reasonable citizen would have felt free to disengage from the officers without answering their question. See State v. Felker, 819 N.E.2d 870, 875 (Ind. Ct. App. 2004) … The interaction was not consensual; it was an investigatory stop, commonly referred to as a Terry stop.
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Mere possession of a firearm, which is legal, cannot produce reasonable suspicion to justify a Terry stop. See Malone v. State, 882 N.E.2d 784 (Ind. Ct. App. 2008) (evidence suppressed because possession of a handgun on a porch did not give officers sufficient evidence of criminal activity to justify stop), reh’g denied. The State has not directed us to a reason why the police believed when they stopped Pinner that his possession of the gun was illegal, nor has the State asserted any other criminal activity was “afoot.” Accordingly, we are constrained to hold the stop of Pinner was not supported by reasonable suspicion. See, e.g., id.
As the officers did not have reasonable suspicion to stop Pinner and this was not a consensual encounter, the trial court abused its discretion when it denied his motion to suppress. As such, we reverse.
Reversed.
Baker, J., concurs.
Brown, J., dissents with separate opinion.
I respectfully dissent from the majority’s conclusion that the trial court abused its discretion when it denied Pinner’s motion to suppress. …
I believe that the encounter between Pinner and Officers Palmer and Stewart was consensual and that reasonable suspicion arose when the officers observed Pinner’s gun immediately after he told the officers that he was not armed. …
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… Thus, I would find that given the totality of the circumstances, the interaction between the officers and the confiscation of Pinner’s gun did not violate Pinner’s rights under Article 1, Section 11 of the Indiana Constitution.