Rucker, J.
Charged with possession of a firearm Defendant moved to suppress the evidence on both federal and state constitutional grounds. The trial court denied the motion. After de novo review, we reverse the judgment of the trial court.
On February 20, 2015, patrol officers with the Indianapolis Metropolitan Police Department received a dispatch advising “there was a couple in a taxi cab. And upon exiting the taxi cab . . . a black male dropped a handgun and the taxi driver [felt] he was going to be robbed, he was afraid.” … Officer Jason Palmer responded to the dispatch and was the first officer to arrive on the scene—the Studio Movie Grill. … And although the taxi driver reported “he was feared [sic] that he might be robbed,” in fact “he wasn’t actually robbed.” And the driver made no claim the man had threatened him with the weapon.
… The officers approached the seated Pinner with Officer Palmer “standing on one side and Officer Stewart was standing on the other side[.]” … Officer Palmer then asked Pinner if he possessed a weapon. … Although hesitant to answer, he denied having a weapon. Officer Palmer then instructed Pinner to “stand up and keep his hands up” where they could be seen; Pinner complied and Officer Palmer saw the butt of a gun in Pinner’s front pocket. Officer Palmer secured the weapon and detained Pinner for further investigation.
Pinner was arrested and charged with class A misdemeanor carrying a handgun without a license enhanced to a level 5 felony due to a prior felony conviction. He filed a motion to suppress, contending the search and seizure were conducted in violation of both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Following a hearing, the trial court denied the motion concluding the officers had reasonable suspicion to approach and question Pinner. … Pinner filed a Petition to Certify the Order for Interlocutory Appeal, which the trial court granted. The Court of Appeals accepted jurisdiction and, in a divided opinion, reversed the judgment of the trial court, concluding “no reasonable suspicion justified the investigatory stop. . . .” Pinner v. State, 59 N.E.3d 275, 276 (Ind. Ct. App. 2016). The State petitioned for transfer which this Court previously granted. …
… police may— without a warrant—stop an individual for investigatory purposes if, based upon specific, articulable facts, the officer has reasonable suspicion that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). Here Pinner contends the officers lacked reasonable suspicion that he was committing or was about to commit a crime to justify the investigatory stop. Specifically, he alleges the tip from the cab driver did not provide the officers with information sufficient to demonstrate he was engaged in or about to engage in criminal activity.
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We observe that “[e]ven a reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.’” Navarette v. California, 572 U.S. ___ , ___, 134 S. Ct. 1683, 1690 (2014) (emphasis added) (quoting Terry, 392 U.S. at 30). Assuming without deciding the tip from the taxicab driver was reliable, the threshold question is whether the mere allegation that Pinner possessed a handgun—without more—is sufficient to establish that Pinner “[wa]s, or [wa]s about to be, engaged in criminal activity.” Clark, 994 N.E.2d at 264 (citation omitted). And the criminal activity advanced by the State in this case is that “Defendant was carrying a handgun for which he had no license . . . or that some other criminal activity was afoot.”
Recognizing the Second Amendment right to bear arms, all states permit the exercise of this constitutional right under certain prescribed circumstances. … in instances where, as in this jurisdiction, possession of a weapon is not per se illegal, states are reluctant to permit a “firearm or weapons exception” to the constitutional limitations already imposed by Terry.
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In the case before us, the tip provided by the taxi driver made no “assertion of illegality,” rather it merely had a “tendency to identify a determinate person” who was in possession of a handgun. … Even taking his tip as true and assuming that Pinner was the man the taxi driver described, the officers had no reason to suspect that Pinner did not have a valid license to carry the handgun, an illegal act in this jurisdiction. … In essence, other than the taxi driver’s claims of being fearful because he had a seen an individual matching Pinner’s description “drop a handgun” there is no evidence in the record from which an inference of criminal activity can be drawn. And a “bare-boned tip[] about guns” is insufficient.
The State contends that because Pinner “acted nervous” when being questioned the officers possessed additional facts to support reasonable suspicion. Even assuming that “rocking back and forth” and “wringing” one’s hands is indicative of nervous behavior, the question is whether this behavior gave rise to reasonable suspicion of criminal activity. There is no crime in rocking back and forth and wringing one’s hands. …
We also disagree with the State that “the officers were permitted under the Fourth Amendment to briefly detain Defendant to ascertain the legality of the weapon and dispel any suspected criminal activity.” The United States Supreme Court has previously declared that law enforcement may not arbitrarily detain an individual to ensure compliance with licensing and registration laws without particularized facts supporting an inference of illegal conduct. See Prouse, 440 U.S. at 663 … In like fashion, we decline to endorse such behavior to ensure compliance with Indiana’s gun licensing laws. … Once challenged, the State had the burden to show that under the totality of the circumstances the intrusion by police was reasonable. Bannister v. State, 904 N.E.2d 1254, 1256 (Ind. 2009). Based on this record, we find that it has not.
… At stake here is whether the evidence obtained by the conscientious officers in this case can be used against the Defendant without violating his Fourth Amendment rights. On the facts of this case, we find that it cannot.
Upon de novo review we conclude the evidence was obtained in violation of the Fourth Amendment and thus the trial court erred in denying the Defendant’s motion to suppress. We therefore reverse the judgment of the trial court and remand this cause for further proceedings.
Rush, C.J., and David, Massa and Slaughter, JJ., concur.