Question: Does the pulling and pointing of a gun by an officer always mean an arrest has occurred? Answer: No, officer may have reasonable suspicion the person is armed.
In 2011, the 911 dispatcher received a call. The woman said there was a man at the VFW who had held her hostage and that she wanted the police to lock him up. The caller stated that the man was armed; that his name was Phillip Billingsley; and that he was sitting as a passenger in a SUV. An Officer was dispatched to the scene. The Officer knew that Billingsley had been arrested for possession of a handgun by a felon and that Billingsley hung around with people who have since been convicted of murder. Upon arriving, the Officer observed Billingsley in the passenger seat. The Officer 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. The Officer handcuffed Billingsley and patted him down for weapons when he smelled marijuana. The Officer then observed a plastic baggie of marijuana. The State charged Billingsley with possession of marijuana. Billingsley moved to suppress the marijuana and the trial court denied the motion. The court found Billingsley guilty.
On appeal, the parties dispute whether the officer exiting his vehicle with his firearm drawn subjected Billingsley to an investigatory stop or an arrest. An investigatory stop allows a police officer to temporarily freeze the situation in order to make an investigative inquiry. The 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. 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. 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. An arrest, on the other hand, occurs when a police officer interrupts the freedom of the accused and restricts his liberty of movement. An arrest requires probable cause. There is no question that holding a person at gunpoint certainly restrains his liberty of movement and may be an example of an arrest. But there is no bright line for evaluating whether an investigative detention is unreasonable such that it has been transformed into a full arrest.
Thus, whether 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. Here, the Officer was responding to a call that Billingsley was armed, knew the VFW to be a dangerous area, knew Billingsley, knew Billingsley to be a convicted felon, and knew Billingsley had a history of dangerous acquaintances. On these facts, the Officer withdrew his firearm only because he had a specific and reasonable belief that Billingsley may have been armed. It would have been unreasonable to expect the Officer to approach Billingsley without his gun drawn because the risk to the officer’s safety was simply too great. And Officer’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 to lawfully detained Billingsley during an investigatory stop. Accordingly, the State lawfully seized the discovered marijuana and the trial court did not error in admitting that evidence against Billingsley. Thus, we affirm Billingsley’s conviction. 980 N.E.2d 402 (Ind. App 2012).