Carrying a Handgun & the Police’s Right to Search

Carrying and handgun in Indiana:  A Police Officer’s Right to Search

May 9, 2017 the Indiana Supreme Court made a ruling in the case of Thomas Pinner v. State of Indiana under case number 49S02-1611-CR-610, holding that the sole fact a person has a gun is not a sufficient reason for the person to be stopped and searched.

In February 2015, a taxi driver called the police after a man and a woman got out of his cab because when they exited, the man dropped a handgun which caused the cab driver to fear that he was going to be robbed.  The cab driver described the couple as “a black male wearing a blue jacket with a black female with blonde hair.”  When police arrived on the scene when the couple got out of the cab, they driver was no longer there so the police called him and learned that he wasn’t sure if the gun had fallen on the ground or if, in fact, it was still in his cab.  The driver never told the police that the man had threatened him with the gun.  The officers observed a man matching the description sitting on a bench which backed up to a wall; therefore, the man had it back against the wall.  Two officers approached him, standing on each side if the man.  This man was Thomas Pinner.  The officers informed Pinner of the reason they were there and then asked him if he had a gun on him.  According to police, once they asked Pinner about a gun he “paused for a few seconds during which he was kind of a little rocking back and forth wringing his hands.”  Officers stated that he was hesitant to answer and then stated that he didn’t have a gun on him.  After that one of the officers told Pinner to “stand up and keep his hands up.”  Pinner did was the officers instructed him to do and when he stood up the butt of a gun was visible in Pinner’s front pocket.  Pinner was then detained for further investigation which revealed that not only was he unlicensed to carry a gun but that he also had a prior felony conviction which meant that he was now facing a level 5 felony for carrying a handgun without a license with a  prior felony.

This case proceeded to trial at which Pinner filed a motion to suppress asserting that the search and seizure was unconstitutional.  The trial court denied his motion finding that “the knowledge and facts known to this officer at the time of the stop was sufficiently particularized and objective to infer possible criminal activity or that criminal activity ‘may be afoot’.”  However, the Court of Appeals reversed the decision of the trial court finding “no reasonable suspicion justified the investigatory stop.”  The State of Indiana then requested to transfer the case the Supreme Court which was, of course, granted.

At the time the officers came into contact with Pinner they had the following information:  a black man wearing a blue jacket was with a black female and that when he got out of a cab, he dropped a gun.  Accordingly, the main question was “whether the mere allegation that Pinner possessed a handgun – without more—is sufficient to establish that Pinner ‘was, or was about to be, engaged in criminal activity’.”  The Supreme Court found that the information provided by the cab driver did not assert any illegality, rather it just provided information in order to identify a particular individual who was in possession of handgun.  And further, simply being in possession of a handgun is not per se illegal. Therefore, the search was improper and unconstitutional. In so finding, the Supreme Court established a rule that mere possession of a handgun is not grounds for the police to conduct to search. There has to be some other illegal activity afoot other than possession of the firearm alone.

If you or somebody you know has been charged with a crime relating to possessing a firearm, how the police came to learn about and/or find the firearm is critical.  Therefore, be sure to contact the experienced criminal defense attorneys at Banks & Brower, LLC.  We offer free consultations and are available any time at either or 317.434.1258.


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Attorneys Brad Banks and Adam Brower are Indianapolis area litigators that focus their practice in Criminal Defense, Family Law, and Personal Injury.
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