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INDIANAPOLIS -- While wearing gang colors may be suspicious, its not enough to justify a stop by police unless criminal activity is involved, the Indiana Supreme Court said this week.

As a result of the decision, Jordan Jacobs, Indianapolis, had his conviction reversed for Class A misdemeanor possession of a handgun. The state court ruled that a police search leading to Jacobs arrest in 2015 was not allowed under the Fourth Amendment to the Constitution.

On Aug. 31, 2015, there had been numerous reports of gunshots fired on Indianapolis northeast side by youths wearing red clothing, indicating gang membership. The location near 30th Street and Keystone Avenue was known as a high crime area and police placed more attention on patrols.

Two days later during the afternoon, an Indianapolis police officer saw young men who looked like they should be in school at Beckwith Park, according to court records. Some of the teens were wearing red clothing. Jacobs, then 18, had been seen earlier carrying a red T-shirt.

When a park rangers car was in the area, Jacobs and another man walked away. They returned after the car left and Indianapolis Metropolitan Police Department officer Terry Smith, who is a gang detective, called for assistance. Smith ordered Jacobs to stop but he walked away. Another officer assisted in ordering Jacobs to the ground. Although handcuffed, Jacobs was told he was not under arrest but police saw a gun outlined in Jacobs pocket.

In Marion County court, Jacobs attorney objected to admitting the handgun into evidence on the grounds that the officers did not have reasonable suspicion to stop him under the Fourth Amendment. During a bench trial, Jacobs was found guilty and sentenced to one year probation.

In November, the Indiana Court of Appeals was split but found that Jacobs behavior in evading police in a high crime area provided enough suspicion that a crime was afoot.

The Indiana Supreme Court said that the officers belief that Jacobs was truant at 2 p.m. that day was enough for an investigatory stop. But the actual stop occurred after school had let out for the day.

The court also addressed Jacobs clothing. Membership in a gang, by itself, does not provide the basis for prosecution for criminal gang activity, Justice Mark S. Massa wrote. The State must prove that the individual was aware of the gangs criminal purpose.

He continued, Jacobs display of a red garment (which he was never wearing, and did not have at the time police approached), while standing among those clad in red, was thus insufficient to justify an investigatory stop under the Fourth Amendment.

The court said there was nothing to link Jacobs to the earlier gunfire.

Fourth Amendment

The Fourth Amendment states, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Gang membership doesn't color a crime, court says - Greensburg Daily News