MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 20 2017, 7:19 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthoni C. Thornburgh, January 20, 2017 Appellant-Defendant, Court of Appeals Case No. 05A02-1605-CR-1091 v. Appeal from the Blackford Superior Court State of Indiana, The Honorable Appellee-Plaintiff. J. Nicholas Barry, Judge Trial Court Cause No. 05D01-1511-CM-271
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 1 of 13 [1] Anthoni C. Thornburgh (“Thornburgh”) appeals his conviction, following a
bench trial, for possession of marijuana1 as a Class B misdemeanor. During a
valid traffic stop of the vehicle in which Thornburgh was a passenger, sheriff’s
deputies conducted a dog sniff around the vehicle. After the drug-detection dog
(“K-9”) alerted to the presence of an illegal substance, deputies searched the
vehicle and found marijuana. Thornburgh unsuccessfully moved to suppress
that evidence, arguing that the dog sniff prolonged the traffic stop in violation of
his Fourth Amendment rights. The evidence was subsequently admitted at trial
over Thornburgh’s continuing objection. The sole restated issue for our review
is whether the trial court abused its discretion in admitting the evidence
obtained as a result of the search. Finding no abuse of discretion, we affirm.
Facts and Procedural History [2] On July 3, 2016, around 10:15 p.m., Deputy Michael Goldsmith (“Deputy
Goldsmith”) and Lieutenant James Heflin (“Lieutenant Heflin”), both with the
Blackford County Sheriff’s Office, were on patrol when they received
information from a Delaware County Drug Task Force Agent. The Agent
reported that two vehicles—a white Buick and a maroon Malibu—were
traveling in tandem from Muncie to Hartford City and were believed to be
carrying illegal drugs. Numerous deputies were alerted to this information.
Identifying two such vehicles traveling north on State Highway 3, Deputy
1 See Ind. Code § 35-48-4-11(a).
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 2 of 13 Goldsmith and Lieutenant Heflin began following the Buick, while other
deputies followed the Malibu. Soon thereafter, Deputy Goldsmith and
Lieutenant Heflin observed the Buick illegally cross the highway’s center line
and initiated a traffic stop just north of the intersection of County Road 200
South and State Road 3. Deputy Goldsmith approached the Buick on the
driver side, while Lieutenant Heflin approached on the passenger side. There,
the deputies noted a female driver (“the driver”) and male passenger (“the
passenger”) in the front seat and two children in car seats and a male passenger,
later identified as Thornburgh, in the back seat.
[3] Deputy Goldsmith explained the reason for the stop and asked the driver for
her license, registration, and proof of insurance. Following standard
department procedure, Deputy Goldsmith also asked the passenger and
Thornburgh for their names and identifying credentials. He then informed the
adults in the Buick (“occupants”) that he intended to have his K-9 conduct a
“clean air sniff around the vehicle” and explained to the occupants “the simple
K-9 instructions.” Tr. at 10. Deputy Goldsmith instructed the driver to shut off
the vehicle and roll up the windows. While walking back to their patrol car,
Deputy Goldsmith asked Lieutenant Heflin to do a records search, i.e., run the
occupants’ names through dispatch to check if the driver had a valid license and
if the occupants had outstanding warrants. Id. Meanwhile, other deputies
continued to follow the Malibu and remained in radio contact with dispatch.
[4] Lieutenant Heflin testified at trial that, when Deputy Goldsmith gave him the
identification information, he “took over the traffic stop at that point”;
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 3 of 13 however, radio traffic prevented him from immediately running the records
search. Id. at 64-65. Meanwhile, Deputy Goldsmith retrieved his K-9 and
walked the dog around the vehicle; the dog alerted to the presence of an illegal
drug in the Buick. Lieutenant Heflin was able to complete the document
investigation only after the K-9 alerted to the illegal substance. Id. at 65.
Approximately three and a half minutes passed from the beginning of the traffic
stop until the K-9 alerted.
[5] Based on the K-9’s alert, the occupants were asked to exit the vehicle. A search
of Thornburgh’s person revealed “a set of digital weighing scales” and $25 in
one dollar bills. Tr. at 13. A subsequent search of the Buick revealed a zip-
lock-style bag containing marijuana, which deputies found hidden under a child
car seat next to where Thornburgh had been seated. The large bag weighed
121.9 grams and held four individual bags containing smaller quantities of
marijuana. Thornburgh was arrested, was read his Miranda rights, and
confessed to the knowledge of the existence of the marijuana and to his
ownership of it. The State charged Thornburgh with possession of marijuana as
a Class B misdemeanor.
[6] Prior to trial, Thornburgh filed a motion to suppress the marijuana found in the
course of the traffic stop, arguing that it was found only as the result of an
unlawfully extended stop. The trial court denied Thornburgh’s motion after a
hearing. Thornburgh again objected to the admission of the marijuana at trial,
and the trial court, relying on the same rationale from the suppression hearing,
overruled Thornburgh’s objection and allowed the marijuana to be admitted.
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 4 of 13 Id. at 45-46. Thornburgh was convicted of possession of marijuana and was
sentenced to one hundred and eighty days in jail, all suspended except for time
served. Thornburgh was placed on supervised probation for 365 days.
Thornburgh now appeals.
Discussion and Decision [7] We begin by noting that, although Thornburgh correctly frames his issue on
appeal as “[w]hether the trial court abused its discretion by admitting evidence
obtained in the course of a traffic stop,” Appellant’s Br. at 4, his citation to Holder
v. State, 847 N.E.2d 930, 935 (Ind. 2006) and Campos v. State, 885 N.E.2d 590,
596 (Ind. 2008)—two interlocutory appeals challenging a trial court’s denial of
a motion to suppress—suggest he is appealing the denial of his motion to
suppress. Appellant’s Br. at 7. Where, as here, a defendant does not seek
interlocutory review of the denial of a motion to suppress certain evidence, and
the case proceeds to trial, our review is whether the trial court abused its
discretion when it admitted that same evidence at trial. 2 See Weathers v. State, 61
N.E.3d 279, 284 (Ind. Ct. App. 2016) (citing Carpenter v. State, 18 N.E.3d 998,
1001 (Ind. 2014)) (where defendant did not seek interlocutory review of denial
2 We note this distinction because it is important as a procedural matter. “The difference between the standard of review we apply to the trial court’s ruling on a motion to suppress evidence and the standard of review we apply to the trial court’s ruling on the admissibility of evidence at trial lies in the facts the trial court can consider when making its decision.” Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014). “If the foundational evidence at trial is not the same as that presented at the suppression hearing, the trial court must make its decision based upon trial evidence and may consider hearing evidence only if it does not conflict with trial evidence.” Id. Here, because the foundational evidence at the suppression hearing was the same as that presented at trial, we base our decision on evidence presented at both the suppression hearing and the trial.
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 5 of 13 of motion to suppress certain evidence, defendant’s appeal constituted request
to review trial court’s decision to admit same evidence at trial).
[8] A trial court has broad discretion in ruling on the admission or exclusion of
evidence. Hansbrough v. State, 49 N.E.3d 1112, 1114 (Ind. Ct. App. 2016), trans.
denied. “We review its rulings ‘for abuse of that discretion and reverse only
when admission is clearly against the logic and effect of the facts and
circumstances and the error affects a party’s substantial rights.’” Guilmette v.
State, 14 N.E.3d 38, 40 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252, 259
(Ind. 2013)). “[W]hen reviewing a trial court’s ruling on the admissibility of
evidence obtained from an allegedly illegal search, we do not reweigh the
evidence but defer to the trial court’s factual determinations unless clearly
erroneous.” Weathers, 61 N.E.3d at 284 (citing Hansbrough, 49 N.E.3d at 1114).
Further, we view conflicting evidence in the light most favorable to the ruling,
and we consider any legal question of the constitutionality of a search and
seizure de novo. Id.
[9] Thornburgh contends that the marijuana recovered from the Buick should not
have been admitted into evidence because it was obtained during a search that
violated his rights under the Fourth Amendment to the United States
Constitution.3 The Fourth Amendment protects persons from unreasonable
3 “Although nearly identical in wording, the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution are independently interpreted and applied.” Russell v. State, 993 N.E.2d 1176, 1179 (Ind. Ct. App. 2013). “An appellant’s failure to provide us with a separate analysis
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 6 of 13 search and seizure and this protection has been extended to the states through
the Fourteenth Amendment. Hansbrough, 49 N.E.3d at 1114. Because a minor
traffic violation is sufficient to give an officer probable cause to stop the driver
of a vehicle, such police action does not implicate a driver’s rights under the
Fourth Amendment. Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2015).
Further, the Indiana Supreme Court has recognized that a reasonable dog sniff
is not a search for purposes of the Fourth Amendment. Id. “However, such a
sweep is an unreasonable investigatory detention if the motorist is held for
longer than necessary to complete the officer’s work related to the traffic
violation and the officer lacks reasonable suspicion that the motorist is engaged
in criminal activity.” Id.
[10] Here, the driver of the Buick was pulled over after she illegally crossed the
center line of a highway; Thornburgh does not dispute the validity of that initial
traffic stop. Instead, citing to Rodriguez v. United States, 135 S. Ct. 1609 (2015),
he asserts that the stop became unlawful under the Fourth Amendment because
Deputy Goldsmith’s K-9 instructions to the occupants and the subsequent dog
sniff prolonged the stop beyond the time reasonably required to complete the
original purpose of the stop, and the deputies lacked reasonable suspicion that
Thornburgh was engaged in criminal activity to otherwise extend the stop.
Appellant’s Br. at 6-9. Therefore, he argues that the subsequent search of the
for each constitutional claim constitutes waiver.” Id. The State contends that Thornburgh has waived any claim under the Indiana Constitution by failing to provide an independent analysis. We agree.
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 7 of 13 Buick was illegal and the evidence obtained during that search was inadmissible
under the reasoning in Rodriguez. We disagree.
[11] In Rodriguez, a K-9 officer observed a Mercury Mountaineer illegally cross onto
the shoulder of a Nebraska state highway, and he pulled the vehicle over at
12:06 a.m. Rodriguez, 135 S. Ct. at 1612. The K-9 officer’s dog remained in the
patrol car while the K-9 officer approached the Mountaineer and gathered the
license, registration, and insurance information from the driver, later identified
as Rodriguez. Id. at 1613. After completing a records check, the K-9 officer
returned to the Mountaineer, asked the passenger for his license, and began
questioning the passenger about where the two men were coming from and
where they were going. Id. The K-9 officer again returned to his patrol car,
completed his records check on the passenger, and called for a second officer.
Id. The K-9 officer wrote a warning ticket for the moving violation and
returned a third time to the Mountaineer to issue the warning to Rodriguez. Id.
By 12:27 or 12:28 a.m., the K-9 officer “had finished explaining the warning to
Rodriguez,” and had returned all documents to Rodriguez and his passenger.
Id. The K-9 officer later testified that, at that point, Rodriguez and his
passenger “had all their documents back and a copy of the written warning. I
got all the reason[s] for the stop out of the way[,] ... took care of all the
business.” Id. (citation omitted).
[12] Although the justification for the traffic stop was “out of the way,” the K-9
officer asked permission to walk his dog around the Mountaineer. Id. When
Rodriguez refused, the K-9 officer instructed Rodriguez to turn off the ignition,
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 8 of 13 exit the car, and stand in front of the patrol car to wait for the other responding
officer. Id. Rodriguez complied, and the other officer arrived at 12:33 a.m.
The K-9 officer then retrieved his dog and led him twice around the
Mountaineer. The dog alerted to the presence of drugs on the second pass.
“All told, seven or eight minutes had elapsed from the time the [K-9 officer]
issued the written warning until the dog indicated on the presence of drugs.”
Id. A search of the Mountaineer revealed a large bag of methamphetamine. Id.
[13] The federal district court denied Rodriguez’s motion to suppress the evidence
found during the search. Noting that in the Eighth Circuit “dog sniffs that
occur within a short time following the completion of a traffic stop are not
constitutionally prohibited if they constitute only de minimis intrusions,” the
district court found that seven to ten minutes added to the stop by the dog sniff
“was not of constitutional significance.” Id. at 1613-14 (citation omitted).
Based on that determination, Rodriguez entered a conditional guilty plea and
was sentenced to five years in prison. Id. at 1614. On appeal, the Eighth
Circuit affirmed, finding that the “seven- or eight-minute delay” resembled
delays that the court had previously ranked as permissible. Id. at 1614. As
such, the Eight Circuit found that the delay constituted an acceptable “de
minimis intrusion on Rodriguez’s personal liberty.” Id. at 1614.
[14] The United States Supreme Court granted certiorari to “resolve a division
among lower courts on the question whether police routinely may extend an
otherwise-completed traffic stop, absent reasonable suspicion, in order to
conduct a dog sniff.” Id. The Rodriguez Court determined, that “the tolerable
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 9 of 13 duration of police inquiries in the traffic-stop context is determined by the
seizure’s ‘mission’—to address the traffic violation that warranted the stop and
attend to related safety concerns. Id. at 1614 (citation omitted). The Court
held, “Because addressing the infraction is the purpose of the stop, it may ‘last
no longer than is necessary to effectuate th[at] purpose.’” Id. (citation omitted).
“Authority for the seizure thus ends when tasks tied to the traffic infraction
are—or reasonably should have been—completed.” Id. Noting that “the
Fourth Amendment tolerated certain unrelated investigations that did not
lengthen the roadside detention,” the Rodriguez Court cautioned that a traffic
stop “can become unlawful if it is prolonged beyond the time reasonably
required to complete th[e] mission” of issuing a warning ticket. Id. at 1614-15
(citations omitted). As such, the Rodriguez Court rejected the government’s
suggestion that an officer may incrementally prolong a dog sniff so long as the
officer is reasonably diligent in pursuing the traffic-related purpose of the stop.
Instead, the Court found the “critical question” is not, “whether the dog sniff
occurs before or after the officer issues a ticket,” but “whether conducting the
sniff ‘prolongs’—i.e., adds time to—‘the stop.’” Id. at 1616. In Rodriguez, the
Court found that the dog sniff did prolong the traffic stop.
[15] Recently, this court applied the Rodriguez analysis to determine whether a dog
sniff prolonged a traffic stop in Hansbrough and Washington v. State, 42 N.E.3d
521 (Ind. Ct. App. 2015) (rehearing opinion reaffirming conviction pursuant to
Rodriguez and concluding that dog sniff did not prolong traffic stop), opinion on
reh’g, trans. denied, cert. denied, 137 S. Ct. 35 (2016). In Washington, the
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 10 of 13 defendant was pulled over by an officer for a driving infraction. Washington, 42
N.E.3d at 523. The officer asked Washington a few questions and returned to
his patrol car less than three minutes later. While in his vehicle, the officer’s
computer “was in a dead spot and after four or five minutes of not receiving a
response, he contacted control.” Id. About eight minutes after the stop,
dispatch informed the officer that Washington had a valid driver's license. Id.
Two minutes later and less than eleven minutes after Washington’s vehicle had
been stopped, a K-9 officer deployed his dog. At that time, the officer had not
completed the electronic ticket. About one minute later, the K-9 indicated the
presence of an illegal drug. Id. at 524. Finding no conflict with Rodriguez, our
court on rehearing agreed that the stop was not prolonged by the dog sniff and,
therefore, found no abuse of discretion in the trial court’s act of admitting the
evidence found as a result of the dog sniff. Id.
[16] In Hansbrough, an officer legally stopped Hansbrough for “following less than
one second of braking distance behind another vehicle.” Hansbrough, 49 N.E.3d
at 1113. The officer asked Hansbrough for his license, registration, and
insurance information and also asked Hansbrough where he had come from
and where he was headed. Id. While speaking with Hansbrough, the officer
“observed what he believed to be marijuana ‘shake’” near the cup holder and,
based on this observation, suspected the presence of drugs. Id. Accordingly,
while walking back to his police vehicle with Hansbrough’s documents, the
officer called a K-9 unit to the scene. The officer then sat in his patrol car and
began typing out a warning ticket and running Hansbrough’s records check.
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 11 of 13 The officer returned once to Hansbrough’s vehicle to verify his address. Id.
About fourteen minutes after the commencement of the traffic stop, the K-9
unit arrived at the scene. Id. At that time, the officer was on the phone
checking for any outstanding warrants and had not yet completed his
paperwork for the traffic stop. Id. Sixteen minutes after the traffic stop began,
the K-9 officer conducted a dog sniff around Hansbrough’s vehicle, and the dog
“alerted to the presence of narcotics.” Id. The officer was still on the phone
checking for warrants at the time the K-9 alerted. Id. Based on the alert, the
officers searched Hansbrough’s car and found a handgun underneath the
driver’s seat. Id. at 1114. Our court found that the traffic stop was not
completed and, therefore, the stop was not prolonged by the dog sniff. Id. at
1115. Accordingly, we held that the trial court did not abuse its discretion by
admitting the evidence found as the result of the dog sniff. Id.
[17] Thornburgh states, without more, that the instant case can be distinguished
from Washington and Hansbrough. Appellant’s Br. at 8. We disagree. In fact, we
find the facts and holdings in Rodriguez, Washington, and Hansbrough bolster the
trial court’s determination in the present case that Thornburgh’s traffic stop was
not unconstitutionally prolonged by the dog sniff. Here, the facts and
inferences from the record before us indicate that the dog sniff was conducted
while the traffic stop was ongoing and, pursuant to Rodriguez, the dog sniff
occurred prior to the completion of the “mission” of the traffic stop. Rodriguez,
135 S. Ct. 1615. Deputy Goldsmith stopped the vehicle and obtained the
occupants’ names and pertinent information, and Lieutenant Heflin assumed
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 12 of 13 the duty of running the records check. Deputy Goldsmith testified during the
suppression hearing that a “car camera” in his cruiser was running during the
traffic stop and that the camera created a video of the pertinent portions of the
stop. Tr. at 11. The DVD of that video, which the State played during the
suppression hearing, revealed that Deputy Goldsmith spoke with the driver for
about two minutes and then spent about one and a half minutes retrieving his
K-9 and running him around the Buick. Id. at 12-13. In all, only three and a
half minutes passed between the time the Buick was pulled over and the time
the K-9 alerted to the drugs in the Buick. Although Thornburgh argues that
Deputy Goldsmith’s act of conducting the dog sniff added time to the traffic
stop, the trial court disagreed, reasonably believing Lieutenant Heflin’s
testimony that radio traffic on the dispatch radio prevented him from
completing the occupants’ records check until after the K-9 had alerted to an
illegal substance in the Buick. Tr. at 22-23. On appeal, “we do not reweigh the
evidence, we consider conflicting evidence in a light most favorable to the trial
court’s ruling, and we defer to the trial court’s factual determinations unless
clearly erroneous. State v. Gray, 997 N.E.2d 1147, 1150 (Ind. Ct. App. 2013),
trans. denied (2015). Because the dog sniff did not illegally prolong the traffic
stop, the search and seizure were constitutional under the Fourth Amendment.
Accordingly, we find that the trial court did not abuse its discretion by
admitting the marijuana into evidence.
[18] Affirmed.
[19] May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017 Page 13 of 13