MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 29 2019, 5:49 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bryan L. Cook Curtis T. Hill, Jr. Carmel, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Edwin David Calligan, March 29, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-199 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D04-1603-F4-28
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 1 of 16 Statement of the Case [1] Edwin David Calligan (“Calligan”) appeals his conviction by jury of Level 4
felony unlawful possession of a firearm by a serious violent felon.1 He argues
that the trial court abused its discretion in admitting evidence of a handgun that
was found during a search of the vehicle that Calligan was driving. Calligan
specifically contends that the initial stop and the subsequent search of the car
violated both the federal and state constitutions. Finding no abuse of the trial
court’s discretion, we affirm the trial court’s judgment.
[2] We affirm.
Issue Whether the trial court abused its discretion in admitting evidence of the handgun that was found during a search of the vehicle that Calligan was driving.
Facts [3] In the early morning hours of March 25, 2016, Fort Wayne Police Department
Detectives Marc Deshaies (“Detective Deshaies”) and Tim Hughes (“Detective
Hughes”), who were affiliated with the Gang and Violent Crime Unit, were
working in a high-crime area near Foster’s Bar and Grill (“Foster’s”).
Specifically, the area is known for problems with drug trafficking, violence and
1 IND. CODE § 35-47-4-5.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 2 of 16 fights, and shots-fired incidents. At approximately 2:30 a.m., the detectives
observed a group of people in a nearby parking lot that were involved in a loud,
heated argument, which appeared to be on the verge of turning into a physical
altercation. The individuals involved in the argument got into three different
vehicles and drove off together in a processional line. The lead vehicle was a
Dodge Charger (“the Charger”), which was followed by a Chevrolet Impala
(“the Impala”) and an Infinity (“the Infinity”).
[4] Detectives Deshaies and Hughes followed the vehicles, which accelerated
quickly. The detectives noticed that the Charger was repeatedly swerving
within its lane, and, at one point, almost struck the curb. The Charger
subsequently came to a complete and sudden stop in the middle of an
intersection before continuing through the intersection. Detective Deshaies,
who had been trained to “pace” a vehicle to determine its speed, “paced” the
cars, all of which frequently exceeded the thirty-five-mile-per-hour speed limit.
(Motion to Suppress Tr. at 13). After the Infinity turned off onto a side street,
the driver of the Impala appeared to be trying to prevent the officers from
moving between it and the Charger.
[5] Concerned that the driver of the Charger was impaired, the detectives initiated
a traffic stop in a residential area after managing to maneuver behind the
Charger. The driver of the Charger slowed down but continued to move
forward for thirty to forty feet. As the detectives walked toward the stopped
Charger, it began to roll forward again. As the detectives were yelling for the
car to be put in park, Calligan, the driver, leaned out the window and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 3 of 16 responded that the Charger had stopped even though the car was continuing to
roll forward. When the Charger came to a complete stop, the detectives noticed
two passengers and movement in the vehicle. Other officers who had heard
radio communications about the Charger’s initial failure to stop immediately
began arriving on the scene.
[6] As Detective Deshaies approached the Charger and began to speak with
Calligan, the detective immediately smelled the odor of alcohol emanating from
Calligan. Further, Calligan’s speech was slurred, his eyes were bloodshot, and
he fumbled through his wallet attempting to find his insurance card. Concerned
that Calligan might attempt to drive off again, Detective Deshaies asked
Calligan for the keys to the car several times. Calligan refused to comply with
the detective’s request and was “incredibly argumentative.” (Motion to
Suppress Tr. at 32). He subsequently removed the keys from the ignition,
refused to hand them to Detective Deshaies, and dropped them in the center
console.
[7] While Detective Deshaies was speaking with Calligan, other officers
approached the front-seat passenger, who identified himself by a name that the
officers immediately knew to be false. This passenger eventually had to be
forcibly removed from the car after he refused to get out of the vehicle when the
officers asked him to do so. An on-scene fingerprint identification revealed that
the passenger had an active warrant for failing to appear in a gun case. At the
same time, several females who had been in the Impala returned to the scene on
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 4 of 16 foot and were loudly challenging the officers’ actions and had to be physically
restrained from interfering with the ongoing traffic stop.
[8] As Detective Deshaies was checking Calligan’s information, other officers
asked Calligan and the rear-seat passenger to exit the car and sit on the curb a
few feet behind the Charger. The men were not handcuffed. Fort Wayne
Police Department Sergeant Gary Hensler (“Sergeant Hensler”) searched the
interior of the Charger for the purpose of officer safety and found a loaded
handgun between the driver’s seat and the center console. Detective Hensler
then handcuffed Calligan and the rear-seat passenger.
[9] The State charged Calligan with Level 4 felony unlawful possession of a firearm
by a serious violent felon; Class A misdemeanor unlawful possession of a
firearm by a domestic batterer, and Class A misdemeanor operating while
intoxicated. Calligan filed a motion to suppress. At the suppression hearing,
Sergeant Hensler responded as follows when asked why he had searched the
car: “Well for all the reasons we already had, um, extended period of time to
pull over, starting and stopping, fear of them retrieving a weapon, hiding
contraband, formulating a plan, uh, the front seat passenger showing
deception.” (Motion to Suppress Tr. at 99). Following the hearing, the trial
court denied Calligan’s motion to suppress. Before trial, the State dismissed the
misdemeanor counts.
[10] Calligan objected to the admission of the gun at trial. Also at trial, Detective
Deshaies testified that he and Detective Hughes were concerned when
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 5 of 16 Calligan’s car kept rolling at the time of the stop. According to Detective
Deshaies, “[t]ypically when we see these . . . stops that take a very long time to
stop in my experience and training[,] it’s because people are either trying to
secret or access contraband or weapons in the car prior to being stopped.” (Tr.
Vol. 1 at 41-42). Sergeant Hensler testified that he had searched the vehicle for
officer safety because: (1) the Charger did not stop immediately, which
suggested that the vehicle’s occupants might have been attempting to hide
weapons or drugs; (2) the traffic stop occurred in a high crime area where there
were many drug transactions and shootings; and (3) the women from the
Impala were very upset over the traffic stop and could have distracted the
officers or assisted the men in the Charger with committing a crime, including
assaulting the officers.
[11] Fort Wayne Police Department Detective Matthew Foote (“Detective Foote”)
had also been conducting surveillance in the area of Foster’s. According to
Detective Foote, police officers had been called to Foster’s for shootings,
stabbings, and fights, and there had been a killing there the previous month.
When he arrived at the scene of the traffic stop, Detective Foote was concerned
when the front-seat passenger gave a name that the officers knew was not his.
Detective Foote further explained that “often times when somebody supplies us
with a false name[,] it’s to cover up criminal activity. Often times they are
fugitives from justice, and that’s what it ended up being in this case.” (Tr. Vol.
1 at 110).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 6 of 16 [12] During Calligan’s presentation of evidence, Tiffany Simpson (“Simpson”)
testified that she had been dating Calligan in March 2016. Simpson further
testified that the gun in the Charger belonged to her and that the Charger
belonged to her mother, who allowed Simpson, Calligan, and other family
members to drive it. Calligan was unable to drive his car at the time because
“there was something major wrong with it.” (Tr. Vol. 1 at 161).
[13] The jury convicted Calligan of Level 4 felony unlawful possession of a firearm,
and he now appeals.
Decision [14] Calligan contends that the trial court erred in denying his motion to suppress
the gun that was found in the car that he was driving. Because Calligan appeals
following his conviction and is not appealing the trial court’s interlocutory
order denying his motion to suppress, the question is properly framed as
whether the trial court abused its discretion in admitting the gun into evidence.
See Parish v. State, 936 N.E.2d 346, 349 (Ind. Ct. App. 2010), trans. denied. The
admission of evidence is within the sound discretion of the trial court, and we
will reverse only for an abuse of that discretion. Rogers v. State, 897 N.E.2d 955,
959 (Ind. Ct. App. 2008), trans. denied. A trial court abuses its discretion if its
decision is clearly against the logic and the effect of the facts and circumstances
before the court or if the court has misinterpreted the law. Id. We do not
reweigh the evidence, and we consider conflicting evidence most favorable to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 7 of 16 the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App.
2005), trans. denied.
1. Initial Stop
Calligan first argues that the initial stop of the car that he was driving violated
both the Fourth Amendment of the United States Constitution and Article 1,
Section 11 of the Indiana Constitution. We address each of his contentions in
turn.
A. Fourth Amendment
[15] The Fourth Amendment provides protection against unreasonable searches and
seizures of a person. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). A traffic
stop of a vehicle is a seizure within the meaning of the Fourth Amendment.
Whren v. United States, 517 U.S. 806, 809 (1996). For a search or seizure to be
reasonable under the Fourth Amendment, a warrant is required unless an
exception to the warrant requirement applies. Taylor v. State, 842 N.E.2d 327,
330 (Ind. 2006). The State bears the burden of showing that a warrantless
search or seizure is within an exception to the warrant requirement. Id.
[16] One such exception is set forth in Terry v. Ohio, 392 U.S. 1, 30 (1968), wherein
the United States Supreme Court held that a police officer may briefly detain a
person for investigatory purposes if, based on specific articulable facts together
with reasonable inferences drawn therefrom, an ordinarily prudent person
would reasonably suspect that criminal activity was afoot. Reasonable
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 8 of 16 suspicion is determined on a case-by-case basis by examining the totality of the
circumstances. Terry, 392 U.S.at 30. Further, the law is well-settled that a
police officer is constitutionally permitted to stop and briefly detain a person
who has committed a traffic infraction. See IND. CODE § 34-28-5-3; State v.
Quirk, 842 N.E.2d 334, 340 (Ind. 2006).
[17] Here, our review of the evidence reveals that the detectives had reasonable
suspicion to stop Calligan for two reasons. First, Detective Deshaies, who had
been trained to “pace” a vehicle, “paced” the car that Calligan was driving and
determined that Calligan was exceeding the thirty-five-mile-per-hour speed
limit.2 Driving in excess of the speed limit is an infraction. See IND. CODE § 9-
21-5-2. Second, Detective Deshaies had reasonable suspicion that Calligan was
operating the Charger while intoxicated. Specifically, the detective observed
the Charger repeatedly swerving within its lane and almost hitting a curb.
Calligan also stopped the Charged in the middle of an intersection before
continuing through the intersection. See Potter v. State, 912 N.E.2d 905, 906-08
(Ind. Ct. App. 2009) (finding reasonable suspicion for a stop where Potter was
weaving within his lane of travel and almost struck a median). The initial stop
of the Charger did not violate the Fourth Amendment of the United States
Constitution
2 Regarding Calligan’s challenge to Detective Deshaies’ “pacing” of the Charger to determine its speed, we agree with the State that Calligan’s challenge is “simply a request to reweigh the [detective’s] credibility and refuse to credit his testimony that he paced [Calligan’s] vehicle and determined that it was exceeding the speed limit.” (State’s Br. at 13). This we cannot do. See Collins, 822 N.E.2d at 218.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 9 of 16 B. Article 1, Section 11 of the Indiana Constitution
[18] We now analyze the stop under the Indiana Constitution. Although Article 1,
Section 11 of the Indiana Constitution is identical to the Fourth Amendment, it
is analyzed differently. Croom v. State, 996 N.E.2d 436, 442 (Ind. Ct. App.
2013), trans. denied. Indiana Constitutional analysis focuses on the
reasonableness of police conduct under the totality of the circumstances. Id.
(citing Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005)). We determine the
reasonableness under the Indiana Constitution by balancing “1) the degree of
concern, suspicion, or knowledge that a violation has occurred, 2) the degree of
intrusion the method of search or seizure imposes on the citizen’s ordinary
activities, and 3) the extent of law enforcement needs.” Litchfield, 824 N.E.2d at
361. The State has the burden of proving that police intrusion into privacy was
reasonable under the totality of the circumstances. Id. “It is unequivocal under
our jurisprudence that even a minor traffic violation is sufficient to give an
officer probable cause to stop the driver of a vehicle.” Austin v. State, 997
N.E.2d 1027, 1034 (Ind. 2013).
Here, our review of the evidence reveals that the degree of concern, suspicion,
or knowledge that a violation had occurred was high. The Charger was
speeding, swerving in its lane and almost hit a curb. It also stopped in the
middle of an intersection. Second, the degree of intrusion was slight. Detective
Deshaies stopped the vehicle to determine whether Calligan was impaired. See
e.g., Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001) (explaining that Article 1,
Section 11 does not prohibit police from conducting a justified traffic stop).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 10 of 16 Lastly, the needs of law enforcement were reasonable. The only way to
determine whether Calligan was impaired was to stop the Charger. The stop
was an appropriate manner of enforcing traffic laws. Balancing the high degree
of concern, suspicion, or knowledge that a violation had occurred and the needs
of law enforcement against the low degree of intrusion, we conclude that
Detective Deshaies’ initial stop of the Charger was reasonable under the
Indiana Constitution.
2. Search of the Vehicle
[19] Calligan further argues that even if the initial stop was valid, the search of the
car that he was driving violated both the Fourth Amendment of the United
States Constitution and Article 1, Section 11 of the Indiana Constitution. We
again address each of his contentions in turn.
A. Fourth Amendment
[20] The Fourth Amendment allows privacy interests protected by the Fourth
Amendment to be balanced against the interests of officer safety. Wilson v.
State, 745 N.E.2d 789, 792 (Ind. 2001). In Michigan v. Long, the United States
Supreme Court explained as follows:
Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 11 of 16 automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” [1] the officers in believing that the suspect is dangerous and [2] the suspect may gain immediate control of weapons. “[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”
463 U.S. 1032, 1049-50 (1983) (quoting Terry, 392 U.S. 1 at 21 and at 27)
(emphasis added). The Supreme Court stressed that police officers are not
required to adopt alternative means to ensure their safety in order to avoid
privacy intrusions in this type of Terry investigation because it involves “a
police investigation ‘at close range’ when the officer remains particularly
vulnerable in part because a full custodial arrest has not been effected, and the
officer must make a “quick decision as to how to protect himself and others
from possible danger[.]’” Long, 463 U.S. at 1052 (quoting Terry, 392 U.S. at
24).
[21] This Court has previously explained that “[t]he purpose of a limited search for
weapons after an investigative stop is not to discover evidence of a crime, but to
allow the officer to pursue his investigation without fear for his safety or the
safety of others.” State v. Joe, 693 N.E.2d 573, 575 (Ind. Ct. App. 1998), trans.
denied. Therefore, when a vehicle has been properly stopped for investigative
purposes, if the officer reasonably believes that he or others may be in danger
and the suspect may gain immediate access to a weapon, he may conduct a
limited search of the automobile’s interior for weapons without first obtaining a Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 12 of 16 search warrant. State v. Dodson, 733 N.E.2d 968, 971 (Ind. Ct. App. 2000);
Long, 463 U.S. at 1052.
[22] Here, our review of the evidence reveals that Long’s first prong is satisfied
because the officers had reasonable suspicion to believe that Calligan was
dangerous at the time they searched the car. See Long, 463 U.S. at 1050.
Specifically, Calligan had initially failed to stop the Charger and had begun
moving forward again when the detectives walked towards the vehicle. This
action created a reasonable fear on the part of the detectives that Calligan was
contemplating fleeing or that he was trying to hide or access a weapon. The
detectives had also noticed movement in the Charger before it had come to a
complete stop. Further, Calligan was highly argumentative and refused to hand
his keys to the detective. Calligan also appeared to be intoxicated. In addition,
the front seat passenger, who had given the detectives a false name and who
was wanted on an active warrant for failing to appear in a gun case, refused to
exit the Charger and had to be forcibly removed from the vehicle.
[23] In addition, Long’s second prong is satisfied because the officers had reasonable
suspicion to believe that Calligan or his rear-seat passenger could have regained
immediate control of the weapon in the vehicle. Neither man was handcuffed
and both men were sitting on a curb a few feet behind the vehicle. See id. See
also United States v. Arnold, 388 F.3d 237, 240 (7th Cir. 2004) (concluding that it
was reasonable to believe that Arnold, who was not arrested, could have
regained access to his vehicle). In addition, the officers knew that the Charger’s
front-seat passenger was wanted on a warrant in a gun case. The search of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 13 of 16 Charger did not violate the Fourth Amendment of the United States
Constitution.
B. Article 1, Section 11 of the Indiana Constitution
[24] We now return to the Litchfield factors to determine whether the search of the
Charger was reasonable under the Indiana Constitution. See Litchfield, 824
N.E.2d at 36. Our review of the evidence reveals that the degree of concern,
suspicion, or knowledge that a violation had occurred was high. In the early
morning hours in a high-crime neighborhood, detectives saw Calligan involved
in a loud heated argument before he got into the Charger. The detectives then
saw Calligan commit the infraction of speeding. Calligan was also swerving in
his lane, almost hit the curb, and came to a stop in the middle of an
intersection, giving the detectives reasonable suspicion to believe that he was
operating the vehicle while intoxicated. Calligan initially failed to comply with
the officers’ order to stop, and the vehicle’s occupants were making movements
consistent with an attempt to hide a weapon. In addition, the front seat
passenger was wanted on an active warrant.
[25] Turning to the degree of intrusion, in Masterson v. State, 843 N.E.2d 1001, 1007
(Ind. Ct. App. 2006), trans. denied, we explained that although “the search of
Masterson’s vehicle was likely to impose an intrusion ‘on the citizen’s ordinary
activities,’ Litchfield v. State, 824 N.E.2d at 361, ‘we recognize[d] that, to a
limited extent, the intrusion, at least as to public notice and embarrassment,
was somewhat lessened because of the hour and place of the search.’ Myers v.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 14 of 16 State, 839 N.E.2d at 1154 (search occurred after midnight and in driveway of
defendant’s mobile home).” We further noted that, at the time, it was not even
clear to police that Masterson owned the vehicle subject to the search as it was
registered to another individual. Id. Here, as in Masterson, the intrusiveness of
the search was lessened where it occurred at 2:30 a.m. in a residential
neighborhood, and the Charger did not belong to Calligan.
[26] In addition, the needs of law enforcement were reasonable. The stop occurred
in a high-crime neighborhood, and the Charger’s occupants did not initially
comply with the detective’s directives. When the Charger stopped, the
detectives noticed movement in the vehicle, which suggested that the occupants
might have been attempting to hide weapons. One of the vehicle’s occupants
gave the detectives a false name and had an active warrant. Further, several
females who had been in the Impala walked to the scene and were challenging
the officers’ actions, and officers did not know whether the Infinity and its
occupants would arrive at the scene. In addition, Calligan and the rear-seat
passenger were sitting on a curb a few feet behind the vehicle, and neither man
was handcuffed. Again, balancing the high degree of concern, suspicion, or
knowledge that a violation had occurred and the needs of law enforcement
against the lessened degree of intrusion, we conclude that the search of the
Charger was reasonable under the Indiana Constitution.
[27] Finding no federal or state constitutional violation, we conclude that the trial
court did not abuse its discretion in admitting the gun into evidence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 15 of 16 [28] Affirmed.
Vaidik, C.J., and Barnes, Sr. J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 16 of 16