Facundo Ramos-Osario v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 7, 2025
• Docket: 24A-CR-01761
• Status: Published

Opinion

IN THE

Court of Appeals of Indiana Facundo Ramos-Osario, FILED Appellant-Defendant Apr 07 2025, 8:46 am

CLERK Indiana Supreme Court v. Court of Appeals and Tax Court

State of Indiana, Appellee-Plaintiff

April 7, 2025 Court of Appeals Case No. 24A-CR-1761 Appeal from the Marion Superior Court The Honorable Barbara Crawford, Senior Judge Trial Court Cause No. 49D35-2304-CM-11332

Opinion by Chief Judge Altice Judges Vaidik and Scheele concur.

Altice, Chief Judge.

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 1 of 14 Case Summary [1] Following a bench trial, Facundo Ramos-Osario was convicted of operating a

vehicle with an A.C.E. of .08 or more, a Class C misdemeanor. He presents

one issue for review: did the trial court abuse its discretion when it admitted

certain evidence from a traffic stop over his repeated objections that the State

had not shown that the police had reasonable suspicion for the stop?

[2] We reverse.

Facts & Procedural History [3] We begin with facts as presented at the suppression hearing. Officer Welter

Solares of the Indianapolis Metropolitan Police Department (IMPD) testified

that around 2:00 a.m. on April 21, 2023, he was at an all-night auto shop on

Harding Street having just had a tire replaced on his police car. While standing

outside talking to the shop’s employee, he heard gun fire coming from south of

his location. He described that the gunfire drew nearer to the auto shop and

sounded “closest” to his location as a black Ford F-150 pickup truck drove past

on Harding Street. Transcript Vol. II at 5. At that time, there were no other

vehicles on the road. Solares also testified that he saw “muzzle flashes” coming

from the truck as it passed by but could not tell from which side of the vehicle

they were coming. Id. at 8. Officer Solares immediately got into his police car

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 2 of 14 and caught up with the truck, at which point he initiated a “felony” traffic stop. 1

Id. at 10.

[4] IMPD Officer Cameron Hester also testified at the suppression hearing. He

explained that he was parked in his patrol car just north of the auto shop, and

he too heard the gunfire but could not pinpoint from where it came. He then

heard Officer Solares state over the police radio “something about a truck being

involved” with the gunfire, so he went to assist him with the stop of the truck.

Id. at 24.

[5] Immediately upon stopping the truck, Officers Solares and Hester pulled the

three occupants from the vehicle and placed them in handcuffs. Ramos-Osario

was the driver of the truck. Officer Solares testified that he noted an odor of

alcoholic beverage coming from Ramos-Osario but made no other observations

as he was focused on the firearm investigation. Also noting the odor of

alcoholic beverages coming from Ramos-Osario and observing that Ramos-

Osario had “glassy eyes,” Officer Hester conducted the horizontal gaze

nystagmus (HGN) test on Ramos-Osario while Officer Solares searched the

inside of the vehicle. 2 Id. at 21. Noting that Ramos-Osario exhibited signs of

intoxication during the HGN test, Officer Hester then administered a portable

1 Officer Solares testified that at some point during the stop, the occupants of the vehicle were asked why they were out shooting and one of the occupants responded that they “were out having fun.” Id. at 11. 2 Ramos-Osario “admitted to drinking 2 beers earlier in the night.” Id. at 48.

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 3 of 14 breath test to Ramos-Osario that had a result of 0.121. After being informed of

Indiana’s implied consent law, Ramos-Osario agreed to a chemical test.3

[6] Following the stop, Officer Hester completed a probable cause affidavit in

which he noted that “Officer Solares heard approximately five to seven gun

shots coming from S. Harding St. right in front of Officer Solares,” that Officer

Solares observed only one vehicle on the road, and that Officer Solares then

initiated a “felony stop” of that vehicle. Appellant’s Appendix Vol. 2 at 15.

Officer Hester testified at the suppression hearing that Officer Solares never told

him about seeing muzzle flashes, so this fact was not included in the probable

cause affidavit. He also testified that he had no personal basis on which he

could identify where the gunshots originated.

[7] On April 21, 2023, the State charged Ramos-Osario with two Class C

misdemeanors—operating a vehicle with an A.C.E. of .08 or more and

operating while intoxicated. On March 18, 2024, Ramos-Osario filed a motion

to suppress challenging the constitutionality of the stop under the Fourth

Amendment and Article 1, Section 11. Respectively, Ramos-Osario argued

that the stop was not supported by reasonable suspicion and was not reasonable

under the totality of the circumstances because, according to Ramos-Osario, the

stop was based on the sound of gunshots alone. The trial court held a hearing

3 The results of the chemical test showed that Ramos-Osario had a blood alcohol concentration of 0.103 grams per 100 milliliters.

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 4 of 14 on the motion to suppress on April 3, 2024. 4 At the suppression hearing,

Officers Solares and Hester testified as set out above and the trial court

expressly found their respective testimony to be credible. While acknowledging

that cases involving “gunshots are tough,” the court found reasonable suspicion

to justify the stop based on these facts: the gunshots were heard in the early

morning hours, there were not many cars on the road, and of particular import,

Officer Solares saw muzzle flashes coming from the truck. 5 Transcript Vol. II at

29. The court therefore denied Ramos-Osario’s motion to suppress.

[8] A bench trial was originally set for May 22, 2024. On that date, the State

requested a continuance because Officer Solares, “one of the [State’s] essential

witnesses,” was unable to attend. Id. at 35. Over Ramos-Osario’s objection,

the trial court continued the bench trial to July 10, 2024. On that date, Officer

Solares again did not appear for the bench trial, and thus, only Officer Hester

testified.6 When the State questioned Officer Hester about the stop and what

occurred thereafter, Ramos-Osario objected to the admission of any such

evidence, arguing that there was “[n]o foundation for the stop,” “no reasonable

suspicion.” Id. at 44. His first objection was overruled, but he objected to

4 The suppression hearing was held before the late Honorable Ronnie Huerta. 5 In summarizing the evidence, the court stated:

The problem is the muzzle flashes. Uh, muzzle flashes don’t just come from anywhere. There are not allegations that they’re reflecting off of buildings or anything like that. [Officer Solares] indicated that he saw muzzle flashes coming from that truck. Transcript Vol. II at 30. 6 The bench trial was held before the Honorable Barbara Crawford.

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 5 of 14 further questions on the same grounds, and the trial court sustained those

objections. Over Ramos-Osario’s objection, Officer Hester was permitted to

testify that he “backed onto [Officer Solares’s] traffic stop” to assist in an

“[i]nvestigation of shots fired.” Id. at 45, 46. Officer Hester was also permitted

to testify:

I heard [Officer Solares] on the radio say he had heard shots which I heard as well from where I was sitting at and they proceeded to say there was a truck going northbound on Harding that believed it was involved, so [Officer Solares] initiated a traffic stop on that vehicle and that is when I assisted him with the high-risk traffic stop.

Id. at 47. As the State continued its questioning of Officer Hester about what

occurred next, Ramos-Osario objected again, arguing:

We still don’t have reasonable suspicion of the stop. All we have is the sound of gunshots. Nothing more that could’ve come from anywhere. This is a residential area. There are other cars on the road. There was just no suspicion at all for this stop.

Id. at 47-8. The trial court overruled this objection, and the trial continued with

Officer Hester testifying that he observed an odor of alcoholic beverage coming

from Ramos-Osario, that Ramos-Osario had glassy eyes, and that the result of a

portable breath test indicated Ramos-Osario was intoxicated. At the conclusion

of the evidence, the trial court found Ramos-Osario guilty as charged. At

sentencing, the trial court merged the charges, entered a judgment of conviction

for operating a vehicle with an A.C.E. of .08 or more, and sentenced Ramos-

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 6 of 14 Osario to sixty days, with fifty-two days suspended. Ramos-Osario now

appeals.

Discussion & Decision [9] Ramos-Osario challenges the trial court’s admission of evidence obtained

following the stop of the vehicle he was driving. His challenge is predicated on

his argument that, based on the evidence presented at trial, there was no

reasonable suspicion for the stop of his vehicle and thus, the stop of his vehicle

violated the Fourth Amendment and Article 1, Section 11. Because he appeals

following a completed bench trial, the suppression issue is no longer viable, and

the issue is characterized as a request to review the trial court’s decision to

admit any challenged evidence. Casillas v. State, 190 N.E.3d 1005, 1012 (Ind.

Ct. App. 2022), trans. denied.

[10] The general admission of evidence at trial is a matter we leave to the discretion

of the trial court. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). We

review these determinations 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. Id. But when an appellant’s

challenge to such a ruling is predicated on an argument that impugns the

constitutionality of the search or seizure of the evidence, it raises a question of

law, and we consider that question de novo. Guilmette v. State, 14 N.E.3d 38,

40-41 (Ind. 2014) (citing Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013)).

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 7 of 14 Fourth Amendment

[11] The Fourth Amendment permits a law enforcement officer to “stop and briefly

detain a person for investigative purposes if the officer has a reasonable

suspicion supported by articulable facts that criminal activity ‘may be afoot.’”

Robinson v. State, 5 N.E.3d 362, 367 (Ind. 2014) (quoting United States v. Sokolow,

490 U.S. 1, 7 (1989)). A traffic stop for a suspected violation of law is a

“seizure” of the occupants of the vehicle and therefore must be conducted in

accordance with the Fourth Amendment. Brendlin v. California, 551 U.S. 249,

255-259 (2007). Thus, to effectuate a constitutional traffic stop, an officer must

have reasonable suspicion—that is, “a particularized and objective basis for

suspecting” the driver violated the law. Marshall v. State, 117 N.E.3d 1254,

1261 (Ind. 2019) (quoting Heien v. North Carolina, 574 U.S. 54, 60 (2014)). The

reasonable-suspicion “standard takes into account ‘the totality of the

circumstances—the whole picture.’” Id. (quoting Prado Navarette v. California,

572 U.S. 393, 397 (2014)).

[12] Pointing out that Officer Solares “did not testify” at the bench trial, Ramos-

Osario asserts that “no basis was articulated” for the stop of his vehicle.

Appellant’s Brief at 20. He maintains that without Officer Solares’s testimony,

there was no evidence that identified the truck he was driving as the source of

the gunplay given that Officer Hester testified that he did not know where the

gunfire originated. Ramos-Osario therefore argues that reasonable suspicion

for the stop was not established because the evidence presented at trial showed

only that the police acted on the sound of gunfire in the general area, which

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 8 of 14 alone is not sufficient to establish reasonable suspicion. See United States v.

Delaney, 955 F.3d 1077, 1086 (D.C. Cir. 2020) (holding that stop conducted by

police after the officers had heard gunfire coming from multiple, unidentified

locations in close proximity to defendant’s location was not enough to establish

reasonable suspicion for the stop); United States v. Curry, 937 F.3d 363, 366 (4th

Cir. 2019) (noting that district court disallowed a stop for investigative purposes

where police heard gunfire coming from the direction of an apartment complex

housing “hundreds of families” and then travelled to that area and began

stopping numerous pedestrians, including the defendant, who were walking in a

public area behind the complex, away from the general vicinity where the

officers believed the shots originated).

[13] Citing Kelly v. State, 825 N.E.2d 420, 426 (Ind. Ct. App. 2005), the State argues

that the trial court was entitled to consider Officer Solares’s testimony from the

suppression hearing when ruling on Ramos-Osario’s objection at trial. And,

indeed, the State’s argument that there was reasonable suspicion for the stop is

based almost entirely on testimony presented during the suppression hearing.

[14] Generally speaking, the denial of a motion to suppress is insufficient to preserve

error for appeal. Washington v. State, 784 N.E.2d 584, 586 (Ind. Ct. App. 2003).

Rather, the defendant must make a contemporaneous objection to the

admission of evidence at trial. Id. “If the defendant makes such an objection

and the foundational evidence is not the same as at the suppression hearing

stage, the trial court must determine whether evidence is admissible based upon

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 9 of 14 the testimony and evidence presented at trial.” Id.; see also Casillas, 190 N.E.3d

at 1012.

[15] This case presents a unique circumstance. Ramos-Osario is not arguing that his

motion to suppress was wrongly decided. Rather, he is challenging the overall

sufficiency of the State’s foundational evidence offered at trial. In this vein, he

does not claim that there is new or fresh evidence that would impact the ruling

on his motion to suppress, but rather, that the State’s evidence at trial is lacking

because Officer Solares—the key witness at the suppression hearing for

establishing probable cause for the stop of his vehicle—did not appear at trial to

testify.

[16] Notably, the evidence from the motion to suppress hearing was not

incorporated into evidence at the bench trial. We also note that the judge

presiding over the bench trial was not the same judge who presided over the

suppression hearing. 7 Furthermore, the trial judge even sustained several of

Ramos-Osario’s objections to the lack of foundational evidence relating to the

establishment of probable cause for the stop. Only after Officer Hester testified

that he had personally heard gunshots and that he assisted Officer Solares with

a “high-risk traffic stop” after he heard Officer Solares say over the police radio

that he was stopping a vehicle he believed was involved with the gunfire, did

7 In Kelly, this court noted that in considering whether testimony from a motion to suppress hearing may be considered at trial, obstacles may arise where the judge who conducts the trial is not the judge who conducted and determined the pre-trial motion to suppress. 825 N.E.2d at 425.

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 10 of 14 the trial court overrule Ramos-Osario’s continued objections based on a lack of

reasonable suspicion for the stop and permit Officer Hester to testify about what

occurred after the stop, i.e., the evidence pertinent to the OWI charges.

Transcript Vol. II at 47.

[17] Here, without trial testimony from Officer Solares or incorporation of the

evidence from the suppression hearing, the trial court was tasked with deciding

the admissibility of the challenged evidence based on the evidence that was

presented at trial. This evidence was that Officer Hester personally heard

gunfire but did not know where it originated and that he assisted Officer Solares

with a traffic stop for an investigation of shots fired. These facts are directly in

line with those of Delaney and Curry, supra, wherein it was held that an

investigative stop based on the sound of gunfire alone was not based on

reasonable suspicion. Without evidence at trial establishing a particularized

suspicion for the stop of Ramos-Osario’s truck, aside from its proximity to the

sound of gunfire, the State did not establish that the stop complied with the

requirements of the Fourth Amendment. The trial court therefore abused its

discretion in admitting evidence pertaining to the stop and anything that

occurred as a result thereof.

Article 1, Section 11

[18] Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

Section 11 of our Indiana Constitution separately and independently. State v.

Washington, 898 N.E.2d 1200, 1205-06 (Ind. 2008). When a defendant raises a

Section 11 claim, the State must show the police conduct “was reasonable Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 11 of 14 under the totality of the circumstances.” Id. We consider three factors when

evaluating reasonableness: “1) the degree of concern, suspicion, or knowledge

that a violation has occurred, 2) the degree of intrusion the method of the

search or seizure imposes on the citizen’s ordinary activities, and 3) the extent

of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).

[19] Under the first prong, we evaluate whether there was reasonable suspicion to

support the stop of a vehicle using the same standard as under the Fourth

Amendment. See Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008) (holding that

“many search and seizure issues [including reasonable suspicion] are resolved

in the same manner” under both the federal and Indiana constitutions). That is,

an officer has the requisite reasonable suspicion when the totality of the

circumstances presented a “particularized and objective” basis to support the

officer’s belief that some law or ordinance was violated. Sellmer v. State, 842

N.E.2d 358, 361 (Ind. 2006).

[20] As we explained above, the State did not present evidence at the bench trial that

the stop of Ramos-Osario’s truck was based on a particularized suspicion that

the gunfire came from his truck. Although Officer Solares testified about his

observations during the motion to suppress hearing, such evidence was not

presented to the trial court during the bench trial as Officer Solares did not

testify. The State presented only the testimony of Officer Hester, who stated

that he assisted with a felony traffic stop of Ramos-Osario’s truck as part of an

investigation into shots fired. The first Litchfield factor weighs in favor of

Ramos-Osario.

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 12 of 14 [21] As to the second Litchfield factor, as soon as the truck was stopped, the three

occupants were immediately removed from the vehicle and placed in handcuffs.

This was not akin to a routine traffic stop that was short in duration. See Paul v.

State, 189 N.E.3d 1146, 1158 (Ind. Ct. App. 2022) (agreeing that traffic stop

short in duration did not weigh in favor of defendant in terms of the second

Litchfield factor), trans. denied. The degree of intrusion weighs in favor Ramos-

Osario. The third factor—the extent of law enforcement needs—clearly favors

the State. It cannot be denied that investigation of shots fired is of utmost

priority for law enforcement.

[22] On balance, the Litchfield factors weigh in favor of the defendant. We conclude

that the totality of the circumstances does not establish that there was a

reasonable, particularized suspicion to stop Ramos-Osario’s truck. The trial

court therefore abused its discretion in admitting evidence of the stop and

anything that flowed from it.

[23] Judgment reversed.

Vaidik, J. and Scheele, J., concur.

ATTORNEY FOR APPELLANT Alexander E. Budzenski Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 13 of 14 Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-CR-1761 | April 7, 2025 Page 14 of 14