MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 05 2018, 8:23 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gail Miller, December 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1554 v. Appeal from the Marshall Superior Court State of Indiana, The Honorable Dean A. Colvin, Appellee-Plaintiff Judge Trial Court Cause No. 50D02-1503-CM-176
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 1 of 7 [1] Gail Miller appeals his conviction for Class A Misdemeanor Possession of
Marijuana,1 arguing that the trial court erroneously admitted certain evidence.
Finding no error, we affirm.
Facts [2] At approximately 11:00 p.m. on February 27, 2015, Bremen Police Sergeant
Trent Stouder was on patrol on U.S. Highway 6 when he began to follow a
silver Nissan Pathfinder. Sergeant Stouder observed the vehicle’s passenger
side tires cross the fog line; the vehicle then weaved in its own lane as it
overcorrected. About three-quarters of a mile later, the vehicle again crossed
the fog line. Sergeant Stouder planned to pull over the vehicle but waited
because there were “no other vehicles on the roadway coming at us or anything
like that. I knew I had plenty of time. And I was waiting to get to a better
lighted area.” Tr. Vol. II p. 51.
[3] About two and one-half miles later, Sergeant Stouder initiated a traffic stop. He
approached the vehicle and smelled the odor of an alcoholic beverage and raw
marijuana emanating from inside. Sergeant Stouder saw an open can of beer
on the passenger side floorboard.
[4] Sergeant Stouder asked the driver, Miller, if he had been drinking; Miller stated
that he had had two drinks earlier in the evening. The sergeant noticed that
1 Ind. Code § 35-48-4-11.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 2 of 7 Miller’s eyes were bloodshot. Miller agreed to take a portable breath test,
which indicated the presence of alcohol on his breath. Sergeant Stouder asked
Miller for consent to search the vehicle; Miller declined. At that point, Sergeant
Stouder retrieved his police dog, which performed a free air sniff test around the
outside of the vehicle. The dog alerted, indicating the presence of illicit
substances.
[5] After the dog alerted, Sergeant Stouder returned to talk to Miller, noticing a
strong odor of raw marijuana coming directly from Miller. Sergeant Stouder
eventually asked Miller to exit the vehicle; he later conducted a thorough search
of Miller and found a plastic bag stuffed down his pants. The bag contained
marijuana. Miller was arrested and taken to the police station, where he
submitted to three field sobriety tests, failing all three.
[6] On March 9, 2015, the State charged Miller with Class A misdemeanor
operating a vehicle while intoxicated, Class A misdemeanor possession of
marijuana, and two Class C infractions—unsafe lane movement and having an
open alcoholic beverage container while operating a motor vehicle. After
Miller’s May 31, 2018, jury trial, the jury found him guilty of possession of
marijuana and liable for operating a motor vehicle with an open alcoholic
beverage container; it found him not guilty of and not liable for the remaining
charges. On June 14, 2018, the trial court sentenced Miller to 365 days,
suspended to probation, for the Class A misdemeanor. Miller now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 3 of 7 Discussion and Decision [7] Miller argues that the trial court erred by admitting evidence stemming from the
traffic stop. He contends that the traffic stop violated his rights under the
United States and Indiana Constitutions. An issue of the constitutionality of
the search or seizure of evidence raises a question of law, to which we apply a
de novo standard of review. E.g., Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind.
2014).
[8] Turning first to the United States Constitution, we note that under the Fourth
Amendment, police officers may make brief traffic stops of citizens when they
have reasonable suspicion that a crime is occurring. Rutledge v. State, 28 N.E.3d
281, 290 (Ind. Ct. App. 2015). Reasonable suspicion exists “‘where the facts
known to the officer, together with the reasonable inferences arising from such
facts, would cause an ordinarily prudent person to believe that criminal activity
has or is about to occur.’” Id. (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337
(Ind. 1999)).
[9] We find our Supreme Court’s decision in Robinson v. State, 5 N.E.3d 362, 368
(Ind. 2014), to be dispositive. In Robinson, a police officer observed a vehicle
veer off the roadway twice, with its passenger side tires crossing the fog line.
Our Supreme Court found that the subsequent traffic stop did not violate the
driver’s Fourth Amendment rights because she “swerved twice on a relatively
straight, flat roadway.” Id. at 368 (emphasis original, also noting that the
Fourth Amendment does not require police to grant drunk drivers “one free
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 4 of 7 swerve” before they can be pulled over). Our Supreme Court emphasized that
officers need not be absolutely certain of illegal activity; rather, they must
merely have reasonable suspicion. Id. In that case, the driver’s behavior
created the requisite reasonable suspicion.
[10] Here, as in Robinson, Sergeant Stouder observed Miller’s vehicle veer off the
roadway twice, with the passenger side tires crossing the fog line and the
vehicle then weaving within its own lane. Sergeant Stouder testified that based
on his experience, this behavior was indicative of impaired driving. We find
that this situation would cause an ordinarily prudent person to believe that
criminal activity has or was about to occur.
[11] Miller attempts to distinguish the instant case from Robinson, emphasizing the
fact that Sergeant Stouder continued to follow Miller’s vehicle for over two
miles after the second swerve before initiating the traffic stop. According to
Miller, this delay means that Stouder must not have had a reasonable suspicion
of criminal activity or an urgent sense that criminal activity was afoot.
[12] We disagree. We are unaware of any caselaw suggesting that an officer must
immediately initiate a traffic stop after observing problematic driving behavior
for the stop to be constitutional. Indeed, here, Sergeant Stouder testified that he
was hoping to find a better lit spot on the roadway to initiate the traffic stop,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 05 2018, 8:23 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gail Miller, December 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1554 v. Appeal from the Marshall Superior Court State of Indiana, The Honorable Dean A. Colvin, Appellee-Plaintiff Judge Trial Court Cause No. 50D02-1503-CM-176
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 1 of 7 [1] Gail Miller appeals his conviction for Class A Misdemeanor Possession of
Marijuana,1 arguing that the trial court erroneously admitted certain evidence.
Finding no error, we affirm.
Facts [2] At approximately 11:00 p.m. on February 27, 2015, Bremen Police Sergeant
Trent Stouder was on patrol on U.S. Highway 6 when he began to follow a
silver Nissan Pathfinder. Sergeant Stouder observed the vehicle’s passenger
side tires cross the fog line; the vehicle then weaved in its own lane as it
overcorrected. About three-quarters of a mile later, the vehicle again crossed
the fog line. Sergeant Stouder planned to pull over the vehicle but waited
because there were “no other vehicles on the roadway coming at us or anything
like that. I knew I had plenty of time. And I was waiting to get to a better
lighted area.” Tr. Vol. II p. 51.
[3] About two and one-half miles later, Sergeant Stouder initiated a traffic stop. He
approached the vehicle and smelled the odor of an alcoholic beverage and raw
marijuana emanating from inside. Sergeant Stouder saw an open can of beer
on the passenger side floorboard.
[4] Sergeant Stouder asked the driver, Miller, if he had been drinking; Miller stated
that he had had two drinks earlier in the evening. The sergeant noticed that
1 Ind. Code § 35-48-4-11.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 2 of 7 Miller’s eyes were bloodshot. Miller agreed to take a portable breath test,
which indicated the presence of alcohol on his breath. Sergeant Stouder asked
Miller for consent to search the vehicle; Miller declined. At that point, Sergeant
Stouder retrieved his police dog, which performed a free air sniff test around the
outside of the vehicle. The dog alerted, indicating the presence of illicit
substances.
[5] After the dog alerted, Sergeant Stouder returned to talk to Miller, noticing a
strong odor of raw marijuana coming directly from Miller. Sergeant Stouder
eventually asked Miller to exit the vehicle; he later conducted a thorough search
of Miller and found a plastic bag stuffed down his pants. The bag contained
marijuana. Miller was arrested and taken to the police station, where he
submitted to three field sobriety tests, failing all three.
[6] On March 9, 2015, the State charged Miller with Class A misdemeanor
operating a vehicle while intoxicated, Class A misdemeanor possession of
marijuana, and two Class C infractions—unsafe lane movement and having an
open alcoholic beverage container while operating a motor vehicle. After
Miller’s May 31, 2018, jury trial, the jury found him guilty of possession of
marijuana and liable for operating a motor vehicle with an open alcoholic
beverage container; it found him not guilty of and not liable for the remaining
charges. On June 14, 2018, the trial court sentenced Miller to 365 days,
suspended to probation, for the Class A misdemeanor. Miller now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 3 of 7 Discussion and Decision [7] Miller argues that the trial court erred by admitting evidence stemming from the
traffic stop. He contends that the traffic stop violated his rights under the
United States and Indiana Constitutions. An issue of the constitutionality of
the search or seizure of evidence raises a question of law, to which we apply a
de novo standard of review. E.g., Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind.
2014).
[8] Turning first to the United States Constitution, we note that under the Fourth
Amendment, police officers may make brief traffic stops of citizens when they
have reasonable suspicion that a crime is occurring. Rutledge v. State, 28 N.E.3d
281, 290 (Ind. Ct. App. 2015). Reasonable suspicion exists “‘where the facts
known to the officer, together with the reasonable inferences arising from such
facts, would cause an ordinarily prudent person to believe that criminal activity
has or is about to occur.’” Id. (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337
(Ind. 1999)).
[9] We find our Supreme Court’s decision in Robinson v. State, 5 N.E.3d 362, 368
(Ind. 2014), to be dispositive. In Robinson, a police officer observed a vehicle
veer off the roadway twice, with its passenger side tires crossing the fog line.
Our Supreme Court found that the subsequent traffic stop did not violate the
driver’s Fourth Amendment rights because she “swerved twice on a relatively
straight, flat roadway.” Id. at 368 (emphasis original, also noting that the
Fourth Amendment does not require police to grant drunk drivers “one free
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 4 of 7 swerve” before they can be pulled over). Our Supreme Court emphasized that
officers need not be absolutely certain of illegal activity; rather, they must
merely have reasonable suspicion. Id. In that case, the driver’s behavior
created the requisite reasonable suspicion.
[10] Here, as in Robinson, Sergeant Stouder observed Miller’s vehicle veer off the
roadway twice, with the passenger side tires crossing the fog line and the
vehicle then weaving within its own lane. Sergeant Stouder testified that based
on his experience, this behavior was indicative of impaired driving. We find
that this situation would cause an ordinarily prudent person to believe that
criminal activity has or was about to occur.
[11] Miller attempts to distinguish the instant case from Robinson, emphasizing the
fact that Sergeant Stouder continued to follow Miller’s vehicle for over two
miles after the second swerve before initiating the traffic stop. According to
Miller, this delay means that Stouder must not have had a reasonable suspicion
of criminal activity or an urgent sense that criminal activity was afoot.
[12] We disagree. We are unaware of any caselaw suggesting that an officer must
immediately initiate a traffic stop after observing problematic driving behavior
for the stop to be constitutional. Indeed, here, Sergeant Stouder testified that he
was hoping to find a better lit spot on the roadway to initiate the traffic stop,
which is eminently reasonable given that it helped to ensure the safety of both
the sergeant and the occupants of the vehicle. He also observed that there were
no other drivers on the road, causing him to reasonably conclude that an
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 5 of 7 immediate stop was not necessary. Under these circumstances, we do not find
the delay between the second swerve and the traffic stop to be a persuasive fact
distinguishing this case from Robinson. Therefore, as in Robinson, we find that
Sergeant Stouder had reasonable suspicion to pull over Miller’s vehicle. In
other words, the stop did not violate Miller’s Fourth Amendment rights.
[13] Next, Miller contends that the traffic stop violated his rights under Article 1,
Section 11 of the Indiana Constitution. Under this provision, the analysis
focuses on the reasonableness of police conduct in its totality. E.g., Sandleben v.
State, 29 N.E.3d 126, 134 (Ind. Ct. App. 2015). In looking at the totality of the
circumstances, we examine three factors: (1) the degree of concern, suspicion,
or knowledge that a violation of law 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. Watkins v. State, 85 N.E.3d 597,
601 (Ind. 2017).
[14] Here, Sergeant Stouder observed Miller drive over the fog line twice in a
relatively short period of time—the entire encounter covered only a few miles of
roadway—giving rise to a reasonable suspicion that Miller was impaired. The
initial intrusion—a simple traffic stop—was relatively minor, and the sergeant
only escalated the stop after he smelled strong odors of alcohol and raw
marijuana emanating from the vehicle and observed an open beer can inside.
Finally, our Supreme Court has emphasized that “[l]aw enforcement has a
strong interest in preventing these [alcohol-related] accidents, and ‘police
should have every legitimate tool at their disposal for getting drunk drivers off
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 6 of 7 the road.’” Robinson, 5 N.E.3d at 368 (quoting Virginia v. Harris, 558 U.S. 978,
978 (2009) (Roberts, C.J., dissenting from denial of certiorari)). We find that
under the totality of the circumstances, the traffic stop did not violate Miller’s
rights under the Indiana Constitution. See Robinson, 5 N.E.3d at 368 (finding
that traffic stop did not violate driver’s rights under Article 1, Section 11).
[15] Because the traffic stop violated neither the federal nor the state constitutions,
the trial court did not err by admitting the evidence stemming from the stop.
[16] The judgment of the trial court is affirmed.
May, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018 Page 7 of 7