Octavius D. Alexander v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 11, 2019
• Docket: 19A-CR-244
• Status: Published

Opinion

FILED Oct 11 2019, 9:05 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Octavius D. Alexander, October 11, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-244 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean Persin, Judge Appellee-Plaintiff Trial Court Cause No. 79C01-1707-F5-80

May, Judge.

[1] Octavius D. Alexander appeals his conviction of Level 5 felony operating a

vehicle with an alcohol concentration equivalent of 0.08 or more and with a

previous conviction for operating while intoxicated causing serious bodily

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 1 of 10 injury. 1 He raises two issues on appeal, which we restate as whether the traffic

stop of Alexander violated either the Fourth Amendment of the United States

Constitution or Article I, Section 11 of the Indiana Constitution. We affirm. 2

Facts and Procedural History [2] On May 19, 2017, at 2:00 a.m., Officer Grant Leroux was on patrol in

Lafayette, Indiana. Officer Leroux began following Alexander’s vehicle in the

normal course of traffic near the intersection of Earl Avenue and Kossuth

Street. Officer Leroux followed Alexander for about a mile before observing

Alexander’s vehicle come to a complete stop at the intersection of Kossuth

Street and Main Street. After stopping, Alexander signaled a right turn and

turned once the stoplight turned green. Officer Leroux then initiated a traffic

stop because Alexander did not signal his turn far enough in advance of the

intersection.

[3] While speaking with Alexander, Officer Leroux smelled alcohol on his breath

and called Officer Matthew Meeks for assistance. When Officer Meeks arrived,

he took over investigating whether Alexander was operating while intoxicated.

While Officer Meeks was investigating, Officer Leroux conducted a canine sniff

of the vehicle, and the canine did not detect the presence of any narcotics.

1 Ind. Code § 9-30-5-1; Ind. Code § 9-30-5-3(b)(2). 2 Alexander requested oral argument, which we denied by separate order on August 21, 2019.

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 2 of 10 [4] Officer Meeks asked Alexander if he had been drinking, and Alexander

admitted having a few drinks. Alexander’s speech was slurred, his eyes were

bloodshot, and his breath smelled of alcohol. Officer Meeks administered three

field sobriety tests. Alexander failed the horizontal gaze nystagmus test and the

one-legged stand test but passed the walk and turn test. Alexander consented to

a chemical test, and Officer Meeks transported him to a hospital where a nurse

drew his blood. The blood draw revealed Alexander’s blood alcohol

concentration to be 0.15.

[5] The State charged Alexander with Level 5 felony operating while intoxicated

because he had a previous conviction for operating while intoxicated causing

serious bodily injury in 2007. 3 The State also charged him with operating a

vehicle with an alcohol concentration equivalent to .15 or more as a Class A

misdemeanor, 4 operating a vehicle while intoxicated as a Class C

misdemeanor, 5 operating a vehicle with a schedule I or II controlled substance

3 The abstract lists the offense as “9-30-5-1(b)/F5: Operating a Vehicle with an ACE of .15 or More where def. has a prior conviction fo [sic]” (App. Vol. II at 65.) Also, the bench trial order lists the requisite alcohol concentration equivalent as .15. (Id. at 55.) However, the listing of the requisite alcohol concentration equivalent appears to be a scrivener’s error. The requisite alcohol concentration equivalent for operating a vehicle with a prior conviction for operating while intoxicated causing serious bodily injury is .08, not .15. Ind. Code § 9-30-5-1; Ind. Code § 9-30-5-3(b)(2). When a case is tried to the bench, we assume the trial court knows and properly applies the law to the relevant facts of the case. Parks v. State, 113 N.E.3d 269, 274 (Ind. Ct. App. 2018). The trial court found Alexander’s alcohol concentration was above .08.

4 Ind. Code § 9-30-5-1. 5 Ind. Code § 9-30-5-2.

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 3 of 10 in one’s body as a Class C misdemeanor, 6 and Level 5 felony operating a

vehicle with a schedule I or II controlled substance in one’s body. 7

[6] On April 19, 2018, Alexander filed a motion to suppress all observations made

by the arresting officers, the statements made by Alexander after the stop, and

Alexander’s blood alcohol content. In support, Alexander alleged Officer

Leroux did not have reasonable suspicion of a crime to initiate the traffic stop

and the stop was unreasonable. The trial court held a hearing on June 5, 2018,

and denied Alexander’s motion.

[7] The court held a bench trial on November 27, 2018, and convicted Alexander

of operating a vehicle with an alcohol concentration equivalent of 0.08 or more

when the defendant has a prior conviction of operating while intoxicated

causing serious bodily injury. 8 Alexander raised a continuing objection at trial

based on the arguments presented in his motion to suppress. On January 11,

2019, the court imposed a four-year sentence, with one year executed in the

Indiana Department of Correction, two years to be served on community

corrections, and one year suspended to probation.

6 Ind. Code § 9-30-5-1. 7 Ind. Code § 9-30-5-1; Ind. Code § 9-30-5-3(b)(2). 8 With regard to the remaining counts, the trial court either entered a verdict of not guilty or merged the count with the count of conviction due to double jeopardy concerns.

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 4 of 10 Discussion and Decision [8] Although Alexander filed a motion to suppress the evidence obtained during

the traffic stop, his case proceeded to trial and he renewed his objection at trial.

Thus, his appeal stems from the admission at trial of the evidence obtained

during the traffic stop. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). The

trial court has broad discretion in ruling on the admission of evidence, and we

review for an abuse of discretion. Id. “We will reverse a trial court’s decision

to admit evidence only if the decision was clearly against the logic and effect of

the facts and circumstances and the error affects the defendant’s substantial

rights.” Wright v. State, 108 N.E.3d 307, 313 (Ind. 2018) (internal quotation

marks omitted). Nevertheless, “the ultimate determination of the

constitutionality of a search or seizure is a question of law that we consider de

novo.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).

Fourth Amendment [9] The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures. A traffic stop is a seizure that must comply

with the Fourth Amendment. McLain v. State, 963 N.E.2d 662, 666 (Ind. Ct.

App. 2012), trans. denied. Nevertheless, it is “well settled that police officers

may stop a vehicle when they observe minor traffic violations.” Reinhart v.

State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).

[10] At issue in this case violation of a traffic control statute that provides: “A signal

of intention to turn right or left shall be given continuously during not less than

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 5 of 10 the last two hundred (200) feet traveled by a vehicle before turning or changing

lanes.” Ind. Code § 9-21-8-25. Alexander does not dispute that he failed to

signal his intent to turn until after he stopped at the intersection of Kossuth

Street and Main Street. Accordingly, Alexander did not signal his turn at least

200 feet in advance of that turn as required by Section 9-21-8-25, which

prompted Officer Leroux to initiate the traffic stop.

[11] Despite his failure to properly signal, Alexander argues the stop was

unconstitutional because the State failed to show his compliance with the

statute was even possible. Alexander’s argument relies on Rhodes v. State, 950

N.E.2d 1261 (Ind. Ct. App. 2011). In Rhodes, a tow truck driver notified police

that Rhodes, who was driving a vehicle, might be intoxicated. Id. at 1263. The

officer followed Rhodes, observed Rhodes fail to use his turn signal, and pulled

him over. Id. at 1264. Rhodes moved to suppress the evidence gathered during

the traffic stop, and the trial court granted the motion. Id. The trial court

observed that there might have been an intervening street between where

Rhodes was to begin signaling and where Rhodes intended to turn, which could

potentially confuse other drivers. Id. The trial court also highlighted Rhodes’

testimony that he executed the turn after the officer activated the emergency

lights. Id. We reviewed the trial court’s decision to ensure it was supported by

substantial evidence of probative value, and we drew all reasonable inferences

in favor of the trial court’s decision. Id. at 1264-65. We observed that the

officer testified Rhodes had his turn signal on for about 150 feet prior to

initiating his turn and the record did not reflect whether there had been at least

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 6 of 10 200 feet between where Rhodes began traveling on the street and where he

initiated his turn. Id. at 1265. We affirmed the trial court’s grant of the motion

to suppress and explained:

[T]he State failed to show that compliance with the statute was possible under the circumstances. In addition, if the trial court credited Rhodes’s testimony, once the officer turned on his emergency lights, Rhodes was required to pull over immediately. . .Thus, we cannot say that the trial court erred by concluding that Rhodes was not properly stopped for a traffic violation.

Id.

[12] In contrast, the State contends Officer Leroux’s stop of Alexander was

reasonable pursuant to Peak v. State, 26 N.E.3d 1010 (Ind. Ct. App. 2015). Peak

drove away from a house that was suspected of being used for drug activity, and

an officer followed him. Id. at 1012. Peak stopped at a red light, activated his

right turn signal, then turned right. Id. The officer pulled Peak over because he

did not signal his turn sufficiently in advance. Id. The officer searched Peak

and found marijuana on his person. Id. at 1013. Peak did not contest his

failure to signal 200 feet before turning right. Id. at 1015. We observed that

“[f]ailure to signal within the required distance is objective evidence of failure to

comply with the statue.” Id. Consequently, Peak’s failure to signal his turn

gave the officer reasonable suspicion to initiate the traffic stop. Id. at 1016.

[13] Given the facts and procedural posture of this case, we find Peak more

analogous. In Rhodes, there were evidentiary disputes about whether the officer

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 7 of 10 activated his lights before Rhodes signaled his turn, whether the officer could

have pulled Rhodes over for failing to signal his turn sufficiently in advance,

and whether Rhodes had entered the roadway more than 200 feet in advance of

his turn. Here, as in Peak, there is no evidentiary dispute about whether

Alexander failed to signal his turn sufficiently in advance, 9 and thus the issue

before us is a matter of law that we review de novo. As a matter of law, Officer

Leroux was justified in initiating a traffic stop. See Love v. State, 741 N.E.2d

789, 791 (Ind. Ct. App. 2001) (holding officer was clearly justified in stopping

vehicle to investigate traffic infraction).

Article I, Section 11 of Indiana Constitution [14] Article 1, Section 11 of the Indiana Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

We evaluate the reasonableness of a stop and seizure under the Indiana

Constitution by looking at the totality of the circumstances and balancing: “1)

9 We also observe that the intersection of Earl Avenue and Kossuth Street is several blocks away from the intersection of Kossuth Street and Main Street. Google Maps, S. Earl Ave, Lafayette, IN, https://www.google.com/maps/place/S+Earl+Ave,+Lafayette,+IN (last visited September 12, 2019). Therefore, it was possible for Alexander to have initiated his turn signal at a distance greater than 200 feet in advance of his turn.

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 8 of 10 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).

[15] Alexander contends the degree of concern and suspicion was minimal because

no evidence suggested Alexander was driving under the influence prior to

Officer Leroux initiating the traffic stop. Yet, Officer Leroux did observe

Alexander commit a traffic violation and, thus, was aware of an illegal act

when he stopped the vehicle. Alexander argues the stop was unnecessarily

intrusive because it included a canine sniff, but he does not point to any

evidence in the record to demonstrate the canine sniff prolonged the stop,

impeded his freedom of movement, or involved entering the vehicle. See State v.

Gibson, 886 N.E.2d 639, 643 (Ind. Ct. App. 2008) (holding canine sniff of the

exterior of defendant’s vehicle did not violate either the Fourth Amendment or

the Indiana Constitution). Lastly, Alexander argues the extent of law

enforcement need in this case was minimal because there were no other cars or

pedestrians around at the time, he signaled his turn for several seconds while

stopped before turning, and there was no indication Alexander was driving

under the influence before he was stopped.

[16] However, the enforceability of our traffic laws is not dependent upon such

situation-specific factors. Police officers simply have authority to initiate traffic

stops in order to enforce the traffic laws or to investigate a reasonable suspicion

that a driver might be under the influence. Because the Litchfield factors weigh

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 9 of 10 in favor of the State, Officer Leroux’s stop of Alexander did not violate Article

1, Section 11 of the Indiana Constitution. See Johnson v. State, 992 N.E.2d 955,

960 (Ind. Ct. App. 2013) (holding traffic stop of individual for suspected

window tint violation and subsequent discovery of marijuana did not violate

either the United States Constitution or the Indiana Constitution), trans. denied.

Conclusion [17] Alexander failed to properly signal before turning. Therefore, law enforcement

had reason to initiate a traffic stop, and the ensuing investigation of Alexander’s

possible intoxication did not violate Alexander’s rights under the Fourth

Amendment to the United States Constitution or Article 1, Section 11 of the

Indiana Constitution. Accordingly, the trial court did not abuse its discretion

when it admitted that evidence. We affirm the trial court.

[18] Affirmed.

Najam, J., and Bailey, J., concur.

Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019 Page 10 of 10