Rashad Shareef Bryant v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 30, 2023
• Docket: 23A-CR-00018
• Status: Published

Opinion

FILED Aug 30 2023, 9:10 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Theodore E. Rokita Morgan Brading Indiana Attorney General Harshman | Ponist Smith & Rayl Sierra A. Murray Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rashad Shareef Bryant, August 30, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-18 v. Interlocutory Appeal from the Hendricks Superior Court State of Indiana, The Honorable Stephenie LeMay- Appellee-Plaintiff Luken, Judge Trial Court Cause No. 32D05-2201-F2-1

Opinion by Judge Crone Judges Brown and Felix concur.

Crone, Judge.

Case Summary [1] Rashad Shareef Bryant was arrested after a traffic stop and charged with

multiple drug- and firearm-related offenses. He filed a motion to suppress the Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 1 of 12 evidence seized during the stop as well as any testimony about that evidence,

arguing that the stop was unreasonably prolonged so that a police dog could

sniff his vehicle for contraband. After a hearing, the trial court denied Bryant’s

motion. On appeal, Bryant argues that the ruling is erroneous. We disagree and

therefore affirm.

Facts and Procedural History [2] At 2:22 a.m. on January 29, 2022, Brownsburg Police Department Officer

Elsiana Crosby activated the emergency lights on her patrol car and stopped

Bryant’s SUV after he turned from Connector Road onto North Ronald Reagan

Parkway. During a July 2022 deposition that was taken in anticipation of the

October 2022 suppression hearing, 1 Officer Crosby testified that she stopped

Bryant because he made “a fast turn, a little bit more erratic, something you

would see out of an impaired driver typically. And right of the fog line, left of

the centerline- - or, at least touching the [right of the fog line].” Ex. Vol. 3 at 5.

Footage from Officer Crosby’s bodycam video shows that she told Bryant that

she pulled him over for not using his turn signal when he “came off Connector

Road.” State’s Ex. 3 at 00:07. Bryant apologized, and the officer said that it was

“no big deal[.]” Id. at 00:08.

[3] Officer Crosby asked Bryant for his driver’s license and vehicle registration,

which he gave to her, and asked where he was going. Bryant replied that he was

1 Officer Crosby was scheduled for a military deployment and was unavailable for the hearing.

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 2 of 12 “picking [his] friend up from this club.” Id. at 00:12. The officer asked Bryant

what kind of club it was and where it was. Bryant said that he “didn’t even

know the name” of the club and that he was going to look at his friend’s

directions to the club when he got to a gas station. Id. at 00:46. Officer Crosby

asked Bryant why he was going to a gas station. Bryant stated that he “just

need[ed] to go to the gas station” and that he did not do anything wrong, and

he asked her to write him “a ticket or whatever you’re gonna do.” Id. at 01:07.

Officer Crosby told Bryant that she was “not gonna write a ticket[.]” Id. at

01:09. 2 Bryant said, “Thank you. I’m not drinking, no nothing.” Id. at 01:12.

Officer Crosby stated that she was “doing OWI interdiction” and had asked

him about the gas station because she noticed that he had gas in his vehicle. Id.

at 01:13. Bryant said, “I’m going to set up the directions when I get over

[there].” Id. at 01:21. Officer Crosby told Bryant to “hang tight” and walked

toward her car with his license and registration. Id. at 01:22. En route, she

remarked, “I don’t know, might not be so good.” Id. at 01:30.

[4] Officer Crosby reentered her car, turned on the dome light, and exclaimed, “I

wish I could smell[,]” apparently referring to her inability to detect the odor of

an alcoholic beverage. Id. at 01:39. 3 She entered information from Bryant’s

registration into her laptop computer and radioed Canine Officer Bradley Carr

2 In her deposition, Officer Crosby stated that she tells motorists that she is not going to write a ticket as a “tactic” that “typically […] relaxes people.” Ex. Vol. 3 at 7. 3 Bryant incorrectly interprets this remark as “[Bryant] does not smell[.]” Reply Br. at 7.

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 3 of 12 to ask if he was “available to swing by [her] stop[.]” Id. at 02:48. Officer Carr

responded affirmatively. Officer Crosby scrolled through information on her

computer screen, which included a photo of a person who resembled Bryant. Id.

at 04:16. She then muttered, “Condition,” and scanned the barcode on the back

of Bryant’s license with a handheld scanner. Id. at 04:35-04:51. Officer Crosby

interacted with her computer and pulled up several different screens, one of

which showed a photo of a person who resembled Bryant Id. at 06:02.

[5] Officer Crosby then conducted Google searches on her phone. Id. at 06:11.

Slightly over a minute later, she put down her phone and turned off the dome

light. Id. at 07:28. Shortly after that, she turned the dome light back on and

apparently muted her bodycam audio. Id. at 08:49. Officer Carr approached

Officer Crosby’s vehicle, and she rotated her laptop screen to face the front

passenger window. Id. at 09:19. She unmuted her bodycam audio, apparently

mid-conversation, and stated, “Been a while, but worth looking at, I think.” Id.

at 09:24. Officer Carr asked, “Are you gonna pull him out? Is it just him?” Id. at

09:26. Officer Crosby replied, “Yeah, I was gonna see if you would go up there

and smell him.” Id. at 09:29. Officer Carr said, “OK, I’ll ask him if he has his

insurance,” and started walking around the front of Officer Crosby’s car toward

Bryant’s vehicle. Id. at 09:31. Officer Crosby called out, “And hey, you can ask

him why his license are [sic] conditional, and then you can pull him out and

we’ll put him in the front seat of my car.” Id. at 09:40.

[6] At that point, Officer Carr’s bodycam also began recording. He approached

Bryant, who was still sitting in his vehicle, and asked, “Hey, why does your Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 4 of 12 license show conditional status?” State’s Ex. 4 at 00:09. Bryant replied, “Uh, I

don’t know. I used to have a conditional license ’cause I had, uh, back in 2015 I

had to apply to get my license back.” Id. at 00:19. Officer Carr replied, “OK.

Do you have anything illegal in the car right now?” Id. at 00:20. Bryant said,

“No, sir.” Id. at 00:21. Officer Carr asked, “Do you have a problem with giving

consent to search the vehicle?” Id. at 00:24. Bryant replied, “No, no, I don’t

want my car searched. I didn’t do anything wrong.” Id. at 00:28. The officer

asked, “Well, do me a favor, will you just hop out for me?” Id. at 00:29. Bryant

replied, “No, sir, for what?” Id. at 00:30. Officer Carr said, “Because I’m gonna

run my dog around your car, and you can’t stay in it.” Id. at 00:32. Bryant said,

“No, no.” Id. at 00:33. The officer said, “Yeah, yeah, you need to step out of

the car.” Id. at 00:34. Bryant again asked, “For what?” Id. at 00:35. Officer Carr

replied, “Because the Supreme Court has said we have the right to ask you to

step out of the car for officer safety. I’m gonna run my dog around the car, he

bites, and I’m not gonna let him bite you.” Id. at 00:43. Bryant insisted that he

had not done anything wrong, that he did not want his vehicle searched, and

that “it was a turn signal, that’s all that’s been going on.” Id. at 00:47.

[7] Bryant refused to get out of his vehicle, and a back-and-forth ensued between

him and Officer Carr, who was soon joined by Officer Crosby. Officer Crosby

asked Officer Carr if he had smelled any alcohol, and he replied, “I didn’t smell

anything.” Id. at 03:02. Officer Crosby asked Bryant why his license was

conditional and what those conditions were, and he replied that he could drive

for work and was a Lyft driver. Id. at 04:43. Officer Crosby said, “I thought you

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 5 of 12 were picking your buddy up.” Id. at 04:45. Bryant replied, “Yes, I am.” Id. at

04:47. The officer said, “Oh, on Lyft, OK, so you have the app?” Id. at 04:48.

Bryant said that he did. The officer asked if she could see the app, and Bryant

replied, “I don’t have to do all that.” Id. at 04:57. Officer Crosby reminded

Bryant that his license was “conditional,” told him to “hang tight,” id. at 05:01,

and returned to her car to call her shift supervisor, Sergeant Matt Wing.

[8] Bryant remained in his vehicle with the window rolled up and made several

phone calls. He rolled down his window for a brief interchange with Officer

Carr, and then Sergeant Wing arrived and asked him to exit the vehicle to avoid

any use of force or a resisting charge. Negotiations proved fruitless, and the

sergeant asked Officer Carr to get his dog. Id. at 12:44. Ultimately, after giving

several warnings and asking Bryant to unlock his door, Officer Crosby shattered

Bryant’s window. Id. at 20:52. Bryant was removed from the vehicle and

handcuffed. Shortly thereafter, Officer Carr’s dog alerted to the presence of a

controlled substance at the front “passenger side door seam[.]” Tr. Vol. 2 at 17.

Officer Heather Foote searched behind the vehicle’s glove box and found a bag

containing three baggies of cocaine, a scale, a Glock handgun with a loaded

magazine, and a loaded Glock extended thirty-round magazine. Police patted

down Bryant near Officer Crosby’s car, and an additional baggie of cocaine was

found in that area.

[9] The State charged Bryant with level 2 felony dealing in cocaine, level 3 felony

possession of cocaine, level 4 felony unlawful possession of a firearm by a

serious violent felon, class A misdemeanor carrying a handgun without a

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 6 of 12 license, class A misdemeanor resisting law enforcement, and class C

misdemeanor violation of driving conditions. The State also alleged that Bryant

was a habitual offender. Bryant filed a motion to suppress the evidence seized

during the traffic stop and any testimony regarding that evidence, arguing that

the traffic stop was unreasonably prolonged to allow the dog to sniff his vehicle.

At the hearing on the motion, Sergeant Wing and Officers Carr and Foote

testified. Officer Crosby’s deposition was admitted into evidence, as were the

police incident report and DVDs of the officers’ bodycam footage. In November

2022, the trial court issued an order summarily denying Bryant’s motion. This

interlocutory appeal ensued.

Discussion and Decision [10] Bryant asserts that the trial court erred in denying his motion to suppress. “We

review a trial court’s denial of a defendant’s motion to suppress deferentially,

construing conflicting evidence in the light most favorable to the ruling, but we

will also consider any substantial and uncontested evidence favorable to the

defendant.” Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). When the trial

court’s ruling concerns the constitutionality of a search or seizure, it presents a

question of law, which we address de novo. Id. We may affirm the denial of a

motion to suppress on any legal theory supported by the record. State v. Jones,

191 N.E.3d 878, 889 (Ind. Ct. App. 2022), trans. denied.

[11] “The Fourth Amendment to the U.S. Constitution protects persons from

unreasonable search and seizure by prohibiting, as a general rule, searches and

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 7 of 12 seizures conducted without a warrant supported by probable cause.” Clark v.

State, 994 N.E.2d 252, 260 (Ind. 2013). 4 “As a deterrent mechanism, evidence

obtained in violation of this rule is generally not admissible in a prosecution

against the victim of the unlawful search or seizure absent evidence of a

recognized exception.” Id. “The State has the burden of demonstrating that the

measures it used to seize evidence were constitutional.” Porter v. State, 985

N.E.2d 348, 353 (Ind. Ct. App. 2013).

[12] Bryant does not challenge the validity of the traffic stop itself, which was based

on one or more traffic violations witnessed by Officer Crosby. See Austin v. State,

997 N.E.2d 1027, 1034 (Ind. 2013) (“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.”). Moreover, it is well settled that a dog sniff is

not a search protected by the Fourth Amendment to the United States

Constitution. Tinker v. State, 129 N.E.3d 251, 256 (Ind. Ct. App. 2019), trans.

denied. “Accordingly, no degree of suspicion is required to summon the canine

unit to the scene to conduct an exterior sniff of the car or to conduct the sniff

itself.” Id. at 255-56 (quoting State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010)).

4 Bryant summarizes a case that relied on the similarly worded Article 1, Section 11 of the Indiana Constitution, but he provides no fact-specific analysis based on Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), in his initial brief. Accordingly, he has waived any state constitutional claim. See White v. State, 199 N.E.3d 1249, 1253 n.3 (Ind. Ct. App. 2022) (finding state constitutional claim waived due to appellant’s failure to provide separate analysis under Article 1, Section 11), trans. denied (2023); see also Watkins v. State, 85 N.E.3d 597, 600 (Ind. 2017) (noting that “Litchfield governs the reasonableness of … traffic stops [and] vehicle searches”). Bryant impermissibly attempts to avoid waiver by including a Litchfield analysis in his reply brief, to which the State had no opportunity to respond.

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 8 of 12 [13] “A narcotics dog sweep, however, becomes ‘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. at 256 (quoting

Austin, 997 N.E.2d at 1034. “[T]he tolerable 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[.]”

Rodriguez v. United States, 575 U.S. 348, 354 (2015) (citations omitted). “Because

addressing the infraction is the purpose of the stop, it may last no longer than is

necessary to effectuate that purpose.” Id. (citation, quotation marks, and

brackets omitted). “Authority for the seizure thus ends when tasks tied to the

traffic infraction are—or reasonably should have been—completed.” Id.

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

United States v. Sharpe, 470 U.S. 675, 686 (1985).

[14] “Beyond determining whether to issue a traffic ticket, an officer’s mission

includes ordinary inquiries incident to the traffic stop.” Rodriguez, 575 U.S. at

355 (citation, quotation marks, and brackets omitted). “Typically such inquiries

involve checking the driver’s license, determining whether there are outstanding

warrants against the driver, and inspecting the automobile’s registration and

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 9 of 12 proof of insurance.” Id. By contrast, a dog sniff “is a measure aimed at detecting

evidence of ordinary criminal wrongdoing.” Id. (citation, quotation marks, and

brackets omitted). “Lacking the same close connection to roadway safety as the

ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s

traffic mission.” Id. at 356. “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 357 (citations and

quotation marks omitted). “The burden is on the State to show that the time for

the traffic stop was not increased due to a canine sniff.” Tinker, 129 N.E.3d at

256.

[15] Bryant argues,

The State did not offer any evidence or testimony as to whether Officer Crosby was diligently pursuing an investigation into the traffic stop or where she was in her investigation when Officer Carr arrived or thereafter. Officer Crosby’s body-camera footage merely shows her sitting in her car and running Google and MyCase searches.

Appellant’s Br. at 11-12.

[16] The foregoing factual summary establishes that Officer Crosby was

investigating Bryant’s driving privileges, which was well within her mission, at

least until she started conducting Google searches on her phone, which may or

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 10 of 12 may not have been in furtherance of her investigation. 5 And it was also within

her mission to question Bryant about the conditions on his license.

Furthermore, Officer Crosby had not yet dispelled (and had been unable to

dispel by olfactory means) her suspicion, based on Bryant’s “erratic” turn onto

Ronald Reagan Parkway, that he was impaired as a result of alcohol

consumption.

[17] When Officer Carr arrived, Officer Crosby delegated issues related to Bryant’s

license conditions and possible intoxication to him, at least initially. 6 And

because the purpose of the stop had not yet been accomplished, it was

permissible for Officer Carr to order Bryant to exit his vehicle, and Bryant was

obligated to comply with that order. See Tumblin v. State, 736 N.E.2d 317, 321

(Ind. Ct. App. 2000) (“Law enforcement officers may, as a matter of course, order

the driver and passengers to exit a lawfully stopped vehicle.”) (emphasis added)

(citing, inter alia, Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Maryland v.

Wilson, 519 U.S. 408 (1997)), trans. denied (2002). 7 But Bryant repeatedly

refused to comply, and it was his obstinancy, rather than the dog sniff itself,

5 No testimony was elicited on this specific point at Officer Crosby’s deposition, although the officer testified that she was “still working” when Officer Carr approached Bryant’s vehicle. Ex. Vol. 3 at 8. 6 Officer Crosby could have asked Bryant to perform field sobriety tests, such as a walk-and-turn test or a one-leg-stand test, but we note that one of Bryant’s excuses for refusing to exit his vehicle was that he did not “even have socks on[,]” State’s Ex. 4 at 08:47, and the vehicle’s rear window was coated with frost. 7 That Officer Carr asked Bryant to exit the vehicle so that he could conduct a dog sniff is inconsequential.

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 11 of 12 that significantly prolonged the duration of the traffic stop. 8 Consequently, we

affirm the trial court’s denial of his motion to suppress.

[18] Affirmed.

Brown, J., and Felix, J., concur.

8 During the standoff, Officer Crosby asked Bryant about the conditions on his license, and his evasive response obviously failed to dispel her suspicions about whether he was legally operating his vehicle. Ultimately, Bryant was charged with violating those conditions.

Court of Appeals of Indiana | Opinion 23A-CR-18 | August 30, 2023 Page 12 of 12