Roberto Bernal-Andraca v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 28, 2018
• Docket: 18A-CR-1288
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 28 2018, 9:49 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 Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Roberto Bernal-Andraca, November 28, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1288 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton A. Appellee-Plaintiff Graham, Judge The Honorable Steven Rubick, Magistrate Trial Court Cause No. 49F07-1212-CM-85862

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018 Page 1 of 9 [1] Roberto Bernal-Andraca appeals his conviction for carrying a handgun without

a license, a Class A misdemeanor. He contends that evidence of the gun found

on his person during a traffic stop was obtained in violation of the Fourth

Amendment of the United States Constitution and Article 1, Section 11 of the

Indiana Constitution. In light of the circumstances, we conclude that the

officer conducting the stop acted reasonably, under both constitutions, in asking

Bernal-Andraca to exit the vehicle. Accordingly, the evidence was properly

admitted by the trial court.

[2] We affirm.

Facts & Procedural History

[3] Around 3:30 a.m. on December 22, 2012, Indiana State Excise Police Officer

Travis Thickstun was on patrol when he observed a vehicle being driven by

Bernal-Andraca in Marion County. While driving behind the vehicle, Officer

Thickstun checked the license plate and determined that it was registered to a

different vehicle. He then initiated a stop.

[4] Officer Thickstun approached the vehicle and asked Bernal-Andraca – the sole

occupant – for his driver’s license and vehicle registration. He also explained to

Bernal-Andraca the reason for the stop. Bernal-Andraca patted around on his

clothing and eventually indicated (non-verbally) that “he didn’t have it or

couldn’t find it.” Transcript at 9. Bernal-Andraca then began searching through

a black bag that was on the front passenger seat. Officer Thickstun saw several

items in the bag that concerned him. In particular, he observed a collapsible

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018 Page 2 of 9 baton and pepper spray, as well as a flashlight with the word “police” on it and

a set of handcuffs. At this point, Bernal-Andraca had yet to identify himself

and had not indicated that he was a police officer (which he was not). Officer

Thickstun asked Bernal-Andraca to step out of the vehicle.

[5] At trial, Officer Thickstun explained why he felt the need to have Bernal-

Andraca come out of the vehicle. Officer Thickstun noted that he was the only

officer on the scene and that he had yet to identify Bernal-Andraca or check the

vehicle registration. Officer Thickstun explained: “I had him step out of the

vehicle to get him away from the weapons that I saw, the pepper spray and the

baton at the very least, to figure out who he was and to get his information to

run him at that point.” Id. at 12.

[6] As Bernal-Andraca exited the vehicle, he indicated to Officer Thickstun that he

had a gun on his person. Officer Thickstun immediately had Bernal-Andraca

face the vehicle and then located and removed the handgun from a holster on

Bernal-Andraca’s right hip. Officer Glen Bell arrived on the scene at this time

and secured the semiautomatic handgun and removed the ammunition. Officer

Thickstun handcuffed Bernal-Andraca and then turned his attention back to

trying to identify him. After obtaining Bernal-Andraca’s name and date of

birth, Officer Thickstun was able to confirm that Bernal-Andraca was not a

licensed driver. There was also no indication that Bernal-Andraca was licensed

to carry a handgun. Officer Thickstun placed Bernal-Andraca under arrest.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018 Page 3 of 9 [7] Later that same day, the State charged Bernal-Andraca with carrying a handgun

without a license and operating a vehicle having never received a license, both

as Class A misdemeanors. Bernal-Andraca failed to appear for two separate

hearings and was brought before the trial court on January 4, 2018, after being

arrested on an unrelated matter. At the bench trial on May 17, 2018, Bernal-

Andraca objected to the admission of any evidence (namely, the gun evidence)

obtained after he was ordered out of the vehicle. He contended that this order

constituted an unlawful seizure under both the federal and state constitutions.

The trial court refused to suppress the evidence and ultimately found Bernal-

Andraca guilty as charged. Bernal-Andraca was sentenced to concurrent terms

of thirty days in jail. Bernal-Andraca now appeals, challenging the admission

of the gun evidence.

Discussion & Decision

Standard of Review

[8] The trial court has broad discretion when ruling on the admissibility of

evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). On appeal, we

review such rulings for an abuse of 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.” Id. at 40-41.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018 Page 4 of 9 [9] Bernal-Andraca argues the seizure violated both the Fourth Amendment and

Article 1, Section 11. Although these constitutional provisions contain

textually similar language, it is well established that they must be separately

analyzed. Graham v. State, 971 N.E.2d 713, 716 (Ind. Ct. App. 2012), trans.

denied. Thus, we will address each in turn.

Fourth Amendment

[10] The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A traffic stop is akin to an investigative stop pursuant to Terry v. Ohio, 392 U.S.

1 (1968). Under Terry, the reasonableness of an investigative stop is measured

by the officer’s actions and whether those actions were “reasonably related in

scope to the circumstances which justified the interference in the first place.”

Id. at 20; see also Graham, 971 N.E.2d at 716. The seizure must last no longer

than necessary to effectuate the purpose of the stop and “the investigative

methods employed should be the least intrusive means reasonably available to

verify or dispel the officer’s suspicion in a short period of time.” Graham, 971

N.E.2d at 716 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). “As part of

a valid Terry stop, the investigating officer is entitled to take reasonable steps to

ensure his own safety, including ordering a detainee to exit the vehicle.” Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018 Page 5 of 9 Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010); see also Pennsylvania v.

Mimms, 434 U.S. 106, 111 (1977) (describing the additional intrusion of

ordering a driver lawfully stopped to get out of the car as “de minimis” and “at

most a mere inconvenience”).

[11] Bernal-Andraca does not contest the validity of the initial traffic stop; he

challenges only the request that he get out of the vehicle, which he baldly

asserts was for the purpose of performing a body search. Bernal-Andraca

contends that Officer Thickstun should have merely instructed him to hand

over the black bag or ordered him to raise his hands so that Thickstun could

retrieve the bag. We disagree.

[12] After lawfully being stopped around 3:30 a.m., Bernal-Andraca failed to

provide Officer Thickstun with a driver’s license or a vehicle registration upon

request. Bernal-Andraca then began searching through a black bag that

contained, among other things, pepper spray and a baton. As Officer Thickstun

explained at trial, he ordered Bernal-Andraca out of the vehicle “to get him

away from the weapons” while Officer Thickstun – the only officer on the scene

at that time – could work on obtaining identifying information. Transcript at 12.

Thus, Officer Thickstun acted out of concern for his own safety and merely

ordered Bernal-Andraca out of the vehicle. There is no indication in the record

that Officer Thickstun intended to conduct a patdown search when he made

this request or that the order was accompanied by any additional actions by

Officer Thickstun, such as drawing his service weapon. Cf. Reinhart, 930

N.E.2d at 46 (“[Officer] did much more than merely order Reinhart to exit the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018 Page 6 of 9 vehicle. [He] drew his weapon, ordered Reinhart to exit the vehicle at

gunpoint, and, while the laser sight of his gun was fixed on Reinhart, [] ordered

Reinhart to his knees with his hands behind his head….”). It was not until

Bernal-Andraca indicated that he had a handgun on his person that Officer

Thickstun searched and removed the handgun from a holster on Bernal-

Andraca’s hip.

[13] We conclude that Officer Thickstun’s decision to order Bernal-Andraca out of

the vehicle was reasonable and did not violate the Fourth Amendment. See

Mimms, 434 U.S. at 111 n. 6 (“once a motor vehicle has been lawfully detained

for a traffic violation, the police officers may order the driver to get out of the

vehicle without violating the Fourth Amendment’s proscription of

unreasonable searches and seizures”); Ammons v. State, 770 N.E.2d 927, 932

(Ind. Ct. App. 2002) (“the Fourth Amendment permits requesting a motorist

stopped for a traffic violation to exit a car”), trans. denied. Further, once

informed that Bernal-Andraca was armed with a handgun, Officer Thickstun

reasonably searched his person for that weapon and removed it. See Arizona v.

Johnson, 555 U.S. 323, 331 (2009) (once outside the stopped vehicle, the driver

may be patted down for weapons if the officer reasonably concludes that the

driver might be armed and dangerous). There was no Fourth Amendment

violation in this case.

Article 1, Section 11

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018 Page 7 of 9 [14] Bernal-Andraca also asserts a violation of Article 1, Section 11 of the Indiana

Constitution, which “safeguards the ‘right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable search or seizure.’”

Watkins v. State, 85 N.E.3d 597, 600 (Ind. 2017). An analysis under Article 1,

Section 11 “turns on whether the police conduct was reasonable under the

totality of the circumstances.” Carpenter v. State, 18 N.E.3d 998, 1002 (Ind.

2014). In making this evaluation, we apply the test established by our Supreme

Court in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). “The ‘reasonableness of

a search or seizure [turns] on a balance of: 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.’” J.G. v. State, 93 N.E.3d 1112, 1122-23

(Ind. Ct. App. 2018) (quoting Litchfield, 824 N.E.2d at 361) (alteration in J.G.),

trans. denied.

[15] We conclude that Officer Thickstun acted reasonably under the circumstances

and, thus, find no violation of Article 1, Section 11. The degree of concern,

suspicion, or knowledge that a violation had occurred was high. Bernal-

Andraca was driving a vehicle with a questionable license plate, he could not

produce a driver’s license or vehicle registration, and he had a bag containing

items that could be used against Officer Thickstun during the lawful stop. The

degree of the intrusion – ordering him out of the vehicle – was minimal.

Further, Officer Thickstun needed to be able to safely investigate the lawful

stop. It was 3:30 in the morning, Officer Thickstun was alone, and he had

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018 Page 8 of 9 observed items next to Bernal-Andraca that could be used against him as

weapons. Removing Bernal-Andraca from the vehicle was reasonable under

the totality of the circumstances. Moreover, once Bernal-Andraca indicated

that he was armed with a handgun, Officer Thickstun acted reasonably in

locating the weapon and removing it from Bernal-Andraca’s person before

continuing his investigation.

[16] In sum, Officer Thickstun did not violate Bernal-Andraca’s federal or state

constitutional rights by ordering him out of the vehicle and then, after being

informed that Bernal-Andraca was armed, patting him down to retrieve the

weapon. The challenged evidence was, therefore, properly admitted at trial.

[17] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018 Page 9 of 9