Roger Thayer v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 23, 2020
• Docket: 19A-CR-2363
• Status: Published

Opinion

FILED Apr 23 2020, 9:12 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paula M. Sauer Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana

Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Roger Thayer, April 23, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2363 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Mark A. Smith, Appellee-Plaintiff. Judge Trial Court Cause No. 32D04-1902-F2-6

Bradford, Chief Judge.

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 1 of 12 Case Summary [1] Roger Thayer was charged with Level 4 felony possession of methamphetamine

after being found to be in possession of 13.52 grams of methamphetamine.

Prior to trial, Thayer unsuccessfully moved to suppress the evidence discovered

during what he claims was an unjustifiably prolonged traffic stop. Thayer

unsuccessfully renewed his evidentiary challenge at trial before stipulating to

the relevant facts to prove that he possessed the 13.52 grams of

methamphetamine. Relying on the stipulation, the trial court found Thayer

guilty of the possession charge. On appeal, Thayer contends that the trial court

abused its discretion in admitting the challenged evidence. We affirm.

Facts and Procedural History [2] Shortly before midnight on February 25, 2019, Pittsboro Police Officer

Nicholas Webber initiated a traffic stop after observing a truck driving on

westbound I-74 with no working taillights or license plate illumination. Thayer

was the driver and sole occupant of the truck. While speaking to Thayer,

Officer Webber noticed that Thayer “kept trying to reach something under

items on the passenger seat and twisting his body … making large movements

as if he was diving … to something on the passenger side. He was trying to

look for something either on the floorboard or under items on the passenger

seat. And it was a large truck, so, his whole body was moving, while he was

doing it.” Tr. p. 9. Thayer was “acting very nervous and kept moving.” Tr. p.

12. Officer Webber described Thayer’s actions as “erratic.” Tr. p. 33.

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 2 of 12 [3] Officer Webber asked Thayer for his driver’s license and the vehicle’s

registration. Thayer did not have his driver’s license or any other form of

identification on him. Thayer orally identified himself and indicated that he

was driving a friend’s truck. Thayer provided Officer Webber with some form

of registration or title paperwork for the truck, dropping it onto the interstate

when he attempted to hand it to Officer Webber. After retrieving the

paperwork from the lanes of travel, Officer Webber returned to his police-issued

vehicle to confirm Thayer’s identity and the registration status of the vehicle.

[4] After approximately five minutes, Officer Webber was able to obtain BMV

confirmation that a person by the name of Roger Thayer had a valid driver’s

license. Due to safety concerns stemming from Thayer’s extreme nervousness

and erratic behavior, Officer Webber ran a criminal background check in an

attempt to further confirm Thayer’s identity. Officer Webber eventually

received additional identifying information, but “the very first thing that

pop[ped] up” was a red caution flag indicating that Thayer is someone with a

“potential for violence.” Tr. p. 17.

[5] Upon receiving the warning of Thayer’s potential for violence, Officer Webber,

who was working the nightshift alone in Pittsboro, requested backup assistance

from Officer Kevin Hyde, a nightshift K9 officer in nearby Brownsburg. While

waiting for Officer Hyde to arrive, Officer Webber ran the license plate

information for the truck. Officer Webber also reviewed his incident history

and began manually entering Thayer’s identifying information into his traffic-

stop report and ticket-issuance software. Normally, when an individual

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 3 of 12 provides a driver’s license or identification card during a traffic stop, Officer

Webber scans the license or identification card and the computer in his police-

issued vehicle populates the information in a ticket. However, because Thayer

had no driver’s license or identification card, Officer Webber had to manually

enter all of the relevant information. Officer Webber was in the process of

entering Thayer’s information and issuing Thayer tickets for the inoperable

taillights and license plate illumination when Officer Hyde arrived on the scene

approximately five to ten minutes after receiving Officer Webber’s request for

backup.

[6] Officer Webber told Officer Hyde that he had observed Thayer make furtive

movements toward the center of the vehicle and asked if Officer Hyde would

walk his K9 around the vehicle. Officer Hyde agreed and, after Officer Webber

removed Thayer from the truck, walked his K9 along the driver’s side of the

truck to conduct “a free air sniff” of the truck. Tr. p. 64. The K9 “gave an

active alert” when he got to the driver’s door/window. Tr. p. 64.

[7] After receiving the alert from his K9, Officer Hyde began a search of the

vehicle, finding a glass methamphetamine pipe in the center console. At that

point, Officer Webber placed Thayer under arrest and conducted a pat-down

search of Thayer’s person. During this search, Officer Webber found a baggie

containing what was ultimately determined to be 13.52 grams of

methamphetamine and a pipe in Thayer’s “left breast jacket pocket.”

Appellant’s App. Vol. II p. 66. Thayer admitted that he had purchased the

methamphetamine earlier that day and used “the found pipes to smoke it.”

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 4 of 12 Appellant’s App. Vol. II p. 66. In a further search of the truck, Officers Hyde

and Webber found “three (3) scales with residue of an off-white substance, eight

(8) syringes, numerous small baggies, straws with an off-white substance, and

two (2) additional pipes containing an off-white burnt substance.” Appellant’s

App. Vol. II p. 66.

[8] On February 26, 2019, the State charged Thayer with Level 2 felony dealing

methamphetamine, Level 4 felony possession of methamphetamine, Level 6

felony possession of a syringe, and Class C misdemeanor possession of

paraphernalia. On May 13, 2019, Thayer filed a motion to suppress “all

property seized by the arresting officers, all observations made by the arresting

officers, and all statements made by [Thayer].” Appellant’s App. Vol. II p. 38.

Following a hearing, the trial court denied Thayer’s motion to suppress.

[9] On July 8, 2019, Thayer agreed to waive his right to a jury trial and, in

exchange, the State agreed to dismiss the dealing and paraphernalia charges,

proceeding only with the Level 4 felony possession charge. At the beginning of

the July 23, 2019 bench trial, Thayer renewed his challenge to the admission of

the State’s evidence. The trial court denied Thayer’s renewed challenge,

indicating that it would “stand on” its prior ruling. Tr. p. 89. The case was

submitted to the trial court on stipulated evidence, and the trial court found

Thayer guilty of Level 4 felony possession of methamphetamine. On

September 9, 2019, the trial court imposed a seven-year sentence, with four

years executed, three years suspended, and one year of probation.

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 5 of 12 Discussion and Decision [10] Thayer contends that the trial court abused its discretion in admitting evidence

recovered during what he claims was an unjustifiably prolonged traffic stop.

“In cases such as this one, where the defendant does not appeal the denial of a

motion to suppress and the evidence is admitted over the defendant’s objection

at trial, we frame the issue as whether the trial court abused its discretion in

admitting the evidence at trial.” Kyles v. State, 888 N.E.2d 809, 812 (Ind. Ct.

App. 2008).

The admission or exclusion of evidence is entrusted to the discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App. 2004). We will reverse a trial court’s decision only for an abuse of discretion. Id. We will consider the conflicting evidence most favorable to the trial court’s ruling and any uncontested evidence favorable to the defendant. Taylor v. State, 891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law. Id.

Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial

court’s ruling will be upheld if it is sustainable on any legal theory supported by

the record, even if the trial court did not use that theory.” Rush v. State, 881

N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950

(Ind. Ct. App. 2006)).

[11] In arguing that the trial court abused its discretion in admitting the challenged

evidence, Thayer claims that the challenged evidence was recovered in

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 6 of 12 violation of the Fourth Amendment to the United States Constitution and

Article 1, Section 11, of the Indiana Constitution. The Fourth Amendment

provides as follows:

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.

U.S. CONST. amend. IV.1 “The fundamental purpose of the Fourth

Amendment to the United States Constitution is to protect the legitimate

expectations of privacy that citizens possess in their persons, their homes, and

their belongings.” Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006).

[12] “Notwithstanding the textual similarity of Article 1, § 11 of the Indiana

Constitution to that of the federal Fourth Amendment, Section 11 is interpreted

separately and independently from Fourth Amendment jurisprudence.” State v.

Washington, 898 N.E.2d 1200, 1205–06 (Ind. 2008) (citing Mitchell v. State, 745

N.E.2d 775, 786 (Ind. 2001)).

The Indiana Constitution may protect searches that the federal Constitution does not. State v. Moore, 796 N.E.2d 764, 767 (Ind. Ct. App. 2003). Section 11 should be applied to protect people

1 Although the Fourth Amendment and Article 1, Section 11, contain a few slight variations as to word tense, punctuation, and capitalization, generally, the language provided in both the Federal and Indiana Constitutions is the same.

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 7 of 12 from unreasonable search and seizure. Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995). When police conduct is challenged as violating this section, the burden is on the State to show that the search was reasonable under the totality of the circumstances. See, e.g., [State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)]; State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). The determination of the reasonableness of a search and seizure under the Indiana Constitution 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 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).

Id. at 1206.

[13] In challenging the admission of the evidence, “Thayer does not challenge the

constitutionality of the initial traffic stop.” Appellant’s Br. p. 15. Thayer

concedes that Officer Webber’s observation of the inoperable taillights and

license plate illumination justified the initial stop. Thayer asserts that it is his

“continued detention after the purpose of the traffic stop had been completed

that is at issue.” Appellant’s Br. p. 15. For its part, the State claims that

“Officer Webber did not delay the stop beyond the time reasonably required to

complete the mission of the stop, and the dog sniff occurred before the

completion of the stop.” Appellee’s Br. p. 11.

A. Fourth Amendment [14] In Rodriguez v. United States, 575 U.S. 348, 350–51 (2015), the United States

Supreme Court held that

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 8 of 12 This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.

(Internal quotation marks and brackets omitted). The holding in Rodriguez is

consistent with the Indiana Supreme Court’s prior determination that a K9 sniff

does not violate the Fourth Amendment if it does not prolong a traffic stop

beyond the time necessary to address the traffic violation. See Myers v. State, 839

N.E.2d 1146, 1149 (Ind. 2005) (providing that a K9 sweep of the exterior of a

vehicle does not intrude upon a Fourth Amendment privacy interest and does

not violate the Fourth Amendment when the sweep was conducted before the

traffic stop was completed).

[15] In this case, Officer Webber testified during the suppression hearing that he was

still in the process of manually entering the necessary information into the

ticket-issuance software when Officer Hyde arrived and conducted the K9 sniff.

Officer Webber testified how the process of completing a traffic stop takes

longer when the individual cannot provide a driver’s license or identification

card because additional steps can be necessary to properly identify the

individual and all information relating to the identity of the individual has to be

manually entered into the system instead of the information being self-

generated when a driver’s license or identification card is provided. In denying Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 9 of 12 Thayer’s motion to suppress, the trial court considered Officer Webber’s

testimony regarding the additional steps he took to verify Thayer’s identity and

his need to manually enter all of Thayer’s information and found it to be

credible. Such a determination was within the trial court’s purview. See Perry v.

State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (providing that the factfinder, and not

the appellate court, “is obliged to determine not only whom to believe, but also

what portions of conflicting testimony to believe, and is not required to believe

a witness’s testimony even when it is uncontradicted”).

[16] Thus, despite Thayer’s claim to the contrary, the evidence supports the trial

court’s determination that the K9 sniff did not unjustifiably prolong the traffic

stop, as Officer Webber had not yet completed the stop when Officer Hyde

arrived and conducted the K9 sniff. Thayer’s argument to the contrary

amounts to an invitation to reweigh the evidence, which we will not do. See

Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014). Under the facts of this

case, we conclude that the K9 sniff did not violate the Fourth Amendment. See

Rodriguez, 575 U.S. at 350–51; Myers, 839 N.E.2d at 1149.

B. Article 1, Section 11 [17] In challenging the search under Article 1, Section 11, Thayer argues that the K9

sniff was unreasonable. “To assess the reasonableness of an officer’s actions

under the totality of the circumstances, we must consider ‘both the degree of

intrusion into the subject’s ordinary activities and the basis upon which the

officer selected the subject of the search or seizure.’” State v. Gibson, 886 N.E.2d

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 10 of 12 639, 642–43 (Ind. Ct. App. 2008) (quoting Myers, 839 N.E.2d at 1153). Again,

the “[f]actors we balance include: ‘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 citizens’ ordinary activities, and 3) the

extent of law enforcement needs.’” Id. at 643 (quoting Myers, 839 N.E.2d at

1153). Similar to the Fourth Amendment, a K9 sniff is unreasonable under

Article 1, Section 11, “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.” Austin v.

State, 997 N.E.2d 1027, 1034 (Ind. 2013); see also State v. Cassady, 56 N.E.3d

662, 668 n.3 (Ind. Ct. App. 2016) (providing that a K9 sniff was not

unreasonable under Article 1, Section 11, where the K9 sniff did not extend the

traffic stop as the K9 sniff was completed while the officer was waiting on a

response from dispatch).

[18] In this case, we conclude that Officer Webber had a reasonably high level of

concern or suspicion that Thayer was engaged in criminal conduct at the time

of the traffic stop. The record reveals that Thayer exhibited extreme

nervousness, made repeated erratic and furtive movements, and was

determined to have a potential for violence. Likewise, the level of intrusion in

the K9 sniff, which, again, occurred before Officer Webber had completed the

process of issuing tickets for the underlying traffic infractions, was low. Given

that the Indiana Supreme Court has held that “a reasonable narcotics dog

sweep is not a search for the purposes of” Article 1, Section 11, Austin, 997

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 11 of 12 N.E.2d at 1034, we agree with the State that a K9 sniff “of the exterior of the

vehicle does not involve a significant intrusion on a person’s privacy.”

Appellee’s Br. p. 24. Also, given Thayer’s behavior and potential for violence,

we conclude that as a matter of public safety, it was reasonable for Officers

Webber and Hyde to determine that the K9 sniff was necessary. Thayer’s claim

to the contrary again amounts to an invitation to reweigh the evidence, which

we will not do. See Santana, 10 N.E.3d at 78.

[19] In conducting a K9 sniff, Officers Webber and Hyde used the least intrusive

means available to detect the hidden contraband in Thayer’s vehicle. Thayer

concedes that the initial stop was valid. The K9 sniff did not unjustifiably

extend the length of the initial traffic stop as it was completed before Officer

Webber completed the process of issuing tickets for the observed traffic

violations. Considering the totality of the circumstances in this case, we

conclude that the K9 sniff was reasonable. As such, the K9 sniff did not violate

Article 1, Section 11, of the Indiana Constitution.

[20] The judgment of the trial court is affirmed.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020 Page 12 of 12