State of Indiana v. Keith W. Freeman (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 25, 2018
• Docket: 18A-CR-818
• 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 Oct 25 2018, 9:06 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Curtis T. Hill, Jr. Larry O. Wilder Attorney General Attorney at Law Jeffersonville, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

State of Indiana, October 25, 2018 Appellant-Plaintiff, Court of Appeals Case No. 18A-CR-818 v. Appeal from the Clark Circuit Court Keith W. Freeman, The Honorable Joseph P. Weber, Appellee-Defendant Judge Trial Court Cause No. 10C03-1712-CM-2248

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-818 | October 25, 2018 Page 1 of 4 Case Summary [1] The State appeals the trial court’s grant of Keith Freeman’s motion to suppress

in a prosecution for drunk driving. We affirm.

Facts and Procedural History [2] After a traffic stop in Jeffersonville early on the morning of December 2, 2017,

the State charged Freeman with operating a vehicle while intoxicated

endangering a person and operating a vehicle with an A.C.E. of at least .08 but

less than .15. Freeman filed a motion to suppress all evidence obtained as a

result of the stop, asserting that the Indiana State Trooper who stopped him (1)

lacked reasonable suspicion to believe that he had committed a crime or traffic

infraction and (2) prolonged the stop for an unreasonable amount of time.

Freeman claimed violations of both the Fourth Amendment to the U.S.

Constitution and Article 1, Section 11 of the Indiana Constitution. The trial

court held a hearing at which it heard testimony from the trooper and

arguments from the attorneys. The next day, the court granted the motion

without explanation.

[3] The State now appeals.

Discussion and Decision [4] The State challenges the trial court’s grant of Freeman’s motion to suppress, but

it does not dispute Freeman’s contention that we must affirm the trial court’s

Court of Appeals of Indiana | Memorandum Decision 18A-CR-818 | October 25, 2018 Page 2 of 4 unexplained decision if it can be sustained upon any legal theory consistent

with the evidence. Appellee’s Br. p. 8; see also State v. Estep, 753 N.E.2d 22 n.6

(Ind. Ct. App. 2001) (explaining that where trial court grants motion to

suppress without making findings, “the general judgment standard is

controlling, and this court will uphold the trial court’s ruling under any theory

the evidence supports”). Freeman argues that the trial court’s decision can be

sustained on the theory that the court “did not believe the officer’s testimony

regarding the alleged traffic infraction and found that the traffic stop was

illegal.” Appellee’s Br. p. 10. We agree.

[5] At the suppression hearing, the trooper testified that he saw Freeman’s vehicle

go back and forth in its lane and cross over the center line and that this is the

reason he pulled it over. Tr. pp. 6-7, 18-22. The State emphasizes this

testimony, assuming that the trial court found it to be credible. But the record

contains a variety of other evidence that put the trooper’s credibility in question.

First, in his written Probable Cause Affidavit from the day of the traffic stop,

the trooper stated that he “observed the vehicle drift completely into the

opposing lane of traffic[.]” Appellant’s App. Vol. II p. 8 (emphasis added). At

the hearing, however, the trooper testified that Freeman “traveled barely into

the left of center.” Tr. p. 6 (emphasis added). Also in his Probable Cause

Affidavit, the trooper wrote that Freeman “had to pull himself to get out; he

staggered from the vehicle, and had to touch the vehicle several times to keep

his balance.” Appellant’s App. Vol. II p. 8. On State Form 44213 (“Affidavit

for Probable Cause”), however, the trooper did not check the boxes for

Court of Appeals of Indiana | Memorandum Decision 18A-CR-818 | October 25, 2018 Page 3 of 4 staggering from the vehicle, leaning against the vehicle, or pulling oneself from

the vehicle. Id. at 11. When asked whether “the truth is two different things

according to two different documents right now,” the trooper admitted, “Yes.”

Tr. p. 33.

[6] In its reply brief, the State asserts that Freeman “did not raise a credibility

challenge to the trooper’s testimony below” and “accepted [that testimony] as

true when making his legal arguments to the trial court.” Appellant’s Reply Br.

p. 5. That is incorrect. During his closing argument, Freeman’s attorney

repeatedly challenged the trooper’s testimony:

If he thought he crossed center line, enough is to [sic] write him a ticket for crossing center line. . . . Judge we believe that what’s happening now is these are mere excuses to stop people to ask them have you been drinking . . . . We believe that he was [subject] to potentially having a ticket written for crossing left of center if in fact that happened[.]

Tr. pp. 54-55 (emphasis added).

[7] Because there is evidence in the record to support the conclusion that the trial

court did not believe the trooper’s testimony about the reason for the traffic

stop, we affirm the grant of Freeman’s motion to suppress.

[8] Affirmed.

Riley, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-818 | October 25, 2018 Page 4 of 4