MEMORANDUM DECISION Feb 18 2015, 9:55 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Gregory F. Zoeller Steven E. Ripstra Attorney General of Indiana Ripstra Law Office Jasper, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
State of Indiana, February 18, 2015
Appellant-Defendant, Court of Appeals Cause No. 19A05-1407-CR-303 v. Appeal from the Dubois Superior Court Cause No. 19D01-1404-CM-288 Shelby L. Pieper, Appellee-Plaintiff. The Honorable Mark R. McConnell, Judge
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 1 of 12 Case Summary [1] The State appeals the trial court’s grant of a motion to suppress evidence filed
by Shelby Pieper. We affirm.
Issue [2] The State raises one issue, which we restate as whether the trial court properly
granted Pieper’s motion to suppress evidence obtained during a traffic stop.
Facts [3] On April 26, 2014, Trooper Jason Dunsworth of the Indiana State Police was
driving west on State Route 164 in Dubois County at approximately 8:45 p.m.
Trooper Dunsworth saw Pieper driving toward him in a Jeep with the top off
and noticed that the person in the rear passenger seat of the Jeep, Austin
Nordhoff, was sitting sideways with his leg hanging over the side of the Jeep
and his feet near the tires. Pieper was not speeding, but Trooper Dunsworth
turned around and initiated a traffic stop.
[4] When Trooper Dunsworth approached the vehicle, Nordhoff had his seatbelt
on and his legs inside the vehicle. Trooper Dunsworth first spoke with
Nordhoff, who explained he was “goofing off” but had been wearing his
seatbelt. Tr. p. 7. While speaking with Nordhoff, Trooper Dunsworth smelled
alcohol and asked Nordhoff “if they were going to be doing anymore drinking.”
Id. at 8. Nordhoff said he was the only one that had been drinking. He then
asked Pieper if he had been drinking, and Pieper said no. Trooper Dunsworth
asked Pieper to get out of the vehicle “to check,” and only then did Trooper Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 2 of 12 Dunsworth notice the smell of alcohol on Pieper. 1 Id. at 14. Trooper
Dunsworth administered a field sobriety test, the result of which indicated
Pieper was intoxicated, and a portable breath test, which indicated Pieper’s
blood alcohol level was .08.2
[5] The State charged Pieper with three counts of Class C misdemeanor operating a
vehicle while intoxicated and one count of Class C misdemeanor illegal
consumption of an alcoholic beverage by a minor. Pieper filed a motion to
suppress evidence gathered during the traffic stop on the grounds that Trooper
Dunsworth did not have probable cause or reasonable suspicion to initiate the
traffic stop and that he detained Pieper longer than necessary to effectuate the
traffic stop.
[6] Trooper Dunsworth testified at the suppression hearing that, based on the way
Nordhoff was seated, he did not believe Nordhoff “was restrained, or had his
seatbelt on.” Id. at 6. Trooper Dunsworth explained that he could see the
silhouette of Nordhoff’s legs dangling over the side. Trooper Dunsworth
testified, “I could not see, physically see his seatbelt, but from his positioning I
don’t see how he had it on.” Id. at 12. When asked whether he could tell one
1 At some point, Trooper Dunsworth saw two coolers in the backseat, but it is not entirely clear from his testimony whether he saw the coolers before or after he asked Pieper to get out of the vehicle. 2 Trooper Dunsworth issued a citation to Nordhoff for not wearing a seatbelt, and Nordhoff later paid the ticket.
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 3 of 12 way or the other whether Nordhoff had his seatbelt on, Trooper Dunsworth
stated, “No, Sir.” Id.
[7] The trial court granted Pieper’s motion to suppress. The trial court found and
concluded:
7. The issue thus restated is whether a reasonable person would believe under the facts of this case that the rear passenger was not wearing a seat belt. Stated more succinctly, perhaps the issue can be stated as whether a person could have a seatbelt properly fastened about his body and still be able to position himself so as to allow his feet or legs to dangle outside this vehicle. . . . At approximately 8:45 p.m. on April 26, 2014, Trooper Dunsworth was driving up a hill westbound on State Rd. 164 at approximately 50 miles per hour. As the maroon Jeep, being operated by Defendant, crested the hill going eastbound at a distance of about fifty yards from the Trooper’s vehicle, Trooper Dunsworth observed the silhouette of the legs of the rear occupant on the passenger side of the Jeep. He testified that the passenger’s legs were positioned such a way that his feet were outside the vehicle over the rear wheels. Trooper Dunsworth could not physically see the passenger’s seatbelt and could not tell one way or another if the passenger was wearing a seatbelt. When Trooper Dunsworth turned around and pulled Defendant over he approached the Jeep. By this time the passenger’s legs were completely inside the vehicle. His seatbelt was properly fastened. In response to Trooper Dunsworth’s questioning the passenger stated that he had had his seatbelt on when the vehicle was in motion. Trooper Dunsworth may have stated to the passenger that he couldn’t tell if the passenger was wearing a seatbelt. 8. Trooper Dunsworth had no direct evidence that Defendant’s passenger was not wearing his seatbelt. He had a hunch, or speculated, that the passenger was not wearing his seatbelt because he didn’t think it would be possible for him to be wearing a seatbelt and still have his legs or feet hanging over the rear wheel. He had no other basis for his opinion or for the stop. It is the Court’s experience the rear seats in a Jeep sit close to the floor and the sides of a Jeep are also relatively low to the floor such that it is highly possible for a back seat
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 4 of 12 passenger to be properly restrained by a seatbelt and still be able to have his legs or feet dangling over the side of the vehicle above the wheel. Thus, the position of the passenger’s legs and feet by itself would not reasonably lead to a conclusion or reasonable suspicion that the passenger was not wearing a seatbelt. Without more than the mere observation of the passenger’s legs or feet a stop would not be justified. Trooper Dunsworth had nothing more. The test for a stop cannot be that a passenger may or may not have been properly restrained. The officer must have evidence that the passenger was not properly restrained. App. p. 26. The State now appeals.
Analysis [8] The State argues that the trial court erroneously granted Pieper’s motion to
suppress. When the State appeals from a negative judgment, it has the burden
to show that the trial court’s ruling was contrary to law. State v. Keck, 4 N.E.3d
1180, 1183 (Ind. 2014). “We evaluate the trial court’s findings of fact
deferentially, neither reweighing the evidence nor reassessing the credibility of
the witnesses.” Id. We will affirm if there is substantial evidence of probative
value to support the judgment. Id. We review the trial court’s conclusions of
law, including a determination of reasonable suspicion, de novo. Id.
[9] The State first contends the trial court erroneously concluded that Trooper
Dunsworth did not have reasonable suspicion under the Fourth Amendment to
stop Pieper’s vehicle.3 When determining whether an officer had reasonable
3 Because of our analysis of the claim under the United States Constitution, we need not address the State’s Indiana constitutional analysis.
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 5 of 12 suspicion, “we consider whether the totality of the circumstances presented a
particularized and objective basis for the officer’s belief that the subject was
engaged in criminal activity.” Id. at 1184. “Reasonable suspicion entails some
minimum level of objective evidentiary justification.” State v. Massey, 887
N.E.2d 151, 155 (Ind. Ct. App. 2008), trans. denied. We must give due weight
to the specific, reasonable inferences that the officer is entitled to draw from the
facts in light of his or her experience rather than an officer’s inchoate and
unparticularized suspicion or “hunch.” Id. We consider whether the facts
known by the police at the time of the stop were sufficient for a person of
reasonable caution to believe that an investigation is appropriate. Id. The
grounds for such a suspicion must be based on the totality of the circumstances.
Id.
[10] Indiana Code Section 9-19-10-2 requires each occupant of a motor vehicle
equipped with a safety belt to “have a safety belt properly fastened about the
occupant’s body at all times when the vehicle is in forward motion.” In
determining whether a stop for a seat belt violation was reasonable under an
Indiana constitutional analysis, our supreme court has held:
that a police officer may not stop a motorist in Indiana for a possible seat belt violation unless that officer reasonably suspects that the driver or a passenger in the vehicle is not wearing a seat belt as required by law. This reasonable suspicion exists where the officer observes the driver or passenger under circumstances (e.g., bodily movement, distance, angle, lighting, weather) that would cause an ordinary prudent person to believe that the driver or passenger is not wearing a seat belt as required by law. Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999).
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 6 of 12 [11] The State contends that Nordhoff’s positioning created reasonable suspicion of
a seatbelt violation and that the trial court “demanded certainty of wrongdoing
where only reasonable suspicion was required.” Appellant’s Br. p. 11. The trial
court’s order included the correct legal standard and, in reaching its conclusion,
the trial court correctly determined that Nordhoff’s positioning alone did not
create reasonable suspicion that he was not wearing his seatbelt.
[12] Trooper Dunsworth initiated the stop upon seeing a silhouette of Nordhoff’s
legs outside the Jeep. Trooper Dunsworth testified that he could not see
Nordhoff’s seatbelt and could not tell one way or the other if Nordhoff had his
seatbelt on. Under these facts, we agree with the trial court that the totality of
the circumstances did not create reasonable suspicion to justify the stop. We
reach this conclusion mindful of our supreme court’s recent observation that
“our trial judges are able to see and hear the witnesses and other evidence first-
hand. But the appellate bench, in a far corner of the upper deck, doesn’t
provide such a clear view. Remote from the hearing in time and frequently in
distance, we review a cold paper record.” Keck, 4 N.E.3d at 1185-86. The trial
court was in a better position than us to assess Trooper Dunsworth’s credibility
regarding Nordhoff’s positioning and what he saw that night.
[13] The State also argues that there was reasonable suspicion of reckless driving
because Nordhoff’s precarious position made it unreasonable for Pieper to
continue to drive at a speed of fifty miles-per-hour. See Ind. Code § 9-21-8-
52(a)(1). Although the prosecutor made this argument at the conclusion of the
suppression hearing, Trooper Dunsworth did not testify that this was his basis
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 7 of 12 for initiating the traffic stop. In fact, when the prosecutor asked what the basis
for the stop was, Trooper Dunsworth answered, “I don’t believe that the way
the rear passenger was seated, that he was restrained, or had his seatbelt on.”
Tr. p. 6. Trooper Dunsworth then testified that he first approached Nordhoff
and asked if he had had his seatbelt on. Thus, Trooper Dunsworth’s testimony
does not support the State’s position that the decision to stop Pieper was based
on Pieper’s purportedly reckless driving.4
[14] The State contends that, if the stop is objectively justified on reckless driving
grounds, “it is a legitimate stop even if that was not the officer’s stated purpose
for conducting the stop.” Appellant’s Reply Br. p. 6. The State does not
support this argument with any authority that is directly on point and, instead,
cites cases for the general proposition that an officer’s subjective beliefs do not
control the Fourth Amendment analysis. See, e.g., Fentress v. State, 863 N.E.2d
420, 423 (Ind. Ct. App. 2007) (“A police officer’s subjective belief concerning
whether he had probable cause to arrest a defendant has no legal effect.”);
Cudworth v. State, 818 N.E.2d 133, 137 (Ind. Ct. App. 2004) (observing that a
police officer’s subjective belief of exigent circumstances is insufficient to justify
a warrantless search); see also Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126
S. Ct. 1943, 1948 (2006) (explaining that an action is reasonable under the
4 Later in its brief, the State asserts, “The only violation of law suspected by Trooper Dunsworth was that Nordhoff was not properly restrained by a seatbelt . . . .” Appellant’s Br. p. 16. This is consistent with the prosecutor’s acknowledgement at the suppression hearing that Trooper Dunsworth did not testify that he made the stop based on a suspicion of reckless driving. See Tr. p. 18.
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 8 of 12 Fourth Amendment, regardless of the individual officer’s state of mind, as long
as the circumstances objectively justify the action). Although we agree with the
general proposition that an officer’s subjective reasons for initiating a traffic
stop are not relevant, we believe that a stop must be based on the police officer’s
objectively reasonable justifications at the time the stop is made, not the State’s
post hoc theories. See Webb v. State, 714 N.E.2d 787, 789 (Ind. Ct. App. 1999)
(rejecting the State’s argument that a stop was justified because “the State has
imputed to Officer Reddy a new theory for the stop despite Reddy’s own
testimony as to why he stopped Webb.”); State v. Nesius, 548 N.E.2d 1201, 1203
(Ind. Ct. App. 1990) (“We do not believe the trial court erred by refusing to
allow the State to supply—after the fact—a possible justification for the
investigative stop not contemplated by the police officer at the time of the
stop.”); see also Meredith v. State, 906 N.E.2d 867, 870 (Ind. 2009) (“An officer’s
decision to stop a vehicle is valid so long as his on-the-spot evaluation
reasonably suggests that lawbreaking occurred.”). The after-the-fact claim of
reckless driving is not a basis for reversing the trial court’s decision.5
[15] As a final matter, even if Nordhoff’s positioning did create reasonable suspicion
to justify the stop, “a vehicle, the contents of a vehicle, the driver of a vehicle,
5 The State also contends that Trooper Dunsworth’s community caretaking duty to address the dangerous situation justified the stop. The State, however, did not assert this theory to the trial court. As a general rule, a party may not present an argument or issue on appeal unless it was raised before the trial court. Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). This argument is waived. See id.
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 9 of 12 or a passenger in a vehicle may not be inspected, searched, or detained solely
because of a violation of this chapter.” I.C. § 9-19-10-3.1(a). Our supreme
court has explained:
The language of the Act and subsequent case law clearly dictate that in adopting the Act, the Legislature intended the statute to limit, rather than expand, police authority with respect to seat belt enforcement stops and sought to circumscribe the power of police to use a seat belt stop as an opportunity to inspect, search, or detain on other grounds, even if constitutional law would permit such police behavior. . . . [T]he Act simply does not permit investigatory behavior based solely on a seat belt violation unless circumstances arise after the stop that independently provide the officer with reasonable suspicion of other crimes. State v. Richardson, 927 N.E.2d 379, 383 (Ind. 2010) (citing Baldwin, 715 N.E.2d
332).6
[16] Here, by Trooper Dunsworth’s own testimony, he smelled alcohol on Nordhoff
while speaking to him and asked if they were going to do more drinking.
Nordhoff said he was the only one drinking. Trooper Dunsworth then asked
Pieper if he had been drinking, and Pieper said no. Trooper Dunsworth
testified that he then asked Pieper to get out of the vehicle “to check” if Pieper
had been drinking. Tr. p. 14. Only after Pieper got out of the car did Trooper
Dunsworth smell alcohol on Pieper. Until Pieper got out of the vehicle,
nothing suggested Pieper had been drinking or was otherwise impaired.
6 As our supreme court acknowledged, the seatbelt enforcement statute was amended in 2007 from Indiana Code Section 9-19-10-3 to Indiana Code Section 9-19-10-3.1, but the relevant language was unchanged. See Richardson, 927 N.E.2d at 382 n.4.
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 10 of 12 Although the State cites cases indicating that a police officer may ask the
occupants of car to get out of the car during a traffic stop, none of those involve
a seatbelt enforcement stop. Cf. Richardson, 927 N.E.2d at 382 (Ind. 2010)
(declining to address constitutional arguments where challenge to police
conduct could be resolved on statutory grounds); Pearson v. State, 870 N.E.2d
1061, 1066 (Ind. Ct. App. 2007) (recognizing Fourth Amendment jurisprudence
but concluding it is inapplicable to a traffic stop based a seatbelt violation),
trans. denied. Given the legislature’s clear intent to limit the scope of seatbelt
enforcement stops, we conclude that the circumstances after the stop did not
provide Trooper Dunsworth with reasonable suspicion that Pieper had been
drinking to allow further investigation of Pieper. Thus, Trooper Dunsworth
unlawfully exceeded the parameters of the seatbelt enforcement stop by
continuing to investigate whether Pieper had been drinking. See Richardson, 927
N.E.2d at 384 (concluding that additional questioning of a driver about an
“unusual bulge” in his pocket that led to the discovery of cocaine contravened
Indiana Code Section 9-19-10-3.1 where the officer remembered the driver from
a previous stop that was without incident and the driver was immediately
cooperative and admitted he was not wearing his seatbelt).
Conclusion [17] Because the stop was not supported by reasonable suspicion, the State has not
established that the granting of the motion to suppress was contrary to law. We
affirm.
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 11 of 12 [18] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015 Page 12 of 12