FILED Sep 25 2023, 8:39 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Theodore E. Rokita Aaron J. Harshman Attorney General of Indiana Morgan B. Brading Catherine E. Brizzi Harshman Ponist Smith & Rayl Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Theodore J. Canonge, Jr., September 25, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-2451 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Mark A. Smith, Judge Trial Court Cause No. 32D04-2105-F3-8
Opinion by Judge Foley Chief Judge Altice concurs. Judge May dissents with separate opinion.
Foley, Judge.
[1] Theodore J. Canonge, Jr. (“Canonge”) challenges the denial of his motion to
suppress evidence obtained from a vehicle search, where law enforcement Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 1 of 19 brought in a K-9 unit during a traffic stop and the dog alerted to the presence of
contraband. He argues that the seizure violated the Fourth Amendment
because law enforcement prolonged the traffic stop and otherwise lacked
independent reasonable suspicion to conduct the dog sniff. Because we
conclude that law enforcement had independent reasonable suspicion to
conduct the dog sniff, we affirm the denial of the motion to suppress.
Facts and Procedural History [2] Canonge faces four drug-related charges stemming from the discovery of
contraband in a vehicle he was driving. Canonge moved to suppress evidence
obtained from a search of the vehicle. At a hearing on Canonge’s motion, the
State presented evidence about a traffic stop conducted on April 22, 2021. The
evidence included testimony from the officer who conducted the traffic stop,
Officer Kevin Roach of the Avon Police Department (“Officer Roach”), and
the officer who later brought his K-9 partner to the traffic stop, Officer Steven
Kaspryzk of the Avon Police Department (“Officer Kaspryzk”). The evidence
also included footage from a camera installed in Officer Roach’s police vehicle.
[3] Officer Roach testified that he saw the driver of a Chevy Malibu commit
multiple traffic violations, including changing lanes without proper signaling.
He decided to conduct a traffic stop. When Officer Roach activated the lights
of his patrol vehicle, he noticed “three (3) occupants moving about in the car,
reaching in various locations and then continuously looking back at [his] patrol
vehicle.” Tr. Vol. II p. 13. When the Chevy Malibu pulled over and stopped,
Officer Roach “saw movements continue inside the vehicle,” with the Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 2 of 19 “occupants reaching around[.]” Id. at 14. Officer Roach saw the occupants
engaged in these movements “a few times at least.” Id. at 17. From Officer
Roach’s vantage point, it seemed as though the occupants were “reaching
down, across, . . . like in the floorboard area[.]” Id. at 18. As Officer Roach
approached the vehicle, he observed “backpacks at the floorboard[.]” Id.
[4] Before Officer Roach reached the front window to speak with the occupants, he
noticed that the driver—Canonge—was already “reaching over” to hand
documents to Officer Roach. Id. at 17. It seemed to Officer Roach that
Canonge was “try[ing] to accelerate [sic] the stop” or “expediate [sic] the stop.”
Id. When asked to clarify why it seemed as though Canonge “was trying to
expedite the stop,” Officer Roach said: “It’s unusual for . . . a driver to present
documentation before I even address them.” Id. Officer Roach testified that he
had conducted “around five hundred” traffic stops. Id. at 12. Reflecting on that
experience, Officer Roach remarked: “I don’t believe I’ve had another traffic
stop where I have experienced that.” Id. at 17. Officer Roach also noted:
“[S]ometimes [the driver] may have [the documentation] in their hands, but
they are not reaching over to hand it [to] me before I address them.” Id.
[5] Officer Roach took the documents from Canonge and asked the front-seat
passenger for his identification. The front-seat passenger complied with the
request. However, Officer Roach observed that the passenger “wouldn’t make
eye contact” with him and “didn’t speak . . . when [Officer Roach] was talking
to him[.]” Id. Officer Roach thought that the front-seat passenger’s conduct
was “a little unusual.” Id. He also noticed that the front-seat passenger was
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 3 of 19 “smoking a new cigarette, pretty rapidly,” which he “kn[e]w to be indicative of
a stressful situation for someone.” Id. at 14. Officer Roach turned his attention
to the backseat passenger, who “seemed really nervous” and was sitting
completely still in “a statute[-]like state.” Id. at 17. Officer Roach requested
identification and, before that passenger “had the opportunity to answer,”
Canonge “interjected” and said that the passenger was a minor. Id. at 15.
[6] Officer Roach returned to his vehicle and began “running identification, vehicle
information, things of that nature.” Id. His investigatory steps included a
criminal-history check through Indiana’s MyCase system, which revealed “a
couple of drug charges” between Canonge and the other adult occupant. Id. at
17. While Officer Roach was using the computer and “conducting [his] typical
procedure with a traffic stop,” he contacted officers with K-9 partners to inquire
about availability for a dog sniff. Id. at 34. One officer was Officer Kaspryzk,
who was addressing a roadside hazard. Officer Kaspryzk said he would bring
over his K-9 partner after finding someone else to address the hazard. Officer
Roach began writing a warning “to fill time until [Officer Kaspryzk] got there.”
Id. at 33. Officer Roach testified that he typically gave verbal warnings. When
asked why he prepared a written warning on this occasion, he said: “I was
waiting for an officer . . . the K-9 officer to arrive to conduct the sniff. So, in the
meantime I was occupying my time by writing the warning.” Id. at 25.
[7] Officer Kaspryzk arrived about thirteen minutes later, which was about twenty-
one minutes into the traffic stop. When Officer Kaspryzk arrived, Officer
Roach exited his patrol vehicle and directed Canonge and the others to step out
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 4 of 19 of the Chevy Malibu. Officer Kaspryzk then walked around the vehicle with a
K-9 unit certified in detecting the odors of methamphetamine, heroin, cocaine,
ecstasy, and marijuana. The dog gave a positive alert at the rear driver’s side
door. At that point, Officer Roach searched the vehicle, locating items that he
suspected consisted of cocaine, methamphetamine, and marijuana.
[8] In lieu of oral arguments, Canonge and the State submitted briefs concerning
the motion to suppress. Thereafter, on August 3, 2022, the trial court denied
the motion. On September 6, 2022—more than thirty days later—Canonge
moved to certify the order for interlocutory appeal. Following a hearing, the
trial court granted the motion to certify. This Court later accepted jurisdiction. 1
1 In a footnote, the State directs us to Appellate Rule 14(B), which governs discretionary interlocutory appeals. The State points out that where a motion to certify was not filed within thirty days of the interlocutory order and the trial court intends to grant the motion, the trial court “shall make a finding that the certification is based on a showing of good cause” and “shall set forth the basis for that finding.” Ind. Appellate Rule 14(B)(1)(a). Asserting that the trial court did not identify good cause in granting Canonge’s belated motion to certify, the State directs us to caselaw for the proposition that, under the circumstances, we have discretion to dismiss the interlocutory appeal. Notably, the State falls short of requesting dismissal, potentially because—as Canonge points out in his Reply Brief—the CCS entry associated with the hearing on Canonge’s motion to certify shows that the State “d[id] not object” to the motion. Appellant’s App. Vol. II p. 11. Moreover, although the State directs us to noncompliance with aspects of Appellate Rule 14(B), it is not as though the State claims we lack jurisdiction. To the contrary, the State suggests that dismissal would be on “non-jurisdictional grounds” based on Canonge’s failure “to file a timely motion to certify” or “assert, and have the trial court find, good cause for a belated motion[.]” Appellee’s Br. p. 6 n.1. Ultimately, because the trial court certified its interlocutory order and this Court later accepted jurisdiction, we are satisfied that we have jurisdiction to resolve this appeal. See App. R. 14(B) (“An appeal may be taken from . . . interlocutory orders if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal.”) & 5(B) (generally providing that “[t]he Court of Appeals shall have jurisdiction over appeals of interlocutory orders under Rule 14”). Further, because the State did not object to the motion to certify and does not directly seek dismissal, we elect to reach the merits. See, e.g., Cardosi v. State, 128 N.E.3d 1277, 1284 n.3 (Ind. 2019) (noting the appellate preference to resolve cases on the merits whenever possible).
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 5 of 19 Discussion and Decision [9] According to Canonge, the trial court should have granted the motion to
suppress evidence because the traffic stop resulted in an unreasonable seizure,
contrary to the Fourth Amendment to the United States Constitution. 2
[10] The Fourth Amendment provides the right to be free from “unreasonable
searches and seizures”—a right that applies in Indiana because of the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 654–55 (1961). To
safeguard this right, evidence obtained through an unconstitutional search or
seizure is generally excludable at trial. See, e.g., Wong Sun v. United States, 371
U.S. 471, 487–88 (1963) (recognizing that evidence may be excluded as “fruit of
the poisonous tree”). A defendant may seek to exclude evidence by challenging
the constitutionality of a search or seizure through (1) a pre-trial motion to
suppress or (2) a timely objection at trial. Ind. Criminal Rule 2.7(B). In this
case, Canonge is appealing the denial of his motion to suppress the evidence.
[11] When a defendant seeks to suppress evidence obtained through a warrantless
search or seizure, the State bears the burden of proving the warrantless search
or seizure was constitutional. Edwards v. State, 759 N.E.2d 626, 630 (Ind.
2001). In reviewing the denial of a motion to suppress, we defer to the trial
court’s proximity to the evidence by “construing conflicting evidence in the
2 A traffic stop also implicates protections in Article 1, Section 11 of the Indiana Constitution. See Marshall v. State, 117 N.E.3d 1254, 1258 (Ind. 2019). Here, Canonge exclusively relies on the Fourth Amendment in challenging the denial of his motion to suppress.
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 6 of 19 manner most favorable to the ruling.” M.O. v. State, 63 N.E.3d 329, 331 (Ind.
2016). In conducting our review, we also consider “substantial and uncontested
evidence favorable to the defendant.” Id. (quoting Robinson v. State, 5 N.E.3d
362, 365 (Ind. 2014)). Evaluating the evidence in this way, we decide de novo
the legal question of whether the search or seizure was constitutional. Bunnell v.
State, 172 N.E.3d 1231, 1234 (Ind. 2021); M.O., 63 N.E.3d at 331.
[12] Canonge asserts that the traffic stop resulted in an unconstitutional seizure
because law enforcement prolonged the traffic stop to bring in the K-9 unit and
conduct a dog sniff. Canonge contends that the prolongment was improper
because law enforcement lacked reasonable suspicion to conduct the dog sniff.
[13] A traffic stop is a seizure under the Fourth Amendment. Marshall v. State, 117
N.E.3d 1254, 1258 (Ind. 2019). For a traffic stop to comply with the Fourth
Amendment, a police officer must have a lawful basis to initiate the stop, which
includes “observ[ing] a driver commit a traffic violation.” State v. Keck, 4
N.E.3d 1180, 1184 (Ind. 2014). Even if there is a lawful basis to initiate the
stop, the Fourth Amendment does not condone indefinite seizure. See generally,
e.g., Illinois v. Caballes, 543 U.S. 405, 407 (2005). Indeed, “a seizure that is
lawful at its inception can violate the Fourth Amendment if its manner of
execution”—including the length of the seizure—“unreasonably infringes
interests protected by the Constitution.” Id. “[T]he tolerable duration of police
inquiries . . . is determined by the seizure’s ‘mission[.]’” Rodriguez v. United
States, 575 U.S. 348, 354 (2015). In the traffic-stop context, that mission is to
“address the traffic violation that warranted the stop . . . and attend to related
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 7 of 19 safety concerns[.]” Id. All in all, “[a]uthority for the seizure . . . ends when
tasks tied to the traffic infraction are—or reasonably should have been—
completed.” Id. Therefore, although a police officer “may conduct certain
unrelated checks during an otherwise lawful traffic stop,” the officer generally
“may not do so in a way that prolongs the stop[.]” Id. at 355.
[14] One potential unrelated check is to bring in a K-9 unit to conduct a dog sniff.
See id.; Caballes, 543 U.S. at 408–09 (noting that conducting a dog sniff generally
does not amount to an unreasonable search). In this context, “[t]he 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[.]’” Rodriguez, 575 U.S. at 357. In carrying out the traffic stop, an
officer must act with reasonable diligence. See id. Thus, “[i]f an officer can
complete traffic-based inquiries expeditiously, then that is the amount of ‘time
reasonably required to complete [the stop’s] mission.’” Id. (quoting Caballes,
543 U.S. at 497) (alteration in original). Nonetheless, if the traffic stop is
prolonged to conduct a dog sniff, the seizure is not per se unconstitutional. See
id. Rather, the prolonged seizure is permissible as long as the officer has
“reasonable suspicion . . . to justify detaining an individual.” Id. at 355.
[15] Because we resolve this appeal on other grounds, we need not decide whether
Officer Roach prolonged the traffic stop so that Officer Kaspryzk could arrive
with his K-9 partner. That is, assuming arguendo the traffic stop was prolonged,
we focus on whether there was reasonable suspicion to conduct the dog sniff.
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 8 of 19 Cf., e.g., Kane v. State, 976 N.E.2d 1228, 1233 n.1 (Ind. 2012) (declining to reach
an appellate argument when ultimately resolving the appeal on other grounds).
[16] When an officer briefly detains a person for investigative purposes—e.g., to
conduct a dog sniff—the Fourth Amendment “is satisfied if the officer’s action
is supported by reasonable suspicion to believe that criminal activity ‘may be
afoot[.]’” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States
v. Sokolow, 490 U.S. 1, 7 (1989)). “[R]easonable suspicion is an ‘abstract’
concept that cannot be reduced to ‘a neat set of legal rules[.]’” Kansas v. Glover,
140 S. Ct. 1183, 1190 (2020) (quoting Arvizu, 534 U.S. at 274). “[T]he essence
of all that has been written is that the totality of the circumstances—the whole
picture—must be taken into account.” United States v. Cortez, 449 U.S. 411, 417
(1981). Ultimately, “[b]ased upon that whole picture[,] the detaining officer[]
must have a particularized and objective basis for suspecting the particular
person . . . of criminal activity.” Id. at 417–18. Put differently, “[t]he Fourth
Amendment requires ‘some minimal level of objective justification’” to support
detaining the individual. Sokolow, 490 U.S. at 7 (quoting INS v. Delgado, 466
U.S. 210, 217 (1984)). Further, to have reasonable suspicion, the officer “must
be able to articulate something more than an ‘inchoate and unparticularized
suspicion’” or “hunch.” Id. (quoting Terry v. Ohio, 392 U.S. 1 (1968)).
[17] As officers appraise the evolving circumstances, they may “draw on their own
experience and specialized training to make inferences from and deductions
about the cumulative information available to them that ‘might well elude an
untrained person.’” Arvizu, 534 U.S. at 273 (quoting Cortez, 449 U.S. at 418).
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 9 of 19 They may also apply ordinary common sense, drawing on “information that is
accessible to people generally, not just some specialized subset of society.”
Glover, 140 S. Ct. at 1190. “A determination that reasonable suspicion
exists . . . need not rule out the possibility of innocent conduct.” Arvizu, 534
U.S. at 277. For example, an encounter with law enforcement might present
conduct “susceptible of innocent explanation” when the conduct is viewed in
isolation. Id. Yet, when “[t]aken together,” the totality of the circumstances
“suffice[] to form a particularized and objective basis” to make detention
“reasonable within the meaning of the Fourth Amendment.” Id. at 277–78.
[18] All in all, the necessary level of suspicion “is considerably less than proof of
wrongdoing by a preponderance of the evidence,” Sokolow, 490 U.S. at 7, which
involves only “a fair probability that contraband or evidence of a crime will be
found,” id. (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Indeed, “[t]he
reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy[.]’”
Glover, 140 S. Ct. at 1188 (quoting Arvizu, 534 U.S. at 274). In short: “To be
reasonable is not to be perfect[.]” Id. (quoting Heien v. North Carolina, 574 U.S.
54, 60 (2014)) (alteration in original). And by requiring reasonableness—rather
than insisting on perfection—the Fourth Amendment gives officers “fair leeway
for enforcing the law in the community’s protection.” Heien, 574 U.S. at 61
(quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).
[19] In challenging the denial of his motion to suppress, Canonge generally focuses
on the observations Officer Roach included in his probable cause affidavit,
directing us to favorable testimony indicating that the affidavit “would be a
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 10 of 19 better resource than [Officer Roach’s] memory at the time of the hearing[.]”
Appellant’s App. p. 11. We must decline Canonge’s invitation to reweigh any
conflicting evidence and, instead, consider the totality of the circumstances. 3
[20] As to the totality of the circumstances, Officer Roach testified that he saw
movements in the vehicle that began when he activated his police lights and
continued when the vehicle stopped. To Officer Roach, the occupants seemed
to be reaching toward the floorboard area while looking back toward Officer
Roach. Video evidence corroborates the observations of movement, showing
Canonge turned backward, at one point bent down and no longer visible
through the rear windshield. Ex. A at 1:15–1:20. Officer Roach not only saw
movements directed toward the floorboard, but also noticed at least one
backpack there. Next, before Officer Roach approached to engage the
occupants about the reason for the traffic stop, he saw that Canonge already
had his arm extended to hand over documents. This conduct struck Officer
Roach as unusual because, after conducting 500 or so traffic stops, no one else
had seemingly tried to expedite a traffic stop in this manner. Furthermore, at
one point, Canonge interjected to respond on a passenger’s behalf, as though
Canonge was trying to control and expedite the encounter with Officer Roach.
Canonge engaged in this conduct while the other passengers—who Officer
3 Because we resolve this case on other factors, we disregard evidence that Officer Roach consulted MyCase and discovered that the adult occupants of the vehicle at one point had undefined “charges” against them. We leave for another day whether this type of evidence supports a reasonable suspicion determination.
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 11 of 19 Roach had just seen “reaching around” in the vehicle—seemed nervous. Tr.
Vol. II p. 14.
[21] Canonge focuses on whether there are potential innocent explanations for the
observed conduct. For example, he argues that any “concern about the
occupants’ nervousness when being pulled over by police does not give rise to
reasonable suspicion because it is understandable that they would be nervous.”
Appellant’s Br. p. 13. We note, however, that although “nervousness alone
may not support reasonable suspicion,” nervousness “may be considered
alongside other circumstances to support such a finding.” Guthery v. State, 180
N.E.3d 339, 348 (Ind. Ct. App. 2021), trans. denied. In any case, we do not
disagree with Canonge’s suggestion that, taken individually, each of Officer
Roach’s observations may not give rise to reasonable suspicion. But a
reviewing court does not consider these observations in isolation. See id. at 349.
[22] Canonge compares his case to Wilson v. State, 847 N.E.2d 1064, 1067 (Ind. Ct.
App. 2006), trans. denied and Powers v. State, 190 N.E.3d 440 (Ind. Ct. App.
2022). As for these types of comparisons, the United States Supreme Court has
cautioned that caselaw is not necessarily instructive due to differences in the
“factual ‘mosaic’ analyzed for a reasonable-suspicion determination” that
“preclude one case from squarely controlling another[.]” Arvizu, 534 U.S. at
275 (quoting Ornelas v. United States, 517 U.S. 690, 698 (1996)). Here, the cited
cases are distinguishable in that, although each involves evidence of
nervousness, neither involves evidence that a person reached toward a
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 12 of 19 container when the officer approached. Indeed, the Powers Court specifically
noted the record “d[id] not reveal furtive movements[.]” 190 N.E.3d at 446.
[23] Ultimately, Officer Roach observed specific behavior that, taken together, gave
him a particularized and objective basis to suspect that criminal activity was
afoot. Viewing those collective observations in light of Officer Roach’s
professional experience—as we must—it was reasonable for Officer Roach to
seize the occupants of the vehicle for a short time longer to conduct the
minimally intrusive investigatory dog sniff. Thus, we conclude that the totality
of the circumstances—the whole picture—provided reasonable suspicion to
prolong the traffic stop to conduct the dog sniff. Cf. Arvizu, 534 U.S. at 277 (“A
determination that reasonable suspicion exists . . . need not rule out the
possibility of innocent conduct.”). Canonge’s arguments to the contrary
amount to requests to reweigh conflicting evidence, which we must decline.
Cf., e.g., Reply Br. p. 12 (“Officer Roach admitted that what he described as
‘furtive movements’ really was [that] ‘their bodies were moving,’ and he merely
presumed that movement to be reaching.” (quoting Tr. Vol. II pp. 27–28)).
[24] Because any prolongment of the traffic stop was supported by reasonable
suspicion, the otherwise-lawful seizure was “reasonable within the meaning of
the Fourth Amendment.” Arvizu, 534 U.S. at 277–78. Therefore, the trial court
did not err in denying the motion to suppress.
[25] Affirmed.
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 13 of 19 Altice, C.J., concurs.
May, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 14 of 19 May, Judge, dissenting.
[26] I respectfully dissent. I would expressly hold Officer Roach unreasonably
prolonged the traffic stop so that a dog sniff could occur, and I disagree with the
majority’s decision to simply assume the stop was prolonged without
addressing the issue. In addition, I disagree with the majority’s conclusion that
sufficient reasonable suspicion arose during the traffic stop to justify holding
Canonge until a dog sniff could be performed. Therefore, I would reverse the
trial court’s denial of Canonge’s motion to suppress.
1. Length of Traffic Stop [27] In Illinois v. Caballes, the Supreme Court of the United States explained that “a
seizure that is lawful at its inception can violate the Fourth Amendment if its
manner of execution unreasonably infringes interests protected by the
Constitution.” 543 U.S. 405, 407, 125 S. Ct. 834, 837 (2005). A traffic stop
“justified solely by the interest in issuing a warning ticket to the driver can
become unlawful if it is prolonged beyond the time reasonably required to
complete that mission.” Id. “[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.” Rodriguez v. U.S., 575 U.S. 348, 350, 135
S. Ct. 1609, 1612 (2015).
[28] “The burden is on the State to show the time for the traffic stop was not
increased due to the canine sweep.” Wilson v. State, 847 N.E.2d 1064, 1067
(Ind. Ct. App. 2006). In contrast to Caballes, where one officer performed the
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 15 of 19 dog sniff while the second officer wrote a traffic citation, 543 U.S. at 406, 125 S.
Ct. at 836, Officer Roach held Canonge for approximately twenty minutes
before a K-9 officer arrived, a longer period than the approximately ten to
fifteen minutes Officer Roach testified a traffic stop typically takes. In addition,
while Officer Roach ultimately did not issue any ticket to Canonge, Officer
Roach testified that he only began writing a warning ticket “to fill time until
[Officer Kaspryzk] got there.” (Tr. Vol. II at 33.) He began preparing the
warning ticket not in reaction to Canonge’s traffic violation but because he
“was waiting for an officer . . . the K-9 officer to arrive to conduct the sniff.”
(Id. at 25.) Where an officer explicitly admits the writing of a ticket was
pretextual, I would explicitly hold that officer unreasonably prolonged the
traffic stop beyond the time necessary to address the reason for the stop. See
Wilson, 847 N.E.2d at 1067 (holding officer unreasonably prolonged traffic stop
when he finished writing the warning tickets but continued to detain driver to
allow police dog to arrive); see also Powers v. State, 190 N.E.3d 440, 445 (Ind. Ct.
App. 2022) (holding officer detained driver and passenger beyond the time
necessary to complete the purpose of the traffic stop).
2. Reasonable Suspicion [29] Nonetheless, as the majority notes, a prolonged traffic stop is not per se
unconstitutional if the officer has reasonable suspicion to justify detaining the
individual. Slip op. at ¶ 14. As we explained in Crabtree v. State:
The reasonable suspicion requirement of the Fourth Amendment is satisfied if the facts known to the officer at the moment of the
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 16 of 19 stop are such that a person of reasonable caution would believe that the action taken was appropriate. In other words, the requirement is satisfied where the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Reasonable suspicion entails something more than an inchoate and unparticularized suspicion or hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence.
762 N.E.2d 241, 246 (Ind. Ct. App. 2002) (internal citation and quotation
marks omitted).
[30] Because, in my opinion, the evidence rises to nothing more than an inchoate
and unparticularized suspicion or hunch, I disagree with the majority’s
conclusion that Officer Roach had reasonable suspicion to prolong the traffic
stop to conduct the dog sniff. In Wilson, we held the officer did not have
reasonable suspicion to prolong the traffic stop even though the officer observed
that the driver “was ‘very nervous.’ His ‘hands were shaking’ and he was
‘having trouble getting his license and vehicle registration.’” 847 N.E.2d at
1066 (internal citation to record omitted). Likewise, in Powers, we held the
officer lacked reasonable suspicion to prolong a traffic stop even though both
the driver and passenger exhibited “nervous behavior.” 190 N.E.3d at 446.
[31] Here, while Officer Roach stated “[t]he passenger in the back seemed really
nervous,” (Tr. Vol. II at 17), Officer Roach also testified that he did not observe
any signs of drug use by anyone in the vehicle. He did not smell any illegal
substances or observe any threatening movements. The occupants of the
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 17 of 19 vehicle also were not sweating, fumbling with materials, or visibly shaking.
One of the things Officer Roach found unusual, which the majority relies upon
in concluding that there was reasonable suspicion, was that “before Officer
Roach approached to engage the occupants about the reason for the traffic stop,
he saw that Canonge already had his arm extended to hand over documents.”
Slip op. at ¶ 20. However, I see absolutely nothing suspicious in a motorist
having ready the documents the motorist knows the officer is going to request
for inspection. It also is not unusual that occupants of a vehicle will look back
after an officer turns on his patrol lights or that some movement will occur
inside the vehicle as the motorist retrieves those documents.
[32] The majority distinguishes Wilson and Powers by stating “that, although each
involves evidence of nervousness, neither involves evidence that a person
reached toward a container when the officer approached.” Slip. op. at ¶ 22.
There is nothing unusual about having a backpack or laundry detergent
container in one’s vehicle, nor is it suspicious to access or rearrange those items
or similar items while driving. Even though Officer Roach answered
affirmatively when asked if he saw “furtive movements,” Officer Roach
clarified that what he saw was the occupants’ “bodies were moving” and he
assumed they were reaching for something. (Tr. Vol. II at 27-28.) He could not
see the occupants’ hands, and thus, he did not actually observe them concealing
anything. See B.R. v. State, 162 N.E.3d 1173, 1178 (Ind. Ct. App. 2021)
(“Neither shaking nor being visibly nervous is ‘furtive.’ To establish that a
suspect has engaged in furtive movements, the act must connote evasion or
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 18 of 19 concealment.”). Body movement around a container cannot be all that is
needed to transform an ordinary traffic stop into a situation where the officer
has reasonable suspicion of drug possession. Such a holding dramatically
lowers the bar of what is required for an officer to indefinitely detain a motorist
pending the arrival of a K-9 officer. As our Indiana Supreme Court observed in
State v. Quirk, “a combination of irrelevant conduct and innocent conduct,
without more, cannot be transformed into a suspicious conglomeration.” 842
N.E.2d 334, 343 (Ind. 2006). That, I fear, is what the majority does here, and
therefore, I would hold that Officer Roach did not have the requisite reasonable
suspicion to prolong the traffic stop of Canonge, and I would reverse the trial
court. Accordingly, I respectfully dissent.
Court of Appeals of Indiana | Opinion 22A-CR-2451 | September 25, 2023 Page 19 of 19