Victor Gersdorff v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 17, 2017
• Docket: 49A02-1608-CR-1785
• 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 court except for the purpose of establishing Feb 17 2017, 8:09 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Victor Gersdorff, February 17, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1608-CR-1785 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda Brown, Appellee-Plaintiff. Judge Trial Court Cause No. 49F10-1404-CM-21772

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 1 of 15 STATEMENT OF THE CASE [1] Appellant-Defendant, Victor Gersdorff (Gersdorff), appeals his conviction for

Count I, possession of marijuana, a Class A misdemeanor, Ind. Code § 35-48-4-

11(1); Count II, possession of paraphernalia, a Class A misdemeanor, I.C. § 35-

48-4-8.3(a)(1)(b); Count III, operating a vehicle while intoxicated, a Class C

misdemeanor, I.C. § 9-30-5-2(a); and Count IV, operating a vehicle with a

schedule I or II controlled substance or its metabolite in the body, a Class C

misdemeanor, I.C. § 9-30-5-1(c).

[2] We affirm.

ISSUE [3] Gersdorff raises one issue on appeal, which we restate as: Whether the trial

court abused its discretion by admitting evidence discovered following a police

sobriety checkpoint.

FACTS AND PROCEDURAL HISTORY [4] During the early morning hours of April 27, 2014, a sobriety checkpoint was

operated by the Indianapolis Metro Police Department (IMPD) at 1305 Broad

Ripple Avenue, in Indianapolis, Indiana. Lieutenant Mark McCardia

(Lieutenant McCardia) of the IMPD supervised the checkpoint. He had been

part of “hundreds” of checkpoints and had been the commanding officer on “at

least” fifty checkpoints. (Transcript pp. 25, 26). The checkpoint was approved

by the Marion County Traffic Safety Partnership, the police chief, and the

prosecutor’s office. Ten days prior to the checkpoint being operated, a news Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 2 of 15 release was emailed to several television, radio, and print media organizations,

which listed the date, time, and location of the checkpoint.

[5] The specific objective of the checkpoint was to “deter drunk driving, [and]

apprehend drunk drivers.” (Tr. p. 15). Its location was chosen because “crash

data from the past few years” had revealed “a lot of drunk driver arrests and

drunk driving crashes” in that area. (Tr. p. 15). Multiple signs, “like five (5)

foot reflector signs,” were posted to alert drivers of the upcoming checkpoint,

and the checkpoint was avoidable from all directions. (Tr. p. 19). The

checkpoint was well lit with street lights, vehicle flashers, emergency

equipment, and reflective signs and cones. The weather was clear and the

temperature was approximately sixty degrees Fahrenheit.

[6] In working the checkpoint, the officers were mandated to follow a specific

procedure. Specifically, officers were required to direct two vehicles at the

same time to the checkpoint. They could “not deviate” from this sequence, and

all vehicles in the sequence had to be checked. (State’s Exh. 1). The officers

were required to identify themselves and “advise the motorist ‘You have been

stopped at a Marion County Traffic Safety Partnership Sobriety Checkpoint.

We use checkpoints to deter impaired drivers. Have you had anything to drink

this evening?’” (State’s Exh. 1). They then asked to see the driver’s license and

registration. A vehicle would be detained for two minutes or less unless further

investigation was warranted. If a driver exhibited signs of impairment, the

officers would instruct “the driver [to] pull the vehicle into the ‘pull-off’ area.”

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 3 of 15 (State’s Exh. 1). That night, eighteen vehicles went through the checkpoint,

with two drivers being apprehended.

[7] Gersdorff was the first car that pulled into the checkpoint that evening, driving

“approximately maybe twenty-five miles per hour.” (Tr. p. 42). He stopped at

Captain Donald Weilhamer’s (Captain Weilhamer) position. When Gersdorff

rolled down his window, Captain Weilhamer observed “a strong odor of

marijuana coming from the vehicle.” (Tr. p. 43). Gersdorff had “problems

pulling [his driver’s license] out of his wallet” and “he was slow at answering”

questions. (Tr. p. 43). Captain Weilhamer asked Gersdorff to exit his vehicle.

After Gersdorff moved to the side, Officer Robert Ferguson (Officer Ferguson),

who was assisting Captain Weilhamer, “moved the vehicle out of the line.”

(Tr. p. 44). Captain Weilhamer informed Gersdorff that he wanted to do some

field sobriety checks. While talking to Gersdorff, Captain Weilhamer noticed

Gersdorff’s dilated and bloodshot eyes and “slower than usual” walk. (Tr. p.

44). Captain Weilhamer administered three field sobriety tests, two of which

Gersdorff passed. While Gersdorff participated in the field sobriety tests,

Officer Ferguson moved Gersdorff’s vehicle. In the car, Officer Ferguson

noticed a “very strong” smell of marijuana. (Tr. p. 73). The odor was

particularly strong “right where the center console” was. (Tr. p. 74). He raised

the center console and noticed a black bag. In opening the bag, Officer

Ferguson found a “raw, green, leafy substance” along with “a pipe,” which is

“commonly used to ingest marijuana into the system.” (Tr. p. 75).

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 4 of 15 [8] Captain Weilhamer informed Gersdorff of his Miranda rights. Gersdorff agreed

to answer some questions and told Captain Weilhamer that he had smoked

marijuana earlier that day. Captain Weilhamer read Gersdorff the implied

consent law and Gersdorff agreed to a blood draw. After the blood draw,

Captain Weilhamer arrested Gersdorff. Upon searching him, Captain

Weilhamer disovered a black box in Gersdorff’s lower pocket that contained a

“greenish-brown, leafy-type substance,” which later tested positive for

marijuana. (Tr. p. 61).

[9] On April 27, 2014, the State filed an Information, charging Gersdorff with

Count I, possession of marijuana, a Class A misdemeanor; Count II, possession

of paraphernalia, a Class A misdemeanor; and Count III, operating while

intoxicated, a Class C misdemeanor. The State later amended the Information

to add Count IV, operating a vehicle with a schedule I or II controlled

substance or its metabolite in the body, a Class C misdemeanor. On July 12,

2016, the trial court conducted a bench trial. During trial, Gersdorff moved to

suppress the evidence discovered during the sobriety checkpoint, which was

denied by the trial court. At the close of the evidence, the trial court found

Gersdorff guilty as charged. At the sentencing phase, the trial court merged

Count IV into Count III and entered judgment of conviction on Counts I, II,

and III. The court sentenced Gersdorff to concurrent terms of 365 days with

361 days suspended to probation on Count I, 365 days with 361 days suspended

to probation on Count II, and 60 days with 50 days suspended to probation on

Count III.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 5 of 15 [10] Gersdorff now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [11] Gersdorff contends that the trial court abused its discretion in admitting

evidence discovered during a sobriety checkpoint, which he claims was in

violation of Article 1, Section 11 of the Indiana Constitution. The standard of

review for admissibility of evidence is an abuse of discretion. Weinberger v.

Boyer, 956 N.E.2d 1095, 1104 (Ind. Ct. App. 2011), trans. denied. The trial court

abuses its discretion only when its action is clearly erroneous and against the

logic and effect of the facts and circumstances before the court. Id. Even when

the trial court erred in its ruling on the admissibility of evidence, this court will

reverse only if the error is inconsistent with substantial justice. Id.

[12] Article I, Section 11, must be liberally construed to guarantee the right of the

people to be secure in their persons, houses, papers and effects, and to protect

them against unreasonable search and seizure. King v. State, 877 N.E.2d 518,

521 (Ind. Ct. App. 2007). The purpose of this provision is to protect against

unreasonable police activity in areas of life that Indiana citizens regard as

private. Id.

[13] In Gerschoffer, our supreme court “join[ed] those jurisdictions rejecting the

contention that all roadblocks are per se violations of state constitutional

requirements” and set out the criteria to determine whether a particular sobriety

checkpoint “was conducted in a constitutionally reasonable manner.”

Gerschoffer v. State, 763 N.E.2d 960, 966 (Ind. 2002). The court held that “[a]

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 6 of 15 minimally intrusive roadblock designed and implemented on neutral criteria

that safely and effectively targets a serious danger specific to vehicular

operation is constitutionally reasonable, unlike the random and purely

discretionary stops we have disapproved.” Id. Among the relevant factors to be

considered and weighed are: (1) whether the roadblock was staged pursuant to

a formal, neutral plan approved by appropriate officials; (2) the objective,

location, and timing of the checkpoint, taking these factors into account to

determine whether the seizure was well calculated to effectuate its purpose; (3)

the amount of discretion exercised by field officers conducting the checkpoint,

with a goal of minimal discretion to ensure against arbitrary or inconsistent

actions by the screening officers; (4) the degree of intrusion and whether the

roadblock was avoidable; (5) whether the surrounding conditions of the

checkpoint were safe; and (6) whether the checkpoint was effective. Id. at 967-

70. We will evaluate each factor in turn.

I. Formal, Neutral Plan

[14] Gersdorff claims that Lieutenant McCardia’s “mere assertion that ‘we have

standardized plans’ and that ‘there are all sorts of plans involved’ does not

allow this [c]ourt to review whether it was a reasonable, neutral plan.”

(Appellant’s Br. p. 14). In Gerschoffer, the guidelines police followed in

conducting the roadblock were not made a part of the record on appeal, so our

supreme court was unable to “assess their efficacy.” Id. at 967. Instead, the

court cited with approval guidelines set out in a Connecticut case, State v.

Boisvert, 671 A.2d 834 (Conn. App. 1996). In Boisvert, the guidelines

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 7 of 15 promulgated by the public safety commissioner required, “among other things,

advance approval by ranking officers; a careful choice of location, date and time

‘after considering many factors, including the safety of the public and those

conducting the operation and the potential inconvenience to the public’;

advance publicity; and assurance to drivers that the stop was routine.”

Gerschoffer, 763 N.E.2d at 967 (quoting Boisvert, 671 A.2d at 837).

[15] Our review of the evidence indicates that the checkpoint had been approved by

the Marion County Traffic Safety Partnership, the police chief, and the

prosecutor’s office. The choice of location was based on “crash data from the

past few years” which had revealed “a lot of drunk driver arrests and drunk

driving crashes” in that particular area. (Tr. p. 15). The officers conducting the

sobriety checkpoint had participated in many checkpoints and had several years

of experience of conducting them. The State presented evidence and entered

into evidence as State’s Exhibit 1, the checkpoint’s briefing, its goals, objectives,

and procedures—which was implemented by Lieutenant McCardia while

conducting the checkpoint.

[16] The checkpoint itself was well advertised with multiple signs alerting drivers of

its presence. It was well lit with street lights, reflective signs, and cones. While

conducting the checkpoint, the officers were required to follow a specific

procedure, which mandated the pattern of cars to be pulled into the checkpoint,

and provided the officers with a specific script to follow and advisements to

administer.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 8 of 15 [17] Ten days prior to the operation of the checkpoint, a press release notifying the

date, time, and location of the checkpoint was sent to the following radio,

television, and print media: the Speedway Police Department; Advocates

Against Impaired Driving; the Associated Pres; Fox 59 News; the Indiana

Herald; the Indianapolis Star; the Indy Recorder; La Voz De Newspaper;

Media Relations, IMPD; the Southside Times; The Daily Journal; The

Greenfield Reporter; Univision; WEDJ; WFBQ Q95; WFMS Radio; WFYI;

WIBC Radio; WISH TV Channel 8; WRTV Channel 6; WTHR Channel 13;

WTLC Radio; and the City of Lawrence. Although Gersdorff contends that

there was no proof that someone actually publicized the impending roadblock,

Gerschoffer noted that “[l]aw enforcement agencies cannot control what the

media chooses to report, of course, and may not have funds to pay for

publicity.” Gerschoffer, 763 N.E.2d at 970-71. While no evidence is included

that the information from the press release was disseminated by the media to

the general public, the record includes evidence supporting a reasonable

inference that the press release was distributed. See also Sublett v. State, 815

N.E.2d 1031, 1033 (Ind. Ct. App. 2004) (finding a nearly identical sobriety

checkpoint constitutional under the Indiana Constitution where the police “did

not know whether the media actually published the information”).

Accordingly, as a formal, neutral plan was in place to conduct the checkpoint,

we cannot say that this element weighs against its constitutionality.

II. Objective, Location, and Timing

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 9 of 15 [18] Next, Gersdorff claims that “the objective, location and timing of the roadblock

was not sufficiently established at trial.” (Appellant’s App.p. 16). In Gerschoffer,

the stated objective—rejected by the court—for the checkpoint was a “montage

of objectives, including the generic law enforcement goal of ‘mak[ing] sure

everybody is doing what they’re supposed to [do].’” Gerschoffer, 763 N.E.2d at

968. In contrast here, the objective was “[t]o deter impaired driving and

increase the risk of apprehension of impaired drivers.” (State’s Exh. 1). The

timing of the checkpoint was 11:00p.m. until 1:30a.m. Pursuant to Lieutenant

McCardia’s testimony, the location was chosen based on previous years’ crash

data which had revealed numerous drunk driver arrests and crashes in the

particular area. Again, this element weighs in favor of the constitutionality of

the checkpoint.

III. Police Discretion

[19] Considering police discretion a “critical factor,” the Gerschoffer court requires

“sufficiently explicit guidance to ensure against arbitrary or inconsistent actions

by the screening officers.” Gerschoffer, 763 N.E.2d at 968-69. The record

reflects that standardized instructions were given to ensure that officers

addressed drivers in a consistent manner. Specifically, State’s Exhibit 1 details

the routine to be followed during the checkpoint as follows:

Sequence of Vehicle Selection and Public Interaction

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 10 of 15 Do not deviate from the sequence of vehicle selection. All vehicles in the sequence will be checked, including police and fire vehicles.

Identify yourself and advise the motorist “You have been stopped at a Marion County Traffic Safety Partnership Sobriety Checkpoint. We use checkpoints to deter impaired drivers. Have you had anything to drink this evening?” Check for DWI clues. Advise the motorist you would like to see a driver’s license and registration.

Vehicles should be held in line no longer than 2 minutes.

If alcohol is detected or additional investigation is needed, have the driver pull the vehicle into the “pull-off” area.

Large trucks may be checked on the street to lessen change of damage to the parking lots. However, trucks should be pulled out of the way so not to block traffic.

Please assist vehicles out of the checkpoint.

Avoidance of a checkpoint alone does not constitute a legal stop.

Testimony by officers at trial confirmed that the officers behaved accordingly

during the checkpoint. The officers pulled in two vehicles at the same time after

which they gave the drivers the introductory statements and acted in conformity

with the script. Given the lack of discretion and the scripted, consistent manner

in which the officers had to conduct themselves, this element weighs in favor of

constitutionality of the checkpoint.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 11 of 15 IV. Degree of Intrusion

[20] “In evaluating the degree of intrusion, we also consider whether the roadblock

was avoidable. The more avoidable a roadblock is, the less it interferes with the

liberty of individual drivers.” Gerschoffer, 763 N.E.2d at 969. Here, prior to

arriving at the checkpoint, drivers were alerted by “five (5) foot reflector signs.”

(Tr. p. 19). Lieutenant McCardia testified that no matter in which direction a

car was travelling, the checkpoint was avoidable from all directions.

Accordingly, and Gersdorff agrees, the signage and possibility of avoiding the

checkpoint weigh in favor of it being constitutional.

V. Safety of the Checkpoint

[21] Here, the State offered testimony that the checkpoint was located in a well-lit

area, where vehicles could be pulled off the roadway into an adjacent parking

lot without impending traffic. See Gerschoffer, 763 N.E.2d at 970; see also Sublett,

815 N.E.2d at 1039 (“[T]he checkpoint was safely conducted in a well-lighted

area and detained motorists were diverted into an adjacent parking lot”). The

evidence indicates that the weather was clear and the temperature was

approximately sixty degrees Fahrenheit. Drivers were stopped in the eastbound

lane of Broad Ripple Avenue or 62nd street. Every first two cars were waived

into the Flanner and Buchanan parking lot, used by the officers to conduct the

sobriety check. There was lighting in the parking lot and the officers also used

vehicles with flashers and reflective signs to alert drivers to what was

happening. Accordingly, this element weighs in favor of its constitutionality.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 12 of 15 VI. Effectiveness

[22] Lastly, Gersdorff disputes the effectiveness of the sobriety checkpoint.

Lieutenant McCardia testified to the effectiveness of the checkpoint in that the

ratio of people stopped were consistent “with the statistics that were presented.”

(Tr. p. 24).

[23] The Gerschoffer court, in analyzing the effectiveness of the checkpoint, observed

that “advance publicity” of a sobriety checkpoint can “scare[] those who would

drink and drive off the roads.” Gerschoffer, 763 N.E.2d at 970. The court held

that, given the “fairly low percentage” of OWI arrests 1 obtained in that

roadblock and the lack of evidence of advance publicity of the roadblock, it

could not infer that that the checkpoint had “effectively deterred potential

offenders.” Id. at 971. Here, out of eighteen vehicles that were stopped at the

checkpoint, the police made two arrests. Compared to the two arrests out of

seventy stops in Gerschoffer, the arrest rate here, while not a high percentage in

itself, was significantly higher.

[24] “Apprehension rates are not, however, the end of the question.” Gerschoffer,

763 N.E.2d at 970. “[R]oadblocks can effectively deter OWI, such that even a

modest arrest rate may simply reflect the fact that advance publicity scared

those who would drink and drive off the roads.” Id. However, we also noted

1 In Gerschoffer, the police stopped seventy out of 198 cars “funneled through the checkpoint” and made only two arrests for OWI. Gerschoffer, 763 N.E.2d at 970.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 13 of 15 that while the existence of the sobriety checkpoint was released to the media at

large, here, there is no evidence that this information was disseminated to the

general public. Without direct evidence showing that the checkpoint was

actually publicized, it is more doubtful that the checkpoint had a deterrent

effect. Therefore, while the arrest rate for operating while intoxicated was

higher than that obtained in Gerschoffer, we cannot say that the effectiveness

factor weighs significantly in favor of the State.

VII. Summary

[25] Gersdorff concedes two Gerschoffer factors—police discretion and degree of

intrusion—but argues that the others were not satisfied. We disagree. There is

substantial evidence in the record that the officers implemented a properly

approved, neutral plan that included, among other things, advanced

distribution of a media release to a significant number of local media outlets.

Additionally, the record establishes that a narrow objective was established for

the checkpoint, the timing/location was based on OWI arrest statistics, and the

checkpoint was operated under safe conditions. The checkpoint was somewhat

effective in deterring drunk driving. We hold that the sobriety checkpoint in

this case, all things considered, was constitutional under Article I, Section 11 of

the Indiana Constitution. Therefore, the trial court did not abuse its discretion

when it admitted the evidence discovered pursuant to Gersdorff’s stop at the

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 14 of 15 CONCLUSION [26] Based on the foregoing, we hold that the trial court did not abuse its discretion

in admitting the evidence seized following Gersdorff’s stop at a constitutionally

reasonable sobriety checkpoint

[27] Affirmed.

[28] Crone, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017 Page 15 of 15