Jamar Washington v. State of Indiana , 2015 Ind. App. LEXIS 588 ( 2015 )

Aug 20 2015, 8:47 am
OPINION ON REHEARING
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jamar Washington, August 20, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1405-CR-306
v. Appeal from the Marion Superior Court
The Honorable Marc T. Rothenberg,
State of Indiana, Judge
Cause No. 49G02-1203-FA-17626
Appellee-Plaintiff.
Brown, Judge.
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015 Page 1 of 6
Opinion on Rehearing
[1] Jamar Washington appealed his conviction for dealing in cocaine as a class A felony.
In a memorandum decision, this court affirmed his conviction. Washington v. State,
No. 49A02-1405-CR-306 (Ind. Ct. App. December 23, 2014). The conviction was
based upon evidence found after Indianapolis Metropolitan Police Officer Luke
Schmitt initiated a traffic stop of Washington after observing him speeding and
making an illegal lane change. During the traffic stop and prior to the completion of
the writing of a ticket for speeding and failure to signal a lane change, a police dog
alerted to the presence of narcotics. This court held that the dog sniff and Officer
Schmitt’s actions were not conducted in a manner that prolonged the stop beyond
the time reasonably required to complete the mission of issuing a ticket. See id. at 10.
Washington has petitioned for rehearing, which we now grant in order to discuss
Washington’s arguments based upon the United States Supreme Court’s recent
decision in Rodriguez v. United States, 135 S. Ct. 1609 (2015).
[2] Washington argues that Officer Schmitt’s inquiry about his prior arrests, attempt to
retrieve his criminal history, and question of whether there were drugs in the car
resulted in a measurable delay. He asserts that the delay caused by the unrelated
questioning of whether there was any cocaine in the car without reasonable suspicion
was a violation of the Fourth Amendment. He contends that Officer Schmitt
delayed the traffic stop measurably in order to conduct a drug investigation unrelated
to the traffic stop and his convictions must be reversed under Rodriguez. The State
asserts that Rodriguez does not call this court’s decision into doubt and rather
underscores the correctness of this court’s analysis.
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015 Page 2 of 6
[3] In Rodriguez, the Court held 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.” 135 S. Ct. at 1612. The Court held that “[a] seizure justified
only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is
prolonged beyond the time reasonably required to complete th[e] mission’ of issuing
a ticket for the violation.” Id. (quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.
Ct. 834 (2005)). The Court observed that it had “so recognized in Caballes” and
“adhere[d] to the line drawn in that decision.” Id.
[4] The facts in Rodriguez reveal that, just after midnight, Police Officer Morgan Struble
observed a Mercury Mountaineer veer slowly onto the shoulder of a highway for one
or two seconds and then jerk back onto the road. Id. Officer Struble pulled the
vehicle over at 12:06 a.m. while his dog was in his patrol car. Id. Officer Struble
spoke with Rodriguez, the driver of the vehicle, and gathered his license, registration
and proof of insurance. Id. at 1613. After running a records check on Rodriguez,
Officer Struble returned to the Mountaineer and asked passenger Scott Pollman for
his driver’s license and began to question him about where the two men were coming
from and where they were going. Id. Pollman replied that they had traveled to
Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they were
returning to Norfolk, Nebraska. Id. Officer Struble returned again to his patrol car,
where he completed a records check on Pollman, called for a second officer, and
began writing a warning ticket for Rodriguez for driving on the shoulder of the road.
Id.
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015 Page 3 of 6
[5] Officer Struble returned to Rodriguez’s vehicle to issue the written warning. Id. By
12:27 or 12:28 a.m., Officer Struble had finished explaining the warning to
Rodriguez and had given the documents obtained from Rodriguez and Pollman back
to them. Id. Officer Struble later testified that at that point all the reasons for the
stop were “out of the way.” Id. Officer Struble then asked for permission to walk his
dog around Rodriguez’s vehicle, and Rodriguez said no. Id. Officer Struble then
instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of
the patrol car to wait for the second officer. Id. Rodriguez complied. Id. At 12:33
a.m., a deputy sheriff arrived, and Officer Struble then led his dog twice around the
Mountaineer. Id. The dog alerted to the presence of drugs. Id. Seven or eight
minutes had elapsed from the time Officer Struble issued the written warning until
the dog indicated the presence of drugs. Id. A search of the vehicle revealed a large
bag of methamphetamine. Id.
[6] On appeal, the Court addressed the question of whether police routinely may extend
an otherwise completed traffic stop, absent reasonable suspicion, in order to conduct
a dog sniff. Id. at 1614. The Court held that because addressing the infraction is the
purpose of the stop, “it may ‘last no longer than is necessary to effectuate th[at]
purpose.’” Id. (citing Caballes, 543 U.S. at 407, 125 S. Ct. 834). The Court held that
“[a]uthority for the seizure thus ends when tasks tied to the traffic infraction are—or
reasonably should have been—completed.” Id. The Court observed that its
decisions in Caballes and Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781 (2009), heed
these constraints. Id. at 1614. The Court stated:
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015 Page 4 of 6
In [Caballes and Arizona], we concluded that the Fourth Amendment
tolerated certain unrelated investigations that did not lengthen the roadside
detention. Johnson, 555 U.S., at 327-328, 129 S. Ct. 781 (questioning);
Caballes, 543 U.S., at 406, 408, 125 S. Ct. 834 (dog sniff). In Caballes,
however, we cautioned that a traffic stop “can become unlawful if it is
prolonged beyond the time reasonably required to complete th[e] mission”
of issuing a warning ticket. 543 U.S., at 407, 125 S. Ct. 834. And we
repeated that admonition in Johnson: The seizure remains lawful only “so
long as [unrelated] inquiries do not measurably extend the duration of the
stop.” 555 U.S., at 333, 129 S. Ct. 781. See also Muehler v. Mena, 544 U.S.
93, 101, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005) (because unrelated
inquiries did not “exten[d] the time [petitioner] was detained[,] . . . no
additional Fourth Amendment justification . . . was required”). An officer,
in other words, may conduct certain unrelated checks during an otherwise
lawful traffic stop. But . . . he may not do so in a way that prolongs the stop,
absent the reasonable suspicion ordinarily demanded to justify detaining an
individual.
Id. at 1614-1615. The Court held that beyond determining whether to issue a traffic
ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop
which typically include checking the driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the automobile’s registration
and proof of insurance. Id. The Court held that the critical question is whether
conducting the sniff prolongs or adds time to the stop. Id. at 1616. The Court
remanded the case for further proceedings to determine whether reasonable suspicion
of criminal activity justified detaining Rodriguez beyond completion of the traffic
infraction investigation. Id. at 1616-1617.
[7] In our initial memorandum decision, this court observed that the Court in Caballes
noted that a “seizure that is justified solely by the interest in issuing a warning ticket
to the driver can become unlawful if it is prolonged beyond the time reasonably
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015 Page 5 of 6
required to complete that mission.” Slip op. at 8 (quoting Caballes, 543 U.S. at 407,
125 S. Ct. at 837). We also stated that “[a]n officer’s inquiries into matters unrelated
to the justification for the traffic stop do not convert the encounter into something
other than a lawful seizure, so long as the inquiries do not measurably extend the
stop’s duration.” Id. at 8-9 (quoting Johnson, 555 U.S. at 325, 129 S. Ct. at 783). We
stated that “the question is whether the dog sniff was conducted in a manner that
prolonged the stop beyond the time reasonably required to complete the mission of
issuing a ticket.” Id. at 9. We held:
The record reveals that the video recording began thirty to forty seconds
after the vehicles stopped and the recording shows a time stamp of 4:17:44.
Officer Schmitt asked Washington a few questions and returned to his
vehicle less than three minutes after the start of the video. His computer was
in a dead spot and after four or five minutes of not receiving a response, he
contacted control. At 4:25:30, dispatch informed Officer Schmitt that
Washington had a valid driver’s license. Officer Wildauer deployed his dog
at 4:27:33, less than ten minutes after the beginning of the video and less
than eleven minutes after the vehicles stopped. At this point, Officer
Schmitt had not finished completing the electronic ticket. At approximately
4:28:02, Officer Wildauer’s dog indicated the presence of the odor of
narcotics. While Officer Schmitt typically hands the traffic ticket to the
violator, he had to give the ticket to Detective Ingram because Washington
was arrested for the other offenses. Under the circumstances, we cannot say
that the dog sniff or Officer Schmitt’s actions were conducted in a manner
that prolonged the stop beyond the time reasonably required to complete the
mission of issuing a ticket.
Id. at 9-10. We cannot say that our previous memorandum decision conflicts with
the holding in Rodriguez. Accordingly, we reaffirm our previous decision.
Bailey, J., and Robb, J., concur.
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015 Page 6 of 6