State of Indiana v. William Gilbert , 2013 Ind. App. LEXIS 549 ( 2013 )

FOR PUBLICATION
Nov 05 2013, 5:51 am
ATTORNEY FOR APPELLANT:
GREGORY F. ZOELLER
Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Plaintiff, )
)
vs. ) No. 49A05-1303-CR-140
)
WILLIAM GILBERT, )
)
Appellee-Defendant. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard Sallee, Judge
Cause No. 49F07-1212-CM-83786
November 5, 2013
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
The State of Indiana appeals the trial court’s decision to grant William Gilbert’s
motion to suppress, raising the following issue: whether Gilbert’s arrest and transportation to
a roll call site without first conducting field sobriety tests or administering a portable breath
test violated his rights under the Fourth Amendment to the United States Constitution.
Concluding the arresting officer had probable cause to suspect Gilbert was operating a
vehicle while intoxicated, we reverse.
Facts and Procedural History
On December 11, 2012, Officer Jeremy Johnson of the Indianapolis Metropolitan
Police Department was observing traffic when he witnessed a vehicle, driven by Gilbert, roll
through a stop sign. Officer Johnson initiated a traffic stop, and when he approached
Gilbert’s vehicle, he smelled a strong odor of alcohol. Upon request for his driver’s license,
Gilbert gave Officer Johnson a work identification card but was able to produce a driver’s
license after further prompting by Officer Johnson. Officer Johnson asked Gilbert to exit the
vehicle, and Gilbert stumbled when he attempted to get out.
Officer Johnson detained Gilbert and radioed Officer Anthony Patz, who specializes
in DUI investigation, for assistance. At Officer Patz’s request, Officer Johnson transported
Gilbert to a roll call site for further investigation. Officer Johnson initiated the twenty minute
observation period required before conducting a chemical breath test and ensured that
nothing was placed in Gilbert’s mouth.
After Gilbert’s arrival at the roll call site, Officer Patz conducted a horizontal gaze
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nystagmus test, which Gilbert failed. Gilbert informed Officer Patz that he had bad knees, so
additional field sobriety tests were not conducted. Officer Patz then administered a portable
breath test, which tested positive for alcohol. Officer Patz read Gilbert the Indiana Implied
Consent Law, and Gilbert agreed to take a chemical test to determine his blood alcohol level.
The State charged Gilbert with operating a vehicle while intoxicated, a Class A
misdemeanor; operating a vehicle while intoxicated, a Class C misdemeanor; and failure to
stop at an intersection, a Class C infraction. Gilbert filed a motion to suppress, and an
evidentiary hearing was held on that motion. The trial court granted Gilbert’s motion to
suppress, concluding there was not probable cause to arrest Gilbert and transport him to the
roll call site. The State dismissed all charges against Gilbert following the suppression and
now brings this appeal.
Discussion and Decision
I. Standard of Review
When reviewing a trial court’s grant of a motion to suppress, the reviewing court
determines whether the record contains “substantial evidence of probative value that supports
the trial court’s decision.” State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008) (citation
omitted). We will not reweigh the evidence. Id. Because the State is appealing from a
negative judgment, it must show that the trial court’s decision to suppress was contrary to
law.1 Id. Determinations of reasonable suspicion and probable cause are reviewed de novo.
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We note that Gilbert did not file an Appellee’s Brief in this case. When a defendant fails to file a brief in
response, this court is not required to develop arguments on his behalf. State v. C.D., 947 N.E.2d 1018, 1021 (Ind. Ct.
App. 2011). We may reverse the trial court’s decision if the appellant establishes prima facie error—that is, error “at first
sight, on first appearance, or on the face of it.” Id. (citation omitted). But the burden remains on the State to establish the
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Myers v. State, 839 N.E.2d 1146, 1150 (Ind. 2005).
II. Seizure of a Person
The State argues on appeal that probable cause existed such that Officer Johnson’s
decision to detain Gilbert and transport him to the roll call site did not violate Gilbert’s right
to be free from unreasonable searches and seizures. Specifically, the State maintains that the
strong odor of alcohol along with Gilbert’s acts of running a stop sign and stumbling when
exiting his car constituted probable cause that justified the officer’s decision to place Gilbert
into custody.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
The Fourth Amendment’s protection against unreasonable seizures includes seizure of a
person. California v. Hodari D., 499 U.S. 621, 624 (1991). Under the Fourth Amendment, a
person has been seized if, “in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980). An arrest qualifies as a “seizure” under the
amendment. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). “[A] warrantless arrest by a
law officer is reasonable under the Fourth Amendment where there is probable cause to
believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543
trial court’s decision was erroneous. Id.
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U.S. 146, 152 (2004). “Probable cause exists where the facts and circumstances within their
(the officers’) knowledge and of which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution in the belief that an offense
has been or is being committed . . . .” Taylor v. State, 273 Ind. 558, 561, 406 N.E.2d 247,
249-50 (1980) (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)) (quotation
marks omitted).
It is well-settled that an officer’s detection of the odor of alcohol combined with other
indicia of intoxication, like unsafe driving, constitutes probable cause to believe a person is
driving while intoxicated. See, e.g., Baran v. State, 639 N.E.2d 642, 644 (Ind. 1994); Dalton
v. State, 773 N.E.2d 332, 334 (Ind. Ct. App. 2002), trans. denied; State v. Johnson, 503
N.E.2d 431, 432 (Ind. Ct. App. 1987), trans. denied. Here, Officer Johnson smelled a strong
odor of alcohol coming from Gilbert and observed Gilbert run a stop sign and stumble while
attempting to exit his vehicle. These observations are sufficient to constitute probable cause,
and therefore, Gilbert’s arrest and transportation to the roll call site did not violate his rights
under the Fourth Amendment.
A review of the suppression hearing transcript reveals that the trial court’s error was
based on two misunderstandings of Fourth Amendment jurisprudence. First, the trial court
believed that removing Gilbert from the scene of the traffic stop was improper without first
conducting field sobriety tests or administering a portable breath test. This mistaken belief
stems from a confusion between the reasonableness of an investigatory stop and an arrest. It
is true that an investigatory stop on “less than probable cause” (i.e. reasonable suspicion)
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must be “temporary and last no longer than is necessary to effectuate the purpose of the stop .
. . [and] should be the least intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion); see also Illinois v. Caballes, 543 U.S. 405, 419-20 (2005) (majority of
Supreme Court citing Royer and recognizing limitations on investigatory stops). This
limitation includes the length of a detention and the transfer of a suspect to a different
location. See State v. McCaa, 963 N.E.2d 24, 29-33 (Ind. Ct. App. 2012), trans. denied.
However, once probable cause is established, an arrest does not violate the Fourth
Amendment, and the duration and scope limitations of the investigatory stop analysis are no
longer in play. Cf. Dunaway v. New York, 442 U.S. 200, 212 (1979) (stating that
investigatory stops are narrow intrusions justifiable by reasonable suspicion, “but any further
detention or search must be based on consent or probable cause.”) (emphasis omitted); see
also Datzek v. State, 838 N.E.2d 1149, 1158 (Ind. Ct. App. 2005) (“The requirement that an
officer use the least intrusive means of investigation during a Terry stop is necessary because
the officer is making the stop without probable cause.”), trans. denied. Here, even without
conducting field sobriety tests or administering a portable breath test, the officer had
probable cause to suspect Gilbert was driving while intoxicated. Therefore, Gilbert’s seizure
and removal from the scene did not violate his rights under the Fourth Amendment.2
Second, the trial court believed that cases such as Johnson, supra, were inapplicable
2
We do not mean to suggest by our holding that police officers should routinely remove a suspect from the
scene of a traffic stop before field sobriety tests are performed. We believe that best practice has been and continues to
be the administration of field sobriety tests at the scene of a traffic stop, as this practice will either strengthen or dispel an
officer’s suspicions before subjecting a suspect to the inconvenience of an arrest.
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because they dealt with probable cause justifying searches, not seizures. But the concept of
probable cause is derived from the Fourth Amendment and is common among both searches
and seizures. See Powers v. State, 440 N.E.2d 1096, 1103 (Ind. 1982) (“Although the above
cited case dealt with probable cause for arrest, we feel the rationale is similar for probable
cause in issuing a search warrant.”), cert. denied, 461 U.S. 906 (1983). The probable cause
necessary to offer a chemical breath test is the same probable cause that renders an arrest for
operating a vehicle while intoxicated reasonable under the Fourth Amendment.
Finally, Gilbert argued at the suppression hearing that the officers’ failure to inquire
about his false teeth makes the chemical breath test results inadmissible. Although the trial
court did not grant Gilbert’s motion to suppress on this issue, such an argument could
potentially be raised again at trial, and thus we will briefly address it here. In Guy v. State,
our supreme court held that the presence of a tongue stud placed in the defendant’s mouth
more than twenty minutes before a breath test did not render the test inadmissible. 823
N.E.2d 274, 275 (Ind. 2005). The court examined the administrative code controlling the
procedure for conducting a breath test and said “[t]he logical conclusion to draw from the
department of toxicology’s use of the word ‘put’ is that any foreign substance placed in a
person’s mouth more than twenty minutes prior to a breath test poses no problem for the
reliability of the results.” Id. at 276 (referring to 260 Ind. Admin. Code 1.1-4-8(1) (“The
person to be tested must . . . not have put any foreign substance into his or her mouth or
respiratory tract . . . within twenty (20) minutes before the time a breath sample is taken.”)).
Moreover, Justice Boehm’s concurring opinion specifically stated that objects, including
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“dentures,” were not “foreign” within the meaning of the regulation “if ordinarily found in
the person’s mouth.” Id. at 277 (Boehm, J., concurring). We believe our supreme court’s
decision in Guy precludes Gilbert’s argument that his false teeth make the breath test results
inadmissible.
Conclusion
Because Officer Johnson had probable cause to suspect Gilbert was operating a
vehicle while intoxicated, we conclude that Gilbert’s arrest and transportation to the roll call
site did not violate his rights under the Fourth Amendment.
Reversed.
RILEY, J., and KIRSCH, J. concur.
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