Walter E. Smith, Jr. v. State of Indiana ( 2013 )


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  • FOR PUBLICATION
    ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:
    VICTORIA L. BAILEY                           GREGORY F. ZOELLER
    Beech Grove, Indiana                         Attorney General of Indiana
    BRIAN REITZ
    Deputy Attorney General
    Indianapolis, Indiana
    FILED
    Feb 06 2013, 9:26 am
    IN THE
    COURT OF APPEALS OF INDIANA                                  CLERK
    of the supreme court,
    court of appeals and
    tax court
    WALTER E. SMITH, JR.,                        )
    )
    Appellant-Defendant,                    )
    )
    vs.                              )       No. 84A04-1112-CR-637
    )
    STATE OF INDIANA,                            )
    )
    Appellee-Plaintiff.                     )
    APPEAL FROM THE VIGO SUPERIOR COURT
    The Honorable Michael Rader, Judge
    Cause No. 84D05-1106-FA-1942
    February 6, 2013
    OPINION - FOR PUBLICATION
    KIRSCH, Judge
    Walter E. Smith, Jr. (“Smith”) appeals his conviction for dealing in cocaine1 as a
    Class A felony. On appeal, Smith raises the following restated issues:
    I.        Whether the trial court committed reversible error when it refused to
    give Smith’s tendered jury instruction.
    II.       Whether the trial court’s scheduling of Smith’s trial entitled Smith to
    discharge under Indiana Rule of Criminal Procedure 4(B).
    III.      Whether the trial court abused its discretion when it admitted
    evidence obtained during a traffic stop.
    We affirm.
    FACTS AND PROCEDURAL HISTORY
    In the early morning hours of June 17, 2011, Officer Brent Long (“Officer
    Long”),2 a Patrol Division Officer and a K-9 Handler with the Terre Haute Police
    Department who was working criminal interdiction on I-70, initiated a traffic stop of a U-
    Haul truck that he observed repeatedly crossing the center lane and the right fog line.
    The driver of the U-Haul was identified as Smith. During the stop, Officer Long asked
    for assistance from Officer Matthew Carden (“Officer Carden”) and Officer Phillip
    Ralston (“Officer Ralston”), fellow officers who were also working criminal interdiction
    that evening. When Officers Carden and Ralston arrived a few minutes later, Smith was
    behind the U-Haul with Officer Long, who was writing him a warning. At Officer
    Long’s request, Officer Ralston took over the duty of writing Smith’s warning for
    “unsafe lane movement,” and Officer Carden began questioning Smith about where he
    1
    See 
    Ind. Code § 35-48-4-1
    .
    2
    Officer Long was shot and killed in the line of duty on July 11, 2011. Suppression Hr’g at 6;
    http://www.terrehaute.in.gov/departments/pd (last visited Jan. 22, 2013).
    2
    was coming from and where he was going. Jury Tr. at 167-169, 259.3 Officers Carden
    and Ralston testified that Smith was extremely nervous and “sweating profusely.” 
    Id. at 168, 261, 281
    . Both officers also testified that although they were in uniform and
    wearing bullet proof vests, neither of them was sweating that evening. 
    Id. at 168, 262
    .
    While Officers Ralston and Carden were performing their tasks, Officer Long got
    his “K-9 partner Shadow” out of the patrol car and walked Shadow around the exterior of
    Smith’s U-Haul. 
    Id. at 169, 262
    . Officer Carden testified that Officer Long walked
    Shadow along the driver’s side of the U-Haul toward the back, and as he continued past
    the back on the passenger-side, “Shadow jerked his head back at that right rear corner and
    then started going up and down with [his] head back at that right rear corner and then
    started going up and down with [his] head right there at that corner.” 
    Id. at 169-70
    . The
    U-Haul cargo area was secured by a locked padlock, and Smith stated that he did not
    have the key.
    Officer Long returned Shadow to the patrol car, and because it was nighttime on
    the side of an interstate highway, the U-Haul was moved to a nearby Wal-Mart parking
    lot for safety reasons. Officer Ralston and another officer who arrived on the scene
    stayed with Smith. Meanwhile, Officers Carden and Long went to the drug task force
    office to obtain a search warrant for the U-Haul. Appellant’s App. at 35. Officer Long
    applied for the search warrant through a telephonic hearing, which was conducted by
    Judge David Bolk. During that hearing, Officer Long testified to the facts supporting
    3
    The record before us contains the transcripts from various hearings. We cite to the following:
    the transcript of the jury trial as Jury Tr.; the transcript of the September 16, 2011 suppression hearing as
    Suppression Hr’g; the transcript of the hearing held September 26, 2011 as Sept. 26 Hr’g; and the
    transcript of the September 29, 2011 hearing as Sept. 29 Hr’g.
    3
    probable cause to search the U-Haul, and Judge Bolk granted the issuance of the warrant.
    Thereafter, Officers Long and Carden returned to the Wal-Mart parking lot.
    Pursuant to the search warrant, the officers cut the padlock to obtain access to the
    U-Haul’s cargo area and, once inside, found that it was only one-quarter full; it contained
    an arm chair in poor condition, a used “torpedo heater,” a table top with no legs, several
    boxes, and a plastic container. Jury Tr. at 182-83. Officer Ralston testified that the chair
    and heater “were junk.” 
    Id. at 270
    . Officer Carden testified that, based on his training
    and experience, he believed he was looking at “a cover load,” i.e., items that conceal the
    true cargo and provide a story to legitimize the trip. 
    Id. at 183
    . Behind the table top, the
    officers found a cardboard box with two brick-like packages wrapped in duct tape and
    vacuum sealed, which Officer Carden testified was consistent with how narcotics are
    packaged for transportation. 
    Id. at 184, 186
    . The officers used a pocket knife to cut into
    the package and found a white, powdery substance, which was field-tested and showed
    the presence of cocaine. 
    Id. at 189-90, 193
    . At trial, an Indiana State Police Crime
    Laboratory forensic scientist (“Forensic Scientist”) confirmed that the white substance
    was cocaine, and that one brick weighed 1001.0 grams and the other weighed 996.9
    grams. Jury Tr. at 246-47; State’s Ex. 19. Smith was arrested and charged with dealing
    in cocaine as a Class A felony, possession of cocaine as a Class C felony, and
    maintaining a common nuisance as a Class D felony. Appellant’s App. at 17.
    Smith filed a motion for a speedy trial pursuant to Indiana Criminal Rule 4(B)(1),
    and the trial court set the trial for September 27, 2011. Appellant’s App. at 27-28.
    Twenty days prior to that trial date, Smith filed a motion to suppress the evidence
    4
    obtained as a result of the search warrant. 
    Id. at 33-51
    . In his motion, Smith did not
    question the legality of the initial stop of Smith’s U-Haul; instead, he maintained that
    “[b]y extending the detention to conduct a drug dog sniff of the vehicle, [Officer Long]
    exceeded the scope of the original traffic stop without probable cause, or objectively
    reasonable articulated suspicion, thus violating the Fourth Amendment to the United
    States Constitution and Article I, Section 11 of the Indiana Constitution.” 
    Id. at 34
    . “A
    copy of the transcript [of the telephonic hearing] and [Officer Long’s] report [of the stop
    were] attached [to the motion] and incorporated [t]herein by way of reference as Exhibits
    A and B respectively.” 
    Id. at 33
    .
    The suppression hearing was held on September 16, 2011, a date after which
    Officer Long had already been killed in the line of duty.        Without Officer Long’s
    testimony, the State introduced evidence about the stop and its timing through the
    testimony of Officers Ralston and Carden. Smith introduced evidence of the timing of
    the stop and the K-9 search through the transcript of Officer Long’s sworn telephonic
    application for the warrant.    Officer Ralston testified that Officer Long had started
    writing Smith’s warning for unsafe lane movement, but that Officer Ralston had finished
    writing it. Suppression Hr’g at 15, 36, 38. The officers also testified regarding the
    timing of their arrival at the scene and the manner in which Officer Long took Shadow
    around the U-Haul. 
    Id. at 12-13
    . After finding that Smith was not unduly detained, the
    trial court denied his motion to suppress.
    Four days before the scheduled trial, Smith moved to exclude evidence and strike
    witnesses due to the State’s belated discovery compliance. Appellant’s App. at 81-83. A
    5
    hearing was held on September 26, 2011, at which Smith argued that he would like
    additional time to take a deposition from both the Forensic Scientist and Detective Denzil
    Lewis of the Vigo County Drug Task Force. Sept. 26 Hr’g at 58. The trial court allowed
    Smith time to depose the witnesses and moved the trial date, explaining that it was a fair
    result for both the defendant and the State and “would get the issue of the speedy trial
    addressed.” Sept. 26 Hr’g at 63.
    The trial court held another hearing on September 29, 2011, during which Smith
    stated that he had conducted the depositions but did not yet have the transcripts. Sept. 29
    Hr’g at 1. Smith also stated his intent to get an independent chemical analysis of the
    substance found in the U-Haul; a test Smith estimated would take two weeks. 
    Id. at 3
    .
    Later in the hearing, Smith stated he was not ready for trial, but moved for discharge
    pursuant to Criminal Rule 4. Sept. 29 Hr’g at 11-12. The trial court denied Smith’s
    motion for discharge.
    Voir dire began on October 3, 2011, and Smith’s trial continued through October
    5, 2011. During trial, Smith objected to Officer Carden’s description of the initial traffic
    stop, contending “I don’t think this officer has established the foundation in the law to
    justify the stop.” Jury Tr. at 163. The State responded, “Your honor, I think that at this
    point that the court, as [defense counsel] has said, already heard testimony on this, the
    State would rest on that hearing, that the court has already had and what was said on
    that.” 
    Id. at 164
    . The trial court overruled Smith’s objection. Smith later entered a
    continuing objection to the State introducing evidence of the contents of the U-Haul,
    maintaining “that’s the fruits of improper stop and search.” 
    Id. at 181
    . The trial court
    6
    said to Smith, “[F]or economy, if you refer back to previous proceedings, I’m going to
    show all of those arguments incorporated by reference.” 
    Id.
     When Smith objected to the
    State introducing evidence of the cocaine, the trial court again “incorporated previous
    arguments made in proceedings before th[e] court,” and overruled Smith’s objection. 
    Id. at 185
    .
    At the close of trial, Smith tendered a jury instruction on the presumption of
    innocence. The State argued that Smith’s tendered instruction was “adequately covered
    in other instructions.” Jury Tr. at 365. The trial court agreed with the State and declined
    to give the instruction. Instead, the trial court gave an instruction, which in relevant part
    stated, “You should attempt to fit the evidence to the presumption that the Defendant is
    innocent . . . .” Appellant’s App. at 138, 166.
    Smith was found guilty of dealing in cocaine as a Class A felony, possession of
    cocaine as a Class C felony, and maintaining a common nuisance as a Class D felony.
    Jury Tr. at 472. On November 2, 2011, the trial court vacated the latter two counts on
    double jeopardy grounds and sentenced Smith for his Class A felony conviction to forty-
    five years executed in the Department of Correction. Additional facts will be added
    where necessary.
    DISCUSSION AND DECISION
    I.      Jury Instructions
    At the close of his trial, Smith tendered the following instruction pertaining to the
    presumption of innocence:
    If evidence in this case is susceptible of two constructions or
    interpretations, each of which appears to be reasonable, and one of which
    7
    points to the guilt of the Defendant and the other to his/her innocence, it is
    your duty, under the law, to adopt that interpretation which is consistent
    with the Defendant’s innocence and reject that which points to his/her guilt.
    Appellant’s App. at 148. Smith’s tendered instruction cited to the Indiana Supreme
    Court’s decision in Robey v. State, 
    454 N.E.2d 1221
     (Ind. 1983). 
    Id.
    The trial court refused Smith’s instruction on the basis that its substance was
    covered by the court’s own instructions—Preliminary Instruction No. 11 and Final
    Instruction No. 15—which read as follows:
    You are the exclusive judges of the evidence, the credibility of the
    witnesses and of the weight to be given to the testimony of each of them.
    In considering the testimony of any witness, you may take into account his
    or her ability and opportunity to observe, the manner and conduct of the
    witness while testifying, any interest or bias or prejudice the witness may
    have, any relationship with other witnesses or interested parties, and the
    reasonableness of the testimony of the witness considered in the light of all
    of the evidence in this case.
    You should attempt to fit the evidence to the presumption that the
    Defendant is innocent and the theory that every witness is telling the truth.
    You should not disregard the testimony of any witness without a reason and
    without careful consideration. If you find conflicting testimony, you must
    determine which of the witnesses you will believe and which of them you
    will disbelieve.
    In weighing the testimony to determine what or whom you will believe,
    you should use your own knowledge, experience and common sense gained
    from day-to-day living. The number of witnesses who testify to a particular
    fact or the quantity of evidence on a particular point need not control your
    determination of the truth. You should give the greatest weight to that
    evidence which convinces you most strongly of its truthfulness.
    Appellant’s App. at 138, 166 (emphasis added). Smith asserts that the trial court abused
    its discretion in instructing the jury on the presumption of innocence by refusing to give
    his tendered instruction and, instead, using the above instruction.
    Generally, the purpose of an instruction is to “inform the jury regarding the law
    8
    applicable to the facts without being misleading and should enable the jury to understand
    the case and arrive at a just, fair, and correct verdict.” Filice v. State, 
    886 N.E.2d 24
    , 37
    (Ind. Ct. App. 2008), trans. denied.
    Instruction of the jury is generally within the discretion of the trial court
    and is reviewed only for an abuse of that discretion. When reviewing the
    refusal to give a proposed instruction, this court considers: (1) whether the
    proposed instruction correctly states the law; (2) whether the evidence
    supports giving the instruction; and (3) whether other instructions already
    given cover the substance of the proposed instruction. To constitute an
    abuse of discretion, the instruction given must be erroneous, and the
    instructions taken as a whole must misstate the law or otherwise mislead
    the jury.
    Lee v. State, 
    964 N.E.2d 859
    , 862 (Ind. Ct. App. 2012) (citations omitted), trans. denied.
    Smith maintains that his tendered instruction, which was quoted directly from
    Robey, was a correct statement of the law, was supported by evidence presented at trial,
    and was not covered by any of the instructions given by the trial court.” Appellant’s App.
    at 3. Smith cites to our recent decision in Lee as support for his position. In Lee, the
    defendant tendered an instruction regarding the presumption of innocence, which was
    identical to the instruction tendered by Smith.       The trial court refused to give the
    instruction because it believed that other instructions adequately covered the tendered
    instruction. Lee, 
    964 N.E.2d at 862
    . At the close of Lee’s trial, the trial court gave the
    following relevant instructions:
    .... You should keep an open mind. You should not form or express any
    conclusion or judgment about the outcome of the case until the Court
    submits the case to you for your deliberations.
    ....
    Under the law of this State, a person charged with a crime is presumed to
    be innocent. To overcome the presumption of innocence, the State must
    9
    prove the defendant guilty of each element of the crime charged, beyond a
    reasonable doubt.
    
    Id. at 864
    . The jury found Lee guilty as charged.
    On appeal, our court reversed Lee’s conviction after finding that the trial court’s
    “instructions did not adequately instruct the jury on the presumption of innocence.
    Indeed, the balance of the instructions cited by the State in support of its argument to the
    contrary is in the context of reasonable doubt.” 
    Id. at 865
    . Particularly, our court “[did]
    not find that an instruction was given to the jury adequately explaining the jury’s duty to
    ‘reconcile the evidence upon the theory of the defendant’s innocence if they could do
    so.’” 
    Id.
     (citing Robey, 454 N.E.2d at 1222) (emphasis added).
    While Lee’s convictions were reversed on appeal, the facts before us are
    distinguishable from Lee. In fact, the instant case is on all fours with this court’s decision
    in Simpson v. State, 
    915 N.E.2d 511
     (Ind. Ct. App. 2009), trans. denied (2010). There, at
    the close of trial, Simpson, citing to Robey as authority, tendered the following final jury
    instruction:
    You should attempt to fit the evidence to the presumption that the Accused
    is innocent.
    If the evidence in this case is susceptible of two (2) constructions or
    interpretations, each of which appears to you to be reasonable, and one of
    which points to the guilt of the accused, and the other to his innocence, it is
    your duty, under the law, to adopt the interpretation which is consistent
    with the Accused’s innocence, and reject that which points to his guilt.
    Simpson, 
    915 N.E.2d at 518
    . The trial court refused to give the above instruction.
    Instead, the trial court gave an instruction identical to the one given by the trial court at
    the close of Smith’s trial. Simpson was convicted as charged.
    10
    On appeal, Simpson, like Smith, maintained that the trial court’s refusal to give his
    tendered instruction was an abuse of discretion because it did not properly inform the jury
    of their duty when the case is susceptible of two constructions or interpretations. 
    Id. at 519
    . Our court disagreed with Simpson on the following grounds:
    Simpson’s instruction is based on one of the instructions given by the trial
    court in Robey, which reads in pertinent part as follows:
    If the evidence in this case is susceptible of two constructions or
    interpretations, each of which appears to you to be reasonable, and
    one of which points to the guilt of the defendant, and the other to his
    innocence, it is your duty, under the law, to adopt that interpretation
    which will admit of the defendant's innocence, and reject that which
    points to his guilt.
    You will notice that this rule applies only when both of the two
    possible opposing conclusions appear to you to be reasonable. If, on
    the other hand, one of the possible conclusions should appear to you
    to be reasonable and the other to be unreasonable, it would be your
    duty to adhere to the reasonable deduction and to reject the
    unreasonable, bearing in mind, however, that even if the reasonable
    deduction points to defendant’s guilt, the entire proof must carry the
    convincing force required by law to support a verdict of guilt.
    [Robey,] 454 N.E.2d at 1222).
    The State contends that Simpson’s tendered instruction was “incomplete
    because it failed to inform the jury that they could in fact conclude that one
    of the two opposing conclusions was unreasonable.” The State further
    contends that “[o]ur Supreme Court’s holding in Robey simply required an
    instruction that the jury should fit the evidence to the presumption that a
    defendant is innocent” and that the trial court’s instruction “informed the
    jury as required by Robey.” We agree with the State and therefore conclude
    that the trial court did not abuse its discretion in refusing Simpson’s
    instruction. Consequently, we affirm Simpson’s convictions.
    Simpson, 
    915 N.E.2d at 519-20
     (citations omitted).
    Here, exactly like the instructions given at the close of Simpson’s trial, Smith’s
    jurors were instructed in relevant part, “You should attempt to fit the evidence to the
    11
    presumption that the Defendant is innocent . . . .” Appellant’s App. at 138, 166. This
    instruction satisfied our Supreme Court’s holding in Robey that the “jury should fit the
    evidence to the presumption that a defendant is innocent.” 
    Id. at 520
    . Pursuant to the
    precedents of Robey and Simpson, the trial court did not abuse its discretion in refusing to
    use Smith’s tendered instruction because the substance of that instruction was covered by
    instructions given by the court.4
    II.     Criminal Rule 4
    Smith contends that the trial court’s scheduling of his trial entitled him to
    discharge under Indiana Rule of Criminal Procedure 4(B). On review of a claimed
    violation of Criminal Rule 4, we employ two standards of review: we review the trial
    court’s legal conclusions de novo but exercise deference with respect to its factual
    findings. Otte v. State, 
    967 N.E.2d 540
    , 545 (Ind. Ct. App. 2012), trans. denied. Here,
    both parties maintain that the appropriate standard of review is whether the trial court
    abused its discretion by refusing Smith’s motion for discharge.
    An abuse of discretion occurs only when the trial court’s decision is clearly
    against the logic and effect of the facts before the court. Weis v. State, 
    825 N.E.2d 896
    ,
    900 (Ind. Ct. App. 2005). Smith’s claim of error in this regard is based solely on Indiana
    Rule of Criminal Procedure 4(B), which provides, in relevant part, as follows:
    If any defendant held in jail on an indictment or an affidavit shall move for
    an early trial, he shall be discharged if not brought to trial within seventy
    4
    Because we decide this issue on the fact that the tendered instruction was covered by other
    instructions given to the jury, we do not address, as this court did in Simpson, whether the instruction was
    “incomplete because it failed to inform the jury that they could in fact conclude that one of the two
    opposing conclusions was unreasonable.” Simpson v. State, 
    915 N.E.2d 511
    , 520 (Ind. Ct. App. 2009),
    trans. denied (2010).
    12
    (70) calendar days from the date of such motion, except where a
    continuance within said period is had on his motion, or the delay is
    otherwise caused by his act, or where there was not sufficient time to try
    him during such seventy (70) calendar days because of the congestion of
    the court calendar.
    “[A] defendant must maintain a position reasonably consistent with his request for a
    speedy trial and must object, at his earliest opportunity, to a trial setting that is beyond the
    seventy-day time period.” McKay v. State, 
    714 N.E.2d 1182
    , 1189 (Ind. Ct. App. 1999).
    Following Smith’s motion for a speedy trial, the trial court set a trial date for
    September 27, 2011, which was within the seventy-day time limit. Appellant’s App. at
    27, 28. The day before the trial date, however, a hearing was held on Smith’s motion to
    exclude evidence and strike evidence based on an allegation that the State failed to timely
    disclose witnesses and evidence. Id. at 81-83. As Smith noted, the typical remedy for
    any discovery violation would be a continuance. Sept. 26 Hr’g at 5; see Warren v. State,
    
    725 N.E.2d 828
    , 832 (Ind. 2000) (generally, proper remedy for discovery violation is
    continuance). Smith stated that he would like additional time to take Detective Lewis’s
    deposition and to take the deposition of the Forensic Scientist. Sept. 26 Hr’g at 58. The
    trial court allowed Smith time to depose the witnesses, stating: “We are still within the
    seventy days, if my arithmetic is right. You’ve got your speedy trial, but you’ve also got
    your chance to depose these potential witnesses. And then take whatever course of action
    you feel is appropriate.” 
    Id. at 67
    .
    During the September 29, 2011 hearing, which fell on the seventieth day, Smith
    stated that he had conducted the depositions but did not yet have the transcripts. Sept. 29
    Hr’g at 1. Smith then stated, “[Y]our honor . . . if you ask me the question, are you know
    13
    prepared to go to trial. [sic] I would candidly say, your honor, not really.” 
    Id. at 3
    .
    Smith blamed his lack of preparedness on the State’s delay in providing certification that
    the substance seized was cocaine. Smith argued that without that certification, he did not
    know whether to do his own chemical test of the substance. The trial court was not
    persuaded, stating, “[T]he allegation was that it was cocaine all along. You had the
    substance, you had it available, with nothing more than a motion you could have had a
    portion of this for your own analysis.” 
    Id. at 7
    . Later in the hearing, Smith again stated
    he was not ready for trial, but moved for discharge pursuant to Criminal Rule 4. 
    Id. at 10-12
    .
    The trial court denied Smith’s motion based on the following reasoning:
    Today is the seventieth day. . . . I gave you an opportunity to start trial
    today, you wanted to do depositions. I gave you the opportunity to do
    depositions, and you did them. . . . But, you have also declined my offer to
    begin the trial today, because you did not feel that you would be ready.
    I’ve not heard enough justification to warrant discharge. . . . [L]et the
    record reflect that I did not agree with you on continuing beyond today. I
    gave you the opportunity to start trial today, you did not want to do so.
    Now I acceded to your request for more time and put the trial off. That’s
    what the record shows.
    
    Id. at 12-14
     (emphasis added).
    The trial court initially set Smith’s trial date within seventy days. Thereafter, the
    trial court attempted to stay within that seventy-day time frame. Ultimately, Smith stated
    that he was not ready for trial, and the trial court acceded to this request to delay the trial.
    Despite moving for discharge, Smith did not maintain a position reasonably consistent
    with his request. See McKay, 
    714 N.E.2d at 1188-89
     (“defendant must maintain a
    position reasonably consistent with his request for a speedy trial”).          The trial court
    14
    concluded, and we concur, that any delay past the seventieth day was chargeable to
    Smith. The trial court did not abuse its discretion in refusing to discharge Smith pursuant
    to Criminal Rule 4(B).
    III.   Admission of Evidence
    Finally, Smith contends that the trial court abused its discretion in admitting, over
    his objection, the cocaine evidence gathered from the U-Haul truck he was driving.
    Appellant’s Br. at 13. Specifically, Smith maintains that Officer Carden’s testimony at
    trial did not “establish the foundation in law to justify the stop.” Appellant’s Br. at 13
    (quoting Jury Tr. at 163). Citing to Washington v. State, 
    784 N.E.2d 584
    , 586 (Ind. Ct.
    App. 2003), Smith contends that while there was foundational evidence regarding the
    traffic violation at the suppression hearing, no such evidence was admitted at trial. As
    such, Smith argues that without a proper basis for the stop, the trial court abused its
    discretion in failing to exclude evidence obtained as a result of that stop.          Smith,
    however, fails to remind this court that the cocaine was, in fact, seized pursuant to a valid
    search warrant—a fact that was explained to the jury prior to the State introducing the
    evidence of the cocaine. Jury Tr. at 173-74. As such, we find that Smith’s issue is more
    properly framed as whether the trial court abused its discretion in admitting the cocaine
    evidence because the search warrant was not supported by probable cause.
    A search warrant is presumed valid, and the burden is upon the challenger to rebut
    the presumption. Britt v. State, 
    810 N.E.2d 1077
    , 1080 (Ind. Ct. App. 2004); Rios v.
    State, 
    762 N.E.2d 153
    , 156-57 (Ind. Ct. App. 2002). The Fourth Amendment of the
    United States Constitution protects citizens against unreasonable searches and seizures of
    15
    persons and property by requiring a warrant based on probable cause.5 Moore v. State,
    
    827 N.E.2d 631
    , 637 (Ind. Ct. App. 2005), trans. denied. “Probable cause exists when an
    officer has knowledge of facts and circumstances that would lead a reasonably prudent
    person to believe that a crime has been committed.” 
    Id.
     “The decision to issue the
    warrant should be based on the facts contained in the affidavit and the rational and
    reasonable inferences drawn therefrom.” Redden v. State, 
    850 N.E.2d 451
    , 461 (Ind. Ct.
    App. 2006), trans. denied.
    “In determining whether an application for a search warrant is supported by
    probable cause, the issuing magistrate must determine whether, given all the
    circumstances set forth in the affidavit, there is a fair probability that contraband or
    evidence of a crime will be found in a particular place.” Britt, 
    810 N.E.2d at
    1081 (citing
    Query v. State, 
    745 N.E.2d 769
    , 771 (Ind. 2001) (citing Illinois v. Gates, 
    462 U.S. 213
    ,
    238 (1983), reh’g denied)). Great deference is accorded the magistrate’s determination
    by the reviewing court. 
    Id.
     This Court does not undertake a de novo determination of
    probable cause, but reviews the record to ensure that the magistrate had a substantial
    basis for concluding that probable cause existed. 
    Id.
    Here, during a telephonic hearing, Officer Long presented the facts that supported
    probable cause for a search warrant; the hearing was transcribed, and Smith attached a
    copy of this document to his motion to suppress as Exhibit B. Appellant’s App. at 37-51.
    Officer Long testified that: (1) he was a regular member of the Terre Haute Police
    5
    Smith does not make a separate, cogent argument regarding the Indiana Constitution and treats
    it the same as the Federal Constitution, therefore he has waived any appeal based on Article I, Section 11
    of the Indiana Constitution. See Micheau v. State, 
    893 N.E.2d 1053
    , 1059 n.8 (Ind. Ct. App. 2008), trans.
    denied (2009).
    16
    Department and a K-9 handler, id. at 45; (2) on June 17, 2011, he initiated a traffic stop
    on I-70 on a U-Haul truck after he observed the vehicle crossing the center lane on the
    left, and crossing the fog line on the right several times, id. at 45-46; (3) he identified
    Smith by his Ohio driver’s license, id. at 46; (4) he advised Smith of the reason for the
    stop and requested information for the truck rental, id.; (5) he requested that Smith step
    back to Officer Long’s vehicle while he wrote a warning for the violation of unsafe lane
    movement, id. at 45; (6) during this contact, he noted Smith was sweating profusely and
    pacing in circles, id. at 46-47; (7) Smith said he was moving his friend’s aunt’s
    belongings from Texas to Ohio, id. at 47; (8) Smith said he was following his friend, but
    Officer Long observed no other vehicles that appeared to be traveling with Smith, id. at
    47-48; (9) Officer Long requested assistance from Officers Ralston and Carden, who
    arrived minutes later, id. at 48; (10) once the officers arrived, Officer Ralston continued
    to complete the warning ticket, id.; (11) meanwhile, Officer Long walked his K-9 partner
    Shadow around the U-Haul, and the dog “indicated” on the vehicle, id. at 48; (12)
    Shadow is certified in the detection of marijuana, cocaine, and other drugs, id. at 48-49.
    Based on this testimony, Judge Bolk found probable cause supported the issuance of a
    warrant.
    Prior to trial, Smith filed a motion to suppress the evidence obtained pursuant to
    the warrant. In his motion, he did not question Officer Long’s reason for the initial stop;
    instead, he alleged that “[b]y extending the detention to conduct a drug dog sniff of the
    vehicle, [Officer Long] exceeded the scope of the original traffic stop without probable
    cause.” Id. at 34. During the suppression hearing, Officers Ralston and Carden provided
    17
    testimony that was consistent with the testimony Officer Long had given during the
    telephonic hearing for the warrant. The trial court denied Smith’s motion to suppress the
    evidence after finding that Smith was not unduly detained. The trial court reasoned as
    follows:
    With respect to this particular issue, I have also spent [a] considerable
    amount of time reading cases that relate to these kinds of stops. And I’ve
    been doing that now for over ten years. And continue to do it, and I’ve
    looked at these cases. I understand what you are asking the court do. But,
    let me tell you how I see it at this point. It appears to me that that there was
    testimony that the officers were working as a team, that they considered I-
    70 to be dangerous. That this stop occurred at night and it was in a known
    corridor where drug trafficking occurs. And the testimony that I heard was
    that Officer Long requested, first of all, indicated to his team members that
    he was about, that he was making a stop of this U-Haul and subsequently
    asked for backup which was appropriate in the context. And that they
    appeared within minutes. And the testimony that I heard was a minute or
    two. When the officers arrived they observed Officer Long interacting with
    the defendant on the hood of the vehicle, writing out what appeared to be a
    warning. And then, that Officer Ralston began completing that task during
    which time, Officer Long got the K-9 Shadow to conduct a dog sniff
    search. And before the warning was completed, the dog indicated on the
    U-Haul vehicle. That’s the testimony that I heard. And all this happened in
    a relatively short period of time. I think well within the confines of
    requirements of not only in the United States Constitution, but the Indiana
    Constitution. For those reasons, I find the stop to be reasonable, the search
    to be reasonable, the request for a warrant to be reasonable and show that
    the motion to suppress is denied.
    Suppression Hr’g at 97-99.
    We agree with the trial court’s sound reasoning. Here, Officer Long’s testimony
    during the telephonic hearing revealed that he stopped Smith for unsafe lane movement.
    See Navarro v. State, 
    855 N.E.2d 671
    , 673 (Ind. Ct. App. 2006) (Navarro was stopped for
    unsafe lane movement). While still completing the warning, fellow officers arrived at the
    scene. While Officer Ralston was completing the written warning, Officer Long took
    18
    Shadow, a trained narcotics dog, around the U-Haul truck. See Myers v. State, 
    839 N.E.2d 1154
    , 1158 (Ind. 2005), cert denied, 
    126 S. Ct. 2295
     (2006) (dog sniffs are not
    “searches” requiring probable cause under the Fourth Amendment). Shadow made an
    indication to the presence of drugs in the vehicle. Finding probable cause for the search,
    Judge Bolk issued a warrant. At the suppression hearing, Smith did not dispute the
    validity of the stop; instead, he argued that the length of the stop was unconstitutional,
    and therefore, the evidence seized following that stop should be suppressed. The trial
    court was unconvinced and denied Smith’s motion to suppress. At trial, Smith again
    objected to the introduction of the cocaine evidence, to which the trial court responded,
    “All right, I’m going to show continuing objection by defense counsel, and incorporate
    previous arguments made in proceedings before this court. Show the objection overruled
    . . . .” Jury Tr. at 185. Other than the arguments made at the suppression hearing, Smith
    has offered no evidence to suggest that the stop was unreasonable, the length of the stop
    was unreasonable or that the search warrant was not supported by probable cause. The
    trial court did not abuse its discretion in admitting at trial the cocaine evidence that was
    seized pursuant to a valid search warrant.
    Affirmed.
    MATHIAS, J., and CRONE, J., concur.
    19