Clifton Ervin v. State of Indiana , 2012 Ind. App. LEXIS 254 ( 2012 )

FILED
May 30 2012, 8:41 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
K. MICHAEL GAERTE GREGORY F. ZOELLER
Borland & Gaerte Attorney General of Indiana
Indianapolis, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CLIFTON ERVIN, )
)
Appellant-Defendant, )
)
vs. ) No. 29A05-1109-CR-454
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Wayne A. Sturtevant, Judge
Cause No. 29D05-1008-FD-4604
May 30, 3012
OPINION–FOR PUBLICATION
BAKER, Judge
Appellant-defendant Clifton Ervin brings this interlocutory appeal, challenging the
trial court’s denial of his motion to suppress. Specifically, Ervin argues that although the
trial court properly granted a portion of his motion to suppress, it erred in determining
that only the evidence seized from the moment that an off-duty police officer ordered him
to return to his vehicle until uniformed on-duty police officers arrived at the scene should
be suppressed. In other words, Ervin claims that the trial court should have issued an
order “prohibiting the State from introducing all evidence obtained following Ervin’s
illegal detention.” Appellant’s Br. p. 6. Concluding that the trial court properly
determined that the evidence seized by the uniformed on-duty police officers should not
be suppressed pursuant to the exclusionary rule, we affirm and remand this cause for trial.
FACTS
On April 2, 2010, Carmel Police Officer Jeff Sedberry was driving home with his
wife and daughter. He was off duty and not in uniform or driving a marked police car.
Officer Sedberry was behind a vehicle that Ervin was driving. Ervin was weaving,
crossing over the center and fog lines, and nearly hit some objects on the side of the road.
Ervin’s behavior led Officer Sedberry to believe that Ervin was driving while intoxicated.
As a result, Officer Sedberry contacted the Fishers Police Department and reported
Ervin’s location. Although Officer Sedberry continued to follow Ervin’s vehicle, he did
not take any action to stop the vehicle or cause Ervin to pull over.
At some point, Ervin abruptly pulled his vehicle over on a neighborhood street.
When Officer Sedberry stopped, Ervin exited his vehicle and began to walk toward
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Officer Sedberry in an aggressive and confrontational manner, shouting with his arms up
in the air, asking why he was being followed. Officer Sedberry was concerned for his
family’s safety, so he grabbed his gun, pointed it at Ervin, identified himself as a police
officer, and told Ervin to return to his vehicle. Ervin complied, and moments later, some
on-duty officers, who had been dispatched in response to Officer Sedberry’s call, arrived
at the scene. An investigation commenced and Ervin was ultimately arrested for driving
while intoxicated and other related offenses.
Thereafter, Ervin filed a motion to suppress, arguing that he was unlawfully seized
because Officer Sedberry was not in uniform or driving a marked police car. Following a
hearing, the trial court ruled that a violation of Indiana Code section 9-30-2-21 occurred
because Officer Sedberry was not in uniform or driving a marked police vehicle.
Although the trial court observed that Officer Sedberry did not initially stop Ervin,
it was determined that Officer Sedberry detained and arrested Ervin when he pointed his
gun and ordered him back to the vehicle. Thus, the trial court determined that “only the
evidence seized from the moment that Officer Sedberry ordered [Ervin] to return to his
vehicle until the time of the arrival of the uniformed officers shall be suppressed.”
Appellant’s App. p. 15.
1
This statute, discussed infra, pertains to a law enforcement officer’s lack of authority to make an arrest
in circumstances regarding the operation of a motor vehicle when the officer is not wearing a badge or
uniform or driving a marked police vehicle.
3
However, in its order dated July 11, 2011, the trial court denied the remainder of
Ervin’s motion to suppress under the exclusionary rule. In particular, the trial court’s
findings provided that
The remaining issue . . . is what evidence must be suppressed. The purpose
of the Exclusionary Rule is to deter unlawful or improper police conduct in
violation of a person’s constitutional rights. In the instant case, there has
been no argument that the Defendant’s constitutional rights were violated
by Officer Sedberry. The evidence supports that, had he been in uniform or
a marked car, he would have had the right to stop the Defendant for a traffic
violation committed in the officer’s presence. Given that there was no
violation of the Defendant’s constitutional rights, it is reasonable to
consider whether the Exclusionary Rule should apply and to what extent.
Here, the Defendant created the very situation I.C. § 9-30-2-2 was meant to
avoid. It was the Defendant who made the decision to stop and confront
the officer. It was the Defendant’s approach to Officer Sedberry’s vehicle
that provoked the officer to a response he would not otherwise have made
but for the perceived need to protect his family from a threat that could not
be fully evaluated as the Defendant came towards them in a clearly agitated
posture. Even with this, his identification of himself as a police officer was
as much a means of justifying his presence and his possession of a firearm
to the Defendant so as to de-escalate the situation, as it was a means of
enforcing his command for the Defendant to return to his vehicle. The
officer made no attempt to gain any advantage or benefit from the action
the Defendant had forced upon him. Moreover, had the Defendant not
stopped, the communication from Officer Sedberry and his wife to police
dispatch would have directed uniformed police officers to a location where
they could have made a stop compliant with Indiana Code § 9-30-2-2.
For these reasons, the court finds that a sweeping application of the
Exclusionary Rule would be inappropriate under the facts of the instant
case. The court therefore orders that only the evidence seized from the
moment that Officer Sedberry ordered the Defendant to return to his vehicle
until the time of the arrival of the uniformed officers shall be suppressed.
The court will not apply the “fruit of the poisoned tree” doctrine to exclude
any other evidence obtained on the night of the Defendant’s arrest.
Appellant’s App. p. 14-15.
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Ervin now brings this interlocutory appeal.2
DISCUSSION AND DECISION
As set forth above, Ervin contends that the trial court should have suppressed all
of the evidence that was obtained as a result of the incident. Ervin argues that the
exclusionary rule under the Fourth Amendment to the United States Constitution applies
here and the trial court erred in concluding that only a portion of the evidence that related
to Officer Sedberry’s interaction with him should have been suppressed.
Relevant to our discussion in resolving this issue, is an examination of Indiana
Code section 9-30-2-2, the statute that the trial court relied upon in its order denying
Ervin’s motion to suppress:
A law enforcement officer may not arrest or issue a traffic information and
summons to a person for a violation of an Indiana law regulating the use
and operation of a motor vehicle on an Indiana highway or an ordinance of
a city or town regulating the use and operation of a motor vehicle on an
Indiana highway unless at the time of the arrest the officer is:
(1) wearing a distinctive uniform and a badge of authority; or
(2) operating a motor vehicle that is clearly marked as a police vehicle;
that will clearly show the officer or the officer’s vehicle to casual
observations to be an officer or a police vehicle. This section does not
apply to an officer making an arrest when there is a uniformed officer
present at the time of the arrest.
2
On August 9, 2011, the trial court granted Ervin’s petition to certify the question for interlocutory
appeal. We accepted jurisdiction of the interlocutory appeal on October 11, 2011.
5
The purpose of this statute is to protect drivers from police impersonators and to
protect officers from resistance should they not be recognized as officers. Davis v. State,
858 N.E.2d 168, 172 (Ind. Ct. App. 2006). The statute seeks to help distinguish law
enforcement officers from those individuals on our highways who, for illicit purposes,
impersonate law enforcement officers. Maynard v. State, 859 N.E.2d 1272, 1274 (Ind.
Ct. App. 2007).
In this case, the sole basis that Ervin advanced in support of his motion to suppress
was Officer Sedberry’s alleged violation of Indiana Code section 9-30-2-2. Ervin makes
no claim that his constitutional rights were violated. Rather, Ervin maintains that he was
illegally arrested under this statute because Officer Sedberry was not in uniform or
driving a marked police vehicle at the time of the incident.
The undisputed evidence is that Officer Sedberry was not on duty and was not
wearing a police uniform or driving a police vehicle when the encounter occurred. Tr. p.
11-12. And Officer Sedberry was following Ervin in his vehicle to keep dispatch
apprised of Ervin’s location. Id. at 13-14, 33-34. He did not stop Ervin and did nothing
to indicate that Ervin should pull over. Rather, as mentioned above, Ervin, of his own
accord, abruptly pulled over and stopped his vehicle in a neighborhood. Ervin then
approached Officer Sedberry’s vehicle in an aggressive, confrontational manner, with his
arms up in the air and shouting.
Officer Sedberry testified that out of concern for his and his family’s safety, he
exited his vehicle and pointed the pistol at Ervin. At that time, Officer Sedberry
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identified himself as a police officer and ordered Ervin back to his vehicle. Within
minutes, uniformed police officers arrived and conducted their own investigation that led
to Ervin’s arrest and charge for operating a motor vehicle while intoxicated.
Given these circumstances and notwithstanding the trial court’s conclusion to the
contrary, we cannot say that Indiana Code Section 9-30-2-2 was implicated to the extent
that the evidence in this case should be suppressed. More specifically, the statute
provides that an officer may not arrest a person “for a violation of an Indiana law
regulating the use and operation of a motor vehicle on an Indiana highway” unless the
officer is in uniform or a marked police vehicle. I.C. § 9-30-2-2.
At no time did Officer Sedberry arrest Ervin for violating a law regulating the use
of a motor vehicle. Rather, it is apparent that Officer Sedberry’s acts of drawing his
weapon and pointing the gun at Ervin were in response to the threatening and aggressive
behavior that Ervin initiated, and his purpose was to keep Ervin away from his family to
ensure their safety.
As a result, because Indiana Code section 9-30-2-2 is not implicated in these
circumstances and Ervin does not contend that his constitutional rights were violated in
this instance, the trial court properly determined that the evidence seized by the
uniformed on-duty police officers should not be suppressed. Thus, we affirm the
judgment of the trial court in this regard and remand this cause for trial.
The judgment of the trial court is affirmed and this cause is remanded for trial.
KIRSCH, J., and BROWN, J., concur.
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