State of Indiana v. Molly Gray , 2013 Ind. App. LEXIS 566 ( 2013 )

Nov 13 2013, 7:14 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
GREGORY F. ZOELLER MICHAEL H. HAGEDORN
Attorney General of Indiana Hagedorn Law Office
Tell City, Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Plaintiff, )
)
vs. ) No. 62A01-1303-CR-108
)
MOLLY GRAY, )
)
Appellee-Defendant. )
INTERLOCUTORY APPEAL FROM THE PERRY CIRCUIT COURT
The Honorable M. Karen Werner, Judge
Cause No. 62C01-1208-FD-545
November 13, 2013
OPINION – FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Cannelton Police Department Officer Micah Jackson initiated a traffic stop of
Appellee-Defendant Molly Gray, during which he conducted a free-air canine sniff
around Gray’s vehicle. After the canine alerted to the presence of contraband, Officer
Jackson searched the vehicle and found a bag of methamphetamine. Appellant-Plaintiff
the State of Indiana charged Gray with Class D felony possession of methamphetamine.
(App. 1, 10) Gray filed a motion to suppress the evidence, arguing that (1) the initial stop
was pretextual and without cause and (2) that Officer Jackson lacked reasonable
suspicion to delay the traffic stop in order to conduct a canine sniff, in violation of the
Fourth Amendment. (App. 2, 25) The trial court granted the motion, and the State now
appeals. Without addressing the validity of the initial stop, we conclude that the free-air
canine sniff was not conducted incidental to the traffic stop and so required reasonable
suspicion to justify increasing the duration of the stop. Finding that Officer Jackson
lacked reasonable suspicion, we hold that the seizure was a violation of the Fourth
Amendment and that the trial court did not err in suppressing the evidence. We affirm.
STATEMENT OF THE FACTS
At approximately 3:00 a.m. on August 13, 2012, Officer Jackson witnessed a
white van, operated by Gray, fail to signal while making a right-hand turn. (Tr. 7) Due to
the early morning hour, Officer Jackson began to follow the van, watching for signs of
impairment. (Tr. 7) After pacing the van for roughly a mile, Officer Jackson estimated
Gray’s speed to be approximately sixty-three or sixty-four miles per hour. (Tr. 8, 10)
Officer Jackson did not use a radar to determine Gray’s speed but had received
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certification to estimate speed by pacing vehicles. (Tr. 23) Upon entering a fifty-five-
mile-per-hour zone, Officer Jackson noticed Gray was traveling faster than the posted
speed limit and initiated a traffic stop. (Tr. 10, 24) Officer Jackson radioed dispatch at
3:04 a.m. to notify them of the stop. (Tr. 10, 28)
Officer Jackson approached the vehicle; informed Gray of the reason for the stop;
and asked for her driver’s license, registration, and proof of insurance. (Tr. 11) Officer
Jackson returned to his car, placed Gray’s information on the seat and began removing
his canine, Erik, from the back of the car with the intention of conducting a free-air sniff
of Gray’s vehicle. (Tr. 11) Officer Jackson explained in his testimony that he decided to
use the drug-detection dog because he “actually received information from another
officer, actually employed by the Tell City Police Department, just I believe it was the
day before, night before … that [Gray] had been involved in em the activity of illegal
narcotics.” Tr. p. 12. Officer Jackson had no knowledge regarding the specifics or source
of the information. (Tr. 12, 26)
Officer Jackson chose not to run the standard license/warrant check or report
Gray’s information to dispatch prior to the free-air sniff because of Gray’s connection to
local law enforcement. Specifically, Gray’s brother-in-law is a Perry County Sheriff’s
Deputy and Gray’s sister is employed as a dispatcher for the Tell City Police Department.
Both siblings were working at the time of the stop and Officer Jackson feared the siblings
might interfere in the investigation. (Tr. 12-13, 26)
After removing Erik from the patrol car, Officer Jackson allowed him to “use the
bathroom for just a brief amount of time” before beginning the sniff of Gray’s vehicle.
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Tr. p. 14. Officer Jackson walked Erik around Gray’s vehicle twice and Erik alerted to
the presence of narcotics on the driver’s side front window and the rear passenger side
door. (Tr. 16-18) Officer Jackson then rewarded Erik by playing with him for a couple
minutes before returning him to the squad car. (Tr. 32-33) Officer Jackson estimated that
the canine sniff process lasted approximately one-and-a-half to two minutes. (Tr. 18)
Officer Jackson reported to dispatch at 3:10 a.m. that Erik had alerted to drugs in Gray’s
vehicle and that Jackson was going to search the vehicle. (Tr. 28) Officer Jackson then
conducted a search of the vehicle and found a small clear plastic baggie located under a
floor board containing a white substance which was later identified as methamphetamine.
(Tr. 19) Officer Jackson ran the routine checks on Gray’s license and registration after
the search of her vehicle was completed. (Tr. 29) The record is silent as to whether
Officer Jackson cited Gray for a traffic violation.
DISCUSSION AND DECISION
Standard of Review
In reviewing a trial court’s ruling on the admissibility of evidence resulting from
an allegedly illegal search, we do not reweigh the evidence, we consider conflicting
evidence in a light most favorable to the trial court’s ruling, and we defer to the trial
court’s factual determinations unless clearly erroneous. Meredith v. State, 906 N.E.2d
867, 869 (Ind. 2009). However, we will “consider afresh any legal question of the
constitutionality of a search or seizure.” Id.Gray contends that both the initial stop and the subsequent search of her vehicle
were invalid. We conclude that even assuming the initial stop was valid, the subsequent
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search was not. We focus our analysis solely on the search.
Reasonable Suspicion to Delay Traffic Stop
In Illinois v. Caballes, the United States Supreme Court addressed “whether the
Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-
detection dog to sniff a vehicle during a legitimate traffic stop.” 543 U.S. 405, 407
(2005). The Court held that articulable suspicion is not required when a dog sniff is
conducted simultaneously to a traffic stop so long as the traffic stop is not extended
beyond the time necessary to issue a warning ticket and to conduct ordinary inquiries
incident to such a stop. Id. at 409.
We recently addressed the Caballes decision in Bush v. State, and the same course
of analysis is appropriate in the present case. Bush v. State, 925 N.E.2d 787, decision
clarified on reh’g, 929 N.E.2d 897 (Ind. Ct. App. 2010). In Bush, we addressed when
reasonable suspicion is required for a canine sniff:
Because the State failed to show that either the canine sniff was conducted
while the purpose of the traffic stop was ongoing or the canine sniff did not
materially increase the duration of the stop, we conclude the canine sniff
was not justified as an incident of the stop. Therefore, we must determine
whether the officers had reasonable suspicion.
Id at 791. In Bush, we summarized several Indiana dog sniff cases which are analogous to
the present case and which we outline below for context.
Cases applying Caballes fall into two groups, neither of which is on
all fours with the facts of this case. In one group of cases, facts in the
record and reasonable inferences therefrom showed the canine sniff took
place before the purpose of the traffic stop was complete. See State v.
Gibson, 886 N.E.2d 639, 642 n.4 (Ind. Ct. App. 2008) (noting trial court’s
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unchallenged finding canine unit arrived on the scene while officer was
writing defendant a traffic ticket); [Myers v. State, 839 N.E.2d 1146, 1150
(Ind. 2005)] (supreme court accepted trial court’s findings that canine sniff
began thirteen minutes after vehicle was pulled over and “occurred while
the traffic stop was ongoing,” that is, while defendant was having the traffic
citation explained to him); see also United States v. Carpenter, 406 F.3d
915, 916 (7th Cir. 2005) (canine unit took no more than five minutes to
arrive and did arrive while officer was giving defendant a ticket for evading
red light). In these cases, the canine sniff was a proper incident to a valid
traffic stop and, as such, was consistent with the Fourth Amendment absent
reasonable suspicion. See 406 F.3d at 917; 886 N.E.2d at 642; 839 N.E.2d
at 1150.
In two other cases, the record was clear that the purpose of the traffic
stop was complete before the canine sniff began or that officers
significantly prolonged the stop in order for the canine unit to arrive. See
Wells v. State, 922 N.E.2d 697, 700 (Ind. Ct. App. 2010) (canine unit
summoned only after officer obtained all information needed to write traffic
ticket, and canine unit arrived “nearly twenty minutes after [defendant]’s
traffic stop could have been completed and almost forty minutes after it
began”); Wilson v. State, 847 N.E.2d 1064, 1066 (Ind. Ct. App. 2006)
(warrant check was completed at 1:58 a.m., warning tickets were written at
2:06 a.m., and canine unit was summoned at 2:15 a.m., only after defendant
declined consent to search car). In both cases, this court concluded the
canine sniff significantly prolonged the defendants’ detention, which,
because it was unsupported by reasonable suspicion of criminal activity,
violated the Fourth Amendment. See Wells, 922 N.E.2d at 700 (“there does
not appear to be any serious dispute that the length of [defendant]’s traffic
stop was substantially lengthened by the call for the K-9 and subsequent
dog sniff”); Wilson, 847 N.E.2d at 1067 (“As the warning tickets were
written some time before the dog arrived, it is apparent that [the officer]
could have completed the traffic stop sooner than he did”).
Id. at 790-791.
The facts of the present case are distinct from the aforementioned cases. Those
cases involved an officer initiating a traffic stop and subsequently calling for a canine
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unit to assist and perform a dog sniff. Also, the dog sniffs in those cases were conducted
either simultaneously to the traffic violation (by a second officer) or after the traffic stop
was completed and the ticket had been issued. In the present case, Officer Jackson did
not call a second officer to assist and chose to suspend the traffic stop in order to perform
the canine sniff himself. Officer Jackson testified that he postponed the “normal traffic
stop” procedure (performing checks on driver license, license plate and outstanding
warrants) in order to conduct the canine sniff. Tr. p. 25-26.
The scope of a detention must be strictly tied to and justified by the circumstances
which rendered its initiation permissible. Florida v. Royer, 460 U.S. 491, 500 (1983)
(citing Terry v. Ohio, 392 U.S. 1, 19 (1968)). The State has the burden to show that any
detention was sufficiently limited in scope to its underlying justification. Id., 460 U.S. at
500. Once a justifiable stop is made, the scope of the officer’s investigation may be
broadened beyond the purpose for which the person was stopped only if additional
particularized and objective suspicions come to light. United States v. Finke, 85 F.3d
1275, 1280 (7th Cir. 1996); United States v. Kitchell, 653 F.3d 1206, 1218-19 (10th Cir.
2011), cert. denied; United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993).
Although additional suspicion would not be required to perform free-air sniff search,
Caballes, 543 U.S. at 409, suspicion would be required for any additional seizure that the
dog sniff caused.
Here, as in Bush, the State failed to present sufficient evidence to support a finding
“that the duration of the stop in this case was entirely justified by the traffic offense and
the ordinary inquiries incident to such a stop.” Bush, 925 N.E.2d at 791 (quoting
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Caballes, 543 U.S. at 408, 125 S.Ct. 834). Assuming that the seizure was lawful in its
inception, it appears that, as Gray argues, the stop was sustained solely for the purpose of
pursuing a narcotics investigation rather than a traffic violation. The ordinary inquiries
incident to a traffic stop were suspended almost immediately, and there is no evidence
that Officer Jackson ever wrote Gray a ticket for a traffic violation. Still, the
constitutional reasonableness of a traffic stop does not depend on the actual motivations
of the individual officers involved. Whren v. United States, 517 U.S. 806, 813 (1996).
Regardless of the underlying purpose of the seizure, the traffic stop was delayed
by the dog sniff. In each of the above-mentioned dog-sniff cases that found the search
valid, the duration of the traffic stop was not extended at all by the dog sniff. The dog
sniff of Gray’s vehicle is more analogous to Wells and Wilson because there was a
separate seizure outside the scope of the traffic stop. As the court in Wilson mentioned,
“it is apparent that [the officer] could have completed the traffic stop sooner than he did.”
847 N.E.2d at 1067. The same is true in this case. The free-air sniff of Gray’s vehicle
lasted approximately two to six minutes.1 Even assuming the two minute estimate is
accurate, the delay amounts to an increase in the duration of the seizure for purposes
outside the scope of the traffic stop. To hold otherwise would fulfill Justice Ginsburg’s
fears that “every traffic stop could become an occasion to call in the dogs,” so long as the
dog sniff is performed quickly. Caballes, 543 U.S. at 422 (Ginsburg J., dissenting).
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There was a factual issue regarding the length of the canine sniff. The dispatch report indicated
that Officer Jackson initiated the traffic stop at 3:04 a.m. and notified dispatch of the canine alert at 3:10
a.m. Officer Jackson estimated that two minutes elapsed between the time he removed Erik from the car
to the time he returned him to the car.
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Upon deciding that the dog sniff was not incidental to the traffic stop, we must
determine whether Officer Jackson had reasonable suspicion that Gray was engaged in
criminal activity so as to justify prolonging Gray’s detention. Bush, 925 N.E.2d at 791.
“Reasonable suspicion is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence, but it still
requires at least a minimal level of objective justification and more than an inchoate and
unparticularized suspicion or ‘hunch’ of criminal activity.” State v. Schlechty, 926 N.E.2d
1, 7 (Ind. 2010) (citing Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000)). “Thus, a
reviewing court must examine the totality of circumstances of each case to see whether
the detaining officer has a particularized and objective basis for suspecting legal
wrongdoing.” Bush, 925 N.E.2d at 791.
The tip Officer Jackson received from the Tell City police officer was the only
purported reason to suspect Gray of criminal activity prior to the dog sniff.
Under the collective or imputed knowledge doctrine, an arrest or search is
permissible where the actual arresting or searching officer lacks the specific
information to form the basis for probable cause or reasonable suspicion
but sufficient information to justify the arrest or search was known by other
law enforcement officials initiating or involved with the investigation… A
primary focus in the imputed knowledge cases is whether the law
enforcement officers initiating the search or arrest, on whose instructions or
information the actual searching or arresting officers relied, had
information that would provide reasonable suspicion or probable cause to
search or arrest the suspect.
U.S. v. Colon, 250 F.3d 130, 135-36 (2d Cir. 2001). This “collective knowledge” concept
was endorsed by the United States Supreme Court in U.S. v. Hensley, 469 U.S. 221, 232–
33 (1985). Officer Jackson did not need to know the particulars of the source of the tip to
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have reasonable suspicion to conduct a free-air sniff. Rather, the question is whether the
Tell City police officer would have had reasonable suspicion in the same situation based
on the tip information. United States v. Williams, 627 F.3d 247, 252 (7th Cir. 2010) (“In
order for the collective knowledge doctrine to apply … the officer providing the
information—or the agency for which he works—must have facts supporting the level of
suspicion required.”)
The State offered no evidence as to the original source of the information. The
State failed to call the Tell City police officer to testify or even identify that officer by
name. Moreover, the tip itself lacked detail, providing only a vague indication that Gray
was involved with illegal narcotics. Without more, there is no way to determine whether
the officers had sufficient information to meet the reasonable suspicion standard.
Although we found no Indiana cases with similar factual circumstances, there are
several such cases among other jurisdictions. In State v. Dukes, 630 S.E.2d 847 (Ga. Ct.
App. 2006), an anonymous tip to a patrol officer was relayed to the Georgia Drug Task
Force, which conducted a search and seizure based on the information. The Court of
Appeals of Georgia found that whether the Task Force had reasonable suspicion for the
search was determined based on the reliability of the anonymous tip. Id. The court
acknowledged that there was a “complete absence of evidence about the source of the
report,” and that it had “no way of knowing whether it came from a concerned citizen, a
confidential informant, or an anonymous tipster.” Id. at 250. As such, the court
concluded that the tip was of “unknown reliability” and thus would not provide
reasonable suspicion without additional corroborating evidence (essentially treating it as
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an anonymous tip). Id. See also State v. Matthews, 942 A.2d 797 (N.J. Super. Ct. App.
Div. 2008) (concluding that a search was unlawful for lack of reasonable suspicion where
officers conducted search of vehicle after receiving information from dispatch who had
received anonymous tip).
Treating the information Officer Jackson received from the Tell City officer as an
anonymous tip, we find that it was insufficient to provide reasonable suspicion. The
United States Supreme Court distinguished between tips received from anonymous
sources and those received from identified informants. Florida v. J.L., 529 U.S. 266, 270
(2000). Anonymous tips are generally less reliable than tips from known informants and
can form the basis for reasonable suspicion only if accompanied by specific indicia of
reliability, such as evidence corroborating the accuracy of the tip or additional reasons to
suspect criminal activity. Id. There was no corroborating evidence in this case which
would lend more reliability to the tip. During the stop, Officer Jackson did not notice any
suspicious signs or behavior about Gray or her vehicle (e.g., abnormal odors, indicators
of impairment, nervousness, furtive movements). Moreover, there were no specific
details about the tip which Officer Jackson could have used to verify its reliability. The
State offered no reason why it did not call the Tell City police officer or why it could not
provide more detailed information regarding the source of the tip.
Without reasonable suspicion, the canine sniff and subsequent search of Gray’s
vehicle were violations of Gray’s Fourth Amendment rights. Accordingly, we affirm the
decision of the trial court to suppress the evidence recovered during the search.
The judgment of the trial court is affirmed.
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BAILEY, J., and MAY, J., concur.
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