Justin Danh v. State of Indiana ( 2020 )

FILED
Mar 12 2020, 10:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Shay J. Hughes Curtis T. Hill, Jr.
Tippecanoe Public Defender’s Office Attorney General of Indiana
Lafayette, Indiana
Megan M. Smith
Courtney Staton
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin Danh, March 12, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1148
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1809-F3-26
May, Judge.
[1] Justin Danh appeals the denial of his motion to suppress. He argues the trial
court abused its discretion when it denied his motion to suppress the evidence
found during the search of his vehicle because the search of his vehicle violated
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his Fourth Amendment right against unreasonable search and seizure.
Specifically, Danh argues (1) the officer did not have reasonable suspicion to
perform a patdown search of him or a canine sniff of his vehicle and (2) the dog
sniff search of Danh’s car unreasonably prolonged the duration of the traffic
stop. We affirm.
Facts and Procedural History 1
[2] On December 12, 2017, Officer Keifer Mikels, a Purdue University Police
Officer, was dispatched to McCutcheon Hall, located on Purdue University’s
campus, when an anonymous caller reported a resident of the dormitory was
using drugs. Upon his arrival at the room where the activity was reported,
Officer Mikels deployed his K9, who alerted to the presence of narcotics in the
room. Officer Mikels was unable to make contact with the residents of the
room at that time and went to the front desk to inquire as to the names of the
room’s residents. The front desk indicated Justin Danh and his roommate,
Calvin, lived there.
[3] Officer Mikels returned on January 14, 2018, to continue the investigation and
spoke with Calvin, who expressed concern over Danh’s alleged narcotics
activity but would not allow Officer Mikels to search the room. Officer Mikels
1
We held oral argument in this appeal on February 11, 2020, at Indiana State University. We thank counsel
for their able presentations, and we thank the staff and students of Indiana State University for their attention
and hospitality.
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did not submit a report on this investigation, and there is nothing in the record
indicating he spoke with Danh during this time.
[4] At some point between August 21, 2018, and September 11, 2018, Officer
Mikels read a report drafted by West Lafayette Police Department (“WLPD”)
Officer Michael Max that indicated Officer Max spoke with Danh’s new
roommate, Tristin Moreno, on August 21, 2018. Moreno reported to Officer
Max that Danh had been using drugs and had shown Moreno a handgun that
Moreno described as a Chippewa Model 1911, .22 caliber handgun that was
either blue or black with a wooden grip and a missing rear sight. Moreno stated
Danh’s girlfriend, Alexis, also saw the gun and Danh stored the gun behind the
headboard of his bed. Moreno told the officer that Danh told Moreno that the
gun was stolen. Moreno had touched the gun and was concerned he would get
in trouble with the police.
[5] The report also indicated Moreno called shortly after his interview with Officer
Max to report that, when he returned home, Danh’s bedroom door was open
and the bed had been moved, indicating the handgun stored there might not be
at the apartment. Approximately five hours later, Moreno’s father called the
police to report that Moreno had entered Danh’s room but had not located the
gun; instead, Moreno found .22 caliber ammunition and a bag of pills.
According to the report, Moreno was to call Officer Max when Danh returned
home so Officer Max could speak to Danh. The report did not indicate if
Officer Max ever spoke to Danh. Officer Max indicated in the report that a
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handgun matching the description Moreno gave had been stolen from a nearby
pawn shop.
[6] On September 11, 2018, Officer Mikels initiated a traffic stop of Danh’s vehicle
based on the vehicle’s alleged failure to signal a turn. Officer Mikels collected
identification from Danh and his passenger, Alexis Pantig. Officer Mikels
radioed for back-up based on his belief Danh possessed the handgun from the
earlier WLPD report. Officer Mikels searched the relevant databases for
information regarding Danh and Pantig, such as the existence of a suspended
license or outstanding warrant, but Officer Mikels did not find anything.
Shortly thereafter, back-up officers arrived on scene. Officer Mikels later
testified he “suspend[ed] the original traffic infraction investigation” when the
back-up officers arrived. (Tr. Vol. II at 52.) 2
[7] Officer Mikels told a back-up officer, Sergeant Balzer, that he believed, based
on Moreno’s earlier statement, that Danh possessed an allegedly stolen firearm.
He told Sergeant Balzer that he did not smell anything when he approached the
vehicle and did not know if Danh had the firearm in his possession, but that he
also knew Danh was “dealing pills out of McCutcheon.” (State’s Ex. 2 at 06:37
– 06:38.)
[8] Officer Mikels asked Danh to exit the vehicle. After Danh exited the vehicle,
Officer Mikels performed a pat-down search. Officer Mikels asked Danh if he
2
Officer Mikels did not issue a traffic ticket or warning for Danh’s traffic infraction.
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possessed the firearm in question, and Danh denied having the firearm. Officer
Mikels asked Danh if he could search Danh’s vehicle, and Danh did not
consent to a search.
[9] Officer Mikels continued his conversation with Danh, discussing Danh’s recent
arrest for operating a vehicle while intoxicated. Sergeant Balzer removed
Pantig from the vehicle and conducted a canine search of Danh’s vehicle. The
canine alerted to the presence of drugs. The officers searched Danh’s vehicle
and found Xanax and marijuana. Danh admitted that he had prescription
drugs in the car for which he did not have a valid prescription. Police then
placed Danh under arrest and administered his Miranda 3 warnings. Danh
admitted possessing the handgun in question, but he indicated the handgun was
located at his apartment. Danh gave police permission to search his apartment.
Officers then searched Danh’s apartment where they found a handgun and
additional Xanax and marijuana.
[10] On September 11, 2018, the State charged Danh with Level 3 felony dealing a
schedule IV controlled substance, 4 Level 6 felony possession of a controlled
substance, 5 Level 6 felony maintaining a common nuisance, 6 Class A
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Ind. Code § 35-48-4-3(a)(1).
5
Ind. Code § 35-48-4-7(a).
6
Ind. Code § 35-45-1-5(c).
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misdemeanor possession of a controlled substance, 7 and Class B misdemeanor
possession of marijuana. 8 On December 18, 2018, Danh filed a motion to
suppress the evidence found as part of the vehicle and apartment searches. On
March 1, 2019, the trial court held a hearing on the matter and denied Danh’s
motion on April 17, 2019. On April 24, 2019, Danh filed a motion for
certification of interlocutory appeal, which the trial court granted. On May 22,
2019, Danh filed a motion for this court to accept the interlocutory appeal,
which we granted.
Discussion and Decision
[11] Our standard of review for the denial of a motion to suppress evidence is similar
to that of other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct.
App. 2003), reh’g denied, trans. denied. We determine whether there is
substantial evidence of probative value to support denial of the motion. Id. We
do not reweigh the evidence, and we consider conflicting evidence in a light
most favorable to the trial court’s ruling. Id. However, the review of a denial of
a motion to suppress is different from other sufficiency matters in that we must
also consider uncontested evidence that is favorable to the defendant. Id. We
7
Ind. Code § 35-48-4-7(a).
8
Ind. Code § 35-48-4-11(a)(1).
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review de novo a ruling on the constitutionality of a search or seizure. Campos v.
State, 885 N.E.2d 590, 596 (Ind. 2008).
[12] The Fourth Amendment to the United States Constitution protects citizens
against unreasonable searches and seizures by prohibiting them without a
warrant supported by probable cause. To deter State actors from violating that
prohibition, evidence obtained in violation of the Fourth Amendment generally
is not admissible in a prosecution of the citizen whose right was violated. Clark
v. State, 994 N.E.2d 252, 260 (Ind. 2013). The State has the burden of
demonstrating the admissibility of evidence collected during a seizure or search.
Id.
[13] A traffic stop is a seizure that must comply with the Fourth Amendment.
McLain v. State, 963 N.E.2d 662, 666 (Ind. Ct. App. 2012), trans. denied. It is
well-settled that a traffic stop “must be supported by, at least, reasonable
suspicion that a traffic law has been violated or other criminal activity is afoot.”
Bush v. State, 925 N.E.2d 787, 790 (Ind. Ct. App. 2010), clarified on reh’g 929
N.E.2d 897 (Ind. Ct. App. 2010). An officer may stop and briefly detain an
individual for investigatory purposes if, based upon specific and articulable
facts, the officer has a reasonable suspicion of criminal activity, even if the
officer lacks probable cause to make an arrest. Armfield v. State, 918 N.E.2d
316, 319 (Ind. 2009).
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1. Reasonable Suspicion
[14] An officer may perform a brief investigatory stop when, based on the totality of
the circumstances, the officer has a reasonable, articulable suspicion that
criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968).
Reasonable suspicion is a less demanding standard than probable
cause, not only in the sense that reasonable suspicion can be
established with information that is different in quantity or
content than that required to establish probable cause, but also in
the sense that reasonable suspicion can arise from information
that is less reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110
L. Ed. 2d 301 (1990). Even though different, reasonable
suspicion, like probable cause, is dependent upon both the
content of information possessed by police and its degree of
reliability. Id. “Both factors—quantity and quality—are
considered in the ‘totality of the circumstances—the whole
picture that must be taken into account when evaluating whether
there is reasonable suspicion.’” Id. (quoting United States v.
Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621
(1981)).
Washburn v. State, 868 N.E.2d 594, 601 (Ind. Ct. App. 2007), trans. denied.
A. Nature of Tip
[15] In examining the totality of the circumstances herein, we first consider whether
Moreno’s tip regarding Danh’s possession of a firearm and pills was
anonymous or that of a concerned citizen. Reasonable suspicion can be based
on “an anonymous informant’s tip if other facts establish reliability or the basis
of the informant’s knowledge.” Hardister v. State, 849 N.E.2d 563, 570 (Ind.
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2006). “Corroboration is ordinarily necessary where nothing the tipster said
shows either reliability or the informant’s basis of knowledge.” Id.
[16] However, when a “concerned citizen” offers a tip of criminal activity, the
reviewing court is to determine whether there existed reasonable suspicion
based on a totality of the circumstances. Russell v. State, 993 N.E.2d 1176, 1180
(Ind. Ct. App. 2013). In doing so, the court considers:
1) whether the citizen has personally witnessed the reported
crime, 2) whether the police subsequently corroborate details of
the citizen’s report, 3) whether the citizen has identified herself
and thereby subjected herself to civil liability or prosecution for
false reporting, and 4) the absence of circumstances casting the
citizen’s reliability into question.
Trimble v. State, 842 N.E.2d 798, 803-4 (Ind. 2006), adhered to on reh’g at 848
N.E.2d 278 (Ind. 2006). “[W]hen a citizen volunteers information to the
police, there may be more reason to believe that the information is reliable
because informants who come forward voluntarily are ordinarily motivated by
good citizenship or a genuine effort to aid law enforcement officers in solving a
crime.” Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010).
[17] Danh argues Moreno’s tip was anonymous, such that Officer Mikels was
required to corroborate the tip. Danh likens the facts of his case to those in
State v. Glass, 769 N.E.2d 639, 644 (Ind. Ct. App. 2002), trans. denied, where we
held that an anonymous tip without separate corroboration by the officer was
not sufficient to establish reasonable suspicion for an investigatory stop. In
Glass, the officer received a report of a suspicious vehicle driving recklessly. Id.
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at 640. The officer did not know the caller’s identity, but dispatch indicated it
knew the caller and the caller had provided a description of the vehicle.
[18] The officer observed Glass driving the vehicle described and followed the
vehicle for one block. Id. The officer did not observe any traffic violations, but
based on the tip, he initiated a stop of the vehicle. When the officer stopped
Glass, he noticed Glass was shaking and his driver’s license was expired. As
part of a patdown search, the officer discovered a “hard rectangular-shaped
object in the front groin area of Glass’s trousers.” Id. That item was later
identified as a box containing a green leafy substance and a smoking device. Id.
at 641. Based thereon, the officer arrested Glass and the State charged Glass
with several offenses related to marijuana possession and driving under the
influence.
[19] Glass filed a motion to suppress, arguing “the detention and search occurred
without reasonable suspicion.” Id. The trial court granted his motion to
suppress because the caller was anonymous and the officer had not observed
anything to corroborate the tip that Glass was driving recklessly. The State
appealed, arguing the officer had reasonable suspicion because dispatch knew
the name of the caller, and thus the call was not anonymous. We disagreed and
held the officer did not have reasonable suspicion because while the State
provided evidence that “the caller described a car sufficiently to permit [the
officer] to identify a similar vehicle[,]” the officer did not “personally observe
facts to verify the reliability of the caller or the reliability of the significant
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information provided by the caller. To the extent that the caller predicted
future conduct, it did not occur.” Id. at 644.
[20] The State argues Officer Mikels had significantly more information than the
officer in Glass, and we agree. The tip from Moreno was not anonymous.
Moreno “made an in-person police report” and identified himself to police
when providing the information about the gun he saw in Danh’s possession.
(App. Vol. II at 51.) Officer Michael Max of the WLPD recorded Moreno’s
address, 9 as well as Danh’s date of birth. Moreno told Officer Max that he had
known Danh “for several years as they went to high school together.” (State’s
Ex. 1.) In addition, Moreno stated, “after he had moved in with Danh he
found out he drinks a lot and is using drugs.” (Id.)
[21] Moreno told Officer Max that the day before at approximately 6:00 p.m., Danh
had asked Moreno to come to Danh’s room where Danh retrieved a handgun
from behind his bed and showed it to Moreno. Moreno provided the type and
color of the handgun and reported “Danh told him the gun was clean and no
bodies were attached to it but the gun was stolen.” (Id.) Moreno was
concerned that his fingerprints would be on the gun because Danh had handed
it to him during their conversation.
9
There is a portion of the report that is redacted; based on the location of the information and a similar
formatting with regards to Danh, the redacted portion of the report is Moreno’s birthdate.
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[22] After his initial report at the police station, Moreno called Officer Max and told
him that when Moreno arrived home, he noticed Danh’s bedroom door open
and Danh’s bed moved and, therefore, Moreno “had no idea where the gun
could be now.” (Id.) Moreno told Officer Max he would call when Danh
returned home and he also provided Officer Max with Danh’s schedule. Later
that day, Moreno’s father called Officer Max and reported that Moreno had
entered Danh’s room and found ammunition and a bag of pills in Danh’s
closet. Based on the specificity of the tip provided by Moreno, and the personal
information provided to police for follow up, we conclude Moreno’s tip was
that of a concerned citizen. See Kellems v. State, 842 N.E.2d 352, 355-6 (Ind.
2006) (citizen’s 911 call including name, date of birth, and address was
sufficient to consider her tip as one from a concerned citizen as the information
provided opened the citizen to criminal prosecution should her report have been
false), rev’d on reh’g on other grounds 849 N.E.2d 1110, 1114 (Ind. 2006).
B. Staleness of Information
[23] When assessing whether Officer Mikels had reasonable suspicion to initiate an
investigatory stop of Danh based on his alleged possession of a firearm or
drugs, we also consider whether the information Officer Mikels used to
formulate that reasonable suspicion was stale. See Washburn, 868 N.E.2d at 601
(staleness of information included in totality of the circumstances analysis when
determining the existence of reasonable suspicion). Here, the information
obtained from Moreno was approximately three weeks old, and some of that
information, specifically regarding Danh’s drug use and possession,
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corroborated an investigation Officer Mikels personally conducted nine months
prior in a Purdue University residence hall where Danh lived.
[24] Even though Moreno’s tip was approximately three weeks old, it was specific
and Moreno provided multiple personal details as to avail himself to criminal
prosecution should his report be found false. Some of the details given by
Moreno, specifically regarding Danh’s drug use and the type of gun Danh
showed Moreno, were corroborated by other investigations. Based on the
totality of the circumstances, we conclude Officer Mikels had reasonable
suspicion that Danh possessed a firearm and illegal substances, which justifies
the patdown search of Danh and the dog sniff of Danh’s vehicle. See Teague v.
State, 891 NE.2d 1121, 1130 (Ind. Ct. App. 2008) (totality of circumstances,
including reliability of tip and staleness of information, sufficient to provide
reasonable suspicion).
2. Dog Sniff
[25] A “dog sniff” sweep of a vehicle is not a search protected by the Fourth
Amendment. Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). When a dog
sniff occurs incident to a legitimate traffic stop and does not prolong the stop
beyond what is necessary to complete the purpose of the traffic stop, no
reasonable suspicion of drug-related activity is required. Bush, 925 N.E.2d at
790. If a dog sniff occurs after the completion of a traffic stop, an officer must
have reasonable suspicion of criminal activity in order to proceed thereafter
with an investigatory detention. Bradshaw v. State, 759 N.E.2d 271, 273 (Ind.
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Ct. App. 2001). The critical facts in determining whether a vehicle was legally
detained at the time of the canine sweep are whether the traffic stop was
concluded and, if so, whether there was reasonable suspicion at that point to
continue to detain the vehicle for investigatory purposes. Id. at 273-4. The
burden is on the State to show the time for the traffic stop was not increased
due to the canine sweep. Id. In assessing whether a detention is too long in
duration, we examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly. Id.
[26] Here, Officer Mikels testified at the suppression hearing that he suspended the
purpose of the traffic stop once back-up officers arrived on scene. Additionally,
as discussed supra, Officer Mikels had reasonable suspicion that Danh possessed
illegal substances based on his prior investigation at McCutcheon Hall and
Moreno’s tip, which indicated Danh was using drugs and had a bag of pills in
Danh’s closet. Therefore, we need only consider whether the dog sniff of
Danh’s vehicle unreasonably prolonged the traffic stop. We conclude it did
not.
[27] Looking at the chronology of the traffic stop as portrayed in the dashcam video
provided in State’s Exhibit 1, approximately three minutes elapsed between the
time Officer Mikels initiated the traffic stop and Officer Mikels returned to his
car to run checks on Danh and Pantig’s licenses. Two minutes later, back-up
officers arrived on scene, at which time Officer Mikels testified he suspended
the purpose of the traffic stop. One and one-half minutes later, Danh exited his
vehicle for Officer Mikels to perform a patdown search; that search was
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completed in thirty seconds. Officer Mikels then engaged in conversation with
Danh regarding his alleged possession of a firearm and an earlier traffic
violation. He informed Danh that he would be completing a canine sniff of his
vehicle, and he asked Danh if Danh would give permission to search his
vehicle. Danh declined, and two minutes after Officer Mikels completed the
patdown search of Danh, a canine officer began a sniff search of Danh’s
vehicle. Ten seconds after the beginning of that search, the canine alerted to
illegal substances in Danh’s vehicle. These events lasted less than ten minutes
total, and the dog sniff prolonged any investigation by slightly over two
minutes. Based thereon, we cannot say the dog sniff search of Danh’s car,
which was supported by reasonable suspicion, unreasonably delayed the traffic
stop and violated Danh’s Fourth Amendment rights. See Doctor v. State, 57
N.E.3d 846, 855-6 (Ind. Ct. App. 2016) (concluding three to six-minute
extension of traffic stop to obtain dog sniff search was not unreasonable).
Conclusion
[28] Officer Mikels had reasonable suspicion to believe that Danh possessed a
firearm and/or illegal substances when he stopped Danh for a traffic violation.
Additionally, the canine search did not unreasonably prolong the traffic stop.
Therefore, the patdown and canine searches did not violate his Fourth
Amendment rights. Accordingly, we affirm the denial of Danh’s motion to
suppress.
[29] Affirmed.
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Baker, J., and Robb, J., concur.
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