Kyle D. Budimir v. State of Indiana ( 2023 )

FILED
Aug 23 2023, 9:06 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brooks B. C. Ledger Theodore E. Rokita
Ledger Law, P.C. Attorney General of Indiana
Logansport, Indiana
Tyler Banks
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle Budimir, August 23, 2023
Appellant-Defendant, Court of Appeals Case No.
23A-CR-17
v. Interlocutory Appeal from the
White Superior Court
State of Indiana, The Honorable Brad A. Woolley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
91D01-2107-F6-157
Opinion by Judge Bradford
Judges Riley and Weissmann concur.
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Opinion 23A-CR-17 | August 23, 2023 Page 1 of 8
[1] Kyle Budimir was riding in a vehicle driven by Bianca Roberts when Monon
Town Marshal Roger Young executed a traffic stop. Marshal Young requested
an officer with a K9. Shortly before Sergeant Joshua Shoemaker of the White
County Sheriff’s Department arrived, Marshal Young had given Budimir
permission to leave, but Budimir had not left by the time Sergeant Shoemaker
arrived. As Budimir attempted to leave, Sergeant Shoemaker instructed him to
stay, searched Budimir’s person, and found methamphetamine, drug
paraphernalia, and marijuana. The State charged Budimir with Level 6 felony
possession of methamphetamine, Class A misdemeanor possession of
paraphernalia with a prior conviction, and Class B misdemeanor possession of
marijuana. Budimir moved to suppress the evidence recovered during the
search of his person, arguing that the search had violated the Fourth
Amendment to the U.S. Constitution and Article 1, section 11, of the Indiana
Constitution. The trial court denied his motion and Budimir sought an
interlocutory appeal. Budimir argues that the trial court erred in denying his
motion to suppress. We agree and reverse.
Facts and Procedural History
[2] On July 18, 2021, Marshal Young was on patrol when he spotted a vehicle
being driven by Bianca Roberts, whose license he knew had been suspended.
After confirming with dispatch that Roberts’s license was still suspended,
Marshal Young executed a traffic stop about two blocks from Roberts’s
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residence. He also requested that an officer with a drug-sniffing K9 come to the
scene.
[3] When Marshal Young approached Roberts’s vehicle, he observed Budimir in
the front seat and two children in the back seat. Budimir told Marshal Young
that one of the children needed to use the restroom and Marshal Young agreed
to let Budimir walk the children home. “Within seconds, a minute of the
stop[,]” Sergeant Shoemaker arrived. Tr. Vol. II p. 13. When Sergeant
Shoemaker arrived, Budimir was standing outside of Roberts’s vehicle with one
of the children, beside the driver-side front bumper. Marshal Young informed
Sergeant Shoemaker that Budimir had been in Roberts’s car but did not inform
him that he had given Budimir permission to take the children home.
[4] Sergeant Shoemaker began to approach Roberts’s vehicle, and, at the same
time, the other child walked over to Budimir. As Sergeant Shoemaker reached
the driver-side door, Budimir and the two children began walking away from
the traffic stop. Sergeant Shoemaker called to Budimir, “Hey, hold up man.
Did he say you were allowed to go?” Ex. 1 at 00:08–00:15. Budimir turned to
face Sergeant Shoemaker and Roberts told Sergeant Shoemaker that Marshal
Young had given Budimir permission to take her children home. Sergeant
Shoemaker then asked Budimir if he had come out of Roberts’s car, and, after
Budimir affirmed that he had been in the car, Sergeant Shoemaker replied,
“Well, then you gotta stick around, buddy. Can you stand over there?” and
motioned to a nearby driveway. Ex. 1 at 00:27–00:31.
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[5] As the traffic stop proceeded, Sergeant Shoemaker walked his K9 around
Roberts’s vehicle, which resulted in a positive alert. As a result, Sergeant
Shoemaker performed a warrantless search of Budimir’s person, during which
Sergeant Shoemaker discovered methamphetamine, marijuana, and drug
paraphernalia. The State charged Budimir with Level 6 felony possession of
methamphetamine, Class A misdemeanor possession of paraphernalia with a
prior conviction, and Class B misdemeanor possession of marijuana.
[6] On September 2, 2022, Budimir moved to suppress the evidence that had been
discovered on his person, arguing that the search and seizure were unlawful
under the Fourth Amendment to the U.S. Constitution and Article 1, section
11, of the Indiana Constitution. On October 13, 2022, the trial court held a
hearing on Budimir’s motion. On December 13, 2022, the trial court entered its
order denying Budimir’s motion to suppress and granted his motion for
interlocutory appeal. On January 4, 2023, we accepted jurisdiction of
Budimir’s interlocutory appeal.
Discussion and Decision
[7] Our standard of review when considering the denial of a motion to suppress is
well-settled:
Our standard of review for the denial of a motion to suppress
evidence is similar to other sufficiency issues. We determine
whether substantial evidence of probative value exists to support
the trial court’s denial of the motion. We do not reweigh the
evidence and we consider conflicting evidence most favorably to
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the trial court’s ruling. However, this review is different from
other sufficiency matters in that we must also consider
uncontested evidence that is favorable to the defendant.
Simmons v. State, 781 N.E.2d 1151, 1153–54 (Ind. Ct. App. 2002) (internal
citations omitted).
[8] “Because we only need to reach the federal constitutional analysis if the Indiana
Constitution does not resolve the claim,” we start with Budimir’s Article 1,
section 11, argument. State v. Katz, 179 N.E.3d 431, 442 (Ind. 2022). Article 1,
section 11 of the Indiana Constitution provides for “the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable search
or seizure[.]” Despite Article 1, section 11’s, similarity to the Fourth
Amendment’s language, Indiana courts interpret it “independently from federal
Fourth Amendment jurisprudence.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind.
2001).
[9] Our analysis under Article 1, section 11, focuses on the “the totality of the
circumstances” in determining whether “the search or seizure was reasonable.”
Sandleben v. State, 29 N.E.3d 126, 134 (Ind. Ct. App. 2015), trans. denied. Three
factors guide our review of the reasonableness of a search or seizure: “(1) the
degree of concern, suspicion, or knowledge that a violation of law has occurred,
(2) the degree of intrusion the method of the search or seizure imposes on the
citizen’s ordinary activities, and (3) the extent of law enforcement needs.” Id. at
135. The State bears the burden of showing that the search or seizure was
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reasonable under the circumstances. Rutledge v. State, 28 N.E.3d 281, 291 (Ind.
Ct. App. 2015).
[10] The degree of concern, suspicion, or knowledge that Budimir had engaged in
criminal activity was minimal, at best. Marshal Young had lawfully stopped
Roberts for her driving with a suspended license; however, shortly thereafter,
“he released [Budimir] from the scene[.]” Appellant’s App. Vol. II p. 45. After
being released, and shortly after Sergeant Shoemaker had arrived on scene,
Budimir and the children began walking away before Sergeant Shoemaker
“asked [Budimir] to stay by the scene.” Appellant’s App. Vol. II p. 46. Before
Sergeant Shoemaker’s K9 alerted on Roberts’s car, there was no reason
whatsoever to suspect that Budimir had engaged, or was engaging, in criminal
activity of any kind.
[11] Moreover, the degree of intrusion was hardly “non-existent” as the State
argues. Appellee’s Br. p. 14. In Cade v. State, 872 N.E.2d 186, 188–89 (Ind. Ct.
App. 2007), trans. denied, we concluded that the degree of intrusion was
minimal when an officer executed a routine traffic stop and asked a passenger
his name. See also Cochran v. State, 843 N.E.2d 980, 985 (Ind. Ct. App. 2006)
(concluding that, where officer approached person standing on sidewalk, the
officer’s request for the person’s name was minimal intrusion), trans. denied.
Sergeant Shoemaker’s command to Budimir was far more intrusive than merely
asking for his name. When Sergeant Shoemaker told Budimir that he needs to
“stick around” and stay in a nearby driveway, he restricted Budimir’s ordinary
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activities, namely, his freedom to leave the scene and take the children home.
Ex. 1 at 00:27–00:31.
[12] Finally, the needs of law enforcement to detain Budimir were slight. The State
correctly asserts that “police have a limited right to briefly detain a passenger
who exits the vehicle after it has been lawfully stopped.” Tawdul v. State, 720
N.E.2d 1211, 1216–17 (Ind. Ct. App. 1999), trans. denied. However, the
situation in Tawdul is readily distinguishable from this one. In Tawdul, the
driver and passenger had already exited the vehicle and had “refused to return
to the car” despite the police officer’s order to do so. Id. at 1213. We rejected
Tawdul’s argument that his arrest for resisting law enforcement violated the
Fourth Amendment and Article 1, section 11, on the principle that “[t]he police
may detain the passenger in order to ascertain the situation and to alleviate any
concerns the officer has for his or her safety.” Id. at 1217. Here, however,
Marshal Young had already assessed the situation and had released Budimir
from the scene by the time Sergeant Shoemaker arrived and ordered him to
stay. The State points to nothing in the record to indicate that Sergeant
Shoemaker observed anything about Budimir that Marshal Young did not that
would have caused a reasonable concern for officer safety. In light of the
nonexistent degree of suspicion that Budimir was engaging in criminal activity,
the relatively intrusive nature of the encounter, and the minimal needs of law
enforcement, we cannot say that the State met its burden in proving that the
search and seizure of Budimir was reasonable under the totality of the
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circumstances. As a result, we conclude that the trial court erred in denying
Budimir’s motion to suppress. See Rutledge, 28 N.E.3d at 291.
[13] The judgment of the trial court is reversed.
Riley, J., and Weissmann, J., concur.
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