State of Indiana v. Deana Lane Gaddy (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 24 2018, 7:12 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, May 24, 2018
Appellant-Plaintiff, Court of Appeals Case No.
10A01-1712-CR-2894
v. Appeal from the Clark Circuit
Court
Deana Lane Gaddy, The Honorable Joseph P. Weber,
Appellee-Defendant. Judge
Trial Court Cause No.
10C03-1709-CM-1642
Brown, Judge.
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[1] The State appeals the trial court’s order granting a motion to suppress filed by
Deana Lane Gaddy. The State raises one issue which we revise and restate as
whether the trial court erred in granting Gaddy’s motion to suppress. We
reverse and remand.
Facts and Procedural History
[2] On September 7, 2017, the State charged Gaddy with: Count I, operating a
vehicle while intoxicated as a class C misdemeanor; and Count II, operating a
vehicle while intoxicated endangering a person as a class A misdemeanor. That
same day, the trial court entered an order titled “FINDING OF PROBABLE
CAUSE” which states:
An Information and Probable Cause Affidavit having been filed
in this cause by the State of Indiana, the Court now finds and
determines that there is probable cause to believe that the
offense(s) set forth in the information have been committed by
[Gaddy]. IT IS ORDERED that the defendant be brought before
this Court for an Initial Hearing promptly and without
unnecessary delay.
Appellant’s Appendix Volume II at 13.
[3] On September 14, 2017, Gaddy filed a Motion for Probable Cause Hearing.
On September 18, 2017, the court entered an order scheduling a probable cause
hearing for November 8, 2017. On November 8, 2017, the State filed a Request
for Trial Date and Notice of Grounds for Objection to Defendant’s Motion for
Probable Cause Hearing. The State argued in part that the court had already
found probable cause, that the only relief available from a probable cause
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hearing was the immediate release of a defendant, and that the probable cause
hearing was moot because Gaddy was not in custody. The State asserted that it
could “only surmise that [Gaddy] is seeking dismissal of this matter entirely
through the assertion of a lack of probable cause.” Id. at 30. An entry in the
chronological case summary dated November 8, 2017, states: “Hearing on
Motion to Supress [sic] reset for 11/15/17 at 2:30 p.m.” Id. at 5.
[4] On November 15, 2017, the court held a hearing, stated that its understanding
was that the hearing was set on Gaddy’s motion to suppress, asked if that was
correct, and Gaddy’s counsel answered affirmatively.
[5] According to the testimony of Indiana State Trooper Morgan Evans, he was
working in downtown Jeffersonville on September 3, 2017. Around 2:30 or
3:00 a.m., Trooper Evans took a lunch break in the Jeff Boat parking area and
was located two blocks from Slammers bar. When asked if there was anything
particularly special about the neighborhood, Trooper Evans testified: “There is
lots of narcotics sales people carrying narcotics through that neighborhood there
is lots of drunk drivers, stolen vehicles uh over doses there is a decent amount
of crime.” Transcript Volume 2 at 18. Trooper Morgan observed two vehicles
travelling very slowly southbound on Penn Street and the vehicle in the rear
was following the vehicle in the front very closely. Trooper Morgan followed
the two vehicles onto Market Street and observed the rear vehicle slow down
while the front vehicle tried to “speed off.” Id. at 21. Trooper Morgan testified
that his training indicated that the rear vehicle was attempting to distract him
and draw his attention away from the front vehicle. Trooper Morgan passed
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the rear vehicle, followed the lead vehicle, observed the vehicle fail to use a turn
signal, and initiated a traffic stop on the vehicle driven by Gaddy. When asked
how many minutes he followed the vehicle, Trooper Morgan answered: “No
more than five minutes I’m not exactly sure.” Id. at 23.
[6] Trooper Morgan testified that he identified himself, asked to see Gaddy’s
driver’s license and registration, and told her that he stopped her because she
did not use her turn signal. He testified that Gaddy stated: “no body uses their
turn signal in this area.” Id. at 28. According to his testimony, another vehicle
parked behind his vehicle, he told the driver to leave the scene, and the driver
left the scene. When asked about his probable cause for stopping Gaddy’s
vehicle, Trooper Morgan answered: “She failed to use her turn signal two
hundred fee[t] prior to turning when she was driving less than fifty miles per
hour she didn’t use her turn signal and didn’t turn it on so I initiated a traffic
stop on her.” Id. at 31. Trooper Morgan also testified that the failure to use a
turn signal is a violation of the Indiana Traffic Code. On cross-examination,
Trooper Morgan testified that Gaddy slowed to make her turn, there were no
oncoming cars, she stopped at all the stop signs, did not speed, made seven
turns, and signaled at every turn except for the last turn. Trooper Morgan later
stated that she failed to signal the last two turns.
[7] After Gaddy’s counsel cross-examined Trooper Morgan, the following
exchange occurred:
JUDGE: I got just a couple of things. I guess as I listen to this I
heard testimony that you were following her and I didn’t really
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understand why exactly you were following her but I think your
testimony is you didn’t see any signs of impairment but you
continued to follow her is that right?
TROOPER: Yes.
JUDGE: Any particular reason?
TROOPER: I was just following her.
JUDGE: How far were you going to follow her?
TROOPER: I’m not for sure I follow a lot of vehicles.
JUDGE: Two or three for [sic] miles?
TROOPER: Probably or so, probably so.
JUDGE: Why?
TROOPER: Trying to figure out if an indicator if she is uh
gonna make an infraction or a reason to stop because she was it
was a suspicious vehicle coming from a high crime area so I was
trying to figure out for probable cause to stop.
JUDGE: See and that’s my problem with all of this what you are
telling me is anybody that drives through that part of jeff is
suspicious and you are gonna follow them until they commit a
traffic infraction and then you’re going to pull them over. Is that
right?
TROOPER: No sir.
JUDGE: Well that’s what it sounds like to me and I’m just
trying I’m not trying to give you a hard time I’m trying to look
for reasonable suspension [sic] and probable cause and like
everybody I kinda put myself in and you may stand down be
seated by the prosecutor if you would like. Here is my problem
with this I drive through there all the time[.]
TROOPER: Yes sir.
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JUDGE: It just seems strange to me that just driving through
there is reasonable suspicion to follow someone and then
continue to follow them until they commit a traffic offense
because sooner or later they are gonna commit a traffic infraction
there is no doubt about it you drive, you drive five miles, ten
miles, fifteen mile, fifteen feet sooner or later you’re gonna
commit a traffic infraction. So you think that constitutes some
reasonable suspicion?
TROOPER: Yes because I had reasonable suspicion this vehicle
was coming from a high crime area there are houses we are
watching where narcotics ect. [sic] so I had reasonable suspicion
so I ended up getting probable cause to stop the vehicle.
JUDGE: So anybody who drives through downtown jeff is
suspect?
TROOPER: Not downtown jeff but that area.
JUDGE: Market Street?
TROOPER: Penn Street, Cherry virgin alley, Graham those
areas.
JUDGE: Ok you got anything else?
STATE: I have nothing else judge.
JUDGE: I think its pretextual stop what I got was testimony that
you started to follow her and follow her for a long way and she
committed no infraction and eventually she did. Granted if she
didn’t signal that’s reason but I mean like I said anybody is
eventually going to commit a traffic infraction if you follow them
long enough. There has to be some reasonable suspicion why
you continued to follow them otherwise you simply get to follow
anybody around for no particular reason till you get the
opportunity to pull them over. I don’t think that’s I don’t think
that is I think that is a pretextual stop I think that’s coming up
with a reason to stop somebody when there is, I think you were
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gonna stop her you made the decision to stop her when you
passed the other car. I think sooner or later you were gonna have
a technical reason you could which was failing to signal after she
signal half a dozen times I think it’s a protected stop. Certainly if
you seen her fail to signal within a reasonable space where she
was doing other things or she hadn’t signaled when she pulled
out onto Market street, I’m all on board with that I really am but
I don’t see any reason why you continued to follow her just
because she drove through that part of downtown jeff. I didn’t
hear any testimony that you were investigating any particular
crime that she was driving a type of description of a car that was
involved in a crime and so on and so forth. I just ya know I
didn’t hear any of that I mean this notion that just driving
through there makes you suspect is I don’t know if it meets the
standard I think it’s a pretextual stop. Ok[.]
STATE: Ok so just so I’m clear on the rule you suppressed here
inaudible.
JUDGE: I’m gonna suppress it I think it’s a protected stop I
don’t think there was reasonable suspicion to continue to follow
her uh and I think it was clear he was going to stop her and made
a decision to stop her long before she failed to signal and I think
its stop to see if she had been drinking basically because she had
been coming down the street from a bar and I don’t think you
can do that so I’m going to suppress the evidence thank you.
Id. at 65-68.
Discussion
[8] We first note that Gaddy did not file an appellee’s brief. In such a case, we
apply a less stringent standard of review with respect to showings of reversible
error. State v. Weyer, 831 N.E.2d 175, 177 (Ind. Ct. App. 2005). We do not
have the burden of controverting arguments advanced for reversal. Id. The
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State only needs to establish prima facie error, which is error at first sight, on
first appearance, or on the face of it. Id.
[9] The issue is whether the trial court erred in granting Gaddy’s motion to
suppress. “In reviewing a trial court’s motion to suppress, we determine
whether the record discloses ‘substantial evidence of probative value that
supports the trial court’s decision.’” State v. Renzulli, 958 N.E.2d 1143, 1146
(Ind. 2011) (quoting State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)). “We do
not reweigh the evidence, but consider ‘conflicting evidence most favorably to
the trial court’s ruling.’” Id. (quoting Quirk, 842 N.E.2d at 340). “When the
State appeals from a negative judgment, as here, it ‘must show that the trial
court’s ruling on the suppression motion was contrary to law.’” Id. (quoting
State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008), reh’g denied). “[T]he
ultimate determination of the constitutionality of a search or seizure is a
question of law that we consider de novo.” Carpenter v. State, 18 N.E.3d 998,
1001 (Ind. 2014).
[10] The State asserts that the trial court did not identify any statutory or
constitutional basis for determining that the trooper was not permitted to follow
a vehicle for several minutes. The State argues that there is no requirement that
an officer have reasonable suspicion that criminal activity is afoot before
following a vehicle. It contends that following a vehicle is not synonymous
with stopping a vehicle and that, while an officer needs reasonable suspicion or
probable cause for that latter, such is not required for the former. It points out
that the United States Supreme Court has held: “A person travelling in an
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automobile on public thoroughfares has no reasonable expectation of privacy in
his movements from one place to another.” Appellant’s Brief at 9 (quoting
United States v. Knotts, 460 U.S. 276, 281 (1983)). With respect to the trial
court’s concern that the trooper had undertaken a pretextual stop, the State
argues that the United States Supreme Court has made clear that a traffic stop
based on a traffic violation is not unlawful merely because an officer has an
ulterior motive for stopping the vehicle. Id. at 10 (citing Whren v. United States,
517 U.S. 806, 810-813 (1996)).
[11] The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
[12] There are three levels of police investigation, two of which implicate the Fourth
Amendment and one of which does not. Powell v. State, 912 N.E.2d 853, 859
(Ind. Ct. App. 2009). First, the Fourth Amendment requires that an arrest or
detention that lasts for more than a short period of time must be justified by
probable cause. Id. Second, pursuant to Fourth Amendment jurisprudence, the
police may, without a warrant or probable cause, briefly detain an individual
for investigatory purposes if, based upon specific and articulable facts, the
officer has a reasonable suspicion that criminal activity has or is about to occur.
Id. The third level of investigation occurs when a police officer makes a casual
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and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id.
This is a consensual encounter in which the Fourth Amendment is not
implicated. Id.
[13] “‘Not every encounter between a police officer and a citizen amounts to a
seizure requiring objective justification.’” Id. (quoting Overstreet v. State, 724
N.E.2d 661, 663 (Ind. Ct. App. 2000), reh’g denied, trans. denied). “A person is
‘seized’ only when, by means of physical force or a show of authority, his or her
freedom of movement is restrained.” Id. (quoting State v. Lefevers, 844 N.E.2d
508, 513 (Ind. Ct. App. 2006), trans. denied). It is not the purpose of the Fourth
Amendment to eliminate all contact between police and the citizenry. Id. at
860.
[14] Trooper Evans did not stop, detain, or otherwise restrain Gaddy when he
followed her. Gaddy did not file an appellee’s brief and accordingly cited no
authority for the proposition that Trooper Evans violated her Fourth
Amendment rights by following her. We conclude that the State has
demonstrated a prima facie case of error. See Overstreet, 724 N.E.2d at 664
(holding that the Fourth Amendment was not implicated when the officer
followed the defendant to a gas station, approached him, asked about his
action, and asked for his identification).
[15] With respect to the stop, we observe that the Indiana Supreme Court has held:
“It is unequivocal under our jurisprudence that even a minor traffic violation is
sufficient to give an officer probable cause to stop the driver of a vehicle.”
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Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). See also Quirk, 842 N.E.2d at
340 (holding that police officers “may stop a vehicle when they observe minor
traffic violations” and “[a] traffic violation, however minor, creates probable
cause to stop the driver of the vehicle”). In addressing whether Article 1,
Section 11 of the Indiana Constitution prohibits pretextual stops, the Indiana
Supreme Court has held:
We find nothing unreasonable in permitting an officer, who may
have knowledge or suspicion of unrelated criminal activity by the
motorist, to nevertheless respond to an observed traffic violation.
It is likewise not unreasonable for a motorist who commits a
traffic law violation to be subject to accountability for said
violation even if the officer may have an ulterior motive of
furthering an unrelated criminal investigation.
Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001). The record reveals that
Trooper Morgan testified that Gaddy failed to use her turn signal prior to
turning. Moreover, the trial court found that Gaddy committed a traffic
infraction. Specifically, the court stated that Gaddy initially “committed no
infraction and eventually she did.” Transcript Volume 2 at 67. The State has
demonstrated that the grant of Gaddy’s motion constituted a prima facie error.
Conclusion
[16] For the foregoing reasons, we reverse the trial court’s grant of Gaddy’s motion
and remand for proceedings consistent with this opinion.
[17] Reversed and remanded.
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Bailey, J., and Crone, J., concur.
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