Roberto Bernal-Andraca v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 28 2018, 9:49 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roberto Bernal-Andraca, November 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1288
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Clayton A.
Appellee-Plaintiff Graham, Judge
The Honorable Steven Rubick,
Magistrate
Trial Court Cause No.
49F07-1212-CM-85862
Altice, Judge.
Case Summary
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[1] Roberto Bernal-Andraca appeals his conviction for carrying a handgun without
a license, a Class A misdemeanor. He contends that evidence of the gun found
on his person during a traffic stop was obtained in violation of the Fourth
Amendment of the United States Constitution and Article 1, Section 11 of the
Indiana Constitution. In light of the circumstances, we conclude that the
officer conducting the stop acted reasonably, under both constitutions, in asking
Bernal-Andraca to exit the vehicle. Accordingly, the evidence was properly
admitted by the trial court.
[2] We affirm.
Facts & Procedural History
[3] Around 3:30 a.m. on December 22, 2012, Indiana State Excise Police Officer
Travis Thickstun was on patrol when he observed a vehicle being driven by
Bernal-Andraca in Marion County. While driving behind the vehicle, Officer
Thickstun checked the license plate and determined that it was registered to a
different vehicle. He then initiated a stop.
[4] Officer Thickstun approached the vehicle and asked Bernal-Andraca – the sole
occupant – for his driver’s license and vehicle registration. He also explained to
Bernal-Andraca the reason for the stop. Bernal-Andraca patted around on his
clothing and eventually indicated (non-verbally) that “he didn’t have it or
couldn’t find it.” Transcript at 9. Bernal-Andraca then began searching through
a black bag that was on the front passenger seat. Officer Thickstun saw several
items in the bag that concerned him. In particular, he observed a collapsible
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baton and pepper spray, as well as a flashlight with the word “police” on it and
a set of handcuffs. At this point, Bernal-Andraca had yet to identify himself
and had not indicated that he was a police officer (which he was not). Officer
Thickstun asked Bernal-Andraca to step out of the vehicle.
[5] At trial, Officer Thickstun explained why he felt the need to have Bernal-
Andraca come out of the vehicle. Officer Thickstun noted that he was the only
officer on the scene and that he had yet to identify Bernal-Andraca or check the
vehicle registration. Officer Thickstun explained: “I had him step out of the
vehicle to get him away from the weapons that I saw, the pepper spray and the
baton at the very least, to figure out who he was and to get his information to
run him at that point.” Id. at 12.
[6] As Bernal-Andraca exited the vehicle, he indicated to Officer Thickstun that he
had a gun on his person. Officer Thickstun immediately had Bernal-Andraca
face the vehicle and then located and removed the handgun from a holster on
Bernal-Andraca’s right hip. Officer Glen Bell arrived on the scene at this time
and secured the semiautomatic handgun and removed the ammunition. Officer
Thickstun handcuffed Bernal-Andraca and then turned his attention back to
trying to identify him. After obtaining Bernal-Andraca’s name and date of
birth, Officer Thickstun was able to confirm that Bernal-Andraca was not a
licensed driver. There was also no indication that Bernal-Andraca was licensed
to carry a handgun. Officer Thickstun placed Bernal-Andraca under arrest.
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[7] Later that same day, the State charged Bernal-Andraca with carrying a handgun
without a license and operating a vehicle having never received a license, both
as Class A misdemeanors. Bernal-Andraca failed to appear for two separate
hearings and was brought before the trial court on January 4, 2018, after being
arrested on an unrelated matter. At the bench trial on May 17, 2018, Bernal-
Andraca objected to the admission of any evidence (namely, the gun evidence)
obtained after he was ordered out of the vehicle. He contended that this order
constituted an unlawful seizure under both the federal and state constitutions.
The trial court refused to suppress the evidence and ultimately found Bernal-
Andraca guilty as charged. Bernal-Andraca was sentenced to concurrent terms
of thirty days in jail. Bernal-Andraca now appeals, challenging the admission
of the gun evidence.
Discussion & Decision
Standard of Review
[8] The trial court has broad discretion when ruling on the admissibility of
evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). On appeal, we
review such rulings for an abuse of discretion and reverse only when admission
is clearly against the logic and effect of the facts and circumstances and the
error affects a party’s substantial rights. Id. “But when an appellant’s challenge
to such a ruling is predicated on an argument that impugns the constitutionality
of the search or seizure of the evidence, it raises a question of law, and we
consider that question de novo.” Id. at 40-41.
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[9] Bernal-Andraca argues the seizure violated both the Fourth Amendment and
Article 1, Section 11. Although these constitutional provisions contain
textually similar language, it is well established that they must be separately
analyzed. Graham v. State, 971 N.E.2d 713, 716 (Ind. Ct. App. 2012), trans.
denied. Thus, we will address each in turn.
Fourth Amendment
[10] 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.
A traffic stop is akin to an investigative stop pursuant to Terry v. Ohio, 392 U.S.
1 (1968). Under Terry, the reasonableness of an investigative stop is measured
by the officer’s actions and whether those actions were “reasonably related in
scope to the circumstances which justified the interference in the first place.”
Id. at 20; see also Graham, 971 N.E.2d at 716. The seizure must last no longer
than necessary to effectuate the purpose of the stop and “the investigative
methods employed should be the least intrusive means reasonably available to
verify or dispel the officer’s suspicion in a short period of time.” Graham, 971
N.E.2d at 716 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). “As part of
a valid Terry stop, the investigating officer is entitled to take reasonable steps to
ensure his own safety, including ordering a detainee to exit the vehicle.”
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Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010); see also Pennsylvania v.
Mimms, 434 U.S. 106, 111 (1977) (describing the additional intrusion of
ordering a driver lawfully stopped to get out of the car as “de minimis” and “at
most a mere inconvenience”).
[11] Bernal-Andraca does not contest the validity of the initial traffic stop; he
challenges only the request that he get out of the vehicle, which he baldly
asserts was for the purpose of performing a body search. Bernal-Andraca
contends that Officer Thickstun should have merely instructed him to hand
over the black bag or ordered him to raise his hands so that Thickstun could
retrieve the bag. We disagree.
[12] After lawfully being stopped around 3:30 a.m., Bernal-Andraca failed to
provide Officer Thickstun with a driver’s license or a vehicle registration upon
request. Bernal-Andraca then began searching through a black bag that
contained, among other things, pepper spray and a baton. As Officer Thickstun
explained at trial, he ordered Bernal-Andraca out of the vehicle “to get him
away from the weapons” while Officer Thickstun – the only officer on the scene
at that time – could work on obtaining identifying information. Transcript at 12.
Thus, Officer Thickstun acted out of concern for his own safety and merely
ordered Bernal-Andraca out of the vehicle. There is no indication in the record
that Officer Thickstun intended to conduct a patdown search when he made
this request or that the order was accompanied by any additional actions by
Officer Thickstun, such as drawing his service weapon. Cf. Reinhart, 930
N.E.2d at 46 (“[Officer] did much more than merely order Reinhart to exit the
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vehicle. [He] drew his weapon, ordered Reinhart to exit the vehicle at
gunpoint, and, while the laser sight of his gun was fixed on Reinhart, [] ordered
Reinhart to his knees with his hands behind his head….”). It was not until
Bernal-Andraca indicated that he had a handgun on his person that Officer
Thickstun searched and removed the handgun from a holster on Bernal-
Andraca’s hip.
[13] We conclude that Officer Thickstun’s decision to order Bernal-Andraca out of
the vehicle was reasonable and did not violate the Fourth Amendment. See
Mimms, 434 U.S. at 111 n. 6 (“once a motor vehicle has been lawfully detained
for a traffic violation, the police officers may order the driver to get out of the
vehicle without violating the Fourth Amendment’s proscription of
unreasonable searches and seizures”); Ammons v. State, 770 N.E.2d 927, 932
(Ind. Ct. App. 2002) (“the Fourth Amendment permits requesting a motorist
stopped for a traffic violation to exit a car”), trans. denied. Further, once
informed that Bernal-Andraca was armed with a handgun, Officer Thickstun
reasonably searched his person for that weapon and removed it. See Arizona v.
Johnson, 555 U.S. 323, 331 (2009) (once outside the stopped vehicle, the driver
may be patted down for weapons if the officer reasonably concludes that the
driver might be armed and dangerous). There was no Fourth Amendment
violation in this case.
Article 1, Section 11
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[14] Bernal-Andraca also asserts a violation of Article 1, Section 11 of the Indiana
Constitution, which “safeguards the ‘right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable search or seizure.’”
Watkins v. State, 85 N.E.3d 597, 600 (Ind. 2017). An analysis under Article 1,
Section 11 “turns on whether the police conduct was reasonable under the
totality of the circumstances.” Carpenter v. State, 18 N.E.3d 998, 1002 (Ind.
2014). In making this evaluation, we apply the test established by our Supreme
Court in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). “The ‘reasonableness of
a search or seizure [turns] on a balance of: 1) the degree of concern, suspicion,
or knowledge that a violation 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.’” J.G. v. State, 93 N.E.3d 1112, 1122-23
(Ind. Ct. App. 2018) (quoting Litchfield, 824 N.E.2d at 361) (alteration in J.G.),
trans. denied.
[15] We conclude that Officer Thickstun acted reasonably under the circumstances
and, thus, find no violation of Article 1, Section 11. The degree of concern,
suspicion, or knowledge that a violation had occurred was high. Bernal-
Andraca was driving a vehicle with a questionable license plate, he could not
produce a driver’s license or vehicle registration, and he had a bag containing
items that could be used against Officer Thickstun during the lawful stop. The
degree of the intrusion – ordering him out of the vehicle – was minimal.
Further, Officer Thickstun needed to be able to safely investigate the lawful
stop. It was 3:30 in the morning, Officer Thickstun was alone, and he had
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observed items next to Bernal-Andraca that could be used against him as
weapons. Removing Bernal-Andraca from the vehicle was reasonable under
the totality of the circumstances. Moreover, once Bernal-Andraca indicated
that he was armed with a handgun, Officer Thickstun acted reasonably in
locating the weapon and removing it from Bernal-Andraca’s person before
continuing his investigation.
[16] In sum, Officer Thickstun did not violate Bernal-Andraca’s federal or state
constitutional rights by ordering him out of the vehicle and then, after being
informed that Bernal-Andraca was armed, patting him down to retrieve the
weapon. The challenged evidence was, therefore, properly admitted at trial.
[17] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
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