Lisa R. Harris v. State of Indiana

FILED
Jul 27 2016, 5:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Larry Crawford Thomas Gregory F. Zoeller
Clinton, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lisa R. Harris, July 27, 2016
Appellant-Defendant, Court of Appeals Case No.
83A01-1509-CR-1311
v. Appeal from the Vermillion Circuit
Court
State of Indiana, The Honorable Bruce V. Stengel,
Appellee-Plaintiff. Judge
Trial Court Cause No.
83C01-1411-F6-57
Robb, Judge.
Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016 Page 1 of 22
Case Summary and Issue
[1] Lisa Harris appeals the trial court’s denial of her motion to suppress evidence
obtained from a consent search during a seat belt enforcement stop.
Concluding the officer lacked an independent basis of reasonable suspicion
justifying inquiry above and beyond the seat belt violation, we reverse the trial
court’s order and remand for further proceedings.
Facts and Procedural History
[2] On November 25, 2014, Indiana State Police Trooper Mike Organ was parked
outside a gas station in Clinton, Indiana, when he observed the driver and
passenger of a passing vehicle were not wearing seat belts. Trooper Organ
pulled out of the parking lot, and the vehicle abruptly turned onto an adjacent
street. Trooper Organ followed the vehicle, activated his emergency lights, and
initiated a traffic stop. Trooper Organ approached the driver’s side and first
asked the driver for identification. The driver produced her driver’s license,
which indicated her name was Lisa Harris. Trooper Organ immediately
recognized her name as appearing on National Precursor Log Exchange
(NPLEx) reports “in the past.” Transcript at 7.1 Trooper Organ then asked
Harris “where she was going, and where she was coming from.” Id. at 8.
Harris stated she was going to a gas station. When Trooper Organ pointed out
1
At the time of the traffic stop, Trooper Organ was assigned to the Meth Suppression Team and checked
NPLEx on a daily basis.
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she had just passed a gas station and turned onto a street with no gas stations,
Harris revised her answer, stating she was actually on her way to apply for food
stamps. When Trooper Organ again pointed out Harris was traveling away
from her purported destination, Harris’s passenger stated they saw Trooper
Organ pull out of the parking lot and turned in order to avoid him. Trooper
Organ noticed Harris appeared “overly excited” during this brief exchange, so
he asked “if there was anything inside of the vehicle that [he] needed to know
about[.]” Id. at 8-9. Harris stated, “absolutely not.” Id. at 9.
[3] Trooper Organ returned to his police vehicle to check Harris’s driving status,
determine whether she had any outstanding warrants, and confirm Harris’s
name appeared on NPLEx. Harris had a valid driver’s license and did not have
any outstanding warrants, but NPLEx indicated Harris had purchased
pseudoephedrine nine times in the past year.2 Her most recent purchase
occurred four days prior to the traffic stop. With this information, Trooper
Organ returned to Harris and asked her to speak with him in his police vehicle.
Harris agreed. When Trooper Organ asked Harris if she purchased cold
medicine containing pseudoephedrine on November 21, 2014, Harris admitted
she had, “for her nose.” Id. at 12. He then asked where the pills were. Harris
stated the pills were at her house, but when Trooper Organ asked if she could
2
Harris’s pseudoephedrine purchases did not exceed legal limits. Tr. at 16; see also State’s Exhibit 2 (NPLEx
Person Summary for Lisa Harris).
Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016 Page 3 of 22
provide proof of this, Harris admitted the pills were no longer in her possession
because she sold them for $20.
[4] Trooper Organ obtained Harris’s consent to search her vehicle and its contents.
Inside Harris’s purse, he discovered a baggie of white powder that field-tested
positive for methamphetamine. Harris claimed she forgot about the
methamphetamine and admitted she regularly smokes methamphetamine.
Trooper Organ cited both Harris and her passenger for failure to wear a seat
belt but arrested only Harris. The State charged Harris with possession of
methamphetamine as a Level 6 felony. Harris filed a motion to suppress, which
the trial court denied. The trial court certified the order for interlocutory
appeal, and we accepted jurisdiction pursuant to Indiana Appellate Rule 14(B).
Discussion and Decision
I. Standard of Review
[5] We review the denial of a motion to suppress in a manner similar to reviewing
the sufficiency of evidence. Sanders v. State, 989 N.E.2d 332, 334 (Ind. 2013).
We do not reweigh the evidence. Id. We consider conflicting evidence most
favorable to the trial court’s ruling, as well as undisputed evidence favorable to
the defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). “We defer to a
trial court’s determination of historical fact, but we review de novo whether
those facts constitute reasonable suspicion.” Johnson v. State, 21 N.E.3d 841,
844 (Ind. Ct. App. 2014), trans. denied. “The record must disclose substantial
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evidence of probative value that supports the trial court’s decision.” State v.
Quirk, 842 N.E.2d 334, 340 (Ind. 2006).
II. Motion to Suppress
[6] Harris contends the trial court erred in denying her motion to suppress because
Trooper Organ’s investigation above and beyond the seat belt violation
contravened Indiana’s Seatbelt Enforcement Act (“Act”). We agree. Although
a vehicle may be stopped to determine compliance with the Act, “a vehicle, the
contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not
be inspected, searched, or detained solely because of a violation of [the Act].”
Ind. Code § 9-19-10-3.1(a) (emphasis added). “[T]he Act simply does not
permit investigatory behavior based solely on a seat belt violation unless
circumstances arise after the stop that independently provide the officer with
reasonable suspicion of other crimes.” State v. Richardson, 927 N.E.2d 379, 383
(Ind. 2010).
[7] In Richardson, a police officer initiated a traffic stop based solely on her
observation of the defendant driving unrestrained by a seat belt. The officer
immediately recognized Richardson from a prior traffic stop and recalled no
violence or resistance during that encounter. Richardson was cooperative and
readily admitted the seat belt violation, but the officer noticed “a very large,
unusual bulge” in Richardson’s pocket. Id. at 381. When the officer asked
Richardson what was in his pocket, Richardson said he was carrying a
handgun. The officer requested Richardson’s gun permit and ran a criminal
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background check, which revealed Richardson had a prior conviction for
possession of cocaine as a Class D felony. The officer arrested Richardson for
possession of a firearm with a prior felony conviction within the past fifteen
years. Another officer searched Richardson incident to that arrest and
discovered cocaine on his person. The State charged Richardson with dealing
in cocaine, among other charges. Prior to trial, Richardson filed a motion to
suppress the cocaine. The trial court granted the motion, and the State
appealed. Our supreme court affirmed the trial court’s ruling because the
officer’s observation of an “unusual bulge” failed to provide an independent
basis of reasonable suspicion that would justify further inquiry during the seat
belt enforcement stop. Id. at 384.
[8] By contrast, in State v. Morris, 732 N.E.2d 224 (Ind. Ct. App. 2000), the
defendant failed to produce his driver’s license during a seat belt enforcement
stop, which prompted the officer to run a license check. The license check
revealed Morris’s driving privileges had been suspended, and the officer asked
Morris to step out of his vehicle. As Morris did so, the officer detected an odor
of alcohol on his breath. Morris admitted he had been drinking and agreed to
submit to a chemical breath test, which revealed an alcohol concentration
equivalent of 0.10 grams. The State charged Morris with driving while
suspended and operating a vehicle while intoxicated. Morris filed a motion to
suppress, arguing the evidence was obtained in violation of the Act. The trial
court granted the motion to suppress, and we reversed, holding (1) the officer
was justified in requesting Morris’s license because it was reasonably necessary
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to issue a citation for failure to wear a seat belt, and (2) that Morris’s failure to
produce his driver’s license was a circumstance independent of the initial seat
belt violation:
Upon learning that Morris did not have a driver’s license with
him, Officer Huskins ran a license check and discovered that
Morris’s license was suspended. Morris’s failure to produce his
license was a circumstance independent of the initial seatbelt
violation, which provided Officer Huskins with reasonable
suspicion that Morris might not have a valid driver’s license.
After determining that Morris’s license was suspended, Officer
Huskins acted reasonably in requesting that Morris exit the
vehicle, because he could not allow Morris to continue driving
on a suspended license. When Morris exited the vehicle and
Officer Huskins detected the odor of alcoholic beverage on
Morris’s breath, a second circumstance independent of the
seatbelt stop arose, which led to Officer Huskins’s reasonable
suspicion that Morris was driving under the influence.
Id. at 228.
[9] We conclude the facts of the present case are more akin to that in Richardson
because Trooper Organ’s only basis for additional questioning was his
recollection of Harris’s name appearing on NPLEx.3 NPLEx is a database used
3
The dissent likens this case to Trigg v. State, 725 N.E.2d 446, 448-49 (Ind. Ct. App. 2000), and Pearson v.
State, 870 N.E.2d 1061 (Ind. Ct. App. 2007), trans. denied, but Trigg and Pearson concerned patdown searches
for weapons.
An officer may conduct a patdown search for weapons “only when he has a reasonable belief that the suspect
is armed and dangerous.” Pearson, 870 N.E.2d at 1065. In Trigg, we held a patdown search for weapons
during a seat belt enforcement stop is not a search “solely because of” a violation of the Act. 725 N.E.2d at
448. “Rather, such a search is the result of actions or behavior on the part of the defendant after the initial
stop that lead a police officer to fear for his safety.” Id. The purpose of the search is “not to discover
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by retailers and law enforcement to track and regulate sales of over-the-counter
medications containing ephedrine or pseudoephedrine. Tr. at 7; see also
Montgomery v. State, 22 N.E.3d 768, 775 (Ind. Ct. App. 2014), trans. denied.
Indiana Code section 35-48-4-14.7(e) provides a person may not purchase
medications containing more than:
(1) three and six-tenths (3.6) grams of ephedrine or
pseudoephedrine, or both, on one (1) day;
(2) seven and two-tenths (7.2) grams of ephedrine or
pseudoephedrine, or both, in a thirty (30) day period; or
(3) sixty-one and two-tenths (61.2) grams of ephedrine or
pseudoephedrine, or both, in a three hundred sixty-five (365) day
period.
evidence of a crime,” we explained, “but to permit the officer to pursue the investigation without fear for his
safety and that of others.” Id. at 449 (citation omitted).
In Pearson, a police officer initiated a traffic stop after observing Pearson drive without a seat belt. The officer
recognized Pearson and had knowledge of prior incidents during which Pearson had been violent. Based on
this knowledge, the officer ordered Pearson out of his vehicle and conducted a patdown search. While
performing the patdown, the officer asked Pearson if he had anything on his person. Pearson admitted he
possessed marijuana. The officer retrieved the marijuana from Pearson’s pocket and placed Pearson under
arrest. As the officer finished searching Pearson, he discovered a sleeve containing a white powder later
confirmed to contain methamphetamine. We concluded the officer’s knowledge of Pearson’s prior violent
conduct was sufficient to warrant the limited weapons search but held the officer was not justified in asking
Pearson if he had anything on this person. 870 N.E.2d at 1068. Specifically, we held the trial court abused
its discretion in admitting the marijuana and methamphetamine because both were discovered through
improper means in violation of the Act:
[T]he question posed to Pearson by Officer Hastings, during a pat-down search for weapons to
which Pearson was cooperating, was an attempt by Officer Hastings to “fish” for evidence of
other crimes. Indeed, the question was potentially incriminating, going beyond an inquiry for
officer safety purposes, and was posed under very intimidating circumstances.
Id.
We similarly conclude Trooper Organ’s questioning after he requested Harris’s driver’s license was an
attempt to “fish” for evidence of other crimes, but the pertinence of Pearson ends there. Trooper Organ did
not conduct a patdown search for weapons, and he did not articulate any reason to believe Harris was armed
or dangerous. Reasonable suspicion that criminal activity has or is about to occur is a separate standard
more squarely addressed by Richardson and Morris.
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In order to enforce these limits, Indiana Code section 35-48-4-14.7(d) imposes
certain requirements on pharmacies and other retailers. Relevant here, retailers
shall submit the following information to NPLEx before completing any sale of
an over-the-counter medication containing ephedrine or pseudoephedrine: (1)
the ephedrine or pseudoephedrine product purchased, including the number of
grams the product contains, (2) the date and time of the transaction, (3) the
name and address of the purchaser, (4) the type of identification the purchaser
presented, and (5) the number and issuing entity of the purchaser’s
identification. Ind. Code § 35-48-4-14.7(d)(4), (5). If the NPLEx system
generates a stop sale alert, the retailer may not complete the sale. Ind. Code §
35-48-4-14.7(d)(5).
[10] Retailers must comply with the reporting requirements regardless of the
customer’s motivation for purchasing the medication. Although ephedrine and
pseudoephedrine are commonly used in the manufacture of methamphetamine,
medications containing these ingredients are commonplace in the Hoosier
medicine cabinet. Particularly during winter cold season and spring allergy
season, many law-abiding citizens purchase medications containing ephedrine
or pseudoephedrine. Many appear on NPLEx for the simple fact of seeking
relief from a stuffy nose. Absent additional circumstances suggesting an
intention to manufacture methamphetamine, an individual purchasing these
medications within legal limits would not cause an ordinarily prudent person to
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believe criminal activity has or is about to occur.4 See Richardson, 927 N.E.2d at
384 (reciting the reasonable suspicion standard).5
[11] Our supreme court addressed a similar issue in State v. Bulington, 802 N.E.2d
435 (Ind. 2004), a case arising from a stop based solely on a retailer’s tip that
the defendant and his companion had just purchased six boxes of cold medicine
containing ephedrine. Each man selected three boxes. They proceeded to
different checkout counters and walked out separately but then got into the
same truck in the parking lot. When the police arrived, the truck was pulling
out of the parking lot. Officers stopped the truck in an adjacent parking lot and
obtained consent to search the truck. The search uncovered hundreds of
ephedrine pills and various other materials used to manufacture
methamphetamine. The State charged Bulington with conspiracy to commit
dealing in methamphetamine, possession of two or more chemical reagents or
precursors with intent to manufacture methamphetamine, and maintaining a
common nuisance. Bulington filed a motion to suppress, which the trial court
4
In addition to purchases made within legal limits, it appears NPLEx tracks “blocks” and “exceedances.”
State’s Ex. 1. Harris’s NPLEx Person Summary does not reveal any “blocks” or “exceedances,” id., but if an
officer had knowledge that a driver had attempted to purchase ephedrine or pseudoephedrine in excess of
legal limits, that knowledge could be an additional circumstance supporting an independent basis of
reasonable suspicion.
5
That is not say NPLEx reports have no probative value in criminal investigations unless they reveal
purchases or attempted purchases exceeding legal limits. But we distinguish probative value, or “relevance,”
Sanders v. State, 704 N.E.2d 119, 124 (Ind. 1999), from an “objective manifestation” that a person “is, or is
about to be, engaged in criminal activity,” Clark v. State, 994 N.E.2d 252, 263-64 (Ind. 2013) (quoting United
States v. Cortez, 449 U.S. 411, 417 (1981)). Probative value in a criminal investigation is a much lower
standard than the circumstances justifying a Terry stop.
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granted. The State appealed, and our supreme court affirmed the trial court,
holding the officer lacked reasonable suspicion to stop the defendant’s truck:
The opportunities for official arbitrariness, discretion, and
discrimination are simply too great if we were to find that the
purchase by two companions of three packages each of cold
medicine justifies a search or seizure under art. I, § 11. Such a
holding, at least in an Indiana winter, would permit so many
searches and seizures as to license official arbitrariness,
discretion, and discrimination in their execution.
Id. at 440; see also Saffold v. State, 938 N.E.2d 837, 839 n.3 (Ind. Ct. App. 2010)
(rejecting the State’s argument that the discovery of ammunition in the
defendant’s car gave rise to a reasonable suspicion of criminal activity because
“something Saffold could presumably possess legally” does not “heighten
suspicion something illegal was afoot”), trans. denied.
[12] But the court also noted, “[H]ad additional indicia that ‘criminal activity was
afoot’ been available to the police here, the traffic stop at issue might well have
been valid.” Bulington, 802 N.E.2d at 440. The court reviewed cases from
other jurisdictions and identified specific circumstances that would likely
constitute reasonable suspicion:
when the customer (1) purchases a combination of
methamphetamine precursors from one store; (2) purchases a
combination of precursors from several stores; (3) purchases . . .
one precursor and then commits a traffic violation warranting a
traffic stop; and (4) purchases one precursor and the arresting
officer has knowledge of defendant’s previous involvement with
methamphetamine.
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Id. at 441 (footnotes omitted). The dissent maintains the third circumstance
applies in this case because Harris committed a traffic violation, but the case the
court relied on to demonstrate this circumstance is easily distinguishable.
[13] The Bulington court cites State v. Vereb, 643 N.W.2d 342 (Minn. Ct. App. 2002),
which held officers had reasonable suspicion to stop a vehicle where a Wal-
Mart employee reported two individuals made several trips into the store to
purchase a large number of cold tablets containing pseudoephedrine and the
individuals attempted to evade police by traveling at excessive speeds.
Bulington, 802 N.E.2d at 441 n.6 (citing Vereb, 643 N.W.2d at 347). Unlike
Harris, the individuals purchased a “large quantity” of pseudoephedrine at one
time immediately before the stop, and the officer had knowledge of these
purchases when he initiated the stop. Vereb, 643 N.W.2d at 345. There was
also a nexus between the purchases and the traffic violation that strongly
suggested the vehicle’s occupants were or would be engaging in criminal
activity. The police pursued the vehicle immediately after its occupants made
several trips into the Wal-Mart store to purchase the pseudoephedrine, and the
driver subsequently led the police on a high-speed chase. When the driver
finally pulled over, the officer was free to investigate above and beyond the
speeding violation because the stop was not governed by a law intended to limit
police authority. See Richardson, 927 N.E.2d at 383 (stating the Act “sought to
circumscribe the power of police to use a seat belt stop as an opportunity to
inspect, search, or detain on other grounds, even if constitutional law would
permit such police behavior”).
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[14] In short, Trooper Organ’s recollection of Harris’s name appearing on NPLEx
did not provide an independent basis of reasonable suspicion that would justify
further investigation. Harris pulled over when Trooper Organ activated his
emergency lights, and she produced a valid driver’s license. Trooper Organ’s
subsequent questioning about Harris’s destination, her recent cold medicine
purchase, and whether she would consent to a search violated the Act, and the
trial court erred in denying her motion to suppress the evidence gleaned from
that questioning. See Richardson, 927 N.E.2d at 382-83 (stating the Act “could
be read to prohibit a police officer making a seat belt stop from even asking the
driver for consent to search the vehicle”).
Conclusion
[15] Trooper Organ lacked an independent basis of reasonable suspicion that would
justify further inquiry during a seat belt enforcement stop. Because his
questioning violated the Act, we reverse the trial court’s order denying Harris’s
motion to suppress, and we remand for further proceedings.
[16] Reversed and remanded.
Crone, J., concurs.
Najam, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Lisa R. Harris
Appellant-Defendant,
Court of Appeals Case No.
v. 83A01-1509-CR-1311
State of Indiana,
Appellee-Plaintiff.
Najam, Judge, dissenting.
[17] I respectfully dissent from the majority’s conclusion that Trooper Organ
violated Indiana’s Seatbelt Enforcement Act when he investigated Harris for
her frequent purchases of products containing pseudoephedrine. The majority’s
opinion does not take into account numerous facts relied on by the trial court in
its denial of Harris’ motion to suppress. Trooper Organ recognized Harris from
the frequency with which her name appeared on the NPLEx, and our precedent
expressly permits an officer in a seatbelt stop to take reasonable steps to
investigate a driver based on the officer’s actual knowledge of the driver’s
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identity. The majority declares that the NPLEx is of no probative value to
criminal investigations unless it demonstrates on its face illegal
pseudoephedrine purchases or attempted purchases. I cannot wholly agree.
[18] The entire point of the database of pseudoephedrine purchases is to prevent the
use of commercially available products in the manufacture of
methamphetamine. That use can occur whether the pseudoephedrine
purchases are legal or illegal. At least where, as here, an officer recognizes a
person’s name precisely because of how many times the officer has seen that
person’s name on the NPLEx, it is reasonable for the officer to suspect that
those frequent, albeit legal, pseudoephedrine purchases might indicate criminal
activity. To conclude otherwise severely curtails this valuable tool of law
enforcement.
[19] As an initial matter, our standard of review in appeals from the denial of a
motion to suppress evidence is well settled. “We review the denial of a motion
to suppress in a manner similar to reviewing the sufficiency of the evidence.
We consider only the evidence favorable to the trial court’s ruling, alongside
substantial uncontradicted evidence to the contrary, to decide if that evidence is
sufficient to support the denial.” Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013)
(citing Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)).
[20] For traffic stops based on seatbelt violations, the Act and the Indiana Supreme
Court’s interpretation of it are clear:
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Indiana Code section 9-19-10-3.1, also known as the Seatbelt
Enforcement Act (“Act”), provides that “a vehicle may be
stopped to determine compliance with this chapter. However, a
vehicle, the contents of a vehicle, the driver of a vehicle, or a
passenger in a vehicle may not be inspected, searched, or
detained solely because of a violation of this chapter.” In
Baldwin v. Reagan, 715 N.E.2d 332 (Ind. 1999), we upheld the
constitutionality of [the prior version of the statute] against a
challenge that the statute unconstitutionally provided authority
for entirely pretextual traffic stops. We reasoned that the statute
could be constitutionally applied because under it law
enforcement officers could stop motorists only where they had
reasonable suspicion that a seat belt violation had occurred. On
the basis of the language of the statute, we agreed with the
Attorney General’s position that “the statute requires that when a
stop to determine seat belt law compliance is made, the police are
strictly prohibited from determining anything else, even if other
law would permit.” Baldwin, 715 N.E.2d at 339. We also stated
that the statute could be read to prohibit a police officer making a
seat belt stop from even asking the driver for consent to search
the vehicle or its occupants. Id. at 339 n.8.
At the same time, the police are not ousted of authority to investigate
further if the circumstances warrant. “[A] brief police detention of an
individual during investigation is reasonable if the officer reasonably
suspects that the individual is engaged in, or about to engage in, illegal
activity.” Id. at 337. We place the burden on the State to show
that under the totality of the circumstances its intrusion was
reasonable. Id.
***
. . . The language of the Act and subsequent case law clearly
dictate that in adopting the Act, the Legislature intended the
statute to limit, rather than expand, police authority with respect
to seat belt enforcement stops and sought to circumscribe the
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power of police to use a seat belt stop as an opportunity to
inspect, search, or detain on other grounds, even if constitutional
law would permit such police behavior. See Baldwin, 715 N.E.2d
332. Given the language of the Act itself, the Attorney General’s
own position in Baldwin interpreting that language, and the case
law, the Act simply does not permit investigatory behavior based
solely on a seat belt violation unless circumstances arise after the stop
that independently provide the officer with reasonable suspicion of other
crimes.
. . . Baldwin makes clear that “[r]easonable suspicion exists
where the facts known to the officer, together with the reasonable
inferences arising from such facts, would cause an ordinarily
prudent person to believe that criminal activity has or is about to
occur.”[6] Baldwin, 715 N.E.2d at 337 (emphasis added).
State v. Richardson, 927 N.E.2d 379, 382-83 (Ind. 2010) (last emphasis and
second and third alterations original to Richardson). And, when reviewing a
reasonable suspicion determination, we examine the totality of the
circumstances to see whether there was a particularized and objective basis for
suspecting legal wrongdoing. State v. Renzulli, 958 N.E.2d 1143, 1147-48 (Ind.
2011).
[21] In other words, while a traffic stop for a seatbelt violation cannot be turned into
a fishing expedition, the Act does not vitiate an officer’s authority to investigate
circumstances that become known to the stopping officer after he has initiated
6
The test for reasonable suspicion is identical under the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution. E.g., Campos v. State, 885 N.E.2d 590, 597
(Ind. 2008).
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the traffic stop. Id. For example, in Pearson v. State, 870 N.E.2d 1061, 1066
(Ind. Ct. App. 2007), trans. denied, we held that an officer’s recognition of the
driver upon stopping him and the officer’s actual knowledge of the driver’s
violent conduct on two prior occasions permitted the officer to further
investigate the possible presence of weapons on the driver. Similarly, in Trigg v.
State, 725 N.E.2d 446, 448-49 (Ind. Ct. App. 2000), we held that the driver’s
“nervous” behavior and “fidgeting” after the stop permitted the stopping officer
to further investigate the possible presence of weapons on the driver. And in
Richardson, our supreme court expressly recognized that Pearson and Trigg
“comport with Baldwin.” 927 N.E.2d at 383.
[22] The facts in this case are in line with that precedent. Here, immediately after he
pulled his vehicle onto the road to enforce the seatbelt violation, Harris
promptly turned down two side streets, which Collins later acknowledged
Harris had done in an attempt to avoid Trooper Organ. Then, after he had
initiated the traffic stop, Trooper Organ asked Harris for her identification. 7
Upon Harris providing her identification, Trooper Organ immediately
“recognized her name from the past as frequently purchasing
pseudoephedrine.” Tr. at 10. Trooper Organ’s recognition of Harris as a
“frequent[]” purchaser of products containing pseudoephedrine was based on
his experience, training, and familiarity with the NPLEx.
7
No one suggests that a request for a driver’s identification is prohibited by the Act.
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[23] Trooper Organ’s immediate recognition of Harris’ name is analogous to the
facts in Pearson, in which the stopping officer recognized the driver and knew of
the driver’s violent conduct on two prior occasions. Again, in Pearson we held
that the officer’s recognition of the driver and the basis for that recognition
permitted the officer to further investigate the possible presence of weapons on
the driver. 870 N.E.2d at 1066. Here, in light of Trooper Organ’s immediate
recognition of Harris’ name and the reason for that recognition, an ordinarily
prudent person would have investigated further. See id.; see also Richardson, 927
N.E.2d at 384.
[24] And that is what Trooper Organ did. He initially questioned Harris at her car.
But, rather than dispel Trooper Organ’s concerns, Harris’ behavior and
responses to those questions further raised suspicion. In particular, Trooper
Organ observed that, based on his past experiences in traffic stops, Harris “was
not acting the same as . . . a normal person, under normal circumstances[,
would have] acted.” Tr. at 8. Rather, Harris “seemed overly excited” and had
“slight stuttering of her words.” Id. Further, in response to Trooper Organ’s
questions, at first Harris said she was going to a gas station. When Trooper
Organ noted that she had just passed a gas station, Harris changed her story and
said she was going to get food stamps. When Trooper Organ told her there was
nowhere to get food stamps on the road they were on, Collins then volunteered
that “they saw [Trooper Organ] pull out of the parking lot and they turned
down Fifth Street to try and avoid [him].” Id.
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[25] Harris’ and Collins’ behavior and comments are also analogous to the
circumstances in Trigg, in which we held that the driver’s furtive behavior gave
the stopping officer reasonable suspicion to investigate the driver further. 725
N.E.2d at 448-49. Indeed, Trooper Organ’s investigation of Harris in light of
Harris’ post-stop behavior, her evasive driving, and Trooper Organ’s actual
knowledge that she was a frequent purchaser of pseudoephedrine products is
much more compelling than the circumstances that this court and the Indiana
Supreme Court approved in Trigg.
[26] Only after all of those circumstances had occurred did Trooper Organ then
search both for Harris and Collins on the NPLEx. While the NPLEx search
did not reveal criminal conduct per se, it did confirm Trooper Organ’s suspicion
that both Harris and Collins were frequent, and recent, purchasers of products
containing pseudoephedrine. That confirmation, coupled with the additional
circumstances already apparent, permitted Trooper Organ to continue his
investigation by asking Harris questions relating to those purchases. Again,
that is what Trooper Organ did, and it was that line of questioning that
eventually resulted in the discovery of the methamphetamine.
[27] The majority concludes that Trooper Organ’s knowledge of Harris as a frequent
purchaser of products containing pseudoephedrine did not give rise to
reasonable suspicion based on the premise that legal activity cannot support an
inference of illegal activity. In support of that position, the majority relies on
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our supreme court’s opinion in State v. Bulington, 802 N.E.2d 435 (Ind. 2004).8
But the Indiana Supreme Court did not make such a categorical declaration in
Bulington. To the contrary, the Bulington opinion makes clear that even legal
purchases, if done in unusual circumstances, can give rise to reasonable
suspicion. In particular, the court explicitly noted: “we think it likely that we
would find reasonable suspicion to exist” in numerous legal circumstances,
including “information that the person legally purchased” more than “a small
to moderate amount of one precursor”9 or where a person “purchases . . . one
precursor and then commits a traffic violation warranting a traffic stop.” Id. at
441. Both of those situations apply here, where Trooper Organ immediately
recognized Harris as “frequently purchasing pseudoephedrine,” Tr. at 10, and
the basis for his stop was an independent traffic violation.
[28] Considering the totality of the circumstances, I conclude that the trial court’s
judgment is supported by sufficient evidence. Trooper Organ’s post-stop
investigation of Harris was not based solely on a seatbelt violation but, instead,
on numerous facts and circumstances that arose after he had initiated the stop,
which independently provided Trooper Organ with reasonable suspicion of
ongoing criminal conduct. Again, once Trooper Organ initiated the traffic stop,
8
The majority also cites Saffold v. State, 938 N.E.2d 837, 839 n.3 (Ind. Ct. App. 2010), trans. denied, but as
Saffold relies on Bulington I need not discuss Saffold separately.
9
The defendant in Bulington made a one-time purchase of three boxes of antihistamines, which, in a 3-2
opinion, the majority of our supreme court characterized as a “small to moderate amount.” 802 N.E.2d at
441. Here, in contrast, Harris made nine separate purchases of products containing pseudoephedrine.
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Harris attempted to evade him; upon stopping her, he immediately recognized
her name for the frequency with which it had appeared on the NPLEx; and,
upon questioning her, she appeared unusually nervous. After all of those
circumstances had presented themselves, Trooper Organ then confirmed on the
NPLEx that both Harris and her passenger had made frequent and recent
purchases of products containing pseudoephedrine.
[29] Nothing about the circumstances of Trooper Organ’s investigation
demonstrates that he used the seatbelt violation merely to go on a fishing
expedition. To the contrary, Trooper Organ’s investigation was simply good
police work. The Seatbelt Enforcement Act does not require an officer who
stops a motorist to quarantine and disregard the officer’s actual knowledge of
the motorist’s identity and previous conduct. And where, as here, that actual
knowledge is coupled with evasive and furtive behavior, the officer may
connect the dots. Accordingly, I would affirm the trial court’s denial of Harris’
motion to suppress.
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