John Paul Allen v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 02 2019, 8:05 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Curtis T. Hill, Jr.
Bargersville, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Paul Allen, July 2, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2987
v. Appeal from the Pike Circuit Court
The Honorable William E.
State of Indiana, Weikert, Senior Judge
Appellee-Plaintiff. Trial Court Cause No.
63C01-1802-F2-110
Najam, Judge.
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Statement of the Case
[1] John Paul Allen brings this interlocutory appeal from the trial court’s denial of
his motion to suppress evidence of narcotics and paraphernalia seized from his
vehicle following a traffic stop. Allen raises the following two issues for our
review:
1. Whether the State’s detention of Allen for sixteen minutes
after a traffic stop had been completed so that the State
could conduct a canine search of the exterior of his vehicle
violated his rights under the Fourth Amendment to the
United States Constitution.
2. Whether the search violated his rights under Article 1,
Section 11 of the Indiana Constitution.
[2] We affirm.
Facts and Procedural History
[3] In the early morning hours of February 24, 2018, Indiana State Police Trooper
C.J. Boeckman, who was operating a fully marked police car, observed Allen
operate a motor vehicle at fourteen miles per hour above the posted speed limit
near Otwell. Allen passed Trooper Boeckman, and Trooper Boeckman turned
his vehicle around to initiate a traffic stop. Before Trooper Boeckman could
activate his emergency lights, however, Allen maneuvered his vehicle into the
parking lot of a nearby gas station and came to a stop. Allen did not park at the
gas pumps, which were operable on a twenty-four hour basis, but instead pulled
into the parking lot for a closed convenience store.
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[4] Trooper Boeckman pulled his vehicle alongside gas pumps near Allen’s vehicle.
Trooper Boeckman then approached Allen at the driver’s side window and
observed Ed Simison in the front passenger seat. Trooper Boeckman observed
that Allen was wearing a sweatshirt with a hood pulled over his head.
However, although the temperature was in the high 30s or low 40s, Allen had
“the sleeves pulled up.” Tr. Vol. II at 20. Trooper Boeckman also noticed that
Allen “would not make eye contact” with him. Id. When Trooper Boeckman
asked Allen why he had pulled so quickly into the gas station, Allen responded
that “he was tired and . . . they were going to switch drivers.” Id. at 81.
[5] Simison, however, informed Trooper Boeckman that he had picked Allen up
from a nearby friend’s house. Id. at 21. Trooper Boeckman thought it “wasn’t
adding up” that Simison would pick up Allen but Allen would then drive the
vehicle even though Allen “was the one who was tired.” Id. at 81-82. And,
when Trooper Boeckman asked follow-up questions, such as “[w]here they’re
headed to,” Simison and Allen had “difficulty answering” the questions. Id. at
21-22. Trooper Boeckman also felt that Allen and Simison exhibited a higher
degree of nervousness than typical for traffic stops.
[6] Pike County Sheriff’s Department Deputy Jason McKinney pulled into the gas
station to assist Trooper Boeckman after Deputy McKinney had witnessed
Allen pull into the convenience store parking lot followed by Trooper
Boeckman. Deputy McKinney approached the passenger’s side front window
of Allen’s vehicle and observed that Allen—who Deputy McKinney knew
personally but did not immediately recognize because Allen had his hood up
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and would not look at Deputy McKinney—was “clutching” the steering wheel
and was “very sweaty” despite the cool temperature. Id. at 45, 49. Deputy
McKinney thought it unusual that Allen, as the driver, did not acknowledge
him or look at him.
[7] Trooper Boeckman and Deputy McKinney then conferred at Trooper
Boeckman’s vehicle, where Trooper Boeckman showed Deputy McKinney
Allen’s driver’s license. Deputy McKinney immediately recognized Allen.
Aside from knowing Allen personally, Deputy McKinney also knew that Allen
had a history of “significant substance abuse,” which included a criminal
history. Id. at 53. As Deputy McKinney was relating that history to Trooper
Boeckman, Trooper Boeckman received a dispatch report that Allen and
Simison were suspected of trafficking in narcotics.
[8] At that time, which was approximately nine minutes after Trooper Boeckman
had first pulled his vehicle into the gas station behind Allen, Deputy McKinney
called for a canine unit. About sixteen minutes later, a canine unit conducted
an exterior search of Allen’s vehicle and indicated the presence of narcotics at
the driver’s side door. The officers then searched the vehicle and recovered 144
grams of methamphetamine, less than one gram of heroin, three hypodermic
needles (one of which was filled with what officers believed to be heroin), a
digital scale, and a large rubber band that would fit around the arm of an adult.
The officers arrested Allen and Simison.
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[9] The State charged Allen with numerous offenses, and he moved to suppress the
State’s evidence seized from his vehicle on the theory that the State’s seizure
had violated his federal and state constitutional rights. After a hearing, the trial
court denied Allen’s motion to suppress. The court then certified its order for
interlocutory appeal, which we accepted.
Discussion and Decision
Standard of Review
[10] Allen appeals the trial court’s denial of his motion to suppress and argues on
appeal that the State’s seizure of the evidence from his vehicle violated his
federal and state constitutional rights. As we have explained:
[Appellant’s] arguments that police violated his Fourth
Amendment and Article 1, Section 11 rights raise questions of
law we review de novo. As the United States Supreme Court has
explained with respect to the Fourth Amendment, “as a general
matter determinations of reasonable suspicion and probable
cause should be reviewed de novo on appeal,” while “findings of
historical fact” underlying those legal determinations are
reviewed “only for clear error.” Ornelas v. United States, 517 U.S.
690, 699 (1996). The Indiana Supreme Court applies the same
standard under Article 1, Section 11. E.g., McIlquham v. State, 10
N.E.3d 506, 511 (Ind. 2014). In other words, we review whether
reasonable suspicion or probable cause exists “under a standard
‘similar to other sufficiency issues’—whether, without reweighing
the evidence, there is ‘substantial evidence of probative value that
supports the trial court’s decision.’” Id. (quoting State v.
Richardson, 927 N.E.2d 379, 385 (Ind. 2010)).
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Redfield v. State, 78 N.E.3d 1104, 1106 (Ind. Ct. App. 2017) (some citations and
some quotation marks omitted), trans. denied. With that standard in mind, we
turn to each of Allen’s arguments on appeal.
Issue One: Fourth Amendment
[11] Allen first challenges the legality of the evidentiary seizure under the Fourth
Amendment. In particular, he argues that the officers at the scene of the traffic
stop lacked reasonable suspicion under the Fourth Amendment to prolong the
traffic stop for purposes of conducting a canine search of the exterior of his
vehicle.
[12] We initially note that the State does not dispute Allen’s assertion that the
purposes underlying the traffic stop were at an end by the time Deputy
McKinney called for a canine unit. As such, under the Fourth Amendment the
officers were not permitted to prolong their detention of Allen “absent the
reasonable suspicion ordinarily demanded to justify detaining an individual.”
Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015). Such reasonable
suspicion
is dependent upon both the content of information possessed by
police and its degree of reliability. The standard takes into
account the totality of the circumstances—the whole picture.
Although a mere “hunch” does not create reasonable suspicion,
the level of suspicion the standard requires is considerably less
than proof of wrongdoing by a preponderance of the evidence,
and obviously less than is necessary for probable cause.
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Navarette v. California, 572 U.S. 393, 397 (2014) (citations and quotation marks
omitted).
[13] Under the totality of the circumstances here, the officers had reasonable
suspicion to prolong their detention of Allen for the sixteen minutes they did so
in order to conduct the canine search. Deputy McKinney knew Allen
personally and knew that Allen had a significant history of drug abuse, which
included a prior criminal history. When Deputy McKinney was near Allen’s
vehicle, Allen refused to look at Deputy McKinney or present himself to
Deputy McKinney in a way that would allow him to immediately recognize
Allen. Allen also refused to make eye contact with Trooper Boeckman.
Further, Allen had a “difficult” time answering basic questions such as where
he was coming from and where he was going, and the story he and Simison
eventually relayed to the officers “wasn’t adding up.” Tr. Vol. II at 21-22, 82.
And, despite a cool nighttime temperature, Allen had his sleeves rolled up and
was very sweaty; he also was clutching the steering wheel and exhibited an
above average degree of nervousness for a traffic stop. Finally, immediately
before calling for a canine unit, the officers received a dispatch report that Allen
and Simison were suspected of trafficking narcotics.
[14] Allen’s argument on appeal seeks to piecemeal the facts before the officers and
assert that no one fact created reasonable suspicion. But that is not our inquiry.
Our task is to review the totality of the circumstances, and, again, that totality
readily demonstrates a sufficient basis for reasonable suspicion under the
Fourth Amendment. Accordingly, we affirm the trial court’s denial of Allen’s
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motion to suppress under the Fourth Amendment to the United States
Constitution.
Issue Two: Article 1, Section 11
[15] Allen also asserts that the State violated his rights under Article 1, Section 11 of
the Indiana Constitution when it prolonged his detention to conduct the canine
search. As the Indiana Supreme Court has explained:
While almost identical in wording to the federal Fourth
Amendment, the Indiana Constitution’s Search and Seizure
clause is given an independent interpretation and application. To
determine whether a search or seizure violates the Indiana
Constitution, courts must evaluate the “reasonableness of the
police conduct under the totality of the circumstances.” Litchfield
v. State, 824 N.E.2d 356, 359 (Ind. 2005). “We believe that the
totality of the circumstances requires consideration of both the
degree of intrusion into the subject’s ordinary activities and the
basis upon which the officer selected the subject of the search or
seizure.” Id. at 360. In Litchfield, we summarized this evaluation
as follows:
In sum, although we recognize there may well be other
relevant considerations under the circumstances, we have
explained reasonableness of a search or seizure as turning
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 citizens’ ordinary activities, and 3) the extent of law
enforcement needs.
Id. at 361.
Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005) (some citations omitted).
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[16] Applying those three factors here, we conclude that the officers did not violate
Allen’s rights under Article 1, Section 11 when they detained him for an
additional sixteen minutes to conduct the canine search. First, as explained
under Issue One, there was a high degree of suspicion that a violation had
occurred and that criminal activity was afoot. Second, the degree of the
intrusion—the sixteen minutes that elapsed until the canine unit arrived—while
not nothing, was nonetheless reasonable. Third, the extent of law enforcement
needs to detain Allen for sixteen minutes to conduct a canine search of the
exterior of the vehicle also weighs in favor of the State. Accordingly, we affirm
the trial court’s denial of Allen’s motion to suppress under Article 1, Section 11.
Conclusion
[17] In sum, we affirm the trial court’s judgment.
[18] Affirmed.
Baker, J., and Robb, J., concur.
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