Rodney Killebrew II v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD E. C. LEICHT GREGORY F. ZOELLER
Kokomo, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
FILED
Oct 19 2012, 9:22 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
RODNEY KILLEBREW, II, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-1204-CR-303
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable William C. Menges, Judge
Cause No. 34D01-1103-CM-178
October 19, 2012
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Rodney D. Killebrew, II (Killebrew), appeals his conviction
for possession of marijuana, a Class A misdemeanor, Ind. Code § 35-48-4-11.
We reverse.
ISSUE
Killebrew raises one issue on appeal, which we restate as follows: Whether the
trial court abused its discretion when it admitted evidence discovered following a traffic
stop of his vehicle.
FACTS AND PROCEDURAL HISTORY
On March 3, 2011, Police Officer Chad VanCamp (Officer VanCamp) of the
Kokomo Police Department was traveling northbound on Apperson Way in Kokomo,
Indiana, when he observed a white Cadillac traveling southbound. The Cadillac had its
turn signal activated but continued through an intersection without turning. Officer
VanCamp thought that the driver might be impaired, so he initiated a traffic stop.
When Officer VanCamp exited his squad car, he immediately detected “an
overwhelming amount of air fresheners, more than what the normal person would usually
use” and suspected that the air fresheners might be masking agents used to hide the smell
of illegal drugs. (Transcript p. 6). He approached the driver’s side of the vehicle and
spoke to Killebrew, who was the driver. When Officer VanCamp asked Killebrew about
the turn signal, Killebrew told him that the signal sometimes stuck. Killebrew also
admitted that he had initially thought the Officer was pulling him over for a seatbelt
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violation because he had a malfunctioning seatbelt. Up until that point, though, Officer
VanCamp had not noticed that Killebrew was not wearing a seatbelt.
Officer VanCamp then asked Killebrew to exit his vehicle and spoke to him about
the overwhelming amount of air fresheners in the Cadillac. Killebrew’s explanation was
that he had just cleaned out his vehicle and that he thought he needed that many air
fresheners. Officer VanCamp brought his canine over to the Cadillac to sniff its exterior
for drugs. The canine alerted to the passenger door and the open window. As a result,
Officer VanCamp searched the interior of the Cadillac and found two clear plastic bags
containing plant material in the vehicle’s middle console. The plant material later tested
positive for marijuana.
On March 4, 2011, the State filed an Information charging Killebrew with
possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11(1). On February 9,
2012, a bench trial was held. During the State’s direct examination of Officer VanCamp,
Killebrew made a motion to suppress the evidence of the marijuana on the grounds that it
was obtained pursuant to an illegal traffic stop. The trial court denied the motion and
ultimately found Killebrew guilty as charged. On March 15, 2012, the trial court held a
sentencing hearing and sentenced Killebrew to one year suspended, except for time
served.
Killebrew now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
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Killebrew requests that we reverse his conviction for possession of marijuana on
the ground that the trial court abused its discretion in admitting evidence of the marijuana
found in his Cadillac. Our review of rulings on the admissibility of evidence is
essentially the same whether the challenge is made by a pre-trial motion to suppress or by
trial objection. Graham v. State, 971 N.E.2d 713, 716 (Ind. Ct. App. 2012). We do not
reweigh the evidence, and we consider conflicting evidence in the light most favorable to
the trial court’s ruling. Id. However, we must also consider the uncontested evidence
favorable to the defendant. Id.
II. Waiver
As a threshold issue, the State argues that Killebrew did not preserve his claim
because he failed to properly object to the evidence at trial. It is well-established that a
motion to suppress is insufficient to preserve an error for appeal. Jackson v. State, 890
N.E.2d 11, 15 (Ind. Ct. App. 2008). A defendant must instead reassert his objection at
trial contemporaneously with the introduction of the evidence to preserve the error. Id.
Here, we cannot agree with the State that Killebrew failed to preserve his claim. Instead,
it is clear that Killebrew’s objection occurred after the bench trial had commenced and
was contemporaneous with Officer VanCamp’s testimony regarding his search of
Killebrew’s vehicle and his discovery of the marijuana. Although Killebrew
characterized his objection as a motion, it was an objection, and it occurred at the proper
point during the trial to preserve his claim. See id. We also reject the State’s assertion
that Killebrew did not preserve his claim for appeal because he stipulated to the
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admission of the marijuana. Killebrew did not stipulate to the admission of the
marijuana. He merely stipulated that the “green plant material” was marijuana so that the
chemist would not have to testify. (Tr. p. 18). Thus, the stipulation was an agreement
concerning the testimony an absent witness would give if he were present, not its
admissibility.
III. Fourth Amendment
Because we find that Killebrew has preserved his claim, we now turn to the merits
of his argument. We note that he has not specified whether he appeals the trial court’s
admission of the evidence under the Fourth Amendment of the United States Constitution
or Article I, section 11 of the Indiana Constitution and that he has not presented us with
any legal authority relating to Article I, section 11. We have previously held that the
failure to present any authority or independent analysis supporting a separate standard
under the state constitution waives any state constitutional claims. Lockett v. State, 747
N.E.2d 539, 541 (Ind. 2001), reh’g denied. Accordingly, we will only analyze
Killebrew’s arguments under the standard for Fourth Amendment claims.
The Fourth Amendment to the United States Constitution protects the privacy and
possessory interests of individuals by prohibiting unreasonable searches and seizures.
Riggle v. State, 967 N.E.2d 522, 524 (Ind. Ct. App. 2012). It 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.
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U.S. CONST. amend IV. A traffic stop of a vehicle and temporary detention of its
occupants constitutes a “seizure” within the meaning of the Fourth Amendment.
Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010). Thus, we must evaluate
whether Officer VanCamp’s seizure of Killebrew and his Cadillac during the traffic stop
violated Killebrew’s privacy rights under the Fourth Amendment.
A law enforcement officer must have probable cause to instigate a full-blown
arrest or a detention that lasts for more than a short period. Id. However, a traffic stop is
valid under the Fourth Amendment if it is based on an observed traffic violation or if the
officer has reasonable suspicion that the person detained is involved in criminal activity.
State v. Rhodes, 950 N.E.2d 1261, 1265-66 (Ind. Ct. App. 2011). A law enforcement
officer’s good faith belief that a person has committed a violation will justify a traffic
stop, but an officer’s mistaken belief about what constitutes a violation does not amount
to good faith. Ransom v. State, 741 N.E.2d 419, 422 (Ind. Ct. App. 2000), trans. denied.
Such discretion is not constitutionally permissible. Id. The State also argues that if we
conclude that Killebrew’s actions did not constitute a traffic violation and that Officer
Vancamp did not have a reasonable suspicion that Killebrew was impaired, we should
extend the “community caretaking” exception to the Fourth Amendment’s protections to
validate Officer VanCamp’s traffic stop. We will address each of these points in turn.
A. Traffic Violation
Indiana courts have never addressed the issue of whether driving through an
intersection with an activated turn signal without turning or changing lanes is a traffic
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violation under Indiana law. Utilizing the rules of statutory construction, though, we
conclude that it is not.
In applying a statute, our primary goal is to ascertain and give effect to the
Legislature’s intent. Crowel v. Marshall Cnty. Drainage Bd., 971 N.E.2d 638, 645-46
(Ind. 2012). If a statute is unambiguous, i.e., susceptible to only one meaning, we must
give the statute its clear and plain meaning. In re D.W., 969 N.E.2d 89, 94 (Ind. Ct. App.
2012). However, if a statute is susceptible to multiple interpretations, we must try to
ascertain the Legislature’s intent and interpret the statute so as to accomplish that intent.
Id. In ascertaining the Legislature’s intent, we consider the phraseology, nature, and
design of the statute, and the consequences that flow from the reasonable alternative
interpretations of the statute. Id. at 95. We presume that our Legislature intended the
statutory language to be applied in a logical manner consistent with the underlying goals
and policy of the statute. Id.
I.C. § 9-21-8-25 provides that “[a] signal of intention to turn right or left shall be
given continuously during not less than the last two hundred (200) feet traveled by a
vehicle before turning or changing lanes. []” I.C. § 9-21-8-26 also provides that: “a
person may not stop or suddenly decrease the speed of a vehicle without first giving an
appropriate signal to a person who drives a vehicle immediately to the rear when there is
opportunity to give a signal.” The trial court concluded that these provisions prohibited
Killebrew’s use of his turn signal. We disagree. On their face, the provisions address the
failure to use a turn signal, not the continued use of a turn signal. In addition, we have
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not found any other statutory language expressly prohibiting Killebrew’s use of his turn
signal, and the State has not provided us with any. Accordingly, we conclude that the
Legislature did not intend the use of a turn signal through an intersection to be a traffic
violation.
This interpretation is consistent with court decisions in analogous situations in
other jurisdictions. In U.S. v. Miller, 146 F.3d 274, 277 (5th Cir. 1998), the Fifth Circuit
analyzed whether Miller had committed a traffic violation by flashing his turn signal
without turning or changing lanes. Law enforcement officers stopped Miller, believing
that he had violated a section of the Texas Transportation Code that stated:
A person may not operate a motor vehicle equipped with a red, white, or
blue beacon, flashing, or alternating light unless the equipment is: (1) used
as specifically authorized by this chapter; or (2) a running lamp, headlamp,
taillamp, backup lamp, or turn signal that is used as authorized by law.
Id. (quoting Tex. Transp. Code § 547.305(c)). The State argued that flashing a light
without turning or changing lanes violated the code because it was not specifically
“authorized by law[.]” Id. On appeal, the Fifth Circuit declined to interpret the phrase
“turn signal that is used as authorized by law” as creating a series of violations for all
uses not explicitly authorized by law. Id. at 278. Because the law enforcement officers
did not have an independent reason for stopping Miller other than his turn signal, the
Fifth Circuit held that the stop and subsequent search of Miller’s vehicle violated the
Fourth Amendment. Id. The court did not, however, address the issue of “whether any
danger that might be associated with having a turn signal on provides any other basis of
probable cause for a stop.” Id. at 279.
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In U.S. v. McDonald, 453 F.3d 958 (7th Cir. 2006), the Seventh Circuit addressed
the same under an Illinois statute. The defendant, McDonald was stopped by law
enforcement officers because he activated his turn signal but did not turn onto another
street. Id. at 959. The officers believed that McDonald’s use of his turn signal was a
violation of state law. Id. at 960. The relevant statute provided that a car’s “electric turn
signal device . . . must be used to indicate an intention to turn, change lanes or start from
a parallel parked position” and “must not be flashed on one side only on a parked or
disabled vehicle or flashed as a courtesy or ‘do not pass’ signal to operators of other
vehicles approaching from the rear.” Id. (quoting 625 Ill. Comp. Stat. 5/11-804(d)
(2005)). The statute did not, however, state that a driver must turn onto a different road
once the turn signal is activated. Id. Accordingly, the Seventh Circuit held that
McDonald’s actions did not constitute a traffic violation and that, as a result, the stop of
his vehicle violated the Fourth Amendment. Id. at 962.
B. Reasonable Suspicion
Although we conclude that Killebrew’s use of his turn signal was not a traffic
violation under Indiana law, we recognize that a violation is not a condition precedent to
a lawful traffic stop otherwise supported by the facts. Potter v. State, 912 N.E.2d 905,
908 (Ind. Ct. App. 2009). As stated above, a traffic stop is also valid if a law
enforcement officer has reasonable suspicion that the person detained is involved in
criminal activity. See Rhodes, 950 N.E.2d at 1266. The issue of whether the continuous
use of a turn signal without turning or switching lanes justifies a reasonable suspicion of
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impairment to support a traffic stop is an issue of first impression in Indiana. The
McDonald court did discuss the issue of reasonable suspicion, but only whether the
police officer’s belief that McDonald had committed a traffic violation was reasonable,
not whether his use of a turn signal was a reasonable indication of impairment. However,
in light of the importance of Fourth Amendment privacy protections, we conclude that
Killebrew’s actions, absent other indications of impairment, did not provide a reasonable
suspicion of impairment.
In support of this conclusion, we note that it is well-settled that reasonable
suspicion must be based on specific and articulable facts, not “an officer’s general
‘hunches’ or unparticularized suspicions” that criminal activity may be afoot. Davis v.
State, 858 N.E.2d 168, 172 (Ind. Ct. App. 2006). On review, this court considers whether
the facts known by the police at the time of the stop were sufficient for a man of
reasonable caution to believe that an investigation was appropriate. Id. Reasonable
suspicion entails some minimum level of objective evidentiary justification. Id. “It is the
requirement of reasonable suspicion that strikes a balance between the government’s
legitimate interest in traffic safety and an individual’s reasonable expectation of privacy.”
Id.
Here, Officer VanCamp testified that he only observed Killebrew for a “short
period of time”—three quarters of a block. (Tr. p. 9). During that short period of time,
he did not notice any signs that Killebrew was impaired other than his use of his turn
signal. In addition, while Officer VanCamp testified that the improper use of a turn
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signal could be a sign of impairment, he also testified that it is common for people who
are not impaired to go through intersections with their turn signals activated. When
Killebrew’s counsel asked, “Common for old people, too, have you seen them?” Officer
Vancamp responded, “Absolutely. I’ve stopped them for it, too.” (Tr. p. 9).
Based on the totality of the evidence, we conclude that without any other
indication of impairment, Officer VanCamp did not have a reasonable suspicion of
lawbreaking to stop Killebrew after only observing him activate his turn signal for three
quarters of a block. If we were to hold that an action equally common among unimpaired
drivers could justify a traffic stop, that ruling would be ripe for abuse and would not
strike a reasonable balance between the government’s legitimate interest in traffic safety
and an individual’s reasonable expectation of privacy. Accordingly, we hold that while
driving through an intersection with an activated turn signal might be a legitimate factor
in creating a reasonable suspicion that a driver is impaired, such use of a turn signal alone
is not sufficient.
C. Community Caretaking Function
Finally, the State argues that Officer VanCamp’s seizure of Killebrew’s Cadillac
was justified pursuant to the “community caretaking” function of law enforcement. The
“community caretaking” function is a narrow exception to the privacy protections of the
Fourth Amendment that has been recognized in certain circumstances, such as during an
inventory search. See Colorado v. Bertine, 479 U.S. 367, 381 (1987). It is premised on
the “fact that extensive, and often noncriminal contact with automobiles will bring local
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officials in ‘plain view’ of evidence, fruits, or instrumentalities of a crime, or
contraband.” Cady v. Dombrowski, 413 U.S. 433, 442 (1973). The Supreme Court
described the function as follows:
In the interests of public safety and as part of what the Court has called
“community caretaking functions,” automobiles are frequently taken into
police custody. Vehicle accidents present one such occasion. To permit
the uninterrupted flow of traffic and in some circumstances to preserve
evidence, disabled or damaged vehicles will often be removed from the
highways or streets at the behest of police engaged solely in caretaking and
traffic-control activities. Police will also frequently remove and impound
automobiles which violate parking ordinances and which thereby
jeopardize both the public safety and the efficient movement of vehicular
traffic. The authority of police to seize and remove from the streets
vehicles impeding traffic or threatening public safety and convenience is
beyond challenge.
South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976).
The State acknowledges that Indiana courts have only recognized the community
caretaking function within the context of impounding vehicles but now argues that we
should extend this exception to Fourth Amendment privacy protections, as Officer
VanCamp was attempting to ensure the safety of the public by stopping a potentially
impaired driver. We decline to do so. In Colorado, the Supreme Court characterized the
community caretaking function as a “narrow” exception to the protections of the Fourth
Amendment. See Colorado, 479 U.S. at 381. The Supreme Court also clarified that the
validity of a “search[] solely for the purpose of investigating criminal conduct” is
“dependent on the application of the probable-cause and warrant requirements of the
Fourth Amendment,” rather than the community caretaking function. Id. at 371.
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Here, Officer VanCamp clearly testified that he stopped Killebrew to investigate
whether he was an impaired driver. Thus, his subsequent search was an extension of a
criminal investigation and was not a product of an administrative caretaking function. As
the Supreme Court noted that the application of the probable cause and warrant
requirements of the Fourth Amendment are necessary when investigating criminal
conduct, we will not extend the community caretaking function to justify a search
conducted as a result of a criminal investigation. See id.
Because we find that Officer VanCamp’s traffic stop of Killebrew was not
justified based on a traffic violation, reasonable suspicion of criminal activity, or the
community caretaking function, we conclude that the seizure violated the Fourth
Amendment and the trial court abused its discretion in admitting the marijuana evidence
obtained in the course of the unlawful search. Furthermore, the State was required to
prove that Killebrew “knowingly or intentionally possess[ed] (pure or adulterated)
marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid” in order to convict him of
possession of marijuana as a Class A misdemeanor. The State did not present any
evidence of lawfully obtained marijuana, so we reverse Killebrew’s conviction for
possession of marijuana, a Class A misdemeanor. I.C. 35-48-4-11.
CONCLUSION
Based on the foregoing, we conclude that the trial court abused its discretion when
it admitted evidence obtained pursuant to an illegal traffic stop. We reverse Killebrew’s
conviction for possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11.
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Reversed.
BAILEY, J. and CRONE, J. concur
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