Zachariah Marshall v. State of Indiana

FILED
Jun 20 2018, 5:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael A. Campbell Curtis T. Hill, Jr.
Valparaiso, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Zachariah Marshall, June 20, 2018
Appellant-Defendant, Court of Appeals Case No.
64A05-1710-CR-2368
v. Appeal from the Porter Superior
Court
State of Indiana, The Honorable David L.
Appellee-Plaintiff Chidester, Judge
Trial Court Cause No. 64D04-
1611-CM-10105
May, Judge.
Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018 Page 1 of 10
[1] Zachariah Marshall appeals the trial court’s denial of his renewed motion to
suppress. He argues the traffic stop initiated by Reserve Officer Sean Dolan
which led to Marshall’s arrest violated Marshall’s Fourth Amendment rights
under the United States Constitution because Reserve Officer Dolan did not
have reasonable suspicion to stop Marshall. We reverse and remand.
Facts and Procedural History
[2] In the early morning on October 29, 2016, Reserve Officer Dolan initiated a
traffic stop of Marshall’s vehicle based on Reserve Officer Dolan’s observation
that Marshall “was going over the posted speed limit.” (Tr. Vol. II at 39.)
Reserve Officer Dolan explained to Marshall that Reserve Officer Dolan pulled
Marshall over for speeding.
[3] Soon thereafter, the stop escalated to an investigation of operating a vehicle
while intoxicated. Reserve Officer Dolan’s supervisor, Corporal Robert O’Dea,
arrived on the scene and arrested Marshall. Reserve Officer Dolan testified he
did not write Marshall a citation for speeding because
Marshall’s BMV check came back that he had no priors to
speeding and also that Mr. Marshall was also under the
investigation for an O.W.I., therefore, I knew that he was going
to have plenty of money problems and legal problems ahead of
him that were going to be costly and I decided to cut him a break
on the citation for speeding.
(Id. at 13.)
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[4] On November 2, 2016, the State charged Marshall with Class A misdemeanor
operating a vehicle while intoxicated, endangering a person; 1 Class C
misdemeanor operating a vehicle with an alcohol concentration equivalent to
.08 but less than .15; 2 and Class C misdemeanor operating a vehicle while
intoxicated. 3 On August 4, 2017, Marshall filed a motion to suppress, alleging
the traffic stop was unlawful. The trial court denied Marshall’s motion on
August 8, 2017.
[5] On August 9, 2017, Marshall filed a renewed motion to suppress, again alleging
the traffic stop was unlawful, and requested a hearing on the motion. The trial
court granted Marshall’s request for a hearing and held a hearing on Marshall’s
renewed motion to suppress on August 17, 2017. The trial court denied
Marshall’s renewed motion to suppress on August 18, 2017.
[6] On September 6, 2017, Marshall filed a motion asking the trial court to certify
its denial of his renewed motion to suppress for interlocutory appeal. The trial
court granted Marshall’s request for certification on September 12, 2017. Our
court accepted jurisdiction over Marshall’s interlocutory appeal on December 5,
2017.
1
Ind. Code § 9-30-5-2(b).
2
Ind. Code § 9-30-5-1(a).
3
Ind. Code § 9-30-5-2(a).
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Discussion and Decision
[7] Our standard of review for the denial of a motion to suppress evidence is similar
to other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct. App.
2003), reh’g denied, trans. denied. We determine whether substantial evidence of
probative value exists to support the denial of the motion. Id. We do not
reweigh the evidence, and we consider conflicting evidence that is most
favorable to the trial court’s ruling. Id. But the review of a denial of a motion
to suppress is different from other sufficiency matters in that we must also
consider uncontested evidence that is favorable to the defendant. Id. We
review de novo a ruling on the constitutionality of a search or seizure, but we
give deference to a trial court’s determination of the facts, which will not be
overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind.
2008).
[8] The Fourth Amendment to the United States Constitution requires law
enforcement officials obtain a valid warrant before conducting searches or
seizures. A traffic stop is considered a seizure under the Fourth Amendment.
Bush v. State, 925 N.E.2d 787, 789 (Ind. Ct. App. 2010), clarified on reh’g 929
N.E.2d 897 (Ind. Ct. App. 2010) (clarifying procedural history of case and
addressing State’s claim of waiver). “To be valid, a traffic stop must be
supported by, at least, reasonable suspicion a traffic law has been violated or
other criminal activity is afoot.” Id. at 790. Reasonable suspicion must consist
of more than general hunches or suspicions. Abel v. State, 773 N.E.2d 276, 279
(Ind. 2002). We consider the totality of the circumstances in determining
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whether an officer had reasonable suspicion. Carter v. State, 692 N.E.2d 464,
467 (Ind. Ct. App. 1997).
[9] Marshall argues the trial court erred when it denied his renewed motion to
suppress because Reserve Officer Dolan’s traffic stop was unlawful.
Specifically, Marshall contends Reserve Officer Dolan’s testimony of his
“visual speed estimate” was insufficient to prove Reserve Officer Dolan had
reasonable suspicion to believe Marshall was exceeding the speed limit when
Reserve Officer Dolan initiated the traffic stop. (Br. of Appellant at 14.) This is
an issue of first impression in Indiana.
[10] In its order denying Marshall’s renewed motion for summary judgment, the
trial court concluded that “an officer’s testimony of speeding, without radar,
pacing or some number, when based upon his or her expertise and ability to
draw conclusions about the excessive speed of the vehicle, in general terms, is
sufficient to establish a reasonable suspicion of a traffic infraction justifying a
stop.” (App. Vol. II at 11.) In support of its conclusion, the trial court cited
four cases from other jurisdictions: State v. Butts, 269 P.3d 862 (Kan. 2012); State
v. Konvalinka, 819 N.W.2d 426, 2012 WL 1860352 (Iowa Ct. App. 2012); State
v. Allen, 978 So.2d 254 (Fla. Dist. Ct. App. 2008); and State v. Barnhill, 601
S.E.2d 215 (N.C. App. 2004), review denied.
[11] All of the cases cited by the trial court in support of its conclusion are
distinguishable from the facts in this case because they included testimony from
the officer on the scene of the approximate speed the defendant was traveling
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prior to the initiation of the traffic stop. See Butts, 269 P.3d at 1076 (“Officer
Hopkins first noticed Butts’ vehicle traveling at a speed of about 45 miles per
hour in a 30-mile-per-hour speed zone. The officer’s speed determination was
an estimate based upon his observations, training, and experience with radar
and speed detection.”); Konvalinka, at *1 (Officer “estimated Konvalinka to be
travelling at approximately sixty miles per hour. The speed limit in the area
was twenty-five miles per hour.”); Allen, 978 So.2d at 255 (Although officer did
not know the exact speed Allen was traveling, “Detective Rylott testified that
the area has a speed limit of twenty-five miles per hour and that he had to drive
well over fifty miles per hour to catch up to Allen.”); and Barnhill, 601 S.E.2d at
229 (“In Officer’s [sic] Malone’s opinion the vehicle was exceeding a safe
speed, as he estimated the vehicle to be traveling 40 m.p.h. in a 25 m.p.h.
zone.”).
[12] Here, the trial court noted as part of its order the relevant facts regarding
Reserve Officer Dolan’s testimony:
Hebron police officer Sean Dolan was patrolling the area around
State Road 8 and 500 West on October 19, 2016. He observed
Defendant’s car speeding and stopped the [D]efendant. Officer
Dolan was using a radar, but he could not testify at hearing or at
deposition 1) what speed the [D]efendant was traveling and 2)
what the radar showed as [D]efendant’s speed. He could only
state the following:
Q: How certain were you that the defendant was speeding?
A: Very certain, a hundred percent.
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(App. Vol. II at 10.) The facts in this case are more similar to those in State v.
Petzoldt, 803 N.W.2d 128, 2011 WL 2556961 (Iowa Ct. App. 2011). In Petzoldt,
Officer Jay King pulled over Petzoldt because Officer King thought Petzoldt
was speeding. After speaking with Petzoldt, Officer King suspected Petzoldt
was intoxicated, administered field sobriety tests, and arrested Petzoldt for
operating a vehicle while intoxicated. Id. at *1. Petzoldt filed a motion to
suppress, citing multiple grounds, including “lack of legal cause to stop
[Petzoldt’s] vehicle.” Id. The trial court denied Petzoldt’s motion to suppress
based on the legality of his traffic stop. 4 At his subsequent bench trial, the trial
court found Petzoldt guilty as charged and sentenced him accordingly.
[13] On appeal, Petzoldt argued the traffic stop was not justified by reasonable
suspicion because “Officer King had no ‘sufficient, specific, articulable facts to
substantiate a particularized suspicion to justify making an investigatory stop.’”
Id. at 3. The court stated:
We believe that with proper foundation, an officer’s visual
estimation of speed may be sufficient to supply probable cause to
stop a vehicle for speeding. But that is not the case here.
Here, Officer King testified he was playing Solitaire when he
observed Petzoldt’s pickup truck briefly as it passed in front of his
patrol car. Although he testified he believed the truck was
4
Petzoldt also argued “improper administration of field sobriety tests, lack of grounds to request a
preliminary breath test and/or invoke implied consent, violation of Iowa Code section 804.20, not requesting
a breath specimen in writing, lack of certification to operate the DataMaster, and improper questioning of
[Petzoldt] prior to Miranda warning.” Id. at *1. The trial court denied Petzoldt’s motion to suppress on all
grounds except his argument regarding the grounds for the preliminary breath test.
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travelling at a speed greater than the posted speed limit, Officer
King made no estimate as to how fast the truck was travelling or
how much over the posted limit he thought the pickup was
travelling. The posted speed limit is not even in the record before
us. Officer King’s visual estimate of speed was not confirmed by
any other means of corroboration of the speed, such as radar or
pacing. Officer King observed no other traffic infractions or
driving anomalies by the pickup. He reached his conclusion
based upon “years of experience looking at vehicles and the
speeds they are going,” something he did every day in his job as a
thirty-one-year veteran of the police force. Further, he said that
as he attempted to catch up to the pickup, he “could tell that it
was still going over the speed limit.” Officer King did not charge
Petzoldt with speeding. The speed of Petzoldt’s truck cannot be
discerned from viewing the video taken by Officer King’s
dashboard-mounted camera.
Id. (footnote omitted). As part of its analysis, the court relied on Allen and
Barnhill as instances where the officer’s visual estimation was sufficient to
supply probable cause to stop a vehicle for speeding. 5 Based thereon, the court
concluded:
Officer King’s testimony is solely conclusory. Having failed to
articulate his observations of the movement of the Petzoldt truck
in his testimony, Officer King’s opinion lacks any factual
foundation. Other than relying on his experience as a police
officer, he failed to express any reasons for his belief the truck
was speeding.
5
As noted infra, those cases are distinguishable on the basis the officers involved testified to an approximate
speed the defendant was traveling and to the speed limit in that area.
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Id. at *4. Because Officer King had not supplied specific, articulable facts upon
which he based his conclusion that Petzoldt was speeding, the court concluded
the traffic stop violated Petzoldt’s rights under the Fourth Amendment of the
United States Constitution and reversed Petzoldt’s conviction.
[14] Similar facts exist here. During a pre-trial deposition, Reserve Officer Dolan
could not recall the posted speed limit at the location of the traffic stop, but he
claimed he knew at the time of the stop what the speed limit was in the area.
He testified he “thought maybe it was forty miles an hour[.]” (Tr. Vol. II at 22.)
During the suppression hearing, Reserve Officer Dolan indicated he had visited
the location of the stop prior to the hearing and that the speed limit was fifty
miles per hour. Reserve Officer Dolan testified he did not pace Marshall’s
vehicle, did not write down the speed at which he observed Marshall traveling
prior to the traffic stop, and did not observe Marshall commit additional traffic
infractions.
[15] Instead, he agreed when asked, “you’re testifying that Mr. Marshall was doing
something above [the posted speed limit]?” (Id. at 12.) Reserve Officer Dolan
also testified his radar was properly calibrated and working at the time and
while he did not know the exact speed Marshall was traveling, his radar
indicated Marshall was going over the posted speed limit. Because Reserve
Officer Dolan could not testify regarding the speed of Marshall’s vehicle in
more specific terms, we hold he did not have specific articulable facts to support
his initiation of a traffic stop, and therefore the traffic stop violated Marshall’s
Fourth Amendment rights. See L.W. v. State, 926 N.E.2d 52, 59 (Ind. Ct. App.
Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018 Page 9 of 10
2010) (officer did not have reasonable suspicion to conduct investigatory stop of
L.W. and thus the stop violated L.W.’s Fourth Amendment rights), reh’g denied.
Conclusion
[16] The trial court erred when it denied Marshall’s renewed motion to suppress
because the traffic stop that resulted in Marshall’s arrest for driving while
intoxicated violated the Fourth Amendment to the United States Constitution.6
Accordingly, we reverse and remand for proceedings consistent with this
opinion.
[17] Reversed and remanded.
Riley, J., and Mathias, J., concur.
6
At trial and on appeal, Marshall also argued the traffic stop violated his rights under Article 1, Section 11 of
the Indiana Constitution, which also prohibits unreasonable search and seizure. The trial court’s order did
not address Marshall’s Indiana Constitutional argument. As the Indiana Constitution provides broader
protection than the Federal Constitution, State v. Moore, 796 N.E.2d 764, 767 (Ind. Ct. App. 2003) (“the
Indiana Constitution may prohibit searches which the federal Constitution does not”), trans. denied, and we
have concluded the traffic stop did not meet the lower protection provided by the Federal Constitution, we
need not address any argument regarding the Indiana Constitution.
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