                                                                                FILED
                                                                            Oct 11 2019, 9:05 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Brian A. Karle                                             Curtis T. Hill, Jr.
      Ball Eggleston, PC                                         Attorney General of Indiana
      Lafayette, Indiana
                                                                 Courtney Staton
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Octavius D. Alexander,                                     October 11, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-244
              v.                                                 Appeal from the Tippecanoe
                                                                 Circuit Court
      State of Indiana,                                          The Honorable Sean Persin, Judge
      Appellee-Plaintiff                                         Trial Court Cause No.
                                                                 79C01-1707-F5-80



      May, Judge.


[1]   Octavius D. Alexander appeals his conviction of Level 5 felony operating a

      vehicle with an alcohol concentration equivalent of 0.08 or more and with a

      previous conviction for operating while intoxicated causing serious bodily




      Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019                           Page 1 of 10
      injury. 1 He raises two issues on appeal, which we restate as whether the traffic

      stop of Alexander violated either the Fourth Amendment of the United States

      Constitution or Article I, Section 11 of the Indiana Constitution. We affirm. 2



                                Facts and Procedural History
[2]   On May 19, 2017, at 2:00 a.m., Officer Grant Leroux was on patrol in

      Lafayette, Indiana. Officer Leroux began following Alexander’s vehicle in the

      normal course of traffic near the intersection of Earl Avenue and Kossuth

      Street. Officer Leroux followed Alexander for about a mile before observing

      Alexander’s vehicle come to a complete stop at the intersection of Kossuth

      Street and Main Street. After stopping, Alexander signaled a right turn and

      turned once the stoplight turned green. Officer Leroux then initiated a traffic

      stop because Alexander did not signal his turn far enough in advance of the

      intersection.


[3]   While speaking with Alexander, Officer Leroux smelled alcohol on his breath

      and called Officer Matthew Meeks for assistance. When Officer Meeks arrived,

      he took over investigating whether Alexander was operating while intoxicated.

      While Officer Meeks was investigating, Officer Leroux conducted a canine sniff

      of the vehicle, and the canine did not detect the presence of any narcotics.




      1
          Ind. Code § 9-30-5-1; Ind. Code § 9-30-5-3(b)(2).
      2
          Alexander requested oral argument, which we denied by separate order on August 21, 2019.


      Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019                            Page 2 of 10
[4]   Officer Meeks asked Alexander if he had been drinking, and Alexander

      admitted having a few drinks. Alexander’s speech was slurred, his eyes were

      bloodshot, and his breath smelled of alcohol. Officer Meeks administered three

      field sobriety tests. Alexander failed the horizontal gaze nystagmus test and the

      one-legged stand test but passed the walk and turn test. Alexander consented to

      a chemical test, and Officer Meeks transported him to a hospital where a nurse

      drew his blood. The blood draw revealed Alexander’s blood alcohol

      concentration to be 0.15.


[5]   The State charged Alexander with Level 5 felony operating while intoxicated

      because he had a previous conviction for operating while intoxicated causing

      serious bodily injury in 2007. 3 The State also charged him with operating a

      vehicle with an alcohol concentration equivalent to .15 or more as a Class A

      misdemeanor, 4 operating a vehicle while intoxicated as a Class C

      misdemeanor, 5 operating a vehicle with a schedule I or II controlled substance




      3
        The abstract lists the offense as “9-30-5-1(b)/F5: Operating a Vehicle with an ACE of .15 or More
      where def. has a prior conviction fo [sic]” (App. Vol. II at 65.) Also, the bench trial order lists the
      requisite alcohol concentration equivalent as .15. (Id. at 55.) However, the listing of the requisite
      alcohol concentration equivalent appears to be a scrivener’s error. The requisite alcohol concentration
      equivalent for operating a vehicle with a prior conviction for operating while intoxicated causing serious
      bodily injury is .08, not .15. Ind. Code § 9-30-5-1; Ind. Code § 9-30-5-3(b)(2). When a case is tried to
      the bench, we assume the trial court knows and properly applies the law to the relevant facts of the case.
      Parks v. State, 113 N.E.3d 269, 274 (Ind. Ct. App. 2018). The trial court found Alexander’s alcohol
      concentration was above .08.

      4
          Ind. Code § 9-30-5-1.
      5
          Ind. Code § 9-30-5-2.


      Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019                           Page 3 of 10
      in one’s body as a Class C misdemeanor, 6 and Level 5 felony operating a

      vehicle with a schedule I or II controlled substance in one’s body. 7


[6]   On April 19, 2018, Alexander filed a motion to suppress all observations made

      by the arresting officers, the statements made by Alexander after the stop, and

      Alexander’s blood alcohol content. In support, Alexander alleged Officer

      Leroux did not have reasonable suspicion of a crime to initiate the traffic stop

      and the stop was unreasonable. The trial court held a hearing on June 5, 2018,

      and denied Alexander’s motion.


[7]   The court held a bench trial on November 27, 2018, and convicted Alexander

      of operating a vehicle with an alcohol concentration equivalent of 0.08 or more

      when the defendant has a prior conviction of operating while intoxicated

      causing serious bodily injury. 8 Alexander raised a continuing objection at trial

      based on the arguments presented in his motion to suppress. On January 11,

      2019, the court imposed a four-year sentence, with one year executed in the

      Indiana Department of Correction, two years to be served on community

      corrections, and one year suspended to probation.




      6
          Ind. Code § 9-30-5-1.
      7
          Ind. Code § 9-30-5-1; Ind. Code § 9-30-5-3(b)(2).
      8
       With regard to the remaining counts, the trial court either entered a verdict of not guilty or merged the
      count with the count of conviction due to double jeopardy concerns.




      Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019                           Page 4 of 10
                                   Discussion and Decision
[8]    Although Alexander filed a motion to suppress the evidence obtained during

       the traffic stop, his case proceeded to trial and he renewed his objection at trial.

       Thus, his appeal stems from the admission at trial of the evidence obtained

       during the traffic stop. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). The

       trial court has broad discretion in ruling on the admission of evidence, and we

       review for an abuse of discretion. Id. “We will reverse a trial court’s decision

       to admit evidence only if the decision was clearly against the logic and effect of

       the facts and circumstances and the error affects the defendant’s substantial

       rights.” Wright v. State, 108 N.E.3d 307, 313 (Ind. 2018) (internal quotation

       marks omitted). Nevertheless, “the ultimate determination of the

       constitutionality of a search or seizure is a question of law that we consider de

       novo.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).


                                           Fourth Amendment
[9]    The Fourth Amendment to the United States Constitution prohibits

       unreasonable searches and seizures. A traffic stop is a seizure that must comply

       with the Fourth Amendment. McLain v. State, 963 N.E.2d 662, 666 (Ind. Ct.

       App. 2012), trans. denied. Nevertheless, it is “well settled that police officers

       may stop a vehicle when they observe minor traffic violations.” Reinhart v.

       State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).


[10]   At issue in this case violation of a traffic control statute that provides: “A signal

       of intention to turn right or left shall be given continuously during not less than

       Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019         Page 5 of 10
       the last two hundred (200) feet traveled by a vehicle before turning or changing

       lanes.” Ind. Code § 9-21-8-25. Alexander does not dispute that he failed to

       signal his intent to turn until after he stopped at the intersection of Kossuth

       Street and Main Street. Accordingly, Alexander did not signal his turn at least

       200 feet in advance of that turn as required by Section 9-21-8-25, which

       prompted Officer Leroux to initiate the traffic stop.


[11]   Despite his failure to properly signal, Alexander argues the stop was

       unconstitutional because the State failed to show his compliance with the

       statute was even possible. Alexander’s argument relies on Rhodes v. State, 950

       N.E.2d 1261 (Ind. Ct. App. 2011). In Rhodes, a tow truck driver notified police

       that Rhodes, who was driving a vehicle, might be intoxicated. Id. at 1263. The

       officer followed Rhodes, observed Rhodes fail to use his turn signal, and pulled

       him over. Id. at 1264. Rhodes moved to suppress the evidence gathered during

       the traffic stop, and the trial court granted the motion. Id. The trial court

       observed that there might have been an intervening street between where

       Rhodes was to begin signaling and where Rhodes intended to turn, which could

       potentially confuse other drivers. Id. The trial court also highlighted Rhodes’

       testimony that he executed the turn after the officer activated the emergency

       lights. Id. We reviewed the trial court’s decision to ensure it was supported by

       substantial evidence of probative value, and we drew all reasonable inferences

       in favor of the trial court’s decision. Id. at 1264-65. We observed that the

       officer testified Rhodes had his turn signal on for about 150 feet prior to

       initiating his turn and the record did not reflect whether there had been at least

       Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019        Page 6 of 10
       200 feet between where Rhodes began traveling on the street and where he

       initiated his turn. Id. at 1265. We affirmed the trial court’s grant of the motion

       to suppress and explained:


               [T]he State failed to show that compliance with the statute was
               possible under the circumstances. In addition, if the trial court
               credited Rhodes’s testimony, once the officer turned on his
               emergency lights, Rhodes was required to pull over immediately.
               . .Thus, we cannot say that the trial court erred by concluding
               that Rhodes was not properly stopped for a traffic violation.


       Id.


[12]   In contrast, the State contends Officer Leroux’s stop of Alexander was

       reasonable pursuant to Peak v. State, 26 N.E.3d 1010 (Ind. Ct. App. 2015). Peak

       drove away from a house that was suspected of being used for drug activity, and

       an officer followed him. Id. at 1012. Peak stopped at a red light, activated his

       right turn signal, then turned right. Id. The officer pulled Peak over because he

       did not signal his turn sufficiently in advance. Id. The officer searched Peak

       and found marijuana on his person. Id. at 1013. Peak did not contest his

       failure to signal 200 feet before turning right. Id. at 1015. We observed that

       “[f]ailure to signal within the required distance is objective evidence of failure to

       comply with the statue.” Id. Consequently, Peak’s failure to signal his turn

       gave the officer reasonable suspicion to initiate the traffic stop. Id. at 1016.


[13]   Given the facts and procedural posture of this case, we find Peak more

       analogous. In Rhodes, there were evidentiary disputes about whether the officer


       Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019         Page 7 of 10
       activated his lights before Rhodes signaled his turn, whether the officer could

       have pulled Rhodes over for failing to signal his turn sufficiently in advance,

       and whether Rhodes had entered the roadway more than 200 feet in advance of

       his turn. Here, as in Peak, there is no evidentiary dispute about whether

       Alexander failed to signal his turn sufficiently in advance, 9 and thus the issue

       before us is a matter of law that we review de novo. As a matter of law, Officer

       Leroux was justified in initiating a traffic stop. See Love v. State, 741 N.E.2d

       789, 791 (Ind. Ct. App. 2001) (holding officer was clearly justified in stopping

       vehicle to investigate traffic infraction).


                       Article I, Section 11 of Indiana Constitution
[14]   Article 1, Section 11 of the Indiana Constitution states:


                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable search or seizure, shall
                not be violated; and no warrant shall issue, but upon probable
                cause, supported by oath or affirmation, and particularly
                describing the place to be searched, and the person or thing to be
                seized.


       We evaluate the reasonableness of a stop and seizure under the Indiana

       Constitution by looking at the totality of the circumstances and balancing: “1)




       9
         We also observe that the intersection of Earl Avenue and Kossuth Street is several blocks away from the
       intersection of Kossuth Street and Main Street. Google Maps, S. Earl Ave, Lafayette, IN,
       https://www.google.com/maps/place/S+Earl+Ave,+Lafayette,+IN (last visited September 12, 2019).
       Therefore, it was possible for Alexander to have initiated his turn signal at a distance greater than 200 feet in
       advance of his turn.

       Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019                                  Page 8 of 10
       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.”

       Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).


[15]   Alexander contends the degree of concern and suspicion was minimal because

       no evidence suggested Alexander was driving under the influence prior to

       Officer Leroux initiating the traffic stop. Yet, Officer Leroux did observe

       Alexander commit a traffic violation and, thus, was aware of an illegal act

       when he stopped the vehicle. Alexander argues the stop was unnecessarily

       intrusive because it included a canine sniff, but he does not point to any

       evidence in the record to demonstrate the canine sniff prolonged the stop,

       impeded his freedom of movement, or involved entering the vehicle. See State v.

       Gibson, 886 N.E.2d 639, 643 (Ind. Ct. App. 2008) (holding canine sniff of the

       exterior of defendant’s vehicle did not violate either the Fourth Amendment or

       the Indiana Constitution). Lastly, Alexander argues the extent of law

       enforcement need in this case was minimal because there were no other cars or

       pedestrians around at the time, he signaled his turn for several seconds while

       stopped before turning, and there was no indication Alexander was driving

       under the influence before he was stopped.


[16]   However, the enforceability of our traffic laws is not dependent upon such

       situation-specific factors. Police officers simply have authority to initiate traffic

       stops in order to enforce the traffic laws or to investigate a reasonable suspicion

       that a driver might be under the influence. Because the Litchfield factors weigh

       Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019         Page 9 of 10
       in favor of the State, Officer Leroux’s stop of Alexander did not violate Article

       1, Section 11 of the Indiana Constitution. See Johnson v. State, 992 N.E.2d 955,

       960 (Ind. Ct. App. 2013) (holding traffic stop of individual for suspected

       window tint violation and subsequent discovery of marijuana did not violate

       either the United States Constitution or the Indiana Constitution), trans. denied.



                                                Conclusion
[17]   Alexander failed to properly signal before turning. Therefore, law enforcement

       had reason to initiate a traffic stop, and the ensuing investigation of Alexander’s

       possible intoxication did not violate Alexander’s rights under the Fourth

       Amendment to the United States Constitution or Article 1, Section 11 of the

       Indiana Constitution. Accordingly, the trial court did not abuse its discretion

       when it admitted that evidence. We affirm the trial court.


[18]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-244 | October 11, 2019     Page 10 of 10
