                                                            FILED
                                                       Jun 30 2016, 7:51 am

                                                            CLERK
                                                        Indiana Supreme Court
                                                           Court of Appeals
                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                         Kevin L. Likes
Attorney General of Indiana                                Likes Law Office
                                                           Auburn, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          June 30, 2016
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           17A03-1512-CR-2090
        v.                                                 Appeal from the DeKalb Superior
                                                           Court
Megan J. Cassady,                                          The Honorable Kevin P. Wallace,
                                                           Judge
Appellee-Defendant.                                        Trial Court Cause No.
                                                           17D01-1504-F6-70



Brown, Judge.




Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016               Page 1 of 18
[1]   The State appeals the trial court’s grant of Megan Cassady’s motion to suppress

      evidence following a traffic stop and dog sniff. The State raises one issue which

      we revise and restate as whether the trial court erred in granting Cassady’s

      motion to suppress. We reverse and remand.


                                         Facts and Procedural History

[2]   On April 19, 2015, DeKalb County Sheriff’s Deputy Todd McCormick

      observed Cassady stop at an intersection and then turn right without allowing

      any distance between her approach to the intersection and the activation of her

      turn signal. Deputy McCormick initiated a traffic stop,1 and called dispatch

      with the location, the vehicle description, and the license plate information. He

      then approached Cassady and explained the reason for the stop. Cassady

      reported: “I am allowed to change my mind, am I not.” Transcript at 10.

      Deputy McCormick obtained her license and observed her become defensive

      and very guarded in her comments.


[3]   He then returned to his vehicle, hooked up his dog “on lead,” and requested a

      license check on Cassady. Id. at 13. He then walked his dog around Cassady’s

      vehicle while he waited for dispatch to provide information on her status. The

      dog went around Cassady’s vehicle and alerted for the odor of narcotics prior to




      1
        Deputy McCormick testified that he initiated the traffic stop because Cassady violated Ind. Code § 9-21-8-
      25, which provides: “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. A vehicle traveling in a
      speed zone of at least fifty (50) miles per hour shall give a signal continuously for not less than the last three
      hundred (300) feet traveled by the vehicle before turning or changing lanes.”

      Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016                             Page 2 of 18
      the time that dispatch informed Deputy McCormick that Cassady had a valid

      license. Deputy McCormick took the dog around again, and the dog again

      alerted for the odor of narcotics, specifically, hitting on the driver and passenger

      doors. The dog’s second alert occurred just prior to or at approximately the

      same time as dispatch communicated to Deputy McCormick that Cassady had

      a valid license. Approximately four minutes passed between the time Cassady

      stopped her vehicle and the completion of the dog sniff. Deputy McCormick

      then searched the vehicle and discovered drugs under the driver’s seat.


[4]   On April 21, 2015, the State charged Cassady with possession of

      methamphetamine as a level 6 felony, possession of paraphernalia as a class A

      misdemeanor, and failure to signal turn as a class C infraction. On September

      17, 2015, Cassady filed a motion to suppress and argued that the search of her

      vehicle was in violation of the United States and Indiana Constitutions.


[5]   On October 14, 2015, the court held a hearing. When asked what he observed,

      Deputy McCormick answered:

              [A]s I was speaking with her, she became defensive in her, and
              very guarded in her comments or answering questions that I had
              for her, and, uh, that’s based on experience as a police officer
              dealing with many people during the day. Uh, just my initial
              observations of their behaviors and their attitude towards law
              enforcement.


      Id. at 11. When asked if he thought everybody is a little nervous when they are

      pulled over, Deputy McCormick testified: “They are to some degree, but others

      more than usual. There’s no definite difference you can, you just, I can’t
      Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016   Page 3 of 18
      explain it to you. It’s something that you would have to be able to experience,

      based on stopping thousands of people.” Id. at 12. He testified that while he

      was asking Cassady questions and waiting for her to produce her license, he

      decided that he was going to remove his dog and perform a scan with the dog.

      The following exchange occurred during the direct examination of Deputy

      McCormick:

              Q Uh, the dog search, which happened first? You got the return
              on the radio, or you did the dog search and the dog hit?


              A I’m not sure exactly. I know the way that I normally do them,
              I obtain their return while I am conducting the scan. So, I don’t
              know that I received the result back prior to the alert. I, I
              probably did, but I was in the middle of conducting a free-air
              scan while I’m waiting for the return.


              Q Very close in time, hard to say which happened first?


              A Correct.


      Id. at 16. On cross-examination, Deputy McCormick testified that it was not

      his intention to walk his dog around all cars that he stopped for a traffic

      violation.


[6]   Recordings of the radio communications were admitted at the hearing as State’s

      Exhibit 2, consisting of a cd with six recordings, each titled by a time stamp of

      when the track began recording according to the dispatch computers. One of

      the recordings with a title of 21.49.07 reveals Deputy McCormick calling in his


      Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016   Page 4 of 18
      location of “Quincy and Randolph” at about ten seconds into the recording.

      State’s Exhibit 2. In a recording titled 21.51.54, Deputy McCormick states

      “license check on the registered owner.” Id. In another titled 21.52.50,

      dispatch states: “she’s a valid zero operator,” and Deputy McCormick testified

      that this indicated that Cassady had a valid license. Id. The last recording on

      State’s Exhibit 2, titled in part 21.55.43, included Deputy McCormick’s

      statements to dispatch that his dog issued a positive alert on the vehicle.


[7]   The court also admitted as State’s Exhibit 3 an in-car video recording of Deputy

      McCormick following Cassady’s vehicle and performing the stop and dog sniff.

      Cassady’s vehicle stopped at approximately 0:43 (forty-three seconds) into the

      video, Deputy McCormick gave his location as “Quincy and Randolph” at

      0:59, he exited his vehicle around 1:15, he talked with Cassady and obtained

      her driver’s license between approximately 1:20 and 2:10, he then returned to

      his vehicle with something in his hand at approximately 2:15-2:20, and he

      walked his dog around Cassady’s vehicle between approximately 3:45 and 4:35.

      State’s Exhibit 3.


[8]   On November 5, 2015, the court entered an order granting Cassady’s motion to

      suppress, which states:

              A vehicle driven by Megan Cassady, the Defendant, was stopped
              for a red light at the corner of Randolph Street and Quincy Street
              in Garrett, Indiana during the evening of April 19, 2015. While
              stopped at the light, [Cassady] turned on her right turn signal,
              and, when the light changed, turned right onto Quincy Street.
              Deputy Todd McCormick of the DeKalb County Sheriff’s

      Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016   Page 5 of 18
        Department, was in a patrol car behind [Cassady], and initiated a
        traffic stop for violation of I.C. 9-21-8-25 for failing to signal
        intention to turn not less than 200 feet before turning.


        Deputy McCormick’s in-car camera recorded the stop. Deputy
        McCormick approached [Cassady’s] driver’s side front window.
        According to Deputy McCormick, [Cassady] (who remained in
        her vehicle and is not seen at that point in the video), was
        defensive and guarded. These conclusions were “based on my
        (Deputy McCormick’s) experience. I can’t explain. I had
        suspicions.” These conclusions were reached in just a very few
        seconds of contact with [Cassady]. Deputy McCormick admitted
        he was working a drug interdiction detail that evening, and had
        pretty much decided to conduct a free-air dog sniff when he
        made the stop.


        Both sides have cited the recent U.S. Supreme Court case
        Rodriguez v. U.S. for the proposition that [sic], “that a dog search
        cannot extend a traffic stop unless there is reasonable suspicion
        for a further, non-traffic investigation” as phrased in the
        argument section of the State’s brief.


        Under the facts of this case, there was no reasonably articulable
        suspicion of criminal activity for a further non-traffic
        investigation. The State argues that the stop in this case was
        around three and a half minutes, not twenty-nine minutes as in
        Rodriguez, but neither the total amount of time of the stop nor the
        sequence of whether the drug dog hit before or after dispatch
        completed the check of [Cassady’s] license are determinative.


        As such, the items discovered and seized from [Cassady’s]
        vehicle were taken in violation of the Fourth Amendment of the
        United States Constitution and will be suppressed.


Appellant’s Appendix at 34-35.

Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016       Page 6 of 18
                                                     Discussion

[9]    The issue is whether the trial court erred in granting Cassady’s motion to

       suppress. The State asserts that the initial stop was valid because Cassady

       committed a traffic infraction, and that a dog sniff conducted while a traffic stop

       is ongoing, before the results of a license check have been received or the ticket

       written, does not implicate the Fourth Amendment and does not need to be

       supported by reasonable suspicion of criminal wrongdoing. The State posits

       that, because the dog sniff did not prolong an otherwise completed stop, it did

       not violate the Fourth Amendment and that the results of that sniff, in turn,

       authorized a search of the vehicle pursuant to the automobile exception. It

       points out that Deputy McCormick had his dog with him when he initiated the

       stop and did not have to wait for a dog to be brought to the scene, that he called

       in the license plate number immediately at the initiation of the stop, that he

       explained the purpose of the stop and obtained Cassady’s license and

       registration, and that he returned to his vehicle to call in the information to run

       a check on her license. The State contends that it was only while Deputy

       McCormick was waiting for dispatch to respond with the results of that check

       that he performed the dog sniff.


[10]   The State’s position is that the trial court clearly erred as a matter of law in

       suppressing the evidence on the basis that there was no reasonably articulable

       suspicion of criminal activity for a further non-traffic investigation, and that

       Rodriguez v. United States, 135 S. Ct. 1609 (2015), Illinois v. Caballes, 543 U.S.

       405, 125 S. Ct. 834 (2005), and the long line of Indiana dog sniff cases require

       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016     Page 7 of 18
       reasonable suspicion of criminal activity only when the dog sniff occurs after the

       traffic stop has been, or reasonably should have been, completed. The State

       argues that, at the moment when his dog alerted on Cassady’s vehicle, Deputy

       McCormick had probable cause of criminal wrongdoing that justified any

       further detention occurring beyond that point in time. The State further argues

       “[a]lthough the video begins earlier in time than the first radio transmission, the

       two can be correlated to determine at which time events on the video took

       place.” Appellant’s Brief at 6 n.1.


[11]   Cassady does not challenge the initial traffic stop or allege that the automobile

       exception did not apply.2 Rather, she argues that the dog sniff occurred after

       Deputy McCormick should have completed the tasks relating to the traffic stop,

       thus prolonging the stop. She asserts that Deputy McCormick did not have any

       reasonable suspicion of any ongoing criminal activity and that he should have

       conducted the traffic stop as expeditiously as possible. She agrees that the time

       involved in the dog sniff was minimal, but asserts that Deputy McCormick

       added to his stop of her vehicle by the additional criminal investigation of the

       dog sniff, and that he began preparing for the dog sniff rather than writing the

       ticket for the infraction.




       2
        We note that the trial court did not base its decision on the validity of the underlying traffic stop and, as
       Cassady does not challenge the stop itself, we will not review that issue.



       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016                             Page 8 of 18
[12]   The State responds that Cassady’s assertion “ignores the reality that until the

       officer receives the report back he will often not have decided whether to issue a

       ticket or just a warning.” Appellant’s Reply Brief at 6. The State further

       responds that even assuming the deputy began writing out a ticket while he was

       waiting and that the ticket was completed and ready to hand over to Cassady as

       soon as the report from dispatch was received, by the time dispatch informed

       him that Cassady had a valid license, the continued detention was supported by

       probable cause of criminal wrongdoing.


[13]   “In reviewing a trial court’s motion to suppress, we determine whether the

       record discloses ‘substantial evidence of probative value that supports the trial

       court’s decision.’” State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind. 2011) (quoting

       State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)). “We do not reweigh the

       evidence, but consider ‘conflicting evidence most favorably to the trial court’s

       ruling.’” Id. (quoting Quirk, 842 N.E.2d at 340). “When the State appeals from

       a negative judgment, as here, it ‘must show that the trial court’s ruling on the

       suppression motion was contrary to law.’” Id. (quoting State v. Washington, 898

       N.E.2d 1200, 1203 (Ind. 2008), reh’g denied). “[T]he 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).


[14]   To the extent the trial court based its grant of Cassady’s motion to suppress

       merely on the idea that no reasonably articulable suspicion of criminal activity

       existed, we disagree. “It is well settled that a dog sniff is not a search protected

       by the Fourth Amendment.” State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010).

       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016   Page 9 of 18
       Accordingly, no degree of suspicion is required to summon the canine unit to

       the scene to conduct an exterior sniff of the car or to conduct the sniff itself. Id.

       We also note that the constitutional reasonableness of a traffic stop does not

       depend on the actual motivations of the individual officers involved. State v.

       Gray, 997 N.E.2d 1147, 1152 (Ind. Ct. App. 2013) (citing Whren v. United States,

       517 U.S. 806, 813, 116 S. Ct. 1769 (1996)), trans. denied.


[15]   In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the United States Supreme

       Court addressed dog sniffs in the context of traffic stops. The Court held that

       “a police stop exceeding the time needed to handle the matter for which the

       stop was made violates the Constitution’s shield against unreasonable seizures.”

       135 S. Ct. at 1612. The Court held that “[a] seizure justified only by a police-

       observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged

       beyond the time reasonably required to complete th[e] mission’ of issuing a

       ticket for the violation.” Id. (quoting Illinois v. Caballes, 543 U.S. 405, 407, 125

       S. Ct. 834 (2005)). The Court observed that it had “so recognized in Caballes”

       and “adhere[d] to the line drawn in that decision.” Id.


[16]   The Court held that because addressing the infraction is the purpose of the stop,

       “it may ‘last no longer than is necessary to effectuate th[at] purpose.’” Id. at

       1614 (citing Caballes, 543 U.S. at 407, 125 S. Ct. 834). The Court further held

       that “[a]uthority for the seizure thus ends when tasks tied to the traffic

       infraction are—or reasonably should have been—completed.” Id. The Court

       observed that its decisions in Caballes and Arizona v. Johnson, 555 U.S. 323, 129

       S. Ct. 781 (2009), heed these constraints. Id. at 1614. The Court stated:
       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016     Page 10 of 18
        In [Caballes and Johnson], we concluded that the Fourth
        Amendment tolerated certain unrelated investigations that did
        not lengthen the roadside detention. Johnson, 555 U.S., at 327-
        328, 129 S. Ct. 781 (questioning); Caballes, 543 U.S., at 406, 408,
        125 S. Ct. 834 (dog sniff). In Caballes, however, we cautioned
        that a traffic stop “can become unlawful if it is prolonged beyond
        the time reasonably required to complete th[e] mission” of
        issuing a warning ticket. 543 U.S., at 407, 125 S. Ct. 834. And
        we repeated that admonition in Johnson: The seizure remains
        lawful only “so long as [unrelated] inquiries do not measurably
        extend the duration of the stop.” 555 U.S., at 333, 129 S. Ct.
        781. See also Muehler v. Mena, 544 U.S. 93, 101, 125 S. Ct. 1465,
        161 L.Ed.2d 299 (2005) (because unrelated inquiries did not
        “exten[d] the time [petitioner] was detained[,] . . . no additional
        Fourth Amendment justification . . . was required”). An officer,
        in other words, may conduct certain unrelated checks during an
        otherwise lawful traffic stop. But . . . he may not do so in a way
        that prolongs the stop, absent the reasonable suspicion ordinarily
        demanded to justify detaining an individual.


Id. at 1614-1615. The Court held that beyond determining whether to issue a

traffic ticket, an officer’s mission includes ordinary inquiries incident to the

traffic stop which typically include checking the driver’s license, determining

whether there are outstanding warrants against the driver, and inspecting the

automobile’s registration and proof of insurance. Id. The Court held that the

critical question is whether conducting the sniff prolongs or adds time to the

stop. Id. at 1616. This Court has previously held that the burden is on the State

to show the time for the traffic stop was not increased due to a canine sniff.

Wells v. State, 922 N.E.2d 697, 700 (Ind. Ct. App. 2010), trans. denied.




Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016   Page 11 of 18
[17]   The trial court made no finding regarding whether conducting the dog sniff

       prolonged the stop. Deputy McCormick testified that he called in Cassady’s

       information, and began a search with his dog while he was waiting for dispatch

       to provide information back on her status. Based upon the audio recording,

       approximately three minutes and thirty-five seconds passed between the time

       Deputy McCormick gave his location of “Quincy and Randolph” and a

       description of the vehicle to dispatch at approximately 21.49.17, and the time

       that he was informed that Cassady was a valid operator at approximately

       21.52.52. Similarly, based upon the video recording, approximately three

       minutes and thirty-five seconds passed between the time Deputy McCormick

       gave his location of “Quincy and Randolph” and the time when he concluded

       walking his dog around Cassady’s vehicle.


[18]   Comparing the time on the audio and video recordings, we conclude that

       Deputy McCormick’s dog alerted for the odor of narcotics at least once prior to

       the time that dispatch informed Deputy McCormick that Cassady had a valid

       license. The dog’s second alert occurred just prior to or at approximately the

       same time as dispatch communicated to Deputy McCormick that Cassady had

       a valid license. We also observe that only approximately four minutes passed

       between the time Cassady stopped her vehicle and the completion of the dog

       sniff. Under the circumstances, we conclude that Deputy McCormick’s actions

       were conducted in a manner that did not prolong the stop beyond the time




       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016   Page 12 of 18
reasonably required to complete the mission of issuing a ticket.3 See Myers v.

State, 839 N.E.2d 1146, 1150 (Ind. 2005) (finding no error in the trial court’s

determination that the canine sniff test occurred while the traffic stop was

ongoing, that is, while defendant was having the traffic citation explained to

him); cf. Wells, 922 N.E.2d at 700-702 (holding that dog sniff and ensuing search

were the result of an unconstitutional seizure where canine unit summoned

only after officer obtained all information needed to write traffic ticket and

canine unit arrived “nearly twenty minutes after [defendant’s] traffic stop could

have been completed and almost forty minutes after it began”); Wilson v. State,

847 N.E.2d 1064, 1066 (Ind. Ct. App. 2006) (holding that the trial court erred

in denying the defendant’s motion to suppress where warrant check was

completed at 1:58 a.m., warning tickets were written at 2:06 a.m., and canine

unit was summoned at 2:15 a.m., only after defendant declined consent to

search car). Consequently, we conclude that the trial court erred in granting

Cassady’s motion to suppress.4




3
  The State asserts that Cassady did not make any separate argument of a violation under Article 1, Section
11 of the Indiana Constitution or cite any cases applying a Section 11 analysis, nor did the trial court’s order
address any claim or find any violation under the Indiana Constitution. While Cassady’s motion to suppress
mentioned the Indiana Constitution, she does not cite or develop an argument under the Indiana
Constitution on appeal. Nonetheless, we reach the same conclusion under the Indiana Constitution. In
analyzing a defendant’s claim under Article 1, Section 11, the Indiana Supreme Court held that a dog sniff
“is an unreasonable investigatory detention if the motorist is held for longer than necessary to complete the
officer’s work related to the traffic violation and the officer lacks reasonable suspicion that the motorist is
engaged in criminal activity.” Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). Given that Deputy
McCormick performed the dog sniff while he was waiting for a response from dispatch with respect to the
license check, we cannot say that the deputy’s actions were unreasonable.
4
  Cassady cites State v. Gray, 997 N.E.2d 1147 (Ind. Ct. App. 2013), trans. denied. In Gray, an officer initiated
a traffic stop, approached the vehicle, obtained the driver’s license, registration, and proof of insurance,
returned to his police vehicle, placed the driver’s information on the seat, and conducted a dog sniff of the

Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016                            Page 13 of 18
                                                         Conclusion

[19]   For the foregoing reasons, we reverse the trial court’s grant of Cassady’s motion

       to suppress and remand for proceedings consistent with this opinion.


[20]   Reversed and remanded.


       Baker, J., concurs.


       May, J., dissents with separate opinion.




       stopped vehicle. 997 N.E.2d at 1149-1150. The officer did not run the standard license/warrant check or
       report the driver’s information to dispatch prior to the dog sniff. Id. at 1150. The officer later testified that he
       “postponed the ‘normal traffic stop’ procedure (performing checks on driver license, license plate and
       outstanding warrants) in order to conduct the canine sniff.” Id. at 1152. On appeal, this court held that the
       delay amounted to an increase in the duration of the seizure for purposes outside the scope of the traffic stop.
       Id. Here, unlike in Gray, Deputy McCormick performed the dog sniff after he requested a license check and
       while he was waiting for a response. Accordingly, we find Gray distinguishable.



       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016                              Page 14 of 18
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       State of Indiana,                                          Court of Appeals Case No.
                                                                  17A03-1512-CR-2090
       Appellant-Plaintiff,
                                                                  Appeal from the DeKalb Superior
               v.                                                 Court
                                                                  The Honorable Kevin P. Wallace,
       Megan J. Cassady,                                          Judge
       Appellee-Defendant.                                        Trial Court Cause No.
                                                                  17D01-1504-F6-70




       May, Judge, dissenting.


[21]   The trial court granted Cassady’s motion to suppress the evidence gathered as

       part of a dog sniff during a traffic stop. The majority reverses because “Deputy

       McCormick’s actions were conducted in a manner that did not prolong the stop

       beyond the time reasonably required to complete the mission of issuing the

       ticket.” Slip op. at 13. As I would affirm the trial court’s decision, I must

       respectfully dissent.

       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016               Page 15 of 18
[22]   The majority acknowledges “a police stop exceeding the time needed to handle

       the matter for which the stop was made violates the Constitution’s shield

       against unreasonable seizures.” Rodriguez v. United States, 135 S. Ct 1609, 1612

       (2015). When a seizure is justified based on the observation of a traffic

       violation, it “become[s] unlawful if it is prolonged beyond the time reasonably

       required to complete th[e] mission [of issuing a traffic citation].” Illinois v.

       Caballes, 543 U.S. 405, 407 (2005). A dog sniff “is not fairly characterized as

       part of the officer’s traffic mission.” Rodriguez, 135 S. Ct. at 1615. The

       “[a]uthority for the seizure thus ends when tasks tied to the traffic infraction are

       - or reasonably should have been - completed.” Id.


[23]   In Rodriguez, the Government argued the stop was not unreasonably prolonged

       because the officer was “reasonably diligent” in completing the purpose of the

       stop and the “overall duration of the stop remain[ed] reasonable in relation to

       the duration of other traffic stops involving similar circumstances.” Id. The

       Court characterized the Government’s argument as allowing the officer “bonus

       time” should he complete “all traffic-related tasks expeditiously.” Id. The

       Court rejected that argument and held, “[t]he critical question, then, is not

       whether the dog sniff occurs before or after the officer issues a ticket . . . but

       whether conductingthe sniff ‘prolongs’ - i.e., adds time to - ‘the stop[.]’” Id.

       (quoting Caballes, 543 U.S. at 407). The State has the burden to prove the traffic

       stop was not prolonged due to the dog sniff. Bradshaw v. State, 759 N.E.2d 271,

       273 (Ind. Ct. App. 2001).




       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016    Page 16 of 18
[24]   The State did not meet that burden here. The video reveals the officer did not

       have time to complete any steps related to the observed traffic violation, as he

       was in the car for approximately sixteen seconds before exiting the car to

       retrieve the drug sniffing dog. See Rodriguez, 135 S. Ct. at 1615 (ordinary

       inquiries incident to a traffic stop “involve checking the driver’s license,

       determining whether there are outstanding warrants against the driver, and

       inspecting the automobile’s registration and proof of insurance.”). Deputy

       McCormick called in Cassady’s license after removing the dog from the car,

       and over a minute after receiving it from her. That prolonged the traffic stop

       beyond what was required to complete the mission of the stop – issuing a

       citation to Cassady because she didn’t signal a turn.


[25]   An officer may prolong the traffic stop to complete a dog sniff if the officer has

       “the reasonable suspicion ordinarily demanded to justify detaining an

       individual.” Id. Deputy McCormick did not have such reasonable suspicion.

       In Wilson v. State, 847 N.E.2d 1064, 1067 (Ind. Ct. App. 2006), the officer

       indicated Wilson possessed $4000 in cash, was watching police activity before

       he was confronted, sped off at a high rate of speed, had shaking hands, and had

       been convicted of drug related offenses. Those facts did not give the officer

       reasonable suspicion to call for a dog sniff for narcotics: “A person’s

       nervousness when stopped by the police at 2:00 a.m. is understandable, as is

       watching a passing patrol car. Carrying $4,000.00 in cash is unusual, but it is

       not illegal.” Id. at 1068.




       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016   Page 17 of 18
[26]   Here, the officer testified Cassady “became defensive in her, [sic] and very

       guarded in her comments or answering questions that I had for her[.]” (Tr. at

       11.) He also testified that while he was waiting for Cassady to produce her

       license and registration, he had “already made the decision that [he] was going

       to remove the dog, and perform a scan with the dog.” (Id. at 13.) Cassady’s

       actions were not enough to give the officer reasonable suspicion.


[27]   I believe the trial court correctly suppressed the evidence because the officer

       prolonged the traffic stop to complete the dog sniff and did not have reasonable

       suspicion to justify prolonging the stop. I acknowledge other decisions involve

       stops that were prolonged more. But under Rodriguez, the amount of time by

       which the stop is prolonged is not determinative. See Rodriguez, 135 S. Ct. at

       1616 (“The critical question, then, is not whether the dog sniff occurs before or

       after the officer issues a ticket . . . but whether conducting the sniff ‘prolongs’ -

       i.e., adds time to - ‘the stop[.]’”).


[28]   As the officer prolonged the stop without reasonable suspicion, I respectfully

       dissent.




       Court of Appeals of Indiana | Opinion 17A03-1512-CR-2090 | June 30, 2016    Page 18 of 18
