MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                           Feb 05 2019, 9:14 am

precedent or cited before any court except for the                          CLERK
purpose of establishing the defense of res judicata,                    Indiana Supreme Court
                                                                           Court of Appeals
collateral estoppel, or the law of the case.                                 and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Rory Gallagher                                         Curtis T. Hill, Jr.
Marion County Public Defender                          Attorney General of Indiana
Appellate Division
                                                       Henry A. Flores, Jr.
Indianapolis, Indiana
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Jackson, Jr.,                                      February 5, 2019

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2127

        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Hon. Amy Jones, Judge
                                                           The Hon. Amy Barbar, Magistrate
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           49G08-1711-CM-45015




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2127 | February 5, 2019                Page 1 of 8
                                          Case Summary
[1]   Shortly before midnight on November 20, 2017, Michael Jackson, Jr., was

      stopped at an intersection in Marion County. When the light turned green,

      Jackson “squealed” his tires and made a right turn into the left-most of the two

      eastbound lanes. A police officer stopped Jackson, observed signs of

      intoxication, and administered a breath test. The State charged Jackson with,

      inter alia, Class A misdemeanor operating a vehicle while intoxicated (“OWI”).

      In August of 2018, the trial court entered judgment of conviction against

      Jackson for Class A misdemeanor OWI and sentenced him to twelve days of

      incarceration and 353 days of probation. Jackson contends that his trial

      counsel was ineffective for failing to adequately challenge the constitutionality

      of the traffic stop which led to the collection of evidence of his intoxication.

      Because we disagree, we affirm.



                            Facts and Procedural History
[2]   Shortly before midnight on November 20, 2017, Indiana State Police Trooper

      Cameron Bottema pulled Jackson over in Marion County after observing him

      “squeal[ing]” his tires and making a right turn into the left-most of two

      eastbound lanes rather than the right-most. Tr. Vol. II p. 6. When Trooper

      Bottema approached Jackson’s vehicle, he detected the odor of alcoholic

      beverage on Jackson’s breath and saw that his eyes were bloodshot and watery.

      Trooper Bottema administered, and Jackson failed, the horizontal-gaze-

      nystagmus, walk-and-turn, and one-legged-stand field-sobriety tests. A breath

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2127 | February 5, 2019   Page 2 of 8
      test indicated that Jackson’s blood alcohol concentration (“BAC”) was 0.158

      g/ml.


[3]   On November 21, 2017, the State charged Jackson with Class A misdemeanor

      OWI, Class A misdemeanor operating a vehicle with a BAC of 0.15 g/ml or

      greater, Class C infraction unsafe start, and Class C infraction improper turn.

      On August 8, 2017, a bench trial was held. During trial, Jackson’s trial counsel

      objected to Trooper Bottema’s stop on the basis that there was no reasonable

      suspicion to support it. The trial court overruled the objection. After the State’s

      evidence was presented, Jackson’s trial counsel moved for dismissal on the

      basis that Trooper Bottema did not have probable cause to stop Jackson. The

      trial court denied Jackson’s motion to dismiss, found him guilty as charged,

      entered judgment of conviction on the Class A misdemeanor OWI charge, and

      sentenced him to twelve days of incarceration and 353 days of probation.



                                 Discussion and Decision
[4]   In this direct appeal, Jackson claims that he received ineffective assistance of

      trial counsel (“IAC”). We review claims of IAC based upon the principles

      enunciated in Strickland v. Washington, 466 U.S. 668 (1984):


              Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
              L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel
              requires a showing that: (1) counsel’s performance was deficient
              by falling below an objective standard of reasonableness based on
              prevailing professional norms; and (2) counsel’s performance
              prejudiced the defendant so much that “there is a reasonable
              probability that, but for counsel’s unprofessional errors, the result
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2127 | February 5, 2019   Page 3 of 8
              of the proceeding would have been different.” Id. at 687, 694,
              104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
              1994). […] Failure to satisfy either prong will cause the claim to
              fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

      French v. State, 778 N.E.2d 816, 824 (Ind. 2002).


[5]   Jackson contends that his trial counsel was ineffective for failing to adequately

      raise and litigate the claim that Trooper Bottema improperly stopped him,

      which led to the collection of evidence supporting his OWI conviction. Jackson

      contends that his trial counsel should have argued more competently that the

      stop was improper pursuant to both the federal and Indiana constitutions.


                           I. Failure to Make Federal Claim
[6]           The Fourth Amendment to the United States Constitution
              provides that “[t]he 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.” […] Evidence obtained in
              violation of a defendant’s Fourth Amendment rights may not be
              introduced against him at trial. [Mapp v. Ohio, 367 U.S. 643,
              648–60 (1961)].
              The Fourth Amendment prohibits “unreasonable searches and
              seizures” by the Government, and its safeguards extend to brief
              investigatory stops of persons or vehicles that fall short of
              traditional arrest. United States v. Arvizu, 534 U.S. 266, 273, 122
              S. Ct. 744, 151 L. Ed.2d 740 (2002).

      W.H. v. State, 928 N.E.2d 288, 294 (Ind. Ct. App. 2010), trans. denied.


[7]   That said, it is well-settled that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2127 | February 5, 2019   Page 4 of 8
              [p]olice officers may stop a vehicle when they observe minor
              traffic violations. Smith v. State, 713 N.E.2d 338, 342 (Ind. Ct.
              App. 1999), trans. denied; see also Ind. Code § 34-28-5-3. A stop is
              lawful if there is an objectively justifiable reason for it, and the
              stop may be justified on less than probable cause.

      Jackson v. State, 785 N.E.2d 615, 619 (Ind. Ct. App. 2003), trans. denied. “An

      officer’s decision to stop a vehicle is valid so long as his or her on-the-spot

      evaluation reasonably suggests that lawbreaking occurred.” State v. Lynch, 961

      N.E.2d 534, 537 (Ind. Ct. App. 2012) (citing Gunn v. State, 956 N.E.2d 136, 139

      (Ind. Ct. App. 2011)). “A determination that reasonable suspicion exists,

      however, need not rule out the possibility of innocent conduct [and need only

      be based on] a particularized and objective basis[.]” Arvizu, 534 U.S. at 277.


[8]   Trooper Bottema stopped Jackson at approximately midnight for squealing his

      tires and making a right turn into the inappropriate lane, i.e., the lane not closest

      to the right curb. We conclude that Trooper Bottema was justified in stopping

      Jackson for making an illegal turn, at the very least. Indiana Code section 9-21-

      8-21(a)(1) provides that “[a] person who drives a vehicle intending to turn at an

      intersection must [m]ake both the approach for a right turn and a right turn as

      close as practical to the righthand curb or edge of the roadway.” Jackson

      argues, essentially, that because Indiana does not absolutely require a driver to

      make a right turn into the right-most lane, the State was required to present

      evidence that Trooper Bottema knew that there was nothing making it

      impractical for Jackson to turn into the right-most lane before he could legally

      stop him. Jackson points to no authority for this proposition, and we are aware


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2127 | February 5, 2019   Page 5 of 8
      of none. Moreover, in light of the authority that we do have regarding traffic

      stops, we decline the invitation to create such a precedent.


[9]   As mentioned, an officer’s decision to stop a vehicle is valid if his on-the-spot

      evaluation reasonably suggests that lawbreaking occurred. See Lynch, 961

      N.E.2d. 537. Here, Jackson failed to turn into the right-most lane, which we

      conclude is sufficient to reasonably suggest that he violated Indiana Code

      section 9-21-8-21(a)(1). There is no evidence in the record of anything that

      might have made a turn into the right-hand lane impractical, much less

      anything known to Trooper Bottema before he stopped Jackson. Indeed, if it

      had become apparent later that it had, in fact, not been practical for Jackson to

      have turned into the right-most lane, even this after-the-fact knowledge would

      not have affected the validity of the stop. In Heien v. N. Carolina,–––U.S.–––,

      135 S. Ct. 530, 536 (2014), the United State Supreme Court “held that

      reasonable mistakes of law, as well as fact, can give rise to reasonable suspicion

      under the Fourth Amendment.” Williams v. State, 28 N.E.3d 293, 293 (Ind. Ct.

      App. 2015) (emphasis added), opinion on reh’g. Jackson has failed to establish

      that making a Fourth Amendment claim would have helped him.1




      1
        Because we conclude that Trooper Bottema properly stopped Jackson on suspicion of making an illegal
      turn, we need not separately address Jackson’s claim that he was improperly stopped for making an unsafe
      start. We would note, however, that while a panel of this court has concluded that squealing tires, by itself,
      will not justify a traffic stop, that authority would not help Jackson. In Dora v. State, 736 N.E.2d 1254 (Ind.
      Ct. App. 2000), trans. denied, we reversed an infraction for unsafe start where the only evidence presented was
      that the defendant’s car tires were spinning, squealing, and smoking. Id. at 1256–57. Dora is easily
      distinguished, however, because Trooper Bottema witnessed not only the squealing of tires but also a right
      turn into the left-most lane at approximately midnight.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2127 | February 5, 2019                    Page 6 of 8
                              II. Failure to Make State Claim
[10]   Similar to the Fourth Amendment, Article I, section 11 of the Indiana

       Constitution provides “[t]he right of the people to be secure in their persons,

       houses, papers, and effects, against unreasonable search or seizure.” “Although

       the language of Article I, Section 11 is identical to the language of the Fourth

       Amendment of the United States Constitution, [the reviewing court] conduct[s]

       a separate inquiry.” Haynes v. State, 937 N.E.2d 1248, 1251 (Ind. Ct. App.

       2010). “Under the Indiana Constitution, [this Court] consider[s] the

       circumstances presented in each case to determine whether the police behavior

       was reasonable.” Id. “A police stop and brief detention of a motorist is

       reasonable and permitted under Section 11 if the officer reasonably suspects

       that the motorist is engaged in, or about to engage in, illegal activity.” Id. The

       reasonableness of a search or seizure is determined by balancing the degree of

       concern, suspicion, or knowledge that a violation has occurred, the degree of

       intrusion, and the extent of law enforcement needs. State v. Washington, 898

       N.E.2d 1200, 1206 (Ind. 2008).


[11]   The degree of concern, suspicion, or knowledge that a violation had occurred

       was high in this case. Jackson squealed his tires and turned into the wrong lane

       at approximately midnight, behavior that supports a reasonable belief that at

       least one infraction had been committed. Moreover, the degree of the intrusion

       to investigate the infraction, which (at least at first) was a simple traffic stop,

       was minimal. The fact that the stop evolved into an investigation for OWI

       based upon Trooper Bottema’s observations of Jackson does not render the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2127 | February 5, 2019   Page 7 of 8
       initial stop unreasonable. Finally, the extent of law enforcement needs, while

       not overwhelming, was more than sufficient to support a traffic stop. Trooper

       Bottema observed a motorist squealing his tires and turning into the wrong

       lane, and infractions do not cease to be infractions even if, as appears to be the

       case here, there are no other vehicles or pedestrians in the area. We conclude

       that the need to stop Jackson to address and investigate his driving was

       reasonable under the totality of the circumstances. Because Jackson has failed

       to establish that the traffic stop violated his federal or state constitutional rights,

       his trial counsel’s alleged failure to raise the issue did not prejudice him.

       Jackson has failed to establish that he received IAC.


[12]   The judgment of the trial court is affirmed.


       Bailey, J, and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2127 | February 5, 2019   Page 8 of 8
