MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Dec 05 2018, 8:23 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott H. Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gail Miller,                                             December 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1554
        v.                                               Appeal from the Marshall Superior
                                                         Court
State of Indiana,                                        The Honorable Dean A. Colvin,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         50D02-1503-CM-176



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018              Page 1 of 7
[1]   Gail Miller appeals his conviction for Class A Misdemeanor Possession of

      Marijuana,1 arguing that the trial court erroneously admitted certain evidence.

      Finding no error, we affirm.


                                                    Facts
[2]   At approximately 11:00 p.m. on February 27, 2015, Bremen Police Sergeant

      Trent Stouder was on patrol on U.S. Highway 6 when he began to follow a

      silver Nissan Pathfinder. Sergeant Stouder observed the vehicle’s passenger

      side tires cross the fog line; the vehicle then weaved in its own lane as it

      overcorrected. About three-quarters of a mile later, the vehicle again crossed

      the fog line. Sergeant Stouder planned to pull over the vehicle but waited

      because there were “no other vehicles on the roadway coming at us or anything

      like that. I knew I had plenty of time. And I was waiting to get to a better

      lighted area.” Tr. Vol. II p. 51.


[3]   About two and one-half miles later, Sergeant Stouder initiated a traffic stop. He

      approached the vehicle and smelled the odor of an alcoholic beverage and raw

      marijuana emanating from inside. Sergeant Stouder saw an open can of beer

      on the passenger side floorboard.


[4]   Sergeant Stouder asked the driver, Miller, if he had been drinking; Miller stated

      that he had had two drinks earlier in the evening. The sergeant noticed that




      1
          Ind. Code § 35-48-4-11.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018   Page 2 of 7
      Miller’s eyes were bloodshot. Miller agreed to take a portable breath test,

      which indicated the presence of alcohol on his breath. Sergeant Stouder asked

      Miller for consent to search the vehicle; Miller declined. At that point, Sergeant

      Stouder retrieved his police dog, which performed a free air sniff test around the

      outside of the vehicle. The dog alerted, indicating the presence of illicit

      substances.


[5]   After the dog alerted, Sergeant Stouder returned to talk to Miller, noticing a

      strong odor of raw marijuana coming directly from Miller. Sergeant Stouder

      eventually asked Miller to exit the vehicle; he later conducted a thorough search

      of Miller and found a plastic bag stuffed down his pants. The bag contained

      marijuana. Miller was arrested and taken to the police station, where he

      submitted to three field sobriety tests, failing all three.


[6]   On March 9, 2015, the State charged Miller with Class A misdemeanor

      operating a vehicle while intoxicated, Class A misdemeanor possession of

      marijuana, and two Class C infractions—unsafe lane movement and having an

      open alcoholic beverage container while operating a motor vehicle. After

      Miller’s May 31, 2018, jury trial, the jury found him guilty of possession of

      marijuana and liable for operating a motor vehicle with an open alcoholic

      beverage container; it found him not guilty of and not liable for the remaining

      charges. On June 14, 2018, the trial court sentenced Miller to 365 days,

      suspended to probation, for the Class A misdemeanor. Miller now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018   Page 3 of 7
                                   Discussion and Decision
[7]   Miller argues that the trial court erred by admitting evidence stemming from the

      traffic stop. He contends that the traffic stop violated his rights under the

      United States and Indiana Constitutions. An issue of the constitutionality of

      the search or seizure of evidence raises a question of law, to which we apply a

      de novo standard of review. E.g., Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind.

      2014).


[8]   Turning first to the United States Constitution, we note that under the Fourth

      Amendment, police officers may make brief traffic stops of citizens when they

      have reasonable suspicion that a crime is occurring. Rutledge v. State, 28 N.E.3d

      281, 290 (Ind. Ct. App. 2015). Reasonable suspicion exists “‘where the facts

      known to the officer, together with the reasonable inferences arising from such

      facts, would cause an ordinarily prudent person to believe that criminal activity

      has or is about to occur.’” Id. (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337

      (Ind. 1999)).


[9]   We find our Supreme Court’s decision in Robinson v. State, 5 N.E.3d 362, 368

      (Ind. 2014), to be dispositive. In Robinson, a police officer observed a vehicle

      veer off the roadway twice, with its passenger side tires crossing the fog line.

      Our Supreme Court found that the subsequent traffic stop did not violate the

      driver’s Fourth Amendment rights because she “swerved twice on a relatively

      straight, flat roadway.” Id. at 368 (emphasis original, also noting that the

      Fourth Amendment does not require police to grant drunk drivers “one free


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018   Page 4 of 7
       swerve” before they can be pulled over). Our Supreme Court emphasized that

       officers need not be absolutely certain of illegal activity; rather, they must

       merely have reasonable suspicion. Id. In that case, the driver’s behavior

       created the requisite reasonable suspicion.


[10]   Here, as in Robinson, Sergeant Stouder observed Miller’s vehicle veer off the

       roadway twice, with the passenger side tires crossing the fog line and the

       vehicle then weaving within its own lane. Sergeant Stouder testified that based

       on his experience, this behavior was indicative of impaired driving. We find

       that this situation would cause an ordinarily prudent person to believe that

       criminal activity has or was about to occur.


[11]   Miller attempts to distinguish the instant case from Robinson, emphasizing the

       fact that Sergeant Stouder continued to follow Miller’s vehicle for over two

       miles after the second swerve before initiating the traffic stop. According to

       Miller, this delay means that Stouder must not have had a reasonable suspicion

       of criminal activity or an urgent sense that criminal activity was afoot.


[12]   We disagree. We are unaware of any caselaw suggesting that an officer must

       immediately initiate a traffic stop after observing problematic driving behavior

       for the stop to be constitutional. Indeed, here, Sergeant Stouder testified that he

       was hoping to find a better lit spot on the roadway to initiate the traffic stop,

       which is eminently reasonable given that it helped to ensure the safety of both

       the sergeant and the occupants of the vehicle. He also observed that there were

       no other drivers on the road, causing him to reasonably conclude that an


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018   Page 5 of 7
       immediate stop was not necessary. Under these circumstances, we do not find

       the delay between the second swerve and the traffic stop to be a persuasive fact

       distinguishing this case from Robinson. Therefore, as in Robinson, we find that

       Sergeant Stouder had reasonable suspicion to pull over Miller’s vehicle. In

       other words, the stop did not violate Miller’s Fourth Amendment rights.


[13]   Next, Miller contends that the traffic stop violated his rights under Article 1,

       Section 11 of the Indiana Constitution. Under this provision, the analysis

       focuses on the reasonableness of police conduct in its totality. E.g., Sandleben v.

       State, 29 N.E.3d 126, 134 (Ind. Ct. App. 2015). In looking at the totality of the

       circumstances, we examine three factors: (1) the degree of concern, suspicion,

       or knowledge that a violation of law 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. Watkins v. State, 85 N.E.3d 597,

       601 (Ind. 2017).


[14]   Here, Sergeant Stouder observed Miller drive over the fog line twice in a

       relatively short period of time—the entire encounter covered only a few miles of

       roadway—giving rise to a reasonable suspicion that Miller was impaired. The

       initial intrusion—a simple traffic stop—was relatively minor, and the sergeant

       only escalated the stop after he smelled strong odors of alcohol and raw

       marijuana emanating from the vehicle and observed an open beer can inside.

       Finally, our Supreme Court has emphasized that “[l]aw enforcement has a

       strong interest in preventing these [alcohol-related] accidents, and ‘police

       should have every legitimate tool at their disposal for getting drunk drivers off

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018   Page 6 of 7
       the road.’” Robinson, 5 N.E.3d at 368 (quoting Virginia v. Harris, 558 U.S. 978,

       978 (2009) (Roberts, C.J., dissenting from denial of certiorari)). We find that

       under the totality of the circumstances, the traffic stop did not violate Miller’s

       rights under the Indiana Constitution. See Robinson, 5 N.E.3d at 368 (finding

       that traffic stop did not violate driver’s rights under Article 1, Section 11).


[15]   Because the traffic stop violated neither the federal nor the state constitutions,

       the trial court did not err by admitting the evidence stemming from the stop.


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


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1554 | December 5, 2018   Page 7 of 7
