MEMORANDUM DECISION                                                                FILED
                                                                              Feb 13 2018, 8:14 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
regarded as precedent or cited before any                                           and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
J. Michael Woods                                         Curtis T. Hill, Jr.
Paul G. Stracci                                          Attorney General of Indiana
Stracci Criminal Defense
                                                         Ellen H. Meilaender
Merrillville, Indiana                                    Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Clarence Toschlog,                                  February 13, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         64A03-1707-CR-1586
        v.                                               Interlocutory Appeal from the
                                                         Porter Superior Court
State of Indiana,                                        The Honorable David L.
Appellee-Plaintiff.                                      Chidester, Judge
                                                         Trial Court Cause No.
                                                         64D04-1608-CM-7767



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018         Page 1 of 12
                                          Case Summary
[1]   John Clarence Toschlog (“Toschlog”) brings this interlocutory appeal of the

      trial court’s order denying his motion to suppress evidence obtained as a result

      of a search of his vehicle. Toschlog raises two issues, which we restate as

      follows:


              Whether the search of Toschlog’s vehicle was unreasonable
              under the Fourth Amendment and/or Article 1, Section 11 of the
              Indiana Constitution where the traffic stop for an equipment
              violation was delayed for a dog sniff based solely on Toschlog’s
              admission that the vehicle, while in the State of Washington,
              contained marijuana.


[2]   We affirm.



                            Facts and Procedural History
[3]   Just after midnight on August 22, 2016, Valparaiso Police Officer Ryan

      Sobierajski (“Officer Sobierajski”) was on patrol when he noticed a vehicle with

      one unilluminated headlight. Officer Sobierajski initiated a traffic stop of the

      vehicle at 12:04 a.m. He approached the vehicle and explained the reason for

      the stop. Toschlog was the driver of the vehicle, which also contained a female

      passenger, a dog, and a large amount of luggage consistent with a long road

      trip. In response to the officer’s questions, Toschlog stated that he and the

      passenger were coming from the state of Washington and were headed to

      Warsaw, Indiana. When asked if there were any drugs in the vehicle, Toschlog

      answered no. Officer Sobierajski then asked if there had previously been any

      Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018   Page 2 of 12
      drugs in the vehicle, and Toschlog responded that there had been marijuana in

      the vehicle when they were in Washington and that recreational marijuana is

      legal there. Officer Sobierajski did not detect any odor of marijuana coming

      from the vehicle, Tr. Vol. I at 17,1 nor did he observe any evidence of

      consumption or possession of marijuana, id. at 18-19.


[4]   Approximately one minute after approaching Toschlog’s vehicle, Officer

      Sobierajski returned to his police car with Toschlog’s driver’s license and

      registration document. “Based on [Toschlog’s] answers” to Officer

      Sobierajski’s questions, the officer called for a canine officer to respond to his

      location to perform a dog sniff of Toschlog’s car. Tr. Vol. 1 at 11; see also id. at

      18-19 (Officer Sobierajski testified that, “[b]y [Toschlog] admitting” that “there

      had previously, in another state, legally been marijuana in the vehicle[,]” that

      “gave [Officer Sobierajski] suspicion that there was currently marijuana in the

      vehicle.”). “While waiting [for the canine unit] to arrive on the scene,” Officer

      Sobierajski entered Toschlog’s “driver’s information” into the computer system

      in his vehicle, attempted to look up Toschlog’s prior criminal history, and “kept

      an eye on the occupants of [Toschlog’s] vehicle.” Id. at 12. At 12:09 a.m.,

      Officer Sobierajski received from dispatch information confirming Toschlog’s

      driver’s license and registration. Officer Sobierajski did not intend to write a




      1
        We refer to the transcript of the April 13, 2017, hearing as transcript volume one (“Tr. Vol. 1”), and the
      transcript of the continued hearing on May 16, 2017, as transcript volume two (“Tr. Vol. II”).

      Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018           Page 3 of 12
      ticket and/or return Toschlog’s driver’s license to him until the canine unit

      arrived to conduct a dog sniff of Toschlog’s vehicle. Id. at 55.


[5]   At 12:10 a.m., Sergeant Jerame Simpson (“Sgt. Simpson”) arrived on the scene

      with his canine. Per his general practice when a dog is in the vehicle to be

      sniffed, Sgt. Simpson requested that Toschlog, his passenger, and their dog all

      exit the vehicle and stand at a distance on the side of the road while the police

      dog conducted the sniff. It was necessary to have them all exit the vehicle to

      prevent the police dog from being distracted by the other dog. The officer who

      did the traffic stop “still need[ed] to be performing the duties of their traffic stop

      while [Sgt. Simpson was] performing the canine sniff.” Tr. Vol. II at 9.

      However, Officer Sobierajski ceased processing the traffic stop while he stood

      with Toschlog by the side of the road during the dog sniff of Toschlog’s car.2


[6]   The dog alerted, indicating the odor of drugs in the vehicle. At that time—

      which was approximately fifteen to twenty minutes into the traffic stop—

      Officer Sobierajski began a search of Toschlog’s vehicle. When dispatch

      radioed for a status check at 12:21 a.m., Sgt. Simpson informed dispatch that

      the officers were busy with a vehicle search. Another officer arrived on the

      scene at 12:25 a.m. to assist with the search, and the officers subsequently found

      a small black bag on the floor of the front passenger seat that contained two




      2
        Officer Sobierajski testified that, at the time he was standing with Toschlog during the dog sniff, the traffic
      stop was on-going because he still had to document “driver information, checking criminal history records.”
      Tr. Vol. I at 36-37.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018             Page 4 of 12
      grams of marijuana and some paraphernalia. They also found a backpack on

      the rear passenger seat containing DMT, a hallucinogenic Schedule I controlled

      substance, and some paraphernalia. Toschlog acknowledged that all the items

      belonged to him, and the officers arrested him.


[7]   The State charged Toschlog with possession of a controlled substance, as a

      Class A misdemeanor;3 possession of marijuana, as a Class A misdemeanor;4

      and possession of paraphernalia, as a Class C misdemeanor.5 The State did not

      charge him with an infraction for driving with an unilluminated headlight.

      Toschlog filed a motion to suppress the evidence found in the search of his car.

      At the hearing on that motion, Officer Sobierajski testified that it typically takes

      him “less than ten minutes” to complete a traffic stop for equipment violations,

      and the average length of such stops was four to four-and-a-half minutes. Tr.

      Vol. I at 25. Following the hearing, the trial court entered an order denying the

      motion to suppress, even though it found that there was a five to seven minute

      delay caused by the dog sniff. Toschlog sought, and the trial court granted,

      certification of the order denying the motion to suppress for an interlocutory

      appeal, and we accepted jurisdiction. Ind. Appellate Rule 14(B).




      3
          Ind. Code § 35-48-4-7(a).
      4
          I.C. § 35-48-4-11(b).
      5
          I.C. § 35-48-4-8.3(b).


      Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018   Page 5 of 12
                                  Discussion and Decision
[8]    Toschlog appeals the denial of his motion to suppress the evidence obtained in

       the search of his vehicle. A trial court has broad discretion to rule on the

       admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).

       Generally, evidentiary rulings are reviewed for an abuse of discretion and

       reversed when admission is clearly against the logic and effect of the facts and

       circumstances. Id. However, when a challenge to an evidentiary ruling is

       predicated on the constitutionality of a search or seizure of evidence, it raises a

       question of law that is reviewed de novo. Id. The State has the burden to

       demonstrate that the measures it used to seize information or evidence were

       constitutional. State v. Rager, 883 N.E.2d 136, 139 (Ind. Ct. App. 2008).


[9]    Toschlog raises claims under both the federal and state constitutions. Although

       the Fourth Amendment of the United States Constitution and Article 1, Section

       11 of the Indiana Constitution contain textually similar language, each must be

       separately analyzed. State v. Washington, 898 N.E.2d 1200, 1205–06 (Ind.

       2008).


                                        Fourth Amendment
[10]   The Fourth Amendment “regulates all nonconsensual encounters between

       citizens and law enforcement officials.” Thomas, 81 N.E.3d at 625. It

       guarantees that:


                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable searches and seizures,

       Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018   Page 6 of 12
                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.


       U.S. Const. amend. IV.


[11]   “It is unequivocal under our jurisprudence that even a minor traffic violation is

       sufficient to give an officer probable cause to stop the driver of a vehicle.”

       Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). However, “[a] seizure that is

       justified solely by the interest in issuing a warning ticket to the driver can

       become unlawful if it is prolonged beyond the time reasonably required to

       complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). Thus,

       although a dog sniff is not a search requiring any degree of suspicion, State v.

       Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010), an officer may not use a narcotics

       detection dog during the course of a traffic stop “in a way that prolongs the

       stop, absent the reasonable suspicion ordinarily demanded to justify detaining

       an individual,” Rodriquez v. United States, __ U.S. __, 135 S. Ct. 1609, 1615

       (2015).


[12]   Here, the trial court found the traffic stop was delayed by five to seven minutes

       to allow the dog to do a narcotics sniff.6 However, information lawfully




       6
         The State disputes that the dog sniff caused a delay in the traffic stop. However, it admits that Officer
       Sobierajski suspended the ordinary inquiries incident to a traffic stop while the dog sniffed the vehicle. Our
       case law makes it clear that suspending the ordinary activities of a traffic stop to allow for a dog sniff
       unreasonably prolongs the stop unless the officer has reasonable suspicion of criminal activity justifying the
       delay. See, e.g., State v. Gray, 997 N.E.2d 1147, 1152 (Ind. Ct. App. 2013), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018           Page 7 of 12
       obtained during a traffic stop may provide the officer with reasonable suspicion

       of criminal conduct that will justify prolonging the stop to permit a reasonable

       investigation, including a dog sniff. See, e.g., United States v. Figueroa-Espana,

       511 F.3d 696, 702 (7th Cir. 2007). Therefore, if Officer Sobierajski had

       obtained information during the traffic stop that gave him reasonable suspicion

       that Toschlog had drugs in his car, the delay caused by the drug-sniffing dog

       would be permissible under the Fourth Amendment.


[13]   Reasonable suspicion is a less demanding standard than probable cause and:


               “requires a showing considerably less than preponderance of the
               evidence, but it still requires at least a minimal level of objective
               justification and more than an inchoate and unparticularized
               suspicion or ‘hunch’ of criminal activity.” State v. Schlechty, 926
               N.E.2d 1, 7 (Ind. 2010) (citing Illinois v. Wardlow, 528 U.S. 119,
               123–24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). “Thus, a
               reviewing court must examine the totality of circumstances of
               each case to see whether the detaining officer has a particularized
               and objective basis for suspecting legal wrongdoing.” Bush[ v.
               State], 925 N.E.2d [787,] 791 [Ind. Ct. App. 2010].


       State v. Gray, 997 N.E.2d 1147, 1153 (Ind. Ct. App. 2013), trans. denied. The

       “totality of the circumstances” approach to making reasonable suspicion

       determinations “allows officers to draw on their own experience and

       specialized training to make inferences from and deductions about the

       cumulative information available to them that might well elude an untrained

       person.” U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (quotation and citation

       omitted). Such training enables police officers to “formulate certain common-


       Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018   Page 8 of 12
       sense conclusions about human behavior.” Stafford Unified School Dist. No. 1 v.

       Redding, 557 U.S. 364, 385 (2009) (quotation and citation omitted).


[14]   Toschlog does not dispute that Officer Sobierajski lawfully initiated the traffic

       stop due to an unilluminated headlight. In the course of that lawful traffic stop,

       the officer asked Toschlog if he currently had drugs in the vehicle or had ever

       had drugs in the vehicle; this questioning was also lawful. See United States v.

       Childs, 277 F.3d 947, 950-51 (7th Cir. 2002) (noting an officer may ask

       questions unrelated to the traffic stop without having reasonable suspicion of

       criminal activity). At that point, Toschlog voluntarily admitted to Officer

       Sobierajski that he had had marijuana in his vehicle while he was in the State of

       Washington, and that he was driving home from a trip to Washington.

       Toschlog was under no obligation to answer the officer’s questions regarding

       the past presence of drugs in his vehicle. See, e.g., Washington, 898 N.E.2d at

       1205; Graham v. State, 971 N.E.2d 713, 717 (Ind. Ct. App. 2012), trans. denied.

       His choice to do so and to disclose inculpatory information—i.e., that he had

       previously had drugs in his car—provided the officer with reasonable suspicion

       to believe at that point that Toschlog currently had marijuana in his vehicle. 7 It




       7
         Toschlog notes that it is legal to possess marijuana for recreational purposes in Washington and contends
       that his admission to activity that was lawful could not provide the basis for reasonable suspicion of criminal
       activity. However, it was the fact of his past drug possession in his vehicle, not the legality or illegality of it,
       that reasonably led Officer Sobierajski to reach the common-sense conclusion that Toscholog could have
       currently had drugs in his vehicle. Moreover, we note that, while the United States Department of Justice is
       currently operating under an executive non-enforcement policy in the State of Washington for violation of
       certain federal drug laws, possession of marijuana is still a federal crime under certain circumstances,
       regardless of state law to the contary. See West v. Holder, 60 F.Supp.3d 197, 198 (D.C. Cir. 2015) (citing 21
       U.S.C. § 841(a)(1) and Mem. from James M. Cole (Aug. 29, 2013), available at http://

       Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018                Page 9 of 12
       was that belief which led Officer Sobierajski to call for a canine unit to do a dog

       sniff of the vehicle. Thus, any delay caused by the dog sniff was justified by

       reasonable suspicion of criminal activity. Rodriquez, 135 S. Ct. at 1615. The

       delay did not violate the Fourth Amendment.


                                         Article 1, Section 11
[15]   Toschlog also challenges the delay caused by the dog sniff on state

       constitutional grounds. Article 1, Section 11 of the Indiana Constitution

       provides,


               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.


[16]   The reasonableness of a search and/or seizure under the Indiana Constitution

       “turns on an evaluation of the reasonableness of the police conduct under the

       totality of the circumstances.” Garcia v. State, 47 N.E.3d 1196, 1199 (Ind. 2016)

       (emphasis original to Garcia) (quoting Litchfield v. State, 824 N.E.2d 356, 361

       (Ind. 2005)). In making this evaluation, we must balance three factors: “1) the

       [officer’s] degree of concern, suspicion, or knowledge that a violation has

       occurred, 2) the degree of intrusion the method of the search or seizure imposes




       www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.); see also, 21 U.S.C. § 844 (Penalties for
       simple possession).

       Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018    Page 10 of 12
       on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.”

       Id. (quoting Litchfield, 824 N.E.2d at 361).


[17]   First, as we held above, Officer Sobierajski had reasonable suspicion that

       criminal activity was afoot; therefore, the degree of the officer’s suspicion or

       knowledge weighs in favor of the State. See State v. Parrot, 69 N.E.3d 535, 545

       (Ind. Ct. App. 2017), trans. denied. And, although there was some degree of

       intrusion on Toshclob’s ordinary activities from the five to seven minute delay

       caused by the dog sniff,8 law enforcement needs in the area of drug trafficking

       are very high. See, e.g., State v. Gibson, 886 N.E.2d 639, 643 (Ind. Ct. App.

       2008) (noting the trafficking of illegal drugs is “frequently associated with

       violence and no simpler method exists for detection of hidden drugs than a dog

       sniff”). Given the extent of law enforcement needs and the officer’s reasonable

       suspicion that Toschlog’s vehicle contained drugs, we hold that the officer’s

       decision to conduct a dog sniff of the vehicle was reasonable under the totality

       of the circumstances. The delay caused by the dog sniff did not violate Article

       1, Section 11.



                                                  Conclusion
[18]   The delay caused by the dog sniff of Toschlog’s vehicle was reasonable under

       the Fourth Amendment, as it was based on reasonable suspicion of criminal




       8
        Although Toschlog was required to exit his vehicle to facilitate the dog sniff, such an intrusion is de
       minimus. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977).

       Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018          Page 11 of 12
       activity. The delay was also reasonable under our state constitution, as the

       reasonable suspicion of criminal activity and the heightened law enforcement

       needs in the area of drug trafficking outweighed any intrusion on Toschlog’s

       ordinary activities caused by the five to seven minute dog sniff of the exterior of

       his vehicle. The trial court did not err in denying Toschlog’s motion to

       suppress.


[19]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1707-CR-1586 | February 13, 2018   Page 12 of 12
