FOR PUBLICATION                                          Nov 20 2014, 10:04 am
                                                              Nov 20 2014, 10:04 am




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JOELLE A. FREIBURGER                             GREGORY F. ZOELLER
Portland, Indiana                                Attorney General of Indiana

                                                 BRIAN REITZ
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

JOSEPH M. JOHNSON,                          )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )   No. 38A02-1405-CR-340
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                     APPEAL FROM THE JAY SUPERIOR COURT
                        The Honorable Max C. Ludy, Jr., Judge
                            Cause No. 38D01-1401-CM-2


                                 November 20, 2014

                            OPINION - FOR PUBLICATION

BAILEY, Judge
                                        Case Summary

         In this interlocutory appeal, Defendant Joseph M. Johnson (“Johnson”) challenges the

trial court’s denial of his motion to suppress evidence. We reverse and remand.

                                             Issue

         Johnson raises one issue on appeal, which we restate as: whether the trial court erred

when it denied Johnson’s motion to suppress evidence obtained during an investigatory

traffic stop.

                                Facts and Procedural History

         On December 28, 2013, Jay County Sheriff’s Deputy Brad Wendel (“Deputy

Wendel”) began following a gold van heading north on Highway 1 in Jay County. He ran a

registration check and found that the van was registered to Ashley Boyd (“Boyd”). After he

requested a driver’s license check on Boyd, he discovered that Boyd’s license was

suspended. Deputy Wendel followed the van for approximately two miles, until he was in a

safe area to initiate a traffic stop. During that time, he observed no traffic violations.

         After making the stop, Deputy Wendel approached the van and observed a driver, later

identified as Johnson, and two passengers, one of which was Boyd. Deputy Wendel stated

the reason for the traffic stop: that the van was registered to a suspended driver. Boyd spoke

up from the backseat, identified herself as Ashley Boyd, and confirmed her license was

suspended. Deputy Wendel later testified that he had no reason to believe that Boyd was

lying.




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          Deputy Wendel then asked Johnson for his driver’s license, because he “wanted to

confirm that the driver was not Ashley Boyd.” (Tr. at 14.) Johnson handed Deputy Wendel

an identification card and informed the deputy that his driver’s license was also suspended.

Deputy Wendel placed Johnson under arrest.

          On January 8, 2014, Johnson was charged with Driving While Suspended, a Class A

misdemeanor.1 On February 20, 2014, Johnson filed a motion to suppress all evidence

obtained during the traffic stop, which he later amended on March 19, 2014. The trial court

held a suppression hearing on March 19, 2014, and that same day, issued an order denying

Johnson’s motion.

          On April 17, 2014, the trial court granted Johnson’s motion to certify an interlocutory

order to allow an immediate appeal and his motion for a stay of the trial proceedings. This

Court accepted jurisdiction over the appeal on June 26, 2014.

                                    Discussion and Decision

                                       Standard of Review

          Our standard of review for the denial of a motion to suppress evidence is similar to

other sufficiency issues. Westmoreland v. State, 965 N.E.2d 163, 165 (Ind. Ct. App. 2012)

(citing Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct. App. 2003), trans. denied). We

determine whether substantial evidence of probative value exists to support the court’s denial

of the motion. Id. We do not reweigh the evidence, and we consider conflicting evidence

most favorably to the trial court’s ruling. Taylor v. State, 689 N.E.2d 699, 702 (Ind. 1997).


1
    Ind. Code § 9-24-19-2 (2013).

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However, unlike other sufficiency matters, we must also consider the uncontested evidence

that is favorable to the defendant. Westmoreland, 965 N.E.2d at 165.

                                              Analysis

       Johnson contends that the trial court erred in denying his motion to suppress evidence

obtained during the investigatory traffic stop. He argues that Deputy Wendel’s prolonged

investigation violated his rights under the Fourth Amendment to the U.S. Constitution and

Article 1, Section 11 of the Indiana Constitution,2 and thus any evidence obtained thereafter

must be suppressed.

       The Fourth Amendment provides, in relevant part: “The right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . .” Under the exclusionary rule, evidence obtained through

an illegal search or seizure is inadmissible at trial. Newby v. State, 701 N.E.2d 593, 602

(Ind. Ct. App. 1998) (citing Mapp v. Ohio, 367 U.S. 643 (1961); Callender v. State, 138 N.E.

817 (Ind. 1923)). The Fourth Amendment applies to the states through the Fourteenth

Amendment. Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001) (citing Mapp, 367 U.S. at 650).

    The Fourth Amendment’s “protections extend to brief investigatory stops of persons or

vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273

(2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968)). A police officer may “stop and briefly

detain a person for investigative purposes if the officer has a reasonable suspicion supported



2
 Because we hold that Johnson’s Fourth Amendment rights were violated, we do not address his Article 1,
Section 11 claim.


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by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable

cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30).

       “Reasonable suspicion, like probable cause, is a highly fact-sensitive inquiry.”

Campos v. State, 885 N.E.2d 590, 597 (Ind. 2008). We defer to a trial court’s determination

of historical fact, but we review de novo whether those facts constitute reasonable suspicion.

Myers v. State, 839 N.E.2d 1146, 1150 (Ind. 2005). Reviewing courts “must look at the

‘totality of the circumstances’ of each case to see whether the detaining officer has a

‘particularized and objective basis’ for suspecting legal wrongdoing.” Arvizu, 534 U.S. at

273 (quoting U.S. v. Cortez, 449 U.S. 411, 417-18 (1981)). Although it is less demanding

than probable cause and requires a showing considerably less than a preponderance of the

evidence, reasonable suspicion “still requires a minimal level of objective justification and

more than an inchoate and unparticularized suspicion or hunch of criminal activity.” Ertel v.

State, 928 N.E.2d 261, 264 (Ind. Ct. App. 2010), trans. denied.

       In Armfield v. State, 918 N.E.2d 316 (Ind. 2009), our Indiana Supreme Court held that

a police “officer has reasonable suspicion to initiate a Terry stop when (1) the officer knows

that the registered owner of a vehicle has a suspended license and (2) the officer is unaware

of any evidence or circumstances which indicate that the owner is not the driver of the

vehicle.” Id. at 321-22. In Holly v. State, 918 N.E.2d 323 (Ind. 2009), handed down the

same day as Armfield, the court held that “once it becomes apparent that the driver of the

vehicle is not the owner[,] then an officer simply has no reason to conduct additional

inquiry.” Id. at 325.


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       In light of Armfield, Johnson does not challenge the validity of Deputy Wendel’s

initial investigatory stop. Rather, Johnson contends that after passenger Boyd identified

herself as the vehicle’s owner, Deputy Wendel became aware of “evidence or circumstances

which indicate that the owner is not the driver.” Armfield, 918 N.E.2d at 322. Citing Holly,

Johnson argues that Deputy Wendel should have ended the traffic stop after Boyd’s

disclosure because “the reasonable articulable suspicion which initially justified the

investigatory stop of [the] vehicle dissipated.” (Appellant’s Br. at 4.)

       In Holly, a police officer conducted an investigatory stop of a car registered to a

suspended driver. Id. at 324. Based on a license check, the officer knew that the registered

owner was female. Id. However, when the officer approached the car, he immediately saw

that the driver, Holly, was a man. Id. The officer then asked Holly for his license, which

Holly did not have because it was suspended. Id. Our supreme court observed that before

the officer asked Holly for his driver’s license, the officer knew Holly was not the registered

owner. Id. at 326. The court thus held that the officer “had no justification to pursue an

investigatory stop that extended to a request to see Holly’s identification.” Id. As such, all

evidence collected thereafter was inadmissible under the Fourth Amendment. Id.

       Despite Holly’s factual similarity to this case, the State argues that Johnson’s reliance

on Holly is “misplaced” because “Deputy Wendel did not have any identifying information

regarding ‘Ashley Boyd’ and could not know that ‘Ashley’ referred to a female, not a male.”

(Appellee’s Br. at 9.) However, we do not read Armfield or Holly so narrowly as to limit

“evidence or circumstances which indicate that the owner is not the driver” to identifying


                                               6
characteristics such as sex.3 See Holly, 918 N.E.2d at 326 (including among “helpful

examples” of “evidence or circumstances” that would vitiate reasonable suspicion a police

officer’s realization after stopping a car for an expired registration that the registration sticker

was not actually expired). The Armfield test turns on the “evidence and circumstances” of

which the officer is aware, not whether the driver and registered owner are of different sexes.

Armfield, 918 N.E.2d at 322.

        At the suppression hearing, Deputy Wendel described his encounter with the van

occupants:

        A:      I identified myself. I advised them the reason I stopped them. The
                female subject in the back seat advised that, “I [am] Ashley Boyd and
                yes I am suspended[.”] [. . . .]

(Tr. at 8.) Deputy Wendel also testified:

        Q:      Did you have any reason to believe that Ashley Boyd was lying to you?
        A:      No.

(Tr. at 13.) He again testified:

        Q:      Okay. But as I said before, you had no reason to believe that Ashley
                Boyd was lying to you?
        A:      No.

(Tr. at 13-14.)

        The facts show that before asking for Johnson’s identification, Deputy Wendel knew

of evidence or circumstances that indicated that the registered owner was not the driver, but a

backseat passenger. By his own testimony, he had no reason to disbelieve Boyd’s statement.

3
 And of course, a person’s perceived gender identity may not always align with his or her sex. Thus, an
officer’s knowledge of the suspended registrant’s sex prior to conducting an investigatory stop may not be
dispositive in all situations.

                                                    7
In other words, he no longer had reasonable suspicion that Boyd was driving while

suspended. As such, “there is simply nothing in this record justifying any further inquiry

subsequent to the valid Terry stop.” Holly, 918 N.E.2d at 326. The deputy’s investigation

should have ended there.

       The State also argues that the deputy “properly asked the driver for identification to

ensure that the driver was not Boyd . . . .” (Appellee’s Br. at 8.) Deputy Wendel testified

that he asked for Johnson’s license, rather than Boyd’s, because Johnson was the driver:

       Q:     Why didn’t you ask Ashley for identification prior to the driver?
       A:     Because she wasn’t driving.

(Tr. at 14.) The State’s argument that it was reasonable for Deputy Wendel to confirm

Johnson’s identity is precisely the inquiry Holly prohibits. “Reasonable suspicion to pull a

car over does not confer unconditional authority to request the driver’s license and

registration.” Holly, 918 N.E.2d at 326. Once Boyd identified herself and Deputy Wendel

had no reason to disbelieve her, the deputy had no reasonable suspicion to ask Johnson for

his license or otherwise extend the stop. To the extent that Deputy Wendel may have felt he

needed to confirm Boyd’s truthful statement as to her identity, we fail to see how his request

to see Johnson’s driver’s license could possibly confirm it.

                                        Conclusion

       Although the deputy had reasonable suspicion to initiate an investigatory traffic stop,

we hold that the officer lacked reasonable suspicion to request Johnson’s identification and

thus all subsequent investigation violated Johnson’s rights under the Fourth Amendment.



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Accordingly, the trial court erred in denying Johnson’s motion to suppress the evidence

obtained after Boyd’s statement.

      Reversed and remanded.

NAJAM, J., and PYLE, J., concur.




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