MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any
court except for the purpose of establishing                          Feb 17 2017, 8:09 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Victor Gersdorff,                                        February 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1608-CR-1785
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda Brown,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49F10-1404-CM-21772



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017       Page 1 of 15
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Victor Gersdorff (Gersdorff), appeals his conviction for

      Count I, possession of marijuana, a Class A misdemeanor, Ind. Code § 35-48-4-

      11(1); Count II, possession of paraphernalia, a Class A misdemeanor, I.C. § 35-

      48-4-8.3(a)(1)(b); Count III, operating a vehicle while intoxicated, a Class C

      misdemeanor, I.C. § 9-30-5-2(a); and Count IV, operating a vehicle with a

      schedule I or II controlled substance or its metabolite in the body, a Class C

      misdemeanor, I.C. § 9-30-5-1(c).


[2]   We affirm.


                                                    ISSUE
[3]   Gersdorff raises one issue on appeal, which we restate as: Whether the trial

      court abused its discretion by admitting evidence discovered following a police

      sobriety checkpoint.


                      FACTS AND PROCEDURAL HISTORY
[4]   During the early morning hours of April 27, 2014, a sobriety checkpoint was

      operated by the Indianapolis Metro Police Department (IMPD) at 1305 Broad

      Ripple Avenue, in Indianapolis, Indiana. Lieutenant Mark McCardia

      (Lieutenant McCardia) of the IMPD supervised the checkpoint. He had been

      part of “hundreds” of checkpoints and had been the commanding officer on “at

      least” fifty checkpoints. (Transcript pp. 25, 26). The checkpoint was approved

      by the Marion County Traffic Safety Partnership, the police chief, and the

      prosecutor’s office. Ten days prior to the checkpoint being operated, a news
      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 2 of 15
      release was emailed to several television, radio, and print media organizations,

      which listed the date, time, and location of the checkpoint.


[5]   The specific objective of the checkpoint was to “deter drunk driving, [and]

      apprehend drunk drivers.” (Tr. p. 15). Its location was chosen because “crash

      data from the past few years” had revealed “a lot of drunk driver arrests and

      drunk driving crashes” in that area. (Tr. p. 15). Multiple signs, “like five (5)

      foot reflector signs,” were posted to alert drivers of the upcoming checkpoint,

      and the checkpoint was avoidable from all directions. (Tr. p. 19). The

      checkpoint was well lit with street lights, vehicle flashers, emergency

      equipment, and reflective signs and cones. The weather was clear and the

      temperature was approximately sixty degrees Fahrenheit.


[6]   In working the checkpoint, the officers were mandated to follow a specific

      procedure. Specifically, officers were required to direct two vehicles at the

      same time to the checkpoint. They could “not deviate” from this sequence, and

      all vehicles in the sequence had to be checked. (State’s Exh. 1). The officers

      were required to identify themselves and “advise the motorist ‘You have been

      stopped at a Marion County Traffic Safety Partnership Sobriety Checkpoint.

      We use checkpoints to deter impaired drivers. Have you had anything to drink

      this evening?’” (State’s Exh. 1). They then asked to see the driver’s license and

      registration. A vehicle would be detained for two minutes or less unless further

      investigation was warranted. If a driver exhibited signs of impairment, the

      officers would instruct “the driver [to] pull the vehicle into the ‘pull-off’ area.”



      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 3 of 15
      (State’s Exh. 1). That night, eighteen vehicles went through the checkpoint,

      with two drivers being apprehended.


[7]   Gersdorff was the first car that pulled into the checkpoint that evening, driving

      “approximately maybe twenty-five miles per hour.” (Tr. p. 42). He stopped at

      Captain Donald Weilhamer’s (Captain Weilhamer) position. When Gersdorff

      rolled down his window, Captain Weilhamer observed “a strong odor of

      marijuana coming from the vehicle.” (Tr. p. 43). Gersdorff had “problems

      pulling [his driver’s license] out of his wallet” and “he was slow at answering”

      questions. (Tr. p. 43). Captain Weilhamer asked Gersdorff to exit his vehicle.

      After Gersdorff moved to the side, Officer Robert Ferguson (Officer Ferguson),

      who was assisting Captain Weilhamer, “moved the vehicle out of the line.”

      (Tr. p. 44). Captain Weilhamer informed Gersdorff that he wanted to do some

      field sobriety checks. While talking to Gersdorff, Captain Weilhamer noticed

      Gersdorff’s dilated and bloodshot eyes and “slower than usual” walk. (Tr. p.

      44). Captain Weilhamer administered three field sobriety tests, two of which

      Gersdorff passed. While Gersdorff participated in the field sobriety tests,

      Officer Ferguson moved Gersdorff’s vehicle. In the car, Officer Ferguson

      noticed a “very strong” smell of marijuana. (Tr. p. 73). The odor was

      particularly strong “right where the center console” was. (Tr. p. 74). He raised

      the center console and noticed a black bag. In opening the bag, Officer

      Ferguson found a “raw, green, leafy substance” along with “a pipe,” which is

      “commonly used to ingest marijuana into the system.” (Tr. p. 75).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 4 of 15
[8]   Captain Weilhamer informed Gersdorff of his Miranda rights. Gersdorff agreed

      to answer some questions and told Captain Weilhamer that he had smoked

      marijuana earlier that day. Captain Weilhamer read Gersdorff the implied

      consent law and Gersdorff agreed to a blood draw. After the blood draw,

      Captain Weilhamer arrested Gersdorff. Upon searching him, Captain

      Weilhamer disovered a black box in Gersdorff’s lower pocket that contained a

      “greenish-brown, leafy-type substance,” which later tested positive for

      marijuana. (Tr. p. 61).


[9]   On April 27, 2014, the State filed an Information, charging Gersdorff with

      Count I, possession of marijuana, a Class A misdemeanor; Count II, possession

      of paraphernalia, a Class A misdemeanor; and Count III, operating while

      intoxicated, a Class C misdemeanor. The State later amended the Information

      to add Count IV, operating a vehicle with a schedule I or II controlled

      substance or its metabolite in the body, a Class C misdemeanor. On July 12,

      2016, the trial court conducted a bench trial. During trial, Gersdorff moved to

      suppress the evidence discovered during the sobriety checkpoint, which was

      denied by the trial court. At the close of the evidence, the trial court found

      Gersdorff guilty as charged. At the sentencing phase, the trial court merged

      Count IV into Count III and entered judgment of conviction on Counts I, II,

      and III. The court sentenced Gersdorff to concurrent terms of 365 days with

      361 days suspended to probation on Count I, 365 days with 361 days suspended

      to probation on Count II, and 60 days with 50 days suspended to probation on

      Count III.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 5 of 15
[10]   Gersdorff now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[11]   Gersdorff contends that the trial court abused its discretion in admitting

       evidence discovered during a sobriety checkpoint, which he claims was in

       violation of Article 1, Section 11 of the Indiana Constitution. The standard of

       review for admissibility of evidence is an abuse of discretion. Weinberger v.

       Boyer, 956 N.E.2d 1095, 1104 (Ind. Ct. App. 2011), trans. denied. The trial court

       abuses its discretion only when its action is clearly erroneous and against the

       logic and effect of the facts and circumstances before the court. Id. Even when

       the trial court erred in its ruling on the admissibility of evidence, this court will

       reverse only if the error is inconsistent with substantial justice. Id.


[12]   Article I, Section 11, must be liberally construed to guarantee the right of the

       people to be secure in their persons, houses, papers and effects, and to protect

       them against unreasonable search and seizure. King v. State, 877 N.E.2d 518,

       521 (Ind. Ct. App. 2007). The purpose of this provision is to protect against

       unreasonable police activity in areas of life that Indiana citizens regard as

       private. Id.


[13]   In Gerschoffer, our supreme court “join[ed] those jurisdictions rejecting the

       contention that all roadblocks are per se violations of state constitutional

       requirements” and set out the criteria to determine whether a particular sobriety

       checkpoint “was conducted in a constitutionally reasonable manner.”

       Gerschoffer v. State, 763 N.E.2d 960, 966 (Ind. 2002). The court held that “[a]

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 6 of 15
       minimally intrusive roadblock designed and implemented on neutral criteria

       that safely and effectively targets a serious danger specific to vehicular

       operation is constitutionally reasonable, unlike the random and purely

       discretionary stops we have disapproved.” Id. Among the relevant factors to be

       considered and weighed are: (1) whether the roadblock was staged pursuant to

       a formal, neutral plan approved by appropriate officials; (2) the objective,

       location, and timing of the checkpoint, taking these factors into account to

       determine whether the seizure was well calculated to effectuate its purpose; (3)

       the amount of discretion exercised by field officers conducting the checkpoint,

       with a goal of minimal discretion to ensure against arbitrary or inconsistent

       actions by the screening officers; (4) the degree of intrusion and whether the

       roadblock was avoidable; (5) whether the surrounding conditions of the

       checkpoint were safe; and (6) whether the checkpoint was effective. Id. at 967-

       70. We will evaluate each factor in turn.


                                            I. Formal, Neutral Plan

[14]   Gersdorff claims that Lieutenant McCardia’s “mere assertion that ‘we have

       standardized plans’ and that ‘there are all sorts of plans involved’ does not

       allow this [c]ourt to review whether it was a reasonable, neutral plan.”

       (Appellant’s Br. p. 14). In Gerschoffer, the guidelines police followed in

       conducting the roadblock were not made a part of the record on appeal, so our

       supreme court was unable to “assess their efficacy.” Id. at 967. Instead, the

       court cited with approval guidelines set out in a Connecticut case, State v.

       Boisvert, 671 A.2d 834 (Conn. App. 1996). In Boisvert, the guidelines


       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 7 of 15
       promulgated by the public safety commissioner required, “among other things,

       advance approval by ranking officers; a careful choice of location, date and time

       ‘after considering many factors, including the safety of the public and those

       conducting the operation and the potential inconvenience to the public’;

       advance publicity; and assurance to drivers that the stop was routine.”

       Gerschoffer, 763 N.E.2d at 967 (quoting Boisvert, 671 A.2d at 837).


[15]   Our review of the evidence indicates that the checkpoint had been approved by

       the Marion County Traffic Safety Partnership, the police chief, and the

       prosecutor’s office. The choice of location was based on “crash data from the

       past few years” which had revealed “a lot of drunk driver arrests and drunk

       driving crashes” in that particular area. (Tr. p. 15). The officers conducting the

       sobriety checkpoint had participated in many checkpoints and had several years

       of experience of conducting them. The State presented evidence and entered

       into evidence as State’s Exhibit 1, the checkpoint’s briefing, its goals, objectives,

       and procedures—which was implemented by Lieutenant McCardia while

       conducting the checkpoint.


[16]   The checkpoint itself was well advertised with multiple signs alerting drivers of

       its presence. It was well lit with street lights, reflective signs, and cones. While

       conducting the checkpoint, the officers were required to follow a specific

       procedure, which mandated the pattern of cars to be pulled into the checkpoint,

       and provided the officers with a specific script to follow and advisements to

       administer.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 8 of 15
[17]   Ten days prior to the operation of the checkpoint, a press release notifying the

       date, time, and location of the checkpoint was sent to the following radio,

       television, and print media: the Speedway Police Department; Advocates

       Against Impaired Driving; the Associated Pres; Fox 59 News; the Indiana

       Herald; the Indianapolis Star; the Indy Recorder; La Voz De Newspaper;

       Media Relations, IMPD; the Southside Times; The Daily Journal; The

       Greenfield Reporter; Univision; WEDJ; WFBQ Q95; WFMS Radio; WFYI;

       WIBC Radio; WISH TV Channel 8; WRTV Channel 6; WTHR Channel 13;

       WTLC Radio; and the City of Lawrence. Although Gersdorff contends that

       there was no proof that someone actually publicized the impending roadblock,

       Gerschoffer noted that “[l]aw enforcement agencies cannot control what the

       media chooses to report, of course, and may not have funds to pay for

       publicity.” Gerschoffer, 763 N.E.2d at 970-71. While no evidence is included

       that the information from the press release was disseminated by the media to

       the general public, the record includes evidence supporting a reasonable

       inference that the press release was distributed. See also Sublett v. State, 815

       N.E.2d 1031, 1033 (Ind. Ct. App. 2004) (finding a nearly identical sobriety

       checkpoint constitutional under the Indiana Constitution where the police “did

       not know whether the media actually published the information”).

       Accordingly, as a formal, neutral plan was in place to conduct the checkpoint,

       we cannot say that this element weighs against its constitutionality.


                                     II. Objective, Location, and Timing




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 9 of 15
[18]   Next, Gersdorff claims that “the objective, location and timing of the roadblock

       was not sufficiently established at trial.” (Appellant’s App.p. 16). In Gerschoffer,

       the stated objective—rejected by the court—for the checkpoint was a “montage

       of objectives, including the generic law enforcement goal of ‘mak[ing] sure

       everybody is doing what they’re supposed to [do].’” Gerschoffer, 763 N.E.2d at

       968. In contrast here, the objective was “[t]o deter impaired driving and

       increase the risk of apprehension of impaired drivers.” (State’s Exh. 1). The

       timing of the checkpoint was 11:00p.m. until 1:30a.m. Pursuant to Lieutenant

       McCardia’s testimony, the location was chosen based on previous years’ crash

       data which had revealed numerous drunk driver arrests and crashes in the

       particular area. Again, this element weighs in favor of the constitutionality of

       the checkpoint.


                                              III. Police Discretion


[19]   Considering police discretion a “critical factor,” the Gerschoffer court requires

       “sufficiently explicit guidance to ensure against arbitrary or inconsistent actions

       by the screening officers.” Gerschoffer, 763 N.E.2d at 968-69. The record

       reflects that standardized instructions were given to ensure that officers

       addressed drivers in a consistent manner. Specifically, State’s Exhibit 1 details

       the routine to be followed during the checkpoint as follows:


               Sequence of Vehicle Selection and Public Interaction




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 10 of 15
        Do not deviate from the sequence of vehicle selection. All
        vehicles in the sequence will be checked, including police and fire
        vehicles.


        Identify yourself and advise the motorist “You have been stopped
        at a Marion County Traffic Safety Partnership Sobriety
        Checkpoint. We use checkpoints to deter impaired drivers.
        Have you had anything to drink this evening?” Check for DWI
        clues. Advise the motorist you would like to see a driver’s
        license and registration.


        Vehicles should be held in line no longer than 2 minutes.


        If alcohol is detected or additional investigation is needed, have
        the driver pull the vehicle into the “pull-off” area.


        Large trucks may be checked on the street to lessen change of
        damage to the parking lots. However, trucks should be pulled
        out of the way so not to block traffic.


        Please assist vehicles out of the checkpoint.


        Avoidance of a checkpoint alone does not constitute a legal stop.


Testimony by officers at trial confirmed that the officers behaved accordingly

during the checkpoint. The officers pulled in two vehicles at the same time after

which they gave the drivers the introductory statements and acted in conformity

with the script. Given the lack of discretion and the scripted, consistent manner

in which the officers had to conduct themselves, this element weighs in favor of

constitutionality of the checkpoint.


Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 11 of 15
                                            IV. Degree of Intrusion


[20]   “In evaluating the degree of intrusion, we also consider whether the roadblock

       was avoidable. The more avoidable a roadblock is, the less it interferes with the

       liberty of individual drivers.” Gerschoffer, 763 N.E.2d at 969. Here, prior to

       arriving at the checkpoint, drivers were alerted by “five (5) foot reflector signs.”

       (Tr. p. 19). Lieutenant McCardia testified that no matter in which direction a

       car was travelling, the checkpoint was avoidable from all directions.

       Accordingly, and Gersdorff agrees, the signage and possibility of avoiding the

       checkpoint weigh in favor of it being constitutional.


                                          V. Safety of the Checkpoint


[21]   Here, the State offered testimony that the checkpoint was located in a well-lit

       area, where vehicles could be pulled off the roadway into an adjacent parking

       lot without impending traffic. See Gerschoffer, 763 N.E.2d at 970; see also Sublett,

       815 N.E.2d at 1039 (“[T]he checkpoint was safely conducted in a well-lighted

       area and detained motorists were diverted into an adjacent parking lot”). The

       evidence indicates that the weather was clear and the temperature was

       approximately sixty degrees Fahrenheit. Drivers were stopped in the eastbound

       lane of Broad Ripple Avenue or 62nd street. Every first two cars were waived

       into the Flanner and Buchanan parking lot, used by the officers to conduct the

       sobriety check. There was lighting in the parking lot and the officers also used

       vehicles with flashers and reflective signs to alert drivers to what was

       happening. Accordingly, this element weighs in favor of its constitutionality.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 12 of 15
                                                  VI. Effectiveness


[22]   Lastly, Gersdorff disputes the effectiveness of the sobriety checkpoint.

       Lieutenant McCardia testified to the effectiveness of the checkpoint in that the

       ratio of people stopped were consistent “with the statistics that were presented.”

       (Tr. p. 24).


[23]   The Gerschoffer court, in analyzing the effectiveness of the checkpoint, observed

       that “advance publicity” of a sobriety checkpoint can “scare[] those who would

       drink and drive off the roads.” Gerschoffer, 763 N.E.2d at 970. The court held

       that, given the “fairly low percentage” of OWI arrests 1 obtained in that

       roadblock and the lack of evidence of advance publicity of the roadblock, it

       could not infer that that the checkpoint had “effectively deterred potential

       offenders.” Id. at 971. Here, out of eighteen vehicles that were stopped at the

       checkpoint, the police made two arrests. Compared to the two arrests out of

       seventy stops in Gerschoffer, the arrest rate here, while not a high percentage in

       itself, was significantly higher.


[24]   “Apprehension rates are not, however, the end of the question.” Gerschoffer,

       763 N.E.2d at 970. “[R]oadblocks can effectively deter OWI, such that even a

       modest arrest rate may simply reflect the fact that advance publicity scared

       those who would drink and drive off the roads.” Id. However, we also noted




       1
        In Gerschoffer, the police stopped seventy out of 198 cars “funneled through the checkpoint” and made only
       two arrests for OWI. Gerschoffer, 763 N.E.2d at 970.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017       Page 13 of 15
       that while the existence of the sobriety checkpoint was released to the media at

       large, here, there is no evidence that this information was disseminated to the

       general public. Without direct evidence showing that the checkpoint was

       actually publicized, it is more doubtful that the checkpoint had a deterrent

       effect. Therefore, while the arrest rate for operating while intoxicated was

       higher than that obtained in Gerschoffer, we cannot say that the effectiveness

       factor weighs significantly in favor of the State.


                                                 VII. Summary


[25]   Gersdorff concedes two Gerschoffer factors—police discretion and degree of

       intrusion—but argues that the others were not satisfied. We disagree. There is

       substantial evidence in the record that the officers implemented a properly

       approved, neutral plan that included, among other things, advanced

       distribution of a media release to a significant number of local media outlets.

       Additionally, the record establishes that a narrow objective was established for

       the checkpoint, the timing/location was based on OWI arrest statistics, and the

       checkpoint was operated under safe conditions. The checkpoint was somewhat

       effective in deterring drunk driving. We hold that the sobriety checkpoint in

       this case, all things considered, was constitutional under Article I, Section 11 of

       the Indiana Constitution. Therefore, the trial court did not abuse its discretion

       when it admitted the evidence discovered pursuant to Gersdorff’s stop at the

       sobriety checkpoint.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1785 | February 17, 2017   Page 14 of 15
                                             CONCLUSION
[26]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       in admitting the evidence seized following Gersdorff’s stop at a constitutionally

       reasonable sobriety checkpoint


[27]   Affirmed.


[28]   Crone, J. and Altice, J. concur




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