ATTORNEYS FOR APPELLANT                          ATTORNEYS FOR APPELLEE
Peter D. Todd                                    Gregory F. Zoeller
Elkhart, Indiana                                 Attorney General of Indiana

                                                 Kyle Hunter
                                                 James B. Martin
                                                 Kelly A. Miklos
                                                 Deputy Attorneys General
                                                 Indianapolis, Indiana




                                        In the
                      Indiana Supreme Court                                    Mar 25 2014, 12:30 pm



                                 No. 20S04-1307-CR-471

JOANNA S. ROBINSON,
                                                         Appellant (Defendant below),

                                            v.

STATE OF INDIANA,
                                                         Appellee (Plaintiff below).


              Appeal from the Elkhart Superior Court, No. 20D05-1110-CM-507
                        The Honorable Charles Carter Wicks, Judge


     On Petition to Transfer from the Indiana Court of Appeals, No. 20A04-1209-CR-561
                                          March 25, 2014

Massa, Justice.


       As the two companion appeals we resolve today vividly illustrate, sometimes standards
of review decide cases. 1 In the instant case, the trial court found law enforcement had reasonable
suspicion to conduct a traffic stop and admitted the resulting evidence; in State v. Keck, No.
67S01-1403-CR-179 (Ind. Mar. 25, 2014), the trial court reached the opposite conclusion. We
affirm both trial courts and decline appellants’ invitation to invade the fact-finder’s province.




                                  Facts and Procedural History


       Around 1:00 a.m. on October 15, 2011, Deputy Casey Claeys of the Elkhart County
Sheriff’s Department was following another vehicle down County Road 4. Deputy Claeys later
testified he saw the vehicle “drive off the right side, which was the south side of the road, twice.”
Tr. at 24. Immediately after the second incident, he turned on his vehicle camera and initiated a
traffic stop for “unsafe lane movement.” Tr. at 24. The camera, once activated, retroactively
records the previous thirty seconds.


       Deputy Claeys later testified that when he approached the vehicle, he noticed the driver,
Joanna S. Robinson, “had glossy, blood shot eyes, slurred speech . . . and the odor of an
alcoholic beverage coming from her breath.” Tr. at 26. Upon questioning, Robinson admitted




1
  Scholars and judges alike have acknowledged this power. See, e.g., Gerlach v. Woodke, 881 N.E.2d
1006, 1009 n.1 (Ind. Ct. App. 2008) (“although the standard of review is not outcome-determinative in
this case, it often is in a significant number of cases.”); Michael R. Bosse, Standards of Review: The
Meaning of Words, 49 Me. L. Rev. 367, 398 (1997) (“Properly argued and decided, the standard of
review may control the outcome of a case.”).



                                                    2
she had drunk one beer, and Deputy Claeys proceeded to conduct standard field sobriety tests on
her.     After she failed three of the tests, Robinson told Deputy Claeys she had marijuana
concealed in her clothing; she then removed the marijuana and dropped it onto the ground. At
that point, Deputy Claeys took Robinson into custody and transported her to the Elkhart County
Jail, where a chemical test showed her blood-alcohol level was 0.09.


          The Elkhart County Prosecutor charged Robinson with three Class A misdemeanors
(operating a motor vehicle with a suspended license, 2 possession of marijuana, 3 and operating a
vehicle while intoxicated 4) and one Class C misdemeanor (operating with a breath-alcohol level
over 0.08 5). By counsel, Robinson moved to suppress all the evidence against her, arguing
Deputy Claeys did not have reasonable suspicion to justify the stop because Robinson “never left
her lane of traffic in any form.” App. at 23. Pursuant to the parties’ agreement, the trial court
considered Robinson’s motion in conjunction with the evidence presented at her bench trial,
which included Deputy Claeys’s testimony, blood and breath test evidence, and the video from
the camera on Deputy Claeys’s vehicle. The trial court also heard final argument from both
parties; the State encouraged the court to credit Deputy Claeys’s testimony over the videotape,
while the defendant urged the opposite.


          Ultimately, the trial court denied Robinson’s motion to suppress. Citing State v. McCaa,
963 N.E.2d 24, 31 (Ind. Ct. App. 2012) (finding reasonable suspicion for a traffic stop when the
defendant drove “slowly and off of the roadway twice”), the trial court stated it “reviewed the
video on approximately ten occasions and cannot conclude from the video that the defendant’s
vehicle actually left the roadway . . . but it does show the vehicle veering on two occasions onto




2
    Ind. Code § 9-24-19-2 (2010 & Supp. 2013).
3
    Ind. Code § 35-48-4-11(1) (2008 & Supp. 2013).
4
    Ind. Code § 9-30-5-2(b) (2010).
5
    Ind. Code § 9-30-5-1(a)(2) (2010).



                                                     3
the white fog line.” App. at 33. The trial court noted, however, that it was “quite possible that
the officer’s actual visual observation of the defendant’s vehicle was superior to the video
camera in his car.” App. at 33. After considering all of this evidence, the trial court concluded
this case was “perhaps a closer call” than McCaa, but that “the act of weaving onto the fog line,
while not itself an illegal act, did give a trained police officer justification to stop and inquire
further as to the driver’s condition.” App. at 33, 34. The trial court then found Robinson guilty
of possession of marijuana, operating while intoxicated, and operating with a breath-alcohol
level over 0.08.    It merged the latter two convictions and sentenced her to one year of
imprisonment for each conviction, to run concurrently and suspended to probation.


       Robinson appealed, arguing the trial court wrongly denied her motion to suppress. A
panel of our Court of Appeals agreed and reversed her conviction. Robinson v. State, 985
N.E.2d 1141, 1148 (Ind. Ct. App. 2013).


       We granted transfer, thereby vacating the opinion below. Robinson v. State, 990 N.E.2d
945 (Ind. 2013) (table); Ind. Appellate Rule 58(A).




                                       Standard of Review


       Our justice system entrusts the admission of evidence to the trial court’s sound discretion.
Schmitt v. State, 730 N.E.2d 147, 148 (Ind. 2000). We review a trial court’s denial of a
defendant’s motion to suppress deferentially, construing conflicting evidence in the light most
favorable to the ruling, but we will also consider any substantial and uncontested evidence
favorable to the defendant. Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006) (citing Murphy v.
State, 747 N.E.2d 557, 559 (Ind. 2001); Ogle v. State, 698 N.E.2d 1146, 1148–49 (Ind. 1998)).
We defer to the trial court’s findings of fact unless they are clearly erroneous, and we will not
reweigh the evidence. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008) (citing State v. Quirk,
842 N.E.2d 334, 340 (Ind. 2006)). When the trial court’s denial of a defendant’s motion to
suppress concerns the constitutionality of a search or seizure, however, it presents a question of




                                                   4
law, and we address that question de novo. Id. (citing Myers v. State, 839 N.E.2d 1146, 1150
(Ind. 2005)).




                The Trial Court Correctly Denied Robinson’s Motion to Suppress


        Robinson argues Deputy Claeys lacked reasonable suspicion to stop her vehicle and thus
violated her rights under both the federal and state constitutions. 6 As a threshold matter, both
parties dispute the significance of the video evidence. Robinson notes the trial court conceded
the video “did not clearly demonstrate that Robinson’s vehicle veered off the roadway . . . but
speculated that the officer’s observations at the scene were superior to his in-car camera.”
Appellant’s Br. at 2. The State, on the other hand, cautions us not to “rest [our] determination on
minutia of an imperfect and rudimentary video.” Appellee’s Br. at 8.


        While technology marches on, the appellate standard of review remains constant. As we
said above, we do not reweigh the evidence. Our colleagues in other states have taken a similar
approach when faced with video evidence. State v. Vanscoyk, No. A-12-024, 2012 WL 6580786
at *6 (Neb. Ct. App. Dec. 18, 2012) (“Vanscoyk essentially asks us to reweigh evidence and
witness credibility to determine whether Officer Kowalewski’s testimony is credible in light of
the video. This is not the appropriate province of an appellate court.”); State v. Gross, No.
107320, 2012 WL 3136809 at *4 (Kan. Ct. App. July 27, 2012) (“We do not reweigh the




6
  Robinson’s Motion to Suppress alleged violations “of defendant’s rights secured by the Constitution of
the United States, under 4th, 5th, 6th and 14th Amendments and under the Article 1 Section 1 of the Indiana
Constitution.” App. at 23. Based on Robinson’s appellate brief, which cites Terry v. Ohio, 392 U.S. 1,
30 (1968) and Barrett v. State, 837 N.E.2d 1022, 1026 (Ind. Ct. App. 2005), we understand Robinson’s
arguments to be predicated upon the federal Fourth Amendment, incorporated to the States by the
Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 660 (1961), and upon Article 1, § 11 of our own
Indiana Constitution. To the extent that Robinson intended to make other arguments on appeal, she has
not adequately developed them and thus waived them for our review. Ind. Appellate Rule 46(A)(8)(a);
City of Indianapolis v. Buschman, 988 N.E.2d 791, 795 (Ind. 2013) (citing Reed v. Reid, 980 N.E.2d 277,
297 (Ind. 2012)).



                                                      5
evidence, and the district court’s conclusion that the video was ‘the clearest evidence’ is not
contrary to any uncontested testimony.”); State v. White, No. E2010-02238-CCA-R3CD, 2011
WL 5335471 (Tenn. Crim. App. Nov. 2, 2011) (declining, in a challenge to the sufficiency of the
evidence for a conviction for drunk driving, to reweigh the evidence and find a video recording
more reliable than eyewitness testimony). 7


        We do not believe, however, as some of our colleagues in other jurisdictions do, that the
very act of reviewing video evidence constitutes impermissible appellate reweighing. State v.
Rascon, No. 30,561, 2011 WL 704472 at *2 (N.M. Ct. App. Jan. 14, 2011) cert. denied, 2011-
NMCERT-003, 150 N.M. 619, 264 P.3d 520 (2011) (table) (declining even to review a video of
a traffic stop in a reasonable suspicion case on the ground that doing so would amount to
reweighing the evidence). Rather, we consider video evidence admitted in the trial court to be a
necessary part of the record on appeal, just like any other type of evidence. But see Nava v. Kan.
Dep’t of Revenue, 281 P.3d 597 (Kan. Ct. App. 2012) (table), 2012 WL 3135902 at *4 (“the
Department asks us to reweigh not only the witness[es]’ testimony but also the district court’s
factual determination regarding the video evidence without having even included a copy of the
video in the record on appeal.”).


        And just like any other type of evidence, video is subject to conflicting interpretations. In
Scott v. Harris, 550 U.S. 372 (2007), Justice Scalia, writing for the majority of the Court,
described a videotape as showing “a Hollywood-style car chase of the most frightening sort,
placing police officers and innocent bystanders alike at great risk of serious injury.” Id. at 380.
Based largely on his impression of that video, he concluded police were justified in using deadly




7
  These cases are unpublished, and their citation is either disfavored, disallowed, or restricted by their
respective jurisdictions. Neb. Ct. R. App. P. § 2-102(E)(4); Kan. Sup. Ct. R. 7.04(g)(2)(B); Tenn. Ct.
Crim. App. R. 19(4). But as we have done before when faced with a specific and narrow issue arising out
of the novel application of technology, see, e.g., Troxell v. State, 778 N.E.2d 811, 816 (Ind. 2002) (citing
unpublished decision Fanniel v. State, No. 01-00-00732-CR, 2002 WL 467158 at *1 (Tex. Crim. App.
Mar. 28, 2002)), we cite them to show that our approach to that issue is consistent with the approach of
our colleagues in other jurisdictions.



                                                       6
force to end the pursuit. Id. at 386. Justice Stevens, dissenting, described the very same video as
“hardly the stuff of Hollywood” and opined it did not show “any incidents that could even be
remotely characterized as ‘close calls.’” Id. at 392 (Stevens, J., dissenting).


         What is more, “the video record may ‘speak for itself,’ but it does not and cannot speak
for the visual input a judge observes and interprets that falls outside the scope of the camera, nor
does it filter events and behavior through his or her experience and expertise.” Bernadette Mary
Donovan, Note, Deference in A Digital Age: The Video Record and Appellate Review, 96 Va.
L. Rev. 643, 676 (2010). Although this statement was made in the context of a discussion of
appellate consideration of video trial transcripts, we believe the same reasoning applies to
appellate consideration of video evidence, and even to law enforcement reaction to an evolving
situation. Deputy Claeys, as he drove down County Road 4 on that October night, was observing
Robinson’s vehicle through the lens of his experience and expertise. And when Deputy Claeys
testified at the suppression hearing, the trial judge heard his testimony—along with the other
witness testimony and evidence, including the video—through the lens of his experience and
expertise. Ultimately, that experience and expertise led the trial judge to weigh Deputy Claeys’s
testimony more heavily than the video evidence, and we decline Robinson’s invitation to
substitute our own judgment for that of the trial court and rebalance the scales in her favor.


        The trial court found, as a matter of fact, that to the extent Deputy Claeys’s testimony
conflicted with the video, the former was more reliable than the latter. 8 Deputy Claeys testified
“both passenger side tires were over the fog line” and “completely off the roadway” “twice.” Tr.




8
  The dissent asserts that the trial court based its ruling on a factual conclusion that Robinson “swerve[ed]
toward” or “weav[ed] onto” the white fog line, App. at 33–34, rather than “over the fog line.” Tr. at 48.
That is not how we read the trial court’s conclusions, but even if it were, affirmance would still be proper.
“On appellate review, . . . a trial court judgment may be affirmed if sustainable on any basis in the record,
even though not on a theory used by the trial court.” Benham v. State, 637 N.E.2d 133, 138 (Ind. 1994)
(citing Havert v. Caldwell, 452 N.E.2d 154, 157 (Ind. 1983)). Here, the officer’s testimony that Robinson
crossed the fog line twice—which the trial court appeared to find credible—supports a legal finding of
reasonable suspicion for the traffic stop. Thus, we may—and do—affirm the trial court.



                                                       7
at 48, 24. Thus, we must now decide whether those facts constitute reasonable suspicion for a
traffic stop, as a matter of law, in accordance with our federal and state constitutions.


       I.      The Fourth Amendment


       The Fourth Amendment provides protection against unreasonable searches and seizures
by generally prohibiting such acts without a warrant supported by probable cause. U.S. Const.
amend. IV; Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). The Terry stop, perhaps the most
popular exception to this rule, permits an officer to “stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported 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 v. Ohio, 392 U.S. 1, 30 (1968)). Such a stop
“must be justified by some objective manifestation that the person stopped is, or is about to be,
engaged in criminal activity.” Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009) (quoting
United States v. Cortez, 449 U.S. 411, 417 (1981)).


       Both Robinson and the State rely heavily on Barrett v. State, 837 N.E.2d 1022 (Ind. Ct.
App. 2005), in which police received a tip that two persons driving a blue Chevrolet Geo Tracker
had purchased methamphetamine ingredients at a Meijer store. Id. at 1024. Officers located that
vehicle in the store parking lot and followed it out onto the interstate, where they observed it drift
to the right and travel on the fog line for about forty yards. Id. at 1025. A divided panel of our
Court of Appeals found reasonable suspicion to support the stop. Id. at 1028. Robinson argues
Barrett was wrongly decided and urges us to adopt the reasoning Judge Mathias expressed in his
dissent. Id. at 1031 (Mathias, J., dissenting) (suggesting that if simply drifting in a lane of traffic
provided probable cause for a stop, the reasonable suspicion standard would be so low as to be
almost meaningless).     In the alternative, Robinson argues this case is distinguishable from
Barrett. The State, on the other hand, asserts Barrett and other cases have established that an
officer who observes a vehicle drive onto the fog line multiple times has reasonable suspicion to
stop that vehicle on the ground that the driver is likely impaired. McCaa, 963 N.E.2d at 31
(finding reasonable suspicion to conduct a traffic stop when the officer had received several
reports that a semi was driving erratically and observed the semi travel under the speed limit and


                                                    8
cross the fog line twice); Jaremczuk v. State, 177 Ind. App. 628, 629–31, 380 N.E.2d 615, 616–
17 (1978) (finding reasonable suspicion to conduct a traffic stop when officers received a tip that
a particular vehicle was involved in a hit-and-run and then observed a vehicle matching that
description cross the fog line).


        Robinson is correct, of course, that unlike in Barrett and McCaa, there was no “tip” in
this case to corroborate Deputy Claeys’s observation that her driving appeared erratic. Even so,
we do not believe the Fourth Amendment requires police “to grant drunk drivers ‘one free
swerve’ before they can legally be pulled over.” Virginia v. Harris, 130 S. Ct. 10, 12 (2009)
(Roberts, C.J., dissenting from denial of certiorari). Even if it did, Robinson swerved twice on a
relatively straight, flat roadway. Although such movement could have been attributable to driver
distraction or some other more innocuous cause, Terry does not require absolute certainty of
illegal activity, but rather reasonable suspicion. On these facts, we find that standard was
satisfied.


        II.    Indiana Constitution Article 1, § 11


        Although its text mirrors the federal Fourth Amendment, we interpret Article 1, § 11 of
our Indiana Constitution separately and independently. State v. Washington, 898 N.E.2d 1200,
1205–06 (Ind. 2008). When a defendant raises a Section 11 claim, the State must show the
police conduct “was reasonable under the totality of the circumstances.” Id. We consider three
factors when evaluating reasonableness: “1) the degree of concern, suspicion, or knowledge that
a violation 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.” Litchfield v.
State, 824 N.E.2d 356, 361 (Ind. 2005).


        Deputy Claeys witnessed Robinson drive over the fog line twice in a relatively short
period of time, giving rise to a reasonable suspicion that she was impaired.           The initial
intrusion—a Terry stop—was relatively minor, and Deputy Claeys only escalated the stop after
he noticed several signs that Robinson was in fact intoxicated. And few Hoosiers would dispute
the heartbreaking effects of drunk driving in our state. Since 2008, Indiana has seen a 10%


                                                  9
annual increase in the number of victims of alcohol-impaired driving accidents. Samuel Nunn,
Traffic Safety Facts: Alcohol, 2012, 13-C08 Ind. U. Center Crim. Just. Res. 1, 1 (June 2013),
available at http://www.in.gov/cji/files/T-Alcohol.pdf. Last year, 158 Hoosiers lost their lives in
crashes involving alcohol-impaired drivers.       Id.   Law enforcement has a strong interest in
preventing these accidents, and “police should have every legitimate tool at their disposal for
getting drunk drivers off the road.” Harris, 558 U.S. at 978 (Roberts, C.J., dissenting from denial
of certiorari). Thus, under the totality of the circumstances, we find Deputy Claeys’s conduct
was reasonable and the stop did not offend Article 1, § 11 of our Indiana Constitution.




                                           Conclusion


       We therefore affirm the trial court’s denial of Robinson’s motion to suppress.


Dickson, C.J., and David and Rush, JJ., concur.
Rucker, J., dissents with separate opinion.




                                                   10
Rucker, J., dissenting.


       In a compelling and persuasive opinion the Court of Appeals determined that evidence
seized after a traffic stop should not have been admitted into evidence. The majority takes issue
with this determination. But in my view the Court of Appeals got it exactly right.


       The majority declares that the trial court “weigh[ed] Deputy Claeys’s testimony [that
Robinson drove off the roadway] more heavily than the video evidence.” Slip op. at 7. Indeed,
it would have been entirely within the trial court’s province to do so; and had it done so that
would be the end of the matter. But the record reflects that instead of choosing to credit the
officer’s testimony, the trial court concluded that reasonable suspicion was present based solely
on Robinson’s “act of weaving onto the fog line.” App. at 34.


       The trial court summarized the evidence presented, observing that “the officer in this case
has testified that defendant drove off the roadway on two occasions.” App. at 33. The court
further acknowledged that “[i]t is quite possible that the officer’s actual visual observation of the
defendant’s vehicle was superior to the video camera in his car.” App. at 33. But the court
recognized that the video did not reflect that the vehicle “actually left the roadway” but only that
it “veer[ed] on two occasions onto the white fog line.” App. at 33.


       Based on the evidence the trial court then concluded:

               [T]he act of swerving toward the white fog line rather than
               maintaining the vehicle in a steady course in the middle of the lane
               as [Robinson] was driving through the rest of the journey would
               appear to justify a brief investigatory stop to see if the driver was
               in an impaired condition. Such driving of course could have been
               innocent such as a driver who dropped an item in the car or who
               was adjusting a radio or talking on a cell phone, but the fact that
               she swerved to the right on two occasions appears to be enough
               under the standard of Terry to justify the stop. The court in
               McCaa, indicates that leaving the roadway on more than one
               occasion would justify a stop. Having weighed the evidence, the
                court finds that the act of weaving onto the fog line, while not itself
                an illegal act, did give a trained police officer justification to stop
                and inquire further as to the driver’s condition. The court therefore
                denies the Motion to Suppress the evidence of the traffic stop and
                the events flowing therefrom.

App. 33–34 (emphasis added).


        The trial court’s order thus makes plain the basis on which it found reasonable suspicion,
namely: Robinson’s acts of making contact with the fog line. I agree with the Court of Appeals
that more is required. Sustaining the trial court’s finding of reasonable suspicion on the basis
that the court could have credited the officer’s testimony that Robinson drove “[c]ompletely off
the roadway,” Tr. at 48, amounts to reweighing the evidence, which we are not permitted to do. 9


        The Court of Appeals reviewed numerous cases from other jurisdictions as well as prior
Indiana precedent, all of which support the proposition that mere “brief contact with the fog line
or swerving within a lane”—without more—is ordinarily insufficient to establish reasonable
suspicion of impaired driving. Robinson v. State, 985 N.E.2d 1141, 1146 (Ind. Ct. App 2013),
vacated. I agree and would reiterate the observation that “if failure to follow a perfect vector
down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person
of driving while impaired, a substantial portion of the public would be subject each day to an
invasion of their privacy.” Id. (quoting United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993),
overruled on other grounds by United States v. Botero-Ospina, 71 F.3d 783, 786–87 (10th Cir.
1995)). Therefore I respectfully dissent.




9
  The majority affirms the trial court relying in part on the longstanding rule that it may do so where
evidence of record supports the judgment. See slip op. at 8 n.8 (citing Benham v. State, 637 N.E.2d 133,
138 (Ind. 1994)). Although an appellate court has permission to affirm on any basis in the record, I would
be particularly reluctant to do so here based on record evidence that the trial court itself did not appear to
credit.



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