                                                                              FILED
                                                                         Sep 28 2018, 10:43 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Thomas C. Allen                                            Curtis T. Hill, Jr.
Fort Wayne, Indiana                                        Attorney General of Indiana
                                                           Chandra K. Hein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Bruce T. Eaton,                                            September 28, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1248
        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Honorable Frances C. Gull,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           02D05-1801-F4-4



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018                            Page 1 of 11
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Bruce Eaton (Eaton), appeals his conviction for unlawful

      possession of a firearm by a serious violent felon, a Level 4 felony, Ind. Code §

      35-47-4-5(c); and resisting law enforcement, a Class A misdemeanor, Ind. Code

      § 35-44-1-3(1)(a)(1).


[2]   We affirm.


                                                     ISSUE
[3]   Eaton raises one issue for our review, which we restate as whether the trial

      court abused its discretion when it admitted evidence obtained in violation of

      his federal and state constitutional rights.


                       FACTS AND PROCEDURAL HISTORY
[4]   On January 19, 2018, Detective Marc DeShaies (Detective DeShaies) of the

      Fort Wayne Police Department was performing surveillance on a home

      suspected to be the site of gang-related activity. The purpose of the surveillance

      was to generate probable cause so that law enforcement could procure and

      serve a search warrant there. Detective DeShaies observed a group of people

      exit the home and drive away in a black vehicle. While following the vehicle,

      Detective DeShaies noted that two of the vehicle’s turn signals were

      malfunctioning and that its windows were heavily tinted such that it was not

      possible to discern the occupants. In addition, Detective DeShaies observed the

      driver of the vehicle driving above the posted speed limit.


      Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018   Page 2 of 11
[5]   Detective DeShaies activated his vehicle’s emergency lights and chirped his

      siren, and the driver of the black vehicle pulled over to the curb. Immediately

      after the black vehicle came to a stop and before Detective DeShaies had

      radioed in the traffic stop, Eaton opened the rear passenger door and started to

      exit. Given the immediacy of Eaton’s attempt to exit the car, Detective

      DeShaies believed that he was about to be attacked or that Eaton would flee.

      Detective DeShaies, who was wearing a full police uniform, exited his car and

      quickly closed the distance between himself and Eaton, loudly shouting for

      Eaton to get “back in the car.” (State’s Exhibit 1 at 0:47). When Detective

      DeShaies was at the car door, Eaton looked at him and attempted to place his

      legs outside the vehicle. Detective DeShaies observed Eaton place his hand at

      his waistband, which Detective DeShaies knew from experience was where a

      gun could be carried. Detective DeShaies could see that there were seven

      passengers in the car, some of whom were known to him to be gang members

      who had been involved in recent shootings. Detective DeShaies feared that he

      would be attacked.


[6]   Detective DeShaies gave multiple commands to the occupants of the vehicle to

      stop moving and place their hand on their heads, but not all of them complied.

      Detective DeShaies observed another passenger in the back seat reaching

      between his legs to the floor of the vehicle, which Detective DeShaies knew

      from his experience could be an attempt to hide contraband or a weapon.

      Eaton continued to touch his waistband with one hand while using the other

      hand to attempt to pull himself from the vehicle. Detective DeShaies, who still


      Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018   Page 3 of 11
      had not had an opportunity to call for assistance, grew even more concerned

      that he was about to be attacked. Detective DeShaies placed his hand on

      Eaton’s chest to keep Eaton inside the vehicle, but Eaton continued to struggle

      and push back. Detective DeShaies drew his gun and issued an ultimatum that

      he would be forced to shoot if his commands were not obeyed. Detective

      DeShaies then radioed for assistance using the most urgent call available, and

      other officers quickly arrived.


[7]   Eaton was handcuffed and taken from the vehicle. When he stood to be led

      away from the vehicle, Eaton’s loose-fitting athletic pants fell down. He was

      seated on a curb for a short time. When he stood prior to being transported, a

      fully loaded Smith and Wesson nine-millimeter handgun was discovered in his

      pants pocket. Eaton, who had a previous conviction for burglary, later

      admitted during an interview with police that he carried the weapon for

      protection. Eaton did not have a valid permit to carry a handgun.


[8]   On January 25, 2018, the State filed an Information and charged Eaton with

      one Count of unlawful possession of a firearm by a serious violent felon and

      one Count of resisting law enforcement. Eaton filed a motion to suppress the

      evidence gathered from the traffic stop, arguing that Detective DeShaies lacked

      the necessary reasonable suspicion of criminal activity to detain him, as he was

      merely a passenger in a vehicle that was subject to traffic violations. Eaton

      reiterated this argument at the hearing held on his motion. On April 17, 2018,

      the trial court denied Eaton’s motion to suppress, and Eaton waived his right to

      a jury trial. On April 18, 2018, the trial court found Eaton guilty on both

      Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018   Page 4 of 11
       Counts. On May 8, 2018, the trial court sentenced Eaton to ten years for the

       firearm conviction and to one year for the resisting law enforcement conviction,

       to be served concurrently, for an aggregate sentence of ten years.


[9]    Eaton now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                              I. Standard of Review

[10]   Although Eaton presents the issue as an appeal from the trial court’s denial of

       his motion to suppress, the issue is better framed as whether the trial court erred

       in admitting evidence obtained in violation of his rights under the Fourth

       Amendment to the United States Constitution and Article 1, Section 11, of the

       Indiana Constitution. We review a trial court’s decision on the admission of

       evidence for an abuse of the trial court’s discretion. Fansler v. State, 100 N.E.3d

       250, 253 (Ind. 2018). We will reverse “only where the decision is clearly

       against the logic and effect of the facts and circumstances.” Id. We do not

       reweigh the evidence and consider conflicting evidence in a light most favorable

       to the trial court's ruling. Buckley v. State, 886 N.E.2d 10, 13 (Ind. Ct. App.

       2008). However, we also consider any uncontested evidence favorable to the

       defendant. Id. We will affirm the trial court’s ruling if it is supported in the

       record by substantial evidence of probative value. Id. at 13-14. The ultimate

       determination of the constitutionality of a search or seizure is a question of law

       that we consider de novo. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).




       Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018     Page 5 of 11
                                              II. Fourth Amendment

[11]   The Fourth Amendment protects “[t]he right of people to be secure in their

       persons, houses, papers, and effects against unreasonable searches and

       seizures.” U.S. Const. amend. IV. A traffic stop constitutes a “seizure” for

       purposes of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-

       10 (1996). An officer may properly stop a vehicle when the driver of the vehicle

       is observed committing even a traffic infraction. Reinhart v. State, 930 N.E.2d

       42, 45 (Ind. Ct. App. 2010). Once a vehicle is stopped for a traffic infraction,

       any passengers within the vehicle are also effectively “seized” for purposes of

       the Fourth Amendment. Arizona v. Johnson, 555 U.S. 323, 327 (2009).


[12]   In Tawdul v. State, 720 N.E.2d 1211, 1216-17 (Ind. Ct. App. 1999), trans. denied,

       cited by the State on appeal but not by Eaton, this court held that, under the

       Fourth Amendment, an officer has the limited right to briefly detain a passenger

       who exits a vehicle after it has been lawfully stopped for a traffic violation. As

       part of that limited right, an officer may order a passenger who has exited a

       vehicle to return, but that authority lasts only long enough for the officer to

       make an initial assessment of the situation and alleviate any concerns the officer

       has for his or her safety. Id. at 1217. In addition, “[i]f probable cause or

       reasonable suspicion develop during this short period of time, then the officer

       may be justified in detaining the individual longer in order to further

       investigate.” Id.


[13]   The Tawdul Court observed that another panel of this court had reached a

       contrary conclusion in Walls v. State, 714 N.E.2d 1266 (Ind. Ct. App. 1999). Id.

       Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018    Page 6 of 11
       at 1216. In declining to follow Walls, the Tawdul court noted the trend in other

       jurisdictions holding that the public interest in officer safety outweighs the

       potential intrusion on passengers’ personal liberty interests during a traffic stop

       and that, thus, it is not unreasonable for an officer to order a passenger to return

       to the vehicle, even without independent reasonable suspicion of wrongdoing

       by the passenger. Id. at 1216-17.


[14]   We apply Tawdul and find that Detective DeShaies’ initial detainment of Eaton

       was reasonable under the Fourth Amendment. Detective DeShaies had

       observed the car in which Eaton was a passenger making at least three traffic

       code violations, precipitating a valid stop of the vehicle. Reinhart, 930 N.E.2d

       at 45. When Eaton opened the car door and attempted to exit, Detective

       DeShaies was constitutionally permitted to order Eaton back into the car for a

       brief period so that he could assess the situation and address any safety issues.

       Tawdul, 720 N.E.2d at 1217. Although Tawdul did not involve the forcible

       detainment of a passenger such as occurred here, we note that Detective

       DeShaies’ act of using his hand to keep Eaton in the vehicle did not entail the

       excessive use of force and was a reasonable attempt to control Eaton while

       assessing the situation and addressing safety concerns. Eaton did not comply

       with Detective DeShaies’ commands to stop moving and remain in the car.

       Eaton pushed back against Detective DeShaies’ hand and struggled to get out of

       the car, which provided probable cause for his arrest for resisting law

       enforcement. See Ind. Code § 35-44.1-3-1(a)(1) (“A person who knowingly or

       intentionally . . . forcibly resists, obstructs, or interferes with a law enforcement


       Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018      Page 7 of 11
       officer . . . while the officer is lawfully engaged in the execution of the officer’s

       duties . . . commits resisting law enforcement.”). The gun was then found in

       Eaton’s pocket during a search incident to his arrest for resisting law

       enforcement. See Neely v. State, 164 N.E.2d 110, 110 (Ind. 1960) (“It is well

       settled that a search reasonably incident to a lawful arrest can properly be made

       although accomplished without a search warrant.”).


[15]   Eaton contends that his Fourth Amendment rights were violated because he

       was arrested and seized without probable cause when Detective DeShaies drew

       his weapon and held it upon him. However, Eaton’s argument is unpersuasive

       given that, by pushing against Detective DeShaies and struggling to get out of

       the car while being lawfully detained during the execution of the traffic stop,

       Eaton had supplied Detective DeShaies with probable cause to arrest him for

       resisting law enforcement before Detective DeShaies drew his weapon. His

       arguments pertaining to why Detective DeShaies’ actions exceeded the

       authority of an investigative stop are also unpersuasive given that we have

       determined that Eaton’s initial detainment was valid and that the subsequent

       search of his person was done incident to a valid warrantless arrest for resisting

       law enforcement. The brief detainment and subsequent search incident to arrest

       yielding the gun did not run afoul of Eaton’s Fourth Amendment rights.


                                              II. Article 1, Section 11

[16]   Article 1, Section 11, of the Indiana State Constitution provides in relevant part,

       “The right of the people to be secure in their persons, houses, papers, and

       effects, against unreasonable search and seizure, shall not be violated.”

       Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018       Page 8 of 11
       Although this language largely tracks that of the Fourth Amendment, we

       interpret and apply it independently. Mitchel v. State, 745 N.E. 2d 775, 786 (Ind.

       2001). The reasonableness of a search or seizure under the Indiana

       Constitution “turns on an evaluation of the reasonableness of the police

       conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d

       356, 359 (Ind. 2005). Those circumstances may include a balance of: 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. Id. at 361. In

       determining the reasonableness of law enforcement’s actions under Section 11,

       we recognize that Indiana citizens are concerned with personal privacy interests

       but that they are also concerned with safety, security, and protection from

       crime. Saffold v. State, 938 N.E.2d 837, 840 (Ind. Ct. App. 2010), trans. denied.

       As such, we consider officer safety as a factor when assessing reasonableness.

       Id.


[17]   The Tawdul court held that an officer’s brief detainment of a passenger in a

       vehicle stopped for a traffic violation does not run afoul of the Indiana

       Constitution. Tawdul, 720 N.E.2d at 1214, 1216-17. Thus, Detective DeShaies

       was constitutionally permitted to order Eaton to get back in the car. Detective

       DeShaies’ act of placing his hand on Eaton’s chest to detain him there briefly to

       assess the situation, even before Detective DeShaies developed any concern,

       suspicion, or knowledge that Eaton had committed any criminal violation was

       reasonable: after approaching the vehicle, Detective DeShaies surmised he was


       Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018      Page 9 of 11
       outnumbered seven-to-one, some of the passengers in the vehicle he knew to be

       armed gang members, he had not had the opportunity to call for back up, Eaton

       and at least one other passenger had made furtive movements indicating they

       may be armed, and the detective feared he was about to be attacked. In

       addition, the intrusion on Eaton was minimal given that he had already been

       stopped to effectuate the traffic stop and the degree of force used by Detective

       DeShaies was minimal.


[18]   When Eaton continued to push back against Detective DeShaies and struggled

       to exit the vehicle, he supplied probable cause for his arrest for resisting law

       enforcement, which justified Eaton’s continued detainment. See Ind. Code §

       35-33-1-1(a)(4) (providing that a law enforcement officer may arrest a person

       when the officer has probable cause to believe the person is committing a

       misdemeanor in the officer’s presence). After probable cause for Eaton’s arrest

       developed, officers were then allowed to search Eaton incident to this valid

       arrest. See Edwards v. State, 759 N.E.2d 626, 629 (Ind. 2001) (“[O]nce a lawful

       arrest has been made, authorities may conduct a ‘full search’ of the arrestee for

       weapons or concealed evidence.”) (citation omitted).


[19]   Eaton argues that Detective DeShaies did not have the necessary degree of

       knowledge and concern of criminal activity on Eaton’s part to justify an

       investigative stop, the intrusion on Eaton was “immense” given that he was

       stopped from leaving the vehicle at gunpoint, and that Detective DeShaies

       actions were not justified for safety reasons. (Appellant’s Br. p. 17). In light of

       Tawdul, we note that the balance of these factors as regards the detainment of a

       Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018    Page 10 of 11
       passenger in a vehicle stopped for a traffic violation has already been struck in

       favor of constitutionality. Tawdul, 720 N.E.2d at 1214, 1216-17. These

       arguments are also unpersuasive given the fact that Detective DeShaies had

       probable cause to effect a warrantless arrest on Eaton for resisting law

       enforcement when he drew his weapon. Inasmuch as Eaton argues that

       Detective DeShaies was not justified in drawing his weapon on Eaton because

       his safety concerns did not bear any indicia of reliability, we find this to be an

       invitation to reweigh the evidence, which, given our standard of review, we

       decline. Buckley, 886 N.E.2d at 13. Eaton’s state constitutional rights were not

       violated by any government action, and the trial court did not abuse its

       discretion in admitting the challenged evidence.


                                              CONCLUSION
[20]   We conclude that the trial court did not abuse its discretion when it admitted

       evidence garnered from a traffic stop that did not violate Eaton’s federal or state

       constitutional rights.


[21]   Affirmed.


[22]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-1248 | September 28, 2018     Page 11 of 11
