MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Jun 13 2018, 10:38 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      C. Michael Riley
Attorney General of Indiana                              Rensselaer, Indiana

James B. Martin
Deputy Attorney General
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        June 13, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         56A03-1712-CR-2895
        v.                                               Appeal from the Newton Superior
                                                         Court
Andrew Her,                                              The Honorable Daniel J. Molter,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         56D01-1702-F5-5



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 56A03-1712-CR-2895 | June 13, 2018           Page 1 of 9
[1]   Within ten minutes of a lawful traffic stop along I-65 in Newton County, a

      canine officer arrived on the scene and, shortly thereafter, the canine alerted on

      the vehicle driven by Andrew Her. Based on probable cause, the officers then

      searched the vehicle without a warrant and discovered nearly 150 pounds of

      marijuana. The State charged Her with Level 5 felony dealing in marijuana

      and Class B misdemeanor possession of marijuana. The State appeals

      following the trial court’s grant of Her’s motion to suppress evidence.


[2]   We reverse and remand.


                                       Facts & Procedural History


[3]   On February 13, 2017, Officer Brian Taylor of the Hobart Police Department

      was working a High Intensity Drug Trafficking Area (HIDTA) along

      southbound I-65 as part of a federal highway interdiction team in northwest

      Indiana. Officer Taylor initiated a traffic stop of a vehicle being driven by Her.

      The validity of the stop is not at issue in this case.


[4]   In full police uniform, Officer Taylor approached the passenger side of the

      stopped vehicle, explained the reason for the stop, indicated that he was going

      to write a warning for the traffic infraction, and asked Her for his driver’s

      license, vehicle registration, and proof of insurance. Her indicated that he did

      not have his driver’s license and that the car did not belong to him. He

      provided Officer Taylor with only a passport. Officer Taylor observed a small

      backpack on the front passenger seat, two large shipping boxes, and an old set

      of golf clubs on top of the boxes.

      Court of Appeals of Indiana | Memorandum Decision 56A03-1712-CR-2895 | June 13, 2018   Page 2 of 9
[5]   Officer Taylor asked if Her would come sit in the patrol vehicle while Officer

      Taylor attempted to identify Her and locate a license for him. Her agreed.

      Officer Taylor engaged Her in casual conversation while using his computer.

      Her advised that he was from Minnesota, was driving his father’s vehicle, and

      was driving to Florida to participate in a golf tournament and stay for a couple

      weeks. In an attempt to explain his missing driver’s license, Her claimed that

      his wallet had been stolen over a week ago. Officer Taylor inquired as to how

      Her was going to make it in Florida for two weeks with “no ID, no wallet, no

      credit cards.” Transcript at 15. Her responded that he had some cash and his

      wife could send him money via Western Union if needed.


[6]   From his computer, Officer Taylor learned that the vehicle being driven by Her

      was registered in Arkansas to someone with the same last name, purportedly

      Her’s father. Officer Taylor also discovered through Minnesota BMV records

      that Her’s license was currently revoked. He inquired of Her, who responded

      that “he had recently had a DUI but he had an attorney for that case and was

      under the assumption that his license was valid.” Id. at 10. Based on the

      revoked status of the license, Officer Taylor determined that he could not let

      Her drive away in the vehicle. He also called his partner Officer Kenneth

      Williams – a certified canine operator – to the scene. In the meantime, Officer

      Taylor asked Her for consent to search the vehicle. Her declined. Additionally,

      Officer Taylor told Her, “You can’t drive that car, you’re going to have to leave

      it here or we’re going to have to tow it”. Id. at 20.




      Court of Appeals of Indiana | Memorandum Decision 56A03-1712-CR-2895 | June 13, 2018   Page 3 of 9
[7]   Officer Williams arrived within ten minutes of the initial stop and Officer

      Taylor asked him to have his dog perform an open-air sniff around the vehicle.

      While Officer Taylor continued completing his enforcement with Her, the dog

      alerted to Her’s vehicle. Officer Taylor then performed a search of the interior

      and trunk of the vehicle, discovering approximately 148 pounds of marijuana.


[8]   On February 15, 2017, the State charged Her with Level 5 felony dealing in

      marijuana and Class B misdemeanor possession of marijuana. Thereafter, Her

      filed a motion to suppress and supporting memorandum, arguing that the stop

      was unlawfully prolonged in order to conduct a dog sniff without reasonable

      suspicion.


[9]   At the conclusion of the suppression hearing on November 15, 2017, the trial

      court granted Her’s motion to suppress evidence, but on a different ground.

      The trial court explained its ruling as follows:


              To me, you get a warrant unless there were exigent
              circumstances. Exigent circumstances went away the minute
              you found out he was driving while suspended. This car was not
              going anywhere. At that point, you can get a warrant…. I think
              despite your comments [defense counsel] about profiling, … it
              still comes down to he pulls the guy over for driving too close but
              a bunch of stuff doesn’t add up. I’m saying that does get to
              reasonable suspicion at a certain point. I would be seeking a
              warrant and I think he would have gotten it too and not just
              because of goofy golf clubs or something like that. Nothing adds
              up. There’s nothing wrong with his continuous investigation.
              But if he says[,]; “I can’t let you do that,” you get a warrant.
              You say[,] “Pal, you want sit [sic] here all afternoon while I get
              warrant, this car is not moving.” But you get a warrant. You

      Court of Appeals of Indiana | Memorandum Decision 56A03-1712-CR-2895 | June 13, 2018   Page 4 of 9
                didn’t do it. And I think the law is clear in favor of the
                Defendant on this.


       Id. at 25.1 This order had the ultimate effect of precluding further prosecution.

       Accordingly, the State appeals pursuant to Ind. Code § 35-38-4-2(5).

       Additional information will be provided below as needed.


                                              Discussion & Decision


[10]   The State, appealing from a negative judgment, must show that the trial court’s

       grant of Her’s suppression motion was contrary to law. State v. Washington, 898

       N.E.2d 1200, 1203 (Ind. 2008). On review, we determine whether the record

       discloses substantial evidence of probative value to support the trial court’s

       determination. Id. While we resolve conflicting evidence in favor of the trial

       court’s ruling, we will consider uncontroverted evidence favorable to the

       defendant. State v. Morris, 732 N.E.2d 224, 227 (Ind. Ct. App. 2000). We give

       deference to the trial court’s determination of facts but review de novo its

       ultimate ruling regarding the constitutionality of a search or seizure. Belvedere v.

       State, 889 N.E.2d 286, 287 (Ind. 2008). Further, we will affirm if the ruling is

       sustainable on any legal theory supported by the record, even if the trial court

       did not use that theory. Gonser v. State, 843 N.E.2d 947, 949 (Ind. Ct. App.

       2006).




       1
        The prosecutor respectfully disagreed with the trial court, noting the automobile exception. The trial court,
       however, determined that Her’s vehicle was not mobile under the circumstances.

       Court of Appeals of Indiana | Memorandum Decision 56A03-1712-CR-2895 | June 13, 2018               Page 5 of 9
[11]   Here, the parties agree that the trial court based its suppression ruling on the

       wrong legal theory. The trial court’s ruling disregards the well-established

       automobile exception to the warrant requirement, which allows a warrantless

       search where officers have probable cause to believe a mobile (i.e., operational)

       vehicle contains evidence of a crime. See State v. Hobbs, 933 N.E.2d 1281, 1285-

       86 (Ind. 2010). The exception applies regardless of whether a driver is behind

       the wheel or has ready access to the vehicle. See id. at 1286 (“the automobile

       exception does not require that there be an imminent possibility the vehicle may

       be driven away”); see also Maryland v. Dyson, 527 U.S. 465, 466 (1999) (“the

       ‘automobile exception’ has no separate exigency requirement”); Meister v. State,

       933 N.E.2d 875, 880 (Ind. 2010) (applying automobile exception despite “the

       dearth of exigent circumstances” given defendant’s arrest). The dog sniff

       provided probable cause that the vehicle contained illegal drugs, thus justifying

       the warrantless search of Her’s vehicle. See Hobbs, 933 N.E.2d at 1286-87.


[12]   The question remains. Was the initially-valid traffic stop impermissibly

       prolonged in order to conduct the dog sniff? On this point, the trial court found

       that it was not. We agree.


[13]   Under the Fourth Amendment of the United States Constitution, as well as

       Article 1, § 11 of the Indiana Constitution, an exterior dog sniff of a vehicle is




       Court of Appeals of Indiana | Memorandum Decision 56A03-1712-CR-2895 | June 13, 2018   Page 6 of 9
       not considered a search.2 Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). A

       dog sniff will, however, result in an unlawful seizure if it lengthens the time

       reasonably required to handle the matter for which the traffic stop was made

       and the delay occurs without reasonable suspicion that the motorist is engaged

       in criminal activity. Rodriguez v. U.S., 135 S.Ct. 1609, 1612 (2015); Austin, 997

       N.E.2d at 1034. Thus, a seizure justified only by a police-observed traffic

       violation becomes unlawful if it is prolonged beyond the time reasonably

       required to issue a ticket for the violation. Rodriguez, 135 S.Ct. at 1612; see also

       Curry v. State, 90 N.E.3d 677, 684 (Ind. Ct. App. 2017) (“The critical question is

       not whether the sniff occurs before or after the officer issues a ticket, but

       whether conducting the sniff prolongs or adds time to the stop.”), trans. denied.


[14]   In addition to determining whether to issue a ticket, an officer’s tasks during a

       traffic stop include ordinary inquiries such as checking the motorist’s driver’s

       license, determining whether there are outstanding warrants against the driver,

       and inspecting the automobile’s registration and proof of insurance. Rodriguez,

       135 S.Ct. at 1615. Moreover, an officer may ask questions of the motorist that

       do not unreasonably delay the traffic stop, including asking to search the

       vehicle and inquiring about the motorist’s travel plans. See Washington, 898




       2
          In his motion to suppress, Her asserted both federal and state constitutional violations. His arguments
       below and on appeal, however, focus only on the Fourth Amendment and do not present a separate Litchfield
       analysis under the Indiana Constitution. See Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)
       (reasonableness of a search or seizure under our state constitution turns on a balance of three factors: “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”). Accordingly, we apply only the Fourth Amendment analysis here.

       Court of Appeals of Indiana | Memorandum Decision 56A03-1712-CR-2895 | June 13, 2018                 Page 7 of 9
       N.E.2d at 1205; State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006); Curry, 90

       N.E.3d at 685-86.


[15]   Here, Officer Taylor stopped Her along I-65 after observing him commit a

       traffic infraction. Officer Taylor explained the reason for the stop, indicated he

       was going to issue a warning, and asked Her for his license, registration, and

       proof of insurance. Her, however, did not have any of these in his possession

       and offered Officer Taylor only a passport, explaining that his wallet had been

       stolen. Additionally, Officer Taylor learned that Her was from Minnesota and

       driving a car registered in Arkansas that did not belong to him. When Her

       stated that he was taking a two-week trip to Florida for a golf tournament,

       Officer Taylor reasonably questioned how Her was planning to do so without a

       license, wallet, or credit cards. Officer Taylor was also suspicious given the

       “garbage golf clubs” he observed in Her’s backseat and the lack of luggage, as

       Her had indicated the trunk was empty. Transcript at 15. To top it all off,

       Officer Taylor discovered that Her’s Minnesota license was revoked, which Her

       implied was associated with a recent DUI.


[16]   Under the circumstances, Officer Taylor determined about five minutes into the

       stop that Her could not be allowed to drive away with just a warning, and he

       requested Officer Williams to come to the scene. Officer Taylor also informed

       Her that he would not be allowed to drive the car and that it might have to be

       towed. Officer Taylor then continued with the purpose of the stop, which




       Court of Appeals of Indiana | Memorandum Decision 56A03-1712-CR-2895 | June 13, 2018   Page 8 of 9
       involved determining whether to tow or impound the car and whether to arrest 3

       or issue a citation or summons to Her. Meanwhile, Officer Williams arrived

       within ten minutes of the initial stop and walked his dog around the car. The

       dog alerted.


[17]   We agree with the State that the dog sniff took place while Officer Taylor was

       still diligently addressing the traffic violation, which was necessarily extended

       due to the discovery of Her’s revoked status. The dog sniff, which occurred

       within about ten minutes of the stop, did not prolong the stop. Moreover, we

       agree with the trial court that Officer Taylor had reasonable suspicion to justify

       detaining Her and continuing the investigation alongside the road.


[18]   The trial court’s granting of the motion to suppress evidence was contrary to

       law. Therefore, we reverse and remand for further proceedings.


[19]   Reversed and remanded.


       Najam, J. and Robb, J., concur.




       3
        Her asserts that nothing in the record indicates that he could have been arrested. On the contrary, Officer
       Taylor knew that Her was driving with a revoked license and had information indicating that the revocation
       was likely the result of a DUI. See Ind. Code § 9-24-19-3(a) (Class A misdemeanor offense).

       Court of Appeals of Indiana | Memorandum Decision 56A03-1712-CR-2895 | June 13, 2018              Page 9 of 9
