MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 28 2018, 9:49 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Roberto Bernal-Andraca,                                 November 28, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1288
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Clayton A.
Appellee-Plaintiff                                      Graham, Judge
                                                        The Honorable Steven Rubick,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49F07-1212-CM-85862



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018               Page 1 of 9
[1]   Roberto Bernal-Andraca appeals his conviction for carrying a handgun without

      a license, a Class A misdemeanor. He contends that evidence of the gun found

      on his person during a traffic stop was obtained in violation of the Fourth

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

      Indiana Constitution. In light of the circumstances, we conclude that the

      officer conducting the stop acted reasonably, under both constitutions, in asking

      Bernal-Andraca to exit the vehicle. Accordingly, the evidence was properly

      admitted by the trial court.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Around 3:30 a.m. on December 22, 2012, Indiana State Excise Police Officer

      Travis Thickstun was on patrol when he observed a vehicle being driven by

      Bernal-Andraca in Marion County. While driving behind the vehicle, Officer

      Thickstun checked the license plate and determined that it was registered to a

      different vehicle. He then initiated a stop.


[4]   Officer Thickstun approached the vehicle and asked Bernal-Andraca – the sole

      occupant – for his driver’s license and vehicle registration. He also explained to

      Bernal-Andraca the reason for the stop. Bernal-Andraca patted around on his

      clothing and eventually indicated (non-verbally) that “he didn’t have it or

      couldn’t find it.” Transcript at 9. Bernal-Andraca then began searching through

      a black bag that was on the front passenger seat. Officer Thickstun saw several

      items in the bag that concerned him. In particular, he observed a collapsible

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018   Page 2 of 9
      baton and pepper spray, as well as a flashlight with the word “police” on it and

      a set of handcuffs. At this point, Bernal-Andraca had yet to identify himself

      and had not indicated that he was a police officer (which he was not). Officer

      Thickstun asked Bernal-Andraca to step out of the vehicle.


[5]   At trial, Officer Thickstun explained why he felt the need to have Bernal-

      Andraca come out of the vehicle. Officer Thickstun noted that he was the only

      officer on the scene and that he had yet to identify Bernal-Andraca or check the

      vehicle registration. Officer Thickstun explained: “I had him step out of the

      vehicle to get him away from the weapons that I saw, the pepper spray and the

      baton at the very least, to figure out who he was and to get his information to

      run him at that point.” Id. at 12.


[6]   As Bernal-Andraca exited the vehicle, he indicated to Officer Thickstun that he

      had a gun on his person. Officer Thickstun immediately had Bernal-Andraca

      face the vehicle and then located and removed the handgun from a holster on

      Bernal-Andraca’s right hip. Officer Glen Bell arrived on the scene at this time

      and secured the semiautomatic handgun and removed the ammunition. Officer

      Thickstun handcuffed Bernal-Andraca and then turned his attention back to

      trying to identify him. After obtaining Bernal-Andraca’s name and date of

      birth, Officer Thickstun was able to confirm that Bernal-Andraca was not a

      licensed driver. There was also no indication that Bernal-Andraca was licensed

      to carry a handgun. Officer Thickstun placed Bernal-Andraca under arrest.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018   Page 3 of 9
[7]   Later that same day, the State charged Bernal-Andraca with carrying a handgun

      without a license and operating a vehicle having never received a license, both

      as Class A misdemeanors. Bernal-Andraca failed to appear for two separate

      hearings and was brought before the trial court on January 4, 2018, after being

      arrested on an unrelated matter. At the bench trial on May 17, 2018, Bernal-

      Andraca objected to the admission of any evidence (namely, the gun evidence)

      obtained after he was ordered out of the vehicle. He contended that this order

      constituted an unlawful seizure under both the federal and state constitutions.

      The trial court refused to suppress the evidence and ultimately found Bernal-

      Andraca guilty as charged. Bernal-Andraca was sentenced to concurrent terms

      of thirty days in jail. Bernal-Andraca now appeals, challenging the admission

      of the gun evidence.


                                          Discussion & Decision


                                            Standard of Review


[8]   The trial court has broad discretion when ruling on the admissibility of

      evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). On appeal, we

      review such rulings for an abuse of discretion and reverse only when admission

      is clearly against the logic and effect of the facts and circumstances and the

      error affects a party’s substantial rights. Id. “But when an appellant’s challenge

      to such a ruling is predicated on an argument that impugns the constitutionality

      of the search or seizure of the evidence, it raises a question of law, and we

      consider that question de novo.” Id. at 40-41.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018   Page 4 of 9
[9]    Bernal-Andraca argues the seizure violated both the Fourth Amendment and

       Article 1, Section 11. Although these constitutional provisions contain

       textually similar language, it is well established that they must be separately

       analyzed. Graham v. State, 971 N.E.2d 713, 716 (Ind. Ct. App. 2012), trans.

       denied. Thus, we will address each in turn.


                                             Fourth Amendment


[10]   The Fourth Amendment to the United States Constitution provides:


               The right of the people to be secure in their persons, houses,
               papers and effects, against unreasonable searches and seizures,
               shall not be violated, and no warrants shall issue, but upon
               probable cause, supported by oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


       A traffic stop is akin to an investigative stop pursuant to Terry v. Ohio, 392 U.S.

       1 (1968). Under Terry, the reasonableness of an investigative stop is measured

       by the officer’s actions and whether those actions were “reasonably related in

       scope to the circumstances which justified the interference in the first place.”

       Id. at 20; see also Graham, 971 N.E.2d at 716. The seizure must last no longer

       than necessary to effectuate the purpose of the stop and “the investigative

       methods employed should be the least intrusive means reasonably available to

       verify or dispel the officer’s suspicion in a short period of time.” Graham, 971

       N.E.2d at 716 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). “As part of

       a valid Terry stop, the investigating officer is entitled to take reasonable steps to

       ensure his own safety, including ordering a detainee to exit the vehicle.”
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018   Page 5 of 9
       Reinhart v. State, 930 N.E.2d 42, 46 (Ind. Ct. App. 2010); see also Pennsylvania v.

       Mimms, 434 U.S. 106, 111 (1977) (describing the additional intrusion of

       ordering a driver lawfully stopped to get out of the car as “de minimis” and “at

       most a mere inconvenience”).


[11]   Bernal-Andraca does not contest the validity of the initial traffic stop; he

       challenges only the request that he get out of the vehicle, which he baldly

       asserts was for the purpose of performing a body search. Bernal-Andraca

       contends that Officer Thickstun should have merely instructed him to hand

       over the black bag or ordered him to raise his hands so that Thickstun could

       retrieve the bag. We disagree.


[12]   After lawfully being stopped around 3:30 a.m., Bernal-Andraca failed to

       provide Officer Thickstun with a driver’s license or a vehicle registration upon

       request. Bernal-Andraca then began searching through a black bag that

       contained, among other things, pepper spray and a baton. As Officer Thickstun

       explained at trial, he ordered Bernal-Andraca out of the vehicle “to get him

       away from the weapons” while Officer Thickstun – the only officer on the scene

       at that time – could work on obtaining identifying information. Transcript at 12.

       Thus, Officer Thickstun acted out of concern for his own safety and merely

       ordered Bernal-Andraca out of the vehicle. There is no indication in the record

       that Officer Thickstun intended to conduct a patdown search when he made

       this request or that the order was accompanied by any additional actions by

       Officer Thickstun, such as drawing his service weapon. Cf. Reinhart, 930

       N.E.2d at 46 (“[Officer] did much more than merely order Reinhart to exit the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018   Page 6 of 9
       vehicle. [He] drew his weapon, ordered Reinhart to exit the vehicle at

       gunpoint, and, while the laser sight of his gun was fixed on Reinhart, [] ordered

       Reinhart to his knees with his hands behind his head….”). It was not until

       Bernal-Andraca indicated that he had a handgun on his person that Officer

       Thickstun searched and removed the handgun from a holster on Bernal-

       Andraca’s hip.


[13]   We conclude that Officer Thickstun’s decision to order Bernal-Andraca out of

       the vehicle was reasonable and did not violate the Fourth Amendment. See

       Mimms, 434 U.S. at 111 n. 6 (“once a motor vehicle has been lawfully detained

       for a traffic violation, the police officers may order the driver to get out of the

       vehicle without violating the Fourth Amendment’s proscription of

       unreasonable searches and seizures”); Ammons v. State, 770 N.E.2d 927, 932

       (Ind. Ct. App. 2002) (“the Fourth Amendment permits requesting a motorist

       stopped for a traffic violation to exit a car”), trans. denied. Further, once

       informed that Bernal-Andraca was armed with a handgun, Officer Thickstun

       reasonably searched his person for that weapon and removed it. See Arizona v.

       Johnson, 555 U.S. 323, 331 (2009) (once outside the stopped vehicle, the driver

       may be patted down for weapons if the officer reasonably concludes that the

       driver might be armed and dangerous). There was no Fourth Amendment

       violation in this case.


                                            Article 1, Section 11




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018   Page 7 of 9
[14]   Bernal-Andraca also asserts a violation of Article 1, Section 11 of the Indiana

       Constitution, which “safeguards the ‘right of the people to be secure in their

       persons, houses, papers, and effects, against unreasonable search or seizure.’”

       Watkins v. State, 85 N.E.3d 597, 600 (Ind. 2017). An analysis under Article 1,

       Section 11 “turns on whether the police conduct was reasonable under the

       totality of the circumstances.” Carpenter v. State, 18 N.E.3d 998, 1002 (Ind.

       2014). In making this evaluation, we apply the test established by our Supreme

       Court in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). “The ‘reasonableness of

       a search or seizure [turns] on 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.’” J.G. v. State, 93 N.E.3d 1112, 1122-23

       (Ind. Ct. App. 2018) (quoting Litchfield, 824 N.E.2d at 361) (alteration in J.G.),

       trans. denied.


[15]   We conclude that Officer Thickstun acted reasonably under the circumstances

       and, thus, find no violation of Article 1, Section 11. The degree of concern,

       suspicion, or knowledge that a violation had occurred was high. Bernal-

       Andraca was driving a vehicle with a questionable license plate, he could not

       produce a driver’s license or vehicle registration, and he had a bag containing

       items that could be used against Officer Thickstun during the lawful stop. The

       degree of the intrusion – ordering him out of the vehicle – was minimal.

       Further, Officer Thickstun needed to be able to safely investigate the lawful

       stop. It was 3:30 in the morning, Officer Thickstun was alone, and he had


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018   Page 8 of 9
       observed items next to Bernal-Andraca that could be used against him as

       weapons. Removing Bernal-Andraca from the vehicle was reasonable under

       the totality of the circumstances. Moreover, once Bernal-Andraca indicated

       that he was armed with a handgun, Officer Thickstun acted reasonably in

       locating the weapon and removing it from Bernal-Andraca’s person before

       continuing his investigation.


[16]   In sum, Officer Thickstun did not violate Bernal-Andraca’s federal or state

       constitutional rights by ordering him out of the vehicle and then, after being

       informed that Bernal-Andraca was armed, patting him down to retrieve the

       weapon. The challenged evidence was, therefore, properly admitted at trial.


[17]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1288 | November 28, 2018   Page 9 of 9
