 MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                       Mar 29 2019, 5:49 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
Bryan L. Cook                                            Curtis T. Hill, Jr.
Carmel, Indiana                                          Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Edwin David Calligan,                                    March 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-199
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D04-1603-F4-28



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019                     Page 1 of 16
                                       Statement of the Case
[1]   Edwin David Calligan (“Calligan”) appeals his conviction by jury of Level 4

      felony unlawful possession of a firearm by a serious violent felon.1 He argues

      that the trial court abused its discretion in admitting evidence of a handgun that

      was found during a search of the vehicle that Calligan was driving. Calligan

      specifically contends that the initial stop and the subsequent search of the car

      violated both the federal and state constitutions. Finding no abuse of the trial

      court’s discretion, we affirm the trial court’s judgment.


[2]   We affirm.


                                                     Issue
                 Whether the trial court abused its discretion in admitting
                 evidence of the handgun that was found during a search of the
                 vehicle that Calligan was driving.


                                                     Facts
[3]   In the early morning hours of March 25, 2016, Fort Wayne Police Department

      Detectives Marc Deshaies (“Detective Deshaies”) and Tim Hughes (“Detective

      Hughes”), who were affiliated with the Gang and Violent Crime Unit, were

      working in a high-crime area near Foster’s Bar and Grill (“Foster’s”).

      Specifically, the area is known for problems with drug trafficking, violence and




      1
          IND. CODE § 35-47-4-5.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 2 of 16
      fights, and shots-fired incidents. At approximately 2:30 a.m., the detectives

      observed a group of people in a nearby parking lot that were involved in a loud,

      heated argument, which appeared to be on the verge of turning into a physical

      altercation. The individuals involved in the argument got into three different

      vehicles and drove off together in a processional line. The lead vehicle was a

      Dodge Charger (“the Charger”), which was followed by a Chevrolet Impala

      (“the Impala”) and an Infinity (“the Infinity”).


[4]   Detectives Deshaies and Hughes followed the vehicles, which accelerated

      quickly. The detectives noticed that the Charger was repeatedly swerving

      within its lane, and, at one point, almost struck the curb. The Charger

      subsequently came to a complete and sudden stop in the middle of an

      intersection before continuing through the intersection. Detective Deshaies,

      who had been trained to “pace” a vehicle to determine its speed, “paced” the

      cars, all of which frequently exceeded the thirty-five-mile-per-hour speed limit.

      (Motion to Suppress Tr. at 13). After the Infinity turned off onto a side street,

      the driver of the Impala appeared to be trying to prevent the officers from

      moving between it and the Charger.


[5]   Concerned that the driver of the Charger was impaired, the detectives initiated

      a traffic stop in a residential area after managing to maneuver behind the

      Charger. The driver of the Charger slowed down but continued to move

      forward for thirty to forty feet. As the detectives walked toward the stopped

      Charger, it began to roll forward again. As the detectives were yelling for the

      car to be put in park, Calligan, the driver, leaned out the window and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 3 of 16
      responded that the Charger had stopped even though the car was continuing to

      roll forward. When the Charger came to a complete stop, the detectives noticed

      two passengers and movement in the vehicle. Other officers who had heard

      radio communications about the Charger’s initial failure to stop immediately

      began arriving on the scene.


[6]   As Detective Deshaies approached the Charger and began to speak with

      Calligan, the detective immediately smelled the odor of alcohol emanating from

      Calligan. Further, Calligan’s speech was slurred, his eyes were bloodshot, and

      he fumbled through his wallet attempting to find his insurance card. Concerned

      that Calligan might attempt to drive off again, Detective Deshaies asked

      Calligan for the keys to the car several times. Calligan refused to comply with

      the detective’s request and was “incredibly argumentative.” (Motion to

      Suppress Tr. at 32). He subsequently removed the keys from the ignition,

      refused to hand them to Detective Deshaies, and dropped them in the center

      console.


[7]   While Detective Deshaies was speaking with Calligan, other officers

      approached the front-seat passenger, who identified himself by a name that the

      officers immediately knew to be false. This passenger eventually had to be

      forcibly removed from the car after he refused to get out of the vehicle when the

      officers asked him to do so. An on-scene fingerprint identification revealed that

      the passenger had an active warrant for failing to appear in a gun case. At the

      same time, several females who had been in the Impala returned to the scene on



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 4 of 16
       foot and were loudly challenging the officers’ actions and had to be physically

       restrained from interfering with the ongoing traffic stop.


[8]    As Detective Deshaies was checking Calligan’s information, other officers

       asked Calligan and the rear-seat passenger to exit the car and sit on the curb a

       few feet behind the Charger. The men were not handcuffed. Fort Wayne

       Police Department Sergeant Gary Hensler (“Sergeant Hensler”) searched the

       interior of the Charger for the purpose of officer safety and found a loaded

       handgun between the driver’s seat and the center console. Detective Hensler

       then handcuffed Calligan and the rear-seat passenger.


[9]    The State charged Calligan with Level 4 felony unlawful possession of a firearm

       by a serious violent felon; Class A misdemeanor unlawful possession of a

       firearm by a domestic batterer, and Class A misdemeanor operating while

       intoxicated. Calligan filed a motion to suppress. At the suppression hearing,

       Sergeant Hensler responded as follows when asked why he had searched the

       car: “Well for all the reasons we already had, um, extended period of time to

       pull over, starting and stopping, fear of them retrieving a weapon, hiding

       contraband, formulating a plan, uh, the front seat passenger showing

       deception.” (Motion to Suppress Tr. at 99). Following the hearing, the trial

       court denied Calligan’s motion to suppress. Before trial, the State dismissed the

       misdemeanor counts.


[10]   Calligan objected to the admission of the gun at trial. Also at trial, Detective

       Deshaies testified that he and Detective Hughes were concerned when


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 5 of 16
       Calligan’s car kept rolling at the time of the stop. According to Detective

       Deshaies, “[t]ypically when we see these . . . stops that take a very long time to

       stop in my experience and training[,] it’s because people are either trying to

       secret or access contraband or weapons in the car prior to being stopped.” (Tr.

       Vol. 1 at 41-42). Sergeant Hensler testified that he had searched the vehicle for

       officer safety because: (1) the Charger did not stop immediately, which

       suggested that the vehicle’s occupants might have been attempting to hide

       weapons or drugs; (2) the traffic stop occurred in a high crime area where there

       were many drug transactions and shootings; and (3) the women from the

       Impala were very upset over the traffic stop and could have distracted the

       officers or assisted the men in the Charger with committing a crime, including

       assaulting the officers.


[11]   Fort Wayne Police Department Detective Matthew Foote (“Detective Foote”)

       had also been conducting surveillance in the area of Foster’s. According to

       Detective Foote, police officers had been called to Foster’s for shootings,

       stabbings, and fights, and there had been a killing there the previous month.

       When he arrived at the scene of the traffic stop, Detective Foote was concerned

       when the front-seat passenger gave a name that the officers knew was not his.

       Detective Foote further explained that “often times when somebody supplies us

       with a false name[,] it’s to cover up criminal activity. Often times they are

       fugitives from justice, and that’s what it ended up being in this case.” (Tr. Vol.

       1 at 110).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 6 of 16
[12]   During Calligan’s presentation of evidence, Tiffany Simpson (“Simpson”)

       testified that she had been dating Calligan in March 2016. Simpson further

       testified that the gun in the Charger belonged to her and that the Charger

       belonged to her mother, who allowed Simpson, Calligan, and other family

       members to drive it. Calligan was unable to drive his car at the time because

       “there was something major wrong with it.” (Tr. Vol. 1 at 161).


[13]   The jury convicted Calligan of Level 4 felony unlawful possession of a firearm,

       and he now appeals.


                                                   Decision
[14]   Calligan contends that the trial court erred in denying his motion to suppress

       the gun that was found in the car that he was driving. Because Calligan appeals

       following his conviction and is not appealing the trial court’s interlocutory

       order denying his motion to suppress, the question is properly framed as

       whether the trial court abused its discretion in admitting the gun into evidence.

       See Parish v. State, 936 N.E.2d 346, 349 (Ind. Ct. App. 2010), trans. denied. The

       admission of evidence is within the sound discretion of the trial court, and we

       will reverse only for an abuse of that discretion. Rogers v. State, 897 N.E.2d 955,

       959 (Ind. Ct. App. 2008), trans. denied. A trial court abuses its discretion if its

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

       before the court or if the court has misinterpreted the law. Id. We do not

       reweigh the evidence, and we consider conflicting evidence most favorable to




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 7 of 16
       the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App.

       2005), trans. denied.


       1.      Initial Stop


       Calligan first argues that the initial stop of the car that he was driving violated

       both the Fourth Amendment of the United States Constitution and Article 1,

       Section 11 of the Indiana Constitution. We address each of his contentions in

       turn.


                                         A.      Fourth Amendment


[15]   The Fourth Amendment provides protection against unreasonable searches and

       seizures of a person. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). A traffic

       stop of a vehicle is a seizure within the meaning of the Fourth Amendment.

       Whren v. United States, 517 U.S. 806, 809 (1996). For a search or seizure to be

       reasonable under the Fourth Amendment, a warrant is required unless an

       exception to the warrant requirement applies. Taylor v. State, 842 N.E.2d 327,

       330 (Ind. 2006). The State bears the burden of showing that a warrantless

       search or seizure is within an exception to the warrant requirement. Id.


[16]   One such exception is set forth in Terry v. Ohio, 392 U.S. 1, 30 (1968), wherein

       the United States Supreme Court held that a police officer may briefly detain a

       person for investigatory purposes if, based on specific articulable facts together

       with reasonable inferences drawn therefrom, an ordinarily prudent person

       would reasonably suspect that criminal activity was afoot. Reasonable


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 8 of 16
       suspicion is determined on a case-by-case basis by examining the totality of the

       circumstances. Terry, 392 U.S.at 30. Further, the law is well-settled that a

       police officer is constitutionally permitted to stop and briefly detain a person

       who has committed a traffic infraction. See IND. CODE § 34-28-5-3; State v.

       Quirk, 842 N.E.2d 334, 340 (Ind. 2006).


[17]   Here, our review of the evidence reveals that the detectives had reasonable

       suspicion to stop Calligan for two reasons. First, Detective Deshaies, who had

       been trained to “pace” a vehicle, “paced” the car that Calligan was driving and

       determined that Calligan was exceeding the thirty-five-mile-per-hour speed

       limit.2 Driving in excess of the speed limit is an infraction. See IND. CODE § 9-

       21-5-2. Second, Detective Deshaies had reasonable suspicion that Calligan was

       operating the Charger while intoxicated. Specifically, the detective observed

       the Charger repeatedly swerving within its lane and almost hitting a curb.

       Calligan also stopped the Charged in the middle of an intersection before

       continuing through the intersection. See Potter v. State, 912 N.E.2d 905, 906-08

       (Ind. Ct. App. 2009) (finding reasonable suspicion for a stop where Potter was

       weaving within his lane of travel and almost struck a median). The initial stop

       of the Charger did not violate the Fourth Amendment of the United States

       Constitution



       2
         Regarding Calligan’s challenge to Detective Deshaies’ “pacing” of the Charger to determine its speed, we agree
       with the State that Calligan’s challenge is “simply a request to reweigh the [detective’s] credibility and refuse to
       credit his testimony that he paced [Calligan’s] vehicle and determined that it was exceeding the speed limit.”
       (State’s Br. at 13). This we cannot do. See Collins, 822 N.E.2d at 218.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019                            Page 9 of 16
                      B.      Article 1, Section 11 of the Indiana Constitution


[18]   We now analyze the stop under the Indiana Constitution. Although Article 1,

       Section 11 of the Indiana Constitution is identical to the Fourth Amendment, it

       is analyzed differently. Croom v. State, 996 N.E.2d 436, 442 (Ind. Ct. App.

       2013), trans. denied.             Indiana Constitutional analysis focuses on the

       reasonableness of police conduct under the totality of the circumstances. Id.

       (citing Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005)). We determine the

       reasonableness under the Indiana Constitution by balancing “1) the degree of

       concern, suspicion, or knowledge that a violation has occurred, 2) the degree of

       intrusion the method of search or seizure imposes on the citizen’s ordinary

       activities, and 3) the extent of law enforcement needs.” Litchfield, 824 N.E.2d at

       361. The State has the burden of proving that police intrusion into privacy was

       reasonable under the totality of the circumstances. Id. “It is unequivocal under

       our jurisprudence that even a minor traffic violation is sufficient to give an

       officer probable cause to stop the driver of a vehicle.” Austin v. State, 997

       N.E.2d 1027, 1034 (Ind. 2013).


       Here, our review of the evidence reveals that the degree of concern, suspicion,

       or knowledge that a violation had occurred was high.                            The Charger was

       speeding, swerving in its lane and almost hit a curb. It also stopped in the

       middle of an intersection. Second, the degree of intrusion was slight. Detective

       Deshaies stopped the vehicle to determine whether Calligan was impaired. See

       e.g., Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001) (explaining that Article 1,

       Section 11 does not prohibit police from conducting a justified traffic stop).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019          Page 10 of 16
       Lastly, the needs of law enforcement were reasonable.                           The only way to

       determine whether Calligan was impaired was to stop the Charger. The stop

       was an appropriate manner of enforcing traffic laws. Balancing the high degree

       of concern, suspicion, or knowledge that a violation had occurred and the needs

       of law enforcement against the low degree of intrusion, we conclude that

       Detective Deshaies’ initial stop of the Charger was reasonable under the

       Indiana Constitution.


       2.      Search of the Vehicle


[19]   Calligan further argues that even if the initial stop was valid, the search of the

       car that he was driving violated both the Fourth Amendment of the United

       States Constitution and Article 1, Section 11 of the Indiana Constitution. We

       again address each of his contentions in turn.


                                         A.      Fourth Amendment


[20]   The Fourth Amendment allows privacy interests protected by the Fourth

       Amendment to be balanced against the interests of officer safety. Wilson v.

       State, 745 N.E.2d 789, 792 (Ind. 2001). In Michigan v. Long, the United States

       Supreme Court explained as follows:


               Our past cases indicate then that protection of police and others
               can justify protective searches when police have a reasonable
               belief that the suspect poses a danger, that roadside encounters
               between police and suspects are especially hazardous, and that
               danger may arise from the possible presence of weapons in the
               area surrounding a suspect. These principles compel our
               conclusion that the search of the passenger compartment of an
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019          Page 11 of 16
               automobile, limited to those areas in which a weapon may be
               placed or hidden, is permissible if the police officer possesses a
               reasonable belief based on “specific and articulable facts which,
               taken together with the rational inferences from those facts,
               reasonably warrant” [1] the officers in believing that the suspect
               is dangerous and [2] the suspect may gain immediate control of
               weapons. “[T]he issue is whether a reasonably prudent man in
               the circumstances would be warranted in the belief that his safety
               or that of others was in danger.”


       463 U.S. 1032, 1049-50 (1983) (quoting Terry, 392 U.S. 1 at 21 and at 27)

       (emphasis added). The Supreme Court stressed that police officers are not

       required to adopt alternative means to ensure their safety in order to avoid

       privacy intrusions in this type of Terry investigation because it involves “a

       police investigation ‘at close range’ when the officer remains particularly

       vulnerable in part because a full custodial arrest has not been effected, and the

       officer must make a “quick decision as to how to protect himself and others

       from possible danger[.]’” Long, 463 U.S. at 1052 (quoting Terry, 392 U.S. at

       24).


[21]   This Court has previously explained that “[t]he purpose of a limited search for

       weapons after an investigative stop is not to discover evidence of a crime, but to

       allow the officer to pursue his investigation without fear for his safety or the

       safety of others.” State v. Joe, 693 N.E.2d 573, 575 (Ind. Ct. App. 1998), trans.

       denied. Therefore, when a vehicle has been properly stopped for investigative

       purposes, if the officer reasonably believes that he or others may be in danger

       and the suspect may gain immediate access to a weapon, he may conduct a

       limited search of the automobile’s interior for weapons without first obtaining a
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 12 of 16
       search warrant. State v. Dodson, 733 N.E.2d 968, 971 (Ind. Ct. App. 2000);

       Long, 463 U.S. at 1052.


[22]   Here, our review of the evidence reveals that Long’s first prong is satisfied

       because the officers had reasonable suspicion to believe that Calligan was

       dangerous at the time they searched the car. See Long, 463 U.S. at 1050.

       Specifically, Calligan had initially failed to stop the Charger and had begun

       moving forward again when the detectives walked towards the vehicle. This

       action created a reasonable fear on the part of the detectives that Calligan was

       contemplating fleeing or that he was trying to hide or access a weapon. The

       detectives had also noticed movement in the Charger before it had come to a

       complete stop. Further, Calligan was highly argumentative and refused to hand

       his keys to the detective. Calligan also appeared to be intoxicated. In addition,

       the front seat passenger, who had given the detectives a false name and who

       was wanted on an active warrant for failing to appear in a gun case, refused to

       exit the Charger and had to be forcibly removed from the vehicle.


[23]   In addition, Long’s second prong is satisfied because the officers had reasonable

       suspicion to believe that Calligan or his rear-seat passenger could have regained

       immediate control of the weapon in the vehicle. Neither man was handcuffed

       and both men were sitting on a curb a few feet behind the vehicle. See id. See

       also United States v. Arnold, 388 F.3d 237, 240 (7th Cir. 2004) (concluding that it

       was reasonable to believe that Arnold, who was not arrested, could have

       regained access to his vehicle). In addition, the officers knew that the Charger’s

       front-seat passenger was wanted on a warrant in a gun case. The search of the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 13 of 16
       Charger did not violate the Fourth Amendment of the United States

       Constitution.


                      B.      Article 1, Section 11 of the Indiana Constitution


[24]   We now return to the Litchfield factors to determine whether the search of the

       Charger was reasonable under the Indiana Constitution.                          See Litchfield, 824

       N.E.2d at 36. Our review of the evidence reveals that the degree of concern,

       suspicion, or knowledge that a violation had occurred was high. In the early

       morning hours in a high-crime neighborhood, detectives saw Calligan involved

       in a loud heated argument before he got into the Charger. The detectives then

       saw Calligan commit the infraction of speeding. Calligan was also swerving in

       his lane, almost hit the curb, and came to a stop in the middle of an

       intersection, giving the detectives reasonable suspicion to believe that he was

       operating the vehicle while intoxicated. Calligan initially failed to comply with

       the officers’ order to stop, and the vehicle’s occupants were making movements

       consistent with an attempt to hide a weapon.                       In addition, the front seat

       passenger was wanted on an active warrant.


[25]   Turning to the degree of intrusion, in Masterson v. State, 843 N.E.2d 1001, 1007

       (Ind. Ct. App. 2006), trans. denied, we explained that although “the search of

       Masterson’s vehicle was likely to impose an intrusion ‘on the citizen’s ordinary

       activities,’ Litchfield v. State, 824 N.E.2d at 361, ‘we recognize[d] that, to a

       limited extent, the intrusion, at least as to public notice and embarrassment,

       was somewhat lessened because of the hour and place of the search.’ Myers v.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019           Page 14 of 16
       State, 839 N.E.2d at 1154 (search occurred after midnight and in driveway of

       defendant’s mobile home).” We further noted that, at the time, it was not even

       clear to police that Masterson owned the vehicle subject to the search as it was

       registered to another individual. Id. Here, as in Masterson, the intrusiveness of

       the search was lessened where it occurred at 2:30 a.m. in a residential

       neighborhood, and the Charger did not belong to Calligan.


[26]   In addition, the needs of law enforcement were reasonable. The stop occurred

       in a high-crime neighborhood, and the Charger’s occupants did not initially

       comply with the detective’s directives.                  When the Charger stopped, the

       detectives noticed movement in the vehicle, which suggested that the occupants

       might have been attempting to hide weapons. One of the vehicle’s occupants

       gave the detectives a false name and had an active warrant. Further, several

       females who had been in the Impala walked to the scene and were challenging

       the officers’ actions, and officers did not know whether the Infinity and its

       occupants would arrive at the scene. In addition, Calligan and the rear-seat

       passenger were sitting on a curb a few feet behind the vehicle, and neither man

       was handcuffed. Again, balancing the high degree of concern, suspicion, or

       knowledge that a violation had occurred and the needs of law enforcement

       against the lessened degree of intrusion, we conclude that the search of the

       Charger was reasonable under the Indiana Constitution.


[27]   Finding no federal or state constitutional violation, we conclude that the trial

       court did not abuse its discretion in admitting the gun into evidence.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 15 of 16
[28]   Affirmed.


       Vaidik, C.J., and Barnes, Sr. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019   Page 16 of 16
