MEMORANDUM DECISION                                            FILED
                                                          Jun 30 2016, 6:13 am
Pursuant to Ind. Appellate Rule 65(D),
                                                               CLERK
this Memorandum Decision shall not be                      Indiana Supreme Court
                                                              Court of Appeals
regarded as precedent or cited before any                       and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Richard J. Thonert                                       Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Russell E. Shreve,                                       June 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1505-CR-342
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable David C.
Appellee-Plaintiff.                                      Bonfiglio, Judge
                                                         Trial Court Cause No.
                                                         20D06-1303-FD-288



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 20A03-1505-CR-342 | June 30, 2016    Page 1 of 9
[1]   Russell Shreve appeals his conviction for Class D felony possession of

      methamphetamine and Class A misdemeanor possession of paraphernalia.

      Shreve’s sole claim on appeal is that the trial court erred in admitting evidence

      found during a search of his vehicle following a traffic stop. Specifically, he

      claims the search was unconstitutional under Article 1, Section 11 of the

      Indiana Constitution.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Around 6:30 p.m. on March 16, 2013, Officer Robert Smith of the Elkhart

      County Sheriff’s Department was patrolling northbound on U.S. Route 33

      when he noticed a truck being followed by a passenger car. Both vehicles were

      traveling five to ten miles under the posted speed limit in the passing lane of the

      busy highway. While following the vehicles at a distance for a mile or two,

      Officer Smith ran license plate checks. Both vehicles came back as being owned

      by Shreve, who was later found to be the driver of the truck.


[4]   The vehicles eventually made a left turn into a gas station, and Officer Smith

      proceeded northbound a bit before pulling over to wait, as he believed they

      were trying to evade him. Minutes later, the two vehicles proceeded

      northbound on the highway again with the truck driven by Shreve in the lead.

      As they passed Officer Smith, he began following them again. The vehicles

      continued traveling slowly in the passing lane with several other vehicles lined



      Court of Appeals of Indiana | Memorandum Decision 20A03-1505-CR-342 | June 30, 2016   Page 2 of 9
      up behind them. Officer Smith eventually stopped the truck driven by Shreve

      for impeding the flow of traffic.


[5]   As Officer Smith obtained Shreve’s license, registration, and proof of insurance,

      he smelled an odd chemical odor coming from inside the truck, which he could

      not identify. He also observed that Shreve seemed very nervous, had shaky

      hands, and was sweating profusely despite the cold temperature outside.

      Additionally, Shreve’s responses to questions seemed abnormally quick to

      Officer Smith. As a result of Shreve’s nervous behavior and the chemical odor,

      Officer Smith returned to his police vehicle with Shreve’s documents and

      radioed for assistance.


[6]   Lieutenant Casey Lehman arrived fourteen minutes after the traffic stop was

      initiated. He spoke with Officer Smith and then approached Shreve.

      Lieutenant Lehman noticed the “odd chemical odor coming from the vehicle

      that [he] did not recognize.” Transcript at 106. He also observed that Shreve

      appeared nervous and had sweat on his forehead. Based on his observations,

      Lieutenant Lehman asked Shreve to exit and go to Officer Smith, who was

      standing at the back of the truck. Lieutenant Lehman briefly turned his

      attention to the passenger, Shreve’s girlfriend, Katherine Crabtree, but then

      Shreve fell to the ground shaking. The officers called an ambulance and

      assisted Shreve to the curb, where he sat, and Crabtree eventually joined him.

      Shreve’s condition quickly improved, and the officers inquired as to whether he

      had a medical condition or whether there was anything in the truck that might

      have caused the fall. Shreve responded in the negative, and Crabtree indicated

      Court of Appeals of Indiana | Memorandum Decision 20A03-1505-CR-342 | June 30, 2016   Page 3 of 9
      that he had not eaten in a while. Shreve asked that the officers cancel the

      ambulance, and they did. Lieutenant Lehman then asked if he could search the

      truck to see if there was anything inside that might have caused his condition.

      Shreve responded, “Go ahead.” Id. at 108. Shreve’s consent to search was

      given within three minutes of Lieutenant Lehman’s arrival on the scene.


[7]   Lieutenant Lehman searched the driver’s side of the truck and found an

      eyeglass case on the front seat near where the driver’s leg would rest. He

      opened the case and found a glass pipe with residue and burn marks on it.

      Based on his training and experience, Lieutenant Lehman recognized this to be

      a pipe used to ingest methamphetamine. He showed the pipe to Officer Smith

      and then read Shreve his Miranda warnings and began to administer field

      sobriety tests.


[8]   In the meantime, Smith retrieved his police K-9 from his vehicle on the scene.

      The K-9 did not alert to the exterior of the vehicle, but it did alert to an area

      between the center console and the driver’s seat. At that point, Officer Smith

      did a hand search of that area and found a small fuse box. He then opened the

      container and found a substance later determined to be .097 grams of

      methamphetamine, along with another item of drug paraphernalia.


[9]   Shreve was arrested for possession of paraphernalia and methamphetamine, as

      well as cited for impeding traffic. The State charged him, on March 19, 2013,

      with possession of methamphetamine as a Class D felony and possession of

      paraphernalia as a Class A misdemeanor.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1505-CR-342 | June 30, 2016   Page 4 of 9
[10]   On September 4, 2013, Shreve filed a motion to suppress all evidence seized

       from his truck. Following a suppression hearing, the trial court denied Shreve’s

       motion on August 19, 2014. Shreve’s subsequent petition for certification for

       interlocutory appeal of this order was denied by the trial court, and the case

       proceeded to a jury trial on December 15, 2014. The jury found Shreve guilty

       of both counts. On April 22, 2015, the trial court sentenced him to an aggregate

       term of 540 days with 360 days suspended to probation. Shreve now appeals.

       Additional facts will be provided as necessary.


                                           Discussion & Decision


[11]   Shreve challenges the admission of evidence relying solely on Article 1, Section

       11 of the Indiana Constitution. He argues that Officer Smith unconstitutionally

       prolonged the detention and radioed for a second officer based on the smell of a

       “legal, unidentified odor” coming from the interior of Shreve’s vehicle.

       Appellant’s Brief at 8. In sum, Shreve argues that “police should not be able to

       continue the detention of the motorist simply because they smell a legal odor,

       which they do not recognize.” Id. at 20.


[12]   In reviewing a trial court’s ruling on the admissibility of evidence resulting from

       an allegedly illegal search, we do not reweigh the evidence. Meredith v. State,

       906 N.E.2d 867, 869 (Ind. 2009). Rather, we consider conflicting evidence in a

       light most favorable to the trial court’s ruling and defer to the trial court’s

       factual determinations unless clearly erroneous. Id. We “consider afresh any

       legal question of the constitutionality of a search or seizure.” Id. See also


       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-CR-342 | June 30, 2016   Page 5 of 9
       Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (“the ultimate determination

       of the constitutionality of a search or seizure is a question of law that we

       consider de novo”).


[13]   It is well established that although Indiana’s Article 1, Section 11 and the

       federal Fourth Amendment are textually identical, they are analytically distinct.

       Carpenter, 18 N.E.3d at 1001. Under the Indiana Constitution, our analysis

       “turns on whether the police conduct was reasonable under the totality of the

       circumstances.” Id. at 1002. The State bears the burden of showing that the

       intrusion was reasonable. Id. When evaluating the reasonableness of a search

       or seizure, we consider the following non-exclusive 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.” 1 Id. (quoting Litchfield v.

       State, 824 N.E.2d 356, 361 (Ind. 2005)). See also Myers v. State, 839 N.E.2d

       1146, 1153 (Ind. 2005) (addressing the “independent interpretation and

       application” of Indiana’s search and seizure clause).


[14]   Shreve does not challenge the legality of the initial stop for impeding the flow of

       traffic, nor could he. See Datzek v. State, 838 N.E.2d 1149, 1154 (“a police




       1
         Although acknowledging that Indiana’s constitutional provision is analytically distinct from the Fourth
       Amendment, Shreve does not set out or apply the factors relevant to determining the reasonableness of a
       search or seizure under our state constitution. Similarly perplexing, he discusses several Fourth Amendment
       cases, like Clark v. State, 994 N.E.2d 252 (Ind. 2013) and Hawkins v. State, 626 N.E.2d 436 (Ind. 1993), while
       expressly indicating that his constitutional claim is being raised only under our state constitution.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-CR-342 | June 30, 2016                Page 6 of 9
       officer may briefly detain a person whom the officer believes has committed an

       infraction or an ordinance violation”), trans. denied. See also Ind. Code § 34-28-

       5-3(a) (officer may detain the person for a sufficient time to inform them of the

       allegation, obtain identifying information from the person, and allow the person

       to execute a notice to appear). His claim is that Officer Smith unreasonably

       lengthened the stop so that another officer could come to the scene and attempt

       to identify the odor coming from inside Shreve’s truck.


[15]   In considering the reasonableness of police conduct in this case, we turn first to

       Officer Smith’s degree of concern, suspicion, or knowledge that the vehicle

       contained contraband. The State presented evidence that after driving

       somewhat evasively in tandem with another vehicle, Shreve was very nervous,

       shaky, and sweating profusely – despite cold outside temperatures – when

       stopped. He also answered questions abnormally fast when speaking with

       Officer Smith. On top of Shreve’s nervous behavior2 and suspicious driving

       pattern, Officer Smith smelled a chemical-based odor coming from inside the

       truck that he could not identify.3 Based on his reasonable concern and

       suspicion under the circumstances, Officer Smith requested the assistance of




       2
        While nervousness may indicate potential wrongdoing, our Supreme Court has recognized that it is not
       unusual for a citizen to become nervous when confronted by police. State v. Quirk, 842 N.E.2d 334, 341 (Ind.
       2006). Accordingly, “other evidence that a person may be engaged in criminal activity must accompany
       nervousness before the nervousness will evoke suspicion necessary to support detention.” Id.
       3
         Officer Smith testified that methamphetamine has a “chemical like odor” that varies in smell depending on
       the chemicals used and the amount of chemical used. Transcript at 60. He explained, the drug can have “a
       different odor each time.” Id.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-CR-342 | June 30, 2016              Page 7 of 9
       another officer, and Lieutenant Lehman arrived fourteen minutes after the stop

       began. Upon his arrival, Lieutenant Lehman also observed Shreve’s

       nervousness and the chemical odor. Accordingly, he asked Shreve to step out

       of the truck to speak with Officer Smith. The officers’ concern was then

       amplified when Shreve seized up and fell to the ground while making his way

       to the back of his truck.


[16]   Next, we turn to the degree of the intrusion, which we consider from Shreve’s

       point of view. See Carpenter, 18 N.E.3d at 1002. Shreve was validly stopped for

       a traffic infraction, and the stop was extended briefly – less than fourteen

       minutes – to allow time for another officer to arrive on the scene. Shreve

       remained seated in his vehicle with his girlfriend, Crabtree, during this time.

       Lieutenant Lehman’s subsequent request that Shreve exit his vehicle to speak

       with Officer Smith was a minimal intrusion on his ordinary activities. He was

       not handcuffed or otherwise placed in custody. Further, after Shreve’s

       unexpected fall, the officers came to his aid, allowed Crabtree to sit with him on

       the curb, and inquired as to the cause of his condition. Shreve recovered

       quickly and indicated that he did not want an ambulance. Lieutenant Lehman

       then asked for permission to search the truck for anything that might have

       caused Shreve’s condition, and Shreve granted permission to search. 4 The

       degree of intrusion leading up to Shreve’s consent was low.




       4
        Contrary to Shreve’s assertions on appeal, there is no indication in the record that the officers used duress
       or coercion to obtain his consent. Shreve also cites Pirtle v. State, 323 N.E.2d 634 (Ind. 1975), to argue that he

       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-CR-342 | June 30, 2016                   Page 8 of 9
[17]   Finally, we balance the needs of law enforcement. Officer Smith’s conduct in

       making the stop was appropriate to the enforcement of traffic laws. After the

       lawful stop, additional circumstances presented that raised Officer Smith’s

       suspicions and caused him to seek the assistance of another officer, which

       resulted in a brief extension of the stop. Shreve was not under arrest at the

       time, and had Officer Smith not decided to further investigate the situation,

       Shreve would have been back on the road and free to dispose of the contraband

       contained inside his vehicle. See Myers, 839 N.E.2d at 1154.


[18]   Under the totality of the circumstances in this case, we conclude that the brief

       detention of Shreve beyond the period necessary to issue the traffic citation did

       not violate Article 1, Section 11.


[19]   We affirm.


[20]   Bailey, J. and Bradford, J., concur.




       was constitutionally entitled to an advisement regarding the right to counsel before Lieutenant Lehman
       obtained his consent to search the truck. A Pirtle warning is required only when a defendant is in custody,
       not when he is “merely the subject of an investigative stop.” Campos v. State, 885 N.E.2d 590, 601 (Ind.
       2008). We need not determine whether a Pirtle warning was required here, however, because Shreve did not
       raise this issue below. See Abran v. State, 825 N.E.2d 384, 389 (Ind. Ct. App. 2005) (“A defendant may not
       argue one ground for objection at trial and then raise new grounds on appeal”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-CR-342 | June 30, 2016              Page 9 of 9
