                                                                     FILED
                                                                Feb 16 2017, 5:35 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                        Curtis T. Hill, Jr.
Elkhart, Indiana                                           Attorney General of Indiana
                                                           Katherine Modesitt Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Christopher A. Neeley,                                     February 16, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           20A03-1511-CR-1909
        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Honorable Charles C. Wicks,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           20D05-1408-F6-126



Brown, Judge.




Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017             Page 1 of 16
[1]   Christopher A. Neeley appeals his convictions for intimidation as a level 6

      felony and resisting law enforcement as a class A misdemeanor. Neeley raises

      two issues, one of which we find dispositive and revise and restate as whether

      the trial court abused its discretion in admitting officer testimony. We reverse.


                                       Facts and Procedural History

[2]   On the evening of August 26, 2014, Linda Hooley was traveling to her home

      along County Road 35 when she observed a man walking on the road. She was

      concerned because County Road 35 does not have a lot of walkers and it was

      very foggy that evening. Linda believed that she had seen the same person walk

      past her home a few times in the past. The walker, later identified as Neeley,

      caught her attention because he appeared to be walking with “no purpose,” in

      which he proceeded very slowly and was looking at the cars that were passing

      by him. Transcript at 173. She also thought he looked like a stranger, which

      caused some alarm. Her husband Brad Hooley arrived home minutes later,

      Linda brought up the walker to him, and Brad responded that he had observed

      the walker as well. They decided to call the police.


[3]   Officer Cleo Sheppard with the Middlebury Police Department responded to

      the dispatch, which had posted at approximately 10:00 p.m. The dispatcher

      told Officer Sheppard that “they did have a couple calls of a peeping Tom . . .

      and a suspicious person in the area of County Road 22 and 35.” Id. at 205.

      Officer Sheppard came upon an individual matching the description walking

      northbound with traffic on County Road 35, which did not have a shoulder.

      Noting the “minor traffic infraction” of walking with traffic, Officer Sheppard
      Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 2 of 16
      engaged with the walker “since this was the subject in question . . . .” Id. at

      207. Officer Sheppard put his spotlight on Neeley and, using his PA system,

      told him to stop, but Neeley did not do so. Officer Sheppard exited his vehicle

      and attempted to stop him, again Neeley did not stop, and Officer Sheppard

      then returned to his car. Using his PA system Officer Sheppard then again

      asked Neeley to stop, believed Neeley might jump a fence and run, and he

      checked on the status of assisting officers.


[4]   After approximately ten minutes, Officer Andrew Ahlersmeyer of the Elkhart

      County Sheriff’s Department arrived to assist from the opposite direction, from

      which Officer Sheppard advised him to approach and “light the subject up so

      we can get him to stop.” Id. at 211. Figuring that Neeley might run, Officer

      Sheppard “grabbed” Neeley to “detain him.” Id. at 212-213. Officer Sheppard

      pulled Neeley’s hat upward and recognized him, as Officer Sheppard was

      familiar with Neeley based on previous encounters with him. While holding

      Neeley, Officer Sheppard told him to untense his muscles because in his

      experience an individual could “be setting you up for . . . a sucker punch or

      anything.” Id. at 217. Officer Ahlersmeyer grabbed the other side of Neeley.

      Officer Sheppard asked Neeley where he was going, and Neeley responded “to

      a friend’s house,” but Officer Sheppard believed that house was a former

      residence of his grandparents and was not occupied by someone Neeley

      currently knew. Id. at 218. At some point, Middlebury Police Officer Aaron

      Smartt also arrived on the scene.




      Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 3 of 16
[5]   The officers asked Neeley multiple times for a place they could transport him,

      or, alternatively, for a phone number so they could call his dad or someone else

      to come and pick him up. About thirteen minutes following Officer

      Ahlersmeyer’s arrival and Neeley’s detention, and after being threatened by

      Officer Sheppard, Neeley told Officer Sheppard: “If you didn’t have that vest

      on I’d f--- you up.” Officer Sheppard “took it as that that [Neeley] wants to do

      something to [him].” Id. at 224-225. At about the same time, Officer Sheppard

      observed that Neeley was still tensing his muscles, raising his arms, and

      “powering up.” Id. at 225. The officers then did a pat down for officer safety,

      and Officer Sheppard had made the decision in his mind that Neeley “was

      going to jail” if he “couldn’t find no where to go . . . .” Id. at 226. Neeley also

      began to directly stare at the officers giving Officer Sheppard “the feeling get

      ready cause it’s going to happen,” but he did not believe there was “much of a

      problem” because at that point there were four officers on the scene. Id. at 228.

      Officer Sheppard believed that Neeley was “powering up again,” which would

      give Neeley “enough strength to forcibly activate himself” to potentially break a

      hold. Id. at 228-229. As the officers placed Neeley under arrest by placing him

      in handcuffs, Neeley “started to pull away again” or “stiffened up” and

      “wouldn’t . . . put his hands behind his back” before Officer Smartt “took a

      better grip” and they “were able to secure him and place him in handcuffs . . . .”

      Id. at 229, 308.


[6]   On August 28, 2014, the State charged Neeley with intimidation as a level 6

      felony and resisting law enforcement as a class A misdemeanor for forcible


      Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 4 of 16
      resistance. On January 15, 2015, Neeley filed a motion to suppress, asserting

      that information and evidence obtained from the search “was unlawfully

      obtained because police lacked authority to stop or search [him] under the 4th

      Amendment of the U.S. Constitution or Article I, [Section] 11 of the Indiana

      Constitution.” Appellant’s Appendix at 54. On May 21, 2015, the court held a

      hearing on the motion, and on July 21, 2015, it denied Neeley’s motion.


[7]   On August 13, 2015, the court commenced a jury trial. The court granted

      Neeley a continuing objection to the testimony of the police officers as fruit of

      the poisonous tree in that the arrest was “unlawful” and “was made without

      probable cause” or due process under the Fourth Amendment and Article 1,

      Section 11 of the Indiana Constitution. Transcript at 143. In granting Neeley’s

      continuing objection, the court instructed Neeley’s counsel: “You do not need

      to be jumping up and down and making continuous objections during the

      officer’s testimony.” Id. at 144.


[8]   During the testimony of Officer Sheppard, the court admitted into evidence a

      video recording taken by Officer Ahlersmeyer’s dash cam depicting Officer

      Sheppard driving behind Neeley as he walked with traffic and Neeley

      attempting to walk past Officer Ahlersmeyer’s police car. The recording

      captured audio of the interaction between Neeley while he was being detained

      by the officers, although the individuals are not shown. In the recording, which

      was played for the jury, Officer Sheppard can be heard asking Neeley to

      untense his muscles, and, after asking Neeley where he was headed, Officer

      Sheppard stated “I’d be damned if I let you hurt me,” to which Neeley replied

      Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 5 of 16
      “I ain’t gonna hurt you.” State’s Exhibit 2 at 6:50-6:59. At one point, Officer

      Sheppard stated “I’ll do the same damn shit again, beat your ass and put you in

      jail.” Id. at 7:02-7:07. Officer Sheppard then asked Neeley again where he

      would like to go or if there was somewhere he could go. After again requesting

      that Neeley untense his muscles, one of the other officers informed Neeley:

      “There’s three of us and there could potentially be a fourth here with a dog in a

      minute,” that “you’re going to get hurt,” and that “we don’t want to do that.”

      Id. at 8:00-8:11. Soon after, one of the officers stated to Neeley: “It’s your dad

      or jail.” Id. at 10:19-10:21. Officer Sheppard also stated at one point: “Stop,

      Chris. You know I know that game and I know what you’re thinking, so you

      better stop. I’m tellin’ you right now. You do that again, you will kiss the

      ground. I’m not going to play that.” Id. at 19:06-19:19.


[9]   Regarding the manner in which Officer Sheppard dealt with Neeley as depicted

      in the video, Officer Sheppard testified: “that is what he understands. That is

      what he reacts to and thirdly, he knows that I don’t play that type of game

      especially at night like that.” Transcript at 222. On cross-examination, Officer

      Sheppard testified that he did not have a report that Neeley was involved in

      being a peeping Tom or trespassing and that it was not illegal to walk at night.

      He also indicated that he “did not see [Neeley] committing any crimes” when

      he came upon Neeley walking along the roadway. Id. at 245. He indicated that

      he “did not have any articulable suspicion . . . about any criminal activity” on

      the part of Neeley when he was following Neeley along the road. Id. at 248.

      Officer Sheppard also admitted that he did not bring up the fact that Neeley had


      Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 6 of 16
       been walking on the wrong side of the street with Neeley during the stop and

       that it “wasn’t a real big deal . . . .” Id. at 250. The jury found Neeley guilty as

       charged.


                                                     Discussion

[10]   The dispositive issue is whether the trial court abused its discretion in admitting

       the testimony of the officers regarding the stop. Generally, we review the trial

       court’s ruling on the admission or exclusion of evidence for an abuse of

       discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We

       reverse only when the decision is clearly against the logic and effect of the facts

       and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g

       denied. We may affirm a trial court’s decision regarding the admission of

       evidence if it is sustainable on any basis in the record. Barker v. State, 695

       N.E.2d 925, 930 (Ind. 1998), reh’g denied. Even if the trial court’s decision was

       an abuse of discretion, we will not reverse if the admission constituted harmless

       error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans.

       denied. We review de novo a ruling on the constitutionality of a search or

       seizure, but we give deference to a trial court’s determination of the facts, which

       will not be overturned unless clearly erroneous. Campos v. State, 885 N.E.2d

       590, 596 (Ind. 2008); see also Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014)

       (holding that the ultimate determination of the constitutionality of a search or

       seizure is a question of law that we consider de novo).


[11]   Neeley notes that his trial counsel’s failure to make a contemporaneous

       objection at the time the evidence was offered at trial may constitute waiver, but
       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 7 of 16
       asserts that, waiver notwithstanding, this court should review the issue as if

       such objection had been made because the court at the outset of trial noted a

       continuing objection and instructed defense counsel that she need not make

       contemporaneous objections. Alternatively, he requests we review for a

       fundamental error. He argues that the encounter quickly turned non-

       consensual, the police officers did not have reasonable suspicion to detain him

       for several minutes, that no criminal activity was afoot, and that accordingly the

       evidence presented by the police officers following the illegal detention should

       have been excluded under the Fourth Amendment and Article 1, Section 11 of

       the Indiana Constitution. The State argues that Neeley waived his claim

       because he did not object at trial regarding the ground asserted on appeal and

       does not develop a fundamental error claim, that the officers’ stop and

       detention was supported by reasonable suspicion where Officer Sheppard

       observed a traffic violation of walking on the wrong side of the roadway and

       Neeley did not stop when instructed regarding that infraction, and that the stop

       did not violate the Indiana Constitution.


[12]   While Neeley presented his continuing objection at the outset of trial rather

       than when Officer Sheppard was called as a witness, the record is clear that the

       trial court, in granting his continuing objection, instructed his counsel that she

       had preserved the issue and that she need not object to officer testimony as it

       was being offered. Noting the court’s instruction to counsel and our preference

       to address issues on their merits, we will address Neeley’s claim here. See

       Armstrong v. State, 932 N.E.2d 1263, 1270 (Ind. Ct. App. 2010) (noting that the


       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 8 of 16
       defendant “could have done a better job advancing his claim of lack of

       sufficient basis to preserve it for appeal” but that “because we prefer to address

       issues on their merits where possible, we will address the merits of Armstrong’s

       claim here”), trans. denied.


[13]   In ruling on admissibility following the denial of a motion to suppress, the trial

       court considers the foundational evidence presented at trial. Carpenter, 18

       N.E.3d at 1001. If the foundational evidence at trial is not the same as that

       presented at the suppression hearing, the trial court must make its decision

       based upon trial evidence and may consider hearing evidence only if it does not

       conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).

       It also considers the evidence from the suppression hearing that is favorable to

       the defendant only to the extent it is uncontradicted at trial. Carpenter, 18

       N.E.3d at 1001.


[14]   Turning to Neeley’s arguments under the Fourth Amendment, it 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.


[15]   Generally, a law enforcement officer must have reasonable suspicion of

       criminal conduct in order to justify a traffic stop, which is a “seizure” for

       purposes of the Fourth Amendment. Clarke v. State, 868 N.E.2d 1114, 1118

       (Ind. 2007) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). When
       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 9 of 16
       determining whether an officer had reasonable suspicion for a Terry stop, we

       consider whether the totality of the circumstances presented a particularized

       and objective basis for the officer’s belief that the subject was engaged in

       criminal activity. State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014). When an

       officer, without probable cause to arrest or reasonable suspicion that criminal

       activity is afoot, approaches an individual, that individual has the right to

       ignore the police and go about his business. Florida v. Royer, 460 U.S. 491, 497-

       498, 103 S. Ct. 1319, 1324 (1983). “[A] refusal to cooperate, without more,

       does not furnish the minimal level of objective justification needed for a

       detention or seizure.” Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382,

       2387 (1991). Also, “if the person[] refuses to answer and the police take

       additional steps . . . to obtain an answer, then the Fourth Amendment imposes

       some minimal level of objective justification to validate the detention or

       seizure.” I.N.S. v. Delgado, 466 U.S. 210, 216-217, 104 S. Ct. 1758, 1763 (1984).

       In assessing the whole picture, we must examine the facts as known to the

       officer at the moment of the stop. Clark v. State, 994 N.E.2d 252, 264 (Ind.

       2013). We review findings of reasonable suspicion de novo. Id. This is

       necessarily a fact-sensitive inquiry. Id.


[16]   Here, Brad Hooley called in a report of a person “acting suspicious,” although

       he “did not state why” the person was suspicious. State’s Exhibit 1. At trial,

       Lisa Hooley testified she previously had seen a person walking on the road

       during the past several days before but decided to call this time because “[h]e

       looked questionable and I guess I was tired of seeing him walk on the road.”

       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 10 of 16
       Transcript at 10. Officer Sheppard responded to the dispatch and, when he

       came upon Neeley, he engaged him by telling him to stop using his PA system

       because “this was the subject in question . . . .” Id. at 207. Officer Sheppard

       also observed that Neeley was walking on the right side of the road with traffic

       rather than against it.


[17]   Recently, in Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014), the Indiana Supreme

       Court addressed a person’s choice of whether to comply with an officer’s

       request to stop. In that case, defendant Gaddie walked away from an officer

       through the curtilage of a residence, which turned out to be his own residence,

       while the officer was ordering him to stop following a disturbance at the

       residence. 10 N.E.3d at 1252. Gaddie did not stop or change his behavior, and

       he was charged with resisting law enforcement by fleeing after being ordered to

       stop. Id. On transfer, the Court observed:


               To hold that a citizen may be criminally prosecuted for fleeing
               after being ordered to stop by a law enforcement officer lacking
               reasonable suspicion or probable cause to command such an
               involuntary detention would undermine longstanding search and
               seizure precedent that establishes the principle that an individual
               has a right to ignore police and go about his business.


       Id. at 1254. It held:


               [T]he statutory element “after the officer has . . . ordered the
               person to stop” must be understood to require that such order to
               stop rest on probable cause or reasonable suspicion, that is,
               specific, articulable facts that would lead the officer to reasonably
               suspect that criminal activity is afoot.

       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 11 of 16
       Id. at 1255.


[18]   Here, Officer Sheppard was responding to a report of someone “acting

       suspicious” and at most witnessed Neeley committing an infraction. Neeley

       did not change his behavior in any way when Officer Sheppard approached him

       and ordered him to stop, but simply continued to walk along the road in the

       same direction he had been going. In light of Gaddie, Officer Sheppard was

       mistaken in his assessment that Neeley had committed a misdemeanor in his

       presence, and he was aware of no other articulable facts that would lead him to

       reasonably suspect criminal activity was afoot. As Officer Sheppard did not

       have reasonable suspicion to stop him, Neeley had every right to continue

       walking notwithstanding Officer Sheppard’s order to stop.


[19]   To the extent that the State at trial attempted to develop a theory that Officer

       Sheppard initiated a stop of Neeley because he observed Neeley walking on the

       wrong side of the road in violation of Ind. Code § 9-21-17-14, 1 that the officers’

       detention of Neeley was thus lawful, and that during his lawful detention

       Neeley committed the charged crimes of intimidation and resisting law

       enforcement, we note that upon the arrival of Officer Ahlersmeyer, Officer

       Sheppard, who believed that Neeley might run, “grabbed” Neeley to “detain

       him.” Transcript at 212-213. The officers grabbed each side of Neeley and




       1
         Ind. Code § 9-21-17-14 provides: “If neither a sidewalk nor a shoulder is available, a pedestrian walking
       along and upon a highway shall walk as near as practicable to an outside edge of the roadway. If the
       roadway is two-way, the pedestrian shall walk only on the left side of the roadway.” Additionally, Ind. Code
       § 9-21-17-24 provides that “[a] person who violates this chapter commits a Class C infraction.”

       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017                   Page 12 of 16
       engaged in a lengthy discussion regarding places they could transport him or

       whether someone could arrive to pick him up and remove him from a public

       throughfare on which he had a right to be. During this exchange, none of the

       officers ever informed Neeley that he had been stopped for walking on the

       wrong side of the road. Indeed, Officer Sheppard admitted at trial that he did

       not bring up the fact that Neeley had been walking on the wrong side of the

       road with Neeley during the stop and that it “wasn’t a real big deal . . . .” Id. at

       250. We accordingly find this basis unavailing. We conclude that the court

       abused its discretion when it admitted into evidence the testimony of the

       arresting officers regarding the events following the unlawful and that Neeley’s

       convictions must be reversed.


[20]   Moreover, even if the initial stop was a lawful traffic detention, our analysis

       would not end there. Ind. Code § 34-28-5-3 governs traffic detentions and

       provides:

               (a) Whenever a law enforcement officer believes in good faith
               that a person has committed an infraction or ordinance violation,
               the law enforcement officer may detain that person for a time
               sufficient to:


                        (1) inform the person of the allegation;


                        (2) obtain the person’s:


                                 (A) name, address, and date of birth; or


                                 (B) driver’s license, if in the person’s possession; and

       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 13 of 16
                        (3) allow the person to execute a notice to appear.


[21]   We observe that the United States Supreme Court has held that “a police stop

       exceeding the time needed to handle the matter for which the stop was made

       violates the Constitution’s shield against unreasonable seizures” and that “[a]

       seizure justified only by a police-observed traffic violation, therefore, ‘become[s]

       unlawful if it is prolonged beyond the time reasonably required to complete

       th[e] mission’ of issuing a ticket for the violation.” Rodriguez v. United States, ––

       – U.S. ––––, 135 S. Ct. 1609, 1612 (2015) (quoting Illinois v. Caballes, 543 U.S.

       405, 407, 125 S. Ct. 834 (2005)). In so holding, the Court stated that

       “[a]uthority for the seizure thus ends when tasks tied to the traffic infraction

       are—or reasonably should have been—completed.” Id. at 1614.


[22]   As noted, after grabbing Neeley the officers discussed with him where they

       could transport him to remove him from the road. During the interaction, the

       officers made a number of comments that if Neeley did not help them figure out

       the best place to transport him they would possibly injure and arrest him. The

       recording admitted as State’s Exhibit 2 shows, and Officer Sheppard confirmed

       during his testimony, that he and other officers made threatening statements to

       Neeley for close to thirteen minutes, including statements such as “I’ll do the

       same damn shit again, beat your ass and put you in jail” State’s Exhibit 2 at




       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 14 of 16
       7:02-7:07, before Neeley appears to make the comment to Officer Sheppard that

       “If you didn’t have that vest on I’d f--- you up.” 2 Id. at 12:45-13:04.


[23]   Again, Ind. Code § 34-28-5-3 gives an officer the authority to detain a person

       who the officer believes in good faith has committed an infraction for “a time

       sufficient” to inform the person of the allegation, obtain the person’s

       identification, and allow the person to execute a notice to appear. A stop

       predicated on a traffic violation becomes an unlawful and unreasonable seizure

       if it is “prolonged beyond the time reasonably required to complete the mission

       of issuing a ticket for the violation.” Rodriguez, 135 S. Ct. at 1612 (internal

       quotations and brackets omitted). We find that, in each instance of charged

       criminal conduct, such conduct occurred well after the stop had progressed

       from what would be a lawful traffic detention to an unlawful seizure under the

       Fourth Amendment. Thus, even if the stop constituted a lawful traffic

       detention, our conclusion would be the same, that the court abused its

       discretion in admitting into evidence the relevant officer testimony. 3




       2
        The audio is somewhat obscured by a passing automobile at the time of Neeley’s comment, but at least
       some of the comment can be discerned by a review of the recording.
       3
        Because we find that the evidence is inadmissible under the Fourth Amendment, we need not address
       Neeley’s arguments related to Article 1, Section 11 of the Indiana Constitution or a second issue raised by
       Neeley of whether the evidence is sufficient to sustain his convictions.

       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017                     Page 15 of 16
                                                    Conclusion

[24]   For the foregoing reasons, we reverse Neeley’s convictions for intimidation and

       resisting law enforcement.


[25]   Reversed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1511-CR-1909 | February 16, 2017   Page 16 of 16
