MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                         Jul 02 2019, 8:05 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                           Curtis T. Hill, Jr.
Bargersville, Indiana                                     Attorney General of Indiana

                                                          Matthew B. Mackenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Paul Allen,                                          July 2, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2987
        v.                                                Appeal from the Pike Circuit Court
                                                          The Honorable William E.
State of Indiana,                                         Weikert, Senior Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          63C01-1802-F2-110



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2987 | July 2, 2019                     Page 1 of 9
                                        Statement of the Case
[1]   John Paul Allen brings this interlocutory appeal from the trial court’s denial of

      his motion to suppress evidence of narcotics and paraphernalia seized from his

      vehicle following a traffic stop. Allen raises the following two issues for our

      review:


              1.       Whether the State’s detention of Allen for sixteen minutes
                       after a traffic stop had been completed so that the State
                       could conduct a canine search of the exterior of his vehicle
                       violated his rights under the Fourth Amendment to the
                       United States Constitution.


              2.       Whether the search violated his rights under Article 1,
                       Section 11 of the Indiana Constitution.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In the early morning hours of February 24, 2018, Indiana State Police Trooper

      C.J. Boeckman, who was operating a fully marked police car, observed Allen

      operate a motor vehicle at fourteen miles per hour above the posted speed limit

      near Otwell. Allen passed Trooper Boeckman, and Trooper Boeckman turned

      his vehicle around to initiate a traffic stop. Before Trooper Boeckman could

      activate his emergency lights, however, Allen maneuvered his vehicle into the

      parking lot of a nearby gas station and came to a stop. Allen did not park at the

      gas pumps, which were operable on a twenty-four hour basis, but instead pulled

      into the parking lot for a closed convenience store.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2987 | July 2, 2019    Page 2 of 9
[4]   Trooper Boeckman pulled his vehicle alongside gas pumps near Allen’s vehicle.

      Trooper Boeckman then approached Allen at the driver’s side window and

      observed Ed Simison in the front passenger seat. Trooper Boeckman observed

      that Allen was wearing a sweatshirt with a hood pulled over his head.

      However, although the temperature was in the high 30s or low 40s, Allen had

      “the sleeves pulled up.” Tr. Vol. II at 20. Trooper Boeckman also noticed that

      Allen “would not make eye contact” with him. Id. When Trooper Boeckman

      asked Allen why he had pulled so quickly into the gas station, Allen responded

      that “he was tired and . . . they were going to switch drivers.” Id. at 81.


[5]   Simison, however, informed Trooper Boeckman that he had picked Allen up

      from a nearby friend’s house. Id. at 21. Trooper Boeckman thought it “wasn’t

      adding up” that Simison would pick up Allen but Allen would then drive the

      vehicle even though Allen “was the one who was tired.” Id. at 81-82. And,

      when Trooper Boeckman asked follow-up questions, such as “[w]here they’re

      headed to,” Simison and Allen had “difficulty answering” the questions. Id. at

      21-22. Trooper Boeckman also felt that Allen and Simison exhibited a higher

      degree of nervousness than typical for traffic stops.


[6]   Pike County Sheriff’s Department Deputy Jason McKinney pulled into the gas

      station to assist Trooper Boeckman after Deputy McKinney had witnessed

      Allen pull into the convenience store parking lot followed by Trooper

      Boeckman. Deputy McKinney approached the passenger’s side front window

      of Allen’s vehicle and observed that Allen—who Deputy McKinney knew

      personally but did not immediately recognize because Allen had his hood up

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2987 | July 2, 2019   Page 3 of 9
      and would not look at Deputy McKinney—was “clutching” the steering wheel

      and was “very sweaty” despite the cool temperature. Id. at 45, 49. Deputy

      McKinney thought it unusual that Allen, as the driver, did not acknowledge

      him or look at him.


[7]   Trooper Boeckman and Deputy McKinney then conferred at Trooper

      Boeckman’s vehicle, where Trooper Boeckman showed Deputy McKinney

      Allen’s driver’s license. Deputy McKinney immediately recognized Allen.

      Aside from knowing Allen personally, Deputy McKinney also knew that Allen

      had a history of “significant substance abuse,” which included a criminal

      history. Id. at 53. As Deputy McKinney was relating that history to Trooper

      Boeckman, Trooper Boeckman received a dispatch report that Allen and

      Simison were suspected of trafficking in narcotics.


[8]   At that time, which was approximately nine minutes after Trooper Boeckman

      had first pulled his vehicle into the gas station behind Allen, Deputy McKinney

      called for a canine unit. About sixteen minutes later, a canine unit conducted

      an exterior search of Allen’s vehicle and indicated the presence of narcotics at

      the driver’s side door. The officers then searched the vehicle and recovered 144

      grams of methamphetamine, less than one gram of heroin, three hypodermic

      needles (one of which was filled with what officers believed to be heroin), a

      digital scale, and a large rubber band that would fit around the arm of an adult.

      The officers arrested Allen and Simison.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2987 | July 2, 2019   Page 4 of 9
[9]    The State charged Allen with numerous offenses, and he moved to suppress the

       State’s evidence seized from his vehicle on the theory that the State’s seizure

       had violated his federal and state constitutional rights. After a hearing, the trial

       court denied Allen’s motion to suppress. The court then certified its order for

       interlocutory appeal, which we accepted.


                                      Discussion and Decision
                                              Standard of Review

[10]   Allen appeals the trial court’s denial of his motion to suppress and argues on

       appeal that the State’s seizure of the evidence from his vehicle violated his

       federal and state constitutional rights. As we have explained:


               [Appellant’s] arguments that police violated his Fourth
               Amendment and Article 1, Section 11 rights raise questions of
               law we review de novo. As the United States Supreme Court has
               explained with respect to the Fourth Amendment, “as a general
               matter determinations of reasonable suspicion and probable
               cause should be reviewed de novo on appeal,” while “findings of
               historical fact” underlying those legal determinations are
               reviewed “only for clear error.” Ornelas v. United States, 517 U.S.
               690, 699 (1996). The Indiana Supreme Court applies the same
               standard under Article 1, Section 11. E.g., McIlquham v. State, 10
               N.E.3d 506, 511 (Ind. 2014). In other words, we review whether
               reasonable suspicion or probable cause exists “under a standard
               ‘similar to other sufficiency issues’—whether, without reweighing
               the evidence, there is ‘substantial evidence of probative value that
               supports the trial court’s decision.’” Id. (quoting State v.
               Richardson, 927 N.E.2d 379, 385 (Ind. 2010)).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2987 | July 2, 2019   Page 5 of 9
       Redfield v. State, 78 N.E.3d 1104, 1106 (Ind. Ct. App. 2017) (some citations and

       some quotation marks omitted), trans. denied. With that standard in mind, we

       turn to each of Allen’s arguments on appeal.


                                      Issue One: Fourth Amendment

[11]   Allen first challenges the legality of the evidentiary seizure under the Fourth

       Amendment. In particular, he argues that the officers at the scene of the traffic

       stop lacked reasonable suspicion under the Fourth Amendment to prolong the

       traffic stop for purposes of conducting a canine search of the exterior of his

       vehicle.


[12]   We initially note that the State does not dispute Allen’s assertion that the

       purposes underlying the traffic stop were at an end by the time Deputy

       McKinney called for a canine unit. As such, under the Fourth Amendment the

       officers were not permitted to prolong their detention of Allen “absent the

       reasonable suspicion ordinarily demanded to justify detaining an individual.”

       Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015). Such reasonable

       suspicion


               is dependent upon both the content of information possessed by
               police and its degree of reliability. The standard takes into
               account the totality of the circumstances—the whole picture.
               Although a mere “hunch” does not create reasonable suspicion,
               the level of suspicion the standard requires is considerably less
               than proof of wrongdoing by a preponderance of the evidence,
               and obviously less than is necessary for probable cause.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2987 | July 2, 2019   Page 6 of 9
       Navarette v. California, 572 U.S. 393, 397 (2014) (citations and quotation marks

       omitted).


[13]   Under the totality of the circumstances here, the officers had reasonable

       suspicion to prolong their detention of Allen for the sixteen minutes they did so

       in order to conduct the canine search. Deputy McKinney knew Allen

       personally and knew that Allen had a significant history of drug abuse, which

       included a prior criminal history. When Deputy McKinney was near Allen’s

       vehicle, Allen refused to look at Deputy McKinney or present himself to

       Deputy McKinney in a way that would allow him to immediately recognize

       Allen. Allen also refused to make eye contact with Trooper Boeckman.

       Further, Allen had a “difficult” time answering basic questions such as where

       he was coming from and where he was going, and the story he and Simison

       eventually relayed to the officers “wasn’t adding up.” Tr. Vol. II at 21-22, 82.

       And, despite a cool nighttime temperature, Allen had his sleeves rolled up and

       was very sweaty; he also was clutching the steering wheel and exhibited an

       above average degree of nervousness for a traffic stop. Finally, immediately

       before calling for a canine unit, the officers received a dispatch report that Allen

       and Simison were suspected of trafficking narcotics.


[14]   Allen’s argument on appeal seeks to piecemeal the facts before the officers and

       assert that no one fact created reasonable suspicion. But that is not our inquiry.

       Our task is to review the totality of the circumstances, and, again, that totality

       readily demonstrates a sufficient basis for reasonable suspicion under the

       Fourth Amendment. Accordingly, we affirm the trial court’s denial of Allen’s

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2987 | July 2, 2019   Page 7 of 9
       motion to suppress under the Fourth Amendment to the United States

       Constitution.


                                     Issue Two: Article 1, Section 11

[15]   Allen also asserts that the State violated his rights under Article 1, Section 11 of

       the Indiana Constitution when it prolonged his detention to conduct the canine

       search. As the Indiana Supreme Court has explained:


               While almost identical in wording to the federal Fourth
               Amendment, the Indiana Constitution’s Search and Seizure
               clause is given an independent interpretation and application. To
               determine whether a search or seizure violates the Indiana
               Constitution, courts must evaluate the “reasonableness of the
               police conduct under the totality of the circumstances.” Litchfield
               v. State, 824 N.E.2d 356, 359 (Ind. 2005). “We believe that the
               totality of the circumstances requires consideration of both the
               degree of intrusion into the subject’s ordinary activities and the
               basis upon which the officer selected the subject of the search or
               seizure.” Id. at 360. In Litchfield, we summarized this evaluation
               as follows:


                        In sum, although we recognize there may well be other
                        relevant considerations under the circumstances, we have
                        explained reasonableness of a search or seizure as turning
                        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 citizens’ ordinary activities, and 3) the extent of law
                        enforcement needs.


               Id. at 361.


       Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005) (some citations omitted).
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2987 | July 2, 2019   Page 8 of 9
[16]   Applying those three factors here, we conclude that the officers did not violate

       Allen’s rights under Article 1, Section 11 when they detained him for an

       additional sixteen minutes to conduct the canine search. First, as explained

       under Issue One, there was a high degree of suspicion that a violation had

       occurred and that criminal activity was afoot. Second, the degree of the

       intrusion—the sixteen minutes that elapsed until the canine unit arrived—while

       not nothing, was nonetheless reasonable. Third, the extent of law enforcement

       needs to detain Allen for sixteen minutes to conduct a canine search of the

       exterior of the vehicle also weighs in favor of the State. Accordingly, we affirm

       the trial court’s denial of Allen’s motion to suppress under Article 1, Section 11.


                                                 Conclusion
[17]   In sum, we affirm the trial court’s judgment.


[18]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2987 | July 2, 2019   Page 9 of 9
