                                                               FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
                                                             Dec 28 2012, 10:06 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law                             CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
of the case.                                                             tax court




ATTORNEYS FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                               IAN O’KEEFE
Attorney General of Indiana                      Lafayette, Indiana

GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                )
                                                 )
        Appellant-Plaintiff,                     )
                                                 )
               vs.                               )    No. 79A02-1206-CR-496
                                                 )
BLAKE LODDE,                                     )
                                                 )
        Appellee-Defendant.                      )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Michael Morrissey, Judge
                               Cause No. 79D06-1011-FD-267


                                      December 28, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      The State appeals the trial court’s granting of Blake Lodde’s motion to suppress.

We reverse and remand.

                                          Issue

      The sole issue before us is whether the trial court properly concluded that a police

officer lacked reasonable suspicion to stop Lodde to investigate whether he had

committed the offense of operating a vehicle while intoxicated (“OWI”).

                                          Facts

      We stated the facts in a previous appeal in this matter as follows:

                     In late 2010, Deputy John Lendermon of the
             Tippecanoe County Sheriff’s office was conducting routine
             status checks of several registered sex offenders assigned to
             him, one of whom was Lodde. While the two spoke at
             Lodde’s home, Deputy Lendermon smelled a “very strong
             odor of an alcoholic beverage” emanating from Lodde and
             observed bloodshot, swollen, and glassy eyes. Transcript at
             6; Appendix of Appellant at 11, 13. Deputy Lendermon later
             explained: “I just kind of put [my observations] aside, he was
             at home, he’s an adult. I didn't really think a whole lot about
             it; I just kind of made a mental note of it.” Tr. at 6. When
             later asked if Lodde told the deputy that he woke up just prior
             to the deputy’s arrival, Deputy Lendermon conceded that
             Lodde “may have,” but he did not remember. Id. at 10.
             Deputy Lendermon did not notice any problem with Lodde’s
             balance or manual dexterity and did not recall Lodde slurring
             his speech.

                   Deputy Lendermon returned to his car to enter
             information regarding the status check into his computer, and
             saw Lodde enter his own car and begin to drive away. When
             Lodde turned from his driveway onto a street, the deputy
             pursued him and initiated an investigatory stop. Deputy

                                            2
             Lendermon admitted he did not follow Lodde long enough to
             observe Lodde drive in a way that suggested he was impaired.
             He pulled over Lodde because: he “felt that [Lodde] was
             potentially intoxicated and . . . just wanted to make sure that
             [Lodde] was okay to drive,” id. at 8, “the possibility of there
             being an accident or something like that was too great to not
             intervene immediately[,]” and “the odor [of alcohol] was that
             strong” during their initial conversation. Id. at 11–12.

                     Upon being pulled over, Lodde admitted he drank five
             or six beers “a few hours ago.” App. of Appellant at 11
             (quoting from the deputy’s report). Lodde also submitted to
             field sobriety tests and a portable breath test. Finally, he was
             transported to the jail for a blood draw, urine screen, and
             breathalyzer test, which indicated he had 0.10 grams of
             alcohol per 210 liters of breath.

                    The State charged Lodde with operating while
             intoxicated and operating a vehicle with a blood alcohol
             content of greater than 0.08 and less than 0.15, both Class C
             misdemeanors, and operating while intoxicated with a prior
             conviction for operating while intoxicated within the last five
             years, a Class D felony. Lodde filed a motion to dismiss
             which the trial court treated as a motion to suppress evidence
             gathered upon pulling over Lodde.

State v. Lodde, No. 79A02-1111-CR-1067 (Ind. Ct. App. April 30, 2012). The trial court

granted Lodde’s motion to suppress, and the State appealed.

      In the first appeal, we held that the trial court erroneously granted the motion to

suppress because it had applied an incorrect standard in reviewing whether Deputy

Lendermon had properly pulled Lodde over. Namely, the trial court had considered

whether Deputy Lendermon had probable cause to pull Lodde over, while the correct

standard was whether Deputy Lendermon had reasonable suspicion to make the stop. We

remanded for the trial court to consider whether the State proved the existence of

                                            3
reasonable suspicion.     After reconsidering the matter but not conducting another

evidentiary hearing, the trial court again granted the motion to suppress. The State again

appeals pursuant to Indiana Code Section 35-38-4-2(5).

                                         Analysis

       When reviewing the granting of a motion to suppress, we neither reweigh

evidence nor judge witness credibility, and will consider only the evidence most

favorable to the trial court’s ruling. State v. Seidl, 939 N.E.2d 679, 683 (Ind. Ct. App.

2010). The State is appealing a negative judgment when a trial court grants a motion to

suppress and it must show that the trial court’s ruling was contrary to law. Id. In such a

situation, the State has the burden of demonstrating to this court that the evidence is

without conflict and that the evidence and all reasonable inferences therefrom lead to a

conclusion opposite that reached by the trial court. Id.

       Lodde argues, and the trial court agreed, that Deputy Lendermon lacked

reasonable suspicion to pull him over on the basis of observations Deputy Lendermon

made shortly before Lodde began driving, especially since Deputy Lendermon did not

observe Lodde commit any traffic violations. Under the Fourth Amendment to the

United States Constitution, a brief, investigatory stop of a citizen by police—such as a

traffic stop—must be based upon a reasonable, articulable suspicion, based on the totality

of the circumstances, that criminal activity is afoot. Potter v. State, 912 N.E.2d 905, 907

(Ind. Ct. App. 2009). Reasonable suspicion must be based upon specific and articulable

facts known to the officer at the time of the stop and is not satisfied by mere hunches or

                                             4
unparticularized suspicions. Id. To make a valid traffic stop, an officer “‘must possess at

least reasonable suspicion that a traffic law has been violated or that other criminal

activity is taking place.’” Id. at 907-08 (quoting Meredith v. State, 906 N.E.2d 867, 869

(Ind. 2009)). Reasonable suspicion is a less demanding standard than probable cause and

requires a showing of possible criminality that is considerably less than a preponderance

of the evidence. Shell v. State, 927 N.E.2d 413, 419 (Ind. Ct. App. 2010).

       In Potter, we held that an officer had reasonable suspicion to initiate a traffic stop

for suspected OWI even though the defendant had not committed any traffic infractions,

where the officer had observed driving movements that were indicative of intoxication,

i.e. weaving inside of a single lane of traffic. Id. at 908. More directly on point, we

stated in State v. Morris, 732 N.E.2d 224, 228 (Ind. Ct. App. 2000), that an officer’s

detection of alcohol on the breath of a motorist after pulling him over for a seatbelt

violation provided “reasonable suspicion” that the motorist was driving under the

influence and warranted further investigation for OWI. Similarly, we held in Kenworthy

v. State, 738 N.E.2d 329, 331-32 (Ind. Ct. App. 2000), trans. denied, that although the

original reasonable suspicion for a traffic stop for driving while suspended had

disappeared in that the driver was not who the officer thought it was, the officer had

“reasonable suspicion” to continue the stop for investigation of OWI when the officer

smelled alcohol coming from the vehicle. Thus, Potter, Morris, and Kenworthy clearly

establish that detecting the odor of alcohol from a vehicle or driver constitutes reasonable

suspicion to detain the driver for investigation of OWI, independent of whether a traffic

                                             5
infraction has been committed. Additionally, the fact that traffic stops for other reasons

had already been made in Morris and Kenworthy before the odor of alcohol had been

detected, unlike the present case, is a distinction without a difference.                     Reasonable

suspicion is reasonable suspicion, regardless of when or in what context it arises.

        Also, as the State notes, the level of reasonable suspicion in this case would appear

to exceed that in Bogetti v. State, 723 N.E.2d 876 (Ind. Ct. App. 2000), which our

supreme court discussed with approval in State v. Renzulli, 958 N.E.2d 1143 (Ind. 2011).

In Bogetti, we affirmed the trial court’s denial of a motion to suppress OWI-related

evidence where the only information possessed by an officer conducting a traffic stop

was a citizen tip that a driver who had just left a restaurant “may be intoxicated”; there

was no indication that the driver had committed any traffic infraction or engaged in any

erratic driving before the stop was made. Bogetti, 723 N.E.2d at 879.1 Here, Deputy

Lendermon’s suspicion that Lodde was driving while intoxicated was based upon his

personal observation just moments before Lodde got into his car and drove away that

Lodde smelled of alcohol and had bloodshot, glassy eyes. We are not asked here to

determine whether this evidence would have been sufficient to convict Lodde of OWI or

even to arrest him for that offense. It was sufficient to constitute reasonable suspicion,

based on articulable facts, for Deputy Lendermon to stop Lodde’s vehicle and investigate


1
  As Lodde notes, the defendant in Bogetti lost a motion to suppress and appealed, whereas here the State
lost and is appealing, which leads to a different standard of review. Still, for purposes of providing clear
guidance to law enforcement officers, we believe traffic stops based on objectively similar evidence
should lead to objectively similar suppression results, regardless of which trial court is ruling in the
matter.
                                                     6
further whether he was intoxicated. As such, the stop of Lodde’s vehicle was permissible

under the Fourth Amendment.

       Lodde separately argues that the stop of his vehicle violated Article 1, Section 11

of the Indiana Constitution. An individual’s freedom of movement under this provision,

which parallels the Fourth Amendment, “is not absolute, for society has a right to protect

itself.” Renzulli, 958 N.E.2d at 1146. Generally, the reasonableness of a search or

seizure under the Indiana Constitution turns on a balance of: “1) the degree of concern,

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

method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the

extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).2

       Here, Deputy Lendermon did not randomly and arbitrarily select Lodde to be

pulled over. While conducting a routine check of sex offenders, Deputy Lendermon

observed possible signs that Lodde could be intoxicated moments before he got into his

car and drove away from home. As for the degree of intrusion into Lodde’s ordinary

activities caused by him being pulled over and investigated for OWI, our supreme court

has expressly observed that a brief stop of an automobile—in particular in connection

with a drunk driving roadblock—is a “relatively minor” intrusion upon a citizen’s

freedom of movement. Id. at 360. Finally, it goes without saying anymore that drunk

2
  In Renzulli, our supreme court seemed to rely solely upon a “reasonable suspicion” analysis, which is
rooted in Fourth Amendment jurisprudence, in resolving a defendant’s claim of an illegal traffic stop
under Article 1, Section 11. The Renzulli opinion did not employ the Litchfield three-part test for
examining the legality of a search or seizure under the Indiana Constitution. Regardless, having already
found reasonable suspicion for the stop of Lodde under the Fourth Amendment, out of an abundance of
caution, we will also apply the Litchfield analysis to his claim.
                                                   7
driving is extremely dangerous to society, resulting in tens of thousands of deaths,

hundreds of thousands of injuries, and billions of dollars in property damage throughout

the United States annually.    See Renzulli, 958 N.E.2d at 1148-49 (citing Michigan

Department of State Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 2485-86 (1990)).

The extent of law enforcement needs and the interests of society in general in combatting

drunk driving, through proactive enforcement of OWI laws, are very high. In balancing

the three Litchfield factors, we cannot say that Deputy Lendermon’s stop of Lodde was

unreasonable under the Indiana Constitution.

      We conclude, after reviewing all the evidence in a light most favorable to the trial

court’s ruling, that that ruling is contrary to law. Deputy Lendermon’s stop of Lodde was

valid under both the United States and Indiana Constitutions.

                                       Conclusion

      We reverse the granting of the motion to suppress and remand for further

proceedings consistent with this opinion.

      Reversed and remanded.

BAKER, J., concurs,

RILEY, J., dissents.




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