MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Nov 30 2016, 9:17 am
court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Brian A. Karle                                          Gregory F. Zoeller
Ball Eggleston, PC                                      Attorney General of Indiana
Lafayette, Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Darrell A. Williams,                                    November 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1604-CR-782
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Randy J. Williams,
Appellee-Plaintiff                                      Judge

                                                        The Honorable Daniel J. Moore,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        79D01-1306-FC-26




Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016     Page 1 of 10
      Crone, Judge.




                                             Case Summary
[1]   Darrell A. Williams appeals his conviction for class C felony operating a motor

      vehicle after driving privileges were forfeited for life, following a bench trial.

      He contends that the trial court abused its discretion in admitting any evidence

      obtained as a result of the traffic stop of his vehicle because such stop was

      conducted in violation of his rights pursuant to the Fourth Amendment to the

      United States Constitution and Article 1, Section 11 of the Indiana

      Constitution. Finding no federal or state constitutional violation, and therefore

      no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   On May 29, 2013, at approximately 6:58 a.m., Tippecanoe County Sheriff’s

      Office Lieutenant Greg Frantz and Deputy Aaron Gilman traveled separately

      to the residence of Alicia Hickman, a woman whom they believed Williams

      was in a relationship and living with. Lieutenant Frantz had received a tip

      from the local prosecutor’s office that Williams may be operating a vehicle with

      an “HTV [habitual traffic violator] life status.” Tr. at 6. After personally

      confirming Williams’s HTV status in the Indiana Bureau of Motor Vehicles

      database, Lieutenant Frantz, who was already somewhat familiar with

      Williams’s appearance, “refreshed [his] memory” that morning by looking at

      Williams’s most recent photograph in law enforcement records. Id. at 7.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016   Page 2 of 10
[3]   Lieutenant Frantz and Deputy Gilman positioned themselves near Hickman’s

      residence to conduct surveillance. Deputy Gilman noted that two vehicles were

      parked in the driveway of the residence. After running the plates on those

      vehicles, Deputy Gilman found that both vehicles were registered to Hickman.

      Both officers were then called away to investigate unrelated reports.


[4]   Upon returning to the residence at approximately 7:30 a.m., Deputy Gilman

      discovered that one of the two vehicles was no longer parked in Hickman’s

      driveway. Deputy Gilman parked in a nearby alley so that he could watch and

      see if the vehicle returned or if the remaining vehicle left the residence. Shortly

      thereafter, Deputy Gilman observed the second vehicle, a silver 2007 Hyundai

      Santa Fe, exiting the driveway. Deputy Gilman could not see the driver.

      Deputy Gilman radioed to Lieutenant Frantz, who was positioned at the

      entrance to the neighborhood, that the vehicle was headed his way.


[5]   As the vehicle approached Lieutenant Frantz, he used binoculars to look

      through the front windshield of the vehicle and determined that the driver was a

      black male, but the officer “could not see if it was [Williams].” Id. at 96.

      However, when the vehicle “made the turn to go northbound on Concord

      Road, still using the assistance of the binoculars, [Lieutenant Frantz] was able

      to see through the front window [that] it appeared to be [Williams],” although

      Lieutenant Frantz was not “a hundred percent sure at this point.” Id. After the

      vehicle passed Lieutenant Frantz, the officer began following the vehicle.

      Lieutenant Frantz was able to “clearly see” through the vehicle’s rear window

      into the rearview mirror, and could see the driver’s forehead, eyes, and nose.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016   Page 3 of 10
      Id. at 96-97, 116-17. Lieutenant Frantz determined that “it was indeed”

      Williams. Id. at 96, 97. Lieutenant Frantz activated his police lights and

      initiated a traffic stop of the vehicle. Thereafter, Lieutenant Frantz confirmed

      Williams’s identity and placed him under arrest.


[6]   The State charged Williams with class C felony operating a motor vehicle after

      driving privileges were forfeited for life. Williams filed a motion to suppress

      alleging that the traffic stop of his vehicle was unconstitutional pursuant to the

      federal and state constitutions, and therefore all evidence obtained should be

      suppressed. The trial court denied the motion and held a bench trial on

      February 19, 2016. Williams renewed his objection to the admission of

      evidence during trial. At the conclusion of the trial, the trial court found

      Williams guilty as charged. This appeal ensued.


                                     Discussion and Decision
[7]   Williams asserts that the trial court abused its discretion in admitting any

      evidence that he was operating a vehicle after his driving privileges were

      forfeited for life because the traffic stop which revealed that evidence was

      unconstitutional. Our review of rulings on the “admissibility of evidence is

      essentially the same whether the challenge is made by a pre-trial motion to

      suppress or by trial objection.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind.

      Ct. App. 2005). “We do not reweigh the evidence, and we consider conflicting

      evidence most favorable to the trial court’s ruling.” Id. We must also consider

      the uncontested evidence favorable to the defendant. Id. We will not disturb


      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016   Page 4 of 10
      the trial court’s evidentiary ruling unless it is shown that the trial court’s

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

      before the court. Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). However,

      the constitutionality of a search and seizure is a question of law that we review

      de novo. Lewis v. State, 949 N.E.2d 1243, 1246 (Ind. 2011).


             Section 1 – The traffic stop did not violate the Fourth
                                  Amendment.
[8]   William’s first contends that the traffic stop of his vehicle violated his rights

      under the Fourth Amendment to the United States Constitution. The Fourth

      Amendment states,

              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.


      “The fundamental purpose of the Fourth Amendment ‘is to protect the

      legitimate expectations of privacy that citizens possess in their persons, their

      homes, and their belongings.’” Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct.

      App. 2013) (quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).

      This protection has been extended to the states through the Fourteenth

      Amendment. Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001).


[9]   In general, the Fourth Amendment prohibits a warrantless search and seizure

      absent a valid exception to the warrant requirement. Peak v. State, 26 N.E.3d
      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016   Page 5 of 10
       1010, 1014 (Ind. Ct. App. 2015). One exception to the warrant requirement is a

       Terry stop. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Specifically, it is well settled

       that

               an officer may conduct a brief investigatory stop of an individual
               when, based on a totality of the circumstances, the officer has a
               reasonable, articulable suspicion that criminal activity is afoot.
               The investigatory stop, also known as a Terry stop, is a lesser
               intrusion on the person than an arrest and may include a request
               to see identification and inquiry necessary to confirm or dispel
               the officer’s suspicions. Reasonable suspicion is determined on a
               case by case basis. The reasonable suspicion requirement is met
               where the facts known to the officer at the moment of the stop,
               together with the reasonable inferences from such facts, would
               cause an ordinarily prudent person to believe criminal activity
               has occurred or is about to occur.


       J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App. 2015) (citations and quotation

       marks omitted). “Reasonable suspicion entails some minimal level of objective

       justification for making a stop, something more than an un-particularized

       suspicion or hunch, but less than the level of suspicion required for probable

       cause.” Polson v. State, 49 N.E.3d 186, 189-90 (Ind. Ct. App. 2015), trans. denied

       (2016).


[10]   Based on our review of the totality of the circumstances here, we conclude that

       Lieutenant Frantz’s investigatory stop was supported by reasonable suspicion.

       Lieutenant Frantz and Deputy Gilman were investigating a report from the

       local prosecutor’s office that Williams may be operating a vehicle despite his




       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016   Page 6 of 10
HTV status. 1 Accordingly, after personally confirming Williams’s status as an

HTV, the officers began conducting surveillance of the residence where they

had reason to believe Williams was staying. Upon determining that one vehicle

had already left the residence and that the second vehicle was in the process of

leaving the residence, the officers began their attempts to identify the second

driver. Lieutenant Frantz stated that he had familiarized himself with

Williams’s appearance that morning, and that when he first observed the

vehicle coming toward him, he was able to determine only that the driver was a

black male but he “could not see if it was [Williams.]” Tr. at 96. However,

Lieutenant Frantz also testified that as the vehicle got closer and turned, “still

using the assistance of the binoculars [he] was able to see through the front

window” that the driver did “appear[] to be [Williams].” Id. When Lieutenant

Frantz began following the vehicle, the officer was able to “clearly see” through

the rear window of the vehicle into the vehicle’s rearview mirror. Id. at 97.

Lieutenant Frantz explained how he could “easily see” the driver in the

rearview mirror, and that after seeing a significant portion of the driver’s face in

the mirror, including his forehead, eyes, and nose, Lieutenant Frantz

determined that the driver “was indeed” Williams. Id. at 96, 102.




1
  In his reply brief, Williams focuses much of his argument on likening the tip from the prosecutor’s office to
an “anonymous tip.” Reply Br. at 4-6. This argument is misplaced. As we discuss more fully below,
regardless of how the tip is characterized, the State did not rely on the tip as the basis for reasonable
suspicion. Lieutenant Frantz’s stop of the vehicle was based upon his visual identification of Williams as the
driver of the vehicle and his independent confirmation of Williams’s HTV status.

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016            Page 7 of 10
[11]   Although Williams implies that the facts available to Lieutenant Frantz at the

       moment of the stop were insufficient to positively “confirm” that he was the

       driver of the vehicle, we remind Williams that reasonable suspicion does not

       require such certitude. Appellant’s Br. at 9. Moreover, our review of the record

       reveals that Lieutenant Frantz did exactly what a law enforcement officer

       should have done under the circumstances. Rather than acting hastily and

       stopping the surveilled vehicle immediately, Lieutenant Frantz continued to

       observe the driver until he was able to make a reasonable visual identification of

       the driver as Williams. Under the totality of the circumstances, Lieutenant

       Frantz had reasonable suspicion of criminal activity based on articulable facts

       to support the traffic stop of Williams’s vehicle. Therefore, the stop did not

       violate the Fourth Amendment and the trial court did not abuse its discretion in

       admitting evidence obtained as a result.


              Section 2 – The traffic stop did not violate the Indiana
                                   Constitution.
[12]   Williams also contends that the traffic stop violated his rights under Article 1,

       Section 11 of the Indiana Constitution. While the language of Article 1,

       Section 11 is virtually identical to its Fourth Amendment counterpart, our

       supreme court has “made an explicit point to interpret and apply Section 11

       independently from federal Fourth Amendment jurisprudence.” Mitchell v. State,

       745 N.E.2d 775, 786 (Ind. 2001). “Instead of focusing on the defendant’s

       reasonable expectation of privacy, we focus on the actions of the police officer,”

       concluding that a search or seizure is legitimate where it is reasonable given the


       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016   Page 8 of 10
       totality of the circumstances. Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006).

       In assessing reasonableness, we consider (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).


[13]   In this case, there was a high degree of suspicion that a violation had occurred

       or was occurring. Lieutenant Frantz personally confirmed that Williams’s

       driver’s license had been suspended for life. After conducting surveillance of

       the residence where officers believed Williams was staying and observing a

       vehicle leave the residence, Lieutenant Frantz was able to determine through

       visual identification that the male driver of the vehicle was indeed Williams.

       This factor weighs in favor of finding that Lieutenant Frantz’s decision to

       conduct a Terry stop of the vehicle was reasonable.


[14]   Second, the degree of intrusion here was minimal. After visually identifying the

       driver of the vehicle as Williams, Lieutenant Frantz initiated a brief traffic stop

       of the vehicle to confirm or dispel his belief that Williams was the driver. Our

       supreme court has acknowledged that generally the degree of intrusion of a

       Terry stop is relatively minor. See Robinson v. State, 5 N.E.3d 362, 368 (Ind.

       2014). Also, the extent of law enforcement needs was high. Operating a

       vehicle after driving privileges have been suspended for life is a serious felony

       offense.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016   Page 9 of 10
[15]   In sum, for essentially the same reasons explained in the context of the Fourth

       Amendment, we hold that Lieutenant Frantz’s stop of Williams’s vehicle was

       reasonable given the totality of the circumstances and therefore did not violate

       the Indiana Constitution. Accordingly, the trial court did not abuse its

       discretion in admitting evidence obtained as a result of the stop.


[16]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-CR-782 | November 30, 2016   Page 10 of 10
