                                                                         FILED
                                                                    Dec 22 2017, 9:59 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kerry C. Connor                                           Curtis T. Hill, Jr.
Attorney at Law                                           Attorney General of Indiana
Highland, Indiana                                         Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eberaia Fields,                                           December 22, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          43A03-1704-CR-856
        v.                                                Appeal from the Kosciusko
                                                          Superior Court - 3
State of Indiana,                                         The Honorable Joe V. Sutton,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          43D03-1510-F6-642



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 43A03-1704-CR-856 | December 22, 2017                  Page 1 of 8
                                           Case Summary
[1]   When Warsaw Police Department Officer Miles Reichard pulled over Eberaia

      Fields, Officer Reichard had not taken the statutory oath for law-enforcement

      officers. Fields filed a motion to dismiss the charges against him, and the trial

      court denied his motion, finding that although Officer Reichard had not been

      sworn in, he was acting as a de facto officer at the time of the stop.


[2]   The de facto officer doctrine confers validity upon acts performed by a person

      acting under the color of official title even though it is later discovered that the

      legality of that person’s appointment is deficient. The purpose of this doctrine

      is to protect the public by insuring the orderly functioning of the government

      despite technical defects in title to office. We find that Officer Reichard’s

      failure to take the oath is a technical defect in his title to office. But because the

      record shows that Officer Reichard claimed the office, was in possession of it,

      and performed its duties under the color of appointment, we conclude that he

      was acting as a de facto officer at the time of the stop. We therefore affirm the

      trial court’s denial of Fields’s motion to dismiss the charges against him.



                            Facts and Procedural History
[3]   The underlying facts in this case are undisputed. Officer Reichard pulled over

      Fields in the early-morning hours of September 12, 2015, due to a broken

      license-plate light. At the time of the stop, Officer Reichard was in full Warsaw

      Police Department uniform, was driving a marked Warsaw Police Department


      Court of Appeals of Indiana | Opinion 43A03-1704-CR-856 | December 22, 2017   Page 2 of 8
      patrol car, and identified himself as an officer with the Warsaw Police

      Department. Fields was ultimately charged with Level 6 felony operating a

      vehicle while intoxicated, two counts of Level 6 felony intimidation, and Class

      C misdemeanor violation of special-driving privileges. The State also alleged

      that Fields was a habitual vehicular substance offender.


[4]   In December 2016, Fields filed a motion to dismiss all charges against him

      because Officer Reichard “had not been lawfully sworn in to act with the

      authority of the Warsaw Police Department at the time of the stop and

      detention . . . on September 12, 201[5].” Appellant’s App. Vol. III p. 38; see

      Ind. Code § 5-4-1-1(a) (“[E]very officer and every deputy, before entering on the

      officer’s or deputy’s official duties, shall take an oath . . . .”); State v. Oddi-Smith,

      878 N.E.2d 1245, 1247-48 (Ind. 2008) (concluding that Section 5-4-1-1 applies

      to law-enforcement officers and that officers must take an oath before beginning

      official duties).1


[5]   At the hearing on Fields’s motion to dismiss, evidence was presented that

      Officer Reichard began working for the Warsaw Police Department on

      November 9, 2014, and that he received his first paycheck a couple weeks later.

      Tr. Vol. II pp. 17-18. However, Officer Reichard did not have his oath of office

      administered and filed with the Kosciusko County Clerk until November 19,




      1
       In that case, our Supreme Court ultimately found that the officer was properly sworn, but it noted that there
      “might well be other grounds on which the arrest of Oddi-Smith was valid, like the ‘de facto officer’
      doctrine.” Oddi-Smith, 878 N.E.2d at 1249.

      Court of Appeals of Indiana | Opinion 43A03-1704-CR-856 | December 22, 2017                        Page 3 of 8
      2015—a year after he was hired and two months after he stopped Fields. Exs.

      A & B; Tr. Vol. II pp. 13, 19-21. The State presented additional evidence that

      before Officer Reichard began working for the Warsaw Police Department, he

      worked part-time for the Indiana University Police Department while he was

      attending college. As part of the training for that job, he went to the “Police

      Academy” and received, among other things, firearms training. Tr. Vol. II p.

      32. Upon being hired by the Warsaw Police Department, Officer Reichard

      received a paycheck, health-insurance and retirement benefits, a uniform,

      handcuffs, a handgun, ammunition, a taser, a fully marked patrol car, and

      badge number 161. Id. at 36-40. He also underwent a two-week orientation

      and was supervised by a field-training officer for twelve weeks before he was

      allowed to patrol on his own. Id. at 31, 49-50. Finally, Officer Reichard acted

      with the approval and consent of the Warsaw Chief of Police.


[6]   After additional briefing by the parties, the trial court denied Fields’s motion to

      dismiss the charges against him, concluding that Officer Reichard was acting as

      a de facto officer when he stopped Fields on September 12, 2015.


[7]   This interlocutory appeal now ensues.



                                 Discussion and Decision
[8]   Fields appeals the trial court’s denial of his motion to dismiss the charges against

      him. We generally review a trial court’s ruling on a motion to dismiss a

      charging information for an abuse of discretion. Tiplick v. State, 43 N.E.3d


      Court of Appeals of Indiana | Opinion 43A03-1704-CR-856 | December 22, 2017   Page 4 of 8
      1259, 1262 (Ind. 2015). But where, as here, the arguments presented are

      questions of law, we consider them de novo. Study v. State, 24 N.E.3d 947, 950

      (Ind. 2015), cert. denied.


[9]   Fields contends that the de facto officer doctrine does not apply to “grant legal

      authority to a purported police officer to make a stop and arrest when the

      purported police officer has not taken” the required statutory oath. Appellant’s

      Br. p. 6. The de facto officer doctrine is well established in the law. According

      to the United States Supreme Court, “The de facto officer doctrine confers

      validity upon acts performed by a person acting under the color of official title

      even though it is later discovered that the legality of that person’s appointment

      or election to office is deficient.” Ryder v. United States, 515 U.S. 177, 180

      (1995) (quotation omitted)2; see also King v. State, 397 N.E.2d 1260, 1268 (Ind.

      Ct. App. 1979) (explaining that the rule that the acts of a de facto officer are as

      valid as the acts of a de jure officer “is too familiar to the profession to need the

      citation of authority” and that the public “is not to suffer because those

      discharging the functions of an officer may have a defective title, or no title at

      all” (quotation omitted)). This doctrine “springs from the fear of the chaos that

      would result from multiple and repetitious suits challenging every action taken




      2
        Fields argues that he is entitled to relief under Ryder. In Ryder, the United States Supreme Court found that
      the appointment of two of the three members of the Coast Guard Court of Military Review violated the
      Appointments Clause of Article II of the United States Constitution and that the actions of the two civilian
      judges were not valid de facto. 515 U.S. at 179. Accordingly, it reversed and remanded for a hearing before
      a properly appointed panel of that court. Id. at 188. Because Ryder was limited to constitutional challenges
      and this case involves a statutory challenge, id. at 182, Ryder does not apply to this case.

      Court of Appeals of Indiana | Opinion 43A03-1704-CR-856 | December 22, 2017                         Page 5 of 8
       by every official whose claim to office could be open to question, and seeks to

       protect the public by insuring the orderly functioning of the government despite

       technical defects in title to office.” Ryder, 515 U.S. at 180-81 (emphasis

       added, quotation omitted); see also 63C Am. Jur. 2d Public Officers and Employees

       § 23 (2009) (explaining that the de facto officer doctrine “give[s] legal effect to

       public acts done under the color of law by persons not officers de jure” and that

       the purpose of the doctrine is “to ensure the orderly administration of

       government by preventing technical challenges to an officer’s authority”

       (emphasis added, footnotes omitted)), § 237 (“[T]he mere failure to comply

       with a technical requirement does not void the official’s actions as to third

       parties and the public, the acts being valid in the interest of justice.” (emphasis

       added)). According to Indiana law, all that is required to make an officer de

       facto is that he (1) claim the office, (2) be in possession of it, and (3) perform its

       duties under the color of election or appointment. Carty v. State, 421 N.E.2d

       1151, 1154 (Ind. Ct. App. 1981) (holding that if a deputy is performing duties

       under the color of appointment to office, “he is a de facto officer although some

       infirmities may exist which prevent the appointment from being valid. As a de

       facto officer he is a ‘law enforcement officer’” for purposes of enhancing a

       defendant’s battery conviction to a Class D felony due to the victim being a law

       enforcement officer).


[10]   We find that Officer Reichard’s failure to take the statutory oath was a technical

       defect. Applying the three-prong test from Carty, Officer Reichard claimed the

       office when he accepted the job and began working as an officer with the

       Court of Appeals of Indiana | Opinion 43A03-1704-CR-856 | December 22, 2017   Page 6 of 8
Warsaw Police Department on November 9, 2014. From that date forward,

Officer Reichard possessed the office. He was assigned a uniform, handcuffs, a

handgun, ammunition, a taser, a fully marked patrol car, and badge number

161. And he openly performed the duties of an officer while being paid and

employed by the Warsaw Police Department with the approval and consent of

the chief of police. Accordingly, we conclude that he was acting as a de facto

officer when he stopped Fields on September 12, 2015. See 80 C.J.S. Sheriffs &

Constables § 38 (2010) (“[O]ne acting as deputy is a de facto officer

notwithstanding the person has failed to file the requisite oath . . . . A vital

element of de facto status of a deputy sheriff requires that the person be acting

pursuant to the control, approval and consent of the sheriff.” (footnotes

omitted)); 67 C.J.S. Officers § 461 (2012) (“One duly appointed or elected to an

office but who is in law disqualified to act, such as one who has failed to take

the required oath . . ., is at least a de facto officer in that his or her acts are valid

as to the public.” (footnotes omitted)).3 To conclude otherwise and to dismiss

the charges against Fields would run counter to the very purpose of the de facto

officer doctrine, which is to insure the orderly functioning of the government




3
  Fields cites only one case where a defendant was granted relief due to a police officer’s failure to take the
oath of office. See Holloway v. State, 342 So. 2d 966 (Fla. 1977). However, a requirement to applying the de
facto officer rule in Florida is that the State must show that an innocent party relied on the apparent authority
to his detriment. Id. at 968. Because the State did not make such a showing in Holloway, the Florida
Supreme Court concluded that the officer was not a de facto officer. Id. It does not appear that any other
jurisdictions have relied upon this case. See State v. Roark, 705 P.2d 1274, 1279 n.9 (Alaska Ct. App. 1985)
(acknowledging Holloway and stating, “an actual showing of detrimental reliance by innocent persons has not
generally been viewed as a prerequisite of the de facto officer doctrine.”).

Court of Appeals of Indiana | Opinion 43A03-1704-CR-856 | December 22, 2017                          Page 7 of 8
       despite technical defects in title to office. We therefore affirm the trial court’s

       denial of Fields’s motion to dismiss.


[11]   Affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 43A03-1704-CR-856 | December 22, 2017   Page 8 of 8
