MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                    Nov 21 2018, 10:05 am
regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Zachary J. Stock                                        Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C.                 Attorney General of Indiana
Indianapolis, Indiana
                                                        Justin F. Roebel
                                                        Supervising Deputy
                                                        Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stephen R. Sines,                                       November 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-958
        v.                                              Appeal from the Hendricks Circuit
                                                        Court
State of Indiana,                                       The Honorable Daniel F. Zielinski,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        32C01-1608-F2-9



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018                   Page 1 of 22
                               Case Summary and Issues
[1]   Following a jury trial, Stephen Ray Sines was convicted of dealing in

      methamphetamine, a Level 2 felony; possession of methamphetamine, a Level

      3 felony; unlawful possession of a syringe, a Level 6 felony; possession of

      marijuana, a Class B misdemeanor; and possession of paraphernalia, a Class C

      misdemeanor. The trial court sentenced him to an aggregate twenty-five-year

      sentence. Sines appeals, raising two issues for our review which we restate as:

      (1) whether the trial court abused its discretion in admitting certain evidence;

      and (2) whether a second trial violated prohibitions against double jeopardy.

      Concluding the trial court did not abuse its discretion in admitting certain

      evidence and a second trial did not violate prohibitions against double jeopardy,

      we affirm.



                            Facts and Procedural History
[2]   On August 1, 2016, around 3:45 a.m., Detective Dirk Fentz of the Brownsburg

      Police Department observed a vehicle speeding and fail to signal a turn.

      Detective Fentz conducted a traffic stop on the vehicle, which was driven by

      Iran Taylor and occupied by Sines in the passenger seat and Justin Martin on

      the rear driver’s side.


[3]   Detective Fentz spoke with Taylor through the driver’s side window and

      described him as “[q]uiet, nervous, you could see him sweating from his

      forehead. And his hands were shaking when he was giving me his driver’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 2 of 22
      license.” Transcript, Volume 3 at 81. Neither Sines nor Martin made eye

      contact with Detective Fentz as he approached the vehicle and they both “lit up

      cigarettes as soon as [he] basically initiated [his] lights[.]” Id.


[4]   Detective Fentz asked Taylor to join him in his police SUV. While Detective

      Fentz performed a records check through dispatch, Taylor continued to sweat,

      occasionally wiping the palms of his hands on his pant legs. Detective Fentz

      asked if “there was anything illegal in the vehicle[.]” Id. at 83. Taylor admitted

      there were three hypodermic needles that had been used for heroin and

      consented to a search of the vehicle. At the time of Taylor’s consent to search,

      Detective Fentz had completed one written warning for a traffic infraction and

      was halfway through a second. Three additional officers arrived and Detective

      Fentz instructed one of them to request a canine officer to come to the scene.

      The canine officer was requested thirty-three minutes after the initial traffic

      stop.


[5]   During this same time, officers also discovered that Martin was wanted on an

      outstanding arrest warrant. After Martin was removed from the vehicle and

      placed in handcuffs, he asked “if it was something to do with the warrant for his

      arrest” and explained he was the victim of identity theft. Id. at 87. Martin

      denied having any possessions in the vehicle and similarly consented to a

      search.


[6]   Detective Fentz explained to Sines that Taylor had admitted to the presence of

      syringes in the vehicle and that Taylor and Martin had both consented to a


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 3 of 22
      search. Sines exited the vehicle but refused a request to search a black leather

      bag and a camera box in the trunk, which he stated were his property.

      Detective Fentz began searching the passenger compartment of the vehicle and

      found “6 or 7 needles and small digital scale.” Id. at 92. The needles appeared

      “used” and “dirty.” Id. at 94. Detective Fentz then opened the vehicle’s trunk

      and Sines responded, “what are you doing, I don’t want you searching my

      property[.]” Id. at 95.


[7]   Detective Fentz removed a black leather bag and a camera box from the trunk,

      Sines confirmed they were his property, and Detective Fentz placed the items

      next to the rear passenger-side tire of the vehicle. Detective Fentz then noticed

      “two needles in [the trunk], one used and one broken needle underneath where

      [Sines’] property had been sitting.” Id. at 95. There were two plastic crates

      remaining in the trunk and Sines stated that one of the crates belonged to him.

      Detective Fentz placed Sines’ plastic crate with the rest of his property.


[8]   Around 4:30 a.m., forty-five minutes after the traffic stop was initiated, Officer

      Nathan Hibshman arrived on scene with his canine partner. Detective Fentz

      stated that at this point:


              I was still searching the trunk of the vehicle, there was [sic]
              numerous items, a lot of trash in the trunk so it took a while to
              search. When we search these cars, especially when we find
              needles, you kind of take your time because you don’t want to
              get stuck, so you are literally picking up things and moving things
              out of the way, not just grabbing things. Searches take a lot
              longer now than they used to because of the danger of the
              needles and things like that.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 4 of 22
       Id. at 101. Officer Hibshman conducted a canine sniff of Sines’ property that

       had been placed on the sidewalk. During the canine sniff, Sines informed

       officers there were syringes in his bag and the canine alerted on Sines’ black

       leather bag.


[9]    A search of Sines’ black leather bag revealed approximately 85 grams of

       methamphetamine, 18 grams of marijuana, an electronic scale, “hundreds if not

       a thousand little plastic bags[,]” two syringes, and other paraphernalia. Id. at

       113. The paraphernalia included a rubber arm tourniquet, pills, cotton balls,

       and a tin of small straws. An officer later testified the methamphetamine

       possessed a street value of $8,000 to $10,000 if sold by the gram.


[10]   Sines and Taylor were arrested following the search. According to Detective

       Fentz, officers had been attempting to corroborate Martin’s story of identity

       theft throughout the traffic stop:


               It had been back and forth. We believed that he was telling the
               truth. We were trying to get Marion County dispatchers to
               confirm whether this was valid or not, and eventually concluded
               that they couldn’t decide for sure if he should be arrested or not.
               So, at that time, once we completed everything, we were just
               going to set him free. We knew where he lived in town, so if we
               needed to go pick him back up we could.


       Tr., Vol. 2 at 25. Martin was released from the scene while Taylor and Sines

       were transported to the jail.


[11]   On August 1, 2016, the State charged Sines with dealing in methamphetamine,

       a Level 2 felony; possession of methamphetamine, a Level 3 felony; unlawful
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 5 of 22
       possession of a syringe, a Level 6 felony; possession of marijuana, a Class B

       misdemeanor; and possession of paraphernalia, a Class C misdemeanor. On

       September 7, 2017, Sines filed a motion to suppress the evidence obtained from

       the search, arguing the length of the seizure violated his constitutional rights.

       The trial court conducted a suppression hearing on November 6 and took the

       motion under advisement.


[12]   A jury trial commenced the next day, November 7. During cross-examination

       of Detective Fentz, defense counsel asked if he ever personally observed Sines

       with the contraband and whether Sines ever admitted that the contraband, as

       opposed to the containers in which the contraband items were found, was his.

       Defense counsel also asked if Detective Fentz was aware of Sine’s poor eyesight

       or the fact that he did not have his glasses on during the traffic stop.


[13]   After the trial had concluded for the day, the State sent defense counsel the

       following email:


               I had not intention [sic] to introduce this evidence in my case in
               chief (nor do I still at this point) but I want to make you aware
               that there are several jail calls that may become pertinent as
               rebuttal/impeachment evidence. Sines has made several calls
               where he admits that the bags were his, the black leather bag and
               the camera case. Should he testify contrary to that, I do intend to
               introduce the portions of those jails [sic] calls where he made
               those statements as rebuttal/impeachment. There are also
               several calls where he indicates that his plan is to get the other
               occupants of the vehicle on the jail calls and have them say it was
               their bag because he knows the calls are recorded and then he can
               create reasonable doubt by using those calls.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 6 of 22
               In addition to the rebuttal value of these calls, they also put you
               on notice that you cannot intentionally present perjured
               testimony to the jury if you plan to have Sines testify that the
               bags [sic] were not his.


               I am happy to play the calls for you.


       Defense Exhibit A.


[14]   At the beginning of the second day of trial, defense counsel informed the trial

       court of the State’s email and requested a mistrial, explaining that the existence

       of the evidence “may have changed my entire defense.” Tr., Vol. 2 at 206.

       Defense counsel also requested that the trial court prohibit the State from

       retrying the case, claiming a retrial would violate constitutional double jeopardy

       protections.


[15]   The State responded that it did not commit a discovery violation because,

       pursuant to a prior court order, the defense was ordered to disclose all defense

       theories and the State had not been provided any defense theory whatsoever.

       Moreover, the State argued that every pretrial deposition indicated that Sines

       stated the bag was his and the State


               had absolutely no anticipation that he was going to suddenly say
               that these were not his bags, and the only way I found out that he
               was going to say this is during cross examination of . . . Detective
               Fentz. So, what I did is I immediately went back and the first
               thing I did . . . when I got back . . . I sent [defense counsel] an e-
               mail to let him know that I knew about this information.


       Id. at 207-08.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 7 of 22
[16]   After hearing argument on Sines’ motion for a mistrial, the trial court

       concluded:


               The fault of this is completely on [Sines]. If this goes to trial
               again, I’m going to grant a mistrial, but I want the record to be
               clear it is not because the State did anything unethical or
               anything like that, but to preserve the record and to not have to
               come back here in six months for another trial, I’m going to grant
               a mistrial. If this case goes to trial again, there will not be
               another mistrial, because the defendant is lying to his attorney.


               ***


               I want to make it very very clear . . . that my decision is not
               based on the conduct of the Prosecutor’s office. It’s based on the
               conduct of [Sines] who put his own self in jeopardy. And
               anyway, if this goes to trial again, if he’s found guilty, he’s
               paying the cost of this jury and the next jury. One more time,
               this is not a reflection in any way on the Officer, on any of the
               witnesses, on the Prosecutor’s [sic] and the Prosecutor’s Office.
               This is a direct reflection on [Sines] who lied to two court
               appointed attorneys. . . . He had two finest attorneys, defense
               attorneys, in the State. [State] make your record, but I want you
               to know this is not a reflection on your office or your ability.
               This is something that I think constitutionally I have to do. If I
               don’t do, this is going to go to the Court of Appeals, then it’s
               going to go to the Supreme Court, and then it’s going to come
               back here.


       Id. at 212-13.


[17]   A second trial was conducted in February 2018. During the trial, Sines

       renewed the pre-trial suppression motion and lodged a continuing objection to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 8 of 22
       the admission of the disputed evidence obtained as the result of the search. The

       trial court overruled the objection and concluded the search occurred “in a

       reasonable amount of time” based on the officer’s conduct. Tr., Vol. 3 at 112.

       The State also played excerpts from several of Sines’ jail calls, including the

       following admission:


               When the uh cop approached the vehicle he asked me about you
               know did I have anything in the vehicle, I told him yes. I told
               him I had a black bag uh uh a black uh uh briefcase type uh uh
               [inaudible] and a brown camera case but uh I had I got from
               somebody and um that was it.


       Tr., Vol. 4 at 142.


[18]   The jury found Sines guilty as charged and the trial court merged Sines’

       conviction of possession of methamphetamine, a Level 3 felony, into his

       conviction of dealing in methamphetamine, a Level 2 felony, and sentenced

       Sines to twenty-five years executed in the Indiana Department of Correction for

       dealing in methamphetamine with concurrent sentences on the remaining

       counts. Sines now appeals.



                                 Discussion and Decision




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 9 of 22
                                      I. Admission of Evidence
[19]   Sines first claims the trial court erroneously admitted evidence in violation of

       the Fourth Amendment to the United States Constitution. 1 We disagree.


                                             A. Standard of Review
[20]   Although Sines presented a pretrial motion to suppress, he did not seek

       interlocutory review of that decision. Thus, we consider his appeal as a review

       of the trial court’s decision to admit evidence at trial. Clark v. State, 994 N.E.2d

       252, 259 (Ind. 2013) (“Direct review of the denial of a motion to suppress is

       only proper when the defendant files an interlocutory appeal.”).


[21]            In ruling on admissibility following the denial of a motion to
                suppress, the trial court considers the foundational evidence
                presented at trial. It also considers the evidence from the
                suppression hearing that is favorable to the defendant only to the
                extent it is uncontradicted at trial. Because the trial court is best
                able to weigh the evidence and assess witness credibility, we
                review its rulings on admissibility for abuse of discretion and
                reverse only if a ruling is clearly against the logic and effect of the
                facts and circumstances and the error affects a party’s substantial




       1
         Although Sines objected at trial on the basis of both the Fourth Amendment to the United States
       Constitution and Article 1, Section 11 of the Indiana Constitution, and he similarly frames the issue on
       appeal, Sines’ arguments focus only on the Fourth Amendment and, with the exception of several citations to
       Article 1, Section 11, he does not provide a separate Litchfield analysis for our review. See Litchfield v. State,
       824 N.E.2d 356, 361 (Ind. 2005) (reasonableness of a search or seizure under the Indiana Constitution turns
       on a balance of three factors: “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”). Accordingly, we apply only a Fourth Amendment
       analysis here. See Williams v. State, 724 N.E.2d 1093, 1097 n.5 (Ind. 2000) (concluding state constitutional
       claim was waived where the appellant failed to provide “independent analysis supporting a separate standard
       under the state constitution”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018                    Page 10 of 22
               rights. But the ultimate determination of the constitutionality of
               a search or seizure is a question of law that we consider de novo.


       Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (citations and quotations

       omitted). Furthermore, we “may affirm the trial court’s ruling if it is

       sustainable on any legal basis in the record, even though it was not the reason

       enunciated by the trial court.” Harris v. State, 19 N.E.3d 298, 301 (Ind. Ct. App.

       2014), trans. denied.


                                          B. Search and Seizure
[22]   The Fourth Amendment to the United States Constitution 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.


       This protection is extended to the States via the incorporation doctrine of the

       Fourteenth Amendment. Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013).

       Under the Fourth Amendment, warrantless searches and seizures are per se

       unreasonable, subject to a “few specifically established and well-delineated

       exceptions.” Katz v. U.S., 389 U.S. 347, 357 (1967). The State bears the burden

       of proving that an exception to the warrant requirement exists at the time of the

       search or seizure. Doctor v. State, 57 N.E.3d 846, 853 (Ind. Ct. App. 2016). “A

       traffic stop is considered to be a seizure under the Fourth Amendment.” Id.

       Where, as here, the defendant was a passenger in a vehicle subject to a traffic
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 11 of 22
       stop, the passenger may challenge any part of the traffic stop because they are

       seized when the driver is seized. Brendlin v. California, 551 U.S. 249, 255 (2007).


[23]   Sines does not dispute the propriety of the underlying traffic stop; rather, he

       argues that his seizure was unconstitutionally prolonged when officers

       conducted a canine sniff of his property. Indeed, “a seizure that is lawful at its

       inception can violate the Fourth Amendment if its manner of execution

       unreasonably infringes interests protected by the Constitution.” Illinois v.

       Caballes, 543 U.S. 405, 407 (2005). And, although a dog sniff is not a search

       protected by the Fourth Amendment, id. at 409, “[w]here a car is searched and

       contraband is discovered after a dog sniff of the vehicle, discovery of the

       contraband may be the product of an unconstitutional seizure if the sniff

       occurred during an unreasonably prolonged traffic stop.” Wells v. State, 922

       N.E.2d 697, 700 (Ind. Ct. App. 2010), trans. denied.


[24]   In Rodriguez v. U.S., the Supreme Court explained the tolerable duration of a

       seizure is dictated by the seizure’s particular “mission.” 135 S.Ct. 1609, 1611

       (2015). In the context of a traffic stop, an officer’s mission is to address the

       underlying traffic violations that warranted the stop and attend to related safety

       concerns. Id. This includes checking the driver’s license, determining whether

       there are outstanding warrants against the driver, and inspecting the vehicle’s

       registration and proof of insurance. Id. at 1615. While “[t]hese checks serve the

       same objective as enforcement of the traffic code: ensuring that vehicles on the

       road are operated safely and responsibly[,]” a canine sniff, “by contrast, is a

       measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing.’” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 12 of 22
       (quoting Indianapolis v. Edmond, 531 U.S. 32, 40-41 (2000)). The Court

       reiterated its holding in Caballes, that a traffic stop “prolonged beyond” the

       “time reasonably required to complete [the stop’s] mission” is “unlawful.” Id.

       at 1616 (quoting Caballes, 543 U.S. at 407). And the Court went on to explain:


               The critical question, then, is not whether the dog sniff occurs
               before or after the officer issues a ticket, . . . but whether
               conducting the sniff prolongs—i.e., adds time to—the stop.


       Id. (quotations omitted).


[25]   Relying primarily on the forty-five-minute period between the initial traffic stop

       and the arrival of the canine officer, Sines argues the tasks related to the traffic

       stop should have been completed “well before the [canine] unit arrived[,]” and

       the traffic stop was therefore “unreasonably prolonged and ultimately

       unconstitutional.” Appellant’s Brief at 11.


[26]   The initial facts of this traffic stop are analogous to those of Graham v. State, 971

       N.E.2d 713 (Ind. Ct. App. 2012), trans. denied. There, as an officer prepared the

       defendant a traffic citation, the officer asked the defendant if there were any

       weapons or drugs in the vehicle and the defendant admitted to the possession of

       illegal substances. On appeal, the defendant argued the time of the traffic

       stop—fifty-eight minutes—was “unreasonably prolonged prior to the officer

       inquiring about the presence of weapons or guns.” Id. at 717. We disagreed

       and concluded that when the defendant revealed his possession of illegal




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 13 of 22
       substances, “the nature of the stop went from that of a simple traffic stop to a

       detention based on criminal activity[.]” Id.


[27]   Similarly here, Detective Fentz asked Taylor about the presence of drugs prior

       to completing the second traffic warning and Taylor admitted there were three

       syringes that had been used for heroin in the vehicle. Taylor’s admission

       thereby transformed the traffic stop into a detention based on criminal activity

       and officers developed probable cause to search the vehicle pursuant to the

       automobile exception. See Carroll v. U.S., 267 U.S. 132, 159 (1925) (holding a

       warrantless search of a vehicle is permissible under the automobile exception to

       the Fourth Amendment where police possess probable cause). Unlike Graham,

       however, Taylor also consented to a search of the vehicle. This provided

       officers with a second, independent exception to the warrant requirement.

       Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (holding a warrantless

       search based on lawful consent is consistent with the Fourth Amendment).

       Officers instructed Sines to exit the vehicle and Detective Fentz found syringes

       in a bag retrieved from the backseat. Detective Fentz then continued his search

       of the vehicle and located Sines’ property in the trunk. Sines identified his

       property but declined consent to search.


[28]   In light of the two, independent exceptions to the warrant requirement at issue

       here, we pause briefly to emphasize their divergence regarding the property of a

       third person. We begin with the automobile exception as discussed in Wyoming

       v. Houghton, 526 U.S. 295, 297 (1999). There, during a traffic stop for a driving

       infraction, an officer noticed a syringe in the driver’s pocket and the driver

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 14 of 22
       admitted that he used the syringe for illegal drugs. Id. at 298. The officer then

       ordered the driver and two female passengers out of the car and conducted a

       probable cause search of the car for contraband under the automobile

       exception. Id. The officer found a purse on the back seat, searched it, and

       discovered drug paraphernalia and methamphetamine. Id. One of the vehicle’s

       passengers, Houghton, admitted the purse belonged to her and Houghton later

       challenged the search on Fourth Amendment grounds.


[29]   In upholding the search of the passenger’s purse, the Supreme Court declined to

       distinguish between a passenger’s belongings and the driver’s belongings even

       though the officer’s suspicion of the driver’s criminal conduct was the basis of

       the search. Id. at 302-06. The Court held, “officers with probable cause to

       search a car may inspect passengers’ belongings found in the car that are

       capable of concealing the object of the search.” Id. at 307. The Court premised

       its decision based upon the scope of warrantless search principles articulated in

       United States v. Ross, 456 U.S. 798, 825 (1982) (holding, “If probable cause

       justifies the search of a lawfully stopped vehicle, it justifies the search of every

       part of the vehicle and its contents that may conceal the object of the search.”).

       Id. at 302.


[30]   Shortly after Houghton, this court explained that a driver’s consent to search a

       vehicle does not extend to the property of third persons within the vehicle,

       absent an objectively reasonable basis to believe the driver had the authority to

       consent to a search of the third person’s property. State v. Friedel, 714 N.E.2d

       1231, 1240 (Ind. Ct. App. 1999). In Friedel, the driver of the vehicle consented

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 15 of 22
       to a search while accompanied by several passengers. As in Houghton, officers

       found a purse, searched it, and discovered methamphetamine. Id. at 1235. We

       held the search violated the Fourth Amendment because the driver’s consent

       did not provide a valid consent to search the property of a third party and it was

       “unreasonable for the officers to conclude that it did.” Id. at 1243.


[31]   Applying Houghton and Friedel to facts presented here, because Sines’ property

       was “capable of concealing the object of the search[,]” Houghton, 526 U.S. at

       307—i.e., narcotics, syringes, and related paraphernalia—Sines’ professed

       ownership of the property and his refusal to consent to a search was immaterial.

       Put another way, the property was subject to the search of Taylor’s vehicle

       regardless of whether it belonged to a third party. Therefore, officers did not

       conclude their search of Taylor’s vehicle under the automobile exception until

       they searched Sines’ property and the fact that officers chose to take the

       additional step of obtaining a canine sniff served only to further protect Sines’

       Fourth Amendment rights—not infringe upon them.


[32]   Furthermore, because officers discovered syringes underneath Sines’ property in

       the trunk, even if we were to assume officers lacked probable cause and the

       search was based solely on Taylor’s consent, Sines’ argument would still fail.

       This discovery provided officers with reasonable suspicion specific to Sines, and

       officers were thereby permitted to prolong the traffic stop and obtain a canine

       sniff. Rodriguez, 135 S.Ct. at 1615 (officers may prolong traffic stop so long as

       “reasonable suspicion ordinarily demanded to justify detaining an individual” is

       present).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 16 of 22
[33]   Although it is true we must consider “whether the police diligently pursued a

       means of investigation that was likely to confirm or dispel their suspicions

       quickly,” U.S. v. Sharpe, 470 U.S. 675, 686 (1985), the record reflects the canine

       sniff did not, in fact, prolong the traffic stop. At the point the canine officer

       arrived on scene, Detective Fentz testified he was still searching the trunk of the

       vehicle because there were a lot of items and trash in the trunk to carefully look

       through due to the possible presence of needles. See Tr., Vol. 3 at 101. Officers

       were also still attempting to corroborate Martin’s story that he was the victim of

       identity theft and that his warrant was issued in error.


[34]   In light of the confusion regarding Martin’s warrant and the presence of

       multiple syringes requiring officers to conduct a slower, more methodical search

       of the vehicle due to officer safety concerns, we cannot conclude that officers

       acted unreasonably. Therefore, the trial court’s finding that the search occurred

       “in a reasonable amount of time[,]” tr., vol. 3 at 112, was not clearly erroneous.

       And, as neither Sines’ seizure nor the subsequent search of his property violated

       the Fourth Amendment, we cannot conclude the trial court abused its

       discretion in admitting the fruits thereof.


                                        II. Double Jeopardy
[35]   Next, Sines argues his second trial violated constitutional prohibitions on

       double jeopardy because the State “knowingly or intentionally caused the

       defense to seek the early termination of the first trial.” Appellant’s Br. at 14.

       Again, we disagree.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 17 of 22
                                         A. Standard of Review
[36]   Both the United States and Indiana Constitutions forbid the State from placing

       a person twice in jeopardy. U.S. Const. amend. V; Ind. Const. Art. 1, § 14.

       Indiana Code section 35-41-4-3 elaborates on this provision, in relevant part:


               (a) A prosecution is barred if there was a former prosecution of
               the defendant based on the same facts and for commission of the
               same offense and if:


                       ***


                   (2) the former prosecution was terminated after the jury was
                       impaneled and sworn . . . unless (i) the defendant
                       consented to the termination or waived, by motion to
                       dismiss or otherwise, his right to object to the termination,
                       (ii) it was physically impossible to proceed with the trial in
                       conformity with law, (iii) there was a legal defect in the
                       proceedings that would make any judgment entered upon
                       a verdict reversible as a matter of law, (iv) prejudicial
                       conduct, in or outside the courtroom, made it impossible
                       to proceed with the trial without injustice to either the
                       defendant or the state, (v) the jury was unable to agree on
                       a verdict, or (vi) false statements of a juror on voir dire
                       prevented a fair trial.


               (b) If the prosecuting authority brought about any of the
               circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of this
               section, with intent to cause termination of the trial, another
               prosecution is barred.


       Therefore, if a defendant moves for a mistrial, he forfeits any double jeopardy

       claim unless “the motion for mistrial was necessitated by governmental conduct

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 18 of 22
       intended to goad the defendant into moving for a mistrial.” Willoughby v. State,

       660 N.E.2d 570, 576 (Ind. 1996) (quotations omitted). If the prosecutor acted

       with the requisite intent, then double jeopardy bars a retrial. Wilson v. State, 697

       N.E.2d 466, 472 (Ind. 1998). Although a trial court’s determination of

       prosecutorial intent is not conclusive for purposes of appellate review, we

       regard its determination as “very persuasive.” Id. at 473. This is a factual

       determination that we review under a clearly erroneous standard. Butler v. State,

       724 N.E.2d 600, 604 (Ind. 2000).


                                                    B. Retrial
[37]   On appeal, Sines argues the State’s late disclosure of incriminating evidence

       presented him with a Hobson’s choice: either proceed with the trial contesting

       ownership of the bag—a theory rendered “problematic if not completely

       untenable” by the State’s disclosure—or request a mistrial in which case the

       State would be able to retry him for the offense. Appellant’s Br. at 16. Thus,

       Sines argues the State “commandeered at least one aspect of the defense[,]” id.,

       and the trial court’s finding was therefore clearly erroneous.


[38]   As an initial matter, Sines fails to establish the State’s late disclosure of

       evidence was improper. At trial, Sines repeatedly argued the State’s late

       disclosure constituted a discovery violation. See Tr., Vol. 2 at 200-01. And on

       appeal, Sines’ argument simply assumes the State was required to turn over the

       evidence without citation to discovery requests or orders in the record. See Ind.

       Appellate Rule 46(A)(8) (providing that the argument section of the appellant’s


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 19 of 22
       brief must “contain the contentions of the appellant on the issues presented,

       supported by cogent reasoning[,]” along with citations to the authorities,

       statutes, and parts of the record relied upon, and a clear showing of how the

       issues and contentions in support thereof relate to the particular facts under

       review). Although Sines has failed to demonstrate the State committed a

       discovery violation,2 the disclosure’s effect on the defense was clear and a

       mistrial was therefore an appropriate remedy. See Coleman v. State, 750 N.E.2d

       370, 374 (Ind. 2001) (noting the overriding concern is whether the defendant

       was so prejudiced that he was placed in a “position of grave peril” to which he

       or she should not have been subjected).


[39]   Sines presents several circumstantial arguments aimed at showing the State

       intended to “goad” him into requesting a mistrial. Sines begins by detailing the

       defense’s theory of the case, which he claims had become evident to the State

       through the content of his opening statement as well as defense counsel’s cross-

       examination of Detective Fentz. Sines then contends the State’s disclosure was

       intended to derail this theory, rhetorically asking, “Why else would [the State]

       send the email?” Appellant’s Br. at 16. And, as evidence a retrial was the

       State’s desired outcome, Sines points to the fact that the State did not oppose

       his request for a mistrial, as the State had only requested that the trial court find

       that “[j]eopardy is not attached.” Tr., Vol. 2 at 216. Sines further argues,



       2
         With that said, we also take this opportunity to remind counsel—both prosecutors and defense attorneys—
       that the Indiana Trial Rules “are designed to allow liberal discovery.” Beville v. State, 71 N.E.3d 13, 18 (Ind.
       2017) (quotations omitted). Thus, when in doubt, counsel should err on the side of disclosure.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018                   Page 20 of 22
       “[o]ne might infer from this that the [State] was pleased to get a second

       chance.” Appellant’s Br. at 17.


[40]   Contrary to Sines’ contention, however, we do not view defense counsel’s

       opening argument to have put the State on notice of the theory of Sines’

       defense. Defense counsel merely argued the State lacked fingerprints, video

       records, or DNA evidence to prove Sines owned the property. Therefore, the

       State may have reasonably viewed defense counsel’s opening statement as

       nothing more than highlighting reasonable doubt. This is especially true

       considering pretrial discovery indicated Sines would not contest his initial

       declaration of ownership of the property. Despite a court order that the defense

       turn over all defense theories, it had failed to do so, and several depositions had

       confirmed Sines’ professed ownership of the property.


[41]   As the State argued before the trial court, it had “absolutely no anticipation that

       [Sines] was going to suddenly say that these were not his bags[.]” Tr., Vol. 2 at

       207. It was only after defense counsel’s cross-examination of Detective Fentz

       that the State became aware of the new defense theory and it promptly notified

       the defense of Sines’ incriminating statements by email. Indeed, as our

       supreme court has explained, the “very nature of a trial gives rise to the

       likelihood that issues will be raised during the primary phase which the State

       could not logically anticipate.” Smith v. State, 553 N.E.2d 832, 835 (Ind. 1990).


[42]   We also disagree with Sines’ argument that the State’s failure to object to his

       motion for a mistrial inferred a mistrial was the State’s desired outcome.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 21 of 22
       Although this inference is often reasonable—if not obvious—from the record,

       we believe the State’s actions demonstrated prudence by promptly disclosing

       the phone calls after Sines’ possession of the property was placed at issue.

       Furthermore, we view the State’s subsequent failure to object as nothing more

       than a candid recognition of the effect on the defense.


[43]   The trial court found a mistrial was warranted by “the conduct of [Sines] who

       put his own self in jeopardy.” Tr., Vol. 2 at 212. In the absence of compelling

       argument to the contrary and mindful that the trial court’s determination of

       prosecutorial intent is “very persuasive[,]” Wilson, 697 N.E.2d at 473, we

       conclude the trial court’s finding is not clearly erroneous. Therefore, a second

       trial did not violate constitutional prohibitions against double jeopardy.



                                              Conclusion
[44]   For the reasons set forth above, we conclude the trial court did not abuse its

       discretion in admitting certain evidence and a second trial did not violate

       prohibitions against double jeopardy. Accordingly, we affirm.


[45]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-958 | November 21, 2018   Page 22 of 22
