Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

GREGORY T. LAUER                                 GREGORY F. ZOELLER
Lauer and Lauer                                  Attorney General of Indiana
Martinsville, Indiana
                                                 JODI KATHRYN STEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                          Oct 02 2012, 9:22 am
                              IN THE
                                                                                  CLERK
                    COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




LORA L. KARR,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 55A01-1112-CR-591
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


        INTERLOCUTORY APPEAL FROM THE MORGAN SUPERIOR COURT
                    The Honorable G. Thomas Gray, Judge
                      Cause No. 55D01-1102-CM-217



                                      October 2, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BRADFORD, Judge
       Appellant-Defendant Lora L. Karr appeals from the trial court’s denial of her

pretrial motion to suppress, contending that certain evidence was obtained as the result of

an unconstitutional seizure. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On February 25, 2011, Mooresville Police Officer Benjamin Goodin received a

dispatch regarding a Maroon GMC Sonoma with a license plate numbered 1283 driving

erratically Southbound on State Road 67. The civilian who placed the initial 911 call

reported a few moments later that the vehicle was driving on the shoulder. Officer

Goodin located the Sonoma in question by instructing the 911 caller, who was following

it, to activate her hazard lights.

       Officer Goodin pulled in behind the Sonoma and followed it for approximately

one quarter mile but did not witness any traffic violations or other reasons to pull it over

before it turned South on Interurban Lane. Interurban Lane is a gravel drive that leads

back to two or three homes, and the Sonoma parked in the driveway of one of them with

its license plate facing the garage door. Officer Goodin, who never activated his lights or

siren, parked in a large open gravel area to the Northwest of the driveway, “off to the side

out of the way essentially” and approximately eight to ten steps away from the Sonoma.

Tr. p. 7. When Karr, the driver of the Sonoma, emerged, Officer Goodin approached

“and just asked her how things were going just to strike up a conversation.” Tr. p. 7.

Upon first contact, Officer Goodin could smell the odor of alcoholic beverages on Karr’s

breath and noticed that her speech was slurred, her eyes were bloodshot, her eyelids were

                                             2
“droopy,” and she was swaying while standing still. Tr. p. 9. Officer Goodin continued

his investigation of Karr.

         On February 28, 2011, the State charged Karr with Class A misdemeanor

operating a vehicle while intoxicated endangering a person1 and Class C misdemeanor

operating a vehicle with an alcohol concentration equivalent of 0.08 or greater.2 On

September 26, 2011, Karr filed a motion to suppress any evidence gathered following the

encounter between Officer Goodin and herself. On October 20, 2011, the trial court

denied Karr’s motion to suppress. On November 22, 2011, the trial court granted Karr’s

request for certification for interlocutory appeal.      On February 2, 2012, this court

accepted jurisdiction.

                                   DISCUSSION AND DECISION

                          Whether the Trial Court Abused its Discretion
                             in Denying Karr’s Motion to Suppress

         We review the denial of a motion to suppress “in a manner similar to other

sufficiency matters. We do not reweigh the evidence, and we consider conflicting

evidence most favorable to the ruling. Unlike typical sufficiency reviews, however, we

will consider not only the evidence favorable to the ruling but also the uncontested

evidence favorable to the defendant.” Gunn v. State, 956 N.E.2d 136, 138 (Ind. Ct. App.

2011).


         1
             Ind. Code § 9-30-5-2 (2010).
         2
             Ind. Code § 9-30-5-1(a) (2010).

                                               3
                                  A. Fourth Amendment

       The Fourth Amendment to the United States Constitution provides that “[t]he 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 overriding function of

the Fourth Amendment is to protect personal privacy and dignity against unwarranted

intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767 (1966). “In Wolf [v.

People of State of Colorado, 338 U.S. 25, 27 (1949) (overruled on other grounds by

Mapp v. Ohio, 367 U.S. 643 (1961)] we recognized ‘(t)he security of one’s privacy

against arbitrary intrusion by the police’ as being ‘at the core of the Fourth Amendment’

and ‘basic to a free society.’” Id.

       [T]here are three levels of police investigation, two which implicate the
       Fourth Amendment and one which does not. First, the Fourth Amendment
       requires that an arrest or detention for more than a short period be justified
       by probable cause. Woods v. State, 547 N.E.2d 772, 778 (Ind. 1989).
       Probable cause to arrest exists where the facts and circumstances within the
       knowledge of the officers are sufficient to warrant a belief by a person of
       reasonable caution that an offense has been committed and that the person
       to be arrested has committed it. Brinegar v. United States, 338 U.S. 160,
       175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). Second, it is well-settled
       Fourth Amendment jurisprudence that police may, without a warrant or
       probable cause, briefly detain an individual for investigatory purposes if,
       based on specific and articulable facts, the officer has a reasonable
       suspicion that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1,
       27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Accordingly, limited
       investigatory stops and seizures on the street involving a brief question or
       two and a possible frisk for weapons can be justified by mere reasonable
       suspicion. Woods, 547 N.E.2d at 778. Finally, the third level of

                                             4
        investigation occurs when a law enforcement officer makes a casual and
        brief inquiry of a citizen which involves neither an arrest nor a stop. In this
        type of “consensual encounter” no Fourth Amendment interest is
        implicated. See Molino v. State, 546 N.E.2d 1216, 1218 (Ind. 1989) (citing
        Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S. Ct. 308, 83 L. Ed. 2d 165
        (1984)).

Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans. denied.

        Karr does not dispute that the interaction between Officer Goodin and herself

began as a consensual encounter. Karr, however, citing to another panel of this court’s

decision in State v. Atkins, 834 N.E.2d 1028 (Ind. Ct. App. 2005), trans. denied, contends

that Officer Goodin had no right to initiate even a consensual encounter on her private

property without probable cause. The holding in Atkins, however, has no applicability to

consensual encounters. At most, Atkins stands for the proposition that police must have

probable cause to perform a Terry stop of a person on his or her private property. Id. at

1032. Karr’s reliance on Atkins is unavailing. The trial court did not err in rejecting

Karr’s Fourth Amendment argument.3

                                       B. Article I, Section 11


        3
           If we had been required to address the nature of the initial encounter here, we would have
concluded that it was consensual. The facts of this case are very similar to those addressed in State v.
Augustine, 851 N.E.2d 1022 (Ind. Ct. App. 2006). In that case, a police officer received a report of erratic
driving, and, although not witnessing any erratic driving personally, was able to locate Augustine’s
residence from the license plate number given by the tipster. Id. at 1024. When the officer arrived at the
address, he found a vehicle in the driveway with the motor running and Augustine in the driver’s seat. Id.
When the officer approached, Augustine rolled the window down and spoke with the officer, who noticed
the heavy odor of alcoholic beverage and Augustine’s inability to speak clearly. Id. at 1024-25. We held
that the encounter to that point was consensual, noting that “[a]t that time, no other officers were present,
there is no evidence that the officer on the scene displayed a weapon or touched Augustine, and there is
no indication that the officer used any language or spoke in a tone of voice mandating compliance.” Id. at
1026. The facts of Augustine and this case are similar enough that we would see no reason to depart from
its holding or analysis on this point.
                                                     5
      Article I, Section 11, of the Indiana Constitution provides that

      [t]he right of the people to be secure in their persons, houses, papers, and
      effects, against unreasonable search or seizure, shall not be violated; and no
      warrant shall issue, but upon probable cause, supported by oath or
      affirmation, and particularly describing the place to be searched, and the
      person or thing to be seized.

      The Indiana Supreme Court has noted that

      [w]hile almost identical in wording to the federal Fourth Amendment, the
      Indiana Constitution’s Search and Seizure clause is given an independent
      interpretation and application. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.
      2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999); Moran v.
      State, 644 N.E.2d 536, 540 (Ind. 1994). 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) (citing
      Moran, 644 N.E.2d at 539). “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).

      The degree of concern that Karr might have been driving impaired was reasonably

high. A concerned citizen reported erratic driving and then that Karr’s Sonoma was


                                            6
driving on the shoulder a few moments later.           Although Officer Goodin did not

personally witness any erratic driving by Karr, he only followed her for approximately

one quarter mile before she stopped.       Moreover, nothing occurred that would have

dispelled any concern generated by the citizen’s reports of erratic driving.

       Officer Goodin’s intrusion on Karr’s activities was minimal.            As previously

mentioned, Karr does not dispute that the encounter was initially consensual. Officer

Goodin parked in such a way as not to block Karr’s vehicle, activated neither his lights

nor siren, never pulled his weapon, never touched Karr, and never ordered Karr to stop.

There is no indication that Officer Goodin’s tone or manner was intimidating. It seems

that Officer Goodin simply walked up to Karr and began conversing with her in her

driveway, at which point he noticed signs of possible intoxication.

       The needs of law enforcement were reasonably high, even though Karr was no

longer on the road when Officer Goodin approached her. Indiana has an obvious interest

in the prevention and detection of and punishment for impaired driving. This Court has

previously recognized that “‘the threat to public safety posed by a person driving under

the influence of alcohol is as great as the threat posed by a person illegally concealing a

gun.’” State v. McCaa, 963 N.E.2d 24, 34 (Ind. Ct. App. 2012) (quoting State v. Superior

Court In & For Cochise Cnty., 149 Ariz. 269, 718 P.2d 171, 176 (1986)), trans. denied.

In any event, had Officer Goodin simply left, Karr could have reentered her vehicle and

continued to drive, possibly endangering the public. We have little trouble concluding

that, in light of the reasonably high degree of suspicion, low degree of intrusion, and

                                             7
reasonably high degree of law enforcement need, Officer Goodin’s actions were

reasonable pursuant to Article I, Section 11. The trial court did not err in concluding that

Officer Goodin’s actions did not violate the Indiana Constitution.

       We affirm the judgment of the trial court.

ROBB, C.J., and BAKER, J., concur.




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