                                                         Apr 23 2013, 9:27 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

PETER D. TODD                                 GREGORY F. ZOELLER
Elkhart, Indiana                              Attorney General of Indiana

                                              JAMES B. MARTIN
                                              Deputy Attorney General
                                              Indianapolis, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

JOANNA S. ROBINSON,                           )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 20A04-1209-CR-561
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable Charles Carter Wicks, Judge
                            Cause No. 20D05-1110-CM-507


                                    April 23, 2013


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       A sheriff’s deputy observed Joanna S. Robinson briefly drive onto the fog line twice.

The deputy decided to stop Robinson for “unsafe lane movement.” Tr. at 24. Based on

evidence obtained from this stop, Robinson was convicted of operating while intoxicated and

possession of marijuana. On appeal, Robinson challenges the admission of the evidence

obtained from the stop, which she had sought unsuccessfully to exclude from trial on the

basis that the traffic stop was not supported by reasonable suspicion. The State argues that

the deputy had reasonable suspicion that she was impaired. We conclude that Robinson’s

brief contact with the fog line – at night on a road with some curves – was not sufficient to

establish reasonable suspicion that Robinson was impaired. Therefore, the evidence obtained

from the stop should not have been admitted, and Robinson’s convictions must be reversed.

                               Facts and Procedural History

       Casey Claeys, a deputy with the Elkhart County Sheriff’s Department, worked third

shift on October 15, 2011. Around 1:00 a.m., he began following a PT Cruiser on County

Road 4. According to Deputy Claeys, he saw “the PT Cruiser drive off the right side, which

was the south side of the road, twice.” Id. Deputy Claeys decided to initiate a traffic stop for

“unsafe lane movement.” Id.

       Robinson was driving the PT Cruiser. Deputy Claeys noticed that she had glossy,

bloodshot eyes, slurred speech, and the odor of alcohol on her breath. Robinson admitted to

having drunk one beer, and she failed three field sobriety tests. Without being prompted,

Robinson told Deputy Claeys that she had marijuana in her bra, which she shook out onto the


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roadway. Deputy Claeys transported Robinson to the jail, where a certified breath test was

administered. The test indicated that Robinson had .09 grams of alcohol per 210 liters of

breath.

          Robinson was charged with operating a vehicle with a suspended license, a class A

misdemeanor; possession of marijuana, a class A misdemeanor; operating a vehicle while

intoxicated, a class A misdemeanor; and operating a vehicle with an alcohol concentration of

at least .08 grams per 210 liters of breath, a class C misdemeanor. Robinson filed a motion to

suppress the evidence obtained from the traffic stop. The motion asserted that the video from

Deputy Claeys’s vehicle showed that she stayed within her lane and that he therefore lacked

reasonable suspicion to conduct a traffic stop.

          On July 6, 2012, the trial court held a combined bench trial and hearing on the motion

to suppress. Deputy Claeys was the only witness. Deputy Claeys testified that the road had a

center line and a white fog line along the outer edge of the road. He asserted that both of the

passenger-side tires of Robinson’s vehicle “were over the fog line … [c]ompletely off the

roadway.” Id. at 48. Deputy Claeys acknowledged that Robinson “immediately” returned to

her lane each time. Id. at 51. Robinson’s driving record, the breath test results, and the video

from Deputy Claeys’s vehicle were also admitted into evidence. The court took the matter

under advisement.

          On July 23, 2012, the trial court issued a written order denying Robinson’s motion to

suppress and entering judgment on two of the charges. The court indicated that it had viewed

the video several times and could not “conclude from the video that the defendant’s vehicle


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actually left the roadway.” Appellant’s App. at 33. However, the court found that the video

“does show the vehicle veering on two occasions onto the white fog line.” Id. The court

concluded that swerving onto the fog line twice was sufficient to justify a brief investigatory

stop.

        The court concluded that, based on contradictory information in Robinson’s driving

record, the State had failed to prove beyond a reasonable doubt that her license was

suspended at the time of the traffic stop. The court found Robinson guilty of the remaining

charges, but did not enter judgment on the class C misdemeanor driving offense. Robinson

now appeals.

                                  Discussion and Decision

        Robinson argues that the trial court erred by denying her motion to suppress and

admitting the evidence obtained from the traffic stop. Robinson does not specify whether she

is challenging the stop based on the Fourth Amendment to the United States Constitution or

Article 1, Section 11 of the Indiana Constitution. However, she asserts that the “central issue

in this case hinges on the Terry doctrine.” Appellant’s Br. at 2 (citing Terry v. Ohio, 392

U.S. 1 (1968)). We understand this to be an invocation of the Fourth Amendment. See

Joseph v. State, 975 N.E.2d 420, 424 n.6 (Ind. Ct. App. 2012) (stating that any claim under

Article 1, Section 11 of the Indiana Constitution was waived for failure to make a separate

argument pursuant to that provision).

        Because Robinson is appealing following a completed trial, the issue before us is

“properly framed as whether the trial court abused its discretion by admitting the challenged


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evidence at trial.” Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans. denied,

(2010).

       Our standard of review of a trial court’s determination as to the admissibility
       of evidence is for an abuse of discretion. Smith v. State, 754 N.E.2d 502, 504
       (Ind. 2001). We will reverse only if a trial court’s decision is clearly against
       the logic and effect of the facts and circumstances. Id. We will not reweigh
       the evidence, and we consider any conflicting evidence in favor of the trial
       court’s ruling. Collins [v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
       trans. denied)]. However, we must also consider the uncontested evidence
       favorable to the defendant. Id. Although a trial court’s determination of
       historical facts is entitled to deferential review, we employ a de novo standard
       when reviewing the trial court’s ultimate determinations of reasonable
       suspicion and probable cause. Myers v. State, 839 N.E.2d 1146, 1150 (Ind.
       2005) (citing Ornelas v. United States, 517 U.S. 690, 695-99, 116 S.Ct. 1657,
       134 L.Ed.2d 911 (1996)).

Id. (footnote omitted).

       “An investigatory stop is permissible under the Fourth Amendment if supported by

reasonable suspicion.” Ornelas, 517 U.S. at 693.

       Reasonable suspicion is a “somewhat abstract” concept, not readily reduced to
       “a neat set of legal rules.” [United States v. Arvizu, 534 U.S. 266, 274 (2002)].
       When making a reasonable suspicion determination, reviewing courts examine
       the “totality of the circumstances” of the case to see whether the detaining
       officer had a “particularized and objective basis” for suspecting legal
       wrongdoing. Id. at 273, 122 S.Ct. [at 750]. The reasonable suspicion
       requirement is met where the facts known to the officer at the moment of the
       stop, together with the reasonable inferences arising from such facts, would
       cause an ordinarily prudent person to believe criminal activity has occurred or
       is about to occur. Francis v. State, 764 N.E.2d 641, 644 (Ind. Ct. App. 2002).

Moultry v. State, 808 N.E.2d 168, 171 (Ind. Ct. App. 2004). The State bears the burden of

proving that an investigatory stop was not violative of the constitutional protections against

unreasonable searches and seizures. State v. Smith, 638 N.E.2d 1353, 1355 (Ind. Ct. App.

1994). When an investigatory stop is not supported by reasonable suspicion, the evidence

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collected as a result is excluded from trial pursuant to the “fruit of the poisonous tree”

doctrine. Sanchez v. State, 803 N.E.2d 215, 223 (Ind. Ct. App. 2004) (citing Wong Sun v.

United States, 371 U.S. 407, 487-88 (1963)), trans. denied.

       The State argues that this case is similar to State v. McCaa, 963 N.E.2d 24 (Ind. Ct.

App. 2012), trans. denied. In that case, Newton County Sherriff’s Sergeant Shannon Cothran

was at the scene of an accident on U.S. Highway 41. Sergeant Cothran received a dispatch

“concerning ‘various’ reports of a semi-trailer truck being driven erratically southbound

toward the accident site.” Id. at 27. Sergeant Cothran observed a trash hauler drive off the

road twice within the course of about half a mile as it approached the accident site. It was

also driving slowly in relation to the posted speed limit.

       With assistance from another deputy, Sergeant Cothran initiated a traffic stop. The

driver, Johnnie McCaa, claimed that he had swerved because he was eating lunch and had

spilled his pop. Sergeant Cothran observed that there was a spilled soft drink can on the floor

of the truck’s cabin and did not immediately observe any signs of intoxication. Nevertheless,

Sergeant Cothran wanted to investigate further. However, due to the accident and the traffic

stop, traffic in the southbound lanes of U.S. Highway 41, a busy road, was now completely

stopped. Sergeant Cothran decided to have McCaa move his truck to a gas station about two

miles down the road. As Sergeant Cothran followed McCaa to the gas station, he saw

McCaa drive off the road three more times. McCaa failed three field sobriety tests, and a

urine sample collected pursuant to a warrant revealed that he had drugs in his system.




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McCaa was charged with operating while intoxicated, and he successfully moved to suppress

the evidence obtained after the initial stop.

       The main issue in McCaa was whether it was permissible for Sergeant Cothran to

continue the investigation at another location. Under the unusual circumstances of the case,

we determined that the officer’s actions were justified. Id. at 31. By the time McCaa

reached the gas station, dispatch had received multiple reports of McCaa’s erratic driving,

and Sergeant Cothran personally observed McCaa drive off the roadway five times.

       McCaa is distinguishable. In this case, the trial court found that Robinson had driven

onto the fog line, but was not convinced that she had actually driven off the roadway.

Robinson drifted to the right twice, and Deputy Claeys acknowledged that she “immediately”

corrected her course. Tr. at 51. The trial court acknowledged that Robinson’s driving was

not inconsistent with that of a driver who was momentarily distracted. Robinson’s driving

was far less erratic than that of McCaa, who actually drove off the road at least five times and

was driving unusually slow.

       Both parties discuss Barrett v. State, 837 N.E.2d 1022 (Ind. Ct. App. 2005), trans.

denied (2006). In that case, the Tippecanoe County Sheriff’s Department received a tip from

a Meijer employee, who reported that two people had purchased several boxes of cold

medication, which can be used to manufacture methamphetamine. The Meijer employee

indicated that the individuals were driving a blue Chevrolet Geo Tracker. Sergeant Terry

Ruley followed the vehicle from the Meijer parking lot onto Interstate 65. After following

the vehicle for several miles, Sergeant Ruley observed that it drifted toward the shoulder and


                                                7
its passenger-side tires were on the fog line for thirty to fifty yards. Sergeant Ruley believed

that this was a sign of impairment and initiated a traffic stop.

       The vehicle was being driven by Joseph Kelly, and Cynthia Barrett was a passenger.

Kelly and Barrett consented to a search of the vehicle, and officers found several items used

to manufacture methamphetamine. After being taken into custody, Barrett admitted that she

and Kelly had purchased the items so that Kelly and her ex-husband could manufacture

methamphetamine, that they had previously attempted to manufacture methamphetamine, and

that they intended to sell the drugs. Barrett consented to a search of her home, which

revealed additional evidence of manufacturing. Barrett was charged with and convicted of

several drug-related offenses.

       On appeal, Barrett argued that Sergeant Ruley lacked reasonable suspicion to conduct

the traffic stop. A majority concluded that driving on the fog line was a sign of impairment,

and combined with the tip, provided reasonable suspicion for the stop. Id. at 1027-28.

       Judge Mathias dissented, opining that briefly touching the fog line was insufficient to

establish reasonable suspicion: “Here, while the officer testified that he believed the driver

was possibly intoxicated, he also admitted that no traffic violation occurred, [and] that there

were many reasons a driver could drift onto the fog line without being intoxicated ….” Id. at

1031 (Mathias, J., dissenting). Judge Mathias cited several cases from other jurisdictions to

support his conclusion, including United States v. Colin, 314 F.3d 439, 446 (9th Cir. 2002)

(car’s touching the right fog line and the center yellow line each for ten seconds after

legitimate lane changes did not give officer reasonable suspicion of driving under the


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influence); United States v. Freeman, 209 F.3d 464, 466-67 (6th Cir. 2000) (a motor home’s

brief entry into the emergency lane does not constitute probable cause that the driver was

intoxicated); United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (where officer did

not conduct a road sobriety test after stopping the defendant for briefly crossing into the right

emergency shoulder lane, he did not have reasonable suspicion that the defendant was

intoxicated); United States v. Ochoa, 4 F. Supp. 2d 1007, 1012 (D. Kan. 1998) (single drift

onto the shoulder did not justify stopping defendant); State v. Tague, 676 N.W.2d 197, 205-

06 (Iowa 2004) (single incident of crossing left edge line for a brief moment did not meet

reasonableness test under the state constitution); and State v. Binette, 33 S.W.3d 215, 219-20

(Tenn. 2000) (occasional drifting from the center of the lane did not amount to reasonable

suspicion). See also United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993) (“[I]f failure to

follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient

reasons to suspect a person of driving while impaired, a substantial portion of the public

would be subject each day to an invasion of their privacy.”), overruled on other grounds by

United States v. Botero-Ospina, 71 F.3d 783, 786-87 (10th Cir. 1995).

       The Barrett majority’s analysis of the driver’s swerving onto the fog line was

intertwined with analysis of the tip concerning possible drug activity, a circumstance not

present here. Nevertheless, to the extent that Barrett may be read to stand for the proposition

that briefly driving on the fog line is necessarily sufficient to establish reasonable suspicion

of impaired driving, we acknowledge that it likely goes too far.1 Further review of the cases


       1
           The author of this opinion also wrote the majority opinion in Barrett.

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cited in the dissent, their progeny, and additional authorities from other jurisdictions leads us

to the conclusion that brief contact with the fog line or swerving within a lane ordinarily is

not sufficient to establish reasonable suspicion of impaired driving. See, e.g., United States

v. Sugar, 322 F.Supp.2d 85, 91-92 (D. Mass. 2004) (crossing fog line once was not a

violation and did not establish reasonable suspicion); State v. Livingston, 75 P.3d 1103,

1105-06 (Ariz. Ct. App. 2003) (minor breach of the shoulder line on a curvy road did not

establish reasonable suspicion), review denied (2004); People v. Leyendecker, 787 N.E.2d

358, 362 (Ill. App. Ct. 2003) (crossing over fog line while going around curve did not

establish reasonable suspicion), appeal denied; State v. Ross, 149 P.3d 876, 880 (Kan. 2007)

(briefly driving on shoulder did not provide reasonable suspicion), review denied; Rowe v.

State, 769 A.2d 879, 889-91 (Md. 2001) (two instances of touching or crossing fog line did

not establish reasonable suspicion); Warrick v. Comm’r of Pub. Safety, 374 N.W.2d 585,

585–86 (Minn. Ct. App. 1985) (“subtle” weaving within lane insufficient to support

reasonable suspicion); State v. Prado, 186 P.3d 1186, 1187 (Wash. 2008) (“A vehicle

crossing over the line for one second by two tire widths on an exit lane does not justify a

belief that the vehicle was operated unlawfully.”).

       That is not to say that swerving within a lane or crossing the fog line can never

provide reasonable suspicion justifying a traffic stop; the emphasis must remain on the

totality of the circumstances. People v. Davis, 870 N.Y.S.2d 602, 603 (N.Y. App. Div. 2009)

(“Here, we decline to hold that fog line encroachment can never be the basis for a valid

traffic stop as a matter of law. However, in this case, we are mindful that [the officer] only


                                               10
testified as to brief contacts with the fog line prior to the stop. He did not indicate that, for

example, defendant was weaving, driving erratically or even that he drove onto the shoulder

of the road .…”); State v. Pratt, 932 A.2d 1039, 1041-42 (Vt. 2007) (“[W]e do not announce

a ‘bright line’ rule that intra-lane weaving creates reasonable suspicion to stop in all cases.

Instead, we continue to hold that reasonable suspicion must be based on the totality of the

circumstances. Thus, … we do not quarrel [with] cases [holding] that slight degrees of intra-

lane weaving alone do not justify a stop.”); Neal v. Commonwealth, 498 S.E.2d 422, 425 (Va.

Ct. App. 1998) (“We agree with our sister states that weaving within a single traffic lane is

an articulable fact which may give rise to a reasonable suspicion of illegal activity. An

isolated instance of mild weaving within a lane is not sufficiently erratic to justify an

investigatory stop.     The test is one of reasonableness under ‘the totality of the

circumstances.’”); State v. Post, 733 N.W.2d 634, 641 (Wis. 2007) (“Thus, we adopt neither

the bright-line rule proffered by the State that weaving within a single lane may alone give

rise to reasonable suspicion, nor the bright-line rule advocated by Post that weaving within a

single lane must be erratic, unsafe, or illegal to give rise to reasonable suspicion. Rather, we

maintain the well-established principle that reviewing courts must determine whether there

was reasonable suspicion for an investigative stop based on the totality of the

circumstances”).

       Thus, swerving within a lane or onto the fog line may or may not give rise to

reasonable suspicion. Factors to consider may include whether there is repeated swerving,

whether there is swerving over an extended distance or period of time, whether the driver


                                               11
narrowly avoids hitting an object or causing an accident, whether road or weather conditions

might explain the driver’s conduct, and whether the driver overcorrects when returning to the

proper lane of travel. See, e.g., United States v. Ozibirn, 189 F.3d 1194, 1199 (10th Cir.

1999) (in finding that reasonable suspicion had been established, the court considered the

lack of road or weather conditions that would explain the defendant’s repeated drifting onto

the shoulder); Auburn v. Dep’t of Motor Vehicles, 61 Cal. Rptr. 3d 15, 18-19 (Cal. Ct. App.

2007) (continuous weaving within lane for span of a block and almost hitting curb

established reasonable suspicion); Tyler v. State, 161 S.W.3d 745 (Tex. Crim. App. 2005)

(reasonable suspicion established where driver “‘straddled’ the white lane separating his

traveling lane from the shoulder before returning ‘erratically’ to the traveling lane ‘as if to

turn at an angle’”).

       In this case, Robinson was driving late at night on a road with some curves. On two

occasions, she briefly touched the fog line and then immediately returned to her lane. There

is no indication that she swerved sharply or overcorrected. The trial court, which viewed the

video several times, acknowledged that Robinson’s driving was not inconsistent with a driver

who was momentarily distracted. While we give weight to the trial court’s findings of fact,

the ultimate conclusion regarding reasonable suspicion is reviewed de novo. Lindsey, 916

N.E.2d at 238. Given the fact that it was dark, that the road had some curves, and that

Robinson made only brief contact with the fog line, we conclude that the State failed to

establish that the traffic stop was supported by reasonable suspicion that Robinson was




                                              12
impaired. Therefore, the evidence obtained from the stop should not have been admitted.

We reverse her convictions, which were dependent on the improperly admitted evidence.

      Reversed.

ROBB, C.J. and FRIEDLANDER, J., concur.




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