                                                                         Jan 29 2016, 8:25 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Lawrence M. Hansen                                        Gregory F. Zoeller
Hansen Law Firm, LLC                                      Attorney General of Indiana
Noblesville, Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jason Hansbrough,                                         January 29, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          29A04-1508-CR-1121
        v.                                                Appeal from the Hamilton Circuit
                                                          Court
State of Indiana,                                         The Honorable Paul A. Felix,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          29C01-1410-F4-8157



Crone, Judge.




Court of Appeals of Indiana |Opinion 29A04-1508-CR-1121 | January 29, 2016                      Page 1 of 9
                                                Case Summary
[1]   Jason Hansbrough appeals his conviction, following a bench trial, for unlawful

      possession of a firearm by a serious violent felon, a level 4 felony. During a

      valid traffic stop of Hansbrough’s vehicle, police officers conducted a dog sniff

      around the vehicle. After the canine alerted to the presence of narcotics,

      officers searched the vehicle and found a firearm. Hansbrough unsuccessfully

      moved to suppress the evidence obtained during the search arguing that the dog

      sniff prolonged the traffic stop in violation of his constitutional rights. The

      evidence was subsequently admitted at trial over his continuing objection. The

      sole restated issue for our review is whether the trial court abused its discretion

      in admitting the evidence obtained as a result of the search. Finding no abuse

      of discretion, we affirm.


                                   Facts and Procedural History
[2]   On September 30, 2014, Fishers Police Officer Kevin Silbaugh was driving

      north on Interstate 69 when he observed a black SUV following less than one

      second of braking distance behind another vehicle. 1 Officer Silbaugh activated

      his emergency lights and conducted a traffic stop of the black SUV.

      Hansbrough was driving the black SUV and was the vehicle’s sole occupant.




      1
        Indiana Code Section 9-21-8-14 provides that “[a] person who drives a motor vehicle may not follow
      another vehicle more closely than is reasonable and prudent, having due regard for the speed of both vehicles,
      the time intervals between vehicles, and the condition of the highway.” A violation of this section constitutes
      a class C infraction. See Ind. Code § 9-21-8-49.

      Court of Appeals of Indiana |Opinion 29A04-1508-CR-1121 | January 29, 2016                         Page 2 of 9
[3]   Officer Silbaugh approached the passenger side of the vehicle and asked

      Hansbrough for his license, registration, and insurance information. Officer

      Silbaugh also asked Hansbrough where he had come from and where he was

      headed. Hansbrough informed Officer Silbaugh that he was traveling from

      Indianapolis to Muncie.


[4]   While he was speaking to Hansbrough, Officer Silbaugh observed what he

      believed to be marijuana “shake” in the area between the cup holder and the

      center console inside the vehicle. Tr. at 12. 2 Based upon this observation,

      Officer Silbaugh suspected the presence of drugs in the SUV. Accordingly, as

      he walked back to his police vehicle with Hansbrough’s documents, Officer

      Silbaugh immediately called for a canine unit to come to the scene. Officer

      Silbaugh then sat in his police vehicle and began typing out a warning ticket

      and running a records check of Hansbrough. Officer Silbaugh returned once to

      Hansbrough’s vehicle to verify that he still lived at the address listed on his

      identification. Officer Silbaugh again returned to his police vehicle, and at that

      time a backup officer arrived at the scene as a matter of routine practice.

      Within fourteen minutes of the commencement of the traffic stop, the canine

      unit arrived at the scene. Officer Silbaugh was on the phone checking for




      2
       At trial, Officer Silbaugh explained that the term “shake” is used to refer to remnants of marijuana because
      “it’s a small amount.” Tr. at 12. He described it as “similar to if someone ate a bag of chips and dropped
      some crumbs on the floor.” Id.

      Court of Appeals of Indiana |Opinion 29A04-1508-CR-1121 | January 29, 2016                         Page 3 of 9
      outstanding warrants on Hansbrough and had not yet completed his paperwork

      for the traffic stop when the canine unit arrived.


[5]   Sixteen minutes after the traffic stop began, Officer Gerald Fenimore of the

      Noblesville Police Department conducted a dog sniff around Hansbrough’s

      vehicle by walking his narcotics-trained canine around the perimeter of the

      vehicle. The canine alerted to the presence of narcotics by sitting down outside

      the open window on the driver’s side. Officer Silbaugh was still on the phone

      checking for outstanding warrants on Hansbrough, and when he learned that

      the canine had alerted to the presence of narcotics he “asked to call them back.”

      Id. at 15. Due to the canine alert, Officers Silbaugh and Fenimore proceeded to

      search Hansbrough’s vehicle. Officer Fenimore noticed what he also believed

      to be “marijuana shake” in the front passenger area of the vehicle, but he did

      not try to collect it. Id. at 57. The search revealed a handgun underneath the

      driver’s seat.


[6]   Officers handcuffed Hansbrough and placed him in one of the police vehicles.

      After being advised of his Miranda rights, Hansbrough admitted that the

      handgun was his and that he kept it for protection. Hansbrough also

      acknowledged that he had a prior conviction for class C felony battery resulting

      in bodily injury.


[7]   The State charged Hansbrough with unlawful possession of a firearm by a

      serious violent felon, a level 4 felony. Thereafter, Hansbrough filed a motion to

      suppress evidence obtained as a result of the vehicle search claiming that the


      Court of Appeals of Indiana |Opinion 29A04-1508-CR-1121 | January 29, 2016   Page 4 of 9
      dog sniff impermissibly prolonged the traffic stop and therefore violated his

      constitutional rights. Following a hearing, the trial court denied the motion. A

      bench trial was held on May 28, 2015. During trial, Hansbrough objected to

      the admission of any evidence obtained as a result of the search of his vehicle.

      The trial court overruled the objection and admitted the evidence. At the

      conclusion of the trial, the court found Hansbrough guilty as charged. This

      appeal ensued.


                                      Discussion and Decision
[8]   Although Hansbrough challenges the trial court’s denial of his motion to

      suppress evidence obtained during the search of his vehicle, that issue is no

      longer viable. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). Because he

      appeals following a completed trial, the issue before us is properly framed as

      whether the trial court abused its discretion in admitting the evidence at trial.

      Id. A trial court has broad discretion in ruling on the admission or exclusion of

      evidence. Palilonis v. State, 970 N.E.2d 713, 726 (Ind. Ct. App. 2012), trans.

      denied. An abuse of discretion occurs when the trial court’s ruling is clearly

      against the logic, facts, and circumstances presented. Id.


[9]   When reviewing a trial court’s ruling on the admissibility of evidence obtained

      from an allegedly illegal search, we do not reweigh the evidence but defer to the

      trial court’s factual determinations unless clearly erroneous. Meredith v. State,

      906 N.E.2d 867, 869 (Ind. 2009). We view conflicting evidence most favorable




      Court of Appeals of Indiana |Opinion 29A04-1508-CR-1121 | January 29, 2016   Page 5 of 9
       to the ruling, and we consider “afresh any legal question of the constitutionality

       of a search and seizure.” Id.


[10]   In this case, Hansbrough does not dispute the validity of the initial traffic stop.

       Instead, he asserts that the stop became unlawful because the dog sniff

       prolonged the duration of the stop beyond the time reasonably required to

       complete the original purpose of the stop, and that Officer Silbaugh lacked

       reasonable suspicion that he was engaged in criminal activity to otherwise

       extend the stop. Therefore, he argues, the subsequent search of the vehicle was

       invalid and the evidence obtained was inadmissible. We must disagree.


[11]   The Fourth Amendment protects persons from unreasonable search and seizure

       and this protection has been extended to the states through the Fourteenth

       Amendment. Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). 3 Our supreme

       court has recognized that a reasonable narcotics dog sweep is not a search for

       purposes of the Fourth Amendment. Austin v. State, 997 N.E.2d 1027, 1034

       (Ind. 2015) (citations omitted). “However, such a sweep is an unreasonable

       investigatory detention if the motorist is held for longer than necessary to

       complete the officer’s work related to the traffic violation and the officer lacks

       reasonable suspicion that the motorist is engaged in criminal activity.” Id.




       3
         Although Hansbrough cites to both the Fourth Amendment and Article 1, Section 11 of the Indiana
       Constitution in his appellant’s brief, he provides no independent argument or analysis of his claim pursuant
       to the Indiana Constitution. Therefore, neither do we. See Jackson v. State, 996 N.E.2d 378, 385 (Ind. Ct.
       App. 2013) (failure to provide independent analysis of Article 1, Section 11 results in waiver of the issue on
       appeal), trans. denied (2014).

       Court of Appeals of Indiana |Opinion 29A04-1508-CR-1121 | January 29, 2016                          Page 6 of 9
[12]   We need not engage in a reasonable suspicion analysis here because the record

       reveals that the dog sniff of Hansbrough’s vehicle did not prolong the duration

       of the valid traffic stop. In Rodriguez v. United States, 135 S. Ct. 1609, 1612

       (2015), the United States Supreme Court recently held that “a police stop

       exceeding the time needed to handle the matter for which the stop was made

       violates the Constitution’s shield against unreasonable seizures.” Specifically,

       the Rodriguez court held that “[a] seizure justified by only a police-observed

       traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the

       time reasonably required to complete th[e] mission’ of issuing a ticket for the

       violation.” Id. (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). The court

       explained that, beyond determining whether to issue a traffic ticket, an officer’s

       mission includes ordinary inquiries incident to the traffic stop such as “checking

       the driver’s license, determining whether there are outstanding warrants against

       the driver, and inspecting the automobile’s registration and proof of insurance.”

       Id. at 1615. The court determined that the police may not extend an otherwise-

       completed traffic stop, absent reasonable suspicion, in order to conduct a dog

       sniff. Id. The critical question is whether “conducting the sniff ‘prolongs’—i.e.,

       adds time to—‘the stop[.]’” Id. at 1616; see Washington v. State, 42 N.E.3d 521

       (Ind. Ct. App. 2015) (rehearing opinion reaffirming conviction pursuant to




       Court of Appeals of Indiana |Opinion 29A04-1508-CR-1121 | January 29, 2016   Page 7 of 9
       Rodriguez and concluding that dog sniff did not prolong traffic stop), opinion on

       reh’g, trans. denied. 4


[13]   The facts and inferences from the record indicate that the dog sniff of

       Hansbrough’s vehicle was conducted while his valid traffic stop was ongoing,

       or in other words, before the traffic stop was completed. The police dash cam

       evidence establishes that the dog sniff occurred within sixteen minutes of the

       start of the traffic stop. Officer Silbaugh testified that he had not yet completed

       his paperwork and was still on the phone checking for outstanding warrants on

       Hansbrough when the canine unit arrived and conducted the sweep. Under the

       circumstances, we cannot say that the dog sniff prolonged or added any time to

       the valid traffic stop. Therefore, the subsequent search of Hansbrough’s vehicle

       was not rendered invalid, and the trial court did not abuse its discretion in

       admitting the evidence obtained during that search. 5 See Myers v. State, 839

       N.E.2d 1146, 1150 (Ind. 2005) (finding no error in trial court’s determination

       that dog sniff occurred while traffic stop was ongoing because officer was




       4
         For a detailed summary of previous “Indiana dog sniff cases” that we believe remain consistent with
       Rodriguez, see State v. Gray, 997 N.E.2d 1147, 1151 (Ind. Ct. App. 2013) (citing Bush v. State, 925 N.E.2d 787
       (Ind. Ct. App. 2010), clarified on reh’g, 929 N.E.2d 897), trans. denied (2014)).
       5
         While we need not reach the issue, we conclude that even if the dog sniff prolonged Hansbrough’s traffic
       stop, the evidence establishes that Officer Silbaugh had reasonable suspicion of criminal activity (based upon
       his observation of what he believed to be marijuana shake) in order to detain Hansbrough beyond the time
       necessary to complete the mission of the stop. See Gray, 997 N.E.2d at 1152 (recognizing that once a
       justifiable stop is made, the scope of the officer’s investigation may be broadened beyond the purpose for
       which the person was stopped only if additional particularized and objective suspicions come to light;
       although additional suspicion is not required to perform a dog sniff, suspicion is required for any additional
       seizure that the dog sniff caused).

       Court of Appeals of Indiana |Opinion 29A04-1508-CR-1121 | January 29, 2016                          Page 8 of 9
       explaining traffic citation to defendant while canine was performing sniff and

       only thirteen minutes had elapsed from start of traffic stop).


[14]   Hansbrough urges that Officer Silbaugh knew “how long the canine officer

       [would] take to get there,” and therefore his testimony that he was not finished

       with his ordinary traffic stop inquiries when the canine unit arrived and

       conducted the sniff was “suspect.” Appellant’s Br. at 5, 9. He argues that

       accepting an officer’s testimony in this regard “creates a real danger of officers

       slowing down their processes to allow time for the canine to arrive.” Id at 9.

       We acknowledge the legitimacy of his concerns. Nevertheless, the Rodriguez

       court observed that the reasonableness of a seizure depends “on what the police

       in fact do” and reasonable diligence on the part of police can only be gauged

       “by noting what the officer actually did and how he did it [.]” Rodriguez, 135 S.

       Ct. at 1616. We remind Hansbrough that it was the trial court’s prerogative to

       accept or reject Officer Silbaugh’s testimony, and we do not reweigh the

       evidence but defer to the trial court’s factual determinations unless clearly

       erroneous. Meredith, 906 N.E.2d at 869. There is nothing in the record to

       suggest that the trial court’s determinations here were clearly erroneous. We

       affirm Hansbrough’s conviction.


[15]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana |Opinion 29A04-1508-CR-1121 | January 29, 2016   Page 9 of 9
