MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 03 2019, 9:19 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Richard O. Kallenbach                                    Curtis T. Hill, Jr.
DeMotte, Indiana                                         Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Bradley A. Huke,                                         December 3, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-704
        v.                                               Appeal from the Newton Superior
                                                         Court
State of Indiana,                                        The Honorable Daniel J. Molter,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         56D01-1804-F2-876



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-704 | December 3, 2019                   Page 1 of 8
                                          Statement of the Case
[1]   Bradley A. Huke brings this interlocutory appeal from the trial court’s denial of

      his motion to suppress. Huke raises five issues for our review, which we restate

      as the following two issues: 1


               1.       Whether law enforcement officers had reasonable
                        suspicion that Huke was engaged in criminal activity when
                        they initiated their traffic stop of Huke’s vehicle.


               2.       Whether officers engaged in a lawful pat-down search of
                        Huke’s person during the traffic stop.


[2]   We affirm.


                                   Facts and Procedural History 2
[3]   In April of 2018, Newton County Drug Task Force Officer Vincent Lowe

      received a tip from an informant that Huke would be “traveling with some




      1
        In his statement of the issues, Huke additionally asserts that the seizure of evidence from his vehicle was
      the product of an invalid search. However, we were unable to discern any argument on the merits of that
      purported issue in his brief, and, thus, there is no such issue for us to review. See Ind. Appellate Rule
      46(A)(8)(a). Further, Huke’s additional stated issue that the trial court erroneously placed the burden of
      proof for his motion to suppress on him instead of the State is not supported by cogent reasoning and is
      waived. See id.
      2
        Rather than follow the format for appellate briefs prescribed by Indiana Appellate Rule 46, Huke has
      instead consolidated all relevant information under the singular heading, “The Facts, Law and Argument.”
      Appellant’s Br. at 4. We remind Huke’s counsel that the “great rule to be observed in drawing briefs consists
      in conciseness with perspicuity,” and, to that end, we encourage counsel to follow our appellate rules in the
      future. Buchanan v. State, 122 N.E.3d 969, 971 (Ind. Ct. App. 2019) (emphasis added; quotation marks
      omitted), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-704 | December 3, 2019                     Page 2 of 8
      cocaine” from a known “trap” house 3 in Lake County to Huke’s residence in

      Newton County. Tr. Vol. 2 at 5. Officer Lowe had relied on the informant

      before; knew the informant knew Huke; knew the informant’s described

      location of the trap house to be accurate; and, later, observed Huke enter and

      then exit the trap house. Officer Lowe then followed Huke southbound on I-65

      for about twenty miles into Newton County. Newton County Deputy Sheriff

      Ryan Holloway accompanied Officer Lowe, and, once the officers verified that

      they had reentered Newton County, they initiated a traffic stop of Huke’s

      vehicle for a purported left-lane violation.


[4]   Upon approaching Huke’s vehicle during the traffic stop, Officer Lowe and

      Officer Holloway immediately smelled burnt marijuana emanating from Huke’s

      vehicle. Officer Lowe asked Huke to exit the vehicle, and, while Huke and

      Officer Holloway engaged in a conversation, Officer Lowe returned to his

      vehicle and called for a K-9 unit.


[5]   Officer Adam Suarez arrived with his K-9, Alpha, about five minutes later. As

      Alpha was about to sniff around the exterior of Huke’s vehicle, Officer Lowe

      approached Huke and asked if he would mind if Officer Holloway did a pat-

      down of Huke while Alpha walked around Huke’s vehicle. Huke did not

      respond verbally but did lift his arms up for Officer Holloway, who immediately

      felt and saw cocaine in a baggie inside Huke’s right-front jacket pocket. Nearly



      3
        A “trap house” is “a house used to sell narcotics, and, if anyone stays there, it’s on an infrequent
      basis . . . .” Ector v. State, 111 N.E.3d 1053, 1056 (Ind. Ct. App. 2018) (cleaned up), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-704 | December 3, 2019                      Page 3 of 8
      simultaneously, Alpha alerted the officers to contraband at the driver’s side

      door of Huke’s vehicle. The officers placed Huke under arrest and read him his

      Miranda warnings, at which point Huke admitted to possessing cocaine.


[6]   The State charged Huke with dealing in cocaine, as a Level 2 felony; possession

      of cocaine, as a Level 4 felony; and possession of paraphernalia, as a Class C

      misdemeanor. Huke filed a motion to suppress the evidence and advanced

      several theories as to why the evidence seized from the traffic stop should be

      suppressed. The trial court denied his motion in a general judgment. The court

      then certified its order for interlocutory appeal, which we accepted.


                                     Discussion and Decision
                                            Standard of Review

[7]   Huke appeals the trial court’s denial of his motion to suppress. As our Supreme

      Court has explained:


              Trial courts enjoy broad discretion in decisions to admit or
              exclude evidence. When a trial court denies a motion to suppress
              evidence, we necessarily review that decision deferentially,
              construing conflicting evidence in the light most favorable to the
              ruling. However, we consider any substantial and uncontested
              evidence favorable to the defendant. . . . If the trial court’s
              decision denying a defendant’s motion to suppress concerns the
              constitutionality of a search or seizure, then it presents a legal
              question that we review de novo.


      Marshall v. State, 117 N.E.3d 1254, 1258 (Ind. 2019) (cleaned up). Further:




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-704 | December 3, 2019   Page 4 of 8
          The Fourth Amendment[ 4] safeguards our persons, our property,
          and our peace by requiring that law enforcement first have a
          warrant supported by probable cause before executing searches or
          seizures. This mandate notwithstanding, one exception to the
          warrant and probable-cause requirements allows police to seize a
          person without a warrant and on a level of suspicion less than
          probable cause—that is, the reasonable-suspicion standard for
          brief investigatory stops. We often call these encounters Terry
          Stops, where an officer may stop and briefly detain a person for
          investigative purposes if the officer has a reasonable suspicion
          supported by articulable facts that criminal activity may be afoot.
          Traffic stops typically fall into this Terry Stop category, and,
          therefore, must be based upon reasonable suspicion.


          Though admittedly a somewhat abstract concept, reasonable
          suspicion is not an illusory standard. The reasonable-suspicion
          standard guards Fourth Amendment rights alongside the warrant
          and probable cause requirements. Law enforcement may not
          initiate a stop for any conceivable reason; they must have at least
          reasonable suspicion lawbreaking occurred. Nor can police rely
          on a mere hunch simply suggesting a person committed a crime
          before making a Terry Stop, like a traffic stop. To be sure, such a
          stop must be justified by some objective manifestation that the
          person stopped is, or is about to be, engaged in criminal activity.
          Reasonable suspicion requires more than an officer’s own
          subjective belief a person might be violating the law. . . .


Id. at 1258-59 (cleaned up).




4
    Huke does not present any separate arguments under article 1, section 11 of the Indiana Constitution.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-704 | December 3, 2019                    Page 5 of 8
                                Issue One: Validity of the Traffic Stop

[8]   We first address Huke’s argument on appeal that there is no evidence that he

      committed a left-lane violation and, as such, the traffic stop was invalid. Huke

      bases his argument on Indiana Code Section 9-21-5-9. In particular, Huke

      contends that he was not “traveling less than the established maximum speed

      limit” and that “[t]he only evidence in the record as to the time Huke was

      ‘pacing’ [the lead semi] is that it was approximately five seconds,” which, Huke

      continues, “is not reasonable in that it would allow the stopping of almost any

      vehicle that were to travel in the left lane . . . .” Appellant’s Br. at 9. However,

      while Officer Lowe was clear that he “pulled [Huke] over for a left lane

      violation,” Tr. Vol. 2 at 23, Huke cites no legal authority that limits the trial

      court to consideration of only the officer’s proffered basis for a traffic stop in

      considering whether to grant or deny a motion to suppress. See Ind. Appellate

      Rule 46(A)(8)(a).


[9]   Notwithstanding any purported left-lane violations, Officer Lowe had

      reasonable suspicion that Huke was engaged in criminal activity at the time

      Officer Lowe initiated the traffic stop. Officer Lowe had received a tip from a

      reliable informant that Huke would be visiting a trap house in Lake County to

      purchase cocaine, which Huke would then bring back to his residence in

      Newton County. Officer Lowe knew the informant’s identity; had worked with

      the informant previously; knew the informant knew Huke; and knew the

      informant’s description of the trap house to be accurate. Officer Lowe then

      verified the tip by observing Huke enter the trap house before immediately

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-704 | December 3, 2019   Page 6 of 8
       proceeding back to Newton County. In other words, alleged traffic violations

       notwithstanding, Officer Lowe had reason to suspect that, at a minimum, Huke

       possessed cocaine. See, e.g., Russell v. State, 993 N.E.2d 1176, 1180 (Ind. Ct.

       App. 2013). Accordingly, the traffic stop was valid under the Fourth

       Amendment. 5


                              Issue Two: Validity of the Pat-Down Search

[10]   We next address Huke’s argument that the officers were not justified in their

       pat-down search of Huke’s person. According to Huke, the pat-down was

       invalid because the officers had no reasonable fear for their safety and, further,

       any apparent consent Huke gave to the pat-down was involuntary and the

       product of police coercion.


[11]   But we must conclude that Huke’s complaints about officer safety and police

       coercion are irrelevant. Upon stopping Huke’s vehicle, officers smelled the

       odor of burnt marijuana. And, shortly thereafter, Alpha alerted the officers to

       contraband inside Huke’s vehicle.


[12]   At that point, and coupled with the informant’s information, the officers had

       probable cause to arrest Huke. See State v. Parrott, 69 N.E.3d 535, 544 (Ind. Ct.

       App. 2017) (holding that probable cause to arrest existed where the defendant

       “was the sole occupant of the vehicle[] and the odor of raw marijuana




       5
        Huke’s apparent argument that the traffic stop was pretextual is not supported by cogent reasoning and is
       waived. See App. R. 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-704 | December 3, 2019                  Page 7 of 8
       emanating from the vehicle was ‘pretty strong’”), trans. denied. As probable

       cause to arrest Huke existed at that time, the officers were authorized to

       “conduct a warrantless search of his person incident to that arrest.” Id. Thus, it

       does not matter whether the officers stated they were conducting the pat-down

       for officer safety or whether Huke’s apparent consent was voluntary. At that

       point, Huke was subject to arrest and the discovery of the cocaine on his person

       was inevitable. See Baker v. State, 562 N.E.2d 726, 728 (Ind. 1990); Winborn v.

       State, 100 N.E.3d 710, 713-14 (Ind. Ct. App. 2018). The trial court did not err

       when it denied Huke’s motion to suppress the evidence from the pat-down.


[13]   In sum, we affirm the trial court’s denial of Huke’s motion to suppress.


[14]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-704 | December 3, 2019   Page 8 of 8
