                                                                                 FILED
                                                                            Mar 12 2020, 10:25 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Shay J. Hughes                                            Curtis T. Hill, Jr.
      Tippecanoe Public Defender’s Office                       Attorney General of Indiana
      Lafayette, Indiana
                                                                Megan M. Smith
                                                                Courtney Staton
                                                                Deputy Attorneys General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Justin Danh,                                              March 12, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-1148
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Steven Meyer,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                79D02-1809-F3-26



      May, Judge.



[1]   Justin Danh appeals the denial of his motion to suppress. He argues the trial

      court abused its discretion when it denied his motion to suppress the evidence

      found during the search of his vehicle because the search of his vehicle violated

      Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020                             Page 1 of 16
      his Fourth Amendment right against unreasonable search and seizure.

      Specifically, Danh argues (1) the officer did not have reasonable suspicion to

      perform a patdown search of him or a canine sniff of his vehicle and (2) the dog

      sniff search of Danh’s car unreasonably prolonged the duration of the traffic

      stop. We affirm.



                              Facts and Procedural History                                    1




[2]   On December 12, 2017, Officer Keifer Mikels, a Purdue University Police

      Officer, was dispatched to McCutcheon Hall, located on Purdue University’s

      campus, when an anonymous caller reported a resident of the dormitory was

      using drugs. Upon his arrival at the room where the activity was reported,

      Officer Mikels deployed his K9, who alerted to the presence of narcotics in the

      room. Officer Mikels was unable to make contact with the residents of the

      room at that time and went to the front desk to inquire as to the names of the

      room’s residents. The front desk indicated Justin Danh and his roommate,

      Calvin, lived there.


[3]   Officer Mikels returned on January 14, 2018, to continue the investigation and

      spoke with Calvin, who expressed concern over Danh’s alleged narcotics

      activity but would not allow Officer Mikels to search the room. Officer Mikels




      1
        We held oral argument in this appeal on February 11, 2020, at Indiana State University. We thank counsel
      for their able presentations, and we thank the staff and students of Indiana State University for their attention
      and hospitality.

      Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020                                  Page 2 of 16
      did not submit a report on this investigation, and there is nothing in the record

      indicating he spoke with Danh during this time.


[4]   At some point between August 21, 2018, and September 11, 2018, Officer

      Mikels read a report drafted by West Lafayette Police Department (“WLPD”)

      Officer Michael Max that indicated Officer Max spoke with Danh’s new

      roommate, Tristin Moreno, on August 21, 2018. Moreno reported to Officer

      Max that Danh had been using drugs and had shown Moreno a handgun that

      Moreno described as a Chippewa Model 1911, .22 caliber handgun that was

      either blue or black with a wooden grip and a missing rear sight. Moreno stated

      Danh’s girlfriend, Alexis, also saw the gun and Danh stored the gun behind the

      headboard of his bed. Moreno told the officer that Danh told Moreno that the

      gun was stolen. Moreno had touched the gun and was concerned he would get

      in trouble with the police.


[5]   The report also indicated Moreno called shortly after his interview with Officer

      Max to report that, when he returned home, Danh’s bedroom door was open

      and the bed had been moved, indicating the handgun stored there might not be

      at the apartment. Approximately five hours later, Moreno’s father called the

      police to report that Moreno had entered Danh’s room but had not located the

      gun; instead, Moreno found .22 caliber ammunition and a bag of pills.

      According to the report, Moreno was to call Officer Max when Danh returned

      home so Officer Max could speak to Danh. The report did not indicate if

      Officer Max ever spoke to Danh. Officer Max indicated in the report that a



      Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020       Page 3 of 16
      handgun matching the description Moreno gave had been stolen from a nearby

      pawn shop.


[6]   On September 11, 2018, Officer Mikels initiated a traffic stop of Danh’s vehicle

      based on the vehicle’s alleged failure to signal a turn. Officer Mikels collected

      identification from Danh and his passenger, Alexis Pantig. Officer Mikels

      radioed for back-up based on his belief Danh possessed the handgun from the

      earlier WLPD report. Officer Mikels searched the relevant databases for

      information regarding Danh and Pantig, such as the existence of a suspended

      license or outstanding warrant, but Officer Mikels did not find anything.

      Shortly thereafter, back-up officers arrived on scene. Officer Mikels later

      testified he “suspend[ed] the original traffic infraction investigation” when the

      back-up officers arrived. (Tr. Vol. II at 52.) 2


[7]   Officer Mikels told a back-up officer, Sergeant Balzer, that he believed, based

      on Moreno’s earlier statement, that Danh possessed an allegedly stolen firearm.

      He told Sergeant Balzer that he did not smell anything when he approached the

      vehicle and did not know if Danh had the firearm in his possession, but that he

      also knew Danh was “dealing pills out of McCutcheon.” (State’s Ex. 2 at 06:37

      – 06:38.)


[8]   Officer Mikels asked Danh to exit the vehicle. After Danh exited the vehicle,

      Officer Mikels performed a pat-down search. Officer Mikels asked Danh if he




      2
          Officer Mikels did not issue a traffic ticket or warning for Danh’s traffic infraction.


      Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020                            Page 4 of 16
       possessed the firearm in question, and Danh denied having the firearm. Officer

       Mikels asked Danh if he could search Danh’s vehicle, and Danh did not

       consent to a search.


[9]    Officer Mikels continued his conversation with Danh, discussing Danh’s recent

       arrest for operating a vehicle while intoxicated. Sergeant Balzer removed

       Pantig from the vehicle and conducted a canine search of Danh’s vehicle. The

       canine alerted to the presence of drugs. The officers searched Danh’s vehicle

       and found Xanax and marijuana. Danh admitted that he had prescription

       drugs in the car for which he did not have a valid prescription. Police then

       placed Danh under arrest and administered his Miranda 3 warnings. Danh

       admitted possessing the handgun in question, but he indicated the handgun was

       located at his apartment. Danh gave police permission to search his apartment.

       Officers then searched Danh’s apartment where they found a handgun and

       additional Xanax and marijuana.


[10]   On September 11, 2018, the State charged Danh with Level 3 felony dealing a

       schedule IV controlled substance, 4 Level 6 felony possession of a controlled

       substance, 5 Level 6 felony maintaining a common nuisance, 6 Class A




       3
           Miranda v. Arizona, 384 U.S. 436 (1966).
       4
           Ind. Code § 35-48-4-3(a)(1).
       5
           Ind. Code § 35-48-4-7(a).
       6
           Ind. Code § 35-45-1-5(c).


       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020      Page 5 of 16
       misdemeanor possession of a controlled substance, 7 and Class B misdemeanor

       possession of marijuana. 8 On December 18, 2018, Danh filed a motion to

       suppress the evidence found as part of the vehicle and apartment searches. On

       March 1, 2019, the trial court held a hearing on the matter and denied Danh’s

       motion on April 17, 2019. On April 24, 2019, Danh filed a motion for

       certification of interlocutory appeal, which the trial court granted. On May 22,

       2019, Danh filed a motion for this court to accept the interlocutory appeal,

       which we granted.



                                       Discussion and Decision
[11]   Our standard of review for the denial of a motion to suppress evidence is similar

       to that of other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct.

       App. 2003), reh’g denied, trans. denied. We determine whether there is

       substantial evidence of probative value to support denial of the motion. Id. We

       do not reweigh the evidence, and we consider conflicting evidence in a light

       most favorable to the trial court’s ruling. Id. However, the review of a denial of

       a motion to suppress is different from other sufficiency matters in that we must

       also consider uncontested evidence that is favorable to the defendant. Id. We




       7
           Ind. Code § 35-48-4-7(a).
       8
           Ind. Code § 35-48-4-11(a)(1).


       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020        Page 6 of 16
       review de novo a ruling on the constitutionality of a search or seizure. Campos v.

       State, 885 N.E.2d 590, 596 (Ind. 2008).


[12]   The Fourth Amendment to the United States Constitution protects citizens

       against unreasonable searches and seizures by prohibiting them without a

       warrant supported by probable cause. To deter State actors from violating that

       prohibition, evidence obtained in violation of the Fourth Amendment generally

       is not admissible in a prosecution of the citizen whose right was violated. Clark

       v. State, 994 N.E.2d 252, 260 (Ind. 2013). The State has the burden of

       demonstrating the admissibility of evidence collected during a seizure or search.

       Id.


[13]   A traffic stop is a seizure that must comply with the Fourth Amendment.

       McLain v. State, 963 N.E.2d 662, 666 (Ind. Ct. App. 2012), trans. denied. It is

       well-settled that a traffic stop “must be supported by, at least, reasonable

       suspicion that a traffic law has been violated or other criminal activity is afoot.”

       Bush v. State, 925 N.E.2d 787, 790 (Ind. Ct. App. 2010), clarified on reh’g 929

       N.E.2d 897 (Ind. Ct. App. 2010). An officer may stop and briefly detain an

       individual for investigatory purposes if, based upon specific and articulable

       facts, the officer has a reasonable suspicion of criminal activity, even if the

       officer lacks probable cause to make an arrest. Armfield v. State, 918 N.E.2d

       316, 319 (Ind. 2009).




       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020         Page 7 of 16
                                         1. Reasonable Suspicion
[14]   An officer may perform a brief investigatory stop when, based on the totality of

       the circumstances, the officer has a reasonable, articulable suspicion that

       criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968).


               Reasonable suspicion is a less demanding standard than probable
               cause, not only in the sense that reasonable suspicion can be
               established with information that is different in quantity or
               content than that required to establish probable cause, but also in
               the sense that reasonable suspicion can arise from information
               that is less reliable than that required to show probable cause.
               Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110
               L.Ed.2d 301 (1990). Even though different, reasonable
               suspicion, like probable cause, is dependent upon both the
               content of information possessed by police and its degree of
               reliability. Id. “Both factors—quantity and quality—are
               considered in the ‘totality of the circumstances—the whole
               picture that must be taken into account when evaluating whether
               there is reasonable suspicion.’” Id. (quoting United States v.
               Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L.Ed.2d 621
               (1981)).


       Washburn v. State, 868 N.E.2d 594, 601 (Ind. Ct. App. 2007), trans. denied.


                                                  A. Nature of Tip

[15]   In examining the totality of the circumstances herein, we first consider whether

       Moreno’s tip regarding Danh’s possession of a firearm and pills was

       anonymous or that of a concerned citizen. Reasonable suspicion can be based

       on “an anonymous informant’s tip if other facts establish reliability or the basis

       of the informant’s knowledge.” Hardister v. State, 849 N.E.2d 563, 570 (Ind.


       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020        Page 8 of 16
       2006). “Corroboration is ordinarily necessary where nothing the tipster said

       shows either reliability or the informant’s basis of knowledge.” Id.


[16]   However, when a “concerned citizen” offers a tip of criminal activity, the

       reviewing court is to determine whether there existed reasonable suspicion

       based on a totality of the circumstances. Russell v. State, 993 N.E.2d 1176, 1180

       (Ind. Ct. App. 2013). In doing so, the court considers:


               1) whether the citizen has personally witnessed the reported
               crime, 2) whether the police subsequently corroborate details of
               the citizen’s report, 3) whether the citizen has identified herself
               and thereby subjected herself to civil liability or prosecution for
               false reporting, and 4) the absence of circumstances casting the
               citizen’s reliability into question.


       Trimble v. State, 842 N.E.2d 798, 803-4 (Ind. 2006), adhered to on reh’g at 848

       N.E.2d 278 (Ind. 2006). “[W]hen a citizen volunteers information to the

       police, there may be more reason to believe that the information is reliable

       because informants who come forward voluntarily are ordinarily motivated by

       good citizenship or a genuine effort to aid law enforcement officers in solving a

       crime.” Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010).


[17]   Danh argues Moreno’s tip was anonymous, such that Officer Mikels was

       required to corroborate the tip. Danh likens the facts of his case to those in

       State v. Glass, 769 N.E.2d 639, 644 (Ind. Ct. App. 2002), trans. denied, where we

       held that an anonymous tip without separate corroboration by the officer was

       not sufficient to establish reasonable suspicion for an investigatory stop. In

       Glass, the officer received a report of a suspicious vehicle driving recklessly. Id.
       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020            Page 9 of 16
       at 640. The officer did not know the caller’s identity, but dispatch indicated it

       knew the caller and the caller had provided a description of the vehicle.


[18]   The officer observed Glass driving the vehicle described and followed the

       vehicle for one block. Id. The officer did not observe any traffic violations, but

       based on the tip, he initiated a stop of the vehicle. When the officer stopped

       Glass, he noticed Glass was shaking and his driver’s license was expired. As

       part of a patdown search, the officer discovered a “hard rectangular-shaped

       object in the front groin area of Glass’s trousers.” Id. That item was later

       identified as a box containing a green leafy substance and a smoking device. Id.

       at 641. Based thereon, the officer arrested Glass and the State charged Glass

       with several offenses related to marijuana possession and driving under the

       influence.


[19]   Glass filed a motion to suppress, arguing “the detention and search occurred

       without reasonable suspicion.” Id. The trial court granted his motion to

       suppress because the caller was anonymous and the officer had not observed

       anything to corroborate the tip that Glass was driving recklessly. The State

       appealed, arguing the officer had reasonable suspicion because dispatch knew

       the name of the caller, and thus the call was not anonymous. We disagreed and

       held the officer did not have reasonable suspicion because while the State

       provided evidence that “the caller described a car sufficiently to permit [the

       officer] to identify a similar vehicle[,]” the officer did not “personally observe

       facts to verify the reliability of the caller or the reliability of the significant



       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020             Page 10 of 16
       information provided by the caller. To the extent that the caller predicted

       future conduct, it did not occur.” Id. at 644.


[20]   The State argues Officer Mikels had significantly more information than the

       officer in Glass, and we agree. The tip from Moreno was not anonymous.

       Moreno “made an in-person police report” and identified himself to police

       when providing the information about the gun he saw in Danh’s possession.

       (App. Vol. II at 51.) Officer Michael Max of the WLPD recorded Moreno’s

       address, 9 as well as Danh’s date of birth. Moreno told Officer Max that he had

       known Danh “for several years as they went to high school together.” (State’s

       Ex. 1.) In addition, Moreno stated, “after he had moved in with Danh he

       found out he drinks a lot and is using drugs.” (Id.)


[21]   Moreno told Officer Max that the day before at approximately 6:00 p.m., Danh

       had asked Moreno to come to Danh’s room where Danh retrieved a handgun

       from behind his bed and showed it to Moreno. Moreno provided the type and

       color of the handgun and reported “Danh told him the gun was clean and no

       bodies were attached to it but the gun was stolen.” (Id.) Moreno was

       concerned that his fingerprints would be on the gun because Danh had handed

       it to him during their conversation.




       9
         There is a portion of the report that is redacted; based on the location of the information and a similar
       formatting with regards to Danh, the redacted portion of the report is Moreno’s birthdate.

       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020                                 Page 11 of 16
[22]   After his initial report at the police station, Moreno called Officer Max and told

       him that when Moreno arrived home, he noticed Danh’s bedroom door open

       and Danh’s bed moved and, therefore, Moreno “had no idea where the gun

       could be now.” (Id.) Moreno told Officer Max he would call when Danh

       returned home and he also provided Officer Max with Danh’s schedule. Later

       that day, Moreno’s father called Officer Max and reported that Moreno had

       entered Danh’s room and found ammunition and a bag of pills in Danh’s

       closet. Based on the specificity of the tip provided by Moreno, and the personal

       information provided to police for follow up, we conclude Moreno’s tip was

       that of a concerned citizen. See Kellems v. State, 842 N.E.2d 352, 355-6 (Ind.

       2006) (citizen’s 911 call including name, date of birth, and address was

       sufficient to consider her tip as one from a concerned citizen as the information

       provided opened the citizen to criminal prosecution should her report have been

       false), rev’d on reh’g on other grounds 849 N.E.2d 1110, 1114 (Ind. 2006).


                                           B. Staleness of Information

[23]   When assessing whether Officer Mikels had reasonable suspicion to initiate an

       investigatory stop of Danh based on his alleged possession of a firearm or

       drugs, we also consider whether the information Officer Mikels used to

       formulate that reasonable suspicion was stale. See Washburn, 868 N.E.2d at 601

       (staleness of information included in totality of the circumstances analysis when

       determining the existence of reasonable suspicion). Here, the information

       obtained from Moreno was approximately three weeks old, and some of that

       information, specifically regarding Danh’s drug use and possession,

       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020       Page 12 of 16
       corroborated an investigation Officer Mikels personally conducted nine months

       prior in a Purdue University residence hall where Danh lived.


[24]   Even though Moreno’s tip was approximately three weeks old, it was specific

       and Moreno provided multiple personal details as to avail himself to criminal

       prosecution should his report be found false. Some of the details given by

       Moreno, specifically regarding Danh’s drug use and the type of gun Danh

       showed Moreno, were corroborated by other investigations. Based on the

       totality of the circumstances, we conclude Officer Mikels had reasonable

       suspicion that Danh possessed a firearm and illegal substances, which justifies

       the patdown search of Danh and the dog sniff of Danh’s vehicle. See Teague v.

       State, 891 NE.2d 1121, 1130 (Ind. Ct. App. 2008) (totality of circumstances,

       including reliability of tip and staleness of information, sufficient to provide

       reasonable suspicion).


                                                   2. Dog Sniff
[25]   A “dog sniff” sweep of a vehicle is not a search protected by the Fourth

       Amendment. Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). When a dog

       sniff occurs incident to a legitimate traffic stop and does not prolong the stop

       beyond what is necessary to complete the purpose of the traffic stop, no

       reasonable suspicion of drug-related activity is required. Bush, 925 N.E.2d at

       790. If a dog sniff occurs after the completion of a traffic stop, an officer must

       have reasonable suspicion of criminal activity in order to proceed thereafter

       with an investigatory detention. Bradshaw v. State, 759 N.E.2d 271, 273 (Ind.


       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020        Page 13 of 16
       Ct. App. 2001). The critical facts in determining whether a vehicle was legally

       detained at the time of the canine sweep are whether the traffic stop was

       concluded and, if so, whether there was reasonable suspicion at that point to

       continue to detain the vehicle for investigatory purposes. Id. at 273-4. The

       burden is on the State to show the time for the traffic stop was not increased

       due to the canine sweep. Id. In assessing whether a detention is too long in

       duration, we examine whether the police diligently pursued a means of

       investigation that was likely to confirm or dispel their suspicions quickly. Id.


[26]   Here, Officer Mikels testified at the suppression hearing that he suspended the

       purpose of the traffic stop once back-up officers arrived on scene. Additionally,

       as discussed supra, Officer Mikels had reasonable suspicion that Danh possessed

       illegal substances based on his prior investigation at McCutcheon Hall and

       Moreno’s tip, which indicated Danh was using drugs and had a bag of pills in

       Danh’s closet. Therefore, we need only consider whether the dog sniff of

       Danh’s vehicle unreasonably prolonged the traffic stop. We conclude it did

       not.


[27]   Looking at the chronology of the traffic stop as portrayed in the dashcam video

       provided in State’s Exhibit 1, approximately three minutes elapsed between the

       time Officer Mikels initiated the traffic stop and Officer Mikels returned to his

       car to run checks on Danh and Pantig’s licenses. Two minutes later, back-up

       officers arrived on scene, at which time Officer Mikels testified he suspended

       the purpose of the traffic stop. One and one-half minutes later, Danh exited his

       vehicle for Officer Mikels to perform a patdown search; that search was

       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020       Page 14 of 16
       completed in thirty seconds. Officer Mikels then engaged in conversation with

       Danh regarding his alleged possession of a firearm and an earlier traffic

       violation. He informed Danh that he would be completing a canine sniff of his

       vehicle, and he asked Danh if Danh would give permission to search his

       vehicle. Danh declined, and two minutes after Officer Mikels completed the

       patdown search of Danh, a canine officer began a sniff search of Danh’s

       vehicle. Ten seconds after the beginning of that search, the canine alerted to

       illegal substances in Danh’s vehicle. These events lasted less than ten minutes

       total, and the dog sniff prolonged any investigation by slightly over two

       minutes. Based thereon, we cannot say the dog sniff search of Danh’s car,

       which was supported by reasonable suspicion, unreasonably delayed the traffic

       stop and violated Danh’s Fourth Amendment rights. See Doctor v. State, 57

       N.E.3d 846, 855-6 (Ind. Ct. App. 2016) (concluding three to six-minute

       extension of traffic stop to obtain dog sniff search was not unreasonable).



                                                Conclusion
[28]   Officer Mikels had reasonable suspicion to believe that Danh possessed a

       firearm and/or illegal substances when he stopped Danh for a traffic violation.

       Additionally, the canine search did not unreasonably prolong the traffic stop.

       Therefore, the patdown and canine searches did not violate his Fourth

       Amendment rights. Accordingly, we affirm the denial of Danh’s motion to

       suppress.


[29]   Affirmed.

       Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020      Page 15 of 16
Baker, J., and Robb, J., concur.




Court of Appeals of Indiana | Opinion 19A-CR-1148 | March 12, 2020   Page 16 of 16
