                                                                       FILED
                                                                  Jun 20 2018, 5:39 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Michael A. Campbell                                        Curtis T. Hill, Jr.
Valparaiso, Indiana                                        Attorney General of Indiana

                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Zachariah Marshall,                                        June 20, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           64A05-1710-CR-2368
        v.                                                 Appeal from the Porter Superior
                                                           Court
State of Indiana,                                          The Honorable David L.
Appellee-Plaintiff                                         Chidester, Judge
                                                           Trial Court Cause No. 64D04-
                                                           1611-CM-10105



May, Judge.




Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018                   Page 1 of 10
[1]   Zachariah Marshall appeals the trial court’s denial of his renewed motion to

      suppress. He argues the traffic stop initiated by Reserve Officer Sean Dolan

      which led to Marshall’s arrest violated Marshall’s Fourth Amendment rights

      under the United States Constitution because Reserve Officer Dolan did not

      have reasonable suspicion to stop Marshall. We reverse and remand.



                             Facts and Procedural History
[2]   In the early morning on October 29, 2016, Reserve Officer Dolan initiated a

      traffic stop of Marshall’s vehicle based on Reserve Officer Dolan’s observation

      that Marshall “was going over the posted speed limit.” (Tr. Vol. II at 39.)

      Reserve Officer Dolan explained to Marshall that Reserve Officer Dolan pulled

      Marshall over for speeding.


[3]   Soon thereafter, the stop escalated to an investigation of operating a vehicle

      while intoxicated. Reserve Officer Dolan’s supervisor, Corporal Robert O’Dea,

      arrived on the scene and arrested Marshall. Reserve Officer Dolan testified he

      did not write Marshall a citation for speeding because


              Marshall’s BMV check came back that he had no priors to
              speeding and also that Mr. Marshall was also under the
              investigation for an O.W.I., therefore, I knew that he was going
              to have plenty of money problems and legal problems ahead of
              him that were going to be costly and I decided to cut him a break
              on the citation for speeding.


      (Id. at 13.)



      Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018   Page 2 of 10
[4]   On November 2, 2016, the State charged Marshall with Class A misdemeanor

      operating a vehicle while intoxicated, endangering a person; 1 Class C

      misdemeanor operating a vehicle with an alcohol concentration equivalent to

      .08 but less than .15; 2 and Class C misdemeanor operating a vehicle while

      intoxicated. 3 On August 4, 2017, Marshall filed a motion to suppress, alleging

      the traffic stop was unlawful. The trial court denied Marshall’s motion on

      August 8, 2017.


[5]   On August 9, 2017, Marshall filed a renewed motion to suppress, again alleging

      the traffic stop was unlawful, and requested a hearing on the motion. The trial

      court granted Marshall’s request for a hearing and held a hearing on Marshall’s

      renewed motion to suppress on August 17, 2017. The trial court denied

      Marshall’s renewed motion to suppress on August 18, 2017.


[6]   On September 6, 2017, Marshall filed a motion asking the trial court to certify

      its denial of his renewed motion to suppress for interlocutory appeal. The trial

      court granted Marshall’s request for certification on September 12, 2017. Our

      court accepted jurisdiction over Marshall’s interlocutory appeal on December 5,

      2017.




      1
          Ind. Code § 9-30-5-2(b).
      2
          Ind. Code § 9-30-5-1(a).
      3
          Ind. Code § 9-30-5-2(a).


      Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018   Page 3 of 10
                                  Discussion and Decision
[7]   Our standard of review for the denial of a motion to suppress evidence is similar

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

      2003), reh’g denied, trans. denied. We determine whether substantial evidence of

      probative value exists to support the denial of the motion. Id. We do not

      reweigh the evidence, and we consider conflicting evidence that is most

      favorable to the trial court’s ruling. Id. But 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

      review de novo a ruling on the constitutionality of a search or seizure, but we

      give deference to a trial court’s determination of the facts, which will not be

      overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind.

      2008).


[8]   The Fourth Amendment to the United States Constitution requires law

      enforcement officials obtain a valid warrant before conducting searches or

      seizures. A traffic stop is considered a seizure under the Fourth Amendment.

      Bush v. State, 925 N.E.2d 787, 789 (Ind. Ct. App. 2010), clarified on reh’g 929

      N.E.2d 897 (Ind. Ct. App. 2010) (clarifying procedural history of case and

      addressing State’s claim of waiver). “To be valid, a traffic stop must be

      supported by, at least, reasonable suspicion a traffic law has been violated or

      other criminal activity is afoot.” Id. at 790. Reasonable suspicion must consist

      of more than general hunches or suspicions. Abel v. State, 773 N.E.2d 276, 279

      (Ind. 2002). We consider the totality of the circumstances in determining

      Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018   Page 4 of 10
       whether an officer had reasonable suspicion. Carter v. State, 692 N.E.2d 464,

       467 (Ind. Ct. App. 1997).


[9]    Marshall argues the trial court erred when it denied his renewed motion to

       suppress because Reserve Officer Dolan’s traffic stop was unlawful.

       Specifically, Marshall contends Reserve Officer Dolan’s testimony of his

       “visual speed estimate” was insufficient to prove Reserve Officer Dolan had

       reasonable suspicion to believe Marshall was exceeding the speed limit when

       Reserve Officer Dolan initiated the traffic stop. (Br. of Appellant at 14.) This is

       an issue of first impression in Indiana.


[10]   In its order denying Marshall’s renewed motion for summary judgment, the

       trial court concluded that “an officer’s testimony of speeding, without radar,

       pacing or some number, when based upon his or her expertise and ability to

       draw conclusions about the excessive speed of the vehicle, in general terms, is

       sufficient to establish a reasonable suspicion of a traffic infraction justifying a

       stop.” (App. Vol. II at 11.) In support of its conclusion, the trial court cited

       four cases from other jurisdictions: State v. Butts, 269 P.3d 862 (Kan. 2012); State

       v. Konvalinka, 819 N.W.2d 426, 2012 WL 1860352 (Iowa Ct. App. 2012); State

       v. Allen, 978 So.2d 254 (Fla. Dist. Ct. App. 2008); and State v. Barnhill, 601

       S.E.2d 215 (N.C. App. 2004), review denied.


[11]   All of the cases cited by the trial court in support of its conclusion are

       distinguishable from the facts in this case because they included testimony from

       the officer on the scene of the approximate speed the defendant was traveling


       Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018     Page 5 of 10
       prior to the initiation of the traffic stop. See Butts, 269 P.3d at 1076 (“Officer

       Hopkins first noticed Butts’ vehicle traveling at a speed of about 45 miles per

       hour in a 30-mile-per-hour speed zone. The officer’s speed determination was

       an estimate based upon his observations, training, and experience with radar

       and speed detection.”); Konvalinka, at *1 (Officer “estimated Konvalinka to be

       travelling at approximately sixty miles per hour. The speed limit in the area

       was twenty-five miles per hour.”); Allen, 978 So.2d at 255 (Although officer did

       not know the exact speed Allen was traveling, “Detective Rylott testified that

       the area has a speed limit of twenty-five miles per hour and that he had to drive

       well over fifty miles per hour to catch up to Allen.”); and Barnhill, 601 S.E.2d at

       229 (“In Officer’s [sic] Malone’s opinion the vehicle was exceeding a safe

       speed, as he estimated the vehicle to be traveling 40 m.p.h. in a 25 m.p.h.

       zone.”).


[12]   Here, the trial court noted as part of its order the relevant facts regarding

       Reserve Officer Dolan’s testimony:


               Hebron police officer Sean Dolan was patrolling the area around
               State Road 8 and 500 West on October 19, 2016. He observed
               Defendant’s car speeding and stopped the [D]efendant. Officer
               Dolan was using a radar, but he could not testify at hearing or at
               deposition 1) what speed the [D]efendant was traveling and 2)
               what the radar showed as [D]efendant’s speed. He could only
               state the following:


               Q: How certain were you that the defendant was speeding?


               A: Very certain, a hundred percent.

       Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018    Page 6 of 10
       (App. Vol. II at 10.) The facts in this case are more similar to those in State v.

       Petzoldt, 803 N.W.2d 128, 2011 WL 2556961 (Iowa Ct. App. 2011). In Petzoldt,

       Officer Jay King pulled over Petzoldt because Officer King thought Petzoldt

       was speeding. After speaking with Petzoldt, Officer King suspected Petzoldt

       was intoxicated, administered field sobriety tests, and arrested Petzoldt for

       operating a vehicle while intoxicated. Id. at *1. Petzoldt filed a motion to

       suppress, citing multiple grounds, including “lack of legal cause to stop

       [Petzoldt’s] vehicle.” Id. The trial court denied Petzoldt’s motion to suppress

       based on the legality of his traffic stop. 4 At his subsequent bench trial, the trial

       court found Petzoldt guilty as charged and sentenced him accordingly.


[13]   On appeal, Petzoldt argued the traffic stop was not justified by reasonable

       suspicion because “Officer King had no ‘sufficient, specific, articulable facts to

       substantiate a particularized suspicion to justify making an investigatory stop.’”

       Id. at 3. The court stated:


               We believe that with proper foundation, an officer’s visual
               estimation of speed may be sufficient to supply probable cause to
               stop a vehicle for speeding. But that is not the case here.


               Here, Officer King testified he was playing Solitaire when he
               observed Petzoldt’s pickup truck briefly as it passed in front of his
               patrol car. Although he testified he believed the truck was



       4
         Petzoldt also argued “improper administration of field sobriety tests, lack of grounds to request a
       preliminary breath test and/or invoke implied consent, violation of Iowa Code section 804.20, not requesting
       a breath specimen in writing, lack of certification to operate the DataMaster, and improper questioning of
       [Petzoldt] prior to Miranda warning.” Id. at *1. The trial court denied Petzoldt’s motion to suppress on all
       grounds except his argument regarding the grounds for the preliminary breath test.

       Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018                        Page 7 of 10
         travelling at a speed greater than the posted speed limit, Officer
         King made no estimate as to how fast the truck was travelling or
         how much over the posted limit he thought the pickup was
         travelling. The posted speed limit is not even in the record before
         us. Officer King’s visual estimate of speed was not confirmed by
         any other means of corroboration of the speed, such as radar or
         pacing. Officer King observed no other traffic infractions or
         driving anomalies by the pickup. He reached his conclusion
         based upon “years of experience looking at vehicles and the
         speeds they are going,” something he did every day in his job as a
         thirty-one-year veteran of the police force. Further, he said that
         as he attempted to catch up to the pickup, he “could tell that it
         was still going over the speed limit.” Officer King did not charge
         Petzoldt with speeding. The speed of Petzoldt’s truck cannot be
         discerned from viewing the video taken by Officer King’s
         dashboard-mounted camera.


Id. (footnote omitted). As part of its analysis, the court relied on Allen and

Barnhill as instances where the officer’s visual estimation was sufficient to

supply probable cause to stop a vehicle for speeding. 5 Based thereon, the court

concluded:


         Officer King’s testimony is solely conclusory. Having failed to
         articulate his observations of the movement of the Petzoldt truck
         in his testimony, Officer King’s opinion lacks any factual
         foundation. Other than relying on his experience as a police
         officer, he failed to express any reasons for his belief the truck
         was speeding.




5
 As noted infra, those cases are distinguishable on the basis the officers involved testified to an approximate
speed the defendant was traveling and to the speed limit in that area.

Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018                            Page 8 of 10
       Id. at *4. Because Officer King had not supplied specific, articulable facts upon

       which he based his conclusion that Petzoldt was speeding, the court concluded

       the traffic stop violated Petzoldt’s rights under the Fourth Amendment of the

       United States Constitution and reversed Petzoldt’s conviction.


[14]   Similar facts exist here. During a pre-trial deposition, Reserve Officer Dolan

       could not recall the posted speed limit at the location of the traffic stop, but he

       claimed he knew at the time of the stop what the speed limit was in the area.

       He testified he “thought maybe it was forty miles an hour[.]” (Tr. Vol. II at 22.)

       During the suppression hearing, Reserve Officer Dolan indicated he had visited

       the location of the stop prior to the hearing and that the speed limit was fifty

       miles per hour. Reserve Officer Dolan testified he did not pace Marshall’s

       vehicle, did not write down the speed at which he observed Marshall traveling

       prior to the traffic stop, and did not observe Marshall commit additional traffic

       infractions.


[15]   Instead, he agreed when asked, “you’re testifying that Mr. Marshall was doing

       something above [the posted speed limit]?” (Id. at 12.) Reserve Officer Dolan

       also testified his radar was properly calibrated and working at the time and

       while he did not know the exact speed Marshall was traveling, his radar

       indicated Marshall was going over the posted speed limit. Because Reserve

       Officer Dolan could not testify regarding the speed of Marshall’s vehicle in

       more specific terms, we hold he did not have specific articulable facts to support

       his initiation of a traffic stop, and therefore the traffic stop violated Marshall’s

       Fourth Amendment rights. See L.W. v. State, 926 N.E.2d 52, 59 (Ind. Ct. App.

       Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018    Page 9 of 10
       2010) (officer did not have reasonable suspicion to conduct investigatory stop of

       L.W. and thus the stop violated L.W.’s Fourth Amendment rights), reh’g denied.



                                                   Conclusion
[16]   The trial court erred when it denied Marshall’s renewed motion to suppress

       because the traffic stop that resulted in Marshall’s arrest for driving while

       intoxicated violated the Fourth Amendment to the United States Constitution.6

       Accordingly, we reverse and remand for proceedings consistent with this

       opinion.


[17]   Reversed and remanded.


       Riley, J., and Mathias, J., concur.




       6
         At trial and on appeal, Marshall also argued the traffic stop violated his rights under Article 1, Section 11 of
       the Indiana Constitution, which also prohibits unreasonable search and seizure. The trial court’s order did
       not address Marshall’s Indiana Constitutional argument. As the Indiana Constitution provides broader
       protection than the Federal Constitution, State v. Moore, 796 N.E.2d 764, 767 (Ind. Ct. App. 2003) (“the
       Indiana Constitution may prohibit searches which the federal Constitution does not”), trans. denied, and we
       have concluded the traffic stop did not meet the lower protection provided by the Federal Constitution, we
       need not address any argument regarding the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018                            Page 10 of 10
