MEMORANDUM DECISION
                                                                      Feb 18 2015, 9:55 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                        Steven E. Ripstra
Attorney General of Indiana                               Ripstra Law Office
                                                          Jasper, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        February 18, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         19A05-1407-CR-303
        v.                                               Appeal from the Dubois Superior
                                                         Court
                                                         Cause No. 19D01-1404-CM-288
Shelby L. Pieper,
Appellee-Plaintiff.                                      The Honorable Mark R. McConnell,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015       Page 1 of 12
                                             Case Summary
[1]   The State appeals the trial court’s grant of a motion to suppress evidence filed

      by Shelby Pieper. We affirm.


                                                     Issue
[2]   The State raises one issue, which we restate as whether the trial court properly

      granted Pieper’s motion to suppress evidence obtained during a traffic stop.


                                                     Facts
[3]   On April 26, 2014, Trooper Jason Dunsworth of the Indiana State Police was

      driving west on State Route 164 in Dubois County at approximately 8:45 p.m.

      Trooper Dunsworth saw Pieper driving toward him in a Jeep with the top off

      and noticed that the person in the rear passenger seat of the Jeep, Austin

      Nordhoff, was sitting sideways with his leg hanging over the side of the Jeep

      and his feet near the tires. Pieper was not speeding, but Trooper Dunsworth

      turned around and initiated a traffic stop.


[4]   When Trooper Dunsworth approached the vehicle, Nordhoff had his seatbelt

      on and his legs inside the vehicle. Trooper Dunsworth first spoke with

      Nordhoff, who explained he was “goofing off” but had been wearing his

      seatbelt. Tr. p. 7. While speaking with Nordhoff, Trooper Dunsworth smelled

      alcohol and asked Nordhoff “if they were going to be doing anymore drinking.”

      Id. at 8. Nordhoff said he was the only one that had been drinking. He then

      asked Pieper if he had been drinking, and Pieper said no. Trooper Dunsworth

      asked Pieper to get out of the vehicle “to check,” and only then did Trooper
      Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015   Page 2 of 12
      Dunsworth notice the smell of alcohol on Pieper. 1 Id. at 14. Trooper

      Dunsworth administered a field sobriety test, the result of which indicated

      Pieper was intoxicated, and a portable breath test, which indicated Pieper’s

      blood alcohol level was .08.2


[5]   The State charged Pieper with three counts of Class C misdemeanor operating a

      vehicle while intoxicated and one count of Class C misdemeanor illegal

      consumption of an alcoholic beverage by a minor. Pieper filed a motion to

      suppress evidence gathered during the traffic stop on the grounds that Trooper

      Dunsworth did not have probable cause or reasonable suspicion to initiate the

      traffic stop and that he detained Pieper longer than necessary to effectuate the

      traffic stop.


[6]   Trooper Dunsworth testified at the suppression hearing that, based on the way

      Nordhoff was seated, he did not believe Nordhoff “was restrained, or had his

      seatbelt on.” Id. at 6. Trooper Dunsworth explained that he could see the

      silhouette of Nordhoff’s legs dangling over the side. Trooper Dunsworth

      testified, “I could not see, physically see his seatbelt, but from his positioning I

      don’t see how he had it on.” Id. at 12. When asked whether he could tell one




      1
        At some point, Trooper Dunsworth saw two coolers in the backseat, but it is not entirely clear from his
      testimony whether he saw the coolers before or after he asked Pieper to get out of the vehicle.
      2
         Trooper Dunsworth issued a citation to Nordhoff for not wearing a seatbelt, and Nordhoff later paid the
      ticket.

      Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015           Page 3 of 12
      way or the other whether Nordhoff had his seatbelt on, Trooper Dunsworth

      stated, “No, Sir.” Id.


[7]   The trial court granted Pieper’s motion to suppress. The trial court found and

      concluded:

              7.      The issue thus restated is whether a reasonable person would
              believe under the facts of this case that the rear passenger was not
              wearing a seat belt. Stated more succinctly, perhaps the issue can be
              stated as whether a person could have a seatbelt properly fastened
              about his body and still be able to position himself so as to allow his
              feet or legs to dangle outside this vehicle. . . . At approximately 8:45
              p.m. on April 26, 2014, Trooper Dunsworth was driving up a hill
              westbound on State Rd. 164 at approximately 50 miles per hour. As
              the maroon Jeep, being operated by Defendant, crested the hill going
              eastbound at a distance of about fifty yards from the Trooper’s vehicle,
              Trooper Dunsworth observed the silhouette of the legs of the rear
              occupant on the passenger side of the Jeep. He testified that the
              passenger’s legs were positioned such a way that his feet were outside
              the vehicle over the rear wheels. Trooper Dunsworth could not
              physically see the passenger’s seatbelt and could not tell one way or
              another if the passenger was wearing a seatbelt. When Trooper
              Dunsworth turned around and pulled Defendant over he approached
              the Jeep. By this time the passenger’s legs were completely inside the
              vehicle. His seatbelt was properly fastened. In response to Trooper
              Dunsworth’s questioning the passenger stated that he had had his
              seatbelt on when the vehicle was in motion. Trooper Dunsworth may
              have stated to the passenger that he couldn’t tell if the passenger was
              wearing a seatbelt.
              8.      Trooper Dunsworth had no direct evidence that Defendant’s
              passenger was not wearing his seatbelt. He had a hunch, or
              speculated, that the passenger was not wearing his seatbelt because he
              didn’t think it would be possible for him to be wearing a seatbelt and
              still have his legs or feet hanging over the rear wheel. He had no other
              basis for his opinion or for the stop. It is the Court’s experience the
              rear seats in a Jeep sit close to the floor and the sides of a Jeep are also
              relatively low to the floor such that it is highly possible for a back seat

      Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015   Page 4 of 12
               passenger to be properly restrained by a seatbelt and still be able to
               have his legs or feet dangling over the side of the vehicle above the
               wheel. Thus, the position of the passenger’s legs and feet by itself
               would not reasonably lead to a conclusion or reasonable suspicion that
               the passenger was not wearing a seatbelt. Without more than the mere
               observation of the passenger’s legs or feet a stop would not be justified.
               Trooper Dunsworth had nothing more. The test for a stop cannot be
               that a passenger may or may not have been properly restrained. The
               officer must have evidence that the passenger was not properly
               restrained.
      App. p. 26. The State now appeals.


                                                     Analysis
[8]   The State argues that the trial court erroneously granted Pieper’s motion to

      suppress. When the State appeals from a negative judgment, it has the burden

      to show that the trial court’s ruling was contrary to law. State v. Keck, 4 N.E.3d

      1180, 1183 (Ind. 2014). “We evaluate the trial court’s findings of fact

      deferentially, neither reweighing the evidence nor reassessing the credibility of

      the witnesses.” Id. We will affirm if there is substantial evidence of probative

      value to support the judgment. Id. We review the trial court’s conclusions of

      law, including a determination of reasonable suspicion, de novo. Id.


[9]   The State first contends the trial court erroneously concluded that Trooper

      Dunsworth did not have reasonable suspicion under the Fourth Amendment to

      stop Pieper’s vehicle.3 When determining whether an officer had reasonable




      3
        Because of our analysis of the claim under the United States Constitution, we need not address the State’s
      Indiana constitutional analysis.

      Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015           Page 5 of 12
       suspicion, “we consider whether the totality of the circumstances presented a

       particularized and objective basis for the officer’s belief that the subject was

       engaged in criminal activity.” Id. at 1184. “Reasonable suspicion entails some

       minimum level of objective evidentiary justification.” State v. Massey, 887

       N.E.2d 151, 155 (Ind. Ct. App. 2008), trans. denied. We must give due weight

       to the specific, reasonable inferences that the officer is entitled to draw from the

       facts in light of his or her experience rather than an officer’s inchoate and

       unparticularized suspicion or “hunch.” Id. We consider whether the facts

       known by the police at the time of the stop were sufficient for a person of

       reasonable caution to believe that an investigation is appropriate. Id. The

       grounds for such a suspicion must be based on the totality of the circumstances.

       Id.


[10]   Indiana Code Section 9-19-10-2 requires each occupant of a motor vehicle

       equipped with a safety belt to “have a safety belt properly fastened about the

       occupant’s body at all times when the vehicle is in forward motion.” In

       determining whether a stop for a seat belt violation was reasonable under an

       Indiana constitutional analysis, our supreme court has held:

               that a police officer may not stop a motorist in Indiana for a possible
               seat belt violation unless that officer reasonably suspects that the driver
               or a passenger in the vehicle is not wearing a seat belt as required by
               law. This reasonable suspicion exists where the officer observes the
               driver or passenger under circumstances (e.g., bodily movement,
               distance, angle, lighting, weather) that would cause an ordinary
               prudent person to believe that the driver or passenger is not wearing a
               seat belt as required by law.
       Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999).

       Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015   Page 6 of 12
[11]   The State contends that Nordhoff’s positioning created reasonable suspicion of

       a seatbelt violation and that the trial court “demanded certainty of wrongdoing

       where only reasonable suspicion was required.” Appellant’s Br. p. 11. The trial

       court’s order included the correct legal standard and, in reaching its conclusion,

       the trial court correctly determined that Nordhoff’s positioning alone did not

       create reasonable suspicion that he was not wearing his seatbelt.


[12]   Trooper Dunsworth initiated the stop upon seeing a silhouette of Nordhoff’s

       legs outside the Jeep. Trooper Dunsworth testified that he could not see

       Nordhoff’s seatbelt and could not tell one way or the other if Nordhoff had his

       seatbelt on. Under these facts, we agree with the trial court that the totality of

       the circumstances did not create reasonable suspicion to justify the stop. We

       reach this conclusion mindful of our supreme court’s recent observation that

       “our trial judges are able to see and hear the witnesses and other evidence first-

       hand. But the appellate bench, in a far corner of the upper deck, doesn’t

       provide such a clear view. Remote from the hearing in time and frequently in

       distance, we review a cold paper record.” Keck, 4 N.E.3d at 1185-86. The trial

       court was in a better position than us to assess Trooper Dunsworth’s credibility

       regarding Nordhoff’s positioning and what he saw that night.


[13]   The State also argues that there was reasonable suspicion of reckless driving

       because Nordhoff’s precarious position made it unreasonable for Pieper to

       continue to drive at a speed of fifty miles-per-hour. See Ind. Code § 9-21-8-

       52(a)(1). Although the prosecutor made this argument at the conclusion of the

       suppression hearing, Trooper Dunsworth did not testify that this was his basis

       Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015   Page 7 of 12
       for initiating the traffic stop. In fact, when the prosecutor asked what the basis

       for the stop was, Trooper Dunsworth answered, “I don’t believe that the way

       the rear passenger was seated, that he was restrained, or had his seatbelt on.”

       Tr. p. 6. Trooper Dunsworth then testified that he first approached Nordhoff

       and asked if he had had his seatbelt on. Thus, Trooper Dunsworth’s testimony

       does not support the State’s position that the decision to stop Pieper was based

       on Pieper’s purportedly reckless driving.4


[14]   The State contends that, if the stop is objectively justified on reckless driving

       grounds, “it is a legitimate stop even if that was not the officer’s stated purpose

       for conducting the stop.” Appellant’s Reply Br. p. 6. The State does not

       support this argument with any authority that is directly on point and, instead,

       cites cases for the general proposition that an officer’s subjective beliefs do not

       control the Fourth Amendment analysis. See, e.g., Fentress v. State, 863 N.E.2d

       420, 423 (Ind. Ct. App. 2007) (“A police officer’s subjective belief concerning

       whether he had probable cause to arrest a defendant has no legal effect.”);

       Cudworth v. State, 818 N.E.2d 133, 137 (Ind. Ct. App. 2004) (observing that a

       police officer’s subjective belief of exigent circumstances is insufficient to justify

       a warrantless search); see also Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126

       S. Ct. 1943, 1948 (2006) (explaining that an action is reasonable under the




       4
         Later in its brief, the State asserts, “The only violation of law suspected by Trooper Dunsworth was that
       Nordhoff was not properly restrained by a seatbelt . . . .” Appellant’s Br. p. 16. This is consistent with the
       prosecutor’s acknowledgement at the suppression hearing that Trooper Dunsworth did not testify that he
       made the stop based on a suspicion of reckless driving. See Tr. p. 18.

       Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015              Page 8 of 12
           Fourth Amendment, regardless of the individual officer’s state of mind, as long

           as the circumstances objectively justify the action). Although we agree with the

           general proposition that an officer’s subjective reasons for initiating a traffic

           stop are not relevant, we believe that a stop must be based on the police officer’s

           objectively reasonable justifications at the time the stop is made, not the State’s

           post hoc theories. See Webb v. State, 714 N.E.2d 787, 789 (Ind. Ct. App. 1999)

           (rejecting the State’s argument that a stop was justified because “the State has

           imputed to Officer Reddy a new theory for the stop despite Reddy’s own

           testimony as to why he stopped Webb.”); State v. Nesius, 548 N.E.2d 1201, 1203

           (Ind. Ct. App. 1990) (“We do not believe the trial court erred by refusing to

           allow the State to supply—after the fact—a possible justification for the

           investigative stop not contemplated by the police officer at the time of the

           stop.”); see also Meredith v. State, 906 N.E.2d 867, 870 (Ind. 2009) (“An officer’s

           decision to stop a vehicle is valid so long as his on-the-spot evaluation

           reasonably suggests that lawbreaking occurred.”). The after-the-fact claim of

           reckless driving is not a basis for reversing the trial court’s decision.5


[15]       As a final matter, even if Nordhoff’s positioning did create reasonable suspicion

           to justify the stop, “a vehicle, the contents of a vehicle, the driver of a vehicle,




       5
          The State also contends that Trooper Dunsworth’s community caretaking duty to address the dangerous
       situation justified the stop. The State, however, did not assert this theory to the trial court. As a general rule, a
       party may not present an argument or issue on appeal unless it was raised before the trial court. Washington v.
       State, 808 N.E.2d 617, 625 (Ind. 2004). This argument is waived. See id.



           Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015                 Page 9 of 12
       or a passenger in a vehicle may not be inspected, searched, or detained solely

       because of a violation of this chapter.” I.C. § 9-19-10-3.1(a). Our supreme

       court has explained:

                The language of the Act and subsequent case law clearly dictate that in
                adopting the Act, the Legislature intended the statute to limit, rather
                than expand, police authority with respect to seat belt enforcement
                stops and sought to circumscribe the power of police to use a seat belt
                stop as an opportunity to inspect, search, or detain on other grounds,
                even if constitutional law would permit such police behavior. . . .
                [T]he Act simply does not permit investigatory behavior based solely
                on a seat belt violation unless circumstances arise after the stop that
                independently provide the officer with reasonable suspicion of other
                crimes.
       State v. Richardson, 927 N.E.2d 379, 383 (Ind. 2010) (citing Baldwin, 715 N.E.2d

       332).6


[16]   Here, by Trooper Dunsworth’s own testimony, he smelled alcohol on Nordhoff

       while speaking to him and asked if they were going to do more drinking.

       Nordhoff said he was the only one drinking. Trooper Dunsworth then asked

       Pieper if he had been drinking, and Pieper said no. Trooper Dunsworth

       testified that he then asked Pieper to get out of the vehicle “to check” if Pieper

       had been drinking. Tr. p. 14. Only after Pieper got out of the car did Trooper

       Dunsworth smell alcohol on Pieper. Until Pieper got out of the vehicle,

       nothing suggested Pieper had been drinking or was otherwise impaired.




       6
         As our supreme court acknowledged, the seatbelt enforcement statute was amended in 2007 from Indiana
       Code Section 9-19-10-3 to Indiana Code Section 9-19-10-3.1, but the relevant language was unchanged. See
       Richardson, 927 N.E.2d at 382 n.4.

       Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015      Page 10 of 12
       Although the State cites cases indicating that a police officer may ask the

       occupants of car to get out of the car during a traffic stop, none of those involve

       a seatbelt enforcement stop. Cf. Richardson, 927 N.E.2d at 382 (Ind. 2010)

       (declining to address constitutional arguments where challenge to police

       conduct could be resolved on statutory grounds); Pearson v. State, 870 N.E.2d

       1061, 1066 (Ind. Ct. App. 2007) (recognizing Fourth Amendment jurisprudence

       but concluding it is inapplicable to a traffic stop based a seatbelt violation),

       trans. denied. Given the legislature’s clear intent to limit the scope of seatbelt

       enforcement stops, we conclude that the circumstances after the stop did not

       provide Trooper Dunsworth with reasonable suspicion that Pieper had been

       drinking to allow further investigation of Pieper. Thus, Trooper Dunsworth

       unlawfully exceeded the parameters of the seatbelt enforcement stop by

       continuing to investigate whether Pieper had been drinking. See Richardson, 927

       N.E.2d at 384 (concluding that additional questioning of a driver about an

       “unusual bulge” in his pocket that led to the discovery of cocaine contravened

       Indiana Code Section 9-19-10-3.1 where the officer remembered the driver from

       a previous stop that was without incident and the driver was immediately

       cooperative and admitted he was not wearing his seatbelt).


                                                 Conclusion
[17]   Because the stop was not supported by reasonable suspicion, the State has not

       established that the granting of the motion to suppress was contrary to law. We

       affirm.



       Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015   Page 11 of 12
[18]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A05-1407-CR-303 |February 18, 2015   Page 12 of 12
