FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                             JOSEPH E. MORRISON
Attorney General of Indiana                    Roselawn, Indiana

CYNTHIA L. PLOUGHE
Deputy Attorney General
                                                                     FILED
Indianapolis, Indiana                                              Jan 30 2012, 9:31 am


                                                                          CLERK
                                                                        of the supreme court,
                                                                        court of appeals and

                              IN THE                                           tax court




                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                              )
                                               )
       Appellant-Plaintiff,                    )
                                               )
              vs.                              )       No. 56A04-1107-CR-341
                                               )
JOHNNIE S. McCAA,                              )
                                               )
       Appellee-Defendant.                     )


                    APPEAL FROM THE NEWTON SUPERIOR COURT
                         The Honorable Daniel J. Molter, Judge
                            Cause No. 56D01-1102-CM-41


                                    January 30, 2012

                              OPINION - FOR PUBLICATION


BRADFORD, Judge
           In this prosecution of Appellee-Defendant Johnnie McCaa for one count of Class

A misdemeanor Operating a Vehicle While Intoxicated (“OWI”) in a Manner that

Endangers Another Person,1 Appellant-Plaintiff the State of Indiana appeals from the trial

court’s grant of McCaa’s motion to suppress evidence. After an initial stop of McCaa for

erratic driving, police directed McCaa to move his semi-trailer truck to another location

for further investigation.            The State contends that the trial court erred in granting

McCaa’s motion to suppress evidence generated following the initial stop. We reverse

and remand with instructions.

                               FACTS AND PROCEDURAL HISTORY

           The underlying facts of this appeal do not appear to be in dispute. Shortly before

11:43 a.m. on February 21, 2011, Newton County Sherriff’s Sergeant Shannon Cothran,

who was near the scene of a fatal accident on U.S. Highway 41, received a dispatch

concerning “various” reports of a semi-trailer truck being driven erratically southbound

toward the accident site. Tr. p. 6. One report was of a “trash hauler that was all over the

roadway.” Tr. p. 7. The accident, which had occurred approximately forty-five minutes

before, resulted in the driving lane being closed, leaving only the passing lane open to

traffic.        Sergeant Cothran parked in the median facing west and soon observed a

southbound trash hauler “go off the road” to the right twice over the course of

approximately one-half of a mile before he was able to pull in behind it as it approached

the accident site. Tr. p. 9. Sergeant Cothran also observed that the truck was traveling

slowly in relation to the posted speed limit.
           1
               Ind. Code § 9-30-5-2(b) (2010).


                                                    2
      As Sergeant Cothran followed the truck in the driving lane, he radioed ahead to a

Deputy Shufflebarger, who was parked in the driving lane near the accident, to stop the

truck. Sergeant Cothran suggested to Deputy Shufflebarger that he use caution, because

Sergeant Cothran was concerned that the truck would not be able to change to the passing

lane in time. Deputy Shufflebarger stopped the truck in the passing lane a few feet from

or adjacent to the accident site, such that all southbound traffic on U.S. 41 was now

stopped. According to Sergeant Cothran, it was “typical in Newton County to have alot

[sic] of traffic on 41 at 11:43 on … a weekday.” Tr. p. 28.

      Deputy Shufflebarger had the driver, McCaa, exit the truck. Sergeant Cothran,

who had parked behind the truck on the right side of the driving lane, approached and

spoke with McCaa. Sergeant Cothran asked McCaa about his erratic driving, and McCaa

said that he had been eating his lunch and had “spilled [his] pop,” which had caused him

to drive off of the roadway. Tr. p. 16. Sergeant Cothran observed a sandwich wrapper

and a spilled soft drink can on the floor in the cabin of the truck. During the initial

encounter with McCaa, which lasted no more than one minute, Sergeant Cothran did not

notice any slurred speech, glassy or bloodshot eyes, or manual dexterity problems.

According to Sergeant Cothran, a typical stop of a truck due to the sort of erratic driving

involved here would require approximately ten to fifteen minutes.

      Sergeant Cothran decided to continue the investigation because he was not certain

that McCaa’s explanation for his erratic driving was true and was concerned that McCaa

might be suffering from a medical condition such as low blood sugar. Sergeant Cothran

decided to move the investigation to a gas station approximately two miles farther down

                                            3
U.S. 41 because of “a downpour of rain[,]” the truck was blocking the only open lane of

traffic, the gas station had adequate room to park the truck, and a medical crew was

waiting there, having been called in to assist with the accident if necessary. Tr. p. 27.

According to Sergeant Cothran, the truck would have been (1) in the way if it had been

moved just ahead of the crash scene, (2) on the north side of a hill if it had been moved

approximately one-eighth of a mile, and (3) on the south side of a hill if it had moved

moved approximately one-half of a mile. During the drive to the gas station, Sergeant

Cothran observed McCaa drive his truck off the roadway three more times.

        Once inside the gas station, Sergeant Cothran conducted the horizontal-gaze-

nystagmus, one-leg-stand, and walk-and-turn field sobriety tests (“FSTs”) on McCaa, all

of which he failed. McCaa took a portable breath test for blood alcohol concentration,

which registered 0.00.         Sergeant Cothran detained McCaa at the gas station for

approximately twenty minutes.           Sergeant Cothran took McCaa to a hospital where,

pursuant to a search warrant, a urine sample was ultimately collected.2

        On February 24, 2011, the State charged McCaa with Class A misdemeanor OWI

in a manner that endangers another person. On May 13, 2011, McCaa moved to suppress

all evidence generated following the initial stop of McCaa.                    Following a hearing

conducted on May 25 and June 8, 2011, the trial court granted McCaa’s motion to

suppress. The trial court concluded that Sergeant Cothran’s directing McCaa to reenter

his truck and drive it to the gas station was impermissible, apparently on the grounds that

        2
         The record does not reveal which, if any, intoxicant or intoxicants were discovered when
McCaa’s urine was screened. The results of the drug screen, however, are irrelevant in this interlocutory
appeal.


                                                   4
Sergeant Cothran was able to “improve or enhance his probable cause” by witnessing

McCaa drive off of the roadway three more times and because Sergeant Cothran had not

observed any further indications of impairment during the initial stop. Tr. p. 65. The

trial court’s written order provided in relevant part as follows:

       [T]he Court now finds the arresting officer was acting in good faith when
       he directed [McCaa] to drive his semi-trailer to a different location after the
       initial stop to pursue his investigation but that by instructing [McCaa] to
       drive his semi-trailer to a distance of approximately one (1) mile; the Court
       finds that the arresting officer erred.

Appellant’s App. p. 14.

                             DISCUSSION AND DECISION

       We review a trial court’s decision to grant a motion to suppress as a matter of

sufficiency. State v. Moriarity, 832 N.E.2d 555, 557-58 (Ind. Ct. App. 2005). When

conducting such a review, we will not reweigh evidence or judge witness credibility.

Moriarity, 832 N.E.2d at 558. In such cases, the State appeals from a negative judgment

and must show that the trial court’s ruling on the suppression motion was contrary to law.

State v. Estep, 753 N.E.2d 22, 24-25 (Ind. Ct. App. 2001). This court will reverse a

negative judgment only when the evidence is without conflict and all reasonable

inferences lead to a conclusion opposite that of the trial court. Id. at 25. As previously

mentioned, there is no conflict regarding the underlying facts of this case, and in any

event, the trial court’s comments on the record make it clear that it found Sergeant

Cothran, who was the only witness at the suppression hearing, to be credible.

Consequently, the State’s claims come to us essentially as pure questions of law.

                                  A. Fourth Amendment

                                              5
       The State contends that the police had reasonable suspicion to stop McCaa and

continue the investigation beyond the initial stop and that Sergeant Cothran’s decision to

have McCaa move his truck did not impermissibly lengthen the stop.             The Fourth

Amendment to the United States Constitution provides that “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.”        “The overriding function of the Fourth

Amendment is to protect personal privacy and dignity against unwarranted intrusion by

the State.” Schmerber v. California, 384 U.S. 757, 767 (1966). “In Wolf [v. People of

State of Colorado, 338 U.S. 25, 27 (1949) (overruled on other grounds by Mapp v. Ohio,

367 U.S. 643 (1961)] we recognized ‘(t)he security of one’s privacy against arbitrary

intrusion by the police’ as being ‘at the core of the Fourth Amendment’ and ‘basic to a

free society.’” Id.

               [In] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
       (1968),… the Supreme Court recognized that investigative stops of limited
       duration and reasonably related in scope to the justification for their
       initiation are legal. Terry held that a police officer need not have probable
       cause to make an arrest when making an investigative stop, but must be
       able “to point to specific and articulable facts which, taken together with
       rational inferences from those facts,” reasonably warrant “‘the intrusion
       upon the constitutionally protected interests’” of private citizens. Id., 392
       U.S. at 21-22, 88 S.Ct. at 1880 (quoting Camara v. San Francisco Mun.
       Ct., 387 U.S. 523, 534, 87 S.Ct. 1727, 1733-34, 18 L.Ed.2d 930 (1967)).
       Indiana courts follow the Terry guidelines. Platt v. State (1992), Ind., 589
       N.E.2d 222, 225-26; Luckett v. State (1972), 259 Ind. 174, 179, 284 N.E.2d
       738, 741. Whether a particular fact situation justifies an investigatory stop
       is determined on a case by case basis. Platt, 589 N.E.2d at 226. The
       requirements of the Fourth Amendment are satisfied if the facts known to

                                            6
       the officer at the moment of the stop are such that a person “of reasonable
       caution” would believe that the “action taken was appropriate.” Terry, 392
       U.S. at 22, 88 S.Ct. at 1880. Indiana has adopted this test. Gipson v. State
       (1984), Ind., 459 N.E.2d 366, 368.

Baran v. State, 639 N.E.2d 642, 644 (Ind. 1994).

       In Baran and other Indiana cases, erratic or unsafe driving was held to be

sufficient to justify a brief investigatory stop.   See id. (“Here, the trooper watched

Baran’s truck weave more than once back and forth between lanes as it traveled along the

interstate. Given this conduct and the potential danger it posed to other motorists, it was

reasonable for the trooper to believe that further investigation was warranted.”); see also,

e.g., Clark v. State, 561 N.E.2d 759, 762 (Ind. 1990) (“[The police officer] stated that the

vehicle ran over a large pile of leaves, swerved to avoid a parked car, and ran a four-way

stop. This uncontroverted evidence constituted probable cause for a stop.”); Sell v. State,

496 N.E.2d 799, 800 (Ind. Ct. App. 1986) (concluding that stop was appropriate where

car was traveling thirty-five miles per hour below the posted speed limit); and Jaremczuk

v. State, 177 Ind. App. 628, 630-31, 380 N.E.2d 615, 617 (1978) (concluding that stop

was appropriate where vehicle was weaving within the lane of traffic and momentarily

left the roadway).

       Moreover, as a general rule, the reasonable suspicion that justifies the traffic stop

also fully justifies the administration of FSTs. “In … a case [where] the officer [has a

reasonable suspicion that criminal activity may be afoot, he] may briefly detain [a

suspect] to conduct a limited ‘non-invasive’ search such as a ‘pat down’ for weapons, a

license and registration check, or field sobriety tests.” Snyder v. State, 538 N.E.2d 961,


                                             7
963 (Ind. Ct. App. 1989) (emphasis added), trans. denied. As the Arizona Supreme

Court has stated,

       the threat to public safety posed by a person driving under the influence of
       alcohol is as great as the threat posed by a person illegally concealing a
       gun. If nothing in the initial stages of the stop serves to dispel the highway
       patrol officer’s reasonable suspicion, fear for the safety of others on the
       highway entitles him to conduct a “carefully limited search” by observing
       the driver’s conduct and performance of standard, reasonable tests to
       discover whether the driver is drunk. The battery of roadside sobriety tests
       is such a limited search.

State v. Superior Court In & For Cochise Cnty., 718 P.2d 171, 176 (Ariz. 1986); see also,

e.g., Hulse v. State, Dept. of Justice, Motor Vehicle Div., 961 P.2d 75, 87 (Mont. 1998)

(“[I]f an individual is driving erratically–e.g., if he is driving all over the road, crossing

the center line and the fog line, weaving in and out of traffic, or braking for green lights–

such evidence would serve as particularized suspicion both for the officer to initially stop

the driver and to administer field sobriety tests.”).

       This is not to say that this rule is without limits. We agree with the Cochise

County court’s conclusion that erratic driving justifies the administration of FSTs unless

something dispels the officer’s reasonable suspicion following the initial stop.          See

Cochise Cnty., 718 P.2d at 176. “The scope of a Terry stop includes ‘inquiry necessary

to confirm or dispel the officer’s suspicions.’” Potter v. State, 912 N.E.2d 905, 908 (Ind.

Ct. App. 2009) (quoting Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006)). It follows

that if the inquiry dispels reasonable suspicion that criminal activity has occurred, is

occurring, or will occur, the detention must come to an end. See, e.g., State v. Chism, 107

P.3d 706, 710 (Utah Ct. App. 2005) (“Officers must diligently pursue a means of


                                               8
investigation that is likely to confirm or dispel their suspicions quickly, and it is unlawful

to continue the detention after reasonable suspicion is dispelled.”) (citation and quotation

marks omitted).

        Here, acting on various reports of erratic driving by a semi-trailer truck, including

one that it was “all over the roadway,” Sergeant Cothran witnessed McCaa driving his

trash hauler slowly and off of the roadway twice over the course of approximately one-

half mile. Consequently, at this point Sergeant Cothran had reasonable suspicion to

conduct the initial traffic stop and perform FSTs. See Baran, 639 N.E.2d at 644; Snyder,

538 N.E.2d at 963. The question is whether Sergeant Cothran’s reasonable suspicion was

dispelled during the initial stop such that he was no longer entitled to detain McCaa and

perform FSTs.3

        Although we consider it a somewhat close call, we conclude that Sergeant Cothran

was still entitled to detain McCaa for further investigation at the time he told McCaa to

move his truck to the gas station. When Sergeant Cothran was speaking with McCaa for

between thirty seconds and one minute, McCaa offered a seemingly plausible explanation

for his erratic driving and exhibited no outward signs of impairment. A reasonable

person, however, would have been entitled to doubt McCaa’s story. First, although

plausible, the story was undeniably self-serving and therefore suspect. We will not adopt

the rule that reasonable suspicion vanishes as soon as a suspect offers a plausible,

innocent explanation for his seemingly criminal behavior.

        3
            The trial court’s ruling seems to be based, at least in part, on its conclusion that Sergeant
Cothran’s reasonable suspicion was dispelled by his initial investigation because he did not observe any
indicia of alcohol intoxication in McCaa during the initial encounter.


                                                   9
       Moreover, as previously mentioned, at least two persons witnessed a truck that

matched the description of McCaa’s truck driving erratically and reported it to the police,

one going so far as to say that it was “all over the roadway,” and Sergeant Cothran

himself witnessed McCaa drive off of the roadway twice before McCaa stopped at the

accident site.   McCaa’s driving was erratic enough that Sergeant Cothran became

concerned that McCaa would not be able to avoid hitting Deputy Shufflebarger and the

accident site. We believe that a reasonable person would be justified in doubting that

eating or a spilled soft drink could cause such extremely erratic driving. As Sergeant

Cothran put it, “If there is unsafe lane movement to the point that I have to have my

officer move his car, or ask him to move his car because I’m afraid the guy’s going to hit

him, there is a little bit more than I spilled my pop.” Tr. p. 37.

       Finally, we think a reasonable person would wonder why a driver whose eating

had caused him to drive erratically would not simply put the food aside before it

happened again or why a spilled soft drink would cause one to run off of the roadway

more than once. As with the degree of McCaa’s erratic driving, the fact that McCaa

repeatedly drove off of the roadway casts doubt on his story that eating or a spilled soft

drink was the cause. Due to the self-serving nature of McCaa’s story and the degree and

repeated nature of his erratic driving, we conclude that a reasonable person would have

been justified in doubting that eating or a spilled soft drink was the cause of that erratic

driving.

       We also cannot conclude that the absence of obvious signs of impairment, at least

in this case, was sufficient to dispel reasonable suspicion. First, Sergeant Cothran was in

                                              10
a position to observe McCaa for no more than one minute before telling him to move his

truck, when a typical traffic stop for erratic driving of a semi-trailer truck takes

approximately ten to fifteen minutes. It seems clear that Sergeant Cothran simply did not

have enough time during the initial stop to fully investigate the cause of McCaa’s erratic

driving, especially when his attention was divided by his concern for the blocked traffic

on a major highway. Moreover, we cannot ignore the fact that there are many substances

other than alcohol that can render one unfit to drive. The mere fact that evidence of

alcohol is missing does not demonstrate that a person is not intoxicated on some other

substance, such as heroin. We therefore conclude that, under the unusual circumstances

of this case, reasonable suspicion justifying further investigation was not dispelled by

Sergeant Cothran’s initial encounter with McCaa.

      The only question remaining under the Fourth Amendment, then, is whether

Sergeant Cothran’s overall detention of McCaa was impermissibly long, as McCaa

claims.

             Although “the brevity of the invasion of the individual’s Fourth
      Amendment interests is an important factor in determining whether the
      seizure is so minimally intrusive as to be justifiable on reasonable
      suspicion,” United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637,
      2645, 77 L.Ed.2d 110, 122 (1983), there is no “bright line” for evaluating
      whether an investigative detention is unreasonable, and “common sense and
      ordinary human experience must govern over rigid criteria.” United States
      v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 615
      (1985). In Sharpe, the Court explained:

             In assessing whether a detention is too long in duration to be
             justified as an investigative stop, we consider it appropriate to
             examine whether the police diligently pursued a means of
             investigation that was likely to confirm or dispel their
             suspicions quickly, during which time it was necessary to

                                            11
              detain the defendant. A court making this assessment should
              take care to consider whether the police are acting in a swiftly
              developing situation, and in such cases the court should not
              indulge in unrealistic second-guessing. A creative judge
              engaged in post hoc evaluation of police conduct can almost
              always imagine some alternative means by which the
              objectives of the police might have been accomplished. But
              the fact that the protection of the public might, in the abstract,
              have been accomplished by less intrusive means does not, by
              itself, render the search unreasonable. The question is not
              simply whether some other alternative was available, but
              whether the police acted unreasonably in failing to recognize
              or to pursue it.

       Id. at 686–87, 105 S.Ct. at 1575–76, 84 L.Ed.2d at 615-16 (citations and
       quotation marks omitted).

Mitchell v. State, 745 N.E.2d 775, 782-83 (Ind. 2001).

       Under what we note again were the somewhat unusual circumstances of this case,

we conclude that McCaa’s detention was not unconstitutionally lengthy. As previously

mentioned, Sergeant Cothran testified that a typical traffic stop of the kind at issue here

would last ten to fifteen minutes. Sergeant Cothran testified that the initial stop of

McCaa lasted thirty seconds to one minute, the drive to the gas station lasted

approximately three minutes, and the investigation at the gas station lasted approximately

twenty minutes. In summary, the detention was lengthened by approximately eight and

one-half to fourteen minutes when Sergeant Cothran directed McCaa to move his truck,

not a very lengthy amount of time.

       Moreover, the circumstances confronting Sergeant Cothran were unusual, to say

the least: a semi-trailer truck was blocking all traffic on a busy highway and very

possibly blocking access to a fatal accident site; having the truck stop again before


                                             12
reaching the gas station was impractical or unsafe; weather conditions were far from

ideal; McCaa possibly needed medical attention that could be provided at the gas station;

and McCaa was perhaps the only person on the scene who could operate the truck.

Having McCaa drive his truck to the gas station allowed the flow of traffic to resume,

maintained access to the accident, permitted Sergeant Cothran’s investigation to continue

indoors in a controlled environment, allowed for medical attention to be paid to McCaa if

necessary, and removed the truck without having to wait for another driver or a wrecker

to become available. Given the short amount of time that the stop was lengthened and

the other considerations at play, we cannot conclude that the stop, although somewhat

longer than a typical stop, was unconstitutionally lengthy. The Fourth Amendment does

not require suppression of evidence collected following the initial stop.

                                 B. Article I, Section 11

       The State also contends that the investigation of McCaa’s erratic driving was

reasonable. Article I, Section 11, of the Indiana Constitution provides that

       [t]he right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable search or seizure, shall not be violated; and no
       warrant shall issue, but upon probable cause, supported by oath or
       affirmation, and particularly describing the place to be searched, and the
       person or thing to be seized.

       The Indiana Supreme Court has noted that

              [w]hile almost identical in wording to the federal Fourth
       Amendment, the Indiana Constitution’s Search and Seizure clause is given
       an independent interpretation and application. Mitchell v. State, 745
       N.E.2d 775, 786 (Ind. 2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.
       1999); Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994). To determine
       whether a search or seizure violates the Indiana Constitution, courts must
       evaluate the “reasonableness of the police conduct under the totality of the

                                            13
      circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005) (citing
      Moran, 644 N.E.2d at 539). “We believe that the totality of the
      circumstances requires consideration of both the degree of intrusion into the
      subject’s ordinary activities and the basis upon which the officer selected
      the subject of the search or seizure.” Id. at 360. In Litchfield, we
      summarized this evaluation as follows:

             In sum, although we recognize there may well be other
             relevant considerations under the circumstances, we have
             explained reasonableness of a search or seizure as turning on
             a balance of: 1) the degree of concern, suspicion, or
             knowledge that a violation has occurred, 2) the degree of
             intrusion the method of the search or seizure imposes on the
             citizens’ ordinary activities, and 3) the extent of law
             enforcement needs.

      Id. at 361.

Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005).

      Here, the degree of suspicion was reasonably high. Sergeant Cothran received

reports of a trash-hauler that was “all over the roadway” and then witnessed a truck

fitting that description run off of the roadway twice in a half mile.      As previously

explained, nothing happened during the initial investigation that would cause a

reasonable person’s suspicion to dissipate to the point where further investigation was

unwarranted. The degree of suspicion was heightened even further during the drive to

the gas station, during which Sergeant Cothran saw McCaa drive off of the roadway three

additional times, especially when Sergeant Cothran could be more certain that the erratic

driving was not due to eating.

      The degree of intrusion caused by the investigation was not disproportionately

high. Although McCaa was detained for longer than a typical traffic stop for erratic

driving, fewer than twenty-five minutes passed until it was determined that McCaa

                                           14
needed to be taken to a hospital. Indeed, moving the investigation to the gas station, if

anything, was more protective of McCaa’s rights than if it had been conducted at the

accident site. As it happened, McCaa was able to perform the FSTs in a controlled

environment in private, away from public view and inclement weather that might have

affected his performance. We further conclude that the needs of law enforcement were

great. While “the threat to public safety posed by a person driving under the influence of

alcohol is as great as the threat posed by a person illegally concealing a gun[,]” Cochise

Cnty., 718 P.2d at 176, it almost goes without saying that the threat posed by an impaired

person driving a semi-trailer truck is significantly greater.

       To the three considerations specifically named by the Myers court we would add

one more that we believe is relevant in this case: the degree to which a search or seizure

of a suspect inconveniences other persons or puts them at risk. Sergeant Cothran’s

actions minimized what could have been extreme inconvenience and the risk of harm to

other members of the public. While having McCaa move his truck was not without risk

and almost certainly resulted in lengthening his detention, it allowed for the continued

access of emergency vehicles and personnel to the accident site and for the free flow of

traffic on U.S. 41. Given the high level of suspicion, relatively low degree of intrusion

into McCaa’s ordinary activities, great needs of law enforcement, and the way in which

the search minimized inconvenience and risk of harm to the public, we conclude that it

was reasonable under the totality of the circumstances.

                                        C. Osborne



                                              15
       The trial court, in its written order, concluded that while Sergeant Cothran was

acting in good faith in having McCaa move his truck from the location of the initial stop,

he was not justified in having him move it all the way to the gas station. We take the trial

court’s statement to be, in part, an expression of concern regarding Sergeant Cothran’s

decision to allow McCaa to move his truck as far as the gas station. We share that

concern. Put simply, Sergeant Cothran’s decision to allow McCaa back onto the road

could have had dire consequences, and we therefore feel compelled to address that

decision in light of this court’s decision in Osborne v. State, 805 N.E.2d 435 (Ind. Ct.

App. 2004), trans. denied.

       In Osborne, police learned from an informant named David Turner that Richard

Osborne was in possession of cocaine and that Turner would be bringing him to French

Lick. Id. at 437. Turner, who was apparently hoping to secure favorable treatment for

his girlfriend from authorities, entered into an agreement with police “whereby Turner

would drive through French Lick [later that day] with Osborne in the car and exceed the

posted speed limit so that the police could pull him over.” Id. Turner, however, had also

informed police that he had been drinking all day and had consumed cocaine. Id. When

Turner later drove through French Lick with Osborne, he was indeed pulled over and

Osborne was found to be in possession of cocaine. Id. at 438.

       In a holding unique to Indiana law, we held that under Article I, Section 11, the

evidence collected against Osborne must be suppressed, not because police lacked

sufficient particularized suspicion, but because of “outrageously dangerous” conduct:



                                            16
              Inasmuch as it is a policy of the utmost importance to the State of
       Indiana to prevent impaired driving, we find the police officers’ conduct in
       this case to have been outrageously dangerous. The state trooper knew
       from the conversation with Turner that Turner had been drinking and
       consuming cocaine that day. The police flouted Indiana’s public policy by
       agreeing to a plan that required Turner, a man they knew to have ingested
       both alcohol and cocaine, to drive upon our public highways in such a
       condition. They released a missile over which they had no control in the
       form of a Honda Prelude onto the streets of southern Indiana by not only
       failing to prevent Turner from driving, but actually encouraging him to
       drive by agreeing to and acting upon this plan. We cannot condone the
       actions of the police under these circumstances, and we extend the
       exclusionary rule to cover not only illegal conduct, but also outrageously
       dangerous conduct such as this by the police.

Id. at 440 (record citation omitted).

       While we have concerns regarding Sergeant Cothran’s actions in this case, we do

not think they qualify as outrageously dangerous. Unlike in Osborne, police had a fair

measure of control over this situation. Sergeant Cothran and another officer followed

McCaa as he drove to the gas station, and there was no reason to believe that McCaa

would attempt flight, as he had already stopped for police once. Also unlike in Osborne,

there was very little chance of McCaa’s truck encountering other traffic as he drove to the

gas station, because all other southbound traffic had been stopped behind him, and the

traffic in front had had time to drive ahead. In other words, to the extent that McCaa’s

driving posed a risk, it was essentially limited to the risk that he would run his truck off

of the roadway but not that he would run it into another vehicle.4

       4
            Statistics bear out the common-sense notion that when a large truck and much smaller
passenger vehicle collide, the passenger vehicle and its occupants usually get the worst of it. Indeed,
“Ninety-eight percent of vehicle occupants killed in two-vehicle crashes involving a passenger vehicle
and a large truck in 2009 were occupants of the passenger vehicles.” Insurance Institute for Highway
Safety, Fatality Facts 2009-Large Trucks (last visited Dec. 5, 2011, 1:34 PM), http://www.iihs.org/
research/fatality_facts_2009/largetrucks.html.

                                                  17
       The most compelling distinction between this case and Osborne, however, is in the

circumstances faced by police that led to the decision to allow a possibly impaired driver

to drive. Here, McCaa’s truck was initially stopped in inclement weather in such a way

as to block all traffic on U.S. 41 and impede access to a fatal accident site. In addition,

there do not seen to have been any suitable places to stop between the accident site and

the gas station. Even considering the risks involved in allowing McCaa to drive, it may

have been riskier to keep the truck where it was or have it stop before reaching the gas

station. Sergeant Cothran, faced with a situation he had no part in creating, seems to

have attempted to choose the best option among many imperfect ones, and, indeed, the

trial court specifically found that he acted in good faith.

       In Osborne, in contrast, there was no possible justification for the actions of the

police and no indication of good faith. The police officers in Osborne were not reacting

to a dangerous situation when they allowed Turner to drive, they were creating it. The

officers seem to have acted wholly without regard for the safety of Turner, Osborne, or

the public, having allowed their desire to apprehend Osborne to blind them to the obvious

dangers posed by their scheme. Given the relative amount of control that Sergeant

Cothran had, the comparatively small risk involved, and the fact that the alternatives may

have been as bad or worse, we cannot say that Sergeant Cothran’s actions were

outrageously dangerous. Consequently, we conclude that Osborne is inapposite and that

its rule does not require suppression of any evidence in this case.

                                      CONCLUSION



                                              18
        Because we conclude that the search and seizure of McCaa violated neither his

federal nor state constitutional rights, we reverse the trial court’s grant of McCaa’s

motion to suppress and remand with instructions for further proceedings consistent with

this opinion.5

        The judgment of the trial court is reversed, and the cause is remanded.

KIRSCH, J., concurs.

BARNES, J., concurs with separate opinion.




        5
            McCaa also contends that the results of drug tests on his urine should be suppressed because the
applicable search warrant only authorized the collection of his blood, a claim that, while raised below,
was not addressed by the trial court. Evaluation of this contention, however, would require us to engage
in impermissible fact-finding. There is, for example, evidence in the record that McCaa voluntarily
donated urine when he learned that the blood draw authorized by the warrant would be accomplished by
force, if necessary. Rejection of McCaa’s argument would mean that we accepted this evidence as fact,
while acceptance of his argument would mean that we found it incredible, neither of which we may do. It
is for the trial court to evaluate the factual aspects of this claim, should McCaa decide to pursue it further.


                                                     19
                               IN THE
                    COURT OF APPEALS OF INDIANA



STATE OF INDIANA,                                 )
                                                  )
       Appellant-Plaintiff,                       )
                                                  )
              vs.                                 )     No. 56A04-1107-CR-341
                                                  )
JOHNNIE S. MCCAA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


BARNES, Judge, concurring

       I begrudgingly concur here. I respect Judge Bradford’s analysis, but write to

emphasize that only the unique and rare circumstances at play in this case allow me to

vote to concur. If police had not been forced to initially pull McCaa over at a location

that caused him to block all traffic on a well-traveled highway, which necessitated having

McCaa continue driving to a different location so that FSTs could safely be administered,

my vote might not be the same. No mistake should be made that law enforcement

officers could or should allow a person to drive a vehicle, observe the driver, and buttress

their probable cause because of these observations.         These circumstances are the

proverbial “once in a lifetime,” fortunately for police.




                                             20
