                                                                                  FILED
                                                                              Sep 07 2017, 3:50 pm
ATTORNEY FOR APPELLANT                          ATTORNEYS FOR APPELLEE
William T. Myers                                Curtis T. Hill, Jr.               CLERK
                                                                              Indiana Supreme Court
Grant County Public Defender                    Attorney General of Indiana      Court of Appeals
                                                                                   and Tax Court
Marion, Indiana
                                                Larry D. Allen
                                                Deputy Attorney General
                                                Indianapolis, Indiana



                                           In the
                          Indiana Supreme Court
                                    No. 27S02-1703-CR-170

WILL THOMAS,
                                                            Appellant (Defendant below),

                                               v.

STATE OF INDIANA,
                                                            Appellee (Plaintiff below).


                   Appeal from the Grant Superior Court, No. 27D01-1404-FA-5
                              The Honorable Jeffrey D. Todd, Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 27A02-1602-CR-374


                                       September 7, 2017

David, Justice.

        Will Thomas was found guilty of Class A felony dealing in a narcotic drug, and now
appeals his conviction under the Fourth Amendment to the United States Constitution. For the
reasons discussed herein, we find Thomas’s arrest was lawful and the evidence recovered was
admissible. Accordingly, we affirm the trial court’s conviction.
                                  Facts and Procedural History

       This case arose from an arrest for dealing in narcotic drugs. On April 7, 2014, the Joint
Effort Against Narcotics (“JEAN”) Team Drug Task Force, which included officers from the
City of Marion Police Department and the Grant County Sheriff’s Office, received a tip from a
credible confidential informant that two men from Chicago were travelling to Grant County to
sell drugs. The informant told JEAN officers that the two men were driving a white minivan
with a temporary Illinois license plate, and could be found at the Comfort Suites in Marion,
Indiana.

       Upon receiving this information, Detective Mark Stefanatos (“Detective Stefanatos”)
began surveillance of a Dodge Caravan that fit the confidential informant’s description. While
there, he observed two men, later identified as Will Thomas and Byron Christmas, enter the
vehicle and drive away.

       Detective Stefanatos followed the van and observed it illegally change lanes without
properly signaling. Detective Stefanatos then called for a uniformed police officer, Joseph
Martin (“Officer Martin”), to initiate a traffic stop. He also called for a canine unit on the scene,
which arrived within a minute or two.

       Officer Martin initiated the stop and approached the vehicle with Detective Stefanatos.
Officer Martin walked to the driver’s side of the vehicle and spoke with Christmas while
Detective Stefanatos spoke with Thomas, who was sitting in the front passenger seat. The
officers tried to verify each man’s identity and their reason for travelling through Marion,
Indiana. Both Thomas and Christmas told officers that they were visiting family, but neither
man could identify where in Indiana their respective family members lived. Furthermore, the
driver, Christmas, was unable to present officers with any form of identification and claimed he
left his driver’s license in Chicago.

       Simultaneous to the traffic stop, officers ran a certified narcotics canine around the
vehicle with the occupants still inside. The officers first brought the canine to the vehicle’s rear
bumper and had it sniff along the driver’s side. When the canine reached the driver’s door, it
alerted officers to the presence of narcotics. Officers removed Thomas and Christmas from the


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vehicle and conducted a pat-down search for officer safety. No drugs or weapons were found in
the course of the pat-down.

           Christmas then gave officers permission to search the vehicle. The canine was brought
into the vehicle’s interior, but it no longer detected the presence of narcotics. No narcotics or
contraband were found in a subsequent search of the vehicle’s interior. Officers did not bring the
narcotics detection canine around the suspects because the canine was also trained as an
apprehension dog. Bringing the dog around the suspects ran the risk of causing them injury if
either of the suspects turned out to possess contraband.

           Christmas and Thomas were each asked whether they would consent to a strip search at
the police station. Christmas agreed and was transported to the county jail where no drugs were
found on his person. Officers did, however, find Christmas had $750 in cash. Thomas, on the
other hand, declined the search. Given Thomas’s refusal to consent, officers applied for a search
warrant. In the meantime, they transported Thomas to the Marion Police Station where he would
await the results of the search warrant request. Officers said they transported Thomas because
they preferred to conduct the search somewhere other than a public roadway.            They also
expressed concern about the destruction of evidence if Thomas were not transported to the police
station.

           Upon arrival at the station, Thomas was placed in an interview room, which was
equipped with video monitoring equipment.         Officers left Thomas alone in the room and
continued to observe him remotely. Moments later, Thomas was seen removing something from
his jacket pocket and placing it in his mouth. Officers re-entered the room to retrieve what
Thomas had placed in his mouth. When Thomas refused to comply, officers forced his mouth
open and retrieved a small plastic baggie containing 8.5 grams of a gray, crumbly, rock-like
substance. The substance later tested positive for heroin.

            Thomas was charged with Class A felony dealing in a narcotic drug and Class B
misdemeanor battery. Prior to trial, Thomas moved to suppress evidence recovered at the police
station, alleging officers lacked probable cause to detain him. The trial court denied Thomas’s
motion. After a two-day jury trial, Thomas was found guilty of dealing in a narcotic drug, but
not guilty of battery. Thomas appealed.

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       In a published opinion, the Court of Appeals reversed Thomas’s conviction, finding that
police violated Thomas’s Fourth Amendment rights when they detained and transported him to
the police station to await a search warrant. Thomas v. State, 65 N.E.3d 1096, 1103 (Ind. Ct.
App. 2016), transfer granted, opinion vacated, 2017 WL 1160999 (Ind. Mar. 23, 2017). The
Court of Appeals further found that the trial court erred in not excluding evidence obtained
during that detention. Id.

       The State then sought transfer. Pursuant to Indiana Appellate Rule 58(A), we granted
transfer, thereby vacating the Court of Appeals’ opinion.

                                       Standard of Review

       Thomas did not seek interlocutory review of the trial court’s denial of the suppression
motion; instead, the matter proceeded to trial. Thus, we consider this appeal a request to review
the trial court’s decision to admit evidence. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014)
(citing Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014)). The trial court has broad discretion to
rule on the admissibility of evidence. Guilmette, 14 N.E.3d at 40. Rulings on the admissibility
of evidence are reviewed for an abuse of discretion and ordinarily reversed when admission is
clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d
386, 390 (Ind. 1997).        However, when a challenge to such a ruling is predicated on the
constitutionality of the search or seizure of evidence, it raises a question of law that we review de
novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013) (internal citations omitted).

                                            Discussion

       Thomas does not dispute the legality of most activities carried out by law enforcement on
the day of his arrest. As a starting point, he agrees officers initiated a lawful traffic stop for
failure to signal while changing lanes. Thomas also concedes the legality of the canine unit’s
use, the search of the vehicle’s interior, and the brief detention on the side of the road, which
included a pat-down search.

       Instead, Thomas argues that officers lacked probable cause to transport him to the police
station because, although a positive canine alert undoubtedly gives officers probable cause to
search a vehicle, it does not create probable cause to search any of the vehicle’s occupants or to


                                                 4
detain them. Thomas argues that when he was taken to the police station and placed in an
interrogation room, he was being held in violation of his Fourth Amendment rights; therefore,
any evidence recovered should be deemed inadmissible.

       The State disagrees, arguing that the canine’s positive alert, when coupled with the
subsequent “ruling out” of the vehicle, provided officers with the probable cause they needed to
detain both occupants. Thus, according to the State, when Thomas was observed placing the
contraband in his mouth, he was lawfully detained and any evidence recovered in that instance
was properly admitted.

       As an initial matter, we note that Thomas’s argument is partly misplaced. Whether
probable cause to search the vehicle gave officers probable cause to search the occupants is
irrelevant. Aside from a roadside pat-down that Thomas concedes was lawfully administered,
Thomas was not searched. The contraband that officers recovered, which Thomas now claims
was inadmissible under the exclusionary rule, was observed by officers while Thomas was being
held in the interrogation room. Thus, the pertinent question is more accurately framed as
whether probable cause to detain Thomas and transport him to the police station arose at any
point during the traffic stop. However, before we make that determination, we must first
dispense with whether, at the time Thomas placed the baggie in his mouth, he was in custody for
purposes of our analysis.

I.     Thomas was in custody when he was transported to the police station.

       An arrest arises when the taking or seizure of a person occurs in a way that deprives,
interrupts, or restricts the person of her liberty or freedom of movement. Sears v. State, 668
N.E.2d 662, 667 (Ind. 1996); Armstrong v. State, 429 N.E.2d 647, 651 (Ind. 1982). Determining
whether a person was in custody or deprived of her freedom requires an inquiry into whether
there was a formal arrest or restraint on freedom of movement to a degree associated with a
formal arrest. Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003) (citing California v. Beheler, 463
U.S. 1121, 1125 (1983)). The inquiry utilizes an objective test that asks whether a reasonable
person under the same or similar circumstances would believe she was not free to resist the
entreaties of the police. Sellmer v. State, 842 N.E.2d 358, 363 (Ind. 2006).



                                                5
       Here, Thomas was first asked whether he was willing to consent to a strip search. When
he declined to give consent, officers informed Thomas that if he declined, he would be
transported to the police station to await the results of a search warrant request. The record
makes clear Thomas was given only two choices: either 1) consent to the strip search, or 2) be
detained at the police station until a judge made a determination on the search warrant. No
reasonable person under those circumstances would believe a third choice was available: one in
which he was free to walk away from police officers at will. Accordingly, we find that when
Thomas was transported from the scene of a lawful traffic stop to await the results of a search
warrant request at a police station, he was in custody.

II.    Thomas was lawfully detained when officers observed him placing a plastic baggie
       in his mouth.

       Given the nature of the encounter between Thomas and officers, we turn to the Fourth
Amendment, which regulates all nonconsensual encounters between citizens and law
enforcement officials.    Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003).           The Fourth
Amendment guarantees that:

               The 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.

U.S. Const. amend. IV (emphasis added). The Fourth Amendment’s prohibition on unreasonable
searches and seizures applies not only to searches and seizures of property, but also to physical
apprehension of persons, such as arrests. Roberts v. State, 599 N.E.2d 595, 598 (Ind. 1992). In
general, police must have a warrant to make an arrest. Herring v. United States, 555 U.S. 135,
136 (2009). An officer may, however, arrest a suspect without a warrant if he observes the
suspect committing a crime, or if the officer has probable cause to believe that the suspect has
committed a felony. Sears, 668 N.E.2d at 666-67 (citing Tennessee v. Garner, 417 U.S. 1, 7
(1985)). Officers here did not observe Thomas or Christmas in possession of contraband and a
search of the vehicle’s interior turned up empty. Thus, to lawfully seize Thomas at the traffic
stop, transport him to the police station, and detain him in the interrogation room pending the


                                                 6
search warrant request results, officers needed probable cause to believe he possessed
contraband.1

         Probable cause to arrest arises when, at the time of the arrest, the arresting officer has
knowledge of facts and circumstances, which would warrant a person of reasonable caution to
believe that the defendant committed the criminal act in question. Sears, 668 N.E.2d at 667
(citing Green v. State, 461 N.E.2d 108, 112 (Ind. 1984). The amount of evidence necessary to
satisfy the probable cause requirement for a warrantless arrest is evaluated on a case-by-case
basis. Peterson v. State, 674 N.E.2d 528, 536 (Ind. 1996), reh’g denied, cert. denied, 522 U.S.
1078 (1998). Rather than requiring a precise mathematical computation, probable cause is
grounded in notions of common sense. Ogle v. State, 698 N.E.2d 1146, 1148 (Ind. 1998) (citing
Illinois v. Gates, 462 U.S. 213, 235-36 (1983)).

         To determine whether probable cause arose at any point during the traffic stop, we first
turn to guidance from the ultimate authority on federal constitutional matters: the United States
Supreme Court. The parties direct our attention to the U.S. Supreme Court’s case in Maryland v.
Pringle, 540 U.S. 366 (2003).             Unfortunately, we find that neither Pringle, nor any other
Supreme Court case discussing probable cause, address the precise facts presented in this case –
i.e., where suspects are detained after a trained canine alerts to the presence of narcotics in a
vehicle while the suspects are inside, the suspects are removed, and an interior search of the
vehicle is fruitless.

         In Pringle, police conducted a lawful traffic stop for speeding, and officers were given
consent to search the vehicle. Id. at 368. But unlike the case at bar, officers in Pringle actually
found cocaine and cash in the glove compartment. Id. Police arrested all three occupants – the
driver and two passengers. Id. at 368-69. The question the Court faced was whether the
defendant’s mere presence in the vehicle as a passenger created probable cause to believe he had
committed a crime. The Court said yes, finding “it an entirely reasonable inference from these


1
  Fourth Amendment jurisprudence makes clear that a search incident to an arrest is permissible where the arrest is
lawful. Sears, 668 N.E.2d at 666. Presumably, officers could have searched Thomas upon arrest, after establishing
probable cause. But for reasons we will not attempt to rationalize, officers chose not to conduct a search incident to
arrest. Instead, they sought to legitimize their search in the eyes of the law by obtaining a search warrant. Thus, the
only question before us is whether, at the time Thomas was detained in the interrogation room, such detention was
lawful – in other words, supported by probable cause.

                                                          7
facts that any or all three of the occupants had knowledge of, and exercised dominion and control
over, the cocaine.” Id. at 372. While Pringle does not directly answer the question presented
here, its holding is helpful to the extent that it instructs us that officers may arrest any and all
occupants of a vehicle, provided probable cause exists to believe a crime has been committed.2
We take the principles espoused by the U.S. Supreme Court and we seek further guidance in our
own state’s precedent to determine whether probable cause existed.

         In searching through our own jurisprudence, we find our Court has also not yet addressed
the question directly. The closest we came to addressing the question was in State v. Hobbs, 933
N.E.2d 1281, 1286 (Ind. 2010), where we cited U.S. Supreme Court precedent, but only to hold
that a dog sniff on a vehicle was not a “search” triggering the Fourth Amendment’s warrant
requirement. That is not quite the question we now confront.

         The Court of Appeals, on the other hand, has addressed the question twice, although in
each instance they have reached opposite results. The latest decision on the issue happens to be
the case before us. There, the Court of Appeals cited a lack of probable cause for the arrest as
the reason for finding the evidence inadmissible. Prior to that, in Richard v. State, 7 N.E.3d 347,
349-50 (Ind. Ct. App. 2014), our Court of Appeals found that probable cause existed.

         The facts in Richard are substantially similar to the ones presented here.                        Officers
conducted a traffic stop when they observed a vehicle in front of them repeatedly cross the center
line. Id. at 348. Two occupants were seated in the front of the vehicle – Christopher Fields was
in the driver’s seat and the defendant, Charla Richard, sat in the passenger side. Id. Officers
recognized both occupants and arrested Fields on the basis of an outstanding warrant. Id. Then,
with Richard still seated inside, a canine trained in narcotics detection was passed around the
vehicle and it alerted officers to the presence of narcotics near the driver’s door. Id. Officers
asked Richard to exit the vehicle and they conducted a search. Id. As they searched, officers
noticed Richard favored one side. Id. When she was asked to raise her right arm, a small tin
containing meth fell out of her shirt and onto the ground. Id. Richard was arrested and she
moved to suppress the evidence obtained from the search under both the federal and state
constitution. Id. The trial court denied the motion, and she was subsequently convicted. Id.

2
  An exception to this rule is where one occupant is “singled out” as the culprit. In such a scenario, probable cause
to search and seize other vehicle occupants may not exist. See United States v. Di Re, 332 U.S. 581, 593 (1984).

                                                         8
The Court of Appeals affirmed her conviction, finding, in part, that the canine’s alert provided
probable cause to believe there were drugs in the vehicle. Id. at 349-50.

         The State contends that we should heed the reasoning of our Court of Appeals in
Richard and adopt a rule that allows for the arrest of a vehicle’s occupants where there is
probable cause to believe that the occupants possess drugs. To the extent that this is the rule in
Richard, we are inclined to agree with the State, but we depart from the Richard panel on the
amount of evidence needed to establish probable cause. We rely on numerous facts to make a
probable cause determination, not just the canine’s alert. In fact, we believe it is unlikely that
any of the facts presented here would have, on their own, armed officers with the probable cause
necessary to conduct a lawful arrest. The case we are presented with, however, offers much
more than a single canine alert to support a probable cause finding.

       Officers had knowledge of facts and circumstances which would warrant a person of
reasonable caution to believe that Thomas was in possession of narcotics. Here, a reliable
confidential informant provided officers with specific information about illicit activities being
carried out and offered a detailed description of the vehicle involved.         Officers had the
opportunity to confirm that description when they arrived at the hotel. Then, when officers
legally pulled the vehicle over, Thomas seemed nervous, raising the specter of suspicion that
criminal activity was afoot. Heightening officers’ suspicions were the inconsistent answers
Thomas and Christmas gave officers about their travel through the county; neither could identify
where the family members they were visiting lived. Thomas’s companion was also traveling
across state lines without a license or any other form of identification, which officers knew from
their experience is often true of drug dealers transporting contraband. Finally, tipping the scale
from reasonable suspicion into probable cause, a trained canine alerted the officers to narcotics
in the vehicle while the occupants were inside, and then no longer detected narcotics in the
vehicle when the occupants were removed. At that point, the sum of those facts would warrant a
reasonable person to believe at least one of the two occupants took the drugs with him when he
exited the vehicle and likely still possessed the narcotics.

       Despite Thomas’s attempt to trivialize this last point as “process-of-elimination,” we
think the inference created when the canine sensed narcotics and then ceased sensing them upon


                                                  9
the occupants’ exit from the vehicle is a key component of a probable cause finding. We agree
that the canine alert, by itself, may not have been enough to give officers probable cause to arrest
Thomas. But here, officers already had high suspicions and solid reason to believe that criminal
activity was afoot. Then, a highly trained canine alerted to the presence of narcotics while the
suspects were inside the vehicle, but it no longer detected the narcotics when the suspects were
not inside.   Knowing the facts available to the officers and the inferences drawn from a
combination of the canine alert and subsequent absence of alert, common sense dictates that
someone moved the contraband between sniffs. The totality of these circumstances convinces us
that officers had knowledge of facts and circumstances which would warrant a reasonable person
to believe one of the two occupants took the drugs with him when he exited the vehicle and
likely still had them on his person.

       In sum, we’re convinced officers met the probable cause threshold necessary to detain
Thomas. What occurred here is an example of good policing in a difficult situation. Officers did
everything by the book – they made a lawful stop after observing a lane change without
signaling; they ran a trained canine simultaneous to the lawful stop, so as to not change the
character of the stop; and after being alerted to the presence of narcotics in the vehicle, they
asked for and received consent to search the interior. Then, rather than risk the suspect being
bitten by the apprehension canine, they transported the suspect to the police station and applied
for a search warrant – a step that was, in hindsight, likely unnecessary since they had already
attained the requisite probable cause to arrest Thomas and could have conducted a search
incident to arrest. It was while being lawfully detained that Thomas was observed with the illicit
contraband. We agree with the State in that a finding adopting Thomas’s argument – one in
which officers with a mountain of facts pointing to the existence of crime have no alternative but
to let suspects walk free because a search cannot be conducted at the site of the traffic stop –
would place an untenable burden on officers after probable cause for criminal activity has
already been established.

                                           Conclusion

       The totality of the circumstances presented here convinces us that officers had probable
cause to believe Thomas was in possession of narcotics. Therefore, transporting him to, and
detaining him at, the police station to await the results of the search warrant request did not run

                                                10
afoul of the Fourth Amendment.        When Thomas was observed putting the plastic baggie
containing a narcotic drug into his mouth, he was lawfully detained. Any evidence recovered in
that instance cannot be said to be “fruit of the poisonous tree,” and its admission did not violate
Thomas’s Fourth Amendment rights. Accordingly, we affirm the trial court’s decision to admit
the evidence and we reinstate Thomas’s conviction.



Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.




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