MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                     FILED
regarded as precedent or cited before any                        Jan 20 2017, 7:19 am

court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
the defense of res judicata, collateral                             Court of Appeals
                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brandon E. Murphy                                        Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthoni C. Thornburgh,                                   January 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         05A02-1605-CR-1091
        v.                                               Appeal from the
                                                         Blackford Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      J. Nicholas Barry, Judge
                                                         Trial Court Cause No.
                                                         05D01-1511-CM-271



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 1 of 13
[1]   Anthoni C. Thornburgh (“Thornburgh”) appeals his conviction, following a

      bench trial, for possession of marijuana1 as a Class B misdemeanor. During a

      valid traffic stop of the vehicle in which Thornburgh was a passenger, sheriff’s

      deputies conducted a dog sniff around the vehicle. After the drug-detection dog

      (“K-9”) alerted to the presence of an illegal substance, deputies searched the

      vehicle and found marijuana. Thornburgh unsuccessfully moved to suppress

      that evidence, arguing that the dog sniff prolonged the traffic stop in violation of

      his Fourth Amendment rights. The evidence was subsequently admitted at trial

      over Thornburgh’s continuing objection. The sole restated issue for our review

      is whether the trial court abused its discretion in admitting the evidence

      obtained as a result of the search. Finding no abuse of discretion, we affirm.


                                     Facts and Procedural History
[2]   On July 3, 2016, around 10:15 p.m., Deputy Michael Goldsmith (“Deputy

      Goldsmith”) and Lieutenant James Heflin (“Lieutenant Heflin”), both with the

      Blackford County Sheriff’s Office, were on patrol when they received

      information from a Delaware County Drug Task Force Agent. The Agent

      reported that two vehicles—a white Buick and a maroon Malibu—were

      traveling in tandem from Muncie to Hartford City and were believed to be

      carrying illegal drugs. Numerous deputies were alerted to this information.

      Identifying two such vehicles traveling north on State Highway 3, Deputy




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


      Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 2 of 13
      Goldsmith and Lieutenant Heflin began following the Buick, while other

      deputies followed the Malibu. Soon thereafter, Deputy Goldsmith and

      Lieutenant Heflin observed the Buick illegally cross the highway’s center line

      and initiated a traffic stop just north of the intersection of County Road 200

      South and State Road 3. Deputy Goldsmith approached the Buick on the

      driver side, while Lieutenant Heflin approached on the passenger side. There,

      the deputies noted a female driver (“the driver”) and male passenger (“the

      passenger”) in the front seat and two children in car seats and a male passenger,

      later identified as Thornburgh, in the back seat.


[3]   Deputy Goldsmith explained the reason for the stop and asked the driver for

      her license, registration, and proof of insurance. Following standard

      department procedure, Deputy Goldsmith also asked the passenger and

      Thornburgh for their names and identifying credentials. He then informed the

      adults in the Buick (“occupants”) that he intended to have his K-9 conduct a

      “clean air sniff around the vehicle” and explained to the occupants “the simple

      K-9 instructions.” Tr. at 10. Deputy Goldsmith instructed the driver to shut off

      the vehicle and roll up the windows. While walking back to their patrol car,

      Deputy Goldsmith asked Lieutenant Heflin to do a records search, i.e., run the

      occupants’ names through dispatch to check if the driver had a valid license and

      if the occupants had outstanding warrants. Id. Meanwhile, other deputies

      continued to follow the Malibu and remained in radio contact with dispatch.


[4]   Lieutenant Heflin testified at trial that, when Deputy Goldsmith gave him the

      identification information, he “took over the traffic stop at that point”;

      Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 3 of 13
      however, radio traffic prevented him from immediately running the records

      search. Id. at 64-65. Meanwhile, Deputy Goldsmith retrieved his K-9 and

      walked the dog around the vehicle; the dog alerted to the presence of an illegal

      drug in the Buick. Lieutenant Heflin was able to complete the document

      investigation only after the K-9 alerted to the illegal substance. Id. at 65.

      Approximately three and a half minutes passed from the beginning of the traffic

      stop until the K-9 alerted.


[5]   Based on the K-9’s alert, the occupants were asked to exit the vehicle. A search

      of Thornburgh’s person revealed “a set of digital weighing scales” and $25 in

      one dollar bills. Tr. at 13. A subsequent search of the Buick revealed a zip-

      lock-style bag containing marijuana, which deputies found hidden under a child

      car seat next to where Thornburgh had been seated. The large bag weighed

      121.9 grams and held four individual bags containing smaller quantities of

      marijuana. Thornburgh was arrested, was read his Miranda rights, and

      confessed to the knowledge of the existence of the marijuana and to his

      ownership of it. The State charged Thornburgh with possession of marijuana as

      a Class B misdemeanor.


[6]   Prior to trial, Thornburgh filed a motion to suppress the marijuana found in the

      course of the traffic stop, arguing that it was found only as the result of an

      unlawfully extended stop. The trial court denied Thornburgh’s motion after a

      hearing. Thornburgh again objected to the admission of the marijuana at trial,

      and the trial court, relying on the same rationale from the suppression hearing,

      overruled Thornburgh’s objection and allowed the marijuana to be admitted.

      Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 4 of 13
      Id. at 45-46. Thornburgh was convicted of possession of marijuana and was

      sentenced to one hundred and eighty days in jail, all suspended except for time

      served. Thornburgh was placed on supervised probation for 365 days.

      Thornburgh now appeals.


                                        Discussion and Decision
[7]   We begin by noting that, although Thornburgh correctly frames his issue on

      appeal as “[w]hether the trial court abused its discretion by admitting evidence

      obtained in the course of a traffic stop,” Appellant’s Br. at 4, his citation to Holder

      v. State, 847 N.E.2d 930, 935 (Ind. 2006) and Campos v. State, 885 N.E.2d 590,

      596 (Ind. 2008)—two interlocutory appeals challenging a trial court’s denial of

      a motion to suppress—suggest he is appealing the denial of his motion to

      suppress. Appellant’s Br. at 7. Where, as here, a defendant does not seek

      interlocutory review of the denial of a motion to suppress certain evidence, and

      the case proceeds to trial, our review is whether the trial court abused its

      discretion when it admitted that same evidence at trial. 2 See Weathers v. State, 61

      N.E.3d 279, 284 (Ind. Ct. App. 2016) (citing Carpenter v. State, 18 N.E.3d 998,

      1001 (Ind. 2014)) (where defendant did not seek interlocutory review of denial



      2
        We note this distinction because it is important as a procedural matter. “The difference between the
      standard of review we apply to the trial court’s ruling on a motion to suppress evidence and the standard of
      review we apply to the trial court’s ruling on the admissibility of evidence at trial lies in the facts the trial
      court can consider when making its decision.” Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014). “If the
      foundational evidence at trial is not the same as that presented at the suppression hearing, the trial court must
      make its decision based upon trial evidence and may consider hearing evidence only if it does not conflict
      with trial evidence.” Id. Here, because the foundational evidence at the suppression hearing was the same as
      that presented at trial, we base our decision on evidence presented at both the suppression hearing and the
      trial.

      Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017             Page 5 of 13
      of motion to suppress certain evidence, defendant’s appeal constituted request

      to review trial court’s decision to admit same evidence at trial).


[8]   A trial court has broad discretion in ruling on the admission or exclusion of

      evidence. Hansbrough v. State, 49 N.E.3d 1112, 1114 (Ind. Ct. App. 2016), trans.

      denied. “We review its rulings ‘for abuse of that discretion and reverse only

      when admission is clearly against the logic and effect of the facts and

      circumstances and the error affects a party’s substantial rights.’” Guilmette v.

      State, 14 N.E.3d 38, 40 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252, 259

      (Ind. 2013)). “[W]hen reviewing a trial court’s ruling on the admissibility of

      evidence obtained from an allegedly illegal search, we do not reweigh the

      evidence but defer to the trial court’s factual determinations unless clearly

      erroneous.” Weathers, 61 N.E.3d at 284 (citing Hansbrough, 49 N.E.3d at 1114).

      Further, we view conflicting evidence in the light most favorable to the ruling,

      and we consider any legal question of the constitutionality of a search and

      seizure de novo. Id.


[9]   Thornburgh contends that the marijuana recovered from the Buick should not

      have been admitted into evidence because it was obtained during a search that

      violated his rights under the Fourth Amendment to the United States

      Constitution.3 The Fourth Amendment protects persons from unreasonable




      3
       “Although nearly identical in wording, the Fourth Amendment to the United States Constitution and
      Article 1, Section 11 of the Indiana Constitution are independently interpreted and applied.” Russell v. State,
      993 N.E.2d 1176, 1179 (Ind. Ct. App. 2013). “An appellant’s failure to provide us with a separate analysis

      Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017             Page 6 of 13
       search and seizure and this protection has been extended to the states through

       the Fourteenth Amendment. Hansbrough, 49 N.E.3d at 1114. Because a minor

       traffic violation is sufficient to give an officer probable cause to stop the driver

       of a vehicle, such police action does not implicate a driver’s rights under the

       Fourth Amendment. Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2015).

       Further, the Indiana Supreme Court has recognized that a reasonable dog sniff

       is not a search for purposes of the Fourth Amendment. Id. “However, such a

       sweep is an unreasonable investigatory detention if the motorist is held for

       longer than necessary to complete the officer’s work related to the traffic

       violation and the officer lacks reasonable suspicion that the motorist is engaged

       in criminal activity.” Id.


[10]   Here, the driver of the Buick was pulled over after she illegally crossed the

       center line of a highway; Thornburgh does not dispute the validity of that initial

       traffic stop. Instead, citing to Rodriguez v. United States, 135 S. Ct. 1609 (2015),

       he asserts that the stop became unlawful under the Fourth Amendment because

       Deputy Goldsmith’s K-9 instructions to the occupants and the subsequent dog

       sniff prolonged the stop beyond the time reasonably required to complete the

       original purpose of the stop, and the deputies lacked reasonable suspicion that

       Thornburgh was engaged in criminal activity to otherwise extend the stop.

       Appellant’s Br. at 6-9. Therefore, he argues that the subsequent search of the




       for each constitutional claim constitutes waiver.” Id. The State contends that Thornburgh has waived any
       claim under the Indiana Constitution by failing to provide an independent analysis. We agree.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017        Page 7 of 13
       Buick was illegal and the evidence obtained during that search was inadmissible

       under the reasoning in Rodriguez. We disagree.


[11]   In Rodriguez, a K-9 officer observed a Mercury Mountaineer illegally cross onto

       the shoulder of a Nebraska state highway, and he pulled the vehicle over at

       12:06 a.m. Rodriguez, 135 S. Ct. at 1612. The K-9 officer’s dog remained in the

       patrol car while the K-9 officer approached the Mountaineer and gathered the

       license, registration, and insurance information from the driver, later identified

       as Rodriguez. Id. at 1613. After completing a records check, the K-9 officer

       returned to the Mountaineer, asked the passenger for his license, and began

       questioning the passenger about where the two men were coming from and

       where they were going. Id. The K-9 officer again returned to his patrol car,

       completed his records check on the passenger, and called for a second officer.

       Id. The K-9 officer wrote a warning ticket for the moving violation and

       returned a third time to the Mountaineer to issue the warning to Rodriguez. Id.

       By 12:27 or 12:28 a.m., the K-9 officer “had finished explaining the warning to

       Rodriguez,” and had returned all documents to Rodriguez and his passenger.

       Id. The K-9 officer later testified that, at that point, Rodriguez and his

       passenger “had all their documents back and a copy of the written warning. I

       got all the reason[s] for the stop out of the way[,] ... took care of all the

       business.” Id. (citation omitted).


[12]   Although the justification for the traffic stop was “out of the way,” the K-9

       officer asked permission to walk his dog around the Mountaineer. Id. When

       Rodriguez refused, the K-9 officer instructed Rodriguez to turn off the ignition,

       Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 8 of 13
       exit the car, and stand in front of the patrol car to wait for the other responding

       officer. Id. Rodriguez complied, and the other officer arrived at 12:33 a.m.

       The K-9 officer then retrieved his dog and led him twice around the

       Mountaineer. The dog alerted to the presence of drugs on the second pass.

       “All told, seven or eight minutes had elapsed from the time the [K-9 officer]

       issued the written warning until the dog indicated on the presence of drugs.”

       Id. A search of the Mountaineer revealed a large bag of methamphetamine. Id.


[13]   The federal district court denied Rodriguez’s motion to suppress the evidence

       found during the search. Noting that in the Eighth Circuit “dog sniffs that

       occur within a short time following the completion of a traffic stop are not

       constitutionally prohibited if they constitute only de minimis intrusions,” the

       district court found that seven to ten minutes added to the stop by the dog sniff

       “was not of constitutional significance.” Id. at 1613-14 (citation omitted).

       Based on that determination, Rodriguez entered a conditional guilty plea and

       was sentenced to five years in prison. Id. at 1614. On appeal, the Eighth

       Circuit affirmed, finding that the “seven- or eight-minute delay” resembled

       delays that the court had previously ranked as permissible. Id. at 1614. As

       such, the Eight Circuit found that the delay constituted an acceptable “de

       minimis intrusion on Rodriguez’s personal liberty.” Id. at 1614.


[14]   The United States Supreme Court granted certiorari to “resolve a division

       among lower courts on the question whether police routinely may extend an

       otherwise-completed traffic stop, absent reasonable suspicion, in order to

       conduct a dog sniff.” Id. The Rodriguez Court determined, that “the tolerable

       Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 9 of 13
       duration of police inquiries in the traffic-stop context is determined by the

       seizure’s ‘mission’—to address the traffic violation that warranted the stop and

       attend to related safety concerns. Id. at 1614 (citation omitted). The Court

       held, “Because addressing the infraction is the purpose of the stop, it may ‘last

       no longer than is necessary to effectuate th[at] purpose.’” Id. (citation omitted).

       “Authority for the seizure thus ends when tasks tied to the traffic infraction

       are—or reasonably should have been—completed.” Id. Noting that “the

       Fourth Amendment tolerated certain unrelated investigations that did not

       lengthen the roadside detention,” the Rodriguez Court cautioned that a traffic

       stop “can become unlawful if it is prolonged beyond the time reasonably

       required to complete th[e] mission” of issuing a warning ticket. Id. at 1614-15

       (citations omitted). As such, the Rodriguez Court rejected the government’s

       suggestion that an officer may incrementally prolong a dog sniff so long as the

       officer is reasonably diligent in pursuing the traffic-related purpose of the stop.

       Instead, the Court found the “critical question” is not, “whether the dog sniff

       occurs before or after the officer issues a ticket,” but “whether conducting the

       sniff ‘prolongs’—i.e., adds time to—‘the stop.’” Id. at 1616. In Rodriguez, the

       Court found that the dog sniff did prolong the traffic stop.


[15]   Recently, this court applied the Rodriguez analysis to determine whether a dog

       sniff prolonged a traffic stop in Hansbrough and Washington v. State, 42 N.E.3d

       521 (Ind. Ct. App. 2015) (rehearing opinion reaffirming conviction pursuant to

       Rodriguez and concluding that dog sniff did not prolong traffic stop), opinion on

       reh’g, trans. denied, cert. denied, 137 S. Ct. 35 (2016). In Washington, the

       Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 10 of 13
       defendant was pulled over by an officer for a driving infraction. Washington, 42

       N.E.3d at 523. The officer asked Washington a few questions and returned to

       his patrol car less than three minutes later. While in his vehicle, the officer’s

       computer “was in a dead spot and after four or five minutes of not receiving a

       response, he contacted control.” Id. About eight minutes after the stop,

       dispatch informed the officer that Washington had a valid driver's license. Id.

       Two minutes later and less than eleven minutes after Washington’s vehicle had

       been stopped, a K-9 officer deployed his dog. At that time, the officer had not

       completed the electronic ticket. About one minute later, the K-9 indicated the

       presence of an illegal drug. Id. at 524. Finding no conflict with Rodriguez, our

       court on rehearing agreed that the stop was not prolonged by the dog sniff and,

       therefore, found no abuse of discretion in the trial court’s act of admitting the

       evidence found as a result of the dog sniff. Id.


[16]   In Hansbrough, an officer legally stopped Hansbrough for “following less than

       one second of braking distance behind another vehicle.” Hansbrough, 49 N.E.3d

       at 1113. The officer asked Hansbrough for his license, registration, and

       insurance information and also asked Hansbrough where he had come from

       and where he was headed. Id. While speaking with Hansbrough, the officer

       “observed what he believed to be marijuana ‘shake’” near the cup holder and,

       based on this observation, suspected the presence of drugs. Id. Accordingly,

       while walking back to his police vehicle with Hansbrough’s documents, the

       officer called a K-9 unit to the scene. The officer then sat in his patrol car and

       began typing out a warning ticket and running Hansbrough’s records check.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 11 of 13
       The officer returned once to Hansbrough’s vehicle to verify his address. Id.

       About fourteen minutes after the commencement of the traffic stop, the K-9

       unit arrived at the scene. Id. At that time, the officer was on the phone

       checking for any outstanding warrants and had not yet completed his

       paperwork for the traffic stop. Id. Sixteen minutes after the traffic stop began,

       the K-9 officer conducted a dog sniff around Hansbrough’s vehicle, and the dog

       “alerted to the presence of narcotics.” Id. The officer was still on the phone

       checking for warrants at the time the K-9 alerted. Id. Based on the alert, the

       officers searched Hansbrough’s car and found a handgun underneath the

       driver’s seat. Id. at 1114. Our court found that the traffic stop was not

       completed and, therefore, the stop was not prolonged by the dog sniff. Id. at

       1115. Accordingly, we held that the trial court did not abuse its discretion by

       admitting the evidence found as the result of the dog sniff. Id.


[17]   Thornburgh states, without more, that the instant case can be distinguished

       from Washington and Hansbrough. Appellant’s Br. at 8. We disagree. In fact, we

       find the facts and holdings in Rodriguez, Washington, and Hansbrough bolster the

       trial court’s determination in the present case that Thornburgh’s traffic stop was

       not unconstitutionally prolonged by the dog sniff. Here, the facts and

       inferences from the record before us indicate that the dog sniff was conducted

       while the traffic stop was ongoing and, pursuant to Rodriguez, the dog sniff

       occurred prior to the completion of the “mission” of the traffic stop. Rodriguez,

       135 S. Ct. 1615. Deputy Goldsmith stopped the vehicle and obtained the

       occupants’ names and pertinent information, and Lieutenant Heflin assumed

       Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 12 of 13
       the duty of running the records check. Deputy Goldsmith testified during the

       suppression hearing that a “car camera” in his cruiser was running during the

       traffic stop and that the camera created a video of the pertinent portions of the

       stop. Tr. at 11. The DVD of that video, which the State played during the

       suppression hearing, revealed that Deputy Goldsmith spoke with the driver for

       about two minutes and then spent about one and a half minutes retrieving his

       K-9 and running him around the Buick. Id. at 12-13. In all, only three and a

       half minutes passed between the time the Buick was pulled over and the time

       the K-9 alerted to the drugs in the Buick. Although Thornburgh argues that

       Deputy Goldsmith’s act of conducting the dog sniff added time to the traffic

       stop, the trial court disagreed, reasonably believing Lieutenant Heflin’s

       testimony that radio traffic on the dispatch radio prevented him from

       completing the occupants’ records check until after the K-9 had alerted to an

       illegal substance in the Buick. Tr. at 22-23. On appeal, “we do not reweigh the

       evidence, we consider conflicting evidence in a light most favorable to the trial

       court’s ruling, and we defer to the trial court’s factual determinations unless

       clearly erroneous. State v. Gray, 997 N.E.2d 1147, 1150 (Ind. Ct. App. 2013),

       trans. denied (2015). Because the dog sniff did not illegally prolong the traffic

       stop, the search and seizure were constitutional under the Fourth Amendment.

       Accordingly, we find that the trial court did not abuse its discretion by

       admitting the marijuana into evidence.


[18]   Affirmed.


[19]   May, J., and Crone, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1605-CR-1091 | January 20, 2017   Page 13 of 13
