MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Oct 25 2018, 9:06 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      Larry O. Wilder
Attorney General                                         Attorney at Law
                                                         Jeffersonville, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        October 25, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CR-818
        v.                                               Appeal from the Clark Circuit
                                                         Court
Keith W. Freeman,                                        The Honorable Joseph P. Weber,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         10C03-1712-CM-2248



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-818 | October 25, 2018                Page 1 of 4
                                          Case Summary
[1]   The State appeals the trial court’s grant of Keith Freeman’s motion to suppress

      in a prosecution for drunk driving. We affirm.



                            Facts and Procedural History
[2]   After a traffic stop in Jeffersonville early on the morning of December 2, 2017,

      the State charged Freeman with operating a vehicle while intoxicated

      endangering a person and operating a vehicle with an A.C.E. of at least .08 but

      less than .15. Freeman filed a motion to suppress all evidence obtained as a

      result of the stop, asserting that the Indiana State Trooper who stopped him (1)

      lacked reasonable suspicion to believe that he had committed a crime or traffic

      infraction and (2) prolonged the stop for an unreasonable amount of time.

      Freeman claimed violations of both the Fourth Amendment to the U.S.

      Constitution and Article 1, Section 11 of the Indiana Constitution. The trial

      court held a hearing at which it heard testimony from the trooper and

      arguments from the attorneys. The next day, the court granted the motion

      without explanation.


[3]   The State now appeals.



                                 Discussion and Decision
[4]   The State challenges the trial court’s grant of Freeman’s motion to suppress, but

      it does not dispute Freeman’s contention that we must affirm the trial court’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-818 | October 25, 2018   Page 2 of 4
      unexplained decision if it can be sustained upon any legal theory consistent

      with the evidence. Appellee’s Br. p. 8; see also State v. Estep, 753 N.E.2d 22 n.6

      (Ind. Ct. App. 2001) (explaining that where trial court grants motion to

      suppress without making findings, “the general judgment standard is

      controlling, and this court will uphold the trial court’s ruling under any theory

      the evidence supports”). Freeman argues that the trial court’s decision can be

      sustained on the theory that the court “did not believe the officer’s testimony

      regarding the alleged traffic infraction and found that the traffic stop was

      illegal.” Appellee’s Br. p. 10. We agree.


[5]   At the suppression hearing, the trooper testified that he saw Freeman’s vehicle

      go back and forth in its lane and cross over the center line and that this is the

      reason he pulled it over. Tr. pp. 6-7, 18-22. The State emphasizes this

      testimony, assuming that the trial court found it to be credible. But the record

      contains a variety of other evidence that put the trooper’s credibility in question.

      First, in his written Probable Cause Affidavit from the day of the traffic stop,

      the trooper stated that he “observed the vehicle drift completely into the

      opposing lane of traffic[.]” Appellant’s App. Vol. II p. 8 (emphasis added). At

      the hearing, however, the trooper testified that Freeman “traveled barely into

      the left of center.” Tr. p. 6 (emphasis added). Also in his Probable Cause

      Affidavit, the trooper wrote that Freeman “had to pull himself to get out; he

      staggered from the vehicle, and had to touch the vehicle several times to keep

      his balance.” Appellant’s App. Vol. II p. 8. On State Form 44213 (“Affidavit

      for Probable Cause”), however, the trooper did not check the boxes for


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-818 | October 25, 2018   Page 3 of 4
      staggering from the vehicle, leaning against the vehicle, or pulling oneself from

      the vehicle. Id. at 11. When asked whether “the truth is two different things

      according to two different documents right now,” the trooper admitted, “Yes.”

      Tr. p. 33.


[6]   In its reply brief, the State asserts that Freeman “did not raise a credibility

      challenge to the trooper’s testimony below” and “accepted [that testimony] as

      true when making his legal arguments to the trial court.” Appellant’s Reply Br.

      p. 5. That is incorrect. During his closing argument, Freeman’s attorney

      repeatedly challenged the trooper’s testimony:


              If he thought he crossed center line, enough is to [sic] write him
              a ticket for crossing center line. . . . Judge we believe that what’s
              happening now is these are mere excuses to stop people to ask
              them have you been drinking . . . . We believe that he was
              [subject] to potentially having a ticket written for crossing left of
              center if in fact that happened[.]


      Tr. pp. 54-55 (emphasis added).


[7]   Because there is evidence in the record to support the conclusion that the trial

      court did not believe the trooper’s testimony about the reason for the traffic

      stop, we affirm the grant of Freeman’s motion to suppress.


[8]   Affirmed.


      Riley, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-818 | October 25, 2018   Page 4 of 4
