                                                                        Aug 20 2015, 8:47 am

OPINION ON REHEARING




ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
Darren Bedwell                                                Gregory F. Zoeller
Indianapolis, Indiana                                         Attorney General of Indiana
                                                              Brian Reitz
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana




                                               IN THE
        COURT OF APPEALS OF INDIANA

Jamar Washington,                                             August 20, 2015

Appellant-Defendant,                                          Court of Appeals Case No.
                                                              49A02-1405-CR-306
        v.                                                    Appeal from the Marion Superior Court
                                                              The Honorable Marc T. Rothenberg,
State of Indiana,                                             Judge
                                                              Cause No. 49G02-1203-FA-17626
Appellee-Plaintiff.




Brown, Judge.




Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015         Page 1 of 6
                                           Opinion on Rehearing
[1]   Jamar Washington appealed his conviction for dealing in cocaine as a class A felony.

      In a memorandum decision, this court affirmed his conviction. Washington v. State,

      No. 49A02-1405-CR-306 (Ind. Ct. App. December 23, 2014). The conviction was

      based upon evidence found after Indianapolis Metropolitan Police Officer Luke

      Schmitt initiated a traffic stop of Washington after observing him speeding and

      making an illegal lane change. During the traffic stop and prior to the completion of

      the writing of a ticket for speeding and failure to signal a lane change, a police dog

      alerted to the presence of narcotics. This court held that the dog sniff and Officer

      Schmitt’s actions were not conducted in a manner that prolonged the stop beyond

      the time reasonably required to complete the mission of issuing a ticket. See id. at 10.

      Washington has petitioned for rehearing, which we now grant in order to discuss

      Washington’s arguments based upon the United States Supreme Court’s recent

      decision in Rodriguez v. United States, 135 S. Ct. 1609 (2015).


[2]   Washington argues that Officer Schmitt’s inquiry about his prior arrests, attempt to

      retrieve his criminal history, and question of whether there were drugs in the car

      resulted in a measurable delay. He asserts that the delay caused by the unrelated

      questioning of whether there was any cocaine in the car without reasonable suspicion

      was a violation of the Fourth Amendment. He contends that Officer Schmitt

      delayed the traffic stop measurably in order to conduct a drug investigation unrelated

      to the traffic stop and his convictions must be reversed under Rodriguez. The State

      asserts that Rodriguez does not call this court’s decision into doubt and rather

      underscores the correctness of this court’s analysis.
      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015   Page 2 of 6
[3]   In Rodriguez, the Court held that “a police stop exceeding the time needed to handle

      the matter for which the stop was made violates the Constitution’s shield against

      unreasonable seizures.” 135 S. Ct. at 1612. The Court held that “[a] seizure justified

      only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is

      prolonged beyond the time reasonably required to complete th[e] mission’ of issuing

      a ticket for the violation.” Id. (quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.

      Ct. 834 (2005)). The Court observed that it had “so recognized in Caballes” and

      “adhere[d] to the line drawn in that decision.” Id.


[4]   The facts in Rodriguez reveal that, just after midnight, Police Officer Morgan Struble

      observed a Mercury Mountaineer veer slowly onto the shoulder of a highway for one

      or two seconds and then jerk back onto the road. Id. Officer Struble pulled the

      vehicle over at 12:06 a.m. while his dog was in his patrol car. Id. Officer Struble

      spoke with Rodriguez, the driver of the vehicle, and gathered his license, registration

      and proof of insurance. Id. at 1613. After running a records check on Rodriguez,

      Officer Struble returned to the Mountaineer and asked passenger Scott Pollman for

      his driver’s license and began to question him about where the two men were coming

      from and where they were going. Id. Pollman replied that they had traveled to

      Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they were

      returning to Norfolk, Nebraska. Id. Officer Struble returned again to his patrol car,

      where he completed a records check on Pollman, called for a second officer, and

      began writing a warning ticket for Rodriguez for driving on the shoulder of the road.

      Id.



      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015   Page 3 of 6
[5]   Officer Struble returned to Rodriguez’s vehicle to issue the written warning. Id. By

      12:27 or 12:28 a.m., Officer Struble had finished explaining the warning to

      Rodriguez and had given the documents obtained from Rodriguez and Pollman back

      to them. Id. Officer Struble later testified that at that point all the reasons for the

      stop were “out of the way.” Id. Officer Struble then asked for permission to walk his

      dog around Rodriguez’s vehicle, and Rodriguez said no. Id. Officer Struble then

      instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of

      the patrol car to wait for the second officer. Id. Rodriguez complied. Id. At 12:33

      a.m., a deputy sheriff arrived, and Officer Struble then led his dog twice around the

      Mountaineer. Id. The dog alerted to the presence of drugs. Id. Seven or eight

      minutes had elapsed from the time Officer Struble issued the written warning until

      the dog indicated the presence of drugs. Id. A search of the vehicle revealed a large

      bag of methamphetamine. Id.


[6]   On appeal, the Court addressed the question of whether police routinely may extend

      an otherwise completed traffic stop, absent reasonable suspicion, in order to conduct

      a dog sniff. Id. at 1614. The Court held that because addressing the infraction is the

      purpose of the stop, “it may ‘last no longer than is necessary to effectuate th[at]

      purpose.’” Id. (citing Caballes, 543 U.S. at 407, 125 S. Ct. 834). The Court held that

      “[a]uthority for the seizure thus ends when tasks tied to the traffic infraction are—or

      reasonably should have been—completed.” Id. The Court observed that its

      decisions in Caballes and Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781 (2009), heed

      these constraints. Id. at 1614. The Court stated:



      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015   Page 4 of 6
              In [Caballes and Arizona], we concluded that the Fourth Amendment
              tolerated certain unrelated investigations that did not lengthen the roadside
              detention. Johnson, 555 U.S., at 327-328, 129 S. Ct. 781 (questioning);
              Caballes, 543 U.S., at 406, 408, 125 S. Ct. 834 (dog sniff). In Caballes,
              however, we 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. 543 U.S., at 407, 125 S. Ct. 834. And we
              repeated that admonition in Johnson: The seizure remains lawful only “so
              long as [unrelated] inquiries do not measurably extend the duration of the
              stop.” 555 U.S., at 333, 129 S. Ct. 781. See also Muehler v. Mena, 544 U.S.
              93, 101, 125 S. Ct. 1465, 161 L.Ed.2d 299 (2005) (because unrelated
              inquiries did not “exten[d] the time [petitioner] was detained[,] . . . no
              additional Fourth Amendment justification . . . was required”). An officer,
              in other words, may conduct certain unrelated checks during an otherwise
              lawful traffic stop. But . . . he may not do so in a way that prolongs the stop,
              absent the reasonable suspicion ordinarily demanded to justify detaining an
              individual.


      Id. at 1614-1615. The Court held that beyond determining whether to issue a traffic

      ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop

      which typically include checking the driver’s license, determining whether there are

      outstanding warrants against the driver, and inspecting the automobile’s registration

      and proof of insurance. Id. The Court held that the critical question is whether

      conducting the sniff prolongs or adds time to the stop. Id. at 1616. The Court

      remanded the case for further proceedings to determine whether reasonable suspicion

      of criminal activity justified detaining Rodriguez beyond completion of the traffic

      infraction investigation. Id. at 1616-1617.


[7]   In our initial memorandum decision, this court observed that the Court in Caballes

      noted that a “seizure that is justified solely by the interest in issuing a warning ticket

      to the driver can become unlawful if it is prolonged beyond the time reasonably

      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1405-CR-306 | August 20, 2015   Page 5 of 6
required to complete that mission.” Slip op. at 8 (quoting Caballes, 543 U.S. at 407,

125 S. Ct. at 837). We also stated that “[a]n officer’s inquiries into matters unrelated

to the justification for the traffic stop do not convert the encounter into something

other than a lawful seizure, so long as the inquiries do not measurably extend the

stop’s duration.” Id. at 8-9 (quoting Johnson, 555 U.S. at 325, 129 S. Ct. at 783). We

stated that “the question is whether the dog sniff was conducted in a manner that

prolonged the stop beyond the time reasonably required to complete the mission of

issuing a ticket.” Id. at 9. We held:

        The record reveals that the video recording began thirty to forty seconds
        after the vehicles stopped and the recording shows a time stamp of 4:17:44.
        Officer Schmitt asked Washington a few questions and returned to his
        vehicle less than three minutes after the start of the video. His computer was
        in a dead spot and after four or five minutes of not receiving a response, he
        contacted control. At 4:25:30, dispatch informed Officer Schmitt that
        Washington had a valid driver’s license. Officer Wildauer deployed his dog
        at 4:27:33, less than ten minutes after the beginning of the video and less
        than eleven minutes after the vehicles stopped. At this point, Officer
        Schmitt had not finished completing the electronic ticket. At approximately
        4:28:02, Officer Wildauer’s dog indicated the presence of the odor of
        narcotics. While Officer Schmitt typically hands the traffic ticket to the
        violator, he had to give the ticket to Detective Ingram because Washington
        was arrested for the other offenses. Under the circumstances, we cannot say
        that the dog sniff or Officer Schmitt’s actions were conducted in a manner
        that prolonged the stop beyond the time reasonably required to complete the
        mission of issuing a ticket.


Id. at 9-10. We cannot say that our previous memorandum decision conflicts with

the holding in Rodriguez. Accordingly, we reaffirm our previous decision.


Bailey, J., and Robb, J., concur.

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