                                                                     FILED
                                                                 Dec 21 2016, 7:33 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
William T. Myers                                          Gregory F. Zoeller
Grant County Public Defender                              Attorney General of Indiana
Marion, Indiana                                           Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Will Thomas,                                              December 21, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          27A02-1602-CR-374
        v.                                                Appeal from the Grant Superior
                                                          Court
State of Indiana,                                         The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          27D01-1404-FA-5



Bailey, Judge.




Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016              Page 1 of 15
                                           Case Summary
[1]   Will Thomas (“Thomas”) was convicted of Dealing in a Narcotic Drug, as a

      Class A felony.1 He now appeals.


[2]   We reverse.



                                                     Issue
[3]   Thomas raises one issue for our review, which we restate as whether the trial

      court abused its discretion when it admitted into evidence heroin recovered

      from Thomas after a warrantless arrest following a traffic stop.



                            Facts and Procedural History
[4]   On April 7, 2014, acting on information obtained from an informant, a joint

      task force of officers from the City of Marion Police Department and the Grant

      County Sheriff’s Office engaged in surveillance of a white Dodge Caravan with

      temporary Illinois license plates. The vehicle was located at a hotel in Marion.


[5]   Around 3:30 p.m., Byron Christmas (“Christmas”) and Thomas, who matched

      physical descriptions provided by the informant, got in the van and left the

      parking lot of the hotel. Detective Mark Stefanatos (“Detective Stefanatos”),




      1
       Ind. Code § 35-48-4-1(a)(2) & (b)(1). The Indiana General Assembly has enacted numerous revisions to
      Indiana’s criminal statutes since 2013; we refer throughout to the statutes in effect when Thomas was
      charged.

      Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016                  Page 2 of 15
      one of the officers conducting surveillance, observed the van change lanes

      without properly signaling a lane change, and requested that a uniformed

      officer, Joseph Martin (“Officer Martin”), conduct a traffic stop.


[6]   Officer Martin conducted a traffic stop of the van. Christmas was driving the

      van, and Thomas was seated in the front passenger’s seat. Detective Stefanatos

      came to the traffic stop, as did a police K9 handler, Grant County Sheriff’s

      Deputy Matt Sneed (“Deputy Sneed”). Officer Martin spoke with Christmas

      while Detective Stefanatos spoke with Thomas. Each officer attempted to

      verify the men’s identity and reason for their travel through Marion.


[7]   During their conversation, Officer Martin obtained Christmas’s written

      permission to search the van. Upon obtaining Christmas’s permission to

      search, Deputy Sneed had his police dog begin to sniff the vehicle, starting

      along the driver’s side from the rear bumper and moving toward the front of the

      car. The dog, which was trained in narcotics detection and suspect

      apprehension, alerted next to the driver’s door.


[8]   After the police dog alerted to the presence of narcotics, the officers had

      Christmas and Thomas exit the vehicle and conducted a pat-down search for

      officer safety. Christmas and Thomas were each asked whether they would

      consent to a strip search at the police station, and were informed that officers

      would seek a search warrant if they declined to consent. Christmas agreed, and

      Thomas declined.




      Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 3 of 15
[9]    Christmas, whose driving privileges had been suspended in Illinois, was

       transported to the Grant County Jail, where he was searched. The search

       disclosed $750 in cash but no narcotics.


[10]   Thomas was transported to the Marion Police Department and placed in an

       interview room. While seated in the interview room, officers observed Thomas

       take something from a jacket pocket and put it into his mouth. Thomas refused

       to open his mouth, and police forced his mouth open. The officers retrieved a

       small plastic baggie with 8.5 grams of a gray, crumbly, rock-like substance that

       would later be identified as heroin.


[11]   On April 14, 2014, the State charged Thomas with Dealing in a Narcotic Drug

       and Battery, as a Class B misdemeanor.2 A jury trial was conducted on

       November 30 and December 1, 2015. At the conclusion of the trial, the jury

       found Thomas guilty of Dealing in a Narcotic Drug and not guilty of Battery.


[12]   This appeal ensued.



                                  Discussion and Decision
                                         Standard of Review
[13]   Thomas challenges his conviction because, he argues, the trial court erred when

       it did not grant his motion to suppress evidence obtained from a search of his




       2
           I.C. § 35-42-2-1(a).


       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 4 of 15
       person at the Marion Police Department. However, Thomas’s case proceeded

       to trial, and is instead a challenge to the trial court’s ruling to admit evidence.

       Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).


               The trial court has broad discretion to rule on the admissibility of
               evidence. Id. at 259-60. 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.” Id. But when an appellant’s
               challenge to such a ruling is predicated on an argument that
               impugns the constitutionality of the search or seizure of the
               evidence, it raises a question of law, and we consider that
               question de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind.
               2013).


       Id. at 40–41 (Ind. 2014) (footnote omitted).


                                                   Analysis
[14]   Thomas argues on appeal that police lacked the requisite probable cause to

       arrest, detain, move, and subsequently search him after the traffic stop.

       Thomas does not challenge the legitimacy of the traffic stop. Rather, he

       contends that police detention and transportation of him to a police station in

       order to conduct a strip search was not supported by probable cause and was

       unreasonable under the totality of the circumstances. Evidence obtained from




       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 5 of 15
       the detention, Thomas argues, should have been barred from admission into

       evidence by the exclusionary rule.3


[15]   The Fourth Amendment to the United States Constitution provides, in relevant

       part, 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.” The U.S. Supreme

       Court has held that even when a seizure is initiated with probable cause, the

       seizure may violate the Fourth Amendment “if its manner of execution

       unreasonably infringes interests protected by the Constitution.” Illinois v.

       Caballes, 543 U.S. 405, 407 (2005). One way in which this may occur is if a

       seizure “is prolonged beyond the time reasonably required to complete” a stop

       justified “solely by the interest in issuing a warning ticket to the driver.” Id.


[16]   In Caballes, the Court held that a dog sniff conducted during a stop for a

       speeding ticket was not an unlawful seizure because “a dog sniff would not

       change the character” of a lawfully-initiated and conducted traffic stop “unless

       the dog sniff itself infringed respondent’s constitutionally protected interest in

       privacy.” Id. at 408. Yet, the Court held, dog sniffs do not in themselves

       infringe such interests. Id. Moreover, both this Court and the Indiana Supreme

       Court have held that dog sniffs are sufficient to establish probable cause. State

       v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010) (citing Neuhoff v. State, 708 N.E.2d



       3
        Thomas challenges his conviction on both federal and Indiana constitutional grounds. Because we reverse
       on Fourth Amendment grounds, we do not address the Indiana constitutional question.

       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016                  Page 6 of 15
       889, 891 (Ind. Ct. App. 1999)); Perez v. State, 981 N.E.2d 1242, 1251 (Ind. Ct.

       App. 2013) (citing Neuhoff, supra), trans. denied.


[17]   Thus, police had probable cause to search the vehicle—and that search was

       further consented to by Christmas, who was operating the vehicle at the time of

       the traffic stop. At trial, Detective Stefanatos testified, “I was told directly by

       Deputy Matt Sneed … that his dog had indicated the presence of the odor of

       narcotics inside the vehicle.” (Tr. at 35.) The following exchange ensued:


               Q.       Did you then search the vehicle?


               A.       Yes.


               Q.       Did you find anything inside the vehicle?


               A.       No we did not.


       (Tr. at 35.)


[18]   With police having failed to find narcotics in the vehicle, despite the dog sniff

       giving rise to probable cause for the vehicle search, Thomas argues that, under

       the totality of the circumstances, the decision to arrest him and transport him to

       the police station for a strip search was unreasonable. The State argues that

       police had probable cause to search not only the van but also Christmas and

       Thomas as a result of the dog sniff, and that transporting Thomas to the police

       station to do so was not a violation of Thomas’s constitutional rights.




       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 7 of 15
[19]   Without a warrant, “an arrest or detention for more than a short period” must

       be justified by probable cause. Overstreet v. State, 724 N.E.2d 661, 662 (Ind. Ct.

       App. 2000) (citing Woods v. State, 547 N.E.2d 772, 778 (Ind. 1989)), trans.

       denied. Probable cause for an arrest exists when the facts and circumstances

       within the knowledge of law enforcement officers are sufficient to warrant belief

       by a person of reasonable caution that an offense has been committed and the

       person to be arrested has committed it. Id. (citing Brinegar v. United States, 388

       U.S. 160, 175-76 (1949)). “The amount of evidence necessary to meet the

       probable cause requirement for a warrantless arrest is determined on a case-by-

       case basis.” Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003).


[20]   The United States Supreme Court has “distinguished between the search of a

       vehicle and a personal search ‘because of the unique, significantly heightened

       protection afforded against searches of one’s person.’” United States v. Moore,

       390 Fed. Appx. 503, 507 (6th Cir. 2010) (quoting Wyoming v. Houghton, 526 U.S.

       295, 301 (1999)). This distinction rests upon a longstanding rule that the

       existence of probable cause to search a vehicle does not mean that “a person, by

       mere presence in a suspected car, loses immunities from search of his person to

       which he would otherwise be entitled.” United States v. Di Re, 332 U.S. 581, 587

       (1948). Thus, in Di Re, the Court held as insufficient to support a search of Di

       Re’s person his “mere presence in a suspected car.” Id. at 588. Similarly, in

       Ybarra v. Illinois, the Supreme Court held that a search and arrest of Ybarra was

       unconstitutional, despite his presence at a location for which a warrant had

       been issued and where there was probable cause to believe that other persons

       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 8 of 15
       present were engaged in criminal activity. 444 U.S. 85, 90-91 (1979). The

       Court’s holding in Ybarra, which relied upon Di Re, rested upon the basic

       principle that probable cause must be particularized to the individual to be

       searched or arrested. Id. at 91, 94-95 (citing Di Re, 332 U.S. at 583-87).


[21]   Neither party’s briefs cite to prior Indiana cases with facts that are

       indistinguishable from those in this case, nor has this Court found such Indiana

       cases. Several other jurisdictions within the United States have, however,

       confronted similar issues where a dog sniff of a vehicle gave rise to probable

       cause to search the vehicle and, when the search recovered no drugs, police

       searched the vehicle’s occupants and recovered drugs from an occupant.


[22]   In Ohio v. Kay, No. 09CA0018, 2009 WL 2918523 (Ohio Ct. App. Sept. 14,

       2009), the Ohio Court of Appeals held after an appeal from an order

       suppressing evidence that police lacked probable cause to detain and search

       Kay. Kay was the front-seat passenger in a vehicle leaving a “known drug

       house.” Kay, 2009 WL 2918523 at *5. Police stopped the vehicle, and a dog

       sniff indicated the presence of illegal drugs in the vehicle, but no drugs were

       found upon a consensual search of the vehicle. Kay, 2009 WL 2918523 at *1,

       *5. The court observed that Kay was cooperative during the dog’s sniff of the

       vehicle, complied with police officers’ instructions not to leave the scene, and

       made no furtive movements. Kay, 2009 WL 2918523 at *5. The court

       reasoned, “[police] possessed probable cause to believe drugs would be found in

       the vehicle,” but they had no specific reason to believe drugs were on Kay’s

       person. Kay, 2009 WL 2918523 at *4. “A negative search of the vehicle does

       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 9 of 15
       not necessitate the conclusion the drugs must therefore be with one of the

       occupants of the vehicle,” and that it was equally valid to conclude that the dog

       alerted to “the residual odor of narcotics from past occupants.” Id. Absent

       probable cause specific to Kay, police lacked authority to search him, and

       accordingly the drugs recovered from Kay’s person were subject to suppression.

       Virginia and North Carolina courts have reached similar conclusions involving

       vehicles with more than one passenger, Whitehead v. Virginia, 278 Va. 300, 683

       S.E.2d 299 (Va. 2009), and a vehicle whose immediately prior occupants were

       standing next to the car when police encountered them. North Carolina v. Smith,

       222 N.C. App. 253, 729 S.E.2d 120 (N.C. Ct. App. 2012).


[23]   All three cases expressly rely on Di Re, Ybarra, or both, and reject the reasoning

       of a federal case, United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), that

       supports the State’s position here that probable cause to search the vehicle in

       which Thomas was traveling was sufficient to permit his detention and

       transportation for a strip search. Smith, 729 N.E.2d at 259-61 (following

       Whitehead); Whitehead, 683 S.E.2d at 315; Kay, 2009 WL 2918523 at *5. In

       Anchondo, a dog sniff indicated the presence of narcotics in a vehicle in which

       Anchondo and another man, Garcia, were traveling, but no contraband was

       found in the vehicle after a search. A second dog sniff again yielded an

       indication that drugs were in the car and border patrol agents performed pat-

       down searches of Anchondo and Garcia. Patting down Anchondo, one of the

       agents felt a hard object near Anchondo’s waistband that he believed to be a




       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 10 of 15
       handgun but which turned out to be four packages of cocaine strapped to

       Anchondo’s body.


[24]   Relying largely on its own precedent, the federal Tenth Circuit held that the dog

       sniffs’ indications of the presence of narcotics were sufficient to give rise to

       probable cause to search the vehicle and its occupants: “A canine alert provides

       the probable cause necessary for searches and seizures.” Id. at 1045 (citing

       United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993)). Noting that the

       dog alerted twice, and expressly applying its precedent in Ludwig, the Tenth

       Circuit reasoned in Anchondo, “[e]ven if the subsequent fruitless search of the

       car diminished the probability of contraband being in the car, it increased the

       chances that whatever the dog had alerted to was on the defendants’ bodies.”

       Id. at 1045; but cf. Whitehead, 683 S.E.2d at 314-15 (holding that, after a drug

       dog alerted at a vehicle, fruitless searches of a car and three occupants did not,

       by process of elimination, allow a physical search of a fourth occupant).


[25]   We think the rationale of Kay, Whitehead, and Smith to be the more persuasive

       one. Probable cause is to be particularized to the premises, vehicle, or person to

       be searched. Here, police had information from an informant concerning two

       unnamed men who would be traveling through Marion. A concededly

       constitutionally permissible traffic stop was initiated. The two men in the van,

       Thomas and Christmas, were nervous upon being stopped, but the record is

       devoid of any mention that they appeared to be hiding anything from police. A

       concededly constitutional dog sniff at the driver’s door indicated the presence of

       drugs in the vehicle, but a search of the vehicle was unavailing. The dog sniff

       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 11 of 15
       did not provide specific information as to either Thomas or Christmas, and

       police did not use the dog to sniff either of the two men’s bodies.


[26]   In recognition of the Fourth Amendment’s “significantly heightened protection

       of … one’s person,” Houghton, 526 U.S. at 301, we do not think that the Fourth

       Amendment authorizes a process-of-elimination practice absent information

       particularized to the individuals under suspicion. That Christmas consented to

       a search did not mean that Thomas was required to do likewise. Rather, police

       simply engaged in a kind of process of elimination: they could not find drugs in

       the car, and so they assumed the drugs must have been on either Christmas’s or

       Thomas’s person. Refusing to consent to a personal body search does not

       create probable cause to believe he was the individual holding the drugs. And

       while, in many situations, any of a number of a vehicle’s occupants may

       properly be considered to exercise dominion over contraband in the vehicle,

       Maryland v. Pringle, 540 U.S. 366, 372 (2003), that rationale avails when

       contraband is found in the vehicle. Here, there was no contraband in the

       vehicle, and under circumstances like these the probable cause arising from a

       drug dog’s alert to a larger area like a car does not permit a fishing expedition

       into the pockets of each of the car’s occupants.


[27]   The State suggests that the police officers’ detention and transportation of

       Thomas to jail was reasonable, even in the absence of probable cause to effect

       an arrest. The State here directs us to United States v. Bullock, in which a

       defendant was handcuffed for officer safety, placed in a squad car, and

       transported to a nearby residence from which he had recently left and

       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 12 of 15
       concerning which police had information of drug activity. 632 F.3d 1004,

       1015-16 (7th Cir. 2011). Yet Bullock is readily distinguishable from this case.

       Though police detained Bullock, the court observed that officers did not

       “attempt[] to exploit the situation” through interrogation or “requesting to

       search his belongings,” id. at 1016, and “officers would have inevitably arrested

       him after the residence search.” Id. at 1017. In the instant case, police

       requested to search Thomas and, upon his refusal, handcuffed him and

       transported him to a police station for the express purpose of performing a strip

       search. A search of the car yielded no drugs, and a search of the hotel room

       from which Thomas had recently departed also yielded no contraband. And we

       have concluded that there was no probable cause to search Thomas; obtaining a

       warrant was not inevitable, and there was no inevitability of arrest as in Bullock

       after a search of locations associated with Thomas.


[28]   The State also suggests that being required to strip search Thomas alongside the

       road or forego a search altogether puts it in a “Catch 22.” While strip searches

       are concededly invasive and their public conduct is problematic, the State

       articulates no basis upon which one may have been conducted. There was no

       probable cause to arrest or search Thomas. This obviates the need for a strip

       search: “the indignity and personal invasion necessarily accompanying a strip

       search is simply not reasonable without the reasonable suspicion that weapons

       or contraband may be introduced into the jail.” Edwards v. State, 759 N.E.2d 626,

       630 (Ind. 2001) (emphasis added). But a strip search was not inevitable but for




       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 13 of 15
       the unlawful arrest of Thomas, and we decline the State’s invitation to broaden

       the scope of nonconsensual, lawful strip searches in this manner.


[29]   From here, the analysis is straightforward. Generally, evidence obtained

       pursuant to an unlawful seizure must be excluded under the fruit of the

       poisonous tree doctrine. Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013). The

       exclusionary rule bars evidence obtained directly by an illegal search or seizure.

       Id. “The defendant must first prove the Fourth Amendment violation and that

       the evidence was the ‘fruit’ of that search; the State must then show that the

       evidence must nevertheless be admitted.” Id. We have already concluded that

       seizure of the heroin was the result of an unlawful detention; and the State

       articulates no situation in which the discovery of the heroin on Thomas’s

       person was otherwise inevitable.


[30]   In the absence of probable cause to detain Thomas, the police detention and

       transportation of Thomas to the Marion Police Department was

       unconstitutional. The drugs obtained from him after he had been transported

       were thus “fruit of the poisonous tree,” and should have been excluded from

       evidence at trial. They were not excluded, and they would not have been found

       had Thomas not been detained. We accordingly conclude that the trial court

       abused its discretion when it did not exclude the heroin from evidence.




       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 14 of 15
                                                Conclusion
[31]   Police violated Thomas’s constitutional rights when they detained and

       transported him. The trial court erred when it did not exclude evidence

       obtained as a result of the detention. We accordingly reverse Thomas’s

       conviction.


[32]   Reversed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 27A02-1602-CR-374 | December 21, 2016   Page 15 of 15
