                                                                   FILED
                                                              Jul 27 2016, 5:26 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Larry Crawford Thomas                                      Gregory F. Zoeller
Clinton, Indiana                                           Attorney General of Indiana
                                                           Larry D. Allen
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Lisa R. Harris,                                            July 27, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           83A01-1509-CR-1311
        v.                                                 Appeal from the Vermillion Circuit
                                                           Court
State of Indiana,                                          The Honorable Bruce V. Stengel,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           83C01-1411-F6-57



Robb, Judge.




Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016                 Page 1 of 22
                                 Case Summary and Issue
[1]   Lisa Harris appeals the trial court’s denial of her motion to suppress evidence

      obtained from a consent search during a seat belt enforcement stop.

      Concluding the officer lacked an independent basis of reasonable suspicion

      justifying inquiry above and beyond the seat belt violation, we reverse the trial

      court’s order and remand for further proceedings.



                             Facts and Procedural History
[2]   On November 25, 2014, Indiana State Police Trooper Mike Organ was parked

      outside a gas station in Clinton, Indiana, when he observed the driver and

      passenger of a passing vehicle were not wearing seat belts. Trooper Organ

      pulled out of the parking lot, and the vehicle abruptly turned onto an adjacent

      street. Trooper Organ followed the vehicle, activated his emergency lights, and

      initiated a traffic stop. Trooper Organ approached the driver’s side and first

      asked the driver for identification. The driver produced her driver’s license,

      which indicated her name was Lisa Harris. Trooper Organ immediately

      recognized her name as appearing on National Precursor Log Exchange

      (NPLEx) reports “in the past.” Transcript at 7.1 Trooper Organ then asked

      Harris “where she was going, and where she was coming from.” Id. at 8.

      Harris stated she was going to a gas station. When Trooper Organ pointed out




      1
       At the time of the traffic stop, Trooper Organ was assigned to the Meth Suppression Team and checked
      NPLEx on a daily basis.

      Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016                     Page 2 of 22
      she had just passed a gas station and turned onto a street with no gas stations,

      Harris revised her answer, stating she was actually on her way to apply for food

      stamps. When Trooper Organ again pointed out Harris was traveling away

      from her purported destination, Harris’s passenger stated they saw Trooper

      Organ pull out of the parking lot and turned in order to avoid him. Trooper

      Organ noticed Harris appeared “overly excited” during this brief exchange, so

      he asked “if there was anything inside of the vehicle that [he] needed to know

      about[.]” Id. at 8-9. Harris stated, “absolutely not.” Id. at 9.


[3]   Trooper Organ returned to his police vehicle to check Harris’s driving status,

      determine whether she had any outstanding warrants, and confirm Harris’s

      name appeared on NPLEx. Harris had a valid driver’s license and did not have

      any outstanding warrants, but NPLEx indicated Harris had purchased

      pseudoephedrine nine times in the past year.2 Her most recent purchase

      occurred four days prior to the traffic stop. With this information, Trooper

      Organ returned to Harris and asked her to speak with him in his police vehicle.

      Harris agreed. When Trooper Organ asked Harris if she purchased cold

      medicine containing pseudoephedrine on November 21, 2014, Harris admitted

      she had, “for her nose.” Id. at 12. He then asked where the pills were. Harris

      stated the pills were at her house, but when Trooper Organ asked if she could




      2
       Harris’s pseudoephedrine purchases did not exceed legal limits. Tr. at 16; see also State’s Exhibit 2 (NPLEx
      Person Summary for Lisa Harris).

      Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016                         Page 3 of 22
      provide proof of this, Harris admitted the pills were no longer in her possession

      because she sold them for $20.


[4]   Trooper Organ obtained Harris’s consent to search her vehicle and its contents.

      Inside Harris’s purse, he discovered a baggie of white powder that field-tested

      positive for methamphetamine. Harris claimed she forgot about the

      methamphetamine and admitted she regularly smokes methamphetamine.

      Trooper Organ cited both Harris and her passenger for failure to wear a seat

      belt but arrested only Harris. The State charged Harris with possession of

      methamphetamine as a Level 6 felony. Harris filed a motion to suppress, which

      the trial court denied. The trial court certified the order for interlocutory

      appeal, and we accepted jurisdiction pursuant to Indiana Appellate Rule 14(B).



                                  Discussion and Decision
                                      I. Standard of Review
[5]   We review the denial of a motion to suppress in a manner similar to reviewing

      the sufficiency of evidence. Sanders v. State, 989 N.E.2d 332, 334 (Ind. 2013).

      We do not reweigh the evidence. Id. We consider conflicting evidence most

      favorable to the trial court’s ruling, as well as undisputed evidence favorable to

      the defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). “We defer to a

      trial court’s determination of historical fact, but we review de novo whether

      those facts constitute reasonable suspicion.” Johnson v. State, 21 N.E.3d 841,

      844 (Ind. Ct. App. 2014), trans. denied. “The record must disclose substantial


      Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016   Page 4 of 22
      evidence of probative value that supports the trial court’s decision.” State v.

      Quirk, 842 N.E.2d 334, 340 (Ind. 2006).


                                      II. Motion to Suppress
[6]   Harris contends the trial court erred in denying her motion to suppress because

      Trooper Organ’s investigation above and beyond the seat belt violation

      contravened Indiana’s Seatbelt Enforcement Act (“Act”). We agree. Although

      a vehicle may be stopped to determine compliance with the Act, “a vehicle, the

      contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not

      be inspected, searched, or detained solely because of a violation of [the Act].”

      Ind. Code § 9-19-10-3.1(a) (emphasis added). “[T]he Act simply does not

      permit investigatory behavior based solely on a seat belt violation unless

      circumstances arise after the stop that independently provide the officer with

      reasonable suspicion of other crimes.” State v. Richardson, 927 N.E.2d 379, 383

      (Ind. 2010).


[7]   In Richardson, a police officer initiated a traffic stop based solely on her

      observation of the defendant driving unrestrained by a seat belt. The officer

      immediately recognized Richardson from a prior traffic stop and recalled no

      violence or resistance during that encounter. Richardson was cooperative and

      readily admitted the seat belt violation, but the officer noticed “a very large,

      unusual bulge” in Richardson’s pocket. Id. at 381. When the officer asked

      Richardson what was in his pocket, Richardson said he was carrying a

      handgun. The officer requested Richardson’s gun permit and ran a criminal


      Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016       Page 5 of 22
      background check, which revealed Richardson had a prior conviction for

      possession of cocaine as a Class D felony. The officer arrested Richardson for

      possession of a firearm with a prior felony conviction within the past fifteen

      years. Another officer searched Richardson incident to that arrest and

      discovered cocaine on his person. The State charged Richardson with dealing

      in cocaine, among other charges. Prior to trial, Richardson filed a motion to

      suppress the cocaine. The trial court granted the motion, and the State

      appealed. Our supreme court affirmed the trial court’s ruling because the

      officer’s observation of an “unusual bulge” failed to provide an independent

      basis of reasonable suspicion that would justify further inquiry during the seat

      belt enforcement stop. Id. at 384.


[8]   By contrast, in State v. Morris, 732 N.E.2d 224 (Ind. Ct. App. 2000), the

      defendant failed to produce his driver’s license during a seat belt enforcement

      stop, which prompted the officer to run a license check. The license check

      revealed Morris’s driving privileges had been suspended, and the officer asked

      Morris to step out of his vehicle. As Morris did so, the officer detected an odor

      of alcohol on his breath. Morris admitted he had been drinking and agreed to

      submit to a chemical breath test, which revealed an alcohol concentration

      equivalent of 0.10 grams. The State charged Morris with driving while

      suspended and operating a vehicle while intoxicated. Morris filed a motion to

      suppress, arguing the evidence was obtained in violation of the Act. The trial

      court granted the motion to suppress, and we reversed, holding (1) the officer

      was justified in requesting Morris’s license because it was reasonably necessary


      Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016    Page 6 of 22
      to issue a citation for failure to wear a seat belt, and (2) that Morris’s failure to

      produce his driver’s license was a circumstance independent of the initial seat

      belt violation:


               Upon learning that Morris did not have a driver’s license with
               him, Officer Huskins ran a license check and discovered that
               Morris’s license was suspended. Morris’s failure to produce his
               license was a circumstance independent of the initial seatbelt
               violation, which provided Officer Huskins with reasonable
               suspicion that Morris might not have a valid driver’s license.
               After determining that Morris’s license was suspended, Officer
               Huskins acted reasonably in requesting that Morris exit the
               vehicle, because he could not allow Morris to continue driving
               on a suspended license. When Morris exited the vehicle and
               Officer Huskins detected the odor of alcoholic beverage on
               Morris’s breath, a second circumstance independent of the
               seatbelt stop arose, which led to Officer Huskins’s reasonable
               suspicion that Morris was driving under the influence.


      Id. at 228.


[9]   We conclude the facts of the present case are more akin to that in Richardson

      because Trooper Organ’s only basis for additional questioning was his

      recollection of Harris’s name appearing on NPLEx.3 NPLEx is a database used




      3
        The dissent likens this case to Trigg v. State, 725 N.E.2d 446, 448-49 (Ind. Ct. App. 2000), and Pearson v.
      State, 870 N.E.2d 1061 (Ind. Ct. App. 2007), trans. denied, but Trigg and Pearson concerned patdown searches
      for weapons.
      An officer may conduct a patdown search for weapons “only when he has a reasonable belief that the suspect
      is armed and dangerous.” Pearson, 870 N.E.2d at 1065. In Trigg, we held a patdown search for weapons
      during a seat belt enforcement stop is not a search “solely because of” a violation of the Act. 725 N.E.2d at
      448. “Rather, such a search is the result of actions or behavior on the part of the defendant after the initial
      stop that lead a police officer to fear for his safety.” Id. The purpose of the search is “not to discover

      Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016                          Page 7 of 22
by retailers and law enforcement to track and regulate sales of over-the-counter

medications containing ephedrine or pseudoephedrine. Tr. at 7; see also

Montgomery v. State, 22 N.E.3d 768, 775 (Ind. Ct. App. 2014), trans. denied.

Indiana Code section 35-48-4-14.7(e) provides a person may not purchase

medications containing more than:

         (1) three and six-tenths (3.6) grams of ephedrine or
         pseudoephedrine, or both, on one (1) day;
         (2) seven and two-tenths (7.2) grams of ephedrine or
         pseudoephedrine, or both, in a thirty (30) day period; or
         (3) sixty-one and two-tenths (61.2) grams of ephedrine or
         pseudoephedrine, or both, in a three hundred sixty-five (365) day
         period.




evidence of a crime,” we explained, “but to permit the officer to pursue the investigation without fear for his
safety and that of others.” Id. at 449 (citation omitted).
In Pearson, a police officer initiated a traffic stop after observing Pearson drive without a seat belt. The officer
recognized Pearson and had knowledge of prior incidents during which Pearson had been violent. Based on
this knowledge, the officer ordered Pearson out of his vehicle and conducted a patdown search. While
performing the patdown, the officer asked Pearson if he had anything on his person. Pearson admitted he
possessed marijuana. The officer retrieved the marijuana from Pearson’s pocket and placed Pearson under
arrest. As the officer finished searching Pearson, he discovered a sleeve containing a white powder later
confirmed to contain methamphetamine. We concluded the officer’s knowledge of Pearson’s prior violent
conduct was sufficient to warrant the limited weapons search but held the officer was not justified in asking
Pearson if he had anything on this person. 870 N.E.2d at 1068. Specifically, we held the trial court abused
its discretion in admitting the marijuana and methamphetamine because both were discovered through
improper means in violation of the Act:
       [T]he question posed to Pearson by Officer Hastings, during a pat-down search for weapons to
       which Pearson was cooperating, was an attempt by Officer Hastings to “fish” for evidence of
       other crimes. Indeed, the question was potentially incriminating, going beyond an inquiry for
       officer safety purposes, and was posed under very intimidating circumstances.
Id.
We similarly conclude Trooper Organ’s questioning after he requested Harris’s driver’s license was an
attempt to “fish” for evidence of other crimes, but the pertinence of Pearson ends there. Trooper Organ did
not conduct a patdown search for weapons, and he did not articulate any reason to believe Harris was armed
or dangerous. Reasonable suspicion that criminal activity has or is about to occur is a separate standard
more squarely addressed by Richardson and Morris.

Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016                               Page 8 of 22
       In order to enforce these limits, Indiana Code section 35-48-4-14.7(d) imposes

       certain requirements on pharmacies and other retailers. Relevant here, retailers

       shall submit the following information to NPLEx before completing any sale of

       an over-the-counter medication containing ephedrine or pseudoephedrine: (1)

       the ephedrine or pseudoephedrine product purchased, including the number of

       grams the product contains, (2) the date and time of the transaction, (3) the

       name and address of the purchaser, (4) the type of identification the purchaser

       presented, and (5) the number and issuing entity of the purchaser’s

       identification. Ind. Code § 35-48-4-14.7(d)(4), (5). If the NPLEx system

       generates a stop sale alert, the retailer may not complete the sale. Ind. Code §

       35-48-4-14.7(d)(5).


[10]   Retailers must comply with the reporting requirements regardless of the

       customer’s motivation for purchasing the medication. Although ephedrine and

       pseudoephedrine are commonly used in the manufacture of methamphetamine,

       medications containing these ingredients are commonplace in the Hoosier

       medicine cabinet. Particularly during winter cold season and spring allergy

       season, many law-abiding citizens purchase medications containing ephedrine

       or pseudoephedrine. Many appear on NPLEx for the simple fact of seeking

       relief from a stuffy nose. Absent additional circumstances suggesting an

       intention to manufacture methamphetamine, an individual purchasing these

       medications within legal limits would not cause an ordinarily prudent person to




       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016   Page 9 of 22
       believe criminal activity has or is about to occur.4 See Richardson, 927 N.E.2d at

       384 (reciting the reasonable suspicion standard).5


[11]   Our supreme court addressed a similar issue in State v. Bulington, 802 N.E.2d

       435 (Ind. 2004), a case arising from a stop based solely on a retailer’s tip that

       the defendant and his companion had just purchased six boxes of cold medicine

       containing ephedrine. Each man selected three boxes. They proceeded to

       different checkout counters and walked out separately but then got into the

       same truck in the parking lot. When the police arrived, the truck was pulling

       out of the parking lot. Officers stopped the truck in an adjacent parking lot and

       obtained consent to search the truck. The search uncovered hundreds of

       ephedrine pills and various other materials used to manufacture

       methamphetamine. The State charged Bulington with conspiracy to commit

       dealing in methamphetamine, possession of two or more chemical reagents or

       precursors with intent to manufacture methamphetamine, and maintaining a

       common nuisance. Bulington filed a motion to suppress, which the trial court




       4
         In addition to purchases made within legal limits, it appears NPLEx tracks “blocks” and “exceedances.”
       State’s Ex. 1. Harris’s NPLEx Person Summary does not reveal any “blocks” or “exceedances,” id., but if an
       officer had knowledge that a driver had attempted to purchase ephedrine or pseudoephedrine in excess of
       legal limits, that knowledge could be an additional circumstance supporting an independent basis of
       reasonable suspicion.
       5
         That is not say NPLEx reports have no probative value in criminal investigations unless they reveal
       purchases or attempted purchases exceeding legal limits. But we distinguish probative value, or “relevance,”
       Sanders v. State, 704 N.E.2d 119, 124 (Ind. 1999), from an “objective manifestation” that a person “is, or is
       about to be, engaged in criminal activity,” Clark v. State, 994 N.E.2d 252, 263-64 (Ind. 2013) (quoting United
       States v. Cortez, 449 U.S. 411, 417 (1981)). Probative value in a criminal investigation is a much lower
       standard than the circumstances justifying a Terry stop.

       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016                         Page 10 of 22
       granted. The State appealed, and our supreme court affirmed the trial court,

       holding the officer lacked reasonable suspicion to stop the defendant’s truck:


               The opportunities for official arbitrariness, discretion, and
               discrimination are simply too great if we were to find that the
               purchase by two companions of three packages each of cold
               medicine justifies a search or seizure under art. I, § 11. Such a
               holding, at least in an Indiana winter, would permit so many
               searches and seizures as to license official arbitrariness,
               discretion, and discrimination in their execution.


       Id. at 440; see also Saffold v. State, 938 N.E.2d 837, 839 n.3 (Ind. Ct. App. 2010)

       (rejecting the State’s argument that the discovery of ammunition in the

       defendant’s car gave rise to a reasonable suspicion of criminal activity because

       “something Saffold could presumably possess legally” does not “heighten

       suspicion something illegal was afoot”), trans. denied.


[12]   But the court also noted, “[H]ad additional indicia that ‘criminal activity was

       afoot’ been available to the police here, the traffic stop at issue might well have

       been valid.” Bulington, 802 N.E.2d at 440. The court reviewed cases from

       other jurisdictions and identified specific circumstances that would likely

       constitute reasonable suspicion:


               when the customer (1) purchases a combination of
               methamphetamine precursors from one store; (2) purchases a
               combination of precursors from several stores; (3) purchases . . .
               one precursor and then commits a traffic violation warranting a
               traffic stop; and (4) purchases one precursor and the arresting
               officer has knowledge of defendant’s previous involvement with
               methamphetamine.

       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016    Page 11 of 22
       Id. at 441 (footnotes omitted). The dissent maintains the third circumstance

       applies in this case because Harris committed a traffic violation, but the case the

       court relied on to demonstrate this circumstance is easily distinguishable.


[13]   The Bulington court cites State v. Vereb, 643 N.W.2d 342 (Minn. Ct. App. 2002),

       which held officers had reasonable suspicion to stop a vehicle where a Wal-

       Mart employee reported two individuals made several trips into the store to

       purchase a large number of cold tablets containing pseudoephedrine and the

       individuals attempted to evade police by traveling at excessive speeds.

       Bulington, 802 N.E.2d at 441 n.6 (citing Vereb, 643 N.W.2d at 347). Unlike

       Harris, the individuals purchased a “large quantity” of pseudoephedrine at one

       time immediately before the stop, and the officer had knowledge of these

       purchases when he initiated the stop. Vereb, 643 N.W.2d at 345. There was

       also a nexus between the purchases and the traffic violation that strongly

       suggested the vehicle’s occupants were or would be engaging in criminal

       activity. The police pursued the vehicle immediately after its occupants made

       several trips into the Wal-Mart store to purchase the pseudoephedrine, and the

       driver subsequently led the police on a high-speed chase. When the driver

       finally pulled over, the officer was free to investigate above and beyond the

       speeding violation because the stop was not governed by a law intended to limit

       police authority. See Richardson, 927 N.E.2d at 383 (stating the Act “sought to

       circumscribe the power of police to use a seat belt stop as an opportunity to

       inspect, search, or detain on other grounds, even if constitutional law would

       permit such police behavior”).


       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016   Page 12 of 22
[14]   In short, Trooper Organ’s recollection of Harris’s name appearing on NPLEx

       did not provide an independent basis of reasonable suspicion that would justify

       further investigation. Harris pulled over when Trooper Organ activated his

       emergency lights, and she produced a valid driver’s license. Trooper Organ’s

       subsequent questioning about Harris’s destination, her recent cold medicine

       purchase, and whether she would consent to a search violated the Act, and the

       trial court erred in denying her motion to suppress the evidence gleaned from

       that questioning. See Richardson, 927 N.E.2d at 382-83 (stating the Act “could

       be read to prohibit a police officer making a seat belt stop from even asking the

       driver for consent to search the vehicle”).



                                                Conclusion
[15]   Trooper Organ lacked an independent basis of reasonable suspicion that would

       justify further inquiry during a seat belt enforcement stop. Because his

       questioning violated the Act, we reverse the trial court’s order denying Harris’s

       motion to suppress, and we remand for further proceedings.


[16]   Reversed and remanded.


       Crone, J., concurs.


       Najam, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016   Page 13 of 22
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Lisa R. Harris
       Appellant-Defendant,
                                                                  Court of Appeals Case No.
               v.                                                 83A01-1509-CR-1311

       State of Indiana,
       Appellee-Plaintiff.




       Najam, Judge, dissenting.


[17]   I respectfully dissent from the majority’s conclusion that Trooper Organ

       violated Indiana’s Seatbelt Enforcement Act when he investigated Harris for

       her frequent purchases of products containing pseudoephedrine. The majority’s

       opinion does not take into account numerous facts relied on by the trial court in

       its denial of Harris’ motion to suppress. Trooper Organ recognized Harris from

       the frequency with which her name appeared on the NPLEx, and our precedent

       expressly permits an officer in a seatbelt stop to take reasonable steps to

       investigate a driver based on the officer’s actual knowledge of the driver’s


       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016               Page 14 of 22
       identity. The majority declares that the NPLEx is of no probative value to

       criminal investigations unless it demonstrates on its face illegal

       pseudoephedrine purchases or attempted purchases. I cannot wholly agree.


[18]   The entire point of the database of pseudoephedrine purchases is to prevent the

       use of commercially available products in the manufacture of

       methamphetamine. That use can occur whether the pseudoephedrine

       purchases are legal or illegal. At least where, as here, an officer recognizes a

       person’s name precisely because of how many times the officer has seen that

       person’s name on the NPLEx, it is reasonable for the officer to suspect that

       those frequent, albeit legal, pseudoephedrine purchases might indicate criminal

       activity. To conclude otherwise severely curtails this valuable tool of law

       enforcement.


[19]   As an initial matter, our standard of review in appeals from the denial of a

       motion to suppress evidence is well settled. “We review the denial of a motion

       to suppress in a manner similar to reviewing the sufficiency of the evidence.

       We consider only the evidence favorable to the trial court’s ruling, alongside

       substantial uncontradicted evidence to the contrary, to decide if that evidence is

       sufficient to support the denial.” Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013)

       (citing Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)).


[20]   For traffic stops based on seatbelt violations, the Act and the Indiana Supreme

       Court’s interpretation of it are clear:




       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016   Page 15 of 22
        Indiana Code section 9-19-10-3.1, also known as the Seatbelt
        Enforcement Act (“Act”), provides that “a vehicle may be
        stopped to determine compliance with this chapter. However, a
        vehicle, the contents of a vehicle, the driver of a vehicle, or a
        passenger in a vehicle may not be inspected, searched, or
        detained solely because of a violation of this chapter.” In
        Baldwin v. Reagan, 715 N.E.2d 332 (Ind. 1999), we upheld the
        constitutionality of [the prior version of the statute] against a
        challenge that the statute unconstitutionally provided authority
        for entirely pretextual traffic stops. We reasoned that the statute
        could be constitutionally applied because under it law
        enforcement officers could stop motorists only where they had
        reasonable suspicion that a seat belt violation had occurred. On
        the basis of the language of the statute, we agreed with the
        Attorney General’s position that “the statute requires that when a
        stop to determine seat belt law compliance is made, the police are
        strictly prohibited from determining anything else, even if other
        law would permit.” Baldwin, 715 N.E.2d at 339. We also stated
        that the statute could be read to prohibit a police officer making a
        seat belt stop from even asking the driver for consent to search
        the vehicle or its occupants. Id. at 339 n.8.


        At the same time, the police are not ousted of authority to investigate
        further if the circumstances warrant. “[A] brief police detention of an
        individual during investigation is reasonable if the officer reasonably
        suspects that the individual is engaged in, or about to engage in, illegal
        activity.” Id. at 337. We place the burden on the State to show
        that under the totality of the circumstances its intrusion was
        reasonable. Id.


                                                 ***


         . . . The language of the Act and subsequent case law clearly
        dictate that in adopting the Act, the Legislature intended the
        statute to limit, rather than expand, police authority with respect
        to seat belt enforcement stops and sought to circumscribe the
Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016             Page 16 of 22
                power of police to use a seat belt stop as an opportunity to
                inspect, search, or detain on other grounds, even if constitutional
                law would permit such police behavior. See Baldwin, 715 N.E.2d
                332. Given the language of the Act itself, the Attorney General’s
                own position in Baldwin interpreting that language, and the case
                law, the Act simply does not permit investigatory behavior based
                solely on a seat belt violation unless circumstances arise after the stop
                that independently provide the officer with reasonable suspicion of other
                crimes.


                 . . . Baldwin makes clear that “[r]easonable suspicion exists
                where the facts known to the officer, together with the reasonable
                inferences arising from such facts, would cause an ordinarily
                prudent person to believe that criminal activity has or is about to
                occur.”[6] Baldwin, 715 N.E.2d at 337 (emphasis added).


       State v. Richardson, 927 N.E.2d 379, 382-83 (Ind. 2010) (last emphasis and

       second and third alterations original to Richardson). And, when reviewing a

       reasonable suspicion determination, we examine the totality of the

       circumstances to see whether there was a particularized and objective basis for

       suspecting legal wrongdoing. State v. Renzulli, 958 N.E.2d 1143, 1147-48 (Ind.

       2011).


[21]   In other words, while a traffic stop for a seatbelt violation cannot be turned into

       a fishing expedition, the Act does not vitiate an officer’s authority to investigate

       circumstances that become known to the stopping officer after he has initiated




       6
         The test for reasonable suspicion is identical under the Fourth Amendment to the United States
       Constitution and Article 1, Section 11 of the Indiana Constitution. E.g., Campos v. State, 885 N.E.2d 590, 597
       (Ind. 2008).

       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016                        Page 17 of 22
       the traffic stop. Id. For example, in Pearson v. State, 870 N.E.2d 1061, 1066

       (Ind. Ct. App. 2007), trans. denied, we held that an officer’s recognition of the

       driver upon stopping him and the officer’s actual knowledge of the driver’s

       violent conduct on two prior occasions permitted the officer to further

       investigate the possible presence of weapons on the driver. Similarly, in Trigg v.

       State, 725 N.E.2d 446, 448-49 (Ind. Ct. App. 2000), we held that the driver’s

       “nervous” behavior and “fidgeting” after the stop permitted the stopping officer

       to further investigate the possible presence of weapons on the driver. And in

       Richardson, our supreme court expressly recognized that Pearson and Trigg

       “comport with Baldwin.” 927 N.E.2d at 383.


[22]   The facts in this case are in line with that precedent. Here, immediately after he

       pulled his vehicle onto the road to enforce the seatbelt violation, Harris

       promptly turned down two side streets, which Collins later acknowledged

       Harris had done in an attempt to avoid Trooper Organ. Then, after he had

       initiated the traffic stop, Trooper Organ asked Harris for her identification. 7

       Upon Harris providing her identification, Trooper Organ immediately

       “recognized her name from the past as frequently purchasing

       pseudoephedrine.” Tr. at 10. Trooper Organ’s recognition of Harris as a

       “frequent[]” purchaser of products containing pseudoephedrine was based on

       his experience, training, and familiarity with the NPLEx.




       7
           No one suggests that a request for a driver’s identification is prohibited by the Act.


       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016                     Page 18 of 22
[23]   Trooper Organ’s immediate recognition of Harris’ name is analogous to the

       facts in Pearson, in which the stopping officer recognized the driver and knew of

       the driver’s violent conduct on two prior occasions. Again, in Pearson we held

       that the officer’s recognition of the driver and the basis for that recognition

       permitted the officer to further investigate the possible presence of weapons on

       the driver. 870 N.E.2d at 1066. Here, in light of Trooper Organ’s immediate

       recognition of Harris’ name and the reason for that recognition, an ordinarily

       prudent person would have investigated further. See id.; see also Richardson, 927

       N.E.2d at 384.


[24]   And that is what Trooper Organ did. He initially questioned Harris at her car.

       But, rather than dispel Trooper Organ’s concerns, Harris’ behavior and

       responses to those questions further raised suspicion. In particular, Trooper

       Organ observed that, based on his past experiences in traffic stops, Harris “was

       not acting the same as . . . a normal person, under normal circumstances[,

       would have] acted.” Tr. at 8. Rather, Harris “seemed overly excited” and had

       “slight stuttering of her words.” Id. Further, in response to Trooper Organ’s

       questions, at first Harris said she was going to a gas station. When Trooper

       Organ noted that she had just passed a gas station, Harris changed her story and

       said she was going to get food stamps. When Trooper Organ told her there was

       nowhere to get food stamps on the road they were on, Collins then volunteered

       that “they saw [Trooper Organ] pull out of the parking lot and they turned

       down Fifth Street to try and avoid [him].” Id.




       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016   Page 19 of 22
[25]   Harris’ and Collins’ behavior and comments are also analogous to the

       circumstances in Trigg, in which we held that the driver’s furtive behavior gave

       the stopping officer reasonable suspicion to investigate the driver further. 725

       N.E.2d at 448-49. Indeed, Trooper Organ’s investigation of Harris in light of

       Harris’ post-stop behavior, her evasive driving, and Trooper Organ’s actual

       knowledge that she was a frequent purchaser of pseudoephedrine products is

       much more compelling than the circumstances that this court and the Indiana

       Supreme Court approved in Trigg.


[26]   Only after all of those circumstances had occurred did Trooper Organ then

       search both for Harris and Collins on the NPLEx. While the NPLEx search

       did not reveal criminal conduct per se, it did confirm Trooper Organ’s suspicion

       that both Harris and Collins were frequent, and recent, purchasers of products

       containing pseudoephedrine. That confirmation, coupled with the additional

       circumstances already apparent, permitted Trooper Organ to continue his

       investigation by asking Harris questions relating to those purchases. Again,

       that is what Trooper Organ did, and it was that line of questioning that

       eventually resulted in the discovery of the methamphetamine.


[27]   The majority concludes that Trooper Organ’s knowledge of Harris as a frequent

       purchaser of products containing pseudoephedrine did not give rise to

       reasonable suspicion based on the premise that legal activity cannot support an

       inference of illegal activity. In support of that position, the majority relies on




       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016   Page 20 of 22
       our supreme court’s opinion in State v. Bulington, 802 N.E.2d 435 (Ind. 2004).8

       But the Indiana Supreme Court did not make such a categorical declaration in

       Bulington. To the contrary, the Bulington opinion makes clear that even legal

       purchases, if done in unusual circumstances, can give rise to reasonable

       suspicion. In particular, the court explicitly noted: “we think it likely that we

       would find reasonable suspicion to exist” in numerous legal circumstances,

       including “information that the person legally purchased” more than “a small

       to moderate amount of one precursor”9 or where a person “purchases . . . one

       precursor and then commits a traffic violation warranting a traffic stop.” Id. at

       441. Both of those situations apply here, where Trooper Organ immediately

       recognized Harris as “frequently purchasing pseudoephedrine,” Tr. at 10, and

       the basis for his stop was an independent traffic violation.


[28]   Considering the totality of the circumstances, I conclude that the trial court’s

       judgment is supported by sufficient evidence. Trooper Organ’s post-stop

       investigation of Harris was not based solely on a seatbelt violation but, instead,

       on numerous facts and circumstances that arose after he had initiated the stop,

       which independently provided Trooper Organ with reasonable suspicion of

       ongoing criminal conduct. Again, once Trooper Organ initiated the traffic stop,




       8
         The majority also cites Saffold v. State, 938 N.E.2d 837, 839 n.3 (Ind. Ct. App. 2010), trans. denied, but as
       Saffold relies on Bulington I need not discuss Saffold separately.
       9
         The defendant in Bulington made a one-time purchase of three boxes of antihistamines, which, in a 3-2
       opinion, the majority of our supreme court characterized as a “small to moderate amount.” 802 N.E.2d at
       441. Here, in contrast, Harris made nine separate purchases of products containing pseudoephedrine.

       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016                            Page 21 of 22
       Harris attempted to evade him; upon stopping her, he immediately recognized

       her name for the frequency with which it had appeared on the NPLEx; and,

       upon questioning her, she appeared unusually nervous. After all of those

       circumstances had presented themselves, Trooper Organ then confirmed on the

       NPLEx that both Harris and her passenger had made frequent and recent

       purchases of products containing pseudoephedrine.


[29]   Nothing about the circumstances of Trooper Organ’s investigation

       demonstrates that he used the seatbelt violation merely to go on a fishing

       expedition. To the contrary, Trooper Organ’s investigation was simply good

       police work. The Seatbelt Enforcement Act does not require an officer who

       stops a motorist to quarantine and disregard the officer’s actual knowledge of

       the motorist’s identity and previous conduct. And where, as here, that actual

       knowledge is coupled with evasive and furtive behavior, the officer may

       connect the dots. Accordingly, I would affirm the trial court’s denial of Harris’

       motion to suppress.




       Court of Appeals of Indiana | Opinion 83A01-1509-CR-1311 | July 27, 2016   Page 22 of 22
