      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Megan Shipley                                             Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana             FILED
      Indianapolis, Indiana                                     Justin F. Roebel                   May 22 2017, 8:49 am

                                                                Deputy Attorney General                 CLERK
                                                                Indianapolis, Indiana               Indiana Supreme Court
                                                                                                       Court of Appeals
                                                                                                         and Tax Court




                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Tyler R. Browder                                          May 22, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A04-1608-CR-1857
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Linda E. Brown,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                49G10-1412-CM-53390



      Mathias, Judge.


[1]   Tyler Browder (“Browder”) appeals his conviction for Class A misdemeanor

      possession of paraphernalia. Browder argues that the Marion Superior Court

      abused its discretion by admitting into evidence the paraphernalia discovered

      when a police officer searched his vehicle during a traffic stop. Browder

      specifically claims that the police officer unreasonably extended the length of
      Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017                 Page 1 of 16
      the traffic stop in violation of the Fourth Amendment of the United States

      Constitution and Article One, Section Eleven of the Indiana Constitution.1


[2]   We affirm.


                                   Facts and Procedural History
[3]   On November 11, 2014, Indianapolis Metropolitan Police Officer Brady Ball

      (“Officer Ball” “Ball,” or “the officer”) was working “pro-active patrol” on the

      south side of Indianapolis in a high crime area. Tr. p. 5. Officer Ball was tasked

      with traffic enforcement in the area.


[4]   At approximately 11:40 p.m., Officer Ball came to a stop at a traffic light and

      ran the license plate of the Pontiac vehicle stopped in front of him. The license

      plate was registered to a silver Audi. Therefore, Ball initiated a traffic stop to

      investigate the improperly plated vehicle.


[5]   Browder, the driver and only occupant of the vehicle, pulled the car over into a

      nearby gas station parking lot. Officer Ball asked Browder about the license

      plate and Browder replied that

              it was he and his [wife’s] vehicle that they had purchased it and
              that they, um, were under the impression that a license plate –a
              transfer plate could be placed on the vehicle.




      1
        We held oral argument in this case at Cathedral High School in Indianapolis, Indiana on April 26, 2017.
      We thank the faculty, staff, and students for their gracious hospitality. We also wish to congratulate the
      school’s We the People team for their third place finish at the national We the People competition held in
      Washington D.C. in April.


      Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017                          Page 2 of 16
      Tr. p. 6. Ball told Browder that he was correct but that “they needed to have a

      bill of sale or title to go along with that transfer plate.” Id. Browder, who stated

      that he had purchased the car for approximately one week prior, was not able to

      produce any paperwork for the vehicle.


[6]   Ball requested Browder’s driver’s license and ran it through his computer. From

      the information returned, the officer discovered that Browder had a criminal

      history, including a reference to an auto theft. The officer also could not find a

      registration for the Pontiac under Browder’s name. In addition, Browder’s

      name was not listed on the registration for the license plate registered to the

      silver Audi. Ball was in his patrol car for several minutes running computer

      checks to obtain this information.


[7]   Approximately fifteen minutes after the stop was initiated, and after Officer Ball

      reviewed Browder’s driver’s license records and criminal history and could not

      find a Pontiac registered to Browder, Ball was still suspicious that the Pontiac

      was possibly a stolen vehicle, and he decided to investigate further. He asked

      Browder to step out of the vehicle and about his prior arrest record. When Ball

      asked about the auto theft, Browder replied that he was arrested as a juvenile

      but had not been arrested for a stealing a car.


[8]   The officer continued to question Browder about paperwork related to the sale

      of the vehicle and its previous owner. Browder stated that the license plate on

      the Pontiac belonged to him and to his wife, Kayla Lanahan. When asked

      about the different last names, Browder explained that they were married but


      Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017    Page 3 of 16
       that his wife had not changed her last name. Browder told Officer Ball that

       there was no paperwork from the prior owner in the vehicle. The officer asked

       for specific details about the recent purchase of the vehicle. Browder stated that

       the car was a 1992 or 1996 Pontiac model that they purchased for $700.

       Browder told the officer that he had been driving to Taco Bell, and the officer

       questioned Browder about his choice of a circuitous route to the restaurant.


[9]    Finally, approximately seventeen minutes into the stop, Officer Ball asked

       Browder if anything illegal was inside the vehicle. Browder said there was not

       and told the officer he could search the vehicle. Tr. p. 19. Browder’s statement

       surprised Officer Ball, and he gave Browder a Pirtle warning.2 Tr. p. 13. Officer

       Ball also told Browder that when individuals allow officers to search “illegal

       stuff” can be found. Id. Browder replied that he had “nothing to hide.” Id. After

       the advisements and warnings, Browder continued to consent to the vehicle

       search.


[10]   As he searched the vehicle, Officer Ball found the vehicle’s VIN number and

       discovered it was a 2001 Pontiac. The officer also found a glass pipe used to

       smoke marijuana in an insert in the center console, which later tested positive

       for THC residue. The officer then arrested Browder and read him his Miranda




       2
        In Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975), our supreme court held that a person held in
       police custody is entitled to the presence and advice of counsel prior to consenting to a search. Officer Ball’s
       Pirtle warning was incomplete and lacked the advisement that an attorney would be provided to Browder if
       he could not afford one, but the officer was not required to give the warning because Browder was not in
       custody when he told the officer that he could search the car.

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017                              Page 4 of 16
       rights. Browder told Officer Ball that the pipe was not his and that a friend must

       have left it in the vehicle.


[11]   A bench trial was held on March 7 and July 20, 2016. Browder filed a motion

       to suppress the pipe found in the vehicle. The trial court denied the motion and

       found Browder guilty of Class A misdemeanor possession of paraphernalia. He

       was then ordered to serve 365 days, with 349 days suspended to probation and

       16 days credit for time served. The State declined to prosecute the infraction for

       operating a vehicle on a transferred plate for more than thirty-one days.

       Browder now appeals.


                                           Standard of Review
[12]   Our review of a denied motion to suppress, when following a trial at which the

       challenged evidence was admitted, is properly a review of the trial court’s

       decision to admit the evidence. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.

       2014). We review the trial court's ruling on admissibility for abuse of discretion,

       reversing only if the ruling is clearly against the logic and effect of the facts, and

       the error effects substantial rights. Id. The constitutionality of a search or

       seizure is a pure question of law we review de novo. Id. Browder argues that the

       traffic stop and subsequent search violated both the Fourth Amendment of the

       United States Constitution and Article One, Section Eleven of the Indiana

       Constitution.




       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017      Page 5 of 16
                                              Fourth Amendment

[13]   Browder argues that Officer Ball unreasonably prolonged the traffic stop in

       violation of the Fourth Amendment, which provides in pertinent 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 . . . .”

       “The overriding function of the Fourth Amendment is to protect personal

       privacy and dignity against unwarranted intrusion by the State.” Schmerber v.

       California, 384 U.S. 757, 767 (1966).


[14]   A traffic stop of a vehicle and temporary detention of its occupants constitutes a

       “seizure” within the meaning of the Fourth Amendment. Whren v. United States,

       517 U.S. 806, 809-10 (1996)). However, “[i]t is unequivocal under our

       jurisprudence that even a minor traffic violation is sufficient to give an officer

       probable cause to stop the driver of a vehicle.” Austin v. State, 997 N.E.2d 1027,

       1034 (Ind. 2013). Browder properly concedes that the initial traffic stop was

       valid because the license plate on his car was not registered to that vehicle.


[15]   However, Browder argues that Officer Ball unreasonably prolonged the traffic

       stop and that the stop should have ended after the officer completed his check

       of Browder’s driver’s license and the license plate approximately fifteen minutes

       after the stop began.


               A lawful roadside stop begins when a vehicle is pulled over for
               investigation of a traffic violation. The temporary seizure of
               driver and passengers ordinarily continues, and remains
               reasonable, for the duration of the stop. Normally, the stop ends
               when the police have no further need to control the scene, and
       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017     Page 6 of 16
               inform the driver and passengers they are free to leave. An
               officer’s inquiries into matters unrelated to the justification for
               the traffic stop, this Court has made plain, do not convert the
               encounter into something other than a lawful seizure, so long as
               those inquiries do not measurably extend the duration of the
               stop.


       Arizona v. Johnson, 555 U.S. 323, 333 (2009); see also Illinois v. Caballes, 543 U.S.

       405, 407 (2005) (“It is nevertheless clear that a seizure that is lawful at its

       inception can violate the Fourth Amendment if its manner of execution

       unreasonably infringes interests protected by the Constitution.”).


[16]   The United States Supreme Court recently re-emphasized that a police officer

       cannot “incremental[ly]” lengthen a traffic stop by even a de minimis amount

       beyond the time needed to complete the mission of the stop. Rodriguez v. United

       States, ––– U.S. ––––, 135 S.Ct. 1609, 1616 (2015). Tasks that an officer may

       undertake related to the traffic stop typically “involve 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., –––

       U.S. at ––––, 135 S.Ct. at 1615.


[17]   Whether the officer has unreasonably prolonged a traffic stop is a fact-sensitive

       determination. In United States v. Sharpe, 470 U.S. 675 (1985), the United States

       Supreme Court observed that


               our cases impose no rigid time limitation on Terry stops. While it
               is clear that “the brevity of the invasion of the individual’s Fourth
               Amendment interests is an important factor in determining
               whether the seizure is so minimally intrusive as to be justifiable
       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017       Page 7 of 16
               on reasonable suspicion,” we have emphasized the need to
               consider the law enforcement purposes to be served by the stop as
               well as the time reasonably needed to effectuate those purposes.
               Much as a “bright line” rule would be desirable, in evaluating
               whether an investigative detention is unreasonable, common
               sense and ordinary human experience must govern over rigid
               criteria.


       Id. at 685 (internal citations omitted). The Court also explained that it is

       appropriate “to examine whether the police diligently pursued a means of

       investigation that was likely to confirm or dispel their suspicions quickly, during

       which time it was necessary to detain the defendant.” Id. at 686. Courts “should

       take care to consider whether the police are acting in a swiftly developing

       situation, and in such cases the court should not indulge in unrealistic second-

       guessing.” See id.


[18]   The Rodriguez Court reemphasized that “[a]n officer, … 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.” 135 S.Ct. at 1615.

               Beyond determining whether to issue a traffic ticket, an officer's
               mission includes “ordinary inquiries incident to [the traffic]
               stop.” Typically such inquiries involve checking the driver's
               license, determining whether there are outstanding warrants
               against the driver, and inspecting the automobile's registration
               and proof of insurance. These checks serve the same objective as
               enforcement of the traffic code: ensuring that vehicles on the road
               are operated safely and responsibly.



       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017    Page 8 of 16
       Id. (internal citations omitted).


[19]   In this case, Officer Ball needed to determine why the Pontiac was not properly

       plated, to whom the vehicle was registered, and whether it was possibly stolen.

       Browder gave his explanation for the transferred plate to Officer Browder and

       provided his driver’s license. The officer requested a check of Browder’s license

       and criminal history and ran a records check on the vehicle. Browder argues

       that once these tasks were completed, approximately fifteen minutes into the

       stop, the purpose for the traffic stop was complete. In response, the State argues

       that Officer Ball’s continued questioning of Browder was related to the purpose

       of the stop, i.e., that the license plate was not registered to the vehicle, Browder

       had no paperwork establishing that he owned the vehicle, and the officer could

       not find any registration records for the Pontiac.


[20]   Any delay beyond the fifteen-minute period, which Browder accepts as

       reasonable, was due to Officer Ball’s suspicion that Browder was not in lawful

       possession of the vehicle. If his suspicion that Browder was engaged in criminal

       activity was reasonable, the prolonged detention does not violate the Fourth

       Amendment. See State v. Gray, 997 N.E.2d 1147, 1153 (Ind. Ct. App. 2013),

       trans. denied.


               “Reasonable suspicion is a less demanding standard than
               probable cause and requires a showing considerably less than
               preponderance of the evidence, but it still requires at least a
               minimal level of objective justification and more than an
               inchoate and unparticularized suspicion or ‘hunch’ of criminal
               activity.” “Thus, a reviewing court must examine the totality of

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017    Page 9 of 16
                circumstances of each case to see whether the detaining officer
                has a particularized and objective basis for suspecting legal
                wrongdoing.”


       Id. (citations omitted). See also United States v. Arvizu, 534 U.S. 266, 273 (2002)

       (stating “[w]hen discussing how reviewing courts should make reasonable

       suspicion determinations, we have said repeatedly that they must look at the

       “totality of the circumstances” of each case to see whether the detaining officer

       has a ‘particularized and objective basis’ for suspecting legal wrongdoing”)

       (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)).


[21]   Browder and the State disagree whether the totality of the following

       circumstances gave rise to reasonable suspicion that Browder did not legally

       possess the Pontiac. These include 1) Officer Ball’s suspicion that the vehicle

       was stolen because of the transferred plate and lack of paperwork,3 2) Browder’s

       prior drug arrests and a reference to an auto theft in the criminal records check,

       3) that Browder was driving through a high crime area near midnight, and 4)

       Browder’s inability to recall whether the vehicle was a 1992 or 1996 model,4




       3
         Browder extensively discusses statutory requirements for transferred plates in his brief. Specifically, the
       statute in effect on the date of the traffic stop required the “registrant” to have the bill of sale or other
       paperwork establishing ownership in his or her possession. See Ind. Code § 9-18-6-5. Browder argues that he
       was not the registrant, his wife was, and therefore, he was not required to have any paperwork in his
       possession. A new version of the statute went into effect on January 1, 2017 that requires the vehicle operator
       to have documents in that person’s possession establishing ownership of the vehicle if the vehicle is not yet
       registered and the person “displays a valid and unexpired transferred plate.” See Ind. Code 9-18.1-2-8. Officer
       Ball’s misunderstanding of the law on the date of the stop is of limited relevance to the outcome of this
       appeal given his valid concern over the mismatched license plate and whether the vehicle was possibly stolen.
       4
        As a result of the search, Officer Ball obtained the VIN number and determined that the Pontiac was a 2001
       model.

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017                          Page 10 of 16
       and 5) Browder’s claim that he was driving to a nearby Taco Bell because the

       street Browder was travelling on was not a direct route between the restaurant

       and Browder’s observed exit from a residential area.


[22]   Because no paperwork was in the vehicle documenting the sale to Browder or

       his wife (even though Browder may not have been required by statute to keep

       the paperwork in his possession), and the license plate on the vehicle was

       registered to a different vehicle whose owner did not share Browder’s name, we

       conclude that Officer Ball had reasonable suspicion to continue investigating

       who owned the Pontiac. Browder’s criminal history, albeit limited but with a

       reference to an auto theft, also supports our conclusion that the officer had

       reasonable suspicion that the vehicle might be stolen. Therefore, prolonging the

       traffic stop an additional two to three minutes did not violate the Fourth

       Amendment.


[23]   Approximately three minutes after the officer resumed his questioning of

       Browder (seventeen minutes into the stop), Browder told Officer Ball that he

       could search the Pontiac. A warrantless search based on lawful consent is

       consistent with both the Indiana and Federal Constitutions. Campos v. State, 885

       N.E.2d 590, 600 (Ind. 2008) (citing Perry v. State, 638 N.E.2d 1236, 1240 (Ind.

       1994); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)).


               The theory underlying this exception is that, when an individual
               gives the State permission to search either his person or property,
               the governmental intrusion is presumably reasonable. When the
               State relies upon consent to justify a warrantless search, it has the


       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017    Page 11 of 16
               burden of proving that the consent was, in fact, freely and
               voluntarily given.


       Ammons v. State, 770 N.E.2d 927, 933 (Ind. Ct. App. 2002), trans. denied

       (citations omitted). “A consent to search is valid except where it is procured by

       fraud, duress, fear, intimidation, or where it is merely a submission to the

       supremacy of the law.” Navarro v. State, 855 N.E.2d 671, 675 (Ind. Ct. App.

       2006). “Knowledge of the right to refuse a search is one factor which indicates

       voluntariness.” Id.


[24]   Whether consent to search was voluntary is a question of fact determined from

       the totality of the circumstances. Id. These include, but are not limited to,


               (1) whether the defendant was advised of his Miranda rights prior
               to the request to search; (2) the defendant’s degree of education
               and intelligence; (3) whether the defendant was advised of his
               right not to consent; (4) whether the detainee has previous
               encounters with law enforcement; (5) whether the officer made
               any express or implied claims of authority to search without
               consent; (6) whether the officer was engaged in any illegal action
               prior to the request; (7) whether the defendant was cooperative
               previously; and (8) whether the officer was deceptive as to his
               true identity or the purpose of the search.


       Id. (citation omitted).


[25]   In this case, after Officer Ball asked Browder if anything illegal was in the

       vehicle, Browder offered to allow Ball to search the car. Officer Ball had not

       requested permission to search the car, and he warned Browder that when

       individuals allow officers to search “illegal stuff” can be found. Tr. p. 13. The

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017   Page 12 of 16
       officer also told Browder that he had a right to the presence and advice of

       counsel before he consented to the search. Browder then continued to consent

       to the search of the vehicle. Under the totality of these circumstances,

       Browder’s consent to search was voluntary, and the warrantless search did not

       violate the Fourth Amendment. For all of these reasons, the trial court did not

       abuse its discretion when it admitted the paraphernalia into evidence.


                                              Article I, Section 11

[26]   The Fourth Amendment analysis focuses on a criminal defendant’s expectation

       of privacy, but under Article 1, Section 11 of the Indiana Constitution, the focus

       is upon the actions of the police officer and whether his or her actions were

       reasonable under the totality of the circumstances. Austin v. State, 997 N.E.2d

       1027, 1034 (Ind. 2013). This analysis requires us to balance: “‘the degree of

       concern, suspicion, or knowledge that a violation has occurred, 2) the degree of

       intrusion the method of the search or seizure imposes on the citizen’s ordinary

       activities, and 3) the extent of law enforcement needs.’” Id. (quoting Litchfield v.

       State, 824 N.E.2d 356, 361 (Ind. 2005)). The State has the burden of proving

       that police intrusion into privacy was reasonable under the totality of the

       circumstances. Id.


[27]   Browder argues that the degree of suspicion that the car was stolen was low

       because he gave a reasonable explanation for the transferred license plate. He

       contends that the degree of intrusion, which is evaluated from his point of




       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017    Page 13 of 16
       view,5 was high because the officer prolonged the length of the traffic stop and

       searched the car after ordering Browder out of his vehicle and questioning him

       while he stood in the bright lights of the patrol car. Finally, Browder argues that

       the extent of law enforcement needs was minimal because the vehicle was not

       reported stolen. He also argues the officer had “several less-intrusive

       alternatives available to him.” Appellant’s Br. at 36. Specifically, Browder

       claims the officer had all of Browder’s identifying information; therefore, if

       subsequent investigation established that the car was stolen, the officer could

       have obtained a warrant. He also argues that the officer could have taken the

       car into custody until Browder was able to provide the paperwork establishing

       vehicle ownership.


[28]   Officer Ball had a valid concern that the Pontiac was possibly a stolen vehicle.

       The license plate was not registered to the Pontiac. Also, the name listed on the

       registration did not establish any relation to Browder because it was registered

       to Browder’s wife, Kayla Lanahan. Browder did not give the officer his wife’s

       name until after Officer Ball had completed his records checks. Finally, during

       the records check, Officer Ball learned that Browder had possibly been involved

       in a prior auto theft.


[29]   After the records check was complete, Officer Ball continued to ask Browder

       questions about the auto theft reference that the officer found during the records

       check, details surrounding Browder’s purchase of the Pontiac, whether Browder


       5
           See Litchfield, 824 N.E.2d at 360

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017   Page 14 of 16
       and Lanahan were married, and Browder’s circuitous route to Taco Bell. The

       continued questioning was minimally intrusive because it was related to the

       reason for the traffic stop. However, Officer Ball’s decision to remove Browder

       from the vehicle did increase the level of intrusiveness.


[30]   Finally, the extent of law enforcement needs was not as minimal as Browder

       claims. Officer Ball had good reason for investigating who owned the Pontiac

       and needed to be certain it was not stolen. Browder suggests that Officer Ball

       did not need to prolong the traffic stop because he could have obtained a

       warrant if he eventually determined that the Pontiac was actually a stolen

       vehicle or the officer could have taken the car into custody. However, the brief

       three-minute detention (before Browder offered to allow the officer to search the

       vehicle) was less intrusive than Browder’s claimed alternatives. In fact, when

       the officer later considered seizing the vehicle, Browder asked the officer not to

       do so because his wife needed the car.


[31]   Considering the totality of the circumstances in light of the factors established

       in Litchfield, we conclude that Officer Ball reasonably decided to prolong the

       traffic stop to continue his investigation of whether Browder was legally in

       possession of the Pontiac.


[32]   After questioning Browder for an additional three minutes, Browder offered to

       allow Officer Ball to search the vehicle. As we discussed above, Officer Ball

       warned Browder about the possible consequences of allowing the officer to

       search the car and informed him that he was entitled to consult with an


       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017   Page 15 of 16
       attorney before allowing a search. Browder continued to consent to the search,

       and therefore, the warrantless search of the vehicle did not violate Article I,

       Section 11. See Campos, 885 N.E.2d at 600.


                                                  Conclusion
[33]   We conclude that Officer Ball’s decision to prolong the traffic stop did not

       violate the Fourth Amendment or Article 1, Section 11. Also, Browder’s

       consent to search the vehicle was voluntary. For these reasons, Browder has not

       established a federal or state constitutional violation, and the trial court did not

       abuse its discretion when it admitted into evidence the paraphernalia discovered

       during the warrantless vehicle search. We therefore affirm Browder’s Class A

       misdemeanor possession of paraphernalia conviction.


[34]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1857 | May 22, 2017   Page 16 of 16
