MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               May 24 2018, 7:12 am

this Memorandum Decision shall not be                                     CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                       May 24, 2018
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        10A01-1712-CR-2894
        v.                                              Appeal from the Clark Circuit
                                                        Court
Deana Lane Gaddy,                                       The Honorable Joseph P. Weber,
Appellee-Defendant.                                     Judge
                                                        Trial Court Cause No.
                                                        10C03-1709-CM-1642



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018           Page 1 of 12
[1]   The State appeals the trial court’s order granting a motion to suppress filed by

      Deana Lane Gaddy. The State raises one issue which we revise and restate as

      whether the trial court erred in granting Gaddy’s motion to suppress. We

      reverse and remand.


                                      Facts and Procedural History

[2]   On September 7, 2017, the State charged Gaddy with: Count I, operating a

      vehicle while intoxicated as a class C misdemeanor; and Count II, operating a

      vehicle while intoxicated endangering a person as a class A misdemeanor. That

      same day, the trial court entered an order titled “FINDING OF PROBABLE

      CAUSE” which states:


              An Information and Probable Cause Affidavit having been filed
              in this cause by the State of Indiana, the Court now finds and
              determines that there is probable cause to believe that the
              offense(s) set forth in the information have been committed by
              [Gaddy]. IT IS ORDERED that the defendant be brought before
              this Court for an Initial Hearing promptly and without
              unnecessary delay.


      Appellant’s Appendix Volume II at 13.


[3]   On September 14, 2017, Gaddy filed a Motion for Probable Cause Hearing.

      On September 18, 2017, the court entered an order scheduling a probable cause

      hearing for November 8, 2017. On November 8, 2017, the State filed a Request

      for Trial Date and Notice of Grounds for Objection to Defendant’s Motion for

      Probable Cause Hearing. The State argued in part that the court had already

      found probable cause, that the only relief available from a probable cause

      Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 2 of 12
      hearing was the immediate release of a defendant, and that the probable cause

      hearing was moot because Gaddy was not in custody. The State asserted that it

      could “only surmise that [Gaddy] is seeking dismissal of this matter entirely

      through the assertion of a lack of probable cause.” Id. at 30. An entry in the

      chronological case summary dated November 8, 2017, states: “Hearing on

      Motion to Supress [sic] reset for 11/15/17 at 2:30 p.m.” Id. at 5.


[4]   On November 15, 2017, the court held a hearing, stated that its understanding

      was that the hearing was set on Gaddy’s motion to suppress, asked if that was

      correct, and Gaddy’s counsel answered affirmatively.


[5]   According to the testimony of Indiana State Trooper Morgan Evans, he was

      working in downtown Jeffersonville on September 3, 2017. Around 2:30 or

      3:00 a.m., Trooper Evans took a lunch break in the Jeff Boat parking area and

      was located two blocks from Slammers bar. When asked if there was anything

      particularly special about the neighborhood, Trooper Evans testified: “There is

      lots of narcotics sales people carrying narcotics through that neighborhood there

      is lots of drunk drivers, stolen vehicles uh over doses there is a decent amount

      of crime.” Transcript Volume 2 at 18. Trooper Morgan observed two vehicles

      travelling very slowly southbound on Penn Street and the vehicle in the rear

      was following the vehicle in the front very closely. Trooper Morgan followed

      the two vehicles onto Market Street and observed the rear vehicle slow down

      while the front vehicle tried to “speed off.” Id. at 21. Trooper Morgan testified

      that his training indicated that the rear vehicle was attempting to distract him

      and draw his attention away from the front vehicle. Trooper Morgan passed

      Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 3 of 12
      the rear vehicle, followed the lead vehicle, observed the vehicle fail to use a turn

      signal, and initiated a traffic stop on the vehicle driven by Gaddy. When asked

      how many minutes he followed the vehicle, Trooper Morgan answered: “No

      more than five minutes I’m not exactly sure.” Id. at 23.


[6]   Trooper Morgan testified that he identified himself, asked to see Gaddy’s

      driver’s license and registration, and told her that he stopped her because she

      did not use her turn signal. He testified that Gaddy stated: “no body uses their

      turn signal in this area.” Id. at 28. According to his testimony, another vehicle

      parked behind his vehicle, he told the driver to leave the scene, and the driver

      left the scene. When asked about his probable cause for stopping Gaddy’s

      vehicle, Trooper Morgan answered: “She failed to use her turn signal two

      hundred fee[t] prior to turning when she was driving less than fifty miles per

      hour she didn’t use her turn signal and didn’t turn it on so I initiated a traffic

      stop on her.” Id. at 31. Trooper Morgan also testified that the failure to use a

      turn signal is a violation of the Indiana Traffic Code. On cross-examination,

      Trooper Morgan testified that Gaddy slowed to make her turn, there were no

      oncoming cars, she stopped at all the stop signs, did not speed, made seven

      turns, and signaled at every turn except for the last turn. Trooper Morgan later

      stated that she failed to signal the last two turns.


[7]   After Gaddy’s counsel cross-examined Trooper Morgan, the following

      exchange occurred:


              JUDGE: I got just a couple of things. I guess as I listen to this I
              heard testimony that you were following her and I didn’t really

      Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 4 of 12
        understand why exactly you were following her but I think your
        testimony is you didn’t see any signs of impairment but you
        continued to follow her is that right?

        TROOPER: Yes.

        JUDGE: Any particular reason?

        TROOPER: I was just following her.

        JUDGE: How far were you going to follow her?

        TROOPER: I’m not for sure I follow a lot of vehicles.

        JUDGE: Two or three for [sic] miles?

        TROOPER: Probably or so, probably so.

        JUDGE: Why?

        TROOPER: Trying to figure out if an indicator if she is uh
        gonna make an infraction or a reason to stop because she was it
        was a suspicious vehicle coming from a high crime area so I was
        trying to figure out for probable cause to stop.

        JUDGE: See and that’s my problem with all of this what you are
        telling me is anybody that drives through that part of jeff is
        suspicious and you are gonna follow them until they commit a
        traffic infraction and then you’re going to pull them over. Is that
        right?

        TROOPER: No sir.

        JUDGE: Well that’s what it sounds like to me and I’m just
        trying I’m not trying to give you a hard time I’m trying to look
        for reasonable suspension [sic] and probable cause and like
        everybody I kinda put myself in and you may stand down be
        seated by the prosecutor if you would like. Here is my problem
        with this I drive through there all the time[.]

        TROOPER: Yes sir.
Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 5 of 12
        JUDGE: It just seems strange to me that just driving through
        there is reasonable suspicion to follow someone and then
        continue to follow them until they commit a traffic offense
        because sooner or later they are gonna commit a traffic infraction
        there is no doubt about it you drive, you drive five miles, ten
        miles, fifteen mile, fifteen feet sooner or later you’re gonna
        commit a traffic infraction. So you think that constitutes some
        reasonable suspicion?

        TROOPER: Yes because I had reasonable suspicion this vehicle
        was coming from a high crime area there are houses we are
        watching where narcotics ect. [sic] so I had reasonable suspicion
        so I ended up getting probable cause to stop the vehicle.

        JUDGE: So anybody who drives through downtown jeff is
        suspect?

        TROOPER: Not downtown jeff but that area.

        JUDGE: Market Street?

        TROOPER: Penn Street, Cherry virgin alley, Graham those
        areas.

        JUDGE: Ok you got anything else?

        STATE: I have nothing else judge.

        JUDGE: I think its pretextual stop what I got was testimony that
        you started to follow her and follow her for a long way and she
        committed no infraction and eventually she did. Granted if she
        didn’t signal that’s reason but I mean like I said anybody is
        eventually going to commit a traffic infraction if you follow them
        long enough. There has to be some reasonable suspicion why
        you continued to follow them otherwise you simply get to follow
        anybody around for no particular reason till you get the
        opportunity to pull them over. I don’t think that’s I don’t think
        that is I think that is a pretextual stop I think that’s coming up
        with a reason to stop somebody when there is, I think you were

Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 6 of 12
              gonna stop her you made the decision to stop her when you
              passed the other car. I think sooner or later you were gonna have
              a technical reason you could which was failing to signal after she
              signal half a dozen times I think it’s a protected stop. Certainly if
              you seen her fail to signal within a reasonable space where she
              was doing other things or she hadn’t signaled when she pulled
              out onto Market street, I’m all on board with that I really am but
              I don’t see any reason why you continued to follow her just
              because she drove through that part of downtown jeff. I didn’t
              hear any testimony that you were investigating any particular
              crime that she was driving a type of description of a car that was
              involved in a crime and so on and so forth. I just ya know I
              didn’t hear any of that I mean this notion that just driving
              through there makes you suspect is I don’t know if it meets the
              standard I think it’s a pretextual stop. Ok[.]

              STATE: Ok so just so I’m clear on the rule you suppressed here
              inaudible.

              JUDGE: I’m gonna suppress it I think it’s a protected stop I
              don’t think there was reasonable suspicion to continue to follow
              her uh and I think it was clear he was going to stop her and made
              a decision to stop her long before she failed to signal and I think
              its stop to see if she had been drinking basically because she had
              been coming down the street from a bar and I don’t think you
              can do that so I’m going to suppress the evidence thank you.


      Id. at 65-68.


                                                  Discussion

[8]   We first note that Gaddy did not file an appellee’s brief. In such a case, we

      apply a less stringent standard of review with respect to showings of reversible

      error. State v. Weyer, 831 N.E.2d 175, 177 (Ind. Ct. App. 2005). We do not

      have the burden of controverting arguments advanced for reversal. Id. The

      Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 7 of 12
       State only needs to establish prima facie error, which is error at first sight, on

       first appearance, or on the face of it. Id.


[9]    The issue is whether the trial court erred in granting Gaddy’s motion to

       suppress. “In reviewing a trial court’s motion to suppress, we determine

       whether the record discloses ‘substantial evidence of probative value that

       supports the trial court’s decision.’” State v. Renzulli, 958 N.E.2d 1143, 1146

       (Ind. 2011) (quoting State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)). “We do

       not reweigh the evidence, but consider ‘conflicting evidence most favorably to

       the trial court’s ruling.’” Id. (quoting Quirk, 842 N.E.2d at 340). “When the

       State appeals from a negative judgment, as here, it ‘must show that the trial

       court’s ruling on the suppression motion was contrary to law.’” Id. (quoting

       State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008), reh’g denied). “[T]he

       ultimate determination of the constitutionality of a search or seizure is a

       question of law that we consider de novo.” Carpenter v. State, 18 N.E.3d 998,

       1001 (Ind. 2014).


[10]   The State asserts that the trial court did not identify any statutory or

       constitutional basis for determining that the trooper was not permitted to follow

       a vehicle for several minutes. The State argues that there is no requirement that

       an officer have reasonable suspicion that criminal activity is afoot before

       following a vehicle. It contends that following a vehicle is not synonymous

       with stopping a vehicle and that, while an officer needs reasonable suspicion or

       probable cause for that latter, such is not required for the former. It points out

       that the United States Supreme Court has held: “A person travelling in an

       Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 8 of 12
       automobile on public thoroughfares has no reasonable expectation of privacy in

       his movements from one place to another.” Appellant’s Brief at 9 (quoting

       United States v. Knotts, 460 U.S. 276, 281 (1983)). With respect to the trial

       court’s concern that the trooper had undertaken a pretextual stop, the State

       argues that the United States Supreme Court has made clear that a traffic stop

       based on a traffic violation is not unlawful merely because an officer has an

       ulterior motive for stopping the vehicle. Id. at 10 (citing Whren v. United States,

       517 U.S. 806, 810-813 (1996)).


[11]   The Fourth Amendment to the United States Constitution provides:


               The 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, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


[12]   There are three levels of police investigation, two of which implicate the Fourth

       Amendment and one of which does not. Powell v. State, 912 N.E.2d 853, 859

       (Ind. Ct. App. 2009). First, the Fourth Amendment requires that an arrest or

       detention that lasts for more than a short period of time must be justified by

       probable cause. Id. Second, pursuant to Fourth Amendment jurisprudence, the

       police may, without a warrant or probable cause, briefly detain an individual

       for investigatory purposes if, based upon specific and articulable facts, the

       officer has a reasonable suspicion that criminal activity has or is about to occur.

       Id. The third level of investigation occurs when a police officer makes a casual

       Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 9 of 12
       and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id.

       This is a consensual encounter in which the Fourth Amendment is not

       implicated. Id.


[13]   “‘Not every encounter between a police officer and a citizen amounts to a

       seizure requiring objective justification.’” Id. (quoting Overstreet v. State, 724

       N.E.2d 661, 663 (Ind. Ct. App. 2000), reh’g denied, trans. denied). “A person is

       ‘seized’ only when, by means of physical force or a show of authority, his or her

       freedom of movement is restrained.” Id. (quoting State v. Lefevers, 844 N.E.2d

       508, 513 (Ind. Ct. App. 2006), trans. denied). It is not the purpose of the Fourth

       Amendment to eliminate all contact between police and the citizenry. Id. at

       860.


[14]   Trooper Evans did not stop, detain, or otherwise restrain Gaddy when he

       followed her. Gaddy did not file an appellee’s brief and accordingly cited no

       authority for the proposition that Trooper Evans violated her Fourth

       Amendment rights by following her. We conclude that the State has

       demonstrated a prima facie case of error. See Overstreet, 724 N.E.2d at 664

       (holding that the Fourth Amendment was not implicated when the officer

       followed the defendant to a gas station, approached him, asked about his

       action, and asked for his identification).


[15]   With respect to the stop, we observe that the Indiana Supreme Court has held:

       “It 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.”


       Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 10 of 12
       Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). See also Quirk, 842 N.E.2d at

       340 (holding that police officers “may stop a vehicle when they observe minor

       traffic violations” and “[a] traffic violation, however minor, creates probable

       cause to stop the driver of the vehicle”). In addressing whether Article 1,

       Section 11 of the Indiana Constitution prohibits pretextual stops, the Indiana

       Supreme Court has held:


               We find nothing unreasonable in permitting an officer, who may
               have knowledge or suspicion of unrelated criminal activity by the
               motorist, to nevertheless respond to an observed traffic violation.
               It is likewise not unreasonable for a motorist who commits a
               traffic law violation to be subject to accountability for said
               violation even if the officer may have an ulterior motive of
               furthering an unrelated criminal investigation.


       Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001). The record reveals that

       Trooper Morgan testified that Gaddy failed to use her turn signal prior to

       turning. Moreover, the trial court found that Gaddy committed a traffic

       infraction. Specifically, the court stated that Gaddy initially “committed no

       infraction and eventually she did.” Transcript Volume 2 at 67. The State has

       demonstrated that the grant of Gaddy’s motion constituted a prima facie error.


                                                   Conclusion

[16]   For the foregoing reasons, we reverse the trial court’s grant of Gaddy’s motion

       and remand for proceedings consistent with this opinion.


[17]   Reversed and remanded.



       Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2894 | May 24, 2018   Page 11 of 12
Bailey, J., and Crone, J., concur.




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