                                                                      FILED
                                                                 Feb 27 2019, 12:23 pm

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court



                          IN THE

   Indiana Supreme Court
            Supreme Court Case No. 18S-CR-00464

                 Zachariah J. Marshall,
                  Appellant (Defendant below),

                               –v–

                     State of Indiana,
                    Appellee (Plaintiff below).


      Argued: October 15, 2018 | Decided: February 27, 2019

             Appeal from the Porter Superior Court 4,
                   No. 64D04-1611-CM-010105
             The Honorable David L. Chidester, Judge

    On Petition to Transfer from the Indiana Court of Appeals,
                    No. 64A05-1710-CR-02368



                     Opinion by Justice Goff
Chief Justice Rush and Justices David, Massa, and Slaughter concur.
Goff, Justice.

   Zachariah Marshall challenges the propriety of his traffic stop for
speeding under both the United States and Indiana Constitutions. He
presents us with an interesting question: When a police officer’s calibrated
radar indicates an oncoming vehicle is speeding, the officer then verifies
the radar speed exceeds the posted speed limit, but he ultimately fails to
document the excessive speed, is there reasonable suspicion for a traffic
stop? We answer yes and affirm the trial court.


Factual and Procedural History
   During the early morning hours of October 29, 2016, as Reserve Officer
Sean Dolan patrolled near State Road 8 and 500 West in Hebron, Indiana,
in Porter County, he observed a vehicle approaching him through the
darkness. That night Officer Dolan drove a marked police car equipped
with a radar unit that was mounted on the dashboard, turned on, and
properly calibrated. As the vehicle approached him, Officer Dolan heard
the radar giving off a high-pitch tone. He later explained that the higher
the tone’s pitch, the faster the speed. Upon hearing the high pitch, Officer
Dolan looked at the radar’s target speed, compared it to the 50-miles-per-
hour speed limit sign posted just north of him, and saw the oncoming
vehicle was traveling faster than the posted speed limit. It was a clear, dry
night and Officer Dolan had no trouble seeing his radar unit, the posted
speed limit, or the approaching car.

   One-hundred-percent sure the oncoming vehicle was speeding, Officer
Dolan initiated a traffic stop, intending to cite the driver for speeding
only. With the car stopped, Officer Dolan approached and found
Zachariah Marshall was the driver. Explaining that he stopped Marshall
for speeding, Dolan asked him for his driver’s license and vehicle
registration. While Officer Dolan ran a warrant and BMV check, his back-
up officer (Corporal O’Dea) arrived at the scene and talked with Marshall.
Corporal O’Dea smelled alcohol on Marshall and noticed his slowed and
slurred speech. With the routine speeding traffic stop now turned into an
OWI investigation, Officer Dolan exercised his discretion and decided not



Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019   Page 2 of 13
to cite Marshall for speeding, later explaining: “I knew he was going to
have plenty of money problems and legal problems ahead of him that
were going to be costly and I decided to cut him a break on the citation for
speeding.” Tr. p. 15. Since Officer Dolan did not issue Marshall a speeding
ticket or a written warning, he did not document the speed he clocked
Marshall driving.

  The State of Indiana eventually charged Marshall with three counts: (1)
A-Misdemeanor Operating a Vehicle While Intoxicated, Endangering a
Person; (2) C-Misdemeanor Operating a Vehicle with an Alcohol
Concentration Equivalent to at least 0.08 but less than 0.15; and (3) C-
Misdemeanor Operating a Vehicle While Intoxicated.

   Marshall’s counsel deposed Officer Dolan on June 15, 2017, nearly eight
months after the traffic stop. During that deposition, Officer Dolan could
recall neither the posted speed limit near the intersection of Route 8 and
500 West where he pulled over Marshall nor could he remember the radar
reading of how fast Marshall was driving that night. Officer Dolan,
however, stated that at the time of the traffic stop, he could see the speed
limit sign posted on 500 West.

   On August 4, 2017, Marshall moved to suppress all evidence from the
traffic stop, alleging he’d been illegally seized under both the Fourth
Amendment to the United States Constitution and Article 1, Section 11 of
the Indiana Constitution. Regarding the Fourth Amendment, Marshall
alleged Officer Dolan lacked reasonable suspicion to stop him for
speeding that night. And concerning the Indiana Constitution, he alleged
the traffic stop proved unreasonable considering the totality of the
circumstances. Both arguments hinged upon the point that in his
deposition testimony Officer Dolan could not recall how fast Marshall was
driving before the traffic stop and could not remember the posted speed
limit.

  Officer Dolan testified at the suppression hearing, recounting the
details surrounding the traffic stop and repeatedly acknowledging that he
could not remember the posted speed or the radar speed during his
deposition two months earlier. He testified he did not document
Marshall’s speed that night. He explained he returned to the scene of the


Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019   Page 3 of 13
traffic stop between his deposition and the suppression hearing and he
could now definitely say the speed limit there is 50 miles per hour.
Ultimately, Officer Dolan testified that he knew the posted speed limit the
night of the stop and he was one-hundred-percent certain that Marshall
was speeding before he stopped him.

   The trial court eventually denied Marshall’s suppression motion. The
court’s factual findings included that Officer Dolan “observed
Defendant’s car speeding and . . . [he] was using a radar.” The trial court
then concluded:

      Officer Dolan was sure, based on his experience and
      observations at the scene, on a clear night, that defendant
      approached the road in [question] traveling in excess of the
      posted speed limit. He was adamant that the defendant was
      traveling too fast. The Court thus finds that his stop of the
      defendant was based upon his observation that a traffic
      infraction was being committed. On that basis, the Court
      denies the Motion to Suppress.


Appellant’s App. Vol. II, pp. 11–12 (emphases added). The trial court
certified the order for interlocutory appeal and Marshall appealed.

   The Court of Appeals accepted jurisdiction, and then reversed, holding:
“Because Reserve Officer Dolan could not testify regarding the speed of
Marshall’s vehicle in more specific terms . . . he did not have specific
articulable facts to support his initiation of a traffic stop, and therefore the
traffic stop violated Marshall’s Fourth Amendment rights.” Marshall v.
State, 105 N.E.3d 218, 222 (Ind. Ct. App. 2018). The Court of Appeals did
not address Marshall’s argument for suppression under Article 1, Section
11, explaining that “[a]s the Indiana Constitution provides broader
protection than the Federal Constitution . . . and we have concluded the
traffic stop did not meet the lower protection provided by the Federal
Constitution, we need not address any argument regarding the Indiana
Constitution.” Id. at 222 n.6.




Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019     Page 4 of 13
   The State petitioned for transfer, which we granted, thereby vacating
the Court of Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   Trial courts enjoy broad discretion in decisions to admit or exclude
evidence. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). When a trial
court denies a motion to suppress evidence, we necessarily review that
decision “deferentially, construing conflicting evidence in the light most
favorable to the ruling.” Id. However, we “consider any substantial and
uncontested evidence favorable to the defendant.” Id. We review the trial
court’s factual findings for clear error, declining invitations to reweigh
evidence or judge witness credibility. Id. See also State v. Keck, 4 N.E.3d
1180, 1185 (Ind. 2014) (explaining that “when it comes to suppression
issues, appellate courts are not in the business of reweighing evidence”
because “our trial judges are able to see and hear the witnesses and other
evidence first-hand”). If the trial court’s decision denying “a defendant’s
motion to suppress concerns the constitutionality of a search or seizure,”
then it presents a legal question that we review de novo. Robinson, 5
N.E.3d at 365.


Discussion and Decision
   Traffic stops, for even minor violations, fall within the protections of
the federal and state constitutions. When a law enforcement officer stops a
vehicle for a suspected traffic infraction like speeding, that officer seizes
the vehicle’s occupants under the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution; and that
traffic stop must pass constitutional muster. Heien v. North Carolina, 135 S.
Ct. 530, 536 (2014) (citing Brendlin v. California, 551 U.S. 249, 255–59 (2007));
Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009) (Fourth Amendment);
State v. Quirk, 842 N.E.2d 334, 339–40 (Ind. 2006) (Article 1, Section 11).
Marshall here argues that his traffic stop offended both the state and
federal constitutions. Even though the Fourth Amendment and Article 1,
Section 11 share parallel language, they part ways in application and


Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019      Page 5 of 13
scope. The Indiana Constitution sometimes affords broader protections
than its federal counterpart and requires a separate, independent analysis
from this Court. Dycus v. State, 108 N.E.3d 301, 304 (Ind. 2018). We,
therefore, take Marshall’s constitutional arguments in turn, analyzing his
claim first under the Fourth Amendment, and then under Article 1,
Section 11.


I. The Fourth Amendment

   A. The reasonable-suspicion standard applies to traffic
      violations generally.
   The Fourth Amendment safeguards our persons, our property, and our
peace by requiring that law enforcement first have a warrant supported
by probable cause before executing searches or seizures. Robinson, 5
N.E.3d at 367. This mandate notwithstanding, one exception to the
warrant and probable-cause requirements allows police to seize a person
without a warrant and on a level of suspicion less than probable cause—
that is, the reasonable-suspicion standard for brief investigatory stops. We
often call these encounters Terry Stops, where an officer may “stop and
briefly detain a person for investigative purposes if the officer has a
reasonable suspicion supported by articulable facts that criminal activity
‘may be afoot.’” Id. (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).
Traffic stops typically fall into this Terry Stop category, and, therefore,
must be based upon reasonable suspicion. Meredith, 906 N.E.2d at 869
(citing Whren v. United States, 517 U.S. 806, 809–10 (1996)).

   Though admittedly “a ‘somewhat abstract’ concept,” reasonable
suspicion is not an illusory standard. State v. Renzulli, 958 N.E.2d 1143,
1146 (Ind. 2011) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)).
The reasonable-suspicion standard guards Fourth Amendment rights
alongside the warrant and probable cause requirements. Law enforcement
“may not initiate a stop for any conceivable reason[;]” they must have at
least reasonable suspicion lawbreaking occurred. Meredith, 906 N.E.2d at
869 (citing Whren, 517 U.S. at 809–10; Delaware v. Prouse, 440 U.S. 648, 653



Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019    Page 6 of 13
(1979); Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003)). Nor can police rely
on a “mere ‘hunch’” simply suggesting a person committed a crime before
making a Terry Stop, like a traffic stop. Prado Navarette v. California, 572
U.S. 393, 397 (2014) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). To be
sure, “[s]uch a stop ‘must be justified by some objective manifestation that
the person stopped is, or is about to be, engaged in criminal activity.’”
Robinson, 5 N.E.3d at 367 (quoting Armfield v. State, 918 N.E.2d 316, 319
(Ind. 2009)). Reasonable suspicion requires more than an officer’s own
subjective belief a person might be violating the law. See Terry, 392 U.S. at
21–22. In other words, the stopping officer must be able to articulate some
facts that provide a particularized and objective basis for believing a
traffic violation occurred. See Keck, 4 N.E.3d at 1184. That is reasonable
suspicion—the constitutional floor—for a traffic stop.

    Marshall argues that Reserve Officer Dolan lacked reasonable
suspicion for a traffic stop since he did not document the radar speed,
could not recall the posted speed limit in his deposition, and could not
articulate Marshall’s precise speed at the deposition or the suppression
hearing. We disagree because the reasonable-suspicion standard does not
become more exacting for speeding violations.


   B. The reasonable-suspicion standard does not change for
      speeding traffic stops specifically.
   Applying the reasonable-suspicion standard to traffic stops, we’ve
previously said that, generally, “[a]n officer’s decision to stop a vehicle is
valid so long as his on-the-spot evaluation reasonably suggests that
lawbreaking occurred.” Meredith, 906 N.E.2d at 870. While we abide by
our prior statement, this case presents a variation on that jurisprudential
theme by addressing what details must survive that on-the-spot
evaluation for the traffic stop to hold up under the Fourth Amendment’s
weight. Marshall presents a more specific question: when an officer stops
a driver for speeding, does the reasonable-suspicion standard demand
that the officer document the driver’s speed?

   Marshall argues the answer to this question is yes, largely relying upon
United States v. Sowards, 690 F.3d 583 (4th Cir. 2012). In that case, the police


Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019     Page 7 of 13
officer stopped the defendant based upon only his visual observation that
the defendant was driving 75 miles per hour in a 70-miles-per-hour zone.
Id. at 585. Even though the officer had radar equipment, he did not use it
to verify the speed. Id. Likewise, the officer did not use pacing to gauge
the defendant’s speed. Id. That officer later testified there was no
technique to visually assess whether a car was speeding, and he
exclusively relied on his experience patrolling speeders. Id. at 585–86.

   The Fourth Circuit held the officer’s visual estimation of the
defendant’s speed alone did not provide sufficient suspicion for the traffic
stop because it provided no factual foundation for speeding. Id. at 594.
That court opined that when, based on a visual assessment only, an officer
stops a driver for speeding in slight excess of the speed limit, “then
additional indicia of reliability are necessary to support the
reasonableness of the officer’s visual estimate.” Id. at 591. The court
explained that “[s]uch additional indicia of reliability need not require
great exactions of time and mathematical skill that an officer may not
have, but they do require some factual circumstance that supports a
reasonable belief that a traffic violation has occurred.” Id. at 593.

   Marshall likens his case to Sowards and pushes for a similar result. He
believes that had Officer Dolan documented his speed or even
remembered how fast he was driving before the stop, then there would be
some indicia of reliability here to make the traffic stop reasonable. But we
see Sowards differently and notice two distinguishing points that limit its
applicability here. First and foremost, the Sowards court evaluated that
traffic stop for probable cause, not reasonable suspicion. Id. at 594. As
we’ve said before, probable cause is a more demanding standard
compared to reasonable suspicion. See Renzulli, 958 N.E.2d at 1146.
Second, Sowards involved a speeding determination based solely on the
officer’s visual observation. Radar was not used, unlike here. Even if we
did apply Sowards to these facts, Officer Dolan’s radar indication would
constitute sufficient indicia of reliability to support his determination that
Marshall was speeding. See Sowards, 690 F.3d at 593 (suggesting that radar
or pacing would provide sufficient indicia of reliability for a speeding
assessment).



Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019    Page 8 of 13
   Sowards aside, Marshall, nevertheless, insists Officer Dolan lacked
reasonable suspicion to stop Marshall for speeding because Dolan could
not articulate, or even estimate, how fast Marshall was driving that night.
Marshall demands a number from Officer Dolan, reasoning that we
cannot do a Fourth Amendment reasonable-suspicion analysis without
one. In support of that argument, Marshall invites us to establish a bright-
line rule requiring that officers document a driver’s exact speed in some
way—by remembering it, documenting it in a citation, a written warning,
or a probable-cause affidavit, or by recording the radar speed via a
dashboard camera. We disagree initially with Marshall’s premise that the
Fourth Amendment’s reasonable-suspicion requirement needs a number
for a speeding violation to pass constitutional muster. And we then reject
Marshall’s invitation to establish such a black-and-white rule.

    First, we disagree with Marshall’s premise that the Fourth Amendment
requires that an officer provide a number for how fast a defendant was
driving. The reasonable-suspicion standard does not demand such
measures. Like probable cause, reasonable suspicion is not readily
quantifiable and cannot be “reduced to a neat set of legal rules.” Sokolow,
490 U.S. at 7 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Rather, the
reasonable-suspicion “standard takes into account ‘the totality of the
circumstances—the whole picture.’” Prado Navarette, 572 U.S. at 397
(citation omitted). Reasonable suspicion does not require that an officer
know a crime occurred beyond a reasonable doubt or even by a
preponderance of the evidence. See id. And so, in order to execute a
constitutional traffic stop, “officers need only ‘reasonable suspicion’—that
is, ‘a particularized and objective basis for suspecting’” the driver violated
the law. Heien, 135 S. Ct. at 536.

   Second, we reject Marshall’s request for a bright-line rule for similar
reasons and because we think such a rule unnecessary. As we just said,
reasonable suspicion must be evaluated based on the totality of the
circumstances of each particular case. And this individualized test does
not lend itself to bright-line, widespread rules. What amounts to
reasonable suspicion in one case may not be enough in a different case.
What’s more, reasonable suspicion is not an exacting standard, and it has
not and cannot be reduced to a generic checklist. For speeding violations


Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019     Page 9 of 13
in particular, it makes sense that either pacing or radar would naturally
provide articulable, particularized objective facts to rouse reasonable
suspicion. But this case does not require us to speak in such definitive
terms.


    C. Reserve Officer Dolan had reasonable suspicion that
       Marshall was speeding.
   Looking at the totality of these facts—the whole picture—Officer Dolan
had reasonable suspicion to stop Marshall for speeding that night,
meaning Dolan possessed and provided sufficient articulable facts or
particularized, objective facts that Marshall was speeding. He testified at
the deposition and the suppression hearing that he was using radar that
night. He also testified the radar was mounted in front of him, turned on,
and properly calibrated that night. Officer Dolan testified the radar’s high-
pitch tone first alerted him that Marshall’s oncoming vehicle was
speeding. He explained he looked down at the radar and compared the
radar speed to the posted 50-miles-per-hour speed limit and concluded
Marshall was speeding. Officer Dolan testified he was one-hundred-
percent sure that Marshall was speeding when he stopped him. All told,
Officer Dolan articulated enough facts that gave him a particularized and
objective basis for believing Marshall was speeding when he initiated the
traffic stop. 1 We, therefore, hold that the traffic stop did not amount to an
unconstitutional seizure under the Fourth Amendment.


II. Article 1, Section 11
  The Indiana Constitution’s Article 1, Section 11 also protects Hoosiers’
persons, property, and peace from unreasonable State intrusion. Quirk,
842 N.E.2d at 339–40. To maintain its vigor in guarding citizens from



1We pause a moment to address Marshall’s suggestion that Officer Dolan was not a credible
witness. But we can only respond by noting that credibility determinations fall outside our
purview in these cases. The trial court’s order shows that it found Dolan credible, and we will
not disturb that determination. See supra p. 4.



Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019                  Page 10 of 13
unreasonable searches and seizures, we give Article 1, Section 11 “a liberal
construction” when applying it. Holder v. State, 847 N.E.2d 930, 940 (Ind.
2006). Indeed, it is well settled that investigative stops, like traffic stops,
receive protections under Article 1, Section 11. Renzulli, 958 N.E.2d at
1146. Although “[p]olice officers may stop a vehicle when they observe
minor traffic violations[,]” they must do so under Article 1, Section 11’s
strictures. Quirk, 842 N.E.2d at 340 (citation omitted).

  When a defendant challenges the propriety of an investigative stop
under the Indiana Constitution, the burden falls to the State to “show the
police conduct ‘was reasonable under the totality of the circumstances.’”
Robinson, 5 N.E.3d at 368 (quoting State v. Washington, 898 N.E.2d 1200,
1205–06 (Ind. 2008)). We decide whether a stop proved reasonable given
the totality of the circumstances by applying our three-part Litchfield test,
whereby we evaluate: “1) 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)). Considering these three factors, we conclude
Marshall’s traffic stop was reasonable.

   First, based on the radar unit’s indications, Reserve Officer Dolan had a
high degree of knowledge that Marshall was speeding. Officer Dolan
testified his radar’s high-pitched tone alerted him that Marshall was
speeding and even explained that a higher pitch indicated a faster speed.
Officer Dolan then compared the radar speed to the reflective 50-miles-
per-hour speed limit sign posted before him. We find that Officer Dolan
acted with a great degree of suspicion and then knowledge that Marshall
was driving too fast when he stopped him for speeding.

   Second, we find that this initial seizure—a traffic stop for speeding—
amounted to a small intrusion on Marshall’s ordinary activities. Officer
Dolan stopped Marshall at approximately 2:40 a.m. on a road with little-
to-no traffic. Upon making the stop, Dolan explained why he stopped
Marshall and asked him for his license and registration in order to run a
warrant and BMV check—all routine procedures. The stop escalated into




Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019   Page 11 of 13
an OWI investigation only when Corporal O’Dea spoke with Marshall and
noticed his slowed, slurred speech and smelled alcohol.

   Third, we acknowledge that law enforcement has at least a legitimate, if
not a compelling, need to enforce traffic-safety laws, including speeding
limits. So long as governments set speed limits for public safety, those
limits will need to be enforced.

   Balancing these three factors, we hold Marshall’s traffic stop for
speeding did not violate Article 1, Section 11 of the Indiana Constitution.
Officer Dolan possessed sufficient knowledge that Marshal was speeding,
the initial stop was not intrusive, and law enforcement needs to be able to
patrol speeding.


Conclusion
   We hold this traffic stop passes muster under both the United States
and Indiana Constitutions. As it relates to the Fourth Amendment, we
find there were sufficient articulable facts to give Reserve Officer Dolan
reasonable suspicion that Marshall was speeding. And for Article 1,
Section 11, we find the traffic stop was reasonable in view of the totality of
the circumstances. We, therefore, affirm the trial court’s decision denying
Marshall’s motion to suppress evidence.


Rush, C.J., and David, Massa, and Slaughter, JJ., concur.




Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019   Page 12 of 13
ATTORNEY FOR APPELLANT
Michael A. Campbell
Schwerd, Fryman & Torrenga, LLP
Valparaiso, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General

J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-CR-00464 | February 27, 2019   Page 13 of 13
