                                                                                  FILED
                                                                             Nov 13 2019, 9:19 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEYS FOR APPELLANT                                       ATTORNEY FOR APPELLEE
      Curtis T. Hill, Jr.                                           Zachary J. Stock
      Attorney General of Indiana                                   Zachary J. Stock, Attorney at Law,
                                                                    P.C.
      Angela N. Sanchez                                             Indianapolis, Indiana
      Courtney L. Staton
      Deputy Attorneys General
      Indianapolis, Indiana




                                                     IN THE
              COURT OF APPEALS OF INDIANA

      State of Indiana,                                             November 13, 2019
      Appellant-Plaintiff,                                          Court of Appeals Case No.
                                                                    19A-CR-305
              v.                                                    Appeal from the Hendricks Superior
                                                                    Court
      Julio Serrano,                                                The Honorable Stephenie LeMay-
      Appellee-Defendant                                            Luken, Judge
                                                                    Trial Court Cause No.
                                                                    32D05-1702-F3-14



      May, Judge.

[1]   The State appeals the trial court’s order granting Julio Serrano’s supplemental

      motion to suppress. The State raises one issue, which we revise and restate as

      whether the trial court erred in granting Serrano’s supplemental motion to suppress.

      We reverse and remand.

      Court of Appeals of Indiana | Opinion 19A-CR-305 | November 13, 2019                            Page 1 of 9
                                Facts and Procedural History                                  1




[2]   On the night of February 20, 2017, Brownsburg Police Department Officers

      responded to a dispatch regarding an armed suspect in a residential neighborhood.

      The dispatch was later updated to a report of an armed robbery in progress. The

      dispatch described the suspect as being near a silver Chevrolet Envoy. Officer Corey

      Sears, 2 who had responded to the dispatch, encountered a witness at the scene.

      Officer Sears asked the witness what car the suspect was driving, and the witness

      responded that he did not know. Officer Sears’ bodycam had not captured a white

      Cadillac Escalade, but he radioed that a white Cadillac Escalade left the

      neighborhood at a high rate of speed. Officer Sears did not relay the speed the

      vehicle was traveling, the vehicle’s plate number, a description of the driver, the

      number of occupants, or any identifying information about any of the occupants.

      Officer Sears told another officer at the scene that he did not know if the Cadillac

      was involved, but he did not convey these doubts over the radio.


[3]   Detective Dirk Fentz and other officers, including Officer Chad Brandon, also

      responded to the dispatch and heard the information reported by Officer Sears about

      the white Cadillac. Detective Fentz observed a white Cadillac stopped at a traffic

      light and pulled his car “nose-to-nose” with the Cadillac. (Tr. Vol. II at 12.) He

      approached the Cadillac, noticed a female driver and two other people in the




      1
       We heard oral argument in this case on October 1, 2019, in LaPorte, Indiana. We thank the faculty and staff of
      LaPorte High School for their hospitality and thank counsel for their able presentations.
      2
       Officer Sears did not testify at either suppression hearing. He is no longer employed by the Brownsburg Police
      Department.

      Court of Appeals of Indiana | Opinion 19A-CR-305 | November 13, 2019                                     Page 2 of 9
      backseat of the vehicle, and ordered the occupants to show their hands. Detective

      Fentz testified:


                 We tried to get them to unlock and exit the vehicle. As we did, the
                 doors became unlocked, Mr. Serrano began to exit the back of the
                 vehicle, pushed between me and Officer [Jonathan] Flowers and then
                 ran across Odell [Street] pulling a firearm.


      (Id. at 14.) Serrano began to turn toward the officers, started to fumble his firearm,

      regained possession, and then faced the officers. Detective Fentz used his service

      weapon to shoot Serrano one time. The officers then recovered Serrano’s firearm.

      Serrano was transported to Eskenazi Hospital, and the court issued an arrest

      warrant.


[4]   The State charged 3 Serrano with Level 4 felony unlawful possession of a firearm by a

      serious violent felon 4 and alleged Serrano was a habitual offender. 5 On October 15,

      2018, Serrano filed a motion to suppress arguing the traffic stop was

      unconstitutional. During the hearing on the motion to suppress, Serrano relied on

      the testimony of Officer Brandon and Officer Fentz to argue no evidence supported

      the white Cadillac’s involvement in the alleged robbery. After the hearing, the trial

      court issued a written order denying the motion to suppress that stated, in part:


                 The Court finds that due to the vehicle at issue being in the area of the
                 armed robbery and that Officer Brandon testified that the vehicle

      3
       The State also initially charged Serrano with Level 3 felony attempted armed robbery, Ind. Code § 35-42-5-1 & Ind.
      Code § 35-41-5-1; Level 6 felony criminal recklessness, Ind. Code § 35-42-2-2; and Level 5 felony being a felon in
      possession of a handgun, Ind. Code § 35-47-2-1. However, these charges were later dismissed without prejudice.
      4
          Ind. Code § 35-47-4-5.
      5
          Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Opinion 19A-CR-305 | November 13, 2019                                    Page 3 of 9
              dispatch reported was involved in the armed robbery was a white
              Cadillac [E]scalade that law enforcement did not have to provide the
              Court with the speed limit of the area of the stop or the vehicle’s exact
              speed. The key is that the vehicle was leaving the area at a rate of
              speed that Detective Fentz (an experienced officer) described at [sic] a
              high rate of speed.


      (App. Vol. 2 at 103-04.)


[5]   On January 18, 2019, Serrano filed a supplemental motion to suppress. At a hearing

      on the supplemental motion, Serrano introduced into evidence bodycam footage

      from Officer Sears. This footage had not been entered into evidence during the first

      hearing on Serrano’s motion to suppress. After that hearing, the trial court granted

      Serrano’s motion to suppress without entering any specific findings. The State filed a

      motion to correct error. The trial court denied the State’s motion, and the State

      appeals because the grant of the motion to suppress effectively precluded

      prosecution. See Ind. Code § 35-38-4-2(5) (defining circumstances under which State

      may appeal trial court decision).



                                     Discussion and Decision
[6]   The State has the burden of showing the trial court’s ruling on the motion to suppress

      was contrary to law because the State is appealing from a negative judgment. State v.

      Bouye, 118 N.E.3d 22, 24 (Ind. Ct. App. 2019). We evaluate “whether the record

      contains substantial evidence of probative value that supports the trial court’s

      decision.” State v. Lucas, 112 N.E.3d 726, 729 (Ind. Ct. App. 2018). Our review of

      the denial of a motion to suppress is similar to our review of other sufficiency issues.


      Court of Appeals of Indiana | Opinion 19A-CR-305 | November 13, 2019                Page 4 of 9
      Stark v. State, 960 N.E.2d 887, 888 (Ind. Ct. App. 2012), trans denied. We do not

      reweigh the evidence and we consider conflicting evidence in favor of the trial court’s

      ruling. Id. We will also consider uncontested evidence favorable to the defendant.

      Id. at 889. “We review de novo a ruling on the constitutionality of a search or

      seizure, but we give deference to a trial court’s determination of the facts, which will

      not be overturned unless clearly erroneous.” Id.



                                 Reasonable Suspicion and the Traffic Stop

[7]   The Fourth Amendment to the United States Constitution and Article I, Section 11

      of the Indiana Constitution generally prohibit warrantless seizures subject to a few

      well-delineated exceptions. M.O. v. State, 63 N.E.3d 329, 331-32 (Ind. 2016). The

      State has the burden of proving that one of the well-delineated exceptions applies.

      Randall v. State, 101 N.E.3d 831, 837 (Ind. Ct. App. 2018), trans. denied. Further, the

      Indiana Constitution requires any search or seizure be reasonable under the totality

      of the circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). Evidence

      obtained pursuant to an unconstitutional search or seizure is subject to exclusion and

      may not be used as evidence against the defendant at trial. Clark v. State, 994 N.E.2d

      252, 266 (Ind. 2013). This exclusion extends to “evidence directly obtained by the

      illegal search or seizure as well as evidence derivatively gained as a result of

      information learned or leads obtained during that same search or seizure.” Id.


[8]   The State contends the traffic stop meets one of the exceptions to the Fourth

      Amendment’s warrant requirement because it was an investigatory stop based on

      reasonable suspicion. Further, the State argues, the traffic stop satisfied the Indiana


      Court of Appeals of Indiana | Opinion 19A-CR-305 | November 13, 2019               Page 5 of 9
      Constitution because the police conduct was entirely reasonable. Serrano argues the

      officers violated both the Fourth Amendment and the Indiana Constitution by

      stopping the vehicle. However, we need not decide whether the traffic stop was

      constitutional because, regardless, Serrano’s conduct after the stop was sufficiently

      distinguishable and attenuated from the stop to be purged of whatever taint may

      have accompanied the seizure of the Cadillac.



                       Attenuation and Serrano’s Conduct After the Traffic Stop

[9]   Under the United States Constitution, evidence obtained in violation of the Fourth

      Amendment may still be used against a criminal defendant if it falls within certain

      recognized exceptions to the exclusionary rule. C.P. v. State, 39 N.E.3d 1174, 1180

      (Ind. Ct. App. 2013). For example, the Supreme Court of the United States has

      recognized exceptions if the officers rely in good faith on a subsequently invalidated

      warrant, if the causal connection between the constitutional violation and the

      evidence is remote, if the evidence would have inevitably been discovered without

      the constitutional violation, or if a lawful, genuinely independent seizure would have

      yielded the same evidence. Id. (citing United States v. Leon, 468 U.S. 897 (1984), reh’g

      denied; Hudson v. Michigan, 547 U.S. 586 (2006); Nix v. Williams, 467 U.S. 431 (1984);

      and Murray v. United States, 487 U.S. 533 (1988)). One such exception is the new-

      crime exception. Id. at 1182 (holding defendant who battered police officer

      committed new and distinct crime after being illegally seized such that evidence of

      the battery was properly admitted). The new-crime exception is a subset of the

      attenuation doctrine. Wright v. State, 108 N.E.3d 307, 314 (Ind. 2018).



      Court of Appeals of Indiana | Opinion 19A-CR-305 | November 13, 2019             Page 6 of 9
[10]   The attenuation doctrine 6 provides that, for Fourth Amendment purposes, the

       collection of evidence may be so far removed from an illegal search or seizure that

       the evidence is untainted. Wright, 108 N.E.3d at 317. Therefore, courts may admit

       evidence that derives from an illegal search or seizure if the evidence itself or the

       circumstances in which the evidence was discovered are sufficiently distinguishable

       from the illegal search or seizure. Id. at 321. Courts assess the following factors to

       determine whether the taint from an illegal search or seizure has been purged: the

       temporal proximity between the unconstitutional conduct and the discovery of the

       evidence, the presence of intervening circumstances, and the flagrancy of police

       misconduct. Utah v. Strieff, 136 S. Ct. 2056, 2062 (2016); see also Wright, 108 N.E.3d

       at 319-20 (considering the timeline, intervening circumstances, and degree of police

       misconduct when determining whether defendant’s statements were sufficiently

       attenuated from illegal search and seizure to be admissible).




       6
         As an initial matter, Serrano argues the State waived its arguments regarding the attenuation doctrine because, at
       the hearing on Serrano’s supplemental motion to suppress, the State argued only that the stop of the Cadillac was
       supported by reasonable suspicion. In support, Serrano cites State v. Friedel, 714 N.E.2d 1231, 1236 (Ind. Ct. App.
       1999), which held the State waived its argument regarding standing by not raising it before the trial court. However,
       in Armour v. State, the State charged Armour with possession of cocaine after officers found drugs in a friend’s hotel
       room, and Armour filed a motion to suppress. 762 N.E.2d 208, 213 (Ind. Ct. App. 2002), trans. denied. The State
       did not raise the issue of standing, but the trial court addressed it sua sponte in denying the defendant’s motion to
       suppress. Id. We held that even though the State did not raise the issue of standing at the trial level, the State had
       not waived its argument regarding standing because the issue was fully litigated at the trial court level. Id. See also
       State v. Miracle, 75 N.E.3d 1106, 1109 (Ind. Ct. App. 2017) (reversing denial of motion to correct error when Indiana
       Bureau of Motor Vehicles intervened and filed motion to correct error after trial court issued order expunging
       driver’s administrative suspensions).
       In the case at bar, the new crime exception was raised before the trial court. In its Motion to Correct Error, the State
       observed “the exclusionary rule does not prohibit evidence of illegal activity occurring after an illegal stop provided
       the activity is attenuated from the stop.” (App. Vol. II at 132.) The State argued Serrano’s conduct after exiting the
       vehicle was sufficiently attenuated to be admissible. Consequently, like the standing argument in Armour, the new
       crime exception argument was raised and fully litigated before the trial court. The trial court rejected the argument
       and denied the State’s Motion to Correct Error. We therefore hold the argument was not waived.

       Court of Appeals of Indiana | Opinion 19A-CR-305 | November 13, 2019                                         Page 7 of 9
[11]   Even though the Fourth Amendment recognizes the new-crime exception, that is not

       the end of our analysis because “[i]t is well settled that a state may provide greater

       protection from searches and seizures than the Fourth Amendment requires.” State

       v. Brown, 840 N.E.2d 411, 417 (Ind. Ct. App. 2006). When assessing whether

       Indiana law allows for a new-crime exception to the exclusionary rule, we observed

       the exclusion of evidence of a new crime committed after an illegal search or seizure

       does not advance the deterrence of police misconduct that typically justifies

       application of the exclusionary rule. C.P., 39 N.E.3d at 1182. Therefore, Indiana

       law recognizes a new-crime exception to the exclusionary rule, which “provides that

       notwithstanding a strong causal connection in fact between an illegal search or

       seizure by law enforcement and a defendant’s response, if the defendant’s response is

       itself a new and distinct crime, then evidence of the new crime is admissible

       notwithstanding the prior illegality” of police behavior. Id. at 1182. If the new-crime

       exception did not apply, then a person could engage in all sorts of criminal conduct

       after an illegal seizure (such as, shooting or assaulting an officer, threatening an

       officer, etc.) without fear of reprisal. Id. at 1183-84.


[12]   The State argues evidence of Serrano’s conduct after the stop and the gun recovered

       from Serrano should be admissible because Serrano’s conduct is both attenuated

       from the stop and evidence of a new crime. The State characterizes Serrano’s act of

       exiting the backseat, pushing past two officers, and running across the street as “an

       extreme and unexpected intervening event.” (Appellant’s Br. at 18.) In contrast,

       Serrano argues the gun should be suppressed because it is derivative of the traffic

       stop. The officers stopped the Cadillac because of Officer Sears’ radio report. When


       Court of Appeals of Indiana | Opinion 19A-CR-305 | November 13, 2019              Page 8 of 9
       Detective Fentz approached the Cadillac, his intention was to have the driver and

       the individuals in the back seat exit the vehicle and show him their hands. The

       officers did not expect Serrano to push them, run from them, and draw a gun.

       Serrano’s decision to do all these things after the stop constitutes evidence of a new

       crime that is separate and distinguishable from whatever taint accompanies the stop

       of the Cadillac. Consequently, we hold that the new crime exception to the

       exclusionary rule applies in this situation and Serrano’s motion to suppress should be

       denied. See K.C. v. State, 84 N.E.3d 646, 651 (Ind. Ct. App. 2017) (holding juveniles’

       actions of hitting an officer after officer attempted to conduct pat-down search

       constituted new and distinct crimes such that evidence of those crimes was

       admissible pursuant to the new crime exception to the exclusionary rule), trans.

       denied.


                                                   Conclusion

[13]   We need not decide whether the officers had reasonable suspicion to stop the

       Cadillac. After the stop, Serrano did not comply with the officer’s orders or stay near

       the vehicle. Instead, he pushed past two officers, ran from them, and fumbled with a

       handgun. This conduct and the discovery of Serrano’s gun constitute a new crime,

       and therefore, the new crime exception to the exclusionary rule applies. We reverse

       the trial court’s grant of Serrano’s supplemental motion to suppress and remand for

       further proceedings.


[14]   Reversed and remanded.


       Mathias, J., and Crone, J., concur.
       Court of Appeals of Indiana | Opinion 19A-CR-305 | November 13, 2019            Page 9 of 9
