                                                                            FILED
                                                                       Jul 16 2019, 9:00 am

                                                                            CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Christopher J. Evans                                        Curtis T. Hill, Jr.
Dollard Evans Whalin LLP                                    Attorney General
Noblesville, Indiana
                                                            Samuel J. Dayton
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Patrick Neil Tinker,                                        July 16, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2880
        v.                                                  Appeal from the Hamilton
                                                            Superior Court
State of Indiana,                                           The Honorable J. Richard
Appellee-Plaintiff                                          Campbell, Judge
                                                            Trial Court Cause No.
                                                            29D04-1602-F6-1201



Crone, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019                              Page 1 of 11
                                               Case Summary
[1]   Patrick Neil Tinker appeals his convictions, following a jury trial, for level 6

      felony dealing in marijuana and class B misdemeanor possession of marijuana.

      During a valid traffic stop of Tinker’s vehicle, police officers conducted a dog

      sniff around the vehicle. After the canine alerted to the presence of an illegal

      substance, officers searched the vehicle and found marijuana in the trunk.

      Tinker unsuccessfully moved to suppress the evidence obtained during the

      search, arguing that the dog sniff prolonged the traffic stop in violation of his

      constitutional rights. The evidence was subsequently admitted at trial over his

      renewed objection. The sole restated issue on appeal is whether the trial court

      abused its discretion in admitting the evidence obtained as a result of the search.

      Finding no abuse of discretion, we affirm.


                                   Facts and Procedural History
[2]   On February 16, 2016, Fishers Police Department Officer Joseph Hancock was

      on street patrol conducting traffic stops on Interstate 69. At approximately

      11:27 p.m., Officer Hancock was in his fully marked police vehicle parked in

      the median near exit 206 when he observed a vehicle heading northbound make

      “some lane movements.” Tr. Vol. 2. at 105. Specifically, the vehicle was “in

      the left lane, [and] quickly jumped over to the right without proper signaling”

      and then “moved back into the left lane[.]” Id. After Officer Hancock started

      following the vehicle, the driver “switched again to the right lane without

      proper signaling” and then at one point “straddled two lanes of traffic.” Id.

      Officer Hancock remembered observing the same vehicle traveling southbound

      Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019          Page 2 of 11
      on Interstate 69 approximately forty-five minutes earlier, when he saw it make

      rapid lane changes and slam on its brakes; he had been unable to “get out on it”

      safely so he did not attempt a traffic stop at that time. State’s Ex. 1.


[3]   Officer Hancock activated his emergency lights and initiated a traffic stop of the

      vehicle a little after 11:27 p.m. Officer Hancock approached the passenger side

      of the vehicle and asked both the driver and the passenger for identification and

      spoke to them briefly about where they had been and where they were going.

      The men indicated that they had traveled from Fort Wayne to Indianapolis and

      were returning to Fort Wayne. Tinker was the driver and Jerome Dowdell was

      the passenger. Both Tinker and Dowdell “appeared nervous” and “wouldn’t

      make eye contact” with Officer Hancock, and their “breathing was a little

      elevated.” Tr. Vol. 2 at 107. Officer Hancock collected each man’s

      identification and returned to the police vehicle. At that point, Officer Hancock

      requested an assisting officer because he “knew that [he] was going to get the

      driver out and explain the warning to him and to talk to him a little more” and

      “[i]t’s just standard practice to officer’s safety to always have another officer

      there.” Id. at 15. Officer Hancock also called for a canine unit. Officer

      Hancock did so because he believed it was strange that the two men had stated

      that they were headed back to Fort Wayne from Indianapolis. Having

      remembered seeing that same vehicle just forty-five minutes earlier, Officer

      Hancock thought that was an uncommonly “quick turnaround.” Id. at 107.


[4]   Officer Hancock ran background checks on both Tinker and Dowdell and

      remained in his police vehicle until an assisting officer arrived on the scene at

      Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019           Page 3 of 11
      11:36 p.m. Officer Hancock spoke with the assisting officer and informed him

      that his background checks revealed prior drug and handgun possession charges

      against both Tinker and Dowdell.1 At almost 11:38 p.m., Officer Hancock

      returned to Tinker’s vehicle and asked Tinker to step out of the vehicle. As

      Tinker opened the door and exited the vehicle, Officer Hancock could smell the

      distinct odor of raw marijuana. Officer Hancock asked Tinker if he could pat

      him down, and Tinker consented. Then Officer Hancock explained to Tinker

      exactly why he pulled him over, and he stated that he planned to give Tinker

      only a verbal warning for the traffic infractions. Officer Hancock also

      questioned Tinker to clarify where he and Dowdell came from and where they

      were headed. Tinker told Officer Hancock that they were from Fort Wayne and

      had come to Indianapolis to a barber shop either to meet a friend or to get a

      haircut, and now they were headed back to Fort Wayne.


[5]   At 11:40 p.m., Officer Hancock requested Dowdell to also exit the vehicle in

      order to ask him the same questions, and while he was speaking to Dowdell, at

      11:41 p.m., the canine unit was on the scene and immediately did a walk

      around the vehicle. The canine quickly alerted on the vehicle, and a subsequent

      search of the vehicle’s trunk revealed 3.45 pounds of marijuana packaged in




      1
        As noted by the State, the jury was not made aware of any criminal history information gathered by Officer
      Hancock during the background checks due to a motion in limine which was granted by the trial court.
      Appellant’s App. Vol. 2 at 132. The Pre-Sentence Investigation report reveals that, prior to the current case,
      Tinker had been twice charged with carrying a handgun without a license, and he had one conviction for
      class B misdemeanor possession of marijuana. Id. at 142.

      Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019                                 Page 4 of 11
      vacuum-sealed bags. Officers also found two cell phones during the search of

      the vehicle. Tinker and Dowdell were arrested.


[6]   The State charged Tinker with two counts of level 6 felony dealing in

      marijuana, and two counts of class B misdemeanor possession of marijuana.

      Tinker filed a motion to suppress the evidence obtained as a result of the search

      of his vehicle. Following a hearing, the trial court entered an order denying the

      motion to suppress. A jury trial was held on August 30, 2018. During trial,

      Tinker renewed his objection to the admission of any evidence obtained as a

      result of the search of his vehicle. The trial court overruled his objection and

      admitted the evidence. The jury found Tinker guilty of one count of level 6

      felony dealing in marijuana and one count of class B misdemeanor possession

      of marijuana.2 The trial court sentenced Tinker to 730 days, with sixty days

      executed in the Department of Correction, 305 days on home detention, and

      365 days suspended to probation. This appeal ensued.


                                          Discussion and Decision
[7]   Tinker asserts that the trial court abused its discretion in admitting evidence

      seized during the search of his vehicle. Our supreme court has explained our

      standard of review when, as here, a defendant fails to seek interlocutory review

      of the trial court’s denial of a motion to suppress, and the matter instead

      proceeds to trial.




      2
          The trial court granted the State’s motion to dismiss the other two counts.

      Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019                 Page 5 of 11
               We consider th[e] appeal a request to review the trial court’s
               decision to admit evidence. The trial court has broad discretion
               to rule on the admissibility of evidence. Rulings on the
               admissibility of evidence are reviewed for an abuse of discretion
               and ordinarily reversed when admission is clearly against the
               logic and effect of the facts and circumstances. However, when a
               challenge to such a ruling is predicated on the constitutionality of
               the search or seizure of evidence, it raises a question of law that
               we review de novo.


      Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017) (citations omitted). We will

      uphold the trial court’s ruling on the admission of evidence during trial if it is

      sustainable on any legal theory supported by the record, even if the trial court

      did not use that theory. Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).


[8]   Tinker does not challenge the validity of his initial traffic stop, nor could he, as

      “[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). Moreover, it is well settled

      that a dog sniff is not a search protected by the Fourth Amendment or Article 1,

      Section 11 of the Indiana Constitution. Id.3 “Accordingly, no degree of

      suspicion is required to summon the canine unit to the scene to conduct an

      exterior sniff of the car or to conduct the sniff itself.” State v. Hobbs, 933 N.E.2d

      1281, 1286 (Ind. 2010).




      3
        “[B]oth provisions preserve the right of people to be secure in their persons, houses, papers, and effects,
      from unreasonable search and seizure[.] Austin, 997 N.E.2d at 1034.

      Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019                                    Page 6 of 11
[9]   A narcotics dog sweep, however, becomes “an unreasonable investigatory

      detention if the motorist is held for longer than necessary to complete the

      officer’s work related to the traffic violation and the officer lacks reasonable

      suspicion that the motorist is engaged in criminal activity.” Austin, 997 N.E.2d

      at 1034. In Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015), the United

      States Supreme Court explained that the tolerable duration of a seizure is

      dictated by the seizure’s particular “mission.” In the context of a traffic stop, an

      officer’s mission is to address the underlying traffic violations that warranted

      the stop and attend to related safety concerns. Id. This includes checking the

      driver’s license, determining whether there are outstanding warrants against the

      driver, and inspecting the vehicle’s registration and proof of insurance. Id. at

      1615. While “[t]hese checks serve the same objective as enforcement of the

      traffic code: ensuring that vehicles on the road are operated safely and

      responsibly[,]” a canine sniff, “by contrast, is a measure aimed at ‘detect[ing]

      evidence of ordinary criminal wrongdoing.’” Id. (quoting Indianapolis v.

      Edmond, 531 U.S. 32, 40-41 (2000)). Thus, a traffic stop “prolonged beyond”

      the “time reasonably required to complete [the stop’s] mission” is “unlawful.”

      Id. at 1616 (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). “The critical

      question, then, is not whether the dog sniff occurs before or after the officer

      issues a ticket, ... but whether conducting the sniff prolongs—i.e., adds time

      to—the stop.” Id. (quotations omitted). The burden is on the State to show that

      the time for the traffic stop was not increased due to a canine sniff. Wells v.

      State, 922 N.E.2d 697, 700 (Ind. Ct. App. 2010), trans. denied.


      Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019          Page 7 of 11
[10]   The basis of Tinker’s challenge is that Officer Hancock extended the traffic stop

       beyond the time required to reasonably complete the tasks tied to the traffic

       infraction for the sole purpose of getting a canine officer on the scene, and in

       doing so violated his constitutional rights.4 In other words, Tinker asserts that

       conducting the dog sniff unlawfully prolonged his traffic stop. Based upon the

       record before us, we disagree.


[11]   This Court considered facts somewhat similar to those presented here in

       Hansbrough v. State, 49 N.E.3d 1112 (Ind. Ct. App. 2016), trans. denied. In

       Hansbrough, an officer legally stopped Hansbrough for “following less than one

       second of braking distance behind another vehicle.” 49 N.E.3d at 1113. The

       officer asked Hansbrough, the sole occupant of the vehicle, for his license,

       registration, and insurance information, and also asked Hansbrough where he

       had come from and where he was headed. Id. While speaking with

       Hansbrough, the officer “observed what he believed to be marijuana ‘shake’”

       near the cup holder and, based on this observation, suspected the presence of

       drugs. Id. (record citation omitted). Accordingly, the officer called for a canine




       4
         Tinker asserts that the question of whether the stop was unreasonably prolonged was already determined by
       the trial court in denying his pretrial motion to suppress and that this Court must now give due deference to
       such determination. See Appellant’s Br. at 13; Reply Br. at 4 n.2 (noting that the trial court stated that it was
       considering solely the issue of whether Officer Hancock had reasonable suspicion to “prolong the traffic stop
       in order to conduct a canine sniff” and reasoning that, as a threshold matter, the trial court “must have
       concluded” that the traffic stop “was in fact prolonged.”) First, we do not necessarily agree with Tinker as to
       what the trial court did or did not conclude as a threshold matter in denying his motion to suppress.
       Moreover, we remind Tinker that he appeals the trial court’s evidentiary ruling after a completed trial and not
       the trial court’s legal or factual conclusions in ruling on his motion to suppress. As stated above, we will
       affirm the trial court’s evidentiary ruling if it is sustainable on any legal theory supported by the record. Rush,
       881 N.E.2d at 50.

       Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019                                     Page 8 of 11
       unit to come to the scene. The officer then sat in his patrol car and began typing

       out a warning ticket and running a records check on Hansbrough. The officer

       returned once to Hansbrough’s vehicle to verify his address. Id.


[12]   Within fourteen minutes of the commencement of the traffic stop, the canine

       unit arrived at the scene. Id. At that time, the officer was on the phone

       checking for any outstanding warrants and had not yet completed his

       paperwork for the traffic stop. Id. Sixteen minutes after the traffic stop first

       began, and while the officer was still on the phone checking for outstanding

       warrants, a dog sniff was conducted around the vehicle, and the dog “alerted to

       the presence of narcotics.” Id. Following the alert, the officers searched

       Hansbrough’s car and found a handgun underneath the driver’s seat. Id. at

       1114. The handgun evidence was subsequently admitted at Hansbrough’s trial

       over his objection. Hansbrough appealed and, based upon the facts, this Court

       found that the dog sniff of Hansbrough’s vehicle was conducted before the

       traffic stop was completed and therefore, the stop was not prolonged by the dog

       sniff. Id. at 1115. Accordingly, we held that the trial court did not abuse its

       discretion in admitting the evidence found as the result of the dog sniff. Id.


[13]   Similarly, here, the record reflects that the canine sniff did not, in fact,

       measurably prolong the traffic stop but instead was conducted within the time

       reasonably required to complete the stop’s mission. After the initial stop

       occurred at 11:27 p.m., Officer Hancock spent several minutes doing vehicle

       registration and background checks on both Tinker and Dowdell, and then he

       spent the next several minutes waiting for an assisting officer (not the canine

       Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019              Page 9 of 11
       unit) to arrive, which finally occurred a little after 11:36 p.m. This delay was

       reasonable for purposes of officer safety. See Rodriguez, 135 S. Ct. at 1616

       (noting that “an officer may need to take certain negligibly burdensome

       precautions in order to complete his mission safely.”).


[14]   Once the assisting officer arrived and Officer Hancock spent a brief amount of

       time getting him up to speed about the circumstances surrounding the traffic

       stop and the results of his background checks, Officer Hancock reapproached

       Tinker’s vehicle around 11:38 p.m. and asked Tinker to exit the vehicle with the

       purpose of giving him a verbal warning explaining the infractions that

       warranted the stop. After conducting a patdown for weapons and then

       explaining the infractions to Tinker as well as further clarifying Tinker’s and

       Dowdell’s comings and goings that night, Officer Hancock asked Dowdell to

       exit the vehicle at 11:40 p.m. so he could make the same brief inquiries

       regarding the purposes and intended destination of the men’s travel.5 The

       canine unit arrived on the scene and conducted the sniff one minute later, a

       mere fourteen minutes after the initial stop, while Officer Hancock was still in

       the midst of speaking with both Tinker and Dowdell. “An officer’s inquiries

       into matters unrelated to the justification for the traffic stop ... do not convert

       the encounter into something other than a lawful seizure, so long as those



       5
         Tinker’s claim is directed only at the duration of the traffic stop. He does not challenge Officer Hancock’s
       actions in requiring him to exit his vehicle or in conducting a patdown search upon his exit of the vehicle.
       We note that while concern for officer safety may justify ordering a driver and passengers out of the car, it
       does not by itself justify a patdown search. Mitchell v. State, 745 N.E.2d 775, 780 (Ind. 2001). However, our
       review of the police dash cam evidence reveals that Officer Hancock asked Tinker if he could conduct a
       patdown search, and Tinker consented.

       Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019                                 Page 10 of 11
       inquiries do not measurably extend the duration of the stop.” Curry v. State, 90

       N.E.3d 677, 686 (Ind. Ct. App. 2017) (quoting Arizona v. Johnson, 555 U.S. 323,

       333 (2009)), trans. denied (2018).


[15]   Under the circumstances presented, we conclude that the State met its burden

       to show that the canine sniff did not measurably prolong the duration of the

       valid traffic stop.6 The canine alerted while the traffic stop was ongoing and

       before Officer Hancock had completed the mission of the stop. Therefore, the

       subsequent search of Tinker’s vehicle was not rendered invalid and the trial

       court did not abuse its discretion in admitting evidence obtained during that

       search. We affirm Tinker’s convictions.


[16]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       6
         Even if we were to assume that the traffic stop was prolonged beyond the stop’s “mission” in order for the
       canine unit to arrive and conduct the sniff, the record indicates that Officer Hancock obtained information
       during the course of the stop that would have given him reasonable suspicion of criminal activity. Namely,
       Officer Hancock testified that when he asked Tinker to exit the vehicle with the purpose of giving him a
       verbal warning explaining his infractions, Officer Hancock smelled the distinct odor of raw marijuana. It is
       well settled that information lawfully obtained during a traffic stop may provide the officer with reasonable
       suspicion of criminal conduct that will justify prolonging the stop to permit a reasonable investigation,
       including a dog sniff. Hansbrough, 49 N.E.3d at 1115 n. 5. Therefore, we conclude that any delay that was, in
       fact, caused by the canine unit was permissible under both the Fourth Amendment and Article 1, Section 11
       of the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 18A-CR-2880 | July 16, 2019                              Page 11 of 11
