                                                                Mar 19 2015, 9:54 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Joe Keith Lewis                                           Gregory F. Zoeller
Marion, Indiana                                           Attorney General of Indiana

                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Cody Rutledge,                                            March 19, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          85A04-1407-CR-330
        v.                                                Appeal from the Wabash Superior
                                                          Court

State of Indiana,                                         The Honorable Christopher M. Goff,
Appellee-Plaintiff.                                       Judge

                                                          Cause No. 85D01-1307-FD-501




Brown, Judge.




Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015                Page 1 of 20
[1]   Cody Rutledge appeals his convictions for operating a vehicle while intoxicated

      as a class D felony and driving while suspended as a class A misdemeanor and

      his status as an habitual substance offender. Rutledge raises two issues which

      we consolidate and restate as whether the trial court abused its discretion by

      admitting certain evidence. We affirm.


                                         Facts and Procedural History

[2]   Around midnight or in the early morning hours of July 6, 2013, Wabash

      County Sheriff’s Deputy Dustin Hurst was driving on patrol with Reserve

      Deputy David Brinson and on his way to Lagro, Indiana. Deputy Hurst

      encountered a maroon minivan and observed that it “appeared that the driver

      was having a hard time keeping the vehicle on the roadway,” “it appeared as it

      would approach the edge of the roadway, it would jerk back, multiple times . . .

      um, trying to stay on the road,” and the driver jerked the wheel and it “wasn’t

      just from bumps.”1 Transcript at 24, 49. Reserve Deputy Brinson observed the

      minivan “would drift off the road, come back on the road.” Id. at 54. Deputy

      Hurst followed the minivan until it pulled into a residential driveway. He drove

      by the minivan, read the license plate number, continued to a parking lot, and

      entered the license plate number into his computer to determine if the minivan

      “belonged there,” which took a few seconds. Id. at 25. The address related to



      1
       When asked by defense counsel whether the minivan actually went off the roadway, Deputy Hurst stated:
      “I don’t believe so but I don’t recall for sure. I know, I know it was getting very close. I do remember at one
      point some dust flying up from the edge of the road but that doesn’t necessarily mean it was off the road.”
      Transcript at 30. Deputy Hurst also testified that the actions of the driver were not enough to pull the vehicle
      over for erratic driving.

      Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015                           Page 2 of 20
      the license plate was in La Fontaine, and Deputy Hurst determined that the

      residence where the minivan was located was not in La Fontaine. Deputy

      Hurst started back and observed that the minivan had already backed out and

      was starting onto the road again “[s]o, it stayed a very short . . . time there and

      it continued east from there.” Id. at 26.


[3]   Deputy Hurst turned around and saw that the minivan entered the Main Street

      of Lagro, went through a stop sign, traveled approximately two blocks, and

      then pulled into another residence. Deputy Hurst continued by to a street,

      turned around, and returned to the location of the minivan which took about

      ten to thirty seconds.2 During this time, he did not observe anybody around the

      minivan, any dome light illuminate, or any door open. Reserve Deputy

      Brinson did not observe any other vehicles, anything happening around the

      minivan, or any dome light illuminate.


[4]   Deputy Hurst approached the minivan with his vehicle facing the driver’s side

      of Rutledge’s minivan and pulled up perpendicular to it. He could not initially

      tell with his headlights if anyone was sitting in the minivan and did not activate

      his red and blue lights. He later testified that he was “just going up to check on




      2
        On cross-examination, Rutledge’s trial counsel discussed Deputy Hurst’s u-turn and asked him: “You
      estimated you think you were, uh, about ten to fifteen seconds to do all of that?” Transcript at 47. Deputy
      Hurst answered: “That’s correct, sir.” Id. Rutledge’s trial counsel stated: “It could have been longer than
      that. It could have been twenty to thirty seconds.” Id. Deputy Hurst stated: “I suppose it could have.” Id.

      Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015                         Page 3 of 20
      the driver and kind of see if they belonged where they were at. What was going

      on.” Id. at 29.


[5]   Deputy Hurst exited his vehicle, walked up to the driver’s side of the minivan,

      and observed Rutledge sitting in the driver’s seat “lying side wise over the . . .

      center console of the vehicle with his head resting on the passenger seat.” Id. at

      37. Reserve Deputy Brinson also exited Deputy Hurst’s vehicle and went to the

      back corner of the minivan. Deputy Hurst tapped on the driver’s side window,

      Rutledge sat up, and they had a brief discussion before Rutledge exited the

      vehicle. Either Rutledge or Deputy Hurst opened the door so they could

      communicate.3 Deputy Hurst asked Rutledge what was going on, and Rutledge

      said that he had been asleep and did not know what was going on. Deputy

      Hurst noticed an odor of an alcoholic beverage, that Rutledge’s eyes were red

      and glassy, that his speech was slightly slurred, and observed an open alcohol

      container in the driver’s side of the console. At one point during the

      conversation, Rutledge said that the keys were not in the ignition, and Deputy

      Hurst located the keys on the passenger side floor.


[6]   Deputy Hurst asked Rutledge to step out of the vehicle. Rutledge completed a

      partial field sobriety test but then stated that he did not want to participate in

      any more such tests. Specifically, Deputy Hurst completed “about two-thirds of

      the way through the horizontal gaze nystagmus test” before Rutledge advised



      3
       Deputy Hurst testified that Rutledge sat up “and I believe either he or I, one opened the door, all so I could
      speak with him.” Transcript at 37.

      Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015                           Page 4 of 20
      that he did not wish to participate any further. Id. at 38. Rutledge said that he

      was not operating the vehicle, that a friend had driven him to Lagro, and that

      the friend had left. Deputy Hurst stated that he did not see the dome light

      illuminate, and Rutledge said that maybe someone climbed out the window.4

      Deputy Hurst asked Rutledge if he had a driver’s license, and Rutledge

      indicated that he did not.


[7]   Deputy Hurst offered Rutledge a certified chemical test and gave him the

      implied consent warning, and Rutledge refused to take the test. Deputy Hurst

      transported Rutledge to the Sheriff’s Department and obtained a search warrant

      for a blood draw. The blood was later determined to contain .19 grams of

      alcohol per hundred milliliters of blood.


[8]   On July 8, 2013, the State charged Rutledge with operating a vehicle while

      intoxicated as a class D felony and driving while suspended as a class A

      misdemeanor. On November 20, 2013, the State alleged that Rutledge was an

      habitual substance offender. On February 11, 2014, the State charged Rutledge

      with operating a vehicle with .15 grams of alcohol as a class A misdemeanor.


[9]   On June 17 and 18, 2014, the court held a jury trial and the first phase

      addressed the charges of driving while suspended as a class A infraction,




      4
       Rutledge testified that when Deputy Hurst said that he did not see the dome light come on, he told him that
      he did not “really have an answer for that” and that “I did mention somebody jumping out the window
      because I thought he was kind of being smart mouth with me so I thought I’d give it right back to him but,
      you know, I, I didn’t know what to tell him.” Transcript at 115.

      Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015                        Page 5 of 20
       operating a vehicle while intoxicated as a class C misdemeanor, and operating a

       vehicle with .15 grams of alcohol as a class A misdemeanor. Deputy Hurst

       testified regarding his observations of the minivan before actually approaching

       the vehicle, and defense counsel raised an objection to any testimony or

       evidence based upon the traffic stop. Defense counsel objected on the basis of

       the Fourth Amendment of the United States Constitution and Article 1, Section

       11 of the Indiana Constitution and argued that there was no reason for the

       traffic stop as Deputy Hurst observed no improper driving. Defense counsel

       also argued that “I don’t believe you can establish a reasonable stop on the

       grounds that a vehicle is not from the locale, location . . . that it’s observed at.”

       Id. at 32.


[10]   The prosecutor asked Deputy Hurst if he actually stopped the minivan, and

       Deputy Hurst said that he did not. He testified that his reason for approaching

       the minivan was that “it seemed to [him] that every time the police car would

       get behind his vehicle, it would pull into a residence in an attempt to kind of

       elude me” and “basically just to speak with the driver and see what, you know,

       kind of what they were up to.” Id. at 33. The prosecutor argued that there was

       not a stop and that Deputy Hurst had “a reason to investigate what’s going on

       with this car or this driver, uh, to see if something’s wrong or . . . what is

       happening.” Id. at 34. Defense counsel argued that there was no need of

       assistance and that the idea that the person in the minivan was attempting to

       elude Deputy Hurst was not a basis for a traffic stop or a Terry style

       investigation. Id. at 34.


       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015    Page 6 of 20
[11]   The court stated:

               [I]t’s kind of a unique fact pattern that’s before me I think largely
               because, um, of, of the state that Mr. Rutledge was in when he was
               encountered by Deputy Hurst, uh, in, in that it may have been a
               consensual encounter, an encounter but for the fact that he’s, uh,
               asleep. Um, I think that’s evidence that’s going to be presented. Uh,
               if, if it’s not a consensual encounter, I think that it has to be, you
               know, the, the investigatory, um, stop. Is it really a stop? I don’t
               know that it’s [sic] movement was impeded in any fashion. I don’t
               know based on the evidence before me that he was restricted in
               anyway from moving or leaving the scene. Again, uh, he was
               apparently unconscious. But if I look in, um, in, with an eye towards
               seeing whether or not if it was an investigatory stop, whether or not
               the totality of the circumstances, um, makes it, uh, arises to reasonable
               suspicion that criminal activity was afoot. I, I think that it was. I, I
               think that there was, uh, reasonable suspicion, uh, that criminal
               activity was afoot based on the totality of the circumstances which
               would include the, the time of day, the, uh, behavior, the fact, uh, that
               he’s pulling in to a variety of, um, or at least two different driveways
               during this time period. Uh, the Officer testified that he thought that
               that was peculiar, he thought that he was eluding him and based on
               the totality of the circumstances, I think that it was, um, that does arise
               to reasonable suspicion. Again, I’m not sure, however, that we even
               get to that point because, uh, [Rutledge] was apparently, uh, not
               awake and so, uh, if he had been, uh, it might have been a consensual
               encounter. So, I, I, I’m also a bit troubled by the fact that I don’t know
               if there’s enough evidence before me to find that he was impeded in
               anyway so that it was a stop. I think the closest thing is the
               investigatory stop. So, I think if it arises to that level, there was
               reasonable suspicion. So, I would, uh, for those reasons and all other
               reasons supported by the record, overrule the objection.


       Id. at 35-36. Defense counsel then asked that the court show that his objection

       constitute a continuing objection, and the court granted the request.




       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015         Page 7 of 20
[12]   Rutledge and his brother testified that Rutledge’s brother drove him to the

       location where Deputy Hurst encountered him, threw the car keys on the

       floorboard, and walked away. The jury found Rutledge guilty as charged.

       After Rutledge pled guilty to the operating while intoxicated and driving while

       suspended enhancements, the jury determined that Rutledge was an habitual

       substance offender.


[13]   On July 1, 2014, the court sentenced him to one and one-half years with all but

       thirty-six days suspended and the balance served on probation for operating

       while intoxicated as a class D felony, enhanced by three years due to the

       habitual substance offender determination.5 The court sentenced Rutledge to a

       concurrent thirty-six days for driving while suspended as a class A

       misdemeanor.


                                                       Discussion

[14]   The issue is whether the trial court abused its discretion by admitting evidence

       obtained after Deputy Hurst and Reserve Deputy Brinson approached

       Rutledge’s vehicle. Our review of rulings for the admissibility of evidence is

       essentially the same regardless of whether the challenge is made through a

       pretrial motion to suppress or by trial objection. Bean v. State, 973 N.E.2d 35,

       39 (Ind. Ct. App. 2012) (citing Jackson v. State, 890 N.E.2d 11, 15 (Ind. Ct. App.

       2008)), trans. denied. Generally, the admission and exclusion of evidence falls




       5
           The abstract of judgment indicates that one year and 144 days were suspended to probation.


       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015                         Page 8 of 20
       within the sound discretion of the trial court, and we review the admission of

       evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272

       (Ind. 2002). An abuse of discretion occurs “where the decision is clearly

       against the logic and effect of the facts and circumstances.” Smith v. State, 754

       N.E.2d 502, 504 (Ind. 2001). We review a trial court’s denial of a defendant’s

       motion to suppress deferentially, construing conflicting evidence in the light

       most favorable to the ruling, but we will also consider any substantial and

       uncontested evidence favorable to the defendant. Robinson v. State, 5 N.E.3d

       362, 365 (Ind. 2014). We defer to the trial court’s findings of fact unless they

       are clearly erroneous, and we will not reweigh the evidence. Id. When the trial

       court’s denial of a defendant’s motion to suppress concerns the constitutionality

       of a search or seizure, however, it presents a question of law, and we address

       that question de novo. Id.


[15]   Rutledge argues that the encounter between Deputy Hurst and himself was a

       seizure under the Fourth Amendment and Deputy Hurst’s actions were

       unreasonable under Article 1, Section 11 of the Indiana Constitution. The State

       argues that the encounter was consensual, that reasonable suspicion supported

       the deputies’ approach of Rutledge, and that their conduct was reasonable

       under the Indiana Constitution. We address Rutledge’s arguments under the

       federal and state constitutions separately.




       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 9 of 20
       A. The Fourth Amendment


[16]   Rutledge asserts that the encounter constituted a seizure and not a consensual

       encounter. He posits that a number of facts establish that a reasonable person

       would be intimidated, including that it was late at night with no one else

       around, Deputy Hurst made a concerted effort to follow him and pulled his

       vehicle up to the minivan with his headlights shining on the driver’s door,

       Deputy Brinson positioned himself behind the minivan effectively blocking it,

       Rutledge was awakened by Deputy Hurst tapping at the window and did not

       see Deputy Hurst walk up or observe his demeanor, and the minivan door was

       either opened by Deputy Hurst, “commanding Rutledge to exit” or by Rutledge

       “suggesting submission and an acknowledgement that he was not going to be

       allowed to leave.” Appellant’s Brief at 12. Rutledge also asserts that Deputy

       Hurst did not have reasonable suspicion that criminal activity was afoot.


[17]   The State argues in part that the encounter did not implicate the Fourth

       Amendment because it was consensual. The State asserts that Rutledge does

       not make any allegation that the manner in which Deputy Hurst parked his

       vehicle physically impeded his freedom of movement in any way and that

       Rutledge offered no evidence that Deputy Hurst’s use of language or tone of

       voice indicated that Rutledge’s compliance might be compelled. The State also

       argues that the deputies had reasonable suspicion.


[18]   The Fourth Amendment to the United States Constitution protects persons

       from unreasonable search and seizure by prohibiting, as a general rule, searches


       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 10 of 20
       and seizures conducted without a warrant supported by probable cause. Clark v.

       State, 994 N.E.2d 252, 260 (Ind. 2013). Encounters between law enforcement

       officers and public citizens take a variety of forms, some of which do not

       implicate the protections of the Fourth Amendment and some of which do. Id.

       at 261. Consensual encounters in which a citizen voluntarily interacts with an

       officer do not compel Fourth Amendment analysis. Id. Nonconsensual

       encounters do, though, and typically are viewed in two levels of detention: a

       full arrest lasting longer than a short period of time, or a brief investigative stop.

       Id. The former of these requires probable cause to be permissible; the latter

       requires a lower standard of reasonable suspicion. Id.


[19]   “Determining whether this was a consensual encounter or some level of

       detention ‘turns on an evaluation, under all the circumstances, of whether a

       reasonable person would feel free to disregard the police and go about his or her

       business.’” Id. (quoting Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003)). “The

       test is objective—not whether the particular citizen actually felt free to leave,

       but ‘whether the officer’s words and actions would have conveyed that to a

       reasonable person.’” Id. (quoting California v. Hodari D., 499 U.S. 621, 628, 111

       S. Ct. 1547 (1991) (citing United States v. Mendenhall, 446 U.S. 544, 100 S. Ct.

       1870 (1980))). Further, “Mendenhall establishes that the test for existence of a

       ‘show of authority’ is an objective one: not whether the citizen perceived that he

       was being ordered to restrict his movement, but whether the officer’s words and

       actions would have conveyed that to a reasonable person.” Hodari D., 499 U.S.

       at 628, 111 S. Ct. at 1551. Examples of facts and circumstances that might lead

       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 11 of 20
       a reasonable person to believe that he or she was no longer free to leave could

       include the threatening presence of several officers, the display of a weapon by

       an officer, some physical touching of the person of the citizen, or the use of

       language or tone of voice indicating that compliance with the officer’s request

       might be compelled. Clark, 994 N.E.2d at 261-262. What constitutes a restraint

       on liberty prompting a person to conclude that he is not free to “leave” will vary

       depending upon the particular police conduct at issue and the setting in which

       the conduct occurs. Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975,

       1979 (1988). In Powell v. State, 912 N.E.2d 853, 860-862 (Ind. Ct. App. 2009),

       this court examined case law holding that law enforcement’s approach to a

       parked vehicle does not in itself constitute an investigatory stop or seizure for

       purposes of the Fourth Amendment.


[20]   Here, the record reveals that the vehicle in which Rutledge was seated was

       parked at a residence and the keys were on the passenger side floor. Deputy

       Hurst did not pull his vehicle directly behind Rutledge’s vehicle. The following

       exchange occurred during cross-examination of Deputy Hurst:

               Q: You were not able to observe, uh, uh, anybody’s, uh, head in the
               vehicle as you pulled up on it. Is that correct? In other words, . . .
               A: Correct.
               Q: There would have been not only tinted windows but there would
               have been head rests, etcetera. Correct?
               A: Uh, I didn’t pull up behind the vehicle, sir.
               Q: So you never actually got up behind it.
               A: Not when I stopped my vehicle. I was behind it on the roadway
               but after I turned around, I pulled up perpendicular to the vehicle.

       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015         Page 12 of 20
       Transcript at 50. Deputy Hurst did not activate his red and blue lights. He

       observed Rutledge sitting in the driver’s seat “lying side wise over the . . . center

       console of the vehicle with his head resting on the passenger seat.” Id. at 37.

       Deputy Hurst tapped on the driver side window and attempted to speak with

       Rutledge, and eventually Rutledge sat up. To the extent Rutledge argues that

       the minivan door was either opened by Deputy Hurst, “commanding Rutledge

       to exit” or by Rutledge “suggesting submission and an acknowledgement that

       he was not going to be allowed to leave,” Appellant’s Brief at 12, we observe

       that Rutledge’s trial counsel asked Reserve Deputy Brinson whether Deputy

       Hurst had to open the door to arouse Rutledge or just tap on the window, and

       Deputy Brinson answered: “He was tapping on the window.” Transcript at 58.

       Deputy Brinson also testified that Deputy Hurst and Rutledge had a brief

       discussion before Rutledge exited the vehicle. As for Deputy Brinson’s

       presence at the scene, we note that he went to the back corner of the minivan.

       Neither lights nor siren were activated, no weapons were pulled, nor did any

       touching of Rutledge occur. The deputies did not initiate a traffic stop and

       merely approached the car, and Rutledge’s freedom of movement was not

       impaired.


[21]   Given these facts, we cannot say that Deputy Hurst’s approach to the parked

       vehicle in which Rutledge was an occupant and initial contact with Rutledge

       constituted an investigatory stop or a seizure under the Fourth Amendment.

       The record supports the conclusion that the initial encounter here was


       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 13 of 20
       consensual and thus fell outside the ambit of the Fourth Amendment’s

       guarantee against unreasonable searches and seizures.


[22]   However, even assuming that the initial encounter was not consensual and that

       a stop occurred when Deputy Hurst opened the door, we conclude that the facts

       known to Deputy Hurst together with the reasonable inferences would cause an

       ordinarily prudent person to believe that criminal activity has or is about to

       occur. Rutledge concedes that “he turned off the Lagro Road two times and let

       Hurst pass him twice,” but argues that Deputy Hurst had only a hunch this was

       suspicious and observed no other activity or circumstance that would suggest

       criminal activity was afoot. Appellant’s Brief at 18. He asserts that his actions

       are reminiscent of the actions of an individual who, upon observing police,

       turned away once or twice. The State notes that Deputy Hurst thought it was

       unusual that Rutledge would pull the minivan into two residences within a

       short period of time and appear to have no connection to either residence, and

       that his erratic driving and evasive actions strongly suggested an intoxicated

       driver who was evading the police. The State also argues that Rutledge’s

       attempt to focus on only his evasive driving and analogizing that to an

       individual’s right to turn away from police misses the mark because reasonable

       suspicion is based upon a totality of circumstances.


[23]   In Terry v. Ohio, the United States Supreme Court established the standard for

       determining the constitutionality of investigatory stops. 392 U.S. 1, 88 S. Ct.

       1868 (1968). The Court ruled that the police may, without a warrant or

       probable cause, briefly detain an individual for investigatory purposes if, based

       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 14 of 20
on specific and articulable facts, the officer has a reasonable suspicion of

criminal activity. Id. at 27, 88 S. Ct. at 1883; see also Jackson v. State, 669 N.E.2d

744, 747 (Ind. Ct. App. 1996) (“In Terry, the Supreme Court held that ‘where a

police officer observes unusual conduct which leads him reasonably to conclude

in light of his experience that criminal activity may be afoot’ the officer may

briefly stop the suspicious person and make ‘reasonable inquiries’ to confirm or

dispel those suspicions.”) (quoting Terry, 392 U.S. at 30, 88 S. Ct. at 1884).

“Reasonable suspicion exists where the facts known to the officer, together with

the reasonable inferences arising from such facts, would cause an ordinarily

prudent person to believe that criminal activity has or is about to occur.”

Baldwin, 715 N.E.2d at 337. Campos v. State, 885 N.E.2d 590, 597 (Ind. 2008)

(quoting Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999)). In judging the

reasonableness of investigatory stops, courts must strike “a balance between the

public interest and the individual’s right to personal security free from arbitrary

interference by law [enforcement] officers.” Carter v. State, 692 N.E.2d 464, 466

(Ind. Ct. App. 1997) (quoting Brown v. Texas, 443 U.S. 47, 50, 99 S. Ct. 2637,

2640 (1979)). When balancing these competing interests in different factual

contexts, a central concern is “that an individual’s reasonable expectation of

privacy is not subject to arbitrary invasions solely at the unfettered discretion of

officers in the field.” Id. (citing Brown, 443 U.S. at 51, 99 S. Ct. at 2640).

Therefore, in order to pass constitutional muster, reasonable suspicion must be

comprised of more than an officer’s general “hunches” or unparticularized

suspicions. Terry, 392 U.S. at 27, 88 S. Ct. at 1883. However, Terry does not


Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 15 of 20
       require absolute certainty of illegal activity, but rather reasonable suspicion.

       Robinson, 5 N.E.3d at 368.


[24]   Whether an investigatory stop is justified is determined on a case by case basis.

       Williams v. State, 745 N.E.2d 241, 245 (Ind. Ct. App. 2001). In making this

       determination, we consider the totality of the circumstances. Id. “Judicial

       interpretation of what constitutes ‘reasonable suspicion’ is fact-sensitive.”

       Bridgewater v. State, 793 N.E.2d 1097, 1100 (Ind. Ct. App. 2003), trans. denied.

       Avoiding the police or turning away from them is not enough by itself to

       constitute reasonable suspicion. Id. The United States Supreme Court has

       noted that “nervous, evasive behavior is a pertinent factor in determining

       reasonable suspicion. Headlong flight—wherever it occurs—is the consummate

       act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly

       suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676

       (2000) (citations omitted).


[25]   The record reveals that: (1) the encounter occurred around midnight or in the

       early morning hours; (2) it appeared to Deputy Hurst that the driver of the

       minivan was having a hard time keeping the vehicle on the roadway and that he

       jerked the wheel back multiple times, Transcript at 49; (3) after Deputy Hurst

       began following Rutledge, Rutledge pulled into a residential driveway that did

       not match the address related to the license plate; (4) Rutledge stayed only a

       very short time before exiting the driveway; (5) Rutledge continued driving

       before pulling into a second driveway that was also not the address related to

       the license plate; (6) Deputy Hurst and Reserve Deputy Brinson did not observe

       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 16 of 20
       any other vehicles, anything happening around the minivan, or any dome light

       illuminate; and (7) Deputy Hurst observed Rutledge “lying side wise over the . .

       . center console of the vehicle with his head resting on the passenger seat.”

       Transcript at 37. Under these circumstances, we conclude that the facts known

       to Deputy Hurst together with the reasonable inferences arising from such facts

       would cause an ordinarily prudent person to believe that criminal activity may

       be afoot, thus justifying an investigatory stop. The stop was not a violation of

       Rutledge’s Fourth Amendment rights and therefore the trial court did not err in

       admitting evidence seized as a result of the encounter.


       B. Article 1, Section 11 of the Indiana Constitution


[26]   Article 1, Section 11 of the Indiana Constitution provides for the “right of the

       people to be secure in their persons, houses, papers, and effects, against

       unreasonable search or seizure . . . .” Despite the fact that the text of Article 1,

       Section 11 is nearly identical to the Fourth Amendment, Indiana courts

       interpret and apply it “independently from federal Fourth Amendment

       jurisprudence.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001). In

       conducting analysis under this provision, we focus on whether the officer’s

       conduct “was reasonable in light of the totality of the circumstances.” Holder v.

       State, 847 N.E.2d 930, 940 (Ind. 2006). In making this determination, we

       balance: (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. When police conduct is challenged as violating Section

       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 17 of 20
       11, the burden is on the State to show that the search or seizure was reasonable

       under the totality of the circumstances. State v. Washington, 898 N.E.2d 1200,

       1206 (Ind. 2008), reh’g denied.


[27]   Rutledge argues that Deputy Hurst’s concern, suspicion or knowledge that a

       violation had occurred was de minimis, that Hoosiers should expect to be able to

       travel within their home county without drawing suspicion from local law

       enforcement, and that the needs of law enforcement were not significantly at

       play because the Town of Lagro had not been described as a hot spot for

       criminal activity.


[28]   The State contends that the degree of concern, suspicion, or knowledge that

       Rutledge might have been driving impaired was reasonably high, that Deputy

       Hurst’s intrusion on Rutledge’s activities was minimal as he was unconscious in

       the van at the time, and law enforcement needs were reasonably high.


[29]   The record reveals that Deputy Hurst encountered a maroon minivan around

       midnight or in the early morning hours and observed that it “appeared that the

       driver was having a hard time keeping the vehicle on the roadway,” “it

       appeared as it would approach the edge of the roadway, it would jerk back,

       multiple times . . . um, trying to stay on the road,” and the driver jerked the

       wheel and it “wasn’t just from bumps.” Transcript at 24, 49. The minivan

       pulled into one residential driveway, stayed a very short time, and drove to

       another residential driveway a relatively short distance away. Neither of the

       residences where Rutledge parked his vehicle were the address related to his


       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 18 of 20
       license plate. Deputy Hurst exited his vehicle, walked up to the driver’s side of

       the minivan, and observed Rutledge sitting in the driver’s seat “lying side wise

       over the . . . center console of the vehicle with his head resting on the passenger

       seat.” Id. at 37. We conclude that the record indicates a degree of concern,

       suspicion, or knowledge that a violation had occurred.


[30]   The record also reveals that the degree of intrusion was minor. Deputy Hurst

       parked his squad vehicle near Rutledge’s vehicle but not behind it. He

       approached the driver’s side of Rutledge’s vehicle on foot while Deputy Brinson

       approached only the rear corner. Under these circumstances, we conclude that

       Deputy Hurst’s approach and initial contact with Rutledge was minimally

       intrusive and did not violate Rutledge’s rights against unreasonable search or

       seizure under Article 1, Section 11 of the Indiana Constitution. We further

       note that the Indiana Supreme Court has observed that few Hoosiers would

       dispute the heartbreaking effects of drunk driving in our state and that law

       enforcement has a strong interest in preventing crashes involving alcohol-

       impaired drivers. See Robinson, 5 N.E.3d at 368. The trial court did not abuse

       its discretion in overruling Rutledge’s objection to the admission of evidence

       based upon Article 1, Section 11 of the Indiana Constitution.


                                                    Conclusion

[31]   We cannot say that the trial court abused its discretion in overruling Rutledge’s

       objections, based upon the Fourth Amendment to the United States

       Constitution or Article 1, Section 11 of the Indiana Constitution, to the

       admission of evidence obtained after the encounter with Deputy Hurst.
       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 19 of 20
[32]   For the foregoing reasons, we affirm Rutledge’s convictions.


[33]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015   Page 20 of 20
