                                                                                 FILED
                                                                             Apr 23 2020, 9:12 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Paula M. Sauer                                              Curtis T. Hill, Jr.
Danville, Indiana                                           Attorney General of Indiana

                                                            Ellen H. Meilaender
                                                            Supervising Deputy Attorney
                                                            General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Roger Thayer,                                               April 23, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-2363
        v.                                                  Appeal from the Hendricks
                                                            Superior Court
State of Indiana,                                           The Honorable Mark A. Smith,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            32D04-1902-F2-6



Bradford, Chief Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020                                   Page 1 of 12
                                            Case Summary
[1]   Roger Thayer was charged with Level 4 felony possession of methamphetamine

      after being found to be in possession of 13.52 grams of methamphetamine.

      Prior to trial, Thayer unsuccessfully moved to suppress the evidence discovered

      during what he claims was an unjustifiably prolonged traffic stop. Thayer

      unsuccessfully renewed his evidentiary challenge at trial before stipulating to

      the relevant facts to prove that he possessed the 13.52 grams of

      methamphetamine. Relying on the stipulation, the trial court found Thayer

      guilty of the possession charge. On appeal, Thayer contends that the trial court

      abused its discretion in admitting the challenged evidence. We affirm.



                             Facts and Procedural History
[2]   Shortly before midnight on February 25, 2019, Pittsboro Police Officer

      Nicholas Webber initiated a traffic stop after observing a truck driving on

      westbound I-74 with no working taillights or license plate illumination. Thayer

      was the driver and sole occupant of the truck. While speaking to Thayer,

      Officer Webber noticed that Thayer “kept trying to reach something under

      items on the passenger seat and twisting his body … making large movements

      as if he was diving … to something on the passenger side. He was trying to

      look for something either on the floorboard or under items on the passenger

      seat. And it was a large truck, so, his whole body was moving, while he was

      doing it.” Tr. p. 9. Thayer was “acting very nervous and kept moving.” Tr. p.

      12. Officer Webber described Thayer’s actions as “erratic.” Tr. p. 33.

      Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020       Page 2 of 12
[3]   Officer Webber asked Thayer for his driver’s license and the vehicle’s

      registration. Thayer did not have his driver’s license or any other form of

      identification on him. Thayer orally identified himself and indicated that he

      was driving a friend’s truck. Thayer provided Officer Webber with some form

      of registration or title paperwork for the truck, dropping it onto the interstate

      when he attempted to hand it to Officer Webber. After retrieving the

      paperwork from the lanes of travel, Officer Webber returned to his police-issued

      vehicle to confirm Thayer’s identity and the registration status of the vehicle.


[4]   After approximately five minutes, Officer Webber was able to obtain BMV

      confirmation that a person by the name of Roger Thayer had a valid driver’s

      license. Due to safety concerns stemming from Thayer’s extreme nervousness

      and erratic behavior, Officer Webber ran a criminal background check in an

      attempt to further confirm Thayer’s identity. Officer Webber eventually

      received additional identifying information, but “the very first thing that

      pop[ped] up” was a red caution flag indicating that Thayer is someone with a

      “potential for violence.” Tr. p. 17.


[5]   Upon receiving the warning of Thayer’s potential for violence, Officer Webber,

      who was working the nightshift alone in Pittsboro, requested backup assistance

      from Officer Kevin Hyde, a nightshift K9 officer in nearby Brownsburg. While

      waiting for Officer Hyde to arrive, Officer Webber ran the license plate

      information for the truck. Officer Webber also reviewed his incident history

      and began manually entering Thayer’s identifying information into his traffic-

      stop report and ticket-issuance software. Normally, when an individual

      Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020         Page 3 of 12
      provides a driver’s license or identification card during a traffic stop, Officer

      Webber scans the license or identification card and the computer in his police-

      issued vehicle populates the information in a ticket. However, because Thayer

      had no driver’s license or identification card, Officer Webber had to manually

      enter all of the relevant information. Officer Webber was in the process of

      entering Thayer’s information and issuing Thayer tickets for the inoperable

      taillights and license plate illumination when Officer Hyde arrived on the scene

      approximately five to ten minutes after receiving Officer Webber’s request for

      backup.


[6]   Officer Webber told Officer Hyde that he had observed Thayer make furtive

      movements toward the center of the vehicle and asked if Officer Hyde would

      walk his K9 around the vehicle. Officer Hyde agreed and, after Officer Webber

      removed Thayer from the truck, walked his K9 along the driver’s side of the

      truck to conduct “a free air sniff” of the truck. Tr. p. 64. The K9 “gave an

      active alert” when he got to the driver’s door/window. Tr. p. 64.


[7]   After receiving the alert from his K9, Officer Hyde began a search of the

      vehicle, finding a glass methamphetamine pipe in the center console. At that

      point, Officer Webber placed Thayer under arrest and conducted a pat-down

      search of Thayer’s person. During this search, Officer Webber found a baggie

      containing what was ultimately determined to be 13.52 grams of

      methamphetamine and a pipe in Thayer’s “left breast jacket pocket.”

      Appellant’s App. Vol. II p. 66. Thayer admitted that he had purchased the

      methamphetamine earlier that day and used “the found pipes to smoke it.”

      Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020          Page 4 of 12
      Appellant’s App. Vol. II p. 66. In a further search of the truck, Officers Hyde

      and Webber found “three (3) scales with residue of an off-white substance, eight

      (8) syringes, numerous small baggies, straws with an off-white substance, and

      two (2) additional pipes containing an off-white burnt substance.” Appellant’s

      App. Vol. II p. 66.


[8]   On February 26, 2019, the State charged Thayer with Level 2 felony dealing

      methamphetamine, Level 4 felony possession of methamphetamine, Level 6

      felony possession of a syringe, and Class C misdemeanor possession of

      paraphernalia. On May 13, 2019, Thayer filed a motion to suppress “all

      property seized by the arresting officers, all observations made by the arresting

      officers, and all statements made by [Thayer].” Appellant’s App. Vol. II p. 38.

      Following a hearing, the trial court denied Thayer’s motion to suppress.


[9]   On July 8, 2019, Thayer agreed to waive his right to a jury trial and, in

      exchange, the State agreed to dismiss the dealing and paraphernalia charges,

      proceeding only with the Level 4 felony possession charge. At the beginning of

      the July 23, 2019 bench trial, Thayer renewed his challenge to the admission of

      the State’s evidence. The trial court denied Thayer’s renewed challenge,

      indicating that it would “stand on” its prior ruling. Tr. p. 89. The case was

      submitted to the trial court on stipulated evidence, and the trial court found

      Thayer guilty of Level 4 felony possession of methamphetamine. On

      September 9, 2019, the trial court imposed a seven-year sentence, with four

      years executed, three years suspended, and one year of probation.



      Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020          Page 5 of 12
                                   Discussion and Decision
[10]   Thayer contends that the trial court abused its discretion in admitting evidence

       recovered during what he claims was an unjustifiably prolonged traffic stop.

       “In cases such as this one, where the defendant does not appeal the denial of a

       motion to suppress and the evidence is admitted over the defendant’s objection

       at trial, we frame the issue as whether the trial court abused its discretion in

       admitting the evidence at trial.” Kyles v. State, 888 N.E.2d 809, 812 (Ind. Ct.

       App. 2008).


               The admission or exclusion of evidence is entrusted to the
               discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67
               (Ind. Ct. App. 2004). We will reverse a trial court’s decision only
               for an abuse of discretion. Id. We will consider the conflicting
               evidence most favorable to the trial court’s ruling and any
               uncontested evidence favorable to the defendant. Taylor v. State,
               891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of
               discretion occurs when the trial court’s decision is clearly against
               the logic and effect of the facts and circumstances before the
               court or it misinterprets the law. Id.


       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial

       court’s ruling will be upheld 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) (citing Gonser v. State, 843 N.E.2d 947, 950

       (Ind. Ct. App. 2006)).


[11]   In arguing that the trial court abused its discretion in admitting the challenged

       evidence, Thayer claims that the challenged evidence was recovered in

       Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020         Page 6 of 12
       violation of the Fourth Amendment to the United States Constitution and

       Article 1, Section 11, of the Indiana Constitution. The Fourth Amendment

       provides as follows:


                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable searches and seizures,
                shall not be violated, and no Warrants shall issue, but upon
                probable cause supported by Oath or affirmation, and
                particularly describing the place to be searched, and the persons
                or things to be seized.


       U.S. CONST. amend. IV.1 “The fundamental purpose of the Fourth

       Amendment to the United States Constitution is to protect the legitimate

       expectations of privacy that citizens possess in their persons, their homes, and

       their belongings.” Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006).


[12]   “Notwithstanding the textual similarity of Article 1, § 11 of the Indiana

       Constitution to that of the federal Fourth Amendment, Section 11 is interpreted

       separately and independently from Fourth Amendment jurisprudence.” State v.

       Washington, 898 N.E.2d 1200, 1205–06 (Ind. 2008) (citing Mitchell v. State, 745

       N.E.2d 775, 786 (Ind. 2001)).

                The Indiana Constitution may protect searches that the federal
                Constitution does not. State v. Moore, 796 N.E.2d 764, 767 (Ind.
                Ct. App. 2003). Section 11 should be applied to protect people




       1
         Although the Fourth Amendment and Article 1, Section 11, contain a few slight variations as to word
       tense, punctuation, and capitalization, generally, the language provided in both the Federal and Indiana
       Constitutions is the same.

       Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020                               Page 7 of 12
               from unreasonable search and seizure. Brown v. State, 653
               N.E.2d 77, 79 (Ind. 1995). When police conduct is challenged as
               violating this section, the burden is on the State to show that the
               search was reasonable under the totality of the circumstances.
               See, e.g., [State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)]; State v.
               Bulington, 802 N.E.2d 435, 438 (Ind. 2004). The determination
               of the reasonableness of a search and seizure under the Indiana
               Constitution turns “on a balance of: 1) the degree of concern,
               suspicion, or knowledge that a violation has occurred, 2) the
               degree of intrusion the method of search or seizure imposes on
               the citizen’s ordinary activities, and 3) the extent of law
               enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind.
               2005).


       Id. at 1206.


[13]   In challenging the admission of the evidence, “Thayer does not challenge the

       constitutionality of the initial traffic stop.” Appellant’s Br. p. 15. Thayer

       concedes that Officer Webber’s observation of the inoperable taillights and

       license plate illumination justified the initial stop. Thayer asserts that it is his

       “continued detention after the purpose of the traffic stop had been completed

       that is at issue.” Appellant’s Br. p. 15. For its part, the State claims that

       “Officer Webber did not delay the stop beyond the time reasonably required to

       complete the mission of the stop, and the dog sniff occurred before the

       completion of the stop.” Appellee’s Br. p. 11.


                                        A. Fourth Amendment
[14]   In Rodriguez v. United States, 575 U.S. 348, 350–51 (2015), the United States

       Supreme Court held that


       Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020           Page 8 of 12
               This case presents the question whether the Fourth Amendment
               tolerates a dog sniff conducted after completion of a traffic stop.
               We hold that a police stop exceeding the time needed to handle
               the matter for which the stop was made violates the
               Constitution’s shield against unreasonable seizures. A seizure
               justified only by a police-observed traffic violation, therefore,
               becomes unlawful if it is prolonged beyond the time reasonably
               required to complete the mission of issuing a ticket for the
               violation.


       (Internal quotation marks and brackets omitted). The holding in Rodriguez is

       consistent with the Indiana Supreme Court’s prior determination that a K9 sniff

       does not violate the Fourth Amendment if it does not prolong a traffic stop

       beyond the time necessary to address the traffic violation. See Myers v. State, 839

       N.E.2d 1146, 1149 (Ind. 2005) (providing that a K9 sweep of the exterior of a

       vehicle does not intrude upon a Fourth Amendment privacy interest and does

       not violate the Fourth Amendment when the sweep was conducted before the

       traffic stop was completed).


[15]   In this case, Officer Webber testified during the suppression hearing that he was

       still in the process of manually entering the necessary information into the

       ticket-issuance software when Officer Hyde arrived and conducted the K9 sniff.

       Officer Webber testified how the process of completing a traffic stop takes

       longer when the individual cannot provide a driver’s license or identification

       card because additional steps can be necessary to properly identify the

       individual and all information relating to the identity of the individual has to be

       manually entered into the system instead of the information being self-

       generated when a driver’s license or identification card is provided. In denying
       Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020            Page 9 of 12
       Thayer’s motion to suppress, the trial court considered Officer Webber’s

       testimony regarding the additional steps he took to verify Thayer’s identity and

       his need to manually enter all of Thayer’s information and found it to be

       credible. Such a determination was within the trial court’s purview. See Perry v.

       State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (providing that the factfinder, and not

       the appellate court, “is obliged to determine not only whom to believe, but also

       what portions of conflicting testimony to believe, and is not required to believe

       a witness’s testimony even when it is uncontradicted”).


[16]   Thus, despite Thayer’s claim to the contrary, the evidence supports the trial

       court’s determination that the K9 sniff did not unjustifiably prolong the traffic

       stop, as Officer Webber had not yet completed the stop when Officer Hyde

       arrived and conducted the K9 sniff. Thayer’s argument to the contrary

       amounts to an invitation to reweigh the evidence, which we will not do. See

       Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014). Under the facts of this

       case, we conclude that the K9 sniff did not violate the Fourth Amendment. See

       Rodriguez, 575 U.S. at 350–51; Myers, 839 N.E.2d at 1149.


                                        B. Article 1, Section 11
[17]   In challenging the search under Article 1, Section 11, Thayer argues that the K9

       sniff was unreasonable. “To assess the reasonableness of an officer’s actions

       under the totality of the circumstances, we must consider ‘both the degree of

       intrusion into the subject’s ordinary activities and the basis upon which the

       officer selected the subject of the search or seizure.’” State v. Gibson, 886 N.E.2d


       Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020       Page 10 of 12
       639, 642–43 (Ind. Ct. App. 2008) (quoting Myers, 839 N.E.2d at 1153). Again,

       the “[f]actors we balance include: ‘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 citizens’ ordinary activities, and 3) the

       extent of law enforcement needs.’” Id. at 643 (quoting Myers, 839 N.E.2d at

       1153). Similar to the Fourth Amendment, a K9 sniff is unreasonable under

       Article 1, Section 11, “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 v.

       State, 997 N.E.2d 1027, 1034 (Ind. 2013); see also State v. Cassady, 56 N.E.3d

       662, 668 n.3 (Ind. Ct. App. 2016) (providing that a K9 sniff was not

       unreasonable under Article 1, Section 11, where the K9 sniff did not extend the

       traffic stop as the K9 sniff was completed while the officer was waiting on a

       response from dispatch).

[18]   In this case, we conclude that Officer Webber had a reasonably high level of

       concern or suspicion that Thayer was engaged in criminal conduct at the time

       of the traffic stop. The record reveals that Thayer exhibited extreme

       nervousness, made repeated erratic and furtive movements, and was

       determined to have a potential for violence. Likewise, the level of intrusion in

       the K9 sniff, which, again, occurred before Officer Webber had completed the

       process of issuing tickets for the underlying traffic infractions, was low. Given

       that the Indiana Supreme Court has held that “a reasonable narcotics dog

       sweep is not a search for the purposes of” Article 1, Section 11, Austin, 997


       Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020        Page 11 of 12
       N.E.2d at 1034, we agree with the State that a K9 sniff “of the exterior of the

       vehicle does not involve a significant intrusion on a person’s privacy.”

       Appellee’s Br. p. 24. Also, given Thayer’s behavior and potential for violence,

       we conclude that as a matter of public safety, it was reasonable for Officers

       Webber and Hyde to determine that the K9 sniff was necessary. Thayer’s claim

       to the contrary again amounts to an invitation to reweigh the evidence, which

       we will not do. See Santana, 10 N.E.3d at 78.


[19]   In conducting a K9 sniff, Officers Webber and Hyde used the least intrusive

       means available to detect the hidden contraband in Thayer’s vehicle. Thayer

       concedes that the initial stop was valid. The K9 sniff did not unjustifiably

       extend the length of the initial traffic stop as it was completed before Officer

       Webber completed the process of issuing tickets for the observed traffic

       violations. Considering the totality of the circumstances in this case, we

       conclude that the K9 sniff was reasonable. As such, the K9 sniff did not violate

       Article 1, Section 11, of the Indiana Constitution.


[20]   The judgment of the trial court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2363 | April 23, 2020         Page 12 of 12
