MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               May 25 2018, 9:38 am

court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

John Pinnow                                              Ian McLean
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Micah Lminggio,                                          May 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1710-PC-2443
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1501-PC-1



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018              Page 1 of 13
                                             Case Summary
[1]   Micah Lminggio appeals the post-conviction court’s denial of his petition for

      post-conviction relief. We affirm.


                                                     Issue
[2]   Lminggio raises one issue, which we restate as whether he received the effective

      assistance of trial counsel.


                                                     Facts
[3]   The facts as stated in Lminggio’s direct appeal follow:


              [O]n the evening of April 17, 2013, Detective Natalie Lovett of
              the Lafayette Police Department (LPD) conducted surveillance
              of the house at 232 Chestnut Street in Lafayette. She was
              directed to that location by an Officer Withers, also of the LPD.
              Officer Withers informed Detective Lovett that he had received a
              phone call from J.A., who lived at that address. Officer Withers
              and Detective Lovett had received information from J.A. on
              previous occasions that proved reliable. On this evening, Officer
              Withers informed Detective Lovett that J.A. had called “and said
              that there was some type of drug activity at the house.”
              Transcript at 335. J.A. provided a description of a vehicle that
              was at the house at that time and involved in drug activity.


              When Detective Lovett arrived on the scene she observed the
              subject vehicle parked in front of the house at 232 Chestnut. She
              parked her unmarked car several houses down the street and
              climbed into the backseat so that she could observe what was
              happening, while at the same time remaining hidden from view.
              She watched as two black males walked to the vehicle, one of
              whom she described as short and wearing a white T-shirt, and
              later identified as Lminggio. The men opened the door of the
      Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 2 of 13
        subject vehicle and the interior lights flipped on. A third person,
        later identified as Bridget Gulliford, sat in the back seat.
        Detective Lovett watched as Lminggio walked around to the
        hood of the car and raised it. At that point “[h]e was standing
        kind of over the hood kind of in the front uh driver’s side quarter
        panel area, uh, and then the other black male was on the
        passenger side of the hood.” Id. at 109.


        Detective Lovett could not see what the men were doing while
        they were in front of the car. After a short time they shut the
        hood and got back into the vehicle, with Lminggio getting into
        the driver’s seat. The other man, later identified as Steven Allen,
        got into the front passenger seat. They sat there for
        approximately five minutes before a van arrived on the scene and
        parked in front of the subject car. A white male exited the van at
        the same time Lminggio exited his vehicle. The two walked
        toward the house and out of Detective Lovett’s line of view.
        When both men returned to their vehicles a short time later, the
        white male got into the van and Lminggio got back into the
        driver’s seat of his car. The van immediately drove away. After
        a short time, so, too, did Lminggio’s car. Lminggio drove past
        Detective Lovett’s vehicle and the detective turned around to
        watch it. She saw Lminggio’s vehicle approach and then stop at
        a stop sign. Lminggio sat at the stop sign for “maybe thirty
        seconds”, then put on his right turn signal and turned right. Id. at
        112. Detective Lovett determined that the car had committed a
        traffic infraction by failing to signal his turn 200 feet in advance
        of making it. At that time, she advised nearby officers to execute
        a traffic stop of Lminggio’s vehicle. Shortly thereafter,
        Lminggio’s vehicle was stopped by LPD Officer Scott Anderson.
        Officer Anderson was joined at the scene by Officer Adam
        Mellady.


        Officers Anderson and Mellady approached the vehicle and
        asked Lminggio for his driver’s license. Officer Anderson also
        obtained IDs from Allen and Gulliford. Officer Anderson was

Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 3 of 13
        familiar with Allen and knew that he had a criminal drug history.
        The officer also believed Gulliford might be the subject of a
        bench warrant.


        While Officer Mellady remained with Lminggio’s vehicle,
        Officer Anderson spoke with the dispatcher to determine whether
        Lminggio’s license was valid and whether Gulliford was wanted
        on a bench warrant. He learned that Lminggio’s license was
        valid and that Gulliford was not the subject of a bench warrant.
        By this time, other LPD officers had arrived on the scene,
        including Officers Bartholomy and Lamar.


        When the other officers arrived, Officer Anderson decided to
        deploy his canine to conduct a drug sniff of Lminggio’s vehicle.
        The vehicle’s occupants were removed for the canine’s safety and
        Officer Anderson walked the dog around Lminggio’s vehicle.
        Approximately ten minutes had elapsed since the traffic stop was
        initiated. The canine had been trained to detect the scent of
        marijuana, crack and powdered cocaine, methamphetamine, and
        opiates. It alerted by the front passenger door, which indicated
        the presence of drugs. The officers detained Lminggio and his
        passengers and searched the vehicle. They found two handguns
        in the engine compartment of Lminggio’s car. One, a loaded .38
        caliber revolver, was hidden between the battery and the driver’s
        side fender wall. The other was a loaded semiautomatic pistol,
        which was also found on the driver-side of the engine
        compartment.


        Lminggio was placed under arrest, issued a traffic citation, and
        transported to jail. While in the rear seat of the squad car,
        Lminggio discarded three balls of crack cocaine near the seatbelt
        receptacle. The three balls were later determined to contain 9.15
        grams of cocaine. Lminggio was charged with one count of
        dealing cocaine as a class A felony, one count of possession of
        cocaine as a class A felony, one count of theft/receiving stolen
        property, as a class D felony, two counts of carrying a handgun
Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 4 of 13
              without a license, a class A misdemeanor, two counts of carrying
              a handgun by a convicted felon, a class C felony, and one count
              of serious violent felon in possession of a firearm, a class B
              felony. The State later added a habitual offender allegation.


              Two separate trials ensued. Following the first, a jury trial,
              Lminggio was convicted as charged of dealing in a narcotic drug
              as a class A felony, possession of a narcotic drug as a class A
              felony, and two counts of carrying a handgun without a license
              as class A misdemeanors. He was acquitted of the charge of
              theft/receiving stolen property. After the first trial but prior to
              the second trial, the State dismissed several counts, as well as the
              habitual offender allegation. Following a bench trial, Lminggio
              was convicted of the remaining charges, i.e., two counts of
              serious violent felon in possession of a firearm as a class B felony.
              After merging and vacating several of the charges of which
              Lminggio was found guilty, the trial court entered judgment of
              conviction on one count of dealing in a narcotic drug (Count I)
              and two counts of unlawful possession of a firearm by a serious
              violent felon (amended Counts VIII and IX). The court
              sentenced Lminggio to thirty-four years on Count I and fourteen
              years each on amended Counts VIII and IX. The court ordered
              that the sentences for amended Counts VIII and IX should run
              concurrently with each other and consecutive to the sentence
              imposed for Count I, for a total executed sentence of forty-eight
              years.


      Lminggio v. State, No. 79A04-1312-CR-635, slip op. at 2-6 (Ind. Ct. App. Aug.

      11, 2014).


[4]   On direct appeal, Lminggio argued that the trial court erred by admitting

      evidence obtained following the traffic stop because “the stop was completed

      before a reasonable suspicion arose and consequently the police lacked a valid


      Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 5 of 13
      basis to conduct the dog sniff of his vehicle.” Id. at 6. We held that the

      argument was waived because trial counsel did not object to the introduction of

      the first gun and failed to identify specific grounds for his objections to the

      cocaine and second gun. Consequently, we affirmed Lminggio’s convictions.


[5]   Lminggio filed a petition for post-conviction relief in January 2015, which he

      later amended. Lminggio alleged that he was denied the effective assistance of

      trial counsel when his trial counsel did not “contemporaneously object at trial,

      based on the Fourth and Fourteenth Amendments to the United States

      Constitution, and Article One, Section Eleven of the Indiana Constitution, to

      evidence obtained and seized after a traffic stop, and to evidence that was the

      poisoned fruit of the illegal detention, search and seizure.” Appellant’s App.

      Vol. II p. 24. After a hearing, the post-conviction court entered findings of fact

      and conclusions thereon denying Lminggio’s petition. Lminggio now appeals.


                                                  Analysis
[6]   Lminggio appeals the post-conviction court’s denial of his petition for post-

      conviction relief. A court that hears a post-conviction claim must make

      findings of fact and conclusions of law on all issues presented in the petition.

      Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-Conviction

      Rule 1(6)). “The findings must be supported by facts and the conclusions must

      be supported by the law.” Id. Our review on appeal is limited to these findings

      and conclusions. Id. Because the petitioner bears the burden of proof in the

      post-conviction court, an unsuccessful petitioner appeals from a negative


      Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 6 of 13
      judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative

      judgment must show that the evidence as a whole ‘leads unerringly and

      unmistakably to a conclusion opposite to that reached by the trial court.’” Id.

      (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under

      this standard of review, “[we] will disturb a post-conviction court’s decision as

      being contrary to law only where the evidence is without conflict and leads to

      but one conclusion, and the post-conviction court has reached the opposite

      conclusion.” Id.


[7]   Lminggio appeals the post-conviction court’s denial of his claim of ineffective

      assistance of trial counsel. To prevail on a claim of ineffective assistance of

      counsel, a petitioner must demonstrate both that his or her counsel’s

      performance was deficient and that the petitioner was prejudiced by the

      deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)

      (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

      (1984)), cert. denied.


[8]   A counsel’s performance is deficient if it falls below an objective standard of

      reasonableness based on prevailing professional norms. French v. State, 778

      N.E.2d 816, 824 (Ind. 2002). A strong presumption arises that counsel

      rendered adequate assistance and made all significant decisions in the exercise

      of reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74

      (Ind. Ct. App. 2012), trans. denied. “[A] defendant must offer strong and

      convincing evidence to overcome this presumption.” Id. Isolated poor strategy,



      Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 7 of 13
       inexperience, or bad tactics do not necessarily constitute ineffective assistance.

       Id.


[9]    To meet the appropriate test for prejudice, the petitioner must show that there is

       a reasonable probability that, but for counsel’s unprofessional errors, the result

       of the proceeding would have been different. French, 778 N.E.2d at 824. “A

       reasonable probability is a probability sufficient to undermine confidence in the

       outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy

       either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027,

       1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved

       by a prejudice inquiry alone. Id.


[10]   Lminggio argues on appeal that his trial counsel was deficient for failing to

       properly object to the admission of the firearms and drug evidence. Lminggio

       argues that, if his trial counsel had properly objected, his objection would have

       been sustained pursuant to both the Fourth Amendment of the United States

       Constitution and Article 1, Section 11 of the Indiana Constitution.


                                           I. Fourth Amendment

[11]   “The Fourth Amendment provides protection against unreasonable searches

       and seizures by generally prohibiting such acts without a warrant supported by

       probable cause.” Robinson v. State, 5 N.E.3d 362, 367 (Ind. 2014) (citing U.S.

       Const. amend. IV; Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)). “The Terry

       stop, perhaps the most popular exception to this rule, permits an officer to ‘stop

       and briefly detain a person for investigative purposes if the officer has a

       Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 8 of 13
       reasonable suspicion supported by articulable facts that criminal activity “may

       be afoot,” even if the officer lacks probable cause.’” Id. (quoting United States v.

       Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581 (1989) (quoting Terry v. Ohio, 392 U.S. 1,

       30, 88 S. Ct. 1868 (1968))). “Such a stop ‘must be justified by some objective

       manifestation that the person stopped is, or is about to be, engaged in criminal

       activity.’” Id. (quoting Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009)).


[12]   “It 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, “a reasonable

       narcotics dog sweep is not a search for the purposes of the Fourth

       Amendment.” Id. “[S]uch a sweep is 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.” Id. The critical question is not

       whether the sniff occurs before or after the officer issues a ticket, but whether

       conducting the sniff prolongs or adds time to the stop. Rodriguez v. United States,

       __ U.S. __, 135 S. Ct. 1609, 1616 (2015). The burden is on the State to show

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

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


[13]   Lminggio argues that the traffic stop time was unnecessarily increased to

       conduct a warrant check on the passengers. The post-conviction court entered

       findings of fact and conclusions thereon that the traffic stop was not prolonged.

       The United States Supreme Court held in Rodriguez that “[b]eyond determining

       Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 9 of 13
       whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries

       incident to [the traffic] stop.’” Rodriguez, 135 S. Ct. at 1615 (quoting Illinois v.

       Caballes, 543 U.S. 405, 408, 125 S. Ct. 834, (2005)). “Typically such inquiries

       involve checking the driver’s license, determining whether there are outstanding

       warrants against the driver, and inspecting the automobile’s registration and

       proof of insurance.” Id. Lminggio argues that such inquiries have not been

       expanded to checking for outstanding warrants against passengers. Our

       supreme court held in Campos v. State, 885 N.E.2d 590, 597 n.1 (Ind. 2008), that

       an officer can ask a passenger for identification during a traffic stop. Despite

       Campos, Lminggio argues that the officer could not check to see if there were

       outstanding warrants on his passengers. Numerous courts have held otherwise.

       See, e.g., United States v. Rice, 483 F.3d 1079, 1084 (10th Cir. 2007) (holding that

       “an officer may ask for identification from passengers and run background

       checks on them as well”); United States v. Diaz-Castaneda, 494 F.3d 1146, 1153

       (9th Cir. 2007) (holding that officer’s check of the passenger’s driver’s license or

       identification card with radio dispatch did not violate the Fourth Amendment),

       cert. denied. Given that the officer was permitted to ask passengers for

       identification, it would be illogical that the officer could not also run a

       background check on the passenger to see if the passenger had an active arrest

       warrant.


[14]   Here, after obtaining Lminggio and the passengers’ identifications, the officer

       learned that one of the passengers was listed in a computerized database as

       having an outstanding warrant out of Howard County. The officer asked

       Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 10 of 13
       dispatch to contact Howard County to confirm the existence of the warrant.

       While waiting on that confirmation, the officers removed the occupants from

       the vehicle and walked the dog around the vehicle. The dog indicated the

       presence of drugs. The time from the initial stop to the time that the dog alerted

       to the presence of narcotics was ten to twelve minutes. The traffic stop was not

       prolonged by the dog sweep, and the post-conviction court’s finding is not

       clearly erroneous.1 Consequently, the dog sweep did not violate Lminggio’s

       Fourth Amendment rights. Even if his trial counsel had objected, Lminggio has

       failed to show a reasonable probability that the objection would have been

       sustained and that the result of the proceeding would have been different.


                                            II. Indiana Constitution

[15]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       Section 11 of our Indiana Constitution separately and independently. Robinson,

       5 N.E.3d at 368. When a defendant raises a Section 11 claim, the State must

       show the police conduct “was reasonable under the totality of the

       circumstances.” Id. “We consider three factors when evaluating

       reasonableness: ‘1) the degree of concern, suspicion, or knowledge that a




       1
         Lminggio also relies on State v. Gray, 997 N.E.2d 1147 (Ind. Ct. App. 2013), trans. denied. However, we do
       not find Gray applicable here. In Gray, the officer “chose not to run the standard license/warrant check or
       report Gray’s information to dispatch prior to the free-air sniff . . . .” Gray, 997 N.E.2d at 1150. We
       concluded that the traffic stop was delayed by the dog sniff. Here, however, the officer ran a standard
       license/warrant check, and the traffic stop was not delayed by the dog sniff.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018             Page 11 of 13
       violation has occurred, 2) the degree of intrusion the method of the search or

       seizure imposes on the citizen’s ordinary activities, and 3) the extent of law

       enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind.

       2005)).


[16]   The degree of concern, suspicion, or knowledge that a violation had occurred

       weighs in favor of the State. The officer had observed a traffic violation.

       Further, the officers had a high degree of suspicion that the vehicle’s occupants

       were involved in dealing drugs based on a tip from a source that had provided

       reliable information in the past.


[17]   The degree of intrusion the method of the search or seizure imposed on the

       citizen’s ordinary activities also weighs in the State’s favor. There is no dispute

       that Lminggio was validly stopped for a traffic violation. While the officer was

       waiting for clarification from dispatch on a possible outstanding warrant on one

       of Lminggio’s passengers, he removed the occupants from the vehicle and

       walked his drug dog around the vehicle. The traffic stop was not delayed by the

       dog sweep.


[18]   As for the extent of law enforcement needs, this factor also weighs in favor of

       the State. We noted in Dowdy v. State, 83 N.E.3d 755, 765 (Ind. Ct. App. 2017),

       that “a police officer’s ability to search for outstanding warrants is important for

       officers to ensure the safety of the public.” While waiting on clarification

       regarding the possible outstanding warrant, the officer walked his drug dog

       around the vehicle, and the officers had some indication that the occupants of


       Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 12 of 13
       the vehicle may have been dealing drugs. “[T]he trafficking of illegal drugs [is]

       frequently associated with violence and no simpler method exists for detection

       of hidden drugs than a dog sniff.” State v. Gibson, 886 N.E.2d 639, 643 (Ind. Ct.

       App. 2008).


[19]   Under the totality of the circumstances, we conclude that the stop and search

       was reasonable and did not violate Lminggio’s rights under Article 1, Section

       11 of the Indiana Constitution. See, e.g., Austin, 997 N.E.2d at 1037 (holding

       that a narcotics drug sweep did not violate the Indiana Constitution); Dowdy, 83

       N.E.3d at 765 (finding no Indiana Constitution violation where the passenger

       in a vehicle was arrested on an outstanding warrant). Even if his trial counsel

       had objected, Lminggio has failed to show a reasonable probability that the

       objection would have been sustained and that the result of the proceeding

       would have been different. The post-conviction court’s finding is not clearly

       erroneous.


                                                 Conclusion
[20]   The post-conviction court properly denied Lminggio’s claim of ineffective

       assistance of trial counsel. We affirm.


       Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1710-PC-2443 | May 25, 2018   Page 13 of 13
