The opinion
FILED
Dec 21 2016, 7:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William T. Myers Gregory F. Zoeller
Grant County Public Defender Attorney General of Indiana
Marion, Indiana Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Will Thomas, December 21, 2016
Appellant-Defendant, Court of Appeals Case No.
27A02-1602-CR-374
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey D. Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1404-FA-5
Bailey, Judge.
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Case Summary
[1] Will Thomas (“Thomas”) was convicted of Dealing in a Narcotic Drug, as a
Class A felony.1 He now appeals.
[2] We reverse.
Issue
[3] Thomas raises one issue for our review, which we restate as whether the trial
court abused its discretion when it admitted into evidence heroin recovered
from Thomas after a warrantless arrest following a traffic stop.
Facts and Procedural History
[4] On April 7, 2014, acting on information obtained from an informant, a joint
task force of officers from the City of Marion Police Department and the Grant
County Sheriff’s Office engaged in surveillance of a white Dodge Caravan with
temporary Illinois license plates. The vehicle was located at a hotel in Marion.
[5] Around 3:30 p.m., Byron Christmas (“Christmas”) and Thomas, who matched
physical descriptions provided by the informant, got in the van and left the
parking lot of the hotel. Detective Mark Stefanatos (“Detective Stefanatos”),
1
Ind. Code § 35-48-4-1(a)(2) & (b)(1). The Indiana General Assembly has enacted numerous revisions to
Indiana’s criminal statutes since 2013; we refer throughout to the statutes in effect when Thomas was
charged.
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one of the officers conducting surveillance, observed the van change lanes
without properly signaling a lane change, and requested that a uniformed
officer, Joseph Martin (“Officer Martin”), conduct a traffic stop.
[6] Officer Martin conducted a traffic stop of the van. Christmas was driving the
van, and Thomas was seated in the front passenger’s seat. Detective Stefanatos
came to the traffic stop, as did a police K9 handler, Grant County Sheriff’s
Deputy Matt Sneed (“Deputy Sneed”). Officer Martin spoke with Christmas
while Detective Stefanatos spoke with Thomas. Each officer attempted to
verify the men’s identity and reason for their travel through Marion.
[7] During their conversation, Officer Martin obtained Christmas’s written
permission to search the van. Upon obtaining Christmas’s permission to
search, Deputy Sneed had his police dog begin to sniff the vehicle, starting
along the driver’s side from the rear bumper and moving toward the front of the
car. The dog, which was trained in narcotics detection and suspect
apprehension, alerted next to the driver’s door.
[8] After the police dog alerted to the presence of narcotics, the officers had
Christmas and Thomas exit the vehicle and conducted a pat-down search for
officer safety. Christmas and Thomas were each asked whether they would
consent to a strip search at the police station, and were informed that officers
would seek a search warrant if they declined to consent. Christmas agreed, and
Thomas declined.
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[9] Christmas, whose driving privileges had been suspended in Illinois, was
transported to the Grant County Jail, where he was searched. The search
disclosed $750 in cash but no narcotics.
[10] Thomas was transported to the Marion Police Department and placed in an
interview room. While seated in the interview room, officers observed Thomas
take something from a jacket pocket and put it into his mouth. Thomas refused
to open his mouth, and police forced his mouth open. The officers retrieved a
small plastic baggie with 8.5 grams of a gray, crumbly, rock-like substance that
would later be identified as heroin.
[11] On April 14, 2014, the State charged Thomas with Dealing in a Narcotic Drug
and Battery, as a Class B misdemeanor.2 A jury trial was conducted on
November 30 and December 1, 2015. At the conclusion of the trial, the jury
found Thomas guilty of Dealing in a Narcotic Drug and not guilty of Battery.
[12] This appeal ensued.
Discussion and Decision
Standard of Review
[13] Thomas challenges his conviction because, he argues, the trial court erred when
it did not grant his motion to suppress evidence obtained from a search of his
2
I.C. § 35-42-2-1(a).
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person at the Marion Police Department. However, Thomas’s case proceeded
to trial, and is instead a challenge to the trial court’s ruling to admit evidence.
Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).
The trial court has broad discretion to rule on the admissibility of
evidence. Id. at 259-60. We review its rulings “for abuse of that
discretion and reverse only when admission is clearly against the
logic and effect of the facts and circumstances and the error
affects a party’s substantial rights.” Id. But when an appellant’s
challenge to such a ruling is predicated on an argument that
impugns the constitutionality of the search or seizure of the
evidence, it raises a question of law, and we consider that
question de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind.
2013).
Id. at 40–41 (Ind. 2014) (footnote omitted).
Analysis
[14] Thomas argues on appeal that police lacked the requisite probable cause to
arrest, detain, move, and subsequently search him after the traffic stop.
Thomas does not challenge the legitimacy of the traffic stop. Rather, he
contends that police detention and transportation of him to a police station in
order to conduct a strip search was not supported by probable cause and was
unreasonable under the totality of the circumstances. Evidence obtained from
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the detention, Thomas argues, should have been barred from admission into
evidence by the exclusionary rule.3
[15] The Fourth Amendment to the United States Constitution provides, in relevant
part, that “[t]he 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.” The U.S. Supreme
Court has held that even when a seizure is initiated with probable cause, the
seizure may violate the Fourth Amendment “if its manner of execution
unreasonably infringes interests protected by the Constitution.” Illinois v.
Caballes, 543 U.S. 405, 407 (2005). One way in which this may occur is if a
seizure “is prolonged beyond the time reasonably required to complete” a stop
justified “solely by the interest in issuing a warning ticket to the driver.” Id.
[16] In Caballes, the Court held that a dog sniff conducted during a stop for a
speeding ticket was not an unlawful seizure because “a dog sniff would not
change the character” of a lawfully-initiated and conducted traffic stop “unless
the dog sniff itself infringed respondent’s constitutionally protected interest in
privacy.” Id. at 408. Yet, the Court held, dog sniffs do not in themselves
infringe such interests. Id. Moreover, both this Court and the Indiana Supreme
Court have held that dog sniffs are sufficient to establish probable cause. State
v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010) (citing Neuhoff v. State, 708 N.E.2d
3
Thomas challenges his conviction on both federal and Indiana constitutional grounds. Because we reverse
on Fourth Amendment grounds, we do not address the Indiana constitutional question.
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889, 891 (Ind. Ct. App. 1999)); Perez v. State, 981 N.E.2d 1242, 1251 (Ind. Ct.
App. 2013) (citing Neuhoff, supra), trans. denied.
[17] Thus, police had probable cause to search the vehicle—and that search was
further consented to by Christmas, who was operating the vehicle at the time of
the traffic stop. At trial, Detective Stefanatos testified, “I was told directly by
Deputy Matt Sneed … that his dog had indicated the presence of the odor of
narcotics inside the vehicle.” (Tr. at 35.) The following exchange ensued:
Q. Did you then search the vehicle?
A. Yes.
Q. Did you find anything inside the vehicle?
A. No we did not.
(Tr. at 35.)
[18] With police having failed to find narcotics in the vehicle, despite the dog sniff
giving rise to probable cause for the vehicle search, Thomas argues that, under
the totality of the circumstances, the decision to arrest him and transport him to
the police station for a strip search was unreasonable. The State argues that
police had probable cause to search not only the van but also Christmas and
Thomas as a result of the dog sniff, and that transporting Thomas to the police
station to do so was not a violation of Thomas’s constitutional rights.
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[19] Without a warrant, “an arrest or detention for more than a short period” must
be justified by probable cause. Overstreet v. State, 724 N.E.2d 661, 662 (Ind. Ct.
App. 2000) (citing Woods v. State, 547 N.E.2d 772, 778 (Ind. 1989)), trans.
denied. Probable cause for an arrest exists when the facts and circumstances
within the knowledge of law enforcement officers are sufficient to warrant belief
by a person of reasonable caution that an offense has been committed and the
person to be arrested has committed it. Id. (citing Brinegar v. United States, 388
U.S. 160, 175-76 (1949)). “The amount of evidence necessary to meet the
probable cause requirement for a warrantless arrest is determined on a case-by-
case basis.” Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003).
[20] The United States Supreme Court has “distinguished between the search of a
vehicle and a personal search ‘because of the unique, significantly heightened
protection afforded against searches of one’s person.’” United States v. Moore,
390 Fed. Appx. 503, 507 (6th Cir. 2010) (quoting Wyoming v. Houghton, 526 U.S.
295, 301 (1999)). This distinction rests upon a longstanding rule that the
existence of probable cause to search a vehicle does not mean that “a person, by
mere presence in a suspected car, loses immunities from search of his person to
which he would otherwise be entitled.” United States v. Di Re, 332 U.S. 581, 587
(1948). Thus, in Di Re, the Court held as insufficient to support a search of Di
Re’s person his “mere presence in a suspected car.” Id. at 588. Similarly, in
Ybarra v. Illinois, the Supreme Court held that a search and arrest of Ybarra was
unconstitutional, despite his presence at a location for which a warrant had
been issued and where there was probable cause to believe that other persons
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present were engaged in criminal activity. 444 U.S. 85, 90-91 (1979). The
Court’s holding in Ybarra, which relied upon Di Re, rested upon the basic
principle that probable cause must be particularized to the individual to be
searched or arrested. Id. at 91, 94-95 (citing Di Re, 332 U.S. at 583-87).
[21] Neither party’s briefs cite to prior Indiana cases with facts that are
indistinguishable from those in this case, nor has this Court found such Indiana
cases. Several other jurisdictions within the United States have, however,
confronted similar issues where a dog sniff of a vehicle gave rise to probable
cause to search the vehicle and, when the search recovered no drugs, police
searched the vehicle’s occupants and recovered drugs from an occupant.
[22] In Ohio v. Kay, No. 09CA0018, 2009 WL 2918523 (Ohio Ct. App. Sept. 14,
2009), the Ohio Court of Appeals held after an appeal from an order
suppressing evidence that police lacked probable cause to detain and search
Kay. Kay was the front-seat passenger in a vehicle leaving a “known drug
house.” Kay, 2009 WL 2918523 at *5. Police stopped the vehicle, and a dog
sniff indicated the presence of illegal drugs in the vehicle, but no drugs were
found upon a consensual search of the vehicle. Kay, 2009 WL 2918523 at *1,
*5. The court observed that Kay was cooperative during the dog’s sniff of the
vehicle, complied with police officers’ instructions not to leave the scene, and
made no furtive movements. Kay, 2009 WL 2918523 at *5. The court
reasoned, “[police] possessed probable cause to believe drugs would be found in
the vehicle,” but they had no specific reason to believe drugs were on Kay’s
person. Kay, 2009 WL 2918523 at *4. “A negative search of the vehicle does
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not necessitate the conclusion the drugs must therefore be with one of the
occupants of the vehicle,” and that it was equally valid to conclude that the dog
alerted to “the residual odor of narcotics from past occupants.” Id. Absent
probable cause specific to Kay, police lacked authority to search him, and
accordingly the drugs recovered from Kay’s person were subject to suppression.
Virginia and North Carolina courts have reached similar conclusions involving
vehicles with more than one passenger, Whitehead v. Virginia, 278 Va. 300, 683
S.E.2d 299 (Va. 2009), and a vehicle whose immediately prior occupants were
standing next to the car when police encountered them. North Carolina v. Smith,
222 N.C. App. 253, 729 S.E.2d 120 (N.C. Ct. App. 2012).
[23] All three cases expressly rely on Di Re, Ybarra, or both, and reject the reasoning
of a federal case, United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), that
supports the State’s position here that probable cause to search the vehicle in
which Thomas was traveling was sufficient to permit his detention and
transportation for a strip search. Smith, 729 N.E.2d at 259-61 (following
Whitehead); Whitehead, 683 S.E.2d at 315; Kay, 2009 WL 2918523 at *5. In
Anchondo, a dog sniff indicated the presence of narcotics in a vehicle in which
Anchondo and another man, Garcia, were traveling, but no contraband was
found in the vehicle after a search. A second dog sniff again yielded an
indication that drugs were in the car and border patrol agents performed pat-
down searches of Anchondo and Garcia. Patting down Anchondo, one of the
agents felt a hard object near Anchondo’s waistband that he believed to be a
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handgun but which turned out to be four packages of cocaine strapped to
Anchondo’s body.
[24] Relying largely on its own precedent, the federal Tenth Circuit held that the dog
sniffs’ indications of the presence of narcotics were sufficient to give rise to
probable cause to search the vehicle and its occupants: “A canine alert provides
the probable cause necessary for searches and seizures.” Id. at 1045 (citing
United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993)). Noting that the
dog alerted twice, and expressly applying its precedent in Ludwig, the Tenth
Circuit reasoned in Anchondo, “[e]ven if the subsequent fruitless search of the
car diminished the probability of contraband being in the car, it increased the
chances that whatever the dog had alerted to was on the defendants’ bodies.”
Id. at 1045; but cf. Whitehead, 683 S.E.2d at 314-15 (holding that, after a drug
dog alerted at a vehicle, fruitless searches of a car and three occupants did not,
by process of elimination, allow a physical search of a fourth occupant).
[25] We think the rationale of Kay, Whitehead, and Smith to be the more persuasive
one. Probable cause is to be particularized to the premises, vehicle, or person to
be searched. Here, police had information from an informant concerning two
unnamed men who would be traveling through Marion. A concededly
constitutionally permissible traffic stop was initiated. The two men in the van,
Thomas and Christmas, were nervous upon being stopped, but the record is
devoid of any mention that they appeared to be hiding anything from police. A
concededly constitutional dog sniff at the driver’s door indicated the presence of
drugs in the vehicle, but a search of the vehicle was unavailing. The dog sniff
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did not provide specific information as to either Thomas or Christmas, and
police did not use the dog to sniff either of the two men’s bodies.
[26] In recognition of the Fourth Amendment’s “significantly heightened protection
of … one’s person,” Houghton, 526 U.S. at 301, we do not think that the Fourth
Amendment authorizes a process-of-elimination practice absent information
particularized to the individuals under suspicion. That Christmas consented to
a search did not mean that Thomas was required to do likewise. Rather, police
simply engaged in a kind of process of elimination: they could not find drugs in
the car, and so they assumed the drugs must have been on either Christmas’s or
Thomas’s person. Refusing to consent to a personal body search does not
create probable cause to believe he was the individual holding the drugs. And
while, in many situations, any of a number of a vehicle’s occupants may
properly be considered to exercise dominion over contraband in the vehicle,
Maryland v. Pringle, 540 U.S. 366, 372 (2003), that rationale avails when
contraband is found in the vehicle. Here, there was no contraband in the
vehicle, and under circumstances like these the probable cause arising from a
drug dog’s alert to a larger area like a car does not permit a fishing expedition
into the pockets of each of the car’s occupants.
[27] The State suggests that the police officers’ detention and transportation of
Thomas to jail was reasonable, even in the absence of probable cause to effect
an arrest. The State here directs us to United States v. Bullock, in which a
defendant was handcuffed for officer safety, placed in a squad car, and
transported to a nearby residence from which he had recently left and
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concerning which police had information of drug activity. 632 F.3d 1004,
1015-16 (7th Cir. 2011). Yet Bullock is readily distinguishable from this case.
Though police detained Bullock, the court observed that officers did not
“attempt[] to exploit the situation” through interrogation or “requesting to
search his belongings,” id. at 1016, and “officers would have inevitably arrested
him after the residence search.” Id. at 1017. In the instant case, police
requested to search Thomas and, upon his refusal, handcuffed him and
transported him to a police station for the express purpose of performing a strip
search. A search of the car yielded no drugs, and a search of the hotel room
from which Thomas had recently departed also yielded no contraband. And we
have concluded that there was no probable cause to search Thomas; obtaining a
warrant was not inevitable, and there was no inevitability of arrest as in Bullock
after a search of locations associated with Thomas.
[28] The State also suggests that being required to strip search Thomas alongside the
road or forego a search altogether puts it in a “Catch 22.” While strip searches
are concededly invasive and their public conduct is problematic, the State
articulates no basis upon which one may have been conducted. There was no
probable cause to arrest or search Thomas. This obviates the need for a strip
search: “the indignity and personal invasion necessarily accompanying a strip
search is simply not reasonable without the reasonable suspicion that weapons
or contraband may be introduced into the jail.” Edwards v. State, 759 N.E.2d 626,
630 (Ind. 2001) (emphasis added). But a strip search was not inevitable but for
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the unlawful arrest of Thomas, and we decline the State’s invitation to broaden
the scope of nonconsensual, lawful strip searches in this manner.
[29] From here, the analysis is straightforward. Generally, evidence obtained
pursuant to an unlawful seizure must be excluded under the fruit of the
poisonous tree doctrine. Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013). The
exclusionary rule bars evidence obtained directly by an illegal search or seizure.
Id. “The defendant must first prove the Fourth Amendment violation and that
the evidence was the ‘fruit’ of that search; the State must then show that the
evidence must nevertheless be admitted.” Id. We have already concluded that
seizure of the heroin was the result of an unlawful detention; and the State
articulates no situation in which the discovery of the heroin on Thomas’s
person was otherwise inevitable.
[30] In the absence of probable cause to detain Thomas, the police detention and
transportation of Thomas to the Marion Police Department was
unconstitutional. The drugs obtained from him after he had been transported
were thus “fruit of the poisonous tree,” and should have been excluded from
evidence at trial. They were not excluded, and they would not have been found
had Thomas not been detained. We accordingly conclude that the trial court
abused its discretion when it did not exclude the heroin from evidence.
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Conclusion
[31] Police violated Thomas’s constitutional rights when they detained and
transported him. The trial court erred when it did not exclude evidence
obtained as a result of the detention. We accordingly reverse Thomas’s
conviction.
[32] Reversed.
Najam, J., and May, J., concur.
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