Court of Appeals of Indiana | Opin ion on Rehearing 49A02

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### OPINION ON REHEARING

A TTORNEY FOR A PPELLANT Darren Bedwell Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Jamar Washington , Appellant

- Defendant ,

v.


### State of Indiana , Appellee

- Plaintiff

. August 20, 2015 Court of Appeals Ca se No. 49A02

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- 306 Appeal from the Marion Superior Court The Honorable Marc T. Rothenberg, Judge Cause No. 49G02

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### Brown , Judge
.Court of Appeals of Indiana | Opin ion on Rehearing 49A02

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### Opin ion on Rehearing

[1] Jamar Washington appealed his conviction for dealing in cocaine as a class A felony. In a memorandum decision, thi s court affirmed his conviction

. Washington v. State , No. 49A02

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- 306 (Ind . Ct. App. December 23, 2014). The conviction was based upon evidence found after Indianapolis Metropolitan Police Officer Luke Schmitt initiated a traffic stop of Washington after observing him speeding and making an illegal lane change. During the traffic stop and prior to the completion of the writing of a ticket for speeding and failure to signal a lane change, a police dog alerted to the presence of narcotics. This court held that the dog sniff and Officer Schmitt’s actions were not conducte d in a manner that prolonged the stop beyond the time reasonably required to complete the mission of issuing a ticket. See id. at 10. Washington has petitioned for rehearing, which we now grant in order to discuss Washington’s arguments based upon the Un ited States Supreme Court’s recent decision in Rodriguez v. United States , 135 S. Ct. 1609 (2015).

[2] Washington argues that Officer Schmitt’s inquiry about his prior arrests, attempt to retrieve his criminal history, and question of whether there were drugs in the car resulted in a measurable delay. He asserts that the delay caused by the unrelated questioning of whether there was any cocaine in the car without reasonable suspicion

was a violation of the Fourth Amendment. He contends that Officer Schmitt delayed the traffic stop measurably in order to conduct a drug investigation unrelated to the traffic stop and his convictions must be reversed under Rodriguez . The State
asserts that Rodriguez does not call this court’s decision into doubt and rather underscores the correctness of this court’s analysis.Court of Appeals of Indiana | Opin ion on Rehearing 49A02

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- 306 | A u g u s t 2 0 , 2 0 1 5 Page 3 of 6 [3] In Rodriguez , the Court held that “ a police stop exceeding the time nee ded to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. ” 135 S. Ct. at 1612. The Court held that “[a] seizure justified only by a police

- observed traffic violation, therefore, ‘ become[s] unla wful if it is prolonged beyond the time reasonably required to complete th[e] mission ’ of issuing a ticket for the violation. ” Id. (quoting Illinois v. Caballes , 543 U.S. 405, 407, 125 S. Ct. 834 (2005)). The Court observed that it had “ so recognized in Caballes ” and

“ adhere [d] to the line drawn in that decision. ” Id.

[4] The facts in Rodriguez reveal that , just after midnight, Police Officer Morgan Struble observed a Mercury Mountaineer veer slowly onto the shoulder of a highway for one or two seconds and then jerk back onto the road. Id. Officer Struble pulled the vehicle over at 12:06 a.m. while his dog was in his patrol car. Id. Officer Struble spoke with Rodriguez, the driver of the vehicle, and gathered his license, registration and proof of insur ance. Id. at 1613. After running a records check on Rodriguez, Officer Struble returned to the Mountaineer and asked passenger Scott Pollman for his driver’s license and began to question him about where the two men were coming from and where they were g oing. Id. Pollman replied that they had traveled to Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they were returning to Norfolk, Nebraska. Id. Officer Struble returned again to his patrol car, where he completed a records check on Pollman, called for a second officer, and began writing a warning ticket for Rodriguez for driving on the shoulder of the road. Id.Court of Appeals of Indiana | Opin ion on Rehearing 49A02

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- 306 | A u g u s t 2 0 , 2 0 1 5 Page 4 of 6 [5] Officer Struble returned to Rodriguez’s vehicle to issue the written warning. Id. By 12:27 or 12:28 a.m., Officer Struble had finished explaining the warning to Rodriguez and had given the documents obtained from Rodriguez and Pollman back to them. Id. Officer Struble later testified that at that point all the reasons for the stop w ere “out of the way.” Id. Officer Struble then asked for permission to walk his dog around Rodriguez’s vehicle, and Rodriguez said no. Id. Officer Struble then instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the p atrol car to wait for the second officer. Id. Rodriguez complied. Id. At 12:33 a.m., a deputy sheriff arrived, and Officer Struble then led his dog twice around the Mountaineer. Id. The dog alerted to the presence of drugs. Id. Seven or eight
minut es had elapsed from the time Officer Struble issued the written warning until the dog indicated the presence of drugs. Id. A search of the vehicle revealed a large bag of methamphetamine. Id.

[6] On appeal, the Court addressed the question of whether poli ce routinely may extend an otherwise completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. Id. at 1614. The Court held that because addressing the infraction is the purpose of the stop, “it may ‘ last no longer than is nece ssary to effectuate th[at]
purpose. ’ ” Id. (citing Caballes , 543 U.S. at 407, 125 S. Ct. 834 ). The Court held that “[a] uthority for the seizure thus ends when tasks tied to the traffic infraction are

— or reasonably should have been

— completed. ” Id. The Co urt observed that its decisions in Caballes and Arizona v. Johnson , 555 U.S. 323, 129 S. Ct. 781 (2009) , heed these constraints. Id. at 1614

. The Court stated:Court of Appeals of Indiana | Opin ion on Rehearing 49A02

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In [ Caballes and Arizona ], we concluded that the Fourth Amendment tolerated certain unrelated investigations that did not lengthen the roadside detention. Johnson , 555 U.S., at 327

- 328, 129 S. Ct. 781 (questioning); Caballes , 543 U.S., at 406, 408, 125 S. Ct. 834 (dog sniff). In Caballes , however, we cautioned that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket. 543 U.S., at 407, 125 S. Ct. 834. And we repe ated that admonition in Johnson : The seizure remains lawful only “so long as [unrelated] inquiries do not measurably extend the duration of the stop.” 555 U.S., at 333, 129 S. Ct. 781. See also Muehler v. Mena , 544 U.S. 93, 101, 125 S. Ct. 1465, 161 L.Ed.2d 299 (2005) (because unrelated inquiries did not “exten[d] the time [petitioner] was detained[,]

. . . no additional Fourth Amendment justification

. . . was required”). An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But

. . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

Id. at 1614

- 1615. The Court held that beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop which typically include checking the driver’s license, determining whether there are outstanding warrant s against the driver, and inspecting the automobile’s registration and proof of insurance. Id. The Court held that the critical question is whether conducting the sniff prolongs or adds time to the stop. Id. at 1616. T he Court remanded the case for fur ther proceedings to determine whether reasonable suspicion of criminal activity justified detaining Rodriguez beyond completion of the traffic infraction investigation. Id. at 1616

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[7] In our initial memorandum decision, t his court observed that the Cou rt in Caba lles
noted that a “seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonablyCourt of Appeals of Indiana | Opin ion on Rehearing 49A02

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required to complete that mission.” Slip op. at 8 (quoting Caballes , 543 U.S. at 407,
125 S. Ct. at 837 )

. We also stated that “[a] n officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration.” Id. at 8

- 9 (quoting Johnson , 555 U.S. at 325, 129 S. Ct. at 783 )

. We stated that “ the question is whether the dog sniff was conducted in a manner that prolonged the stop beyond the time reasonably required to compl ete t he mission of issuing a ticket.” Id. at 9. We held:

The record reveals that the video recording began thirty to forty seconds after the vehicles stopped and the recording shows a time stamp of 4:17:44. Officer Schmitt asked Washington a few questio ns and returned to his vehicle less than three minutes after the start of the video. His computer was in a dead spot and after four or five minutes of not receiving a response, he contacted control. At 4:25:30, dispatch informed Officer Schmitt that Wash ington had a valid driver’s license. Officer Wildauer deployed his dog at 4:27:33, less than ten minutes after the beginning of the video and less than eleven minutes after the vehicles stopped. At this point, Officer Schmitt had not finished completing the electronic ticket. At approximately 4:28:02, Officer Wildauer’s dog indicated the presence of the odor of narcotics. While Officer Schmitt typically hands the traffic ticket to the violator, he had to give the ticket to Detective Ingram because Washi ngton was arrested for the other offenses. Under the circumstances, we cannot say that the dog sniff or Officer Schmitt’s actions were conducted in a manner that prolonged the stop beyond the time reasonably required to complete th e mission of issuing a t icket.

Id. at 9

- 10. We cannot say that our previous memorandum decision conflicts with the hol ding in Rodriguez

. Accordingly, we reaffirm our previous decision.

B ailey, J., and Robb, J., concur

.