Court of Appeals of Indiana | Opinion 23A-CR-17 | August 23, 2023 Page 1 of 8

ATTORNEY FOR APPELLANT

Brooks B. C. Ledger

Ledger Law, P.C.

Logansport, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita 

Attorney General of Indiana 

Tyler Banks 

Supervising Deputy Attorney 

General 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Kyle Budimir,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 23, 2023

Court of Appeals Case No.

23A-CR-17

Interlocutory Appeal from the 

White Superior Court

The Honorable Brad A. Woolley, 

Judge

Trial Court Cause No.

91D01-2107-F6-157

Opinion by Judge Bradford

Judges Riley and Weissmann concur.

Bradford, Judge.

Case Summary
Court of Appeals of Indiana | Opinion 23A-CR-17 | August 23, 2023 Page 2 of 8

[1] Kyle Budimir was riding in a vehicle driven by Bianca Roberts when Monon 

Town Marshal Roger Young executed a traffic stop. Marshal Young requested 

an officer with a K9. Shortly before Sergeant Joshua Shoemaker of the White 

County Sheriff’s Department arrived, Marshal Young had given Budimir 

permission to leave, but Budimir had not left by the time Sergeant Shoemaker 

arrived. As Budimir attempted to leave, Sergeant Shoemaker instructed him to 

stay, searched Budimir’s person, and found methamphetamine, drug 

paraphernalia, and marijuana. The State charged Budimir with Level 6 felony 

possession of methamphetamine, Class A misdemeanor possession of 

paraphernalia with a prior conviction, and Class B misdemeanor possession of 

marijuana. Budimir moved to suppress the evidence recovered during the 

search of his person, arguing that the search had violated the Fourth 

Amendment to the U.S. Constitution and Article 1, section 11, of the Indiana 

Constitution. The trial court denied his motion and Budimir sought an 

interlocutory appeal. Budimir argues that the trial court erred in denying his 

motion to suppress. We agree and reverse.

Facts and Procedural History

[2] On July 18, 2021, Marshal Young was on patrol when he spotted a vehicle 

being driven by Bianca Roberts, whose license he knew had been suspended. 

After confirming with dispatch that Roberts’s license was still suspended, 

Marshal Young executed a traffic stop about two blocks from Roberts’s 
Court of Appeals of Indiana | Opinion 23A-CR-17 | August 23, 2023 Page 3 of 8

residence. He also requested that an officer with a drug-sniffing K9 come to the 

scene. 

[3] When Marshal Young approached Roberts’s vehicle, he observed Budimir in 

the front seat and two children in the back seat. Budimir told Marshal Young 

that one of the children needed to use the restroom and Marshal Young agreed 

to let Budimir walk the children home. “Within seconds, a minute of the 

stop[,]” Sergeant Shoemaker arrived. Tr. Vol. II p. 13. When Sergeant

Shoemaker arrived, Budimir was standing outside of Roberts’s vehicle with one 

of the children, beside the driver-side front bumper. Marshal Young informed 

Sergeant Shoemaker that Budimir had been in Roberts’s car but did not inform 

him that he had given Budimir permission to take the children home. 

[4] Sergeant Shoemaker began to approach Roberts’s vehicle, and, at the same 

time, the other child walked over to Budimir. As Sergeant Shoemaker reached 

the driver-side door, Budimir and the two children began walking away from 

the traffic stop. Sergeant Shoemaker called to Budimir, “Hey, hold up man. 

Did he say you were allowed to go?” Ex. 1 at 00:08–00:15. Budimir turned to 

face Sergeant Shoemaker and Roberts told Sergeant Shoemaker that Marshal

Young had given Budimir permission to take her children home. Sergeant

Shoemaker then asked Budimir if he had come out of Roberts’s car, and, after 

Budimir affirmed that he had been in the car, Sergeant Shoemaker replied, 

“Well, then you gotta stick around, buddy. Can you stand over there?” and 

motioned to a nearby driveway. Ex. 1 at 00:27–00:31. 
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[5] As the traffic stop proceeded, Sergeant Shoemaker walked his K9 around 

Roberts’s vehicle, which resulted in a positive alert. As a result, Sergeant

Shoemaker performed a warrantless search of Budimir’s person, during which 

Sergeant Shoemaker discovered methamphetamine, marijuana, and drug

paraphernalia. The State charged Budimir with Level 6 felony possession of 

methamphetamine, Class A misdemeanor possession of paraphernalia with a 

prior conviction, and Class B misdemeanor possession of marijuana. 

[6] On September 2, 2022, Budimir moved to suppress the evidence that had been 

discovered on his person, arguing that the search and seizure were unlawful 

under the Fourth Amendment to the U.S. Constitution and Article 1, section

11, of the Indiana Constitution. On October 13, 2022, the trial court held a

hearing on Budimir’s motion. On December 13, 2022, the trial court entered its 

order denying Budimir’s motion to suppress and granted his motion for 

interlocutory appeal. On January 4, 2023, we accepted jurisdiction of 

Budimir’s interlocutory appeal. 

Discussion and Decision

[7] Our standard of review when considering the denial of a motion to suppress is 

well-settled:

Our standard of review for the denial of a motion to suppress 

evidence is similar to other sufficiency issues. We determine 

whether substantial evidence of probative value exists to support 

the trial court’s denial of the motion. We do not reweigh the 

evidence and we consider conflicting evidence most favorably to 
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the trial court’s ruling. However, this review is different from 

other sufficiency matters in that we must also consider 

uncontested evidence that is favorable to the defendant.

Simmons v. State, 781 N.E.2d 1151, 1153–54 (Ind. Ct. App. 2002) (internal 

citations omitted). 

[8] “Because we only need to reach the federal constitutional analysis if the Indiana 

Constitution does not resolve the claim,” we start with Budimir’s Article 1, 

section 11, argument. State v. Katz, 179 N.E.3d 431, 442 (Ind. 2022). 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 Article 1, section 11’s, similarity to the Fourth 

Amendment’s language, Indiana courts interpret it “independently from federal 

Fourth Amendment jurisprudence.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 

2001). 

[9] Our analysis under Article 1, section 11, focuses on the “the totality of the 

circumstances” in determining whether “the search or seizure was reasonable.” 

Sandleben v. State, 29 N.E.3d 126, 134 (Ind. Ct. App. 2015), trans. denied. Three 

factors guide our review of the reasonableness of a search or seizure: “(1) the 

degree of concern, suspicion, or knowledge that a violation of law 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. at 

135. The State bears the burden of showing that the search or seizure was 
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reasonable under the circumstances. Rutledge v. State, 28 N.E.3d 281, 291 (Ind. 

Ct. App. 2015).

[10] The degree of concern, suspicion, or knowledge that Budimir had engaged in 

criminal activity was minimal, at best. Marshal Young had lawfully stopped 

Roberts for her driving with a suspended license; however, shortly thereafter, 

“he released [Budimir] from the scene[.]” Appellant’s App. Vol. II p. 45. After 

being released, and shortly after Sergeant Shoemaker had arrived on scene, 

Budimir and the children began walking away before Sergeant Shoemaker 

“asked [Budimir] to stay by the scene.” Appellant’s App. Vol. II p. 46. Before 

Sergeant Shoemaker’s K9 alerted on Roberts’s car, there was no reason 

whatsoever to suspect that Budimir had engaged, or was engaging, in criminal 

activity of any kind. 

[11] Moreover, the degree of intrusion was hardly “non-existent” as the State 

argues. Appellee’s Br. p. 14. In Cade v. State, 872 N.E.2d 186, 188–89 (Ind. Ct. 

App. 2007), trans. denied, we concluded that the degree of intrusion was 

minimal when an officer executed a routine traffic stop and asked a passenger 

his name. See also Cochran v. State, 843 N.E.2d 980, 985 (Ind. Ct. App. 2006)

(concluding that, where officer approached person standing on sidewalk, the 

officer’s request for the person’s name was minimal intrusion), trans. denied. 

Sergeant Shoemaker’s command to Budimir was far more intrusive than merely 

asking for his name. When Sergeant Shoemaker told Budimir that he needs to

“stick around” and stay in a nearby driveway, he restricted Budimir’s ordinary 
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activities, namely, his freedom to leave the scene and take the children home. 

Ex. 1 at 00:27–00:31.

[12] Finally, the needs of law enforcement to detain Budimir were slight. The State 

correctly asserts that “police have a limited right to briefly detain a passenger 

who exits the vehicle after it has been lawfully stopped.” Tawdul v. State, 720 

N.E.2d 1211, 1216–17 (Ind. Ct. App. 1999), trans. denied. However, the 

situation in Tawdul is readily distinguishable from this one. In Tawdul, the 

driver and passenger had already exited the vehicle and had “refused to return 

to the car” despite the police officer’s order to do so. Id. at 1213. We rejected 

Tawdul’s argument that his arrest for resisting law enforcement violated the 

Fourth Amendment and Article 1, section 11, on the principle that “[t]he police 

may detain the passenger in order to ascertain the situation and to alleviate any 

concerns the officer has for his or her safety.” Id. at 1217. Here, however, 

Marshal Young had already assessed the situation and had released Budimir 

from the scene by the time Sergeant Shoemaker arrived and ordered him to 

stay. The State points to nothing in the record to indicate that Sergeant 

Shoemaker observed anything about Budimir that Marshal Young did not that 

would have caused a reasonable concern for officer safety. In light of the 

nonexistent degree of suspicion that Budimir was engaging in criminal activity, 

the relatively intrusive nature of the encounter, and the minimal needs of law 

enforcement, we cannot say that the State met its burden in proving that the 

search and seizure of Budimir was reasonable under the totality of the 
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circumstances. As a result, we conclude that the trial court erred in denying 

Budimir’s motion to suppress. See Rutledge, 28 N.E.3d at 291.

[13] The judgment of the trial court is reversed.

Riley, J., and Weissmann, J., concur.