Court of Appeals of Indiana | Opinion 64A04-1710-CR-2368 | June 20, 2018 Page 1 of 10

ATTORNEY FOR APPELLANT

Michael A. Campbell

Valparaiso, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Zachariah Marshall,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

June 20, 2018

Court of Appeals Case No.

64A05-1710-CR-2368

Appeal from the Porter Superior 

Court

The Honorable David L. 

Chidester, Judge

Trial Court Cause No. 64D04-

1611-CM-10105

May, Judge.
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[1] Zachariah Marshall appeals the trial court’s denial of his renewed motion to 

suppress. He argues the traffic stop initiated by Reserve Officer Sean Dolan 

which led to Marshall’s arrest violated Marshall’s Fourth Amendment rights 

under the United States Constitution because Reserve Officer Dolan did not 

have reasonable suspicion to stop Marshall. We reverse and remand.

Facts and Procedural History

[2] In the early morning on October 29, 2016, Reserve Officer Dolan initiated a 

traffic stop of Marshall’s vehicle based on Reserve Officer Dolan’s observation 

that Marshall “was going over the posted speed limit.” (Tr. Vol. II at 39.) 

Reserve Officer Dolan explained to Marshall that Reserve Officer Dolan pulled 

Marshall over for speeding.

[3] Soon thereafter, the stop escalated to an investigation of operating a vehicle 

while intoxicated. Reserve Officer Dolan’s supervisor, Corporal Robert O’Dea, 

arrived on the scene and arrested Marshall. Reserve Officer Dolan testified he 

did not write Marshall a citation for speeding because 

Marshall’s BMV check came back that he had no priors to 

speeding and also that Mr. Marshall was also under the 

investigation for an O.W.I., therefore, I knew that he was going 

to have plenty of money problems and legal problems ahead of 

him that were going to be costly and I decided to cut him a break 

on the citation for speeding.

(Id. at 13.)
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[4] On November 2, 2016, the State charged Marshall with Class A misdemeanor 

operating a vehicle while intoxicated, endangering a person;1 Class C 

misdemeanor operating a vehicle with an alcohol concentration equivalent to 

.08 but less than .15;2 and Class C misdemeanor operating a vehicle while 

intoxicated.3

 On August 4, 2017, Marshall filed a motion to suppress, alleging 

the traffic stop was unlawful. The trial court denied Marshall’s motion on 

August 8, 2017.

[5] On August 9, 2017, Marshall filed a renewed motion to suppress, again alleging 

the traffic stop was unlawful, and requested a hearing on the motion. The trial 

court granted Marshall’s request for a hearing and held a hearing on Marshall’s 

renewed motion to suppress on August 17, 2017. The trial court denied 

Marshall’s renewed motion to suppress on August 18, 2017.

[6] On September 6, 2017, Marshall filed a motion asking the trial court to certify 

its denial of his renewed motion to suppress for interlocutory appeal. The trial 

court granted Marshall’s request for certification on September 12, 2017. Our 

court accepted jurisdiction over Marshall’s interlocutory appeal on December 5, 

2017. 

 

1 Ind. Code § 9-30-5-2(b).

2 Ind. Code § 9-30-5-1(a).

3 Ind. Code § 9-30-5-2(a).
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Discussion and Decision

[7] Our standard of review for the denial of a motion to suppress evidence is similar 

to other sufficiency issues. Jackson v. State, 785 N.E.2d 615, 618 (Ind. Ct. App.

2003), reh’g denied, trans. denied. We determine whether substantial evidence of 

probative value exists to support the denial of the motion. Id. We do not 

reweigh the evidence, and we consider conflicting evidence that is most 

favorable to the trial court’s ruling. Id. But the review of a denial of a motion 

to suppress is different from other sufficiency matters in that we must also 

consider uncontested evidence that is favorable to the defendant. Id. We 

review de novo a ruling on the constitutionality of a search or seizure, but we 

give deference to a trial court’s determination of the facts, which will not be 

overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind.

2008).

[8] The Fourth Amendment to the United States Constitution requires law 

enforcement officials obtain a valid warrant before conducting searches or 

seizures. A traffic stop is considered a seizure under the Fourth Amendment. 

Bush v. State, 925 N.E.2d 787, 789 (Ind. Ct. App. 2010), clarified on reh’g 929 

N.E.2d 897 (Ind. Ct. App. 2010) (clarifying procedural history of case and 

addressing State’s claim of waiver). “To be valid, a traffic stop must be 

supported by, at least, reasonable suspicion a traffic law has been violated or 

other criminal activity is afoot.” Id. at 790. Reasonable suspicion must consist 

of more than general hunches or suspicions. Abel v. State, 773 N.E.2d 276, 279 

(Ind. 2002). We consider the totality of the circumstances in determining 
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whether an officer had reasonable suspicion. Carter v. State, 692 N.E.2d 464, 

467 (Ind. Ct. App. 1997).

[9] Marshall argues the trial court erred when it denied his renewed motion to 

suppress because Reserve Officer Dolan’s traffic stop was unlawful. 

Specifically, Marshall contends Reserve Officer Dolan’s testimony of his 

“visual speed estimate” was insufficient to prove Reserve Officer Dolan had 

reasonable suspicion to believe Marshall was exceeding the speed limit when 

Reserve Officer Dolan initiated the traffic stop. (Br. of Appellant at 14.) This is 

an issue of first impression in Indiana.

[10] In its order denying Marshall’s renewed motion for summary judgment, the 

trial court concluded that “an officer’s testimony of speeding, without radar, 

pacing or some number, when based upon his or her expertise and ability to 

draw conclusions about the excessive speed of the vehicle, in general terms, is 

sufficient to establish a reasonable suspicion of a traffic infraction justifying a 

stop.” (App. Vol. II at 11.) In support of its conclusion, the trial court cited 

four cases from other jurisdictions: State v. Butts, 269 P.3d 862 (Kan. 2012); State 

v. Konvalinka, 819 N.W.2d 426, 2012 WL 1860352 (Iowa Ct. App. 2012); State 

v. Allen, 978 So.2d 254 (Fla. Dist. Ct. App. 2008); and State v. Barnhill, 601 

S.E.2d 215 (N.C. App. 2004), review denied. 

[11] All of the cases cited by the trial court in support of its conclusion are 

distinguishable from the facts in this case because they included testimony from 

the officer on the scene of the approximate speed the defendant was traveling 
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prior to the initiation of the traffic stop. See Butts, 269 P.3d at 1076 (“Officer 

Hopkins first noticed Butts’ vehicle traveling at a speed of about 45 miles per 

hour in a 30-mile-per-hour speed zone. The officer’s speed determination was 

an estimate based upon his observations, training, and experience with radar 

and speed detection.”); Konvalinka, at *1 (Officer “estimated Konvalinka to be 

travelling at approximately sixty miles per hour. The speed limit in the area 

was twenty-five miles per hour.”); Allen, 978 So.2d at 255 (Although officer did 

not know the exact speed Allen was traveling, “Detective Rylott testified that 

the area has a speed limit of twenty-five miles per hour and that he had to drive 

well over fifty miles per hour to catch up to Allen.”); and Barnhill, 601 S.E.2d at 

229 (“In Officer’s [sic] Malone’s opinion the vehicle was exceeding a safe 

speed, as he estimated the vehicle to be traveling 40 m.p.h. in a 25 m.p.h. 

zone.”).

[12] Here, the trial court noted as part of its order the relevant facts regarding 

Reserve Officer Dolan’s testimony:

Hebron police officer Sean Dolan was patrolling the area around 

State Road 8 and 500 West on October 19, 2016. He observed 

Defendant’s car speeding and stopped the [D]efendant. Officer 

Dolan was using a radar, but he could not testify at hearing or at 

deposition 1) what speed the [D]efendant was traveling and 2) 

what the radar showed as [D]efendant’s speed. He could only 

state the following:

Q: How certain were you that the defendant was speeding?

A: Very certain, a hundred percent.
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(App. Vol. II at 10.) The facts in this case are more similar to those in State v. 

Petzoldt, 803 N.W.2d 128, 2011 WL 2556961 (Iowa Ct. App. 2011). In Petzoldt, 

Officer Jay King pulled over Petzoldt because Officer King thought Petzoldt 

was speeding. After speaking with Petzoldt, Officer King suspected Petzoldt 

was intoxicated, administered field sobriety tests, and arrested Petzoldt for 

operating a vehicle while intoxicated. Id. at *1. Petzoldt filed a motion to 

suppress, citing multiple grounds, including “lack of legal cause to stop 

[Petzoldt’s] vehicle.” Id. The trial court denied Petzoldt’s motion to suppress 

based on the legality of his traffic stop.4

 At his subsequent bench trial, the trial 

court found Petzoldt guilty as charged and sentenced him accordingly.

[13] On appeal, Petzoldt argued the traffic stop was not justified by reasonable 

suspicion because “Officer King had no ‘sufficient, specific, articulable facts to 

substantiate a particularized suspicion to justify making an investigatory stop.’” 

Id. at 3. The court stated:

We believe that with proper foundation, an officer’s visual

estimation of speed may be sufficient to supply probable cause to 

stop a vehicle for speeding. But that is not the case here.

Here, Officer King testified he was playing Solitaire when he

observed Petzoldt’s pickup truck briefly as it passed in front of his 

patrol car. Although he testified he believed the truck was 

 

4 Petzoldt also argued “improper administration of field sobriety tests, lack of grounds to request a 

preliminary breath test and/or invoke implied consent, violation of Iowa Code section 804.20, not requesting 

a breath specimen in writing, lack of certification to operate the DataMaster, and improper questioning of 

[Petzoldt] prior to Miranda warning.” Id. at *1. The trial court denied Petzoldt’s motion to suppress on all 

grounds except his argument regarding the grounds for the preliminary breath test.
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travelling at a speed greater than the posted speed limit, Officer 

King made no estimate as to how fast the truck was travelling or 

how much over the posted limit he thought the pickup was 

travelling. The posted speed limit is not even in the record before 

us. Officer King’s visual estimate of speed was not confirmed by 

any other means of corroboration of the speed, such as radar or 

pacing. Officer King observed no other traffic infractions or 

driving anomalies by the pickup. He reached his conclusion 

based upon “years of experience looking at vehicles and the 

speeds they are going,” something he did every day in his job as a 

thirty-one-year veteran of the police force. Further, he said that 

as he attempted to catch up to the pickup, he “could tell that it 

was still going over the speed limit.” Officer King did not charge 

Petzoldt with speeding. The speed of Petzoldt’s truck cannot be 

discerned from viewing the video taken by Officer King’s 

dashboard-mounted camera.

Id. (footnote omitted). As part of its analysis, the court relied on Allen and 

Barnhill as instances where the officer’s visual estimation was sufficient to 

supply probable cause to stop a vehicle for speeding.5

 Based thereon, the court 

concluded:

Officer King’s testimony is solely conclusory. Having failed to 

articulate his observations of the movement of the Petzoldt truck

in his testimony, Officer King’s opinion lacks any factual 

foundation. Other than relying on his experience as a police 

officer, he failed to express any reasons for his belief the truck 

was speeding.

 

5

As noted infra, those cases are distinguishable on the basis the officers involved testified to an approximate 

speed the defendant was traveling and to the speed limit in that area. 
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Id. at *4. Because Officer King had not supplied specific, articulable facts upon 

which he based his conclusion that Petzoldt was speeding, the court concluded 

the traffic stop violated Petzoldt’s rights under the Fourth Amendment of the 

United States Constitution and reversed Petzoldt’s conviction. 

[14] Similar facts exist here. During a pre-trial deposition, Reserve Officer Dolan 

could not recall the posted speed limit at the location of the traffic stop, but he 

claimed he knew at the time of the stop what the speed limit was in the area. 

He testified he “thought maybe it was forty miles an hour[.]” (Tr. Vol. II at 22.) 

During the suppression hearing, Reserve Officer Dolan indicated he had visited 

the location of the stop prior to the hearing and that the speed limit was fifty 

miles per hour. Reserve Officer Dolan testified he did not pace Marshall’s 

vehicle, did not write down the speed at which he observed Marshall traveling 

prior to the traffic stop, and did not observe Marshall commit additional traffic 

infractions. 

[15] Instead, he agreed when asked, “you’re testifying that Mr. Marshall was doing 

something above [the posted speed limit]?” (Id. at 12.) Reserve Officer Dolan 

also testified his radar was properly calibrated and working at the time and 

while he did not know the exact speed Marshall was traveling, his radar 

indicated Marshall was going over the posted speed limit. Because Reserve 

Officer Dolan could not testify regarding the speed of Marshall’s vehicle in 

more specific terms, we hold he did not have specific articulable facts to support 

his initiation of a traffic stop, and therefore the traffic stop violated Marshall’s 

Fourth Amendment rights. See L.W. v. State, 926 N.E.2d 52, 59 (Ind. Ct. App. 
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2010) (officer did not have reasonable suspicion to conduct investigatory stop of 

L.W. and thus the stop violated L.W.’s Fourth Amendment rights), reh’g denied. 

Conclusion

[16] The trial court erred when it denied Marshall’s renewed motion to suppress 

because the traffic stop that resulted in Marshall’s arrest for driving while 

intoxicated violated the Fourth Amendment to the United States Constitution.6

 

Accordingly, we reverse and remand for proceedings consistent with this 

opinion.

[17] Reversed and remanded.

Riley, J., and Mathias, J., concur.

 

6 At trial and on appeal, Marshall also argued the traffic stop violated his rights under Article 1, Section 11 of 

the Indiana Constitution, which also prohibits unreasonable search and seizure. The trial court’s order did 

not address Marshall’s Indiana Constitutional argument. As the Indiana Constitution provides broader 

protection than the Federal Constitution, State v. Moore, 796 N.E.2d 764, 767 (Ind. Ct. App. 2003) (“the 

Indiana Constitution may prohibit searches which the federal Constitution does not”), trans. denied, and we 

have concluded the traffic stop did not meet the lower protection provided by the Federal Constitution, we 

need not address any argument regarding the Indiana Constitution.