## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEY S FOR APPELLEE : NICHOLAS T. OTIS GREGORY F. ZOELLER Newby Lewis Kaminski & Jones, LLP Attorney General of Indiana LaPorte, Indiana CHANDRA K. HEIN Deputy Attorney General Indianapolis, India na


## IN THE COURT OF APPEALS OF INDIANA

BRIAN RUSSELL, ) ) Appellant

- Defendant, ) ) vs. ) No. 46A03

- 1212

- CR

- 544 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE LAPORTE SUPERIOR COURT The Honorable Jennifer L. Koethe , Judge Cause No. 46D03

- 1008

- CM

- 901

September 12, 2013

OPINION
- FOR PUBLICATION
BRADFORD, JudgeAppellant

- Defendant Brian Russell appeals his conviction for Class C misdemeanor

operating a vehicle while int oxicated. LaPorte County Sherriff’s Deputy Andrew Hahn subjected Russell to an investigatory stop after concerned citizen Wayne Bogart called 911 to report Russell as a possible intoxicated driver. At trial, Appellee

- Plaintiff the State of Indiana presen ted evidence obtained as a result of the stop, which the trial court admitted over Russell’s motion to suppress. Because Bogart provided police with specific information regarding where, when, and how Russell could be identified, and because Deputy Hahn

c orroborated this information with his own observations, we conclude that Bogart’s tip was sufficiently reliable to support reasonable suspicion under the Fourth Amendment. Under Article I, Section 11, we conclude that Deputy Hahn had reasonable suspicion to stop Russell because Bogart provided police with a reliable tip, Deputy Hahn’s request for Russell’s driver’s license and registration was minimally intrusive, and the need to remove intoxicated drivers from the road warranted an immediate police respon se. The judgment of the trial court is affirmed. FACTS AND PROCEDURAL HISTORY At approximately 2:00 a.m. on August 8, 2010, Bogart was driving on Highway 421, traveling from Valparaiso to his home in North Judson. Another driver, later identified as
Russ ell, closed in on Bogart’s vehicle from the rear and flashed his vehicle’s headlights on and off. Thinking there was a problem, Bogart pulled over. Russell pulled his vehicle alongside Bogart’s, and both men rolled down their windows. Russell indicated to Bogart that he was lost and needed directions to State Road 30. Bogart noticed that Russell’s speech3

was slurred, and Russell admitted that he had been drinking alcohol. Bogart informed Russell that State Road 30 was sixteen miles in the opposite dire ction. Russell replied that “he would never be able to find [it]” and began to cry. Tr. p. 34. Russell begged Bogart to show him the way; Bogart eventually agreed. Bogart set off for State Road 30, and Russell followed. While en route, Bogart called 91 1 on his cell phone. Bogart told the 911 operator that he believed Russell was intoxicated and asked that an officer meet him and Russell at the Speedway gas station near the intersection of Highway 421 and State Road 30. In response, Deputy Andrew Hahn was dispatched to the gas station. When Deputy Hahn arrived, he observed no vehicles in the gas station parking lot, prompting him to call the dispatcher to obtain more information. The dispatcher, who had just spoken with Bogart, informed Deputy Hahn th at Bogart was nearing the gas station and that, when he arrived, Russell would be driving the trailing vehicle. Moments later, Deputy Hahn observed two vehicles pull into to the gas station parking lot, one trailing the other. The drivers of these vehicl es were later identified as Bogart and Russell. Bogart and Russell stopped at the gas pumps, and Bogart positioned his vehicle so as to block Russell from leaving. Bogart exited his vehicle, pointed to Deputy Hahn and then, at Russell. Russell then exite d his vehicle. Deputy Hahn believed an altercation was about to take place and pulled his vehicle behind Russell’s. At that point, Russell re

- entered his vehicle and began to drive away. Deputy Hahn ordered Russell to stop. He then activated his vehicl e’s emergency lights and pursued Russell, stopping him before he exited the gas4

station parking lot. Deputy Hahn asked Russell for his driver’s license and registration. During this exchange, Deputy Hahn observed that Russell’s speech was slurred, he had blood shot eyes, and his manual dexterity was poor. Deputy Hahn also identified the smell of alcohol emanating from the interior of Russell’s vehicle. At that point, Deputy Hahn asked Russell to exit his vehicle. As Russell exited, Deputy Hahn observed that Russell’s balance was poor and that he was swaying from side to side. Russell eventually admitted to Deputy Hahn that he had been drinking alcohol. Deputy Hahn then asked Russell to perform three field sobriety tests, all of which Russell failed. D eputy Hahn arrested Russell and transported him to LaPorte County Jail. Russell was charged with Class C misdemeanor operating a vehicle while intoxicated. On December 21, 2010, Russell filed a motion to suppress “all evidence seized by the arresting offic ers, all observations made by the arresting officers, and all statements made by Mr. Russell as a result of the unconstitutional conduct of the police.” Appellant’s App. p. 13. Following a hearing on the issue, the trial court denied Russell’s motion. On October 24, 2012, Russell’s case proceeded to trial, during which the State presented evidence obtained as a result of Deputy Hahn’s investigatory stop. The jury found Russell guilty as charged. On November 28, 2012, the trial court sentenced Russell to sixty days in the LaPorte County Jail with sixty days suspended to probation. As a condition of probation, Russell was ordered to complete an alcohol treatment program. His driver’s license was also suspended for one
year.5 DISCUSSION AND DECISION Russel l argues that the trial court abused its discretion in admitting evidence obtained as a result of Deputy Hahn’s investigatory stop . Specifically, Russell claims that Deputy Hahn lacked reasonable suspicion to initiate the stop as required under both the F ourth Amendment to the United State Constitution and Article I, Section 11 of the Indiana Constitution

. Although we generally review a trial court’ s decision to admit evidence despite a motion to suppress under an abuse

- of

- discretion standard, the ultimat e determination of whether an officer had reasonable suspicion to conduct an investigatory stop is reviewed de

novo. Burkett v. State , 736 N.E.2d 304, 306 (Ind. Ct. App. 2000) . As a preliminary matter, the State contends that Russell waived his federal cl aim by failing to provide an indepen dent analysis under the Fourth A mendment. We agree. Although nearly identical in wording, the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution are indepen dently
i nterpreted and applied. Baniaga v. State , 891 N.E.2d 615, 618 (Ind. Ct. App. 2008). An appellant’s failure to provide us with a separate analysis for each constitutional claim constitutes waiver

. Francis v. State , 764 N.E.2d 641, 647 (Ind. Ct. App. 2002 ) ( citing South Bend Tribune v. Elkhart Circuit Court , 691 N.E.2d 200, 202 n. 6 (Ind. Ct. App. 1998)). Nevertheless, we will address Russell’s Fourth Amendment claim.
I. Fourt h Amendment Russell claims that Deputy Hahn’s investigatory stop violated his Fo urth Amendment right to be free from unreasonable searches and seizures by the government. U.S. C ONST

.6

amend IV. “Because a traffic stop is a seizure under the Fourth Amendment, police may not initiate a stop for any conceivable reason, but must possess at least reasonable suspicion that criminal activity is taking place.” Meredith v. State , 906 N.E.2d 867, 869 (Ind. 2009)

. Reasonable suspicion exists where the facts known to the officer at the moment of the stop, together with the reasonable inference s arising therefrom, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. In deciding whether there was reasonable suspicion for a stop, we look to the totality of the circumstances. Burkes v. State , 842 N.E.2d 426, 429

- 30 (Ind. Ct. App. 2006)

. At trial, Deputy Hahn testified that he stopped Russell because of Bogart’s 911 call reporting a possible intoxicated driver. It is well

- established in I ndiana that a tip from a concerned citizen may justif y an investigatory stop if sufficiently reliable. State v. Renzulli , 958 N.E.2d 1143, 1147 (Ind. 2011). The reliability of a concerned citizen tip “generally must be established by reference to underlying facts and circumstances which indicate that the
i nformation is trustworthy.” Renzulli , 958 N.E.2d at 1147. The tipster’s susceptibility to prosecution for false reporting heightens the likelihood of the report’s reliability and is a circumstance bearing on the reasonableness of suspicion. Kellems v. S tate , 842 N.E.2d 352, 3 5 5

- 5 6 (Ind. 2006), rev ’ d on other grounds

. Here, the tip received by the 911 operator and relayed to Deputy Hahn included specific information regarding where the suspect would be, when he would be there, and how he could be identifi ed. Bogart asked that police meet him and Russell at the Speedway gas station near the intersection of Highway 421 and State Road 30. Bogart later informed police that he was nearing the gas station and that, when he arrived, Russell would be driving the7

trailing vehicle. This information was corroborated when, moments later, Deputy Hahn observed two vehicles pull into the gas station parking lot, one trailing the other. Notably, these events occurred at the low

- traffic time of approximately 2:00 a.m. D eputy Hahn also observed Bogart position his vehicle so as to block Russell from leaving the parking lot, and Bogart pointed out Russell to Deputy Hahn. Furthermore, Bogart agreed to meet police at the gas station, rendering him susceptible to prosecution for false reporting. Under these circumstances, we conclude that Bogart’s tip demonstrated sufficient reliability to give rise to reasonable suspicion to support an investigatory stop under the Fourth Amendment.
I I. Article I, Section 11 Russell also c laims that Deputy Hahn’s investigatory stop violated his Article I, Section 11 right to be free from unreasonable searches and seizures. I ND
. C ONST . art. I, § 11. Under the Indiana Constitution , the legality of a government search turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. Litchfield v.
State , 824 N.E.2d 356, 359 (Ind. 2005). Although other relevant considerations under the circumstances may exist, the Indiana Supreme Court has determined that the reasonableness of a search or seizure turns on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search

or seizure imposes on the citizens’ ordinary activiti es, and 3) the extent of law enforcement needs. Id. at 361

. For the reasons stated in our analysis of Russell’s Fourth Amendment claim, we conclude that the degree of Deputy Hahn’s suspicion was reasonably high. He received a8

concerned citizen tip about a possible intoxicated driver, which, based on corroboration, was sufficiently reliable. In contrast, the degree of intrusion on Russell’s privacy was minimal. Deputy Hahn merely asked Russell for his license and registration before additional observati ons

— i.e., Russell’s slurred speech and the smell of alcohol

— gave rise to further suspicion and corresponding intrusion. State v. Washington , 898 N.E.2d 1200, 1211 (Ind. 2008) (“ In a stop based on either probable cause or reasonable suspicion, it is clear that an officer may request the driver’ s license and registration ....”). Moreover, the stop was justified by the needs of law enforcement. A suspected intoxicated driver warrants an immediate police response for the safety of the general public, as well as for the safety of the driver. Renzulli , 958 N.E.2d at 1148 . In light of the totality of the circumstances, we conclude that Deputy Hahn had reasonable suspicion to support his investigatory stop under Article I, Section 11. Russell’s only contention on appeal is that Deputy Hahn lacked reasonable suspicion to initiate the stop because Bogart did not report, and Deputy Hahn did not observe, any additional criminal activity such as erratic driving. Russell relies on the Indiana Supreme Court’s decision in Renzulli , where, in concluding that a tipster’s 911 call reporting a possible intoxicated driver gave rise to reasonable suspicion for an investigatory stop, the court noted that the tipster “also described the criminal activity observed, ‘he is all over the road he is going to kill somebody[.]’” Renzulli , 958 N.E.2d at 1149. This contention, however, is without merit. Despite the language asserted by Russell, Renzulli does not stand for the proposition that a tipster must report additional criminal act ivity in order for his or her9

report of a possible intoxicated driver to be deemed reliable. See Bogetti v. State , 723 N.E.2d 876, 878 (Ind. Ct. App. 2000) (finding reasonable suspicion of intoxicated driving where anonymous tipster reported only that ind ividual “may be intoxicated ” ); see also Renzulli , 958 N.E.2d at 1148 (discussing Bogetti with approval). Because Russell’s rights under the Fourth Amendment and Article I, Section 11 were not violated, the trial court acted within its discretion in admitti ng evidence obtained as a result of Deputy Hahn’s investigatory stop of Russell’s vehicle. The judgment of the trial court is affirmed. MAY, J., concurs. BAILEY, J., concurs in result with opinion.10 

## IN THE COURT OF APPEALS OF INDIANA

BRIAN RUSSELL, ) ) Appellant

- Defendant, ) ) vs. ) No. 46A03

- 1212

- CR

- 544 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

BAILEY, Judge, concurring in result
I concur with the result of the majority; however, given Russell’s waiver of a Fourth Amendment challenge to the stop leading to his arrest, I write separately because I do not think that this Court should address the merits of that issue. Failure to provide separate analysis of Indiana and United States constitutional claims unde r Article 1, Section 11 and the Fourth Amendment, respectively, results in waiver. Francis v. State , 764 N.E.2d 641, 647 (Ind. Ct. App. 2002). This is because, though similar in wording, we interpret and apply the two provisions independently from one an other. Id. at 646

- 47. Thus, in Francis , we held as waived an Indiana constitutional challenge to an investigatory stop where the defendant argued that “the Indiana Constitution’s ‘protections11

relating to investigative stops [are] consistent with federal Fourth Amendment constitutional analysis.’” Id. at 646 (citations omitted). Here, Russell’s brief mentions the applicability of the Fourth Amendment to the United States Constitution, but it provides no separate analysis. And while his brief mentions th e Fourth Amendment and cites cases that discuss the Fourth Amendment, he does not recognize the distinctions in analysis between Fourth Amendment claims and claims under Article I, Section 11 of the Indiana Constitution. His arguments offer analysis only on the latter of these, addressing most directly the Indiana constitutional analysis set out in State v. Renzulli , 958 N.E.2d 1143 (Ind. 2011). The majority rightly concludes that Russell has waived any argument under the Fourth Amendment to the U.S. Const itution, but then performs that analysis itself, waiver notwithstanding. Under these circumstances, I would conclude that Russell’s Fourth Amendment contention is waived without moving on to address the issue further. This is particularly so because, in t he final analysis, Russell’s argument boils down to a request for us to reweigh the evidence leading to the trial court’s conclusion that the police had reasonable suspicion to stop him. Thus, neither Russell’s Federal nor Indiana constitutional analysis would prevail, and this obviates the need to discuss the merits of an unargued constitutional issue. I therefore respectfully concur in result with this separate opinion.