Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 1 of 20

ATTORNEY FOR APPELLANT

Joe Keith Lewis

Marion, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Cody Rutledge,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 19, 2015

Court of Appeals Case No.

85A04-1407-CR-330

Appeal from the Wabash Superior 

Court

The Honorable Christopher M. Goff, 

Judge

Cause No. 85D01-1307-FD-501

Brown, Judge.
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 2 of 20

[1] Cody Rutledge appeals his convictions for operating a vehicle while intoxicated 

as a class D felony and driving while suspended as a class A misdemeanor and 

his status as an habitual substance offender. Rutledge raises two issues which 

we consolidate and restate as whether the trial court abused its discretion by 

admitting certain evidence. We affirm.

Facts and Procedural History

[2] Around midnight or in the early morning hours of July 6, 2013, Wabash 

County Sheriff’s Deputy Dustin Hurst was driving on patrol with Reserve 

Deputy David Brinson and on his way to Lagro, Indiana. Deputy Hurst 

encountered a maroon minivan and observed that it “appeared that the driver 

was having a hard time keeping the vehicle on the roadway,” “it appeared as it 

would approach the edge of the roadway, it would jerk back, multiple times . . . 

um, trying to stay on the road,” and the driver jerked the wheel and it “wasn’t 

just from bumps.”1 Transcript at 24, 49. Reserve Deputy Brinson observed the 

minivan “would drift off the road, come back on the road.” Id. at 54. Deputy 

Hurst followed the minivan until it pulled into a residential driveway. He drove

by the minivan, read the license plate number, continued to a parking lot, and 

entered the license plate number into his computer to determine if the minivan

“belonged there,” which took a few seconds. Id. at 25. The address related to 

 

1 When asked by defense counsel whether the minivan actually went off the roadway, Deputy Hurst stated: 

“I don’t believe so but I don’t recall for sure. I know, I know it was getting very close. I do remember at one 

point some dust flying up from the edge of the road but that doesn’t necessarily mean it was off the road.” 

Transcript at 30. Deputy Hurst also testified that the actions of the driver were not enough to pull the vehicle 

over for erratic driving. 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 3 of 20

the license plate was in La Fontaine, and Deputy Hurst determined that the 

residence where the minivan was located was not in La Fontaine. Deputy 

Hurst started back and observed that the minivan had already backed out and 

was starting onto the road again “[s]o, it stayed a very short . . . time there and 

it continued east from there.” Id. at 26. 

[3] Deputy Hurst turned around and saw that the minivan entered the Main Street 

of Lagro, went through a stop sign, traveled approximately two blocks, and 

then pulled into another residence. Deputy Hurst continued by to a street, 

turned around, and returned to the location of the minivan which took about 

ten to thirty seconds.2 During this time, he did not observe anybody around the 

minivan, any dome light illuminate, or any door open. Reserve Deputy 

Brinson did not observe any other vehicles, anything happening around the 

minivan, or any dome light illuminate. 

[4] Deputy Hurst approached the minivan with his vehicle facing the driver’s side 

of Rutledge’s minivan and pulled up perpendicular to it. He could not initially 

tell with his headlights if anyone was sitting in the minivan and did not activate 

his red and blue lights. He later testified that he was “just going up to check on 

 

2 On cross-examination, Rutledge’s trial counsel discussed Deputy Hurst’s u-turn and asked him: “You 

estimated you think you were, uh, about ten to fifteen seconds to do all of that?” Transcript at 47. Deputy 

Hurst answered: “That’s correct, sir.” Id. Rutledge’s trial counsel stated: “It could have been longer than 

that. It could have been twenty to thirty seconds.” Id. Deputy Hurst stated: “I suppose it could have.” Id.
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 4 of 20

the driver and kind of see if they belonged where they were at. What was going 

on.” Id. at 29.

[5] Deputy Hurst exited his vehicle, walked up to the driver’s side of the minivan, 

and observed Rutledge sitting in the driver’s seat “lying side wise over the . . . 

center console of the vehicle with his head resting on the passenger seat.” Id. at 

37. Reserve Deputy Brinson also exited Deputy Hurst’s vehicle and went to the 

back corner of the minivan. Deputy Hurst tapped on the driver’s side window, 

Rutledge sat up, and they had a brief discussion before Rutledge exited the 

vehicle. Either Rutledge or Deputy Hurst opened the door so they could 

communicate.3 Deputy Hurst asked Rutledge what was going on, and Rutledge 

said that he had been asleep and did not know what was going on. Deputy 

Hurst noticed an odor of an alcoholic beverage, that Rutledge’s eyes were red 

and glassy, that his speech was slightly slurred, and observed an open alcohol 

container in the driver’s side of the console. At one point during the 

conversation, Rutledge said that the keys were not in the ignition, and Deputy 

Hurst located the keys on the passenger side floor. 

[6] Deputy Hurst asked Rutledge to step out of the vehicle. Rutledge completed a 

partial field sobriety test but then stated that he did not want to participate in 

any more such tests. Specifically, Deputy Hurst completed “about two-thirds of 

the way through the horizontal gaze nystagmus test” before Rutledge advised 

 

3 Deputy Hurst testified that Rutledge sat up “and I believe either he or I, one opened the door, all so I could 

speak with him.” Transcript at 37.
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 5 of 20

that he did not wish to participate any further. Id. at 38. Rutledge said that he 

was not operating the vehicle, that a friend had driven him to Lagro, and that 

the friend had left. Deputy Hurst stated that he did not see the dome light 

illuminate, and Rutledge said that maybe someone climbed out the window.4 

Deputy Hurst asked Rutledge if he had a driver’s license, and Rutledge 

indicated that he did not. 

[7] Deputy Hurst offered Rutledge a certified chemical test and gave him the 

implied consent warning, and Rutledge refused to take the test. Deputy Hurst 

transported Rutledge to the Sheriff’s Department and obtained a search warrant 

for a blood draw. The blood was later determined to contain .19 grams of 

alcohol per hundred milliliters of blood. 

[8] On July 8, 2013, the State charged Rutledge with operating a vehicle while 

intoxicated as a class D felony and driving while suspended as a class A 

misdemeanor. On November 20, 2013, the State alleged that Rutledge was an 

habitual substance offender. On February 11, 2014, the State charged Rutledge 

with operating a vehicle with .15 grams of alcohol as a class A misdemeanor. 

[9] On June 17 and 18, 2014, the court held a jury trial and the first phase 

addressed the charges of driving while suspended as a class A infraction, 

 

4 Rutledge testified that when Deputy Hurst said that he did not see the dome light come on, he told him that 

he did not “really have an answer for that” and that “I did mention somebody jumping out the window 

because I thought he was kind of being smart mouth with me so I thought I’d give it right back to him but, 

you know, I, I didn’t know what to tell him.” Transcript at 115. 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 6 of 20

operating a vehicle while intoxicated as a class C misdemeanor, and operating a 

vehicle with .15 grams of alcohol as a class A misdemeanor. Deputy Hurst 

testified regarding his observations of the minivan before actually approaching 

the vehicle, and defense counsel raised an objection to any testimony or 

evidence based upon the traffic stop. Defense counsel objected on the basis of 

the Fourth Amendment of the United States Constitution and Article 1, Section 

11 of the Indiana Constitution and argued that there was no reason for the 

traffic stop as Deputy Hurst observed no improper driving. Defense counsel 

also argued that “I don’t believe you can establish a reasonable stop on the 

grounds that a vehicle is not from the locale, location . . . that it’s observed at.” 

Id. at 32. 

[10] The prosecutor asked Deputy Hurst if he actually stopped the minivan, and 

Deputy Hurst said that he did not. He testified that his reason for approaching 

the minivan was that “it seemed to [him] that every time the police car would 

get behind his vehicle, it would pull into a residence in an attempt to kind of 

elude me” and “basically just to speak with the driver and see what, you know, 

kind of what they were up to.” Id. at 33. The prosecutor argued that there was 

not a stop and that Deputy Hurst had “a reason to investigate what’s going on 

with this car or this driver, uh, to see if something’s wrong or . . . what is 

happening.” Id. at 34. Defense counsel argued that there was no need of 

assistance and that the idea that the person in the minivan was attempting to

elude Deputy Hurst was not a basis for a traffic stop or a Terry style 

investigation. Id. at 34.
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 7 of 20

[11] The court stated:

[I]t’s kind of a unique fact pattern that’s before me I think largely 

because, um, of, of the state that Mr. Rutledge was in when he was 

encountered by Deputy Hurst, uh, in, in that it may have been a 

consensual encounter, an encounter but for the fact that he’s, uh, 

asleep. Um, I think that’s evidence that’s going to be presented. Uh, 

if, if it’s not a consensual encounter, I think that it has to be, you 

know, the, the investigatory, um, stop. Is it really a stop? I don’t 

know that it’s [sic] movement was impeded in any fashion. I don’t 

know based on the evidence before me that he was restricted in 

anyway from moving or leaving the scene. Again, uh, he was 

apparently unconscious. But if I look in, um, in, with an eye towards 

seeing whether or not if it was an investigatory stop, whether or not 

the totality of the circumstances, um, makes it, uh, arises to reasonable 

suspicion that criminal activity was afoot. I, I think that it was. I, I 

think that there was, uh, reasonable suspicion, uh, that criminal 

activity was afoot based on the totality of the circumstances which 

would include the, the time of day, the, uh, behavior, the fact, uh, that 

he’s pulling in to a variety of, um, or at least two different driveways 

during this time period. Uh, the Officer testified that he thought that 

that was peculiar, he thought that he was eluding him and based on 

the totality of the circumstances, I think that it was, um, that does arise 

to reasonable suspicion. Again, I’m not sure, however, that we even 

get to that point because, uh, [Rutledge] was apparently, uh, not 

awake and so, uh, if he had been, uh, it might have been a consensual 

encounter. So, I, I, I’m also a bit troubled by the fact that I don’t know 

if there’s enough evidence before me to find that he was impeded in 

anyway so that it was a stop. I think the closest thing is the 

investigatory stop. So, I think if it arises to that level, there was 

reasonable suspicion. So, I would, uh, for those reasons and all other 

reasons supported by the record, overrule the objection.

Id. at 35-36. Defense counsel then asked that the court show that his objection 

constitute a continuing objection, and the court granted the request. 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 8 of 20

[12] Rutledge and his brother testified that Rutledge’s brother drove him to the 

location where Deputy Hurst encountered him, threw the car keys on the 

floorboard, and walked away. The jury found Rutledge guilty as charged. 

After Rutledge pled guilty to the operating while intoxicated and driving while 

suspended enhancements, the jury determined that Rutledge was an habitual 

substance offender. 

[13] On July 1, 2014, the court sentenced him to one and one-half years with all but 

thirty-six days suspended and the balance served on probation for operating 

while intoxicated as a class D felony, enhanced by three years due to the 

habitual substance offender determination.5 The court sentenced Rutledge to a 

concurrent thirty-six days for driving while suspended as a class A 

misdemeanor.

Discussion

[14] The issue is whether the trial court abused its discretion by admitting evidence 

obtained after Deputy Hurst and Reserve Deputy Brinson approached 

Rutledge’s vehicle. Our review of rulings for the admissibility of evidence is 

essentially the same regardless of whether the challenge is made through a 

pretrial motion to suppress or by trial objection. Bean v. State, 973 N.E.2d 35, 

39 (Ind. Ct. App. 2012) (citing Jackson v. State, 890 N.E.2d 11, 15 (Ind. Ct. App. 

2008)), trans. denied. Generally, the admission and exclusion of evidence falls 

 

5 The abstract of judgment indicates that one year and 144 days were suspended to probation. 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 9 of 20

within the sound discretion of the trial court, and we review the admission of 

evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 

(Ind. 2002). An abuse of discretion occurs “where the decision is clearly 

against the logic and effect of the facts and circumstances.” Smith v. State, 754 

N.E.2d 502, 504 (Ind. 2001). We review a trial court’s denial of a defendant’s 

motion to suppress deferentially, construing conflicting evidence in the light 

most favorable to the ruling, but we will also consider any substantial and 

uncontested evidence favorable to the defendant. Robinson v. State, 5 N.E.3d 

362, 365 (Ind. 2014). We defer to the trial court’s findings of fact unless they 

are clearly erroneous, and we will not reweigh the evidence. Id. When the trial 

court’s denial of a defendant’s motion to suppress concerns the constitutionality 

of a search or seizure, however, it presents a question of law, and we address 

that question de novo. Id. 

[15] Rutledge argues that the encounter between Deputy Hurst and himself was a 

seizure under the Fourth Amendment and Deputy Hurst’s actions were 

unreasonable under Article 1, Section 11 of the Indiana Constitution. The State 

argues that the encounter was consensual, that reasonable suspicion supported 

the deputies’ approach of Rutledge, and that their conduct was reasonable 

under the Indiana Constitution. We address Rutledge’s arguments under the 

federal and state constitutions separately.
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 10 of 20

A. The Fourth Amendment

[16] Rutledge asserts that the encounter constituted a seizure and not a consensual 

encounter. He posits that a number of facts establish that a reasonable person 

would be intimidated, including that it was late at night with no one else 

around, Deputy Hurst made a concerted effort to follow him and pulled his 

vehicle up to the minivan with his headlights shining on the driver’s door, 

Deputy Brinson positioned himself behind the minivan effectively blocking it, 

Rutledge was awakened by Deputy Hurst tapping at the window and did not 

see Deputy Hurst walk up or observe his demeanor, and the minivan door was 

either opened by Deputy Hurst, “commanding Rutledge to exit” or by Rutledge 

“suggesting submission and an acknowledgement that he was not going to be 

allowed to leave.” Appellant’s Brief at 12. Rutledge also asserts that Deputy 

Hurst did not have reasonable suspicion that criminal activity was afoot. 

[17] The State argues in part that the encounter did not implicate the Fourth 

Amendment because it was consensual. The State asserts that Rutledge does 

not make any allegation that the manner in which Deputy Hurst parked his 

vehicle physically impeded his freedom of movement in any way and that 

Rutledge offered no evidence that Deputy Hurst’s use of language or tone of 

voice indicated that Rutledge’s compliance might be compelled. The State also 

argues that the deputies had reasonable suspicion. 

[18] The Fourth Amendment to the United States Constitution protects persons 

from unreasonable search and seizure by prohibiting, as a general rule, searches 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 11 of 20

and seizures conducted without a warrant supported by probable cause. Clark v. 

State, 994 N.E.2d 252, 260 (Ind. 2013). Encounters between law enforcement 

officers and public citizens take a variety of forms, some of which do not 

implicate the protections of the Fourth Amendment and some of which do. Id.

at 261. Consensual encounters in which a citizen voluntarily interacts with an 

officer do not compel Fourth Amendment analysis. Id. Nonconsensual 

encounters do, though, and typically are viewed in two levels of detention: a 

full arrest lasting longer than a short period of time, or a brief investigative stop. 

Id. The former of these requires probable cause to be permissible; the latter 

requires a lower standard of reasonable suspicion. Id.

[19] “Determining whether this was a consensual encounter or some level of 

detention ‘turns on an evaluation, under all the circumstances, of whether a 

reasonable person would feel free to disregard the police and go about his or her 

business.’” Id. (quoting Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003)). “The 

test is objective—not whether the particular citizen actually felt free to leave, 

but ‘whether the officer’s words and actions would have conveyed that to a 

reasonable person.’” Id. (quoting California v. Hodari D., 499 U.S. 621, 628, 111 

S. Ct. 1547 (1991) (citing United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 

1870 (1980))). Further, “Mendenhall establishes that the test for existence of a 

‘show of authority’ is an objective one: not whether the citizen perceived that he 

was being ordered to restrict his movement, but whether the officer’s words and 

actions would have conveyed that to a reasonable person.” Hodari D., 499 U.S. 

at 628, 111 S. Ct. at 1551. Examples of facts and circumstances that might lead 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 12 of 20

a reasonable person to believe that he or she was no longer free to leave could 

include the threatening presence of several officers, the display of a weapon by 

an officer, some physical touching of the person of the citizen, or the use of 

language or tone of voice indicating that compliance with the officer’s request 

might be compelled. Clark, 994 N.E.2d at 261-262. What constitutes a restraint 

on liberty prompting a person to conclude that he is not free to “leave” will vary 

depending upon the particular police conduct at issue and the setting in which 

the conduct occurs. Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 

1979 (1988). In Powell v. State, 912 N.E.2d 853, 860-862 (Ind. Ct. App. 2009), 

this court examined case law holding that law enforcement’s approach to a 

parked vehicle does not in itself constitute an investigatory stop or seizure for 

purposes of the Fourth Amendment.

[20] Here, the record reveals that the vehicle in which Rutledge was seated was 

parked at a residence and the keys were on the passenger side floor. Deputy 

Hurst did not pull his vehicle directly behind Rutledge’s vehicle. The following 

exchange occurred during cross-examination of Deputy Hurst:

Q: You were not able to observe, uh, uh, anybody’s, uh, head in the 

vehicle as you pulled up on it. Is that correct? In other words, . . .

A: Correct.

Q: There would have been not only tinted windows but there would 

have been head rests, etcetera. Correct?

A: Uh, I didn’t pull up behind the vehicle, sir.

Q: So you never actually got up behind it.

A: Not when I stopped my vehicle. I was behind it on the roadway 

but after I turned around, I pulled up perpendicular to the vehicle.
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 13 of 20

Transcript at 50. Deputy Hurst did not activate his red and blue lights. He 

observed Rutledge sitting in the driver’s seat “lying side wise over the . . . center 

console of the vehicle with his head resting on the passenger seat.” Id. at 37. 

Deputy Hurst tapped on the driver side window and attempted to speak with 

Rutledge, and eventually Rutledge sat up. To the extent Rutledge argues that 

the minivan door was either opened by Deputy Hurst, “commanding Rutledge 

to exit” or by Rutledge “suggesting submission and an acknowledgement that 

he was not going to be allowed to leave,” Appellant’s Brief at 12, we observe 

that Rutledge’s trial counsel asked Reserve Deputy Brinson whether Deputy 

Hurst had to open the door to arouse Rutledge or just tap on the window, and 

Deputy Brinson answered: “He was tapping on the window.” Transcript at 58. 

Deputy Brinson also testified that Deputy Hurst and Rutledge had a brief 

discussion before Rutledge exited the vehicle. As for Deputy Brinson’s 

presence at the scene, we note that he went to the back corner of the minivan. 

Neither lights nor siren were activated, no weapons were pulled, nor did any 

touching of Rutledge occur. The deputies did not initiate a traffic stop and 

merely approached the car, and Rutledge’s freedom of movement was not 

impaired. 

[21] Given these facts, we cannot say that Deputy Hurst’s approach to the parked 

vehicle in which Rutledge was an occupant and initial contact with Rutledge 

constituted an investigatory stop or a seizure under the Fourth Amendment. 

The record supports the conclusion that the initial encounter here was 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 14 of 20

consensual and thus fell outside the ambit of the Fourth Amendment’s 

guarantee against unreasonable searches and seizures. 

[22] However, even assuming that the initial encounter was not consensual and that 

a stop occurred when Deputy Hurst opened the door, we conclude that the facts 

known to Deputy Hurst together with the reasonable inferences would cause an 

ordinarily prudent person to believe that criminal activity has or is about to 

occur. Rutledge concedes that “he turned off the Lagro Road two times and let 

Hurst pass him twice,” but argues that Deputy Hurst had only a hunch this was 

suspicious and observed no other activity or circumstance that would suggest 

criminal activity was afoot. Appellant’s Brief at 18. He asserts that his actions 

are reminiscent of the actions of an individual who, upon observing police, 

turned away once or twice. The State notes that Deputy Hurst thought it was 

unusual that Rutledge would pull the minivan into two residences within a 

short period of time and appear to have no connection to either residence, and 

that his erratic driving and evasive actions strongly suggested an intoxicated 

driver who was evading the police. The State also argues that Rutledge’s 

attempt to focus on only his evasive driving and analogizing that to an 

individual’s right to turn away from police misses the mark because reasonable 

suspicion is based upon a totality of circumstances. 

[23] In Terry v. Ohio, the United States Supreme Court established the standard for 

determining the constitutionality of investigatory stops. 392 U.S. 1, 88 S. Ct. 

1868 (1968). The Court ruled that the police may, without a warrant or 

probable cause, briefly detain an individual for investigatory purposes if, based 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 15 of 20

on specific and articulable facts, the officer has a reasonable suspicion of 

criminal activity. Id. at 27, 88 S. Ct. at 1883; see also Jackson v. State, 669 N.E.2d 

744, 747 (Ind. Ct. App. 1996) (“In Terry, the Supreme Court held that ‘where a 

police officer observes unusual conduct which leads him reasonably to conclude 

in light of his experience that criminal activity may be afoot’ the officer may 

briefly stop the suspicious person and make ‘reasonable inquiries’ to confirm or 

dispel those suspicions.”) (quoting Terry, 392 U.S. at 30, 88 S. Ct. at 1884). 

“Reasonable suspicion exists where the facts known to the officer, together with 

the reasonable inferences arising from such facts, would cause an ordinarily 

prudent person to believe that criminal activity has or is about to occur.” 

Baldwin, 715 N.E.2d at 337. Campos v. State, 885 N.E.2d 590, 597 (Ind. 2008) 

(quoting Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999)). In judging the 

reasonableness of investigatory stops, courts must strike “a balance between the 

public interest and the individual’s right to personal security free from arbitrary 

interference by law [enforcement] officers.” Carter v. State, 692 N.E.2d 464, 466 

(Ind. Ct. App. 1997) (quoting Brown v. Texas, 443 U.S. 47, 50, 99 S. Ct. 2637, 

2640 (1979)). When balancing these competing interests in different factual 

contexts, a central concern is “that an individual’s reasonable expectation of 

privacy is not subject to arbitrary invasions solely at the unfettered discretion of 

officers in the field.” Id. (citing Brown, 443 U.S. at 51, 99 S. Ct. at 2640). 

Therefore, in order to pass constitutional muster, reasonable suspicion must be 

comprised of more than an officer’s general “hunches” or unparticularized 

suspicions. Terry, 392 U.S. at 27, 88 S. Ct. at 1883. However, Terry does not 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 16 of 20

require absolute certainty of illegal activity, but rather reasonable suspicion. 

Robinson, 5 N.E.3d at 368.

[24] Whether an investigatory stop is justified is determined on a case by case basis. 

Williams v. State, 745 N.E.2d 241, 245 (Ind. Ct. App. 2001). In making this 

determination, we consider the totality of the circumstances. Id. “Judicial 

interpretation of what constitutes ‘reasonable suspicion’ is fact-sensitive.” 

Bridgewater v. State, 793 N.E.2d 1097, 1100 (Ind. Ct. App. 2003), trans. denied. 

Avoiding the police or turning away from them is not enough by itself to 

constitute reasonable suspicion. Id. The United States Supreme Court has 

noted that “nervous, evasive behavior is a pertinent factor in determining 

reasonable suspicion. Headlong flight—wherever it occurs—is the consummate 

act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly 

suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 

(2000) (citations omitted).

[25] The record reveals that: (1) the encounter occurred around midnight or in the 

early morning hours; (2) it appeared to Deputy Hurst that the driver of the 

minivan was having a hard time keeping the vehicle on the roadway and that he

jerked the wheel back multiple times, Transcript at 49; (3) after Deputy Hurst 

began following Rutledge, Rutledge pulled into a residential driveway that did 

not match the address related to the license plate; (4) Rutledge stayed only a 

very short time before exiting the driveway; (5) Rutledge continued driving 

before pulling into a second driveway that was also not the address related to 

the license plate; (6) Deputy Hurst and Reserve Deputy Brinson did not observe 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 17 of 20

any other vehicles, anything happening around the minivan, or any dome light 

illuminate; and (7) Deputy Hurst observed Rutledge “lying side wise over the . . 

. center console of the vehicle with his head resting on the passenger seat.” 

Transcript at 37. Under these circumstances, we conclude that the facts known 

to Deputy Hurst together with the reasonable inferences arising from such facts 

would cause an ordinarily prudent person to believe that criminal activity may 

be afoot, thus justifying an investigatory stop. The stop was not a violation of 

Rutledge’s Fourth Amendment rights and therefore the trial court did not err in 

admitting evidence seized as a result of the encounter. 

B. Article 1, Section 11 of the Indiana Constitution

[26] 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 the fact that the text of Article 1, 

Section 11 is nearly identical to the Fourth Amendment, Indiana courts 

interpret and apply it “independently from federal Fourth Amendment 

jurisprudence.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001). In 

conducting analysis under this provision, we focus on whether the officer’s 

conduct “was reasonable in light of the totality of the circumstances.” Holder v. 

State, 847 N.E.2d 930, 940 (Ind. 2006). In making this determination, we 

balance: (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 citizen’s ordinary activities; and (3) the extent of law 

enforcement needs. Id. When police conduct is challenged as violating Section 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 18 of 20

11, the burden is on the State to show that the search or seizure was reasonable 

under the totality of the circumstances. State v. Washington, 898 N.E.2d 1200, 

1206 (Ind. 2008), reh’g denied. 

[27] Rutledge argues that Deputy Hurst’s concern, suspicion or knowledge that a 

violation had occurred was de minimis, that Hoosiers should expect to be able to 

travel within their home county without drawing suspicion from local law 

enforcement, and that the needs of law enforcement were not significantly at 

play because the Town of Lagro had not been described as a hot spot for 

criminal activity. 

[28] The State contends that the degree of concern, suspicion, or knowledge that 

Rutledge might have been driving impaired was reasonably high, that Deputy 

Hurst’s intrusion on Rutledge’s activities was minimal as he was unconscious in 

the van at the time, and law enforcement needs were reasonably high. 

[29] The record reveals that Deputy Hurst encountered a maroon minivan around 

midnight or in the early morning hours and observed that it “appeared that the 

driver was having a hard time keeping the vehicle on the roadway,” “it 

appeared as it would approach the edge of the roadway, it would jerk back, 

multiple times . . . um, trying to stay on the road,” and the driver jerked the 

wheel and it “wasn’t just from bumps.” Transcript at 24, 49. The minivan 

pulled into one residential driveway, stayed a very short time, and drove to 

another residential driveway a relatively short distance away. Neither of the 

residences where Rutledge parked his vehicle were the address related to his 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 19 of 20

license plate. Deputy Hurst exited his vehicle, walked up to the driver’s side of 

the minivan, and observed Rutledge sitting in the driver’s seat “lying side wise 

over the . . . center console of the vehicle with his head resting on the passenger 

seat.” Id. at 37. We conclude that the record indicates a degree of concern, 

suspicion, or knowledge that a violation had occurred.

[30] The record also reveals that the degree of intrusion was minor. Deputy Hurst 

parked his squad vehicle near Rutledge’s vehicle but not behind it. He 

approached the driver’s side of Rutledge’s vehicle on foot while Deputy Brinson 

approached only the rear corner. Under these circumstances, we conclude that 

Deputy Hurst’s approach and initial contact with Rutledge was minimally 

intrusive and did not violate Rutledge’s rights against unreasonable search or 

seizure under Article 1, Section 11 of the Indiana Constitution. We further 

note that the Indiana Supreme Court has observed that few Hoosiers would 

dispute the heartbreaking effects of drunk driving in our state and that law 

enforcement has a strong interest in preventing crashes involving alcoholimpaired drivers. See Robinson, 5 N.E.3d at 368. The trial court did not abuse 

its discretion in overruling Rutledge’s objection to the admission of evidence 

based upon Article 1, Section 11 of the Indiana Constitution. 

Conclusion

[31] We cannot say that the trial court abused its discretion in overruling Rutledge’s 

objections, based upon the Fourth Amendment to the United States 

Constitution or Article 1, Section 11 of the Indiana Constitution, to the 

admission of evidence obtained after the encounter with Deputy Hurst. 
Court of Appeals of Indiana | Opinion 85A04-1407-CR-330 | March 19, 2015 Page 20 of 20

[32] For the foregoing reasons, we affirm Rutledge’s convictions.

[33] Affirmed.

Bailey, J., and Robb, J., concur.