Court of Appeals of Indiana | Memorandum Decision 18A-CR-199 | March 29, 2019 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Bryan L. Cook

Carmel, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Edwin David Calligan,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 29, 2019

Court of Appeals Case No.

18A-CR-199

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D04-1603-F4-28

Pyle, Judge.
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Statement of the Case

[1] Edwin David Calligan (“Calligan”) appeals his conviction by jury of Level 4 

felony unlawful possession of a firearm by a serious violent felon.1 He argues 

that the trial court abused its discretion in admitting evidence of a handgun that 

was found during a search of the vehicle that Calligan was driving. Calligan 

specifically contends that the initial stop and the subsequent search of the car 

violated both the federal and state constitutions. Finding no abuse of the trial 

court’s discretion, we affirm the trial court’s judgment.

[2] We affirm.

Issue

Whether the trial court abused its discretion in admitting 

evidence of the handgun that was found during a search of the 

vehicle that Calligan was driving.

Facts

[3] In the early morning hours of March 25, 2016, Fort Wayne Police Department 

Detectives Marc Deshaies (“Detective Deshaies”) and Tim Hughes (“Detective 

Hughes”), who were affiliated with the Gang and Violent Crime Unit, were 

working in a high-crime area near Foster’s Bar and Grill (“Foster’s”). 

Specifically, the area is known for problems with drug trafficking, violence and 

 

1

IND. CODE § 35-47-4-5.
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fights, and shots-fired incidents. At approximately 2:30 a.m., the detectives 

observed a group of people in a nearby parking lot that were involved in a loud, 

heated argument, which appeared to be on the verge of turning into a physical 

altercation. The individuals involved in the argument got into three different 

vehicles and drove off together in a processional line. The lead vehicle was a 

Dodge Charger (“the Charger”), which was followed by a Chevrolet Impala 

(“the Impala”) and an Infinity (“the Infinity”). 

[4] Detectives Deshaies and Hughes followed the vehicles, which accelerated 

quickly. The detectives noticed that the Charger was repeatedly swerving 

within its lane, and, at one point, almost struck the curb. The Charger 

subsequently came to a complete and sudden stop in the middle of an 

intersection before continuing through the intersection. Detective Deshaies, 

who had been trained to “pace” a vehicle to determine its speed, “paced” the 

cars, all of which frequently exceeded the thirty-five-mile-per-hour speed limit. 

(Motion to Suppress Tr. at 13). After the Infinity turned off onto a side street, 

the driver of the Impala appeared to be trying to prevent the officers from 

moving between it and the Charger.

[5] Concerned that the driver of the Charger was impaired, the detectives initiated 

a traffic stop in a residential area after managing to maneuver behind the 

Charger. The driver of the Charger slowed down but continued to move 

forward for thirty to forty feet. As the detectives walked toward the stopped 

Charger, it began to roll forward again. As the detectives were yelling for the 

car to be put in park, Calligan, the driver, leaned out the window and 
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responded that the Charger had stopped even though the car was continuing to 

roll forward. When the Charger came to a complete stop, the detectives noticed 

two passengers and movement in the vehicle. Other officers who had heard 

radio communications about the Charger’s initial failure to stop immediately 

began arriving on the scene.

[6] As Detective Deshaies approached the Charger and began to speak with 

Calligan, the detective immediately smelled the odor of alcohol emanating from 

Calligan. Further, Calligan’s speech was slurred, his eyes were bloodshot, and 

he fumbled through his wallet attempting to find his insurance card. Concerned 

that Calligan might attempt to drive off again, Detective Deshaies asked 

Calligan for the keys to the car several times. Calligan refused to comply with 

the detective’s request and was “incredibly argumentative.” (Motion to 

Suppress Tr. at 32). He subsequently removed the keys from the ignition, 

refused to hand them to Detective Deshaies, and dropped them in the center 

console. 

[7] While Detective Deshaies was speaking with Calligan, other officers 

approached the front-seat passenger, who identified himself by a name that the 

officers immediately knew to be false. This passenger eventually had to be 

forcibly removed from the car after he refused to get out of the vehicle when the 

officers asked him to do so. An on-scene fingerprint identification revealed that 

the passenger had an active warrant for failing to appear in a gun case. At the 

same time, several females who had been in the Impala returned to the scene on 
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foot and were loudly challenging the officers’ actions and had to be physically 

restrained from interfering with the ongoing traffic stop. 

[8] As Detective Deshaies was checking Calligan’s information, other officers 

asked Calligan and the rear-seat passenger to exit the car and sit on the curb a 

few feet behind the Charger. The men were not handcuffed. Fort Wayne 

Police Department Sergeant Gary Hensler (“Sergeant Hensler”) searched the 

interior of the Charger for the purpose of officer safety and found a loaded 

handgun between the driver’s seat and the center console. Detective Hensler 

then handcuffed Calligan and the rear-seat passenger.

[9] The State charged Calligan with Level 4 felony unlawful possession of a firearm 

by a serious violent felon; Class A misdemeanor unlawful possession of a 

firearm by a domestic batterer, and Class A misdemeanor operating while 

intoxicated. Calligan filed a motion to suppress. At the suppression hearing, 

Sergeant Hensler responded as follows when asked why he had searched the 

car: “Well for all the reasons we already had, um, extended period of time to 

pull over, starting and stopping, fear of them retrieving a weapon, hiding 

contraband, formulating a plan, uh, the front seat passenger showing 

deception.” (Motion to Suppress Tr. at 99). Following the hearing, the trial 

court denied Calligan’s motion to suppress. Before trial, the State dismissed the 

misdemeanor counts.

[10] Calligan objected to the admission of the gun at trial. Also at trial, Detective 

Deshaies testified that he and Detective Hughes were concerned when 
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Calligan’s car kept rolling at the time of the stop. According to Detective 

Deshaies, “[t]ypically when we see these . . . stops that take a very long time to 

stop in my experience and training[,] it’s because people are either trying to 

secret or access contraband or weapons in the car prior to being stopped.” (Tr. 

Vol. 1 at 41-42). Sergeant Hensler testified that he had searched the vehicle for 

officer safety because: (1) the Charger did not stop immediately, which 

suggested that the vehicle’s occupants might have been attempting to hide 

weapons or drugs; (2) the traffic stop occurred in a high crime area where there 

were many drug transactions and shootings; and (3) the women from the 

Impala were very upset over the traffic stop and could have distracted the 

officers or assisted the men in the Charger with committing a crime, including 

assaulting the officers.

[11] Fort Wayne Police Department Detective Matthew Foote (“Detective Foote”) 

had also been conducting surveillance in the area of Foster’s. According to 

Detective Foote, police officers had been called to Foster’s for shootings, 

stabbings, and fights, and there had been a killing there the previous month. 

When he arrived at the scene of the traffic stop, Detective Foote was concerned 

when the front-seat passenger gave a name that the officers knew was not his. 

Detective Foote further explained that “often times when somebody supplies us 

with a false name[,] it’s to cover up criminal activity. Often times they are 

fugitives from justice, and that’s what it ended up being in this case.” (Tr. Vol. 

1 at 110).
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[12] During Calligan’s presentation of evidence, Tiffany Simpson (“Simpson”) 

testified that she had been dating Calligan in March 2016. Simpson further 

testified that the gun in the Charger belonged to her and that the Charger 

belonged to her mother, who allowed Simpson, Calligan, and other family 

members to drive it. Calligan was unable to drive his car at the time because 

“there was something major wrong with it.” (Tr. Vol. 1 at 161). 

[13] The jury convicted Calligan of Level 4 felony unlawful possession of a firearm, 

and he now appeals. 

Decision

[14] Calligan contends that the trial court erred in denying his motion to suppress

the gun that was found in the car that he was driving. Because Calligan appeals 

following his conviction and is not appealing the trial court’s interlocutory 

order denying his motion to suppress, the question is properly framed as 

whether the trial court abused its discretion in admitting the gun into evidence. 

See Parish v. State, 936 N.E.2d 346, 349 (Ind. Ct. App. 2010), trans. denied. The 

admission of evidence is within the sound discretion of the trial court, and we 

will reverse only for an abuse of that discretion. Rogers v. State, 897 N.E.2d 955, 

959 (Ind. Ct. App. 2008), trans. denied. A trial court abuses its discretion if its 

decision is clearly against the logic and the effect of the facts and circumstances 

before the court or if the court has misinterpreted the law. Id. We do not 

reweigh the evidence, and we consider conflicting evidence most favorable to 
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the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 

2005), trans. denied. 

1. Initial Stop

Calligan first argues that the initial stop of the car that he was driving violated 

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

Section 11 of the Indiana Constitution. We address each of his contentions in 

turn.

A. Fourth Amendment

[15] The Fourth Amendment provides protection against unreasonable searches and 

seizures of a person. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). A traffic 

stop of a vehicle is a seizure within the meaning of the Fourth Amendment. 

Whren v. United States, 517 U.S. 806, 809 (1996). For a search or seizure to be 

reasonable under the Fourth Amendment, a warrant is required unless an 

exception to the warrant requirement applies. Taylor v. State, 842 N.E.2d 327, 

330 (Ind. 2006). The State bears the burden of showing that a warrantless 

search or seizure is within an exception to the warrant requirement. Id.

[16] One such exception is set forth in Terry v. Ohio, 392 U.S. 1, 30 (1968), wherein 

the United States Supreme Court held that a police officer may briefly detain a 

person for investigatory purposes if, based on specific articulable facts together 

with reasonable inferences drawn therefrom, an ordinarily prudent person 

would reasonably suspect that criminal activity was afoot. Reasonable 
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suspicion is determined on a case-by-case basis by examining the totality of the 

circumstances. Terry, 392 U.S.at 30. Further, the law is well-settled that a 

police officer is constitutionally permitted to stop and briefly detain a person 

who has committed a traffic infraction. See IND. CODE § 34-28-5-3; State v. 

Quirk, 842 N.E.2d 334, 340 (Ind. 2006).

[17] Here, our review of the evidence reveals that the detectives had reasonable 

suspicion to stop Calligan for two reasons. First, Detective Deshaies, who had 

been trained to “pace” a vehicle, “paced” the car that Calligan was driving and 

determined that Calligan was exceeding the thirty-five-mile-per-hour speed 

limit.2 Driving in excess of the speed limit is an infraction. See IND. CODE § 9-

21-5-2. Second, Detective Deshaies had reasonable suspicion that Calligan was 

operating the Charger while intoxicated. Specifically, the detective observed 

the Charger repeatedly swerving within its lane and almost hitting a curb. 

Calligan also stopped the Charged in the middle of an intersection before 

continuing through the intersection. See Potter v. State, 912 N.E.2d 905, 906-08 

(Ind. Ct. App. 2009) (finding reasonable suspicion for a stop where Potter was 

weaving within his lane of travel and almost struck a median). The initial stop 

of the Charger did not violate the Fourth Amendment of the United States 

Constitution 

 

2 Regarding Calligan’s challenge to Detective Deshaies’ “pacing” of the Charger to determine its speed, we agree 

with the State that Calligan’s challenge is “simply a request to reweigh the [detective’s] credibility and refuse to 

credit his testimony that he paced [Calligan’s] vehicle and determined that it was exceeding the speed limit.” 

(State’s Br. at 13). This we cannot do. See Collins, 822 N.E.2d at 218. 
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B. Article 1, Section 11 of the Indiana Constitution

[18] We now analyze the stop under the Indiana Constitution. Although Article 1, 

Section 11 of the Indiana Constitution is identical to the Fourth Amendment, it 

is analyzed differently. Croom v. State, 996 N.E.2d 436, 442 (Ind. Ct. App. 

2013), trans. denied. Indiana Constitutional analysis focuses on the 

reasonableness of police conduct under the totality of the circumstances. Id.

(citing Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005)). We determine the 

reasonableness under the Indiana Constitution by balancing “1) the degree of 

concern, suspicion, or knowledge that a violation has occurred, 2) the degree of 

intrusion the method of search or seizure imposes on the citizen’s ordinary 

activities, and 3) the extent of law enforcement needs.” Litchfield, 824 N.E.2d at 

361. The State has the burden of proving that police intrusion into privacy was 

reasonable under the totality of the circumstances. Id. “It is unequivocal under 

our jurisprudence that even a minor traffic violation is sufficient to give an 

officer probable cause to stop the driver of a vehicle.” Austin v. State, 997 

N.E.2d 1027, 1034 (Ind. 2013).

Here, our review of the evidence reveals that the degree of concern, suspicion, 

or knowledge that a violation had occurred was high. The Charger was 

speeding, swerving in its lane and almost hit a curb. It also stopped in the 

middle of an intersection. Second, the degree of intrusion was slight. Detective 

Deshaies stopped the vehicle to determine whether Calligan was impaired. See 

e.g., Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001) (explaining that Article 1, 

Section 11 does not prohibit police from conducting a justified traffic stop). 
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Lastly, the needs of law enforcement were reasonable. The only way to 

determine whether Calligan was impaired was to stop the Charger. The stop 

was an appropriate manner of enforcing traffic laws. Balancing the high degree 

of concern, suspicion, or knowledge that a violation had occurred and the needs 

of law enforcement against the low degree of intrusion, we conclude that 

Detective Deshaies’ initial stop of the Charger was reasonable under the 

Indiana Constitution. 

2. Search of the Vehicle

[19] Calligan further argues that even if the initial stop was valid, the search of the 

car that he was driving violated both the Fourth Amendment of the United 

States Constitution and Article 1, Section 11 of the Indiana Constitution. We 

again address each of his contentions in turn.

A. Fourth Amendment

[20] The Fourth Amendment allows privacy interests protected by the Fourth 

Amendment to be balanced against the interests of officer safety. Wilson v. 

State, 745 N.E.2d 789, 792 (Ind. 2001). In Michigan v. Long, the United States 

Supreme Court explained as follows:

Our past cases indicate then that protection of police and others 

can justify protective searches when police have a reasonable 

belief that the suspect poses a danger, that roadside encounters 

between police and suspects are especially hazardous, and that 

danger may arise from the possible presence of weapons in the 

area surrounding a suspect. These principles compel our 

conclusion that the search of the passenger compartment of an 
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automobile, limited to those areas in which a weapon may be 

placed or hidden, is permissible if the police officer possesses a 

reasonable belief based on “specific and articulable facts which, 

taken together with the rational inferences from those facts, 

reasonably warrant” [1] the officers in believing that the suspect 

is dangerous and [2] the suspect may gain immediate control of 

weapons. “[T]he issue is whether a reasonably prudent man in 

the circumstances would be warranted in the belief that his safety 

or that of others was in danger.”

463 U.S. 1032, 1049-50 (1983) (quoting Terry, 392 U.S. 1 at 21 and at 27)

(emphasis added). The Supreme Court stressed that police officers are not 

required to adopt alternative means to ensure their safety in order to avoid 

privacy intrusions in this type of Terry investigation because it involves “a 

police investigation ‘at close range’ when the officer remains particularly

vulnerable in part because a full custodial arrest has not been effected, and the 

officer must make a “quick decision as to how to protect himself and others 

from possible danger[.]’” Long, 463 U.S. at 1052 (quoting Terry, 392 U.S. at 

24).

[21] This Court has previously explained that “[t]he purpose of a limited search for 

weapons after an investigative stop is not to discover evidence of a crime, but to 

allow the officer to pursue his investigation without fear for his safety or the 

safety of others.” State v. Joe, 693 N.E.2d 573, 575 (Ind. Ct. App. 1998), trans. 

denied. Therefore, when a vehicle has been properly stopped for investigative 

purposes, if the officer reasonably believes that he or others may be in danger

and the suspect may gain immediate access to a weapon, he may conduct a 

limited search of the automobile’s interior for weapons without first obtaining a 
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search warrant. State v. Dodson, 733 N.E.2d 968, 971 (Ind. Ct. App. 2000); 

Long, 463 U.S. at 1052.

[22] Here, our review of the evidence reveals that Long’s first prong is satisfied 

because the officers had reasonable suspicion to believe that Calligan was 

dangerous at the time they searched the car. See Long, 463 U.S. at 1050. 

Specifically, Calligan had initially failed to stop the Charger and had begun 

moving forward again when the detectives walked towards the vehicle. This 

action created a reasonable fear on the part of the detectives that Calligan was 

contemplating fleeing or that he was trying to hide or access a weapon. The 

detectives had also noticed movement in the Charger before it had come to a 

complete stop. Further, Calligan was highly argumentative and refused to hand 

his keys to the detective. Calligan also appeared to be intoxicated. In addition, 

the front seat passenger, who had given the detectives a false name and who

was wanted on an active warrant for failing to appear in a gun case, refused to 

exit the Charger and had to be forcibly removed from the vehicle. 

[23] In addition, Long’s second prong is satisfied because the officers had reasonable 

suspicion to believe that Calligan or his rear-seat passenger could have regained 

immediate control of the weapon in the vehicle. Neither man was handcuffed

and both men were sitting on a curb a few feet behind the vehicle. See id. See 

also United States v. Arnold, 388 F.3d 237, 240 (7th Cir. 2004) (concluding that it 

was reasonable to believe that Arnold, who was not arrested, could have 

regained access to his vehicle). In addition, the officers knew that the Charger’s 

front-seat passenger was wanted on a warrant in a gun case. The search of the 
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Charger did not violate the Fourth Amendment of the United States 

Constitution. 

B. Article 1, Section 11 of the Indiana Constitution

[24] We now return to the Litchfield factors to determine whether the search of the 

Charger was reasonable under the Indiana Constitution. See Litchfield, 824 

N.E.2d at 36. Our review of the evidence reveals that the degree of concern,

suspicion, or knowledge that a violation had occurred was high. In the early 

morning hours in a high-crime neighborhood, detectives saw Calligan involved 

in a loud heated argument before he got into the Charger. The detectives then 

saw Calligan commit the infraction of speeding. Calligan was also swerving in 

his lane, almost hit the curb, and came to a stop in the middle of an 

intersection, giving the detectives reasonable suspicion to believe that he was 

operating the vehicle while intoxicated. Calligan initially failed to comply with 

the officers’ order to stop, and the vehicle’s occupants were making movements 

consistent with an attempt to hide a weapon. In addition, the front seat 

passenger was wanted on an active warrant.

[25] Turning to the degree of intrusion, in Masterson v. State, 843 N.E.2d 1001, 1007 

(Ind. Ct. App. 2006), trans. denied, we explained that although “the search of 

Masterson’s vehicle was likely to impose an intrusion ‘on the citizen’s ordinary 

activities,’ Litchfield v. State, 824 N.E.2d at 361, ‘we recognize[d] that, to a 

limited extent, the intrusion, at least as to public notice and embarrassment, 

was somewhat lessened because of the hour and place of the search.’ Myers v. 
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State, 839 N.E.2d at 1154 (search occurred after midnight and in driveway of 

defendant’s mobile home).” We further noted that, at the time, it was not even 

clear to police that Masterson owned the vehicle subject to the search as it was 

registered to another individual. Id. Here, as in Masterson, the intrusiveness of 

the search was lessened where it occurred at 2:30 a.m. in a residential 

neighborhood, and the Charger did not belong to Calligan.

[26] In addition, the needs of law enforcement were reasonable. The stop occurred 

in a high-crime neighborhood, and the Charger’s occupants did not initially 

comply with the detective’s directives. When the Charger stopped, the 

detectives noticed movement in the vehicle, which suggested that the occupants 

might have been attempting to hide weapons. One of the vehicle’s occupants 

gave the detectives a false name and had an active warrant. Further, several 

females who had been in the Impala walked to the scene and were challenging 

the officers’ actions, and officers did not know whether the Infinity and its 

occupants would arrive at the scene. In addition, Calligan and the rear-seat 

passenger were sitting on a curb a few feet behind the vehicle, and neither man 

was handcuffed. Again, balancing the high degree of concern, suspicion, or 

knowledge that a violation had occurred and the needs of law enforcement 

against the lessened degree of intrusion, we conclude that the search of the 

Charger was reasonable under the Indiana Constitution.

[27] Finding no federal or state constitutional violation, we conclude that the trial 

court did not abuse its discretion in admitting the gun into evidence.
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[28] Affirmed. 

Vaidik, C.J., and Barnes, Sr. J., concur.