Opinion
23A-CR-2883
10-16-2024
Jonathan Dean Russell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jennifer A. Joas Joas Law, LLC Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Jennings Circuit Court The Honorable Murielle S. Bright, Judge Trial Court Cause No. 40C01-2304-F2-4
ATTORNEY FOR APPELLANT
Jennifer A. Joas
Joas Law, LLC
Madison, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General
Kathy Bradley
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] Jonathan Dean Russell appeals his convictions for Level 3 felony possession of methamphetamine, Level 6 felony possession of a narcotic drug, and Class C misdemeanor possession of paraphernalia, arguing the trial court erred in admitting the drugs and paraphernalia into evidence. We affirm.
Facts and Procedural History
[¶2] In the early hours of February 28, 2023, Jennings County Deputy Sheriff Johnathan Amis was in his patrol car with his canine partner, Dino, when Russell, driving his brother's Ford Focus, turned onto the street ahead of him. Deputy Amis noticed Russell "checking the mirrors to see who was behind him," and as Deputy Amis followed behind the car, Russell "immediately changed lanes" to the left. Tr. Vol. II p. 9. Deputy Amis changed lanes and radioed dispatch to check the car's license plate and registration. Dispatch reported that the registered owner of the car was a male named Jackie Russell. Seeing that the driver kept checking his rearview mirror, Deputy Amis ran Jackie Russell's driver's license and learned it was suspended. At that point, around 1:40 a.m., Deputy Amis turned on his emergency lights to initiate a traffic stop.
[¶3] Once his lights were activated, Deputy Amis saw Russell "reaching over into the passenger seat area" multiple times. Id. at 11. Deputy Amis couldn't see Russell's hand, but he could tell Russell was extending his right arm and "leaning over with his full body" into the passenger side. Id. at 12. As Russell was reaching, the car "swerv[ed]" within the lane and "bounce[d] back between the fog line and the center line" without crossing the lines. Id. at 105. Russell continued driving for another quarter to half mile, passing several places where he could've safely pulled over, before eventually pulling into a gas station.
[¶4] Deputy Amis approached the driver's side of the car, and when he looked inside, he saw an unzipped pouch on the passenger floorboard in the area he'd seen Russell reaching. Deputy Amis informed Russell that he'd pulled him over because the car's registered owner had a suspended license. Russell explained it was his brother's car. Deputy Amis asked Russell for his driver's license, the car's registration, and proof of insurance. When Russell handed Deputy Amis his license and the registration, his hand was "shaking uncontrollably." Id. at 111. Deputy Amis returned to his patrol car to have dispatch run Russell's license, which came back valid. This took a few minutes.
[¶5] Meanwhile, Jennings County Deputy Sheriff William Carter and North Vernon Police Department Officer Adam Jackson arrived on the scene. When Deputy Amis returned from his patrol car, Russell didn't have proof of insurance, so Deputy Amis asked Russell to step out of the car and try to contact his brother to get the insurance information. He also informed Russell that he would be conducting a dog sniff of the car. Beginning at 1:45 a.m., Deputy Amis ran Dino around the car while Russell stood with Officer Jackson. See Ex. 1. After sniffing the pouch on the passenger floor, Dino alerted to the odor of narcotics at 1:48 a.m. See id. Deputy Amis returned Dino to his patrol car, and then he and Deputy Carter began searching the Focus.
[¶6] The deputies didn't find any drugs in the car, but Deputy Amis found two or three "large knives, like hatchets" on the passenger side. Tr. Vol. II p. 116. Concerned Russell might be armed, Deputy Amis patted down his outer clothing to check for weapons while Deputy Carter continued searching the car. While patting the outside of Russell's left pants pocket, Deputy Amis felt what he immediately knew to be a methamphetamine pipe. He asked Russell if he could check his pocket, and Russell pulled away and said no. Deputy Amis told Russell he could feel the pipe, and Russell admitted it was a methamphetamine pipe. Deputy Amis then reached into Russell's pocket and pulled out the pipe as well as a small metal container with a bindle inside. Deputy Amis handcuffed Russell and read him his Miranda rights. Russell admitted there was heroin in the bindle but said it was his girlfriend's. (Testing later revealed it was fentanyl, not heroin.) Deputy Amis told Russell he was going to jail and asked if he had anything else on his person. Russell initially said no but then pulled a plastic bag out of his pants containing a clear, crystal-like substance and a white powdery substance. Russell admitted the bag contained multiple types of methamphetamine (later found to weigh 24.4 grams). Deputy Carter didn't find anything else in his search of the car, which lasted twenty to thirty minutes total. Russell eventually got a hold of his brother and was able to confirm the insurance information before being taken to jail.
[¶7] The State charged Russell with Level 2 felony dealing in methamphetamine, Level 3 felony possession of methamphetamine, Level 6 felony possession of a narcotic drug, and Class C misdemeanor possession of paraphernalia. Russell moved to suppress the pipe, methamphetamine, and fentanyl, arguing the dog sniff and searches of the car and his person violated his rights under the Fourth Amendment to the United States Constitution. At the hearing on the motion, when recounting the traffic stop, Deputy Amis stated that he had "reasonable articulable suspicion" to continue detaining Russell to conduct the dog sniff. Id. at 35. The trial court later asked what the reasonable and articulable suspicion was, and Deputy Amis explained his training on indicators of criminal activity:
So when I first got behind the vehicle one of the indicators is for him - people changing lanes immediately when they notice a police officer behind them. As I'm behind him, um, I see him checking his rearview mirror back and forth which is another indicator. Um, as I'm going then I run the plate it comes back suspended prior so I go ahead and initiate my lights. Um, as I'm following him he starts reaching over when my lights are on he starts reaching over for something which is another indicator. Um, as he's reaching over I can see him bring back or come back over and then he swerved. Um, as we stopped I approached the vehicle, he's still checking his rearview mirrors, um, while I'm at the vehicle he grabs his license and registration and I see him he's actually uncontrollably shaking handing me his stuff which is another indicator. Um, so with all those indicators for suspicion taught in my interdiction class which made me believe there's more criminal activity at that time.... Like the indicators are of - of saying there's more afoot, more criminal activity happening than just a suspended driver.Id. at 46-47. Finding that Deputy Amis had the requisite reasonable suspicion, the trial court denied the motion to suppress.
[¶8] At the jury trial, the pipe, methamphetamine, and fentanyl were admitted into evidence over Russell's objection. The jury found Russell guilty of Level 3 felony possession of methamphetamine, Level 6 felony possession of a narcotic drug, and Class C misdemeanor possession of paraphernalia. The trial court sentenced Russell to an aggregate term of twelve years.
We held oral argument on September 24, 2024, at Pike High School in Indianapolis. We thank the school's administration, staff, and students for their hospitality, as well as counsel for their helpful advocacy.
Discussion and Decision
[¶10] Russell does not dispute the legality of the initial traffic stop. Rather, he contends the drugs and pipe should not have been admitted into evidence because they were obtained during an impermissible extension of the stop in violation of his rights under the Fourth Amendment. While we generally review rulings on the admissibility of evidence for an abuse of discretion, when a challenge to such a ruling is based on the constitutionality of a search or seizure, our review is de novo. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).
[¶11] Russell challenges both the dog sniff and the pat-down search. We address each in turn.
I. Deputy Amis had reasonable suspicion to continue the traffic stop and conduct the dog sniff
[¶12] Russell argues that Deputy Amis impermissibly extended the traffic stop beyond the time necessary to fulfill the purpose of the stop. The parties agree the initial reason for the stop was to determine whether Jackie, whose driver's license was suspended, was driving the car. Relying on Holly v. State, 918 N.E.2d 323 (Ind. 2009), Russell states that when he gave Deputy Amis his driver's license and Deputy Amis confirmed he wasn't Jackie, the purpose of the stop was completed, and the inquiry should have ended there.
[¶13] But Russell also acknowledges that even after the purpose of a traffic stop is completed, an officer may proceed with an investigatory detention if he has reasonable suspicion of criminal activity. See Appellant's Br. p. 12 (citing Wells v. State, 922 N.E.2d 697, 700 (Ind.Ct.App. 2010), trans. denied, and Ramsey v. State, 222 N.E.3d 1038, 1045 (Ind.Ct.App. 2023), trans. denied). At the suppression hearing, Deputy Amis listed indicators of criminal activity by Russell that he believed amounted to reasonable suspicion to continue the stop and conduct the dog sniff. Russell addresses these alleged indicators one by one and argues why each does not amount to an indicator of criminal activity. But when reviewing a determination of reasonable suspicion, we look to the totality of the circumstances. Wells, 922 N.E.2d at 701. "The reasonable suspicion requirement is satisfied when 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 occurred or is about to occur." Id.
[¶14] Looking at the totality of the circumstances here, we find that Deputy Amis had reasonable suspicion of criminal activity. Russell immediately changed lanes when Deputy Amis began following him and repeatedly checked his rearview mirror. Once Deputy Amis activated his emergency lights, Russell leaned and reached into the passenger side of the car where the empty pouch was later found, causing him to swerve back and forth within his lane. And despite passing several locations where he could've safely pulled over, Russell continued driving for a quarter to half mile after Deputy Amis had turned his lights on. Then, Russell was shaking uncontrollably while handing Deputy Amis his license and the car's registration. While any of these factors on their own may not be sufficient, taking them together, we conclude Deputy Amis had reasonable suspicion that Russell was engaging in or had engaged in criminal activity. Thus, he could continue the stop and conduct a dog sniff.
II. Deputy Amis had probable cause to search Russell's person
[¶15] Russell next argues that even if the dog sniff was justified, the traffic stop should've ended once the search of the vehicle yielded no illegal contraband, and thus the subsequent pat-down search was unconstitutional. The State contends Deputy Amis had probable cause to believe Russell had drugs on his person, which would permit him to search Russell incident to an arrest for drug possession. "Where probable cause for an arrest exists, the suspect may be searched incident to the lawful arrest." Curry, 90 N.E.3d at 687. As long as there is probable cause to make an arrest, "the fact that a suspect was not formally placed under arrest at the time of the search incident thereto will not invalidate the search." I.G. v. State, 177 N.E.3d 75, 78 (Ind.Ct.App. 2021) (quotation omitted); see also VanPelt v. State, 760 N.E.2d 218, 223 (Ind.Ct.App. 2001) ("The critical issue is not when the arrest occurs but whether there was probable cause to arrest at the time of the search."), trans. denied. "Probable cause to arrest arises when, at the time of the arrest, the arresting officer knows of facts and circumstances that would warrant a person of reasonable caution to believe that the defendant committed the criminal act in question." I.G., 177 N.E.3d at 78.
[¶16] In support of its probable-cause argument, the State cites Thomas and Curry v. State, 90 N.E.3d 677 (Ind.Ct.App. 2017), trans. denied. In Thomas, police officers pulled over a white minivan after receiving a credible tip that two men were traveling in the van to sell drugs. The men told officers they were visiting family but couldn't identify where in Indiana their family members lived. While the men were still in the van, officers ran a narcotics canine around the outside. When the canine alerted, the officers removed the men from the van and patted them down but found no drugs or weapons. After the driver consented to a search, the officers brought the canine inside the van, but it no longer alerted to the presence of narcotics. The officers searched the van but found no drugs. Thomas refused to consent to a strip search, so officers took him to the police station while they applied for a search warrant. While alone in an interview room, from which he was being monitored by video, Thomas took something out of his pocket and put it in his mouth. Officers entered the room, forced Thomas's mouth open, and retrieved a small baggie of heroin. Thomas was convicted of dealing in a narcotic drug.
[¶17] On appeal, the issue was whether probable cause to detain Thomas and transport him to the police station arose at any point during the traffic stop. The Court determined the officers had "knowledge of facts and circumstances which would warrant a person of reasonable caution to believe that Thomas was in possession of narcotics," including: (1) a reliable tip that the van was involved with illegal activities; (2) Thomas "seemed nervous" during the stop, "raising the specter of suspicion that criminal activity was afoot"; (3) neither of the men could identify where the family they were visiting lived; (4) the driver had no form of identification; and (5) "[f]inally, tipping the scale from reasonable suspicion into probable cause," the canine alerted to drugs while the men were inside the van but no longer alerted after they got out. Thomas, 81 N.E.3d at 627-28. The Court found "the sum of those facts" warranted "a reasonable person to believe at least one of the two occupants took the drugs with him when he exited the vehicle and likely still possessed narcotics." Id. at 628. The Court concluded that transporting Thomas to the police station and detaining him did not violate his Fourth Amendment rights because the officers "had already attained the requisite probable cause to arrest Thomas and could have conducted a search incident to arrest." Id.
[¶18] In Curry, the defendant exhibited nervousness and evasiveness during a traffic stop, so the officer who initiated the stop called a nearby canine unit for backup. While Curry was still inside, the officers ran the canine around the car, and the canine alerted. An officer informed Curry of the alert, and Curry began shaking. The officer helped Curry out of the car and patted him down, eventually discovering a bag of heroin on Curry's person. Examining Thomas, this Court "assume[d]" that "something more than a canine sniff is needed to establish probable cause for an arrest and a search incident to that arrest." 90 N.E.3d at 688. The Court concluded that the facts and circumstances known to the officers "would warrant a person of reasonable caution to believe that [Curry] was in possession of narcotics," highlighting that Curry exhibited suspicious behavior, the canine alerted on the vehicle, and Curry was the sole occupant of the vehicle at the time of the alert. Id.
[¶19] Here, the State contends that "[w]hen no drugs were found in the pouch or the vehicle, a reasonable person would suspect that the drugs Dino smelled had been removed from the pouch by Russell prior to pulling over, and that he had taken the drugs from the vehicle when he exited." Appellee's Br. p. 19. Considering the facts and circumstances known to Deputy Amis at the time, we agree with the State that he had probable cause to believe Russell had drugs on his person and thus could search him incident to arrest for drug possession. When Deputy Amis activated his emergency lights, Russell continued driving for a quarter to half mile despite passing several spots where he could've safely pulled over. As he was driving, Russell reached over into the passenger side multiple times, causing him to swerve within his lane. Once Russell had pulled over, Deputy Amis saw an unzipped pouch in the same area where Russell had been reaching. Russell was also shaking uncontrollably when he handed Deputy Amis his driver's license and the car's registration. After sniffing the pouch, Dino alerted to the odor of narcotics, but the deputies didn't find any narcotics when they searched the car. Taken together, these facts would warrant a person of reasonable caution to believe Russell was in possession of drugs. Accordingly, Deputy Amis had probable cause to search Russell's person incident to an arrest for drug possession.
[¶20] Affirmed.
Kenworthy, J., and Felix, J., concur.