State v. Washington

Pursuant to statutory authority,1 the State appeals from the trial court order granting the defendant’s motion to suppress evidence in a criminal case charging the defendant with possession of marijuana. Upon the granting of the defendant’s motion to suppress, the State dismissed the charges and brought this appeal. The Court of Appeals affirmed the trial court in a published opinion. State v. Washington, 875 N.E.2d 278 (Ind.Ct.App.2007). We granted transfer and now reverse the trial court.

The sole issue before this Court is whether, under both the Fourth Amendment to the U.S. Constitution and Article 1, § 11 of the Indiana Constitution, an officer, without reasonable suspicion, can *1203inquire as to possible further criminal activity, in this case drug possession, when a motorist is stopped for a traffic infraction.

The facts of this case are not in dispute. While driving a moped, the defendant was stopped by a police officer for repeatedly driving left of center and because the officer suspected that the defendant was under eighteen and not wearing goggles or a helmet as required by statute. Indiana Code § 9-21-11-13 provides that:

A person less than eighteen (18) years of age who operates or rides a motorized bicycle on a street or highway shall do the following:

(1) Wear protective headgear ... [.]

(2) Wear protective glasses, goggles, or a transparent face shield.

However, upon stopping the defendant, the officer ascertained that the defendant was over eighteen years of age, thus making the requirement for headgear and goggles inapplicable to the defendant. Because the defendant appeared nervous, the officer asked whether “he had any guns, drugs, or anything that may harm [him] on his person.” Tr. at 7. The defendant responded that he “had a couple dime bags on him.” Id. at 8. Understanding this reference to mean bags of marijuana, the officer then asked for permission to remove the bags fi'om the defendant’s pockets. The defendant consented, and the officer determined that the substance was indeed marijuana.

The defendant’s motion to suppress claimed violations of both the United States and Indiana constitutions. The chronological case summary reflects that the trial court granted the motion. Appellant’s App’x at 2. Neither party has provided us with a copy of the actual order granting the motion, and the record does not indicate whether the trial court made findings of fact or conclusions of law. We presume that the trial court found in the defendant’s favor on both state and federal constitutional grounds. The parties argue both issues on appeal.

In the appellate review of a trial court’s motion to suppress, the reviewing court determines whether the record discloses “substantial evidence of probative value that supports the trial court’s decision.” State v. Quirk, 842 N.E.2d 334, 340 (Ind.2006). We do not reweigh evidence. Id. The State, appealing from a negative judgment, must show that the trial court’s ruling on the suppression motion was contrary to law. State v. Estep, 753 N.E.2d 22, 24-25 (Ind.Ct.App.2001).

1. Federal Constitution Fourth Amendment

The State contends that the question asked by the officer was neither a search nor a seizure and thus did not violate the Fourth Amendment to the United States Constitution.2 The State argues that the defendant had a choice as to whether to answer the officer’s question or not, that the question did not extend the duration of the stop, that it was not unduly intrusive into the defendant’s privacy, and that it was not unreasonable.

The defendant responds that the traffic stop constituted a seizure, that the officer’s question was an improper interrogation lacking in reasonable, articulable suspicion of criminal activity, and that there was little risk to officer safety because the *1204defendant was completely visible sitting on an open moped rather than inside an enclosed car.

From our review of United States Supreme Court jurisprudence, we conclude that the officer’s conduct in this case does not violate the Fourth Amendment. During a lawful detention, police do not need a reasonable suspicion to ask questions of the detainee. In Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), the Court emphasized that it has “held repeatedly that mere police questioning does not constitute a seizure.” 544 U.S. at 101, 125 S.Ct. at 1471, 161 L.Ed.2d at 308, quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991). “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of the individual[.]” Id., quoting Bostick, 501 U.S. at 434-35, 111 S.Ct. at 2386, 115 L.Ed.2d at 398. An officer making a traffic stop can ask questions of a detained motorist, but the detainee is not obligated to respond, and “unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released.” Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984) (footnotes omitted).

Though Muehler provides guidance, it does not directly address whether police questions that are unrelated to the initial reason for a detention may constitute an unlawful seizure. This issue has been confronted, however, by several federal Circuit Courts of Appeals. Chief among these is the Seventh Circuit’s en banc decision in United States v. Childs. In Childs, the court took the case to expressly decide “whether questioning during the course of lawful custody must be related to the reason for that custody.” United States v. Childs, 277 F.3d 947, 949 (7th Cir.2002) (en banc).

In Childs, an officer of the Peoria (Illinois) Police Department stopped a car that he had stopped three days earlier in response to a hit-and-run accident in which the driver, Childs, was arrested on an outstanding warrant and a drug charge. The car at the time of the first stop had a cracked windshield, and the officer had instructed Childs to repair it. At the time of the second stop, the windshield had not been repaired, and the car was stopped for this reason alone. Childs, out on bail, was the passenger this time, and the officer began speaking with him while his partner spoke with the driver. Childs was not wearing his seatbelt in violation of Illinois law, and, as a passenger in the stopped vehicle, was under the control and direction of the officer until the officers’ safety could be secured. While one officer was running a license check on the driver, the officer previously familiar with Childs asked him a few questions:

[F]irst why Childs had not fixed the windshield (Childs replied that it was not his car), second whether he was carrying any marijuana at this time (Childs said no), and third whether he would consent to a search (Childs agreed).

Id. During the search, the officer found crack cocaine, which led to prosecution for possession with intent to distribute, and finally to a sentence of five years imprisonment. The Seventh Circuit panel held the search to be an unconstitutional seizure of Childs, but the en banc court disagreed, instead holding that

[B]ecause questions are neither searches nor seizures, police need not demonstrate justification for each inquiry. Questions asked during detention may affect the reasonableness of that detention (which is a seizure) to the extent *1205that they prolong custody, but questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable or require suppression of evidence found as a result of the answers.

Id. at 949. In its rationale, the Seventh Circuit persuasively reasoned that, unlike restrictions placed upon officers who have made a stop based on reasonable suspicion, the Fourth Amendment does not require that a person seized with probable cause be released “at the earliest moment that step can be accomplished,” and that “[qjuestions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention.” Id. at 953-54. Most other circuits agree. See United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir.2007) (holding that three brief questions relating to drug trafficking amongst other inquiries relating to a traffic stop did not constitute an unreasonable seizure); United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir.2006) (holding that questioning a suspect while his license was being checked did not unreasonably delay the detention and was thus permissible); United States v. Burton, 334 F.3d 514, 518-19 (6th Cir.2003) (holding that a handful of questions asked, including requesting a search of the defendant’s vehicle, was not “unusually intrusive or that asking them made this traffic stop any more coercive than a typical traffic stop”); but cf. United States v. Pruitt, 174 F.3d 1215, 1220-21 (11th Cir.1999) (holding that questioning incident to a traffic stop should only be directed to the purpose of the stop and that additional “fishing expedition” questions are impermissible and are a violation of Terry).

In the present case, a police officer observed the defendant driving a moped across the center line and conducted a traffic stop also to investigate the defendant’s possible failure to wear required safety equipment. The officer’s brief questioning as to whether the defendant had any weapons, drugs, or anything else that could harm the officer was not itself a search or seizure and thus was not prohibited by the Fourth Amendment. The defendant was not obligated to answer the questions, and his choice to do so and to disclose inculpatory information provided the basis for the officer’s further request for permission to search the defendant’s trouser pockets. The defendant’s appellate brief does not argue that the officer’s question constituted an excessive delay.

We conclude that the officer’s question to the defendant did not violate the Fourth Amendment.

2. Indiana Constitution, Art. I, § 11

The State acknowledges that the Indiana Constitution’s prohibition of unreasonable search and seizure, although almost identical in text to its federal counterpart, nevertheless requires a different analysis that focuses on the totality of the circumstances, but argues that under such test the officer’s conduct here was completely reasonable. The defendant urges that Section 11 should be interpreted to preclude such police conduct because of the important value of individual privacy.

Notwithstanding the textual similarity of Article 1, § 11 of the Indiana Constitution3 to that of the federal Fourth *1206Amendment, Section 11 is interpreted separately and independently from Fourth Amendment jurisprudence. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.2001). The purpose of this section is to protect those areas of life that Hoosiers consider private from unreasonable police activity. Quirk, 842 N.E.2d at 339-40. The Indiana Constitution may protect searches that the federal Constitution does not. State v. Moore, 796 N.E.2d 764, 767 (Ind.Ct.App.2003). Section 11 should be applied to protect people from unreasonable search and seizure. Broun v. State, 653 N.E.2d 77, 79 (Ind.1995). When police conduct is challenged as violating this section, the burden is on the State to show that the search was reasonable under the totality of the circumstances. See, e.g., Quirk, 842 N.E.2d at 340; State v. Bulington, 802 N.E.2d 435, 438 (Ind.2004). The determination of the reasonableness of a search and seizure under the Indiana Constitution 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 search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind.2005).

Applying the Litchfield factors, we note that the defendant was observed repeatedly driving a moped across the center line and operating it without the safety goggles required of drivers less than eighteen years of age. These facts establish a reasonable basis for the officer’s concern, suspicion, or knowledge that a traffic law violation may have occurred. In addition, the degree of police intrusion was slight. The officer merely asked the defendant a brief question, one that not only asked if he had drugs, but also if he had weapons or other items that may harm the officer. The defendant was under no obligation to answer that question, but his honest response indicating that he did indeed have marijuana in his pockets justified the officer’s request for the defendant’s consent to the officer’s removal of the contraband. As to the needs of law enforcement, the officer’s conduct in making the stop was appropriate to the enforcement of traffic laws and the statutory requirement for young moped drivers to wear protective goggles. And his question to the defendant was consistent with the officer’s concern for his own safety and law enforcement’s responsibilities to deter crime, to intercept criminal activity, and to apprehend its perpetrators.

Directing our attention to Baldwin v. Reagan, 715 N.E.2d 332 (Ind.1999), and Clark v. State, 804 N.E.2d 196 (Ind.Ct.App.2004), trans. not nought, the defendant argues that “[pjermitting officers to ask unfettered questions of Indiana citizens without any indication of wrongdoing would be an erosion of the Indiana Constitution’s legacy of protection of the individual.” Appellee’s Br. at 15. Both Baldwin and Clark involved application of the Indiana Seatbelt Enforcement Act, which includes a provision stating that “a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of’ the seat belt law. Baldwin, 715 N.E.2d at 339 n. 8.

Baldwin was not an appeal from a criminal conviction but rather from a declaratory judgment holding that the Seatbelt Enforcement Act violated Section 11. The parties challenging the statute claimed that it permitted law enforcement unbridled discretion to stop vehicles without probable cause, even where the officer had no reason to believe that the passengers *1207were not wearing restraints. This Court reversed and upheld the statute after narrowly construing it to require “that when a stop to determine seat belt law compliance is made, the police are strictly prohibited from determining anything else, even if other law would permit.” 715 N.E.2d at 339. In addition to reaching this holding, the Court explained that, applying principles of Indiana constitutional law, “a police officer may not stop a motorist in Indiana for a possible seat belt violation unless that officer reasonably suspects that the driver or a passenger in the vehicle is not wearing a seat belt as required by law.” Id. at 337. This language of Baldwin relates specifically to police conduct in a seatbelt enforcement traffic stop. But it does not generally prohibit police from making a brief inquiry following the conclusion of a traffic stop. Baldivin does not support the premise for which it is cited by the defendant.

In Clark, a police officer observed the defendant motorist to be driving without a seatbelt and then to put it on. The officer made a traffic stop, confirmed that the vehicle was registered, and issued a warning ticket. The officer then asked if the motorist had anything illegal in his car. After the motorist responded that he did not, the officer asked if he could “take a quick look” in the car. The motorist agreed, but noted that he was low on fuel, so the officer followed him to the gas station and there searched the car, finding marijuana in the glove box. The Court of Appeals, purporting to follow Baldwin, held that the officer was prohibited from seeking an additional consent to search “during and after the seatbelt stop, without independent, reasonable suspicion of another crime.” Clark, 804 N.E.2d at 201. The court added, “[t]he search at issue therefore violated Article One, Section Eleven of the Indiana Constitution.” Id. at 201-02. The result in Clark is consistent with the Seatbelt Enforcement Act’s express restriction that “a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of this chapter.” I.C. § 9-19-10-3 (repealed by P.L. 214-2007 § 10, effective July 1, 2007).4 To the extent that Clark holds that Section 11 or our decision in Baldwin generally prohibit police from questioning motorists or seeking consent to search following a terminated traffic stop, it is incorrect.

Arguing that Section 11 applies to prohibit the officer’s conduct in this case, the defendant cites our recent opinion in Quirk, 842 N.E.2d at 334. But the facts in the present case are distinguishable. In Quirk, a tractor-trailer driver, initially stopped and ticketed for driving with a faulty headlight, was told that he was free to go. The police then re-approached him and informed him that, while he was free to leave, “the truck would have to remain.” Id. at 339. The resulting additional detention lasted more than twenty minutes while the police obtained a drug-sniffing dog and used it to examine the exterior of the truck. This Court affirmed the trial court’s suppression of the resulting evidence because, under the totality of the circumstances, the detention of the driver “beyond the period necessary to issue a warning ticket and the subsequent search of his truck was unreasonable within the meaning of Article 1, Section 11.” Id. at 343. In Quirk, the issue was the reasonableness of the temporary seizure of the truck, not that of any police question put to the driver. Our holding in Quirk does not preclude the officer’s inquiry of the defendant in the present case.

*1208The officer’s question whether the defendant held contraband on his person, notwithstanding the absence of reasonable suspicion, was not unreasonable under the totality of the circumstances and did not violate Article 1, Section 11, of the Indiana Constitution.

Conclusion

We reverse the trial court order granting the defendant’s motion to suppress. This cause is remanded.