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IN THE Court of Appeals of Indiana FILED Todd E. McGraw, Sep 28 2026, 10:04 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v. State of Indiana, Appellee-Plaintiff September 28, 2026 Court of Appeals Case No. 25A-CR-2932 Appeal from the Tippecanoe Superior Court The Honorable Michael A. Morrissey, Judge Trial Court Cause No. 79D06-2212-CM-3210 Opinion by Chief Judge Tavitas Judges Bradford and Felix concur. Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 1 of 11 Tavitas, Chief Judge. Case Summary [1] Todd McGraw appeals his conviction for operating a vehicle with an alcohol concentration equivalent (“ACE”) of .15 or more, a Class A misdemeanor. McGraw argues that the trial court erred by denying his motion to suppress because the traffic stop violated the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We disagree and affirm. Issue [2] McGraw raises one issue, which we restate as whether law enforcement had reasonable suspicion to conduct a traffic stop of McGraw’s vehicle. Facts [3] On November 23, 2022, shortly before 11:00 p.m., Sergeant Ben Beutler of the Tippecanoe County Sheriff’s Department was doing paperwork in his patrol car on property owned by Purdue University on South River Road in West Lafayette. Sergeant Beutler observed a vehicle parked across from his location. The vehicle’s headlights and interior dome lights were turning on and off, and Sergeant Beutler could hear car doors opening and closing. Sergeant Beutler initially believed that the vehicle was parked on property owned by Evonik, which is used for a pump station. According to Sergeant Beutler, it was unusual for a vehicle to be parked in that location. He was concerned about trespassing and radioed dispatch to contact Evonik. Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 2 of 11 [4] Before he heard back from Evonik, Sergeant Beutler decided to get out of his patrol car and walk down to the vehicle’s location. By the time Sergeant Beutler got out of his car, the vehicle’s headlights turned on, and it pulled out onto South River Road. Sergeant Beutler returned to his patrol car and followed the vehicle, which soon made a right turn at a stoplight onto U.S. 231 from South River Road. A short distance later, while the vehicle was on the bridge, the vehicle’s passenger-side tires touched the fog line and then moved back into the travel lane. A few seconds later, the vehicle’s passenger-side tires completely crossed the fog line for a short distance and then moved back into the travel lane. The road during this time was straight and level. Sergeant Beutler then initiated a traffic stop of the vehicle. [5] McGraw was driving the vehicle. His speech was slurred, his eyes were watery, his manual dexterity was poor, and he smelled of alcohol. McGraw was taken to the hospital, and a blood test revealed that McGraw’s ACE was 0.228. Sergeant Beutler later discovered that McGraw was not, in fact, parked on Evonik’s property; he was parked on a neighboring driveway. [6] On December 12, 2022, the State charged McGraw with: Count I, operating a vehicle while intoxicated, a Class C misdemeanor, and Count II, operating a vehicle with an ACE of .15 or more, a Class A misdemeanor. [7] Prior to trial, McGraw filed a motion to suppress. McGraw argued that Sergeant Beutler did not have reasonable suspicion or probable cause to initiate a traffic stop of McGraw and that the stop violated McGraw’s rights under the Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 3 of 11 Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. After a hearing, the trial court denied McGraw’s motion to suppress and found: While Sgt. Beutler’s initial observation of Defendant on private property does not constitute reasonable [suspicion] to make a traffic stop, his observation of a vehicle driving onto private property, opening and closing doors, and dome lights going off and on, gave rise to a suspicion that some form of illegal activity may be afoot – causing Sgt. Beutler to follow the subject vehicle as it departed. While the officer did not observe any erratic driving as [he] followed Defendant along South River Road, stop at its intersection with SR 231, and turn southerly onto SR 231, it is at this time that the officer did observe additional facts that warranted the stop. Namely, Defendant’s vehicle touched the fog line on one occasion and Sgt. Beutler subsequently observed Defendant’s vehicle actually cross the fog line, all on a straight stretch of roadway. The Court finds the totality of the circumstances, including Sgt. Beutler’s initial observations of Defendant’s vehicle and Defendant’s vehicle crossing or touching the fog line on two subsequent occasions on a straight portion of roadway, do constitute reasonable [suspicion] warranting the traffic stop herein. Defendant’s Motion to Suppress is therefore denied. Appellant’s App. Vol. II p. 102. McGraw filed a motion for certification for interlocutory appeal, which the trial court granted. Our motions panel, however, denied McGraw’s motion for interlocutory appeal. [8] A bench trial was held on October 30, 2025. Bruce Enz testified as an expert on McGraw’s behalf. Enz testified that three anomalies existed on the bridge that McGraw traveled across—a seam, an expansion joint, and a dip. Enz opined Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 4 of 11 that the road conditions were “a bigger cause” of McGraw’s touching or crossing the fog line than McGraw’s ACE. Tr. Vol. II p. 158. [9] The trial court found McGraw guilty of Count II, operating a vehicle with an ACE of .15 or more, a Class A misdemeanor, and not guilty of Count I, operating a vehicle while intoxicated, a Class C misdemeanor. The trial court sentenced McGraw to 365 days with 185 days suspended to probation. The trial court recommended that the remaining 180 days be served on home detention. If McGraw was rejected by the program, the 180 days were to be served in jail. McGraw now appeals. Discussion and Decision [10] McGraw argues that Sergeant Beutler did not have reasonable suspicion to conduct a traffic stop of McGraw’s vehicle and challenges the admission of evidence discovered as a result of Sergeant Beutler’s traffic stop. We review decisions on the admissibility of evidence for an abuse of discretion. Ramos- Osario v. State, 280 N.E.3d 784, 789 (Ind. 2026). We will reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018). But a challenge that impugns the constitutionality of the search or seizure of the evidence raises a question of law that we consider de novo. Ramos-Osario, 280 N.E.3d at 789. We can “affirm the trial court’s decision on any basis supported by the record.” Id. [11] Moreover, 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 Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 5 of 11 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 reviewing suppression issues, we can consider evidence from both the suppression hearing and trial. Ramos- Osario, 280 N.E.3d at 792. A. Fourth Amendment [12] The Fourth Amendment permits officers to conduct a Terry stop, under which officers may “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.” Ramos-Osario, 280 N.E.3d at 790 (quoting Robinson, 5 N.E.3d at 367). “Reasonable suspicion exists if the stopping officer can ‘articulate some facts that provide a particularized and objective basis’ for suspecting criminal activity has occurred.” Id. (quoting Marshall v. State, 117 N.E.3d 1254, 1259 (Ind. 2019)). “[T]he reasonable-suspicion ‘standard takes into account the totality of the circumstances—the whole picture.’” Marshall, 117 N.E.3d at 1261 (quoting Navarette v. California, 572 U.S. 393, 397 (2014)). [13] McGraw argues that the traffic stop was unsupported by reasonable suspicion. McGraw argues: (1) Sergeant Beutler’s belief that McGraw was trespassing was “nothing more than an unverified hunch” and Sergeant Beutler was, in fact, mistaken; (2) Sergeant Beutler did not notice the first swerve onto the fog line until he later reviewed the video and, thus, this touching of the fog line cannot form the basis for reasonable suspicion; and (3) the second crossing of the fog Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 6 of 11 line cannot form the basis for reasonable suspicion because McGraw did not commit a traffic violation and “severe road conditions” provide an explanation for his “single, isolated fog line contact.” Appellant’s Br. pp. 15, 25. [14] Our Supreme Court addressed a similar issue in Robinson, 5 N.E.3d 362. There, a deputy initiated a traffic stop of a vehicle after witnessing the vehicle “drive off the right side . . . of the road, twice.” Robinson, 5 N.E.3d at 364. The trial court reviewed the dash camera video and concluded that the vehicle veered onto the fog line on two occasions. The trial court found that the deputy had reasonable suspicion for the traffic stop because “the act of weaving onto the fog line, while not itself an illegal act, did give a trained police officer justification to stop and inquire further as to the driver’s condition.” Id. On appeal, our Supreme Court agreed. [15] The Court noted: “[W]e do not believe the Fourth Amendment requires police ‘to grant drunk drivers one free swerve before they can legally be pulled over.’” Id. at 368 (quoting Virginia v. Harris, 558 U.S. 978 (2009) (Roberts, C.J., dissenting from denial of certiorari)). “Even if it did, Robinson swerved twice on a relatively straight, flat roadway. Although such movement could have been attributable to driver distraction or some other more innocuous cause, Terry does not require absolute certainty of illegal activity, but rather reasonable suspicion.” Id. The Court found that the deputy had reasonable suspicion that the driver was impaired and that the stop did not violate the Fourth Amendment. Id. Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 7 of 11 [16] Even setting aside Sergeant Beutler’s mistaken impression that McGraw was trespassing, we conclude that Sergeant Beutler had reasonable suspicion that McGraw was impaired, and the traffic stop, therefore, did not violate the Fourth Amendment. Regarding the first touch of the fog line, McGraw misinterprets Sergeant Beutler’s testimony at the trial. Sergeant Beutler testified at the trial that he observed the vehicle touch the fog line and, a short time later, cross the fog line. Sergeant Beutler did not mention the first touch of the fog line in his police report, but he did not deny seeing it. In re-cross examination of Sergeant Beutler at the suppression hearing, the following discussion occurred regarding the first fog line touch: Q But more importantly, that wasn’t a basis for your stop. You didn’t discover that until you reviewed the video later, correct? A No. Tr. Vol. II p. 56. It is unclear whether Sergeant Beutler’s “no” response meant the first touch was not a basis for the stop or whether it was simply a response to defense counsel’s “correct?” Id. McGraw’s contention that Sergeant Beutler did not see the first fog line touch is simply not supported by the record presented to us. Although Sergeant Beutler did not mention the first fog line touch in his police report, our Supreme Court held in Marshall that the officer was not required to document the defendant’s speed in a report to establish reasonable suspicion. 117 N.E.3d at 1260-61. The first fog line touch can be part of the totality of the circumstances supporting reasonable suspicion even though it was not included in the police report. Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 8 of 11 [17] Sergeant Beutler observed McGraw’s vehicle swerve and touch the fog line. A short distance later, McGraw’s vehicle swerved again and crossed the fog line. McGraw’s contention that the second swerve was caused by “severe road conditions” rather than his intoxication is merely a request that we reweigh the evidence, which we cannot do. Appellant’s Br. p. 25. Under the totality of the circumstances, Sergeant Beutler had reasonable suspicion to believe that McGraw was impaired. McGraw’s Fourth Amendment rights were not violated. 1 B. Article 1, Section 11 of the Indiana Constitution [18] McGraw also argues that his rights under Article 1, Section 11 of the Indiana Constitution were violated. “Although its text mirrors the federal Fourth Amendment, we interpret Article 1, § 11 of our Indiana Constitution separately and independently.” Robinson, 5 N.E.3d at 368. When a defendant raises a claim under Article 1, Section 11, the State must show the police conduct was reasonable under the totality of the circumstances. Id. “We consider three factors when evaluating reasonableness: ‘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 1 Even if we do not consider the first fog line touch, our Supreme Court noted in Robinson that the Fourth Amendment does not require police “to grant drunk drivers one free swerve before they can legally be pulled over.” 5 N.E.3d at 368. Once McGraw’s vehicle crossed the fog line, Sergeant Beutler had reasonable suspicion to believe that McGraw was impaired. Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 9 of 11 extent of law enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)). [19] Although McGraw mentioned an Indiana Constitutional claim under Article 1, Section 11 in his Appellant’s Brief, he did not engage in an actual analysis of the three factors until his Reply Brief. An argument raised for the first time in a reply brief is waived. Dunn v. State, 202 N.E.3d 1158, 1165 n.3 (Ind. Ct. App. 2023), trans. denied. Accordingly, the issue is waived. [20] Waiver notwithstanding, McGraw’s claim under Article 1, Section 11 of the Indiana Constitution fails. Sergeant Beutler observed McGraw’s vehicle touch the fog line and, a short distance later, completely cross the fog line. Thus, Sergeant Beutler had a reasonable suspicion that McGraw was impaired and that a violation was occurring. As in Robinson, “[t]he initial intrusion—a Terry stop—was relatively minor.” 5 N.E.3d at 368. Accordingly, the degree of intrusion was minor. Finally, the extent of law enforcement needs was high. Law enforcement has a strong interest in preventing drunk driving accidents, and “‘police should have every legitimate tool at their disposal for getting drunk drivers off the road.’” Id. (quoting Harris, 558 U.S. at 978 (Roberts, C.J., dissenting from denial of certiorari)). Under the totality of the circumstances, we conclude that Sergeant Beutler’s conduct was reasonable, and the stop did not violate Article 1, Section 11 of our Indiana Constitution. 2 2 McGraw also argues that Sergeant Beutler’s stop of his vehicle was pretextual. “Pretextual stops are not, per se, unreasonable under the Indiana Constitution.” Turner v. State, 862 N.E.2d 695, 699 (Ind. Ct. App. Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 10 of 11 Conclusion [21] Sergeant Beutler had reasonable suspicion to initiate a traffic stop of McGraw’s vehicle. The traffic stop, therefore, did not violate the Fourth Amendment or Article 1, Section 11 of the Indiana Constitution, and the trial court properly admitted evidence obtained as a result of the traffic stop. We affirm. [22] Affirmed. Bradford, J., and Felix, J., concur. ATTORNEYS FOR APPELLANT Alexander N. Moseley Adrian J. Deneen Dixon & Moseley Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daniel H. Frohman Deputy Attorney General Indianapolis, Indiana 2007). “If there is an objectively justifiable reason [for a traffic stop], then the stop is valid whether or not the police officer would have otherwise made the stop but for ulterior suspicions or motives.” Id. at 699-700. Sergeant Beutler had an objectively justifiable reason for stopping McGraw’s vehicle. Accordingly, McGraw’s argument fails. Court of Appeals of Indiana | Opinion 25A-CR-2932 | September 28, 2026 Page 11 of 11