Octavius D. Alexander v. State of Indiana ( 2019 )

FILED
Oct 11 2019, 9:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Octavius D. Alexander, October 11, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-244
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Sean Persin, Judge
Appellee-Plaintiff Trial Court Cause No.
79C01-1707-F5-80
May, Judge.
[1] Octavius D. Alexander appeals his conviction of Level 5 felony operating a
vehicle with an alcohol concentration equivalent of 0.08 or more and with a
previous conviction for operating while intoxicated causing serious bodily
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injury. 1 He raises two issues on appeal, which we restate as whether the traffic
stop of Alexander violated either the Fourth Amendment of the United States
Constitution or Article I, Section 11 of the Indiana Constitution. We affirm. 2
Facts and Procedural History
[2] On May 19, 2017, at 2:00 a.m., Officer Grant Leroux was on patrol in
Lafayette, Indiana. Officer Leroux began following Alexander’s vehicle in the
normal course of traffic near the intersection of Earl Avenue and Kossuth
Street. Officer Leroux followed Alexander for about a mile before observing
Alexander’s vehicle come to a complete stop at the intersection of Kossuth
Street and Main Street. After stopping, Alexander signaled a right turn and
turned once the stoplight turned green. Officer Leroux then initiated a traffic
stop because Alexander did not signal his turn far enough in advance of the
intersection.
[3] While speaking with Alexander, Officer Leroux smelled alcohol on his breath
and called Officer Matthew Meeks for assistance. When Officer Meeks arrived,
he took over investigating whether Alexander was operating while intoxicated.
While Officer Meeks was investigating, Officer Leroux conducted a canine sniff
of the vehicle, and the canine did not detect the presence of any narcotics.
1
Ind. Code § 9-30-5-1; Ind. Code § 9-30-5-3(b)(2).
2
Alexander requested oral argument, which we denied by separate order on August 21, 2019.
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[4] Officer Meeks asked Alexander if he had been drinking, and Alexander
admitted having a few drinks. Alexander’s speech was slurred, his eyes were
bloodshot, and his breath smelled of alcohol. Officer Meeks administered three
field sobriety tests. Alexander failed the horizontal gaze nystagmus test and the
one-legged stand test but passed the walk and turn test. Alexander consented to
a chemical test, and Officer Meeks transported him to a hospital where a nurse
drew his blood. The blood draw revealed Alexander’s blood alcohol
concentration to be 0.15.
[5] The State charged Alexander with Level 5 felony operating while intoxicated
because he had a previous conviction for operating while intoxicated causing
serious bodily injury in 2007. 3 The State also charged him with operating a
vehicle with an alcohol concentration equivalent to .15 or more as a Class A
misdemeanor, 4 operating a vehicle while intoxicated as a Class C
misdemeanor, 5 operating a vehicle with a schedule I or II controlled substance
3
The abstract lists the offense as “9-30-5-1(b)/F5: Operating a Vehicle with an ACE of .15 or More
where def. has a prior conviction fo [sic]” (App. Vol. II at 65.) Also, the bench trial order lists the
requisite alcohol concentration equivalent as .15. (Id. at 55.) However, the listing of the requisite
alcohol concentration equivalent appears to be a scrivener’s error. The requisite alcohol concentration
equivalent for operating a vehicle with a prior conviction for operating while intoxicated causing serious
bodily injury is .08, not .15. Ind. Code § 9-30-5-1; Ind. Code § 9-30-5-3(b)(2). When a case is tried to
the bench, we assume the trial court knows and properly applies the law to the relevant facts of the case.
Parks v. State, 113 N.E.3d 269, 274 (Ind. Ct. App. 2018). The trial court found Alexander’s alcohol
concentration was above .08.
4
Ind. Code § 9-30-5-1.
5
Ind. Code § 9-30-5-2.
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in one’s body as a Class C misdemeanor, 6 and Level 5 felony operating a
vehicle with a schedule I or II controlled substance in one’s body. 7
[6] On April 19, 2018, Alexander filed a motion to suppress all observations made
by the arresting officers, the statements made by Alexander after the stop, and
Alexander’s blood alcohol content. In support, Alexander alleged Officer
Leroux did not have reasonable suspicion of a crime to initiate the traffic stop
and the stop was unreasonable. The trial court held a hearing on June 5, 2018,
and denied Alexander’s motion.
[7] The court held a bench trial on November 27, 2018, and convicted Alexander
of operating a vehicle with an alcohol concentration equivalent of 0.08 or more
when the defendant has a prior conviction of operating while intoxicated
causing serious bodily injury. 8 Alexander raised a continuing objection at trial
based on the arguments presented in his motion to suppress. On January 11,
2019, the court imposed a four-year sentence, with one year executed in the
Indiana Department of Correction, two years to be served on community
corrections, and one year suspended to probation.
6
Ind. Code § 9-30-5-1.
7
Ind. Code § 9-30-5-1; Ind. Code § 9-30-5-3(b)(2).
8
With regard to the remaining counts, the trial court either entered a verdict of not guilty or merged the
count with the count of conviction due to double jeopardy concerns.
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Discussion and Decision
[8] Although Alexander filed a motion to suppress the evidence obtained during
the traffic stop, his case proceeded to trial and he renewed his objection at trial.
Thus, his appeal stems from the admission at trial of the evidence obtained
during the traffic stop. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). The
trial court has broad discretion in ruling on the admission of evidence, and we
review for an abuse of discretion. Id. “We will reverse a trial court’s decision
to admit evidence only if the decision was clearly against the logic and effect of
the facts and circumstances and the error affects the defendant’s substantial
rights.” Wright v. State, 108 N.E.3d 307, 313 (Ind. 2018) (internal quotation
marks omitted). Nevertheless, “the ultimate determination of the
constitutionality of a search or seizure is a question of law that we consider de
novo.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
Fourth Amendment
[9] The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. A traffic stop is a seizure that must comply
with the Fourth Amendment. McLain v. State, 963 N.E.2d 662, 666 (Ind. Ct.
App. 2012), trans. denied. Nevertheless, it is “well settled that police officers
may stop a vehicle when they observe minor traffic violations.” Reinhart v.
State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).
[10] At issue in this case violation of a traffic control statute that provides: “A signal
of intention to turn right or left shall be given continuously during not less than
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the last two hundred (200) feet traveled by a vehicle before turning or changing
lanes.” Ind. Code § 9-21-8-25. Alexander does not dispute that he failed to
signal his intent to turn until after he stopped at the intersection of Kossuth
Street and Main Street. Accordingly, Alexander did not signal his turn at least
200 feet in advance of that turn as required by Section 9-21-8-25, which
prompted Officer Leroux to initiate the traffic stop.
[11] Despite his failure to properly signal, Alexander argues the stop was
unconstitutional because the State failed to show his compliance with the
statute was even possible. Alexander’s argument relies on Rhodes v. State, 950
N.E.2d 1261 (Ind. Ct. App. 2011). In Rhodes, a tow truck driver notified police
that Rhodes, who was driving a vehicle, might be intoxicated. Id. at 1263. The
officer followed Rhodes, observed Rhodes fail to use his turn signal, and pulled
him over. Id. at 1264. Rhodes moved to suppress the evidence gathered during
the traffic stop, and the trial court granted the motion. Id. The trial court
observed that there might have been an intervening street between where
Rhodes was to begin signaling and where Rhodes intended to turn, which could
potentially confuse other drivers. Id. The trial court also highlighted Rhodes’
testimony that he executed the turn after the officer activated the emergency
lights. Id. We reviewed the trial court’s decision to ensure it was supported by
substantial evidence of probative value, and we drew all reasonable inferences
in favor of the trial court’s decision. Id. at 1264-65. We observed that the
officer testified Rhodes had his turn signal on for about 150 feet prior to
initiating his turn and the record did not reflect whether there had been at least
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200 feet between where Rhodes began traveling on the street and where he
initiated his turn. Id. at 1265. We affirmed the trial court’s grant of the motion
to suppress and explained:
[T]he State failed to show that compliance with the statute was
possible under the circumstances. In addition, if the trial court
credited Rhodes’s testimony, once the officer turned on his
emergency lights, Rhodes was required to pull over immediately.
. .Thus, we cannot say that the trial court erred by concluding
that Rhodes was not properly stopped for a traffic violation.
Id.[12] In contrast, the State contends Officer Leroux’s stop of Alexander was
reasonable pursuant to Peak v. State, 26 N.E.3d 1010 (Ind. Ct. App. 2015). Peak
drove away from a house that was suspected of being used for drug activity, and
an officer followed him. Id. at 1012. Peak stopped at a red light, activated his
right turn signal, then turned right. Id. The officer pulled Peak over because he
did not signal his turn sufficiently in advance. Id. The officer searched Peak
and found marijuana on his person. Id. at 1013. Peak did not contest his
failure to signal 200 feet before turning right. Id. at 1015. We observed that
“[f]ailure to signal within the required distance is objective evidence of failure to
comply with the statue.” Id. Consequently, Peak’s failure to signal his turn
gave the officer reasonable suspicion to initiate the traffic stop. Id. at 1016.
[13] Given the facts and procedural posture of this case, we find Peak more
analogous. In Rhodes, there were evidentiary disputes about whether the officer
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activated his lights before Rhodes signaled his turn, whether the officer could
have pulled Rhodes over for failing to signal his turn sufficiently in advance,
and whether Rhodes had entered the roadway more than 200 feet in advance of
his turn. Here, as in Peak, there is no evidentiary dispute about whether
Alexander failed to signal his turn sufficiently in advance, 9 and thus the issue
before us is a matter of law that we review de novo. As a matter of law, Officer
Leroux was justified in initiating a traffic stop. See Love v. State, 741 N.E.2d
789, 791 (Ind. Ct. App. 2001) (holding officer was clearly justified in stopping
vehicle to investigate traffic infraction).
Article I, Section 11 of Indiana Constitution
[14] Article 1, Section 11 of the Indiana Constitution states:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
We evaluate the reasonableness of a stop and seizure under the Indiana
Constitution by looking at the totality of the circumstances and balancing: “1)
9
We also observe that the intersection of Earl Avenue and Kossuth Street is several blocks away from the
intersection of Kossuth Street and Main Street. Google Maps, S. Earl Ave, Lafayette, IN,
https://www.google.com/maps/place/S+Earl+Ave,+Lafayette,+IN (last visited September 12, 2019).
Therefore, it was possible for Alexander to have initiated his turn signal at a distance greater than 200 feet in
advance of his turn.
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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.”
Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).
[15] Alexander contends the degree of concern and suspicion was minimal because
no evidence suggested Alexander was driving under the influence prior to
Officer Leroux initiating the traffic stop. Yet, Officer Leroux did observe
Alexander commit a traffic violation and, thus, was aware of an illegal act
when he stopped the vehicle. Alexander argues the stop was unnecessarily
intrusive because it included a canine sniff, but he does not point to any
evidence in the record to demonstrate the canine sniff prolonged the stop,
impeded his freedom of movement, or involved entering the vehicle. See State v.
Gibson, 886 N.E.2d 639, 643 (Ind. Ct. App. 2008) (holding canine sniff of the
exterior of defendant’s vehicle did not violate either the Fourth Amendment or
the Indiana Constitution). Lastly, Alexander argues the extent of law
enforcement need in this case was minimal because there were no other cars or
pedestrians around at the time, he signaled his turn for several seconds while
stopped before turning, and there was no indication Alexander was driving
under the influence before he was stopped.
[16] However, the enforceability of our traffic laws is not dependent upon such
situation-specific factors. Police officers simply have authority to initiate traffic
stops in order to enforce the traffic laws or to investigate a reasonable suspicion
that a driver might be under the influence. Because the Litchfield factors weigh
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in favor of the State, Officer Leroux’s stop of Alexander did not violate Article
1, Section 11 of the Indiana Constitution. See Johnson v. State, 992 N.E.2d 955,
960 (Ind. Ct. App. 2013) (holding traffic stop of individual for suspected
window tint violation and subsequent discovery of marijuana did not violate
either the United States Constitution or the Indiana Constitution), trans. denied.
Conclusion
[17] Alexander failed to properly signal before turning. Therefore, law enforcement
had reason to initiate a traffic stop, and the ensuing investigation of Alexander’s
possible intoxication did not violate Alexander’s rights under the Fourth
Amendment to the United States Constitution or Article 1, Section 11 of the
Indiana Constitution. Accordingly, the trial court did not abuse its discretion
when it admitted that evidence. We affirm the trial court.
[18] Affirmed.
Najam, J., and Bailey, J., concur.
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