State of Indiana v. Shannon Christine Covey (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 30 2020, 10:16 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Matthew J. Lorenzo
Attorney General of Indiana Lorenzo Bevers Braman &
Connell, LLP
Angela N. Sanchez
Seymour, Indiana
Assistant Section Chief, Criminal
Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, November 30, 2020
Appellant-Plaintiff, Court of Appeals Case No.
20A-CR-950
v. Appeal from the
Jackson Circuit Court
Shannon Christine Covey, The Honorable
Appellee-Defendant. Chris D. Monroe, Senior Judge
Trial Court Cause No.
36C01-1910-CM-1151
Kirsch, Judge.
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[1] After being charged with operating a vehicle while intoxicated endangering a
person,1 a Class A misdemeanor, and operating a vehicle with a blood alcohol
content of .08 or more,2 a Class C misdemeanor, Shannon Christine Covey
(“Covey”) filed a motion to suppress evidence obtained during the traffic stop.
The trial court granted the motion. The State appeals this ruling and raises
three issues. We address two of those issues,3 which we restate as:
I. Whether Covey’s traffic infraction provided sufficient grounds
to stop Covey under both the federal and state constitutions;
II. Whether the officer who stopped Covey entrapped her into
committing the infraction.
[2] We reverse and remand for further proceedings.
Facts and Procedural History
[3] At approximately 12:11 a.m. on October 24, 2019, Covey was leaving a
Seymour, Indiana bar called “The Rocks” (“the bar”), where she had attended
a darts tournament. Tr. Vol. 2 at 46. Covey had been drinking earlier that
evening but stopped drinking three hours before she left the bar. Id. at 52.
Indiana State Police Trooper Stephen Stoneking (“Trooper Stoneking”) pulled
1
See Ind. Code § 9-30-5-2(a), (b).
2
See Ind. Code § 9-30-5-1(a).
3
We chose to not address the State’s argument that the officer had a legal basis to stop Covey because he
observed signs that she was driving while intoxicated. The State’s argument on that issue asks us to reweigh
the evidence, which we may not do. See State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind. 2011).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-950 | November 30, 2020 Page 2 of 13
out behind Covey as she was waiting in the left turn lane of an intersection in
Seymour. Id. at 8, 11.
[4] As Trooper Stoneking followed Covey, he believed she exhibited signs of
intoxication. Id. at 10, 18, 31, 34-36, 44. Trooper Stoneking followed Covey
three miles through Seymour. Id. at 51. Covey later testified that Trooper
Stoneking “followed me the whole way on my bumper,” which made her
nervous. Id. at 48, 51. Covey switched lanes because she believed Trooper
Stoneking was going to pull her over for being in the passing lane. Id. at 54.
Covey signaled a lane change to move from the left lane to the right lane. Id. at
50-51. When Trooper Stoneking determined that Covey made the lane change
without signaling for at least 200 feet before changing lanes, he initiated the
traffic stop. Id. at 21, 51. After the traffic stop, Covey tested as having a blood
alcohol level of .11. Id. at 54.
[5] On October 24, 2019, the State charged Covey with Class A misdemeanor
operating a vehicle while intoxicated endangering a person and Class C
misdemeanor operating a vehicle with a blood alcohol content of .08 or more.
Appellant’s App. Vol. 2 at 8. Covey filed a motion to suppress any evidence
collected during the traffic stop, and the trial court heard the motion on
February 26, 2020. Id. at 27-28; Tr. Vol. 2 at 1.
[6] At the hearing, Covey testified that she had noticed Trooper Stoneking in his
marked police vehicle as soon as he got behind her near the bar. Tr. Vol. 2 at
47. She testified that Trooper Stoneking “followed me the whole way on my
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bumper,” which made her nervous. Id. at 48, 51. During cross-examination,
Covey testified as follows about the distance she travelled after she activated her
turn signal before switching lanes:
Q. Okay. Now, do you recall that signal that you made before
you changed lanes?
A. Yes.
Q. Do you recall how far you were before the point of crossing
the lane change that you made the signal?
A. No. I just turned on my signal and was getting over.
Q. So you flipped on the signal right before you changed lanes?
A. Yes. I flipped it on and moved over. I’m not sure how long it
was on for.
Q. So you did not turn it on, travel two hundred (200) feet and
then change lanes. Right?
A. No.
Id. at 53.
[7] During her closing argument, Covey’s attorney addressed whether Covey had
travelled at least 200 feet with her turn signal on before she changed lanes:
“She signals to get over, she flips her signal on and gets over. Did she do it
exactly two hundred (200) feet? She testifies, ‘I don’t think so.’” Id. at 55-56.
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Covey also argued that Trooper Stoneking had entrapped her into committing
a traffic infraction: “. . . I argue to the Court that following someone so closely
to make them signal to get out of your way and then saying they didn’t signal
enough is entrapment.” Id. at 57.
[8] On March 25, 2020, the trial court granted Covey’s motion to suppress without
oral or written explanation. Appellant’s App. Vol. 2 at 6. The State now appeals.
We will provide additional facts as necessary.
Discussion and Decision
[9] Pursuant to Indiana Code section 35-38-4-2(5), the State appeals from an order
granting a motion to suppress evidence that effectively precludes further
prosecution. When the State appeals from a negative judgment, as here, it must
show that the trial court’s ruling on the suppression motion was contrary to
law. State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind. 2011). In reviewing such a
ruling, we determine whether the record discloses substantial evidence of
probative value that supports the trial court’s decision. Id. We do not reweigh
the evidence but consider conflicting evidence most favorable to the trial court's
ruling. Id. We review the trial court’s legal conclusions de novo. State v.
Brown, 70 N.E.3d 331, 335 (Ind. 2017).
I. Traffic Infraction as Basis for Stop
[10] The State first argues that under the Fourth Amendment to the United States
Constitution, Trooper Stoneking had legal authority to stop Covey because the
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evidence was undisputed that Covey committed a traffic infraction. This, the
State contends, makes the trial court’s ruling contrary to law.
[11] A traffic stop is permissible when an officer has reasonable suspicion that a
traffic law has been violated. Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013).
“Because a traffic stop is a seizure under the Fourth Amendment, police may
not initiate a stop for any conceivable reason, but must possess at least
reasonable suspicion that a traffic law has been violated or that other criminal
activity is taking place.” Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009).
We often call these encounters Terry Stops, where an officer 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.’” [Robinson v. State, 5
N.E.3d 362, 367 (Ind. 2014)] (quoting United States v. Sokolow,
490 U.S. 1, 7 . . . (1989)). Traffic stops typically fall into this
Terry Stop category, and, therefore, must be based upon
reasonable suspicion. Meredith, 906 N.E.2d at 869 (citing Whren
v. United States, 517 U.S. 806, 809-10 . . . (1996)).
Marshall v. State, 117 N.E.3d 1254, 1259 (Ind. 2019). When a police officer
believes in good faith that a person has committed a traffic infraction, the
officer may stop that person. Ind. Code § 34-28-5-3(a). We review a trial
court's determination regarding reasonable suspicion de novo. Burkes v. State,
842 N.E.2d 426, 430 (Ind. Ct. App. 2006).
[12] “A signal of intention to turn right or left shall be given continuously during not
less than the last two hundred (200) feet traveled by a vehicle before turning or
changing lanes.” Ind. Code § 9-21-8-25 (emphasis added). Here, Trooper
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Stoneking observed Covey activate her turn signal and change lanes before she
had travelled 200 feet with her turn signal on. Tr. Vol. 2 at 50-51. Trooper
Stoneking testified that Covey’s turn signal flashed only once while she changed
lanes. Id. at 40.
[13] Implicit in the State’s argument is the contention that the evidence was
undisputed that Covey did not drive for the statutorily required distance with
her turn signal on before changing lanes. Covey disagrees that the evidence was
undisputed, pointing to the following question by the deputy prosecutor during
cross examination and her response:
Q. So you did not turn [your turn signal] on, travel two hundred
(200) feet and then change lanes. Right?
A. No.
Tr. Vol. 2 at 53. Covey interprets this exchange as follows: “Covey clearly
answered in the negative to the prosecutor’s question that his assertion was
correct.” Appellee Br. at 12. In other words, Covey appears to argue that her
response of “No” to the prosecutor’s question was the equivalent of responding,
“No, that is not true,” or “No, it’s not true that I did not travel at least 200 feet
with my turn signal on before changing lanes.”
[14] The State responds that interpreting this testimony within its broader context
established that Covey was, in fact, admitting that she did not travel 200 feet
with her turn signal on before changing lanes. The State first refers to the
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above-recited testimony but includes testimony immediately preceding the
exchange cited by Covey:
Q. Okay. Now, do you recall that signal that you made before
you changed lanes?
A. Yes.
Q. Do you recall how far you were before the point of crossing
the lane change that you made the signal?
A. No. I just turned on my signal and was getting over.
Q. So you flipped on the signal right before you changed lanes?
A. Yes. I flipped it on and moved over. I’m not sure how long
it was on for.
Q. So you did not turn it on, travel two hundred (200) feet and
then change lanes. Right?
A. No.
Tr. Vol. 2 at 53. The State also refers to Covey’s closing argument, directing us
to the following statement made by Covey’s attorney: “She signals to get over,
she flips her signal on and gets over. Did she do it exactly two hundred (200)
feet? She testifies, ‘I don’t think so.’” Id. at 56. This broader context, the State
argues, leaves only one reasonable interpretation of Covey’s testimony: she
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acknowledged she did not drive with her turn signal on for at least 200 feet
before changing lanes.
[15] We agree with the State’s interpretation of Covey’s testimony. Therefore, it
was undisputed that Covey committed a traffic infraction. This gave Trooper
Stoneking the right to stop Covey. Sanders, 989 N.E.2d at 335; Ind. Code § 34-
28-5-3(a); Ind. Code § 9-21-8-25. Therefore, under a Fourth Amendment
analysis, the trial court’s granting of Covey’s motion to suppress was contrary
to law. Renzulli, 958 N.E.2d at 1146.
[16] The State next argues that granting Covey’s motion to suppress pursuant to
Article 1, section 11 of the Indiana Constitution was also erroneous as a matter
of law because Trooper Stoneking’s conduct was reasonable. Even though
Article 1, section 11 uses the same language as the Fourth Amendment, we
apply a separate test to assess the legality of police conduct under the Indiana
Constitution. Hardin v. State, 148 N.E.3d 932, 934 (Ind. 2020). The
reasonableness of police conduct under the Indiana Constitution is reviewed
under the totality of the circumstances. Id. The principal considerations
balance “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.”
State v. Washington, 898 N.E.2d 1200, 1206 (Ind. 2008).
[17] The State argues, as it did in its argument under the Fourth Amendment, that
the undisputed evidence showed that Covey failed to have her turn signal on for
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at least 200 feet before changing lanes. We agree with the State’s
characterization of the evidence. Moreover, we agree with the State’s analysis
that Trooper Stoneking’s conduct was reasonable under the Indiana
Constitution. First, the undisputed evidence established a high degree of
suspicion that Covey had engaged in unlawful activity. 4 Trooper Stoneking
observed Covey commit a traffic infraction. Tr. Vol. 2 at 21-50-51. Covey
admitted to committing the infraction. Id. at 53. Therefore, the degree of
suspicion that Covey had engaged in illegal activity was high. See Washington,
898 at 1206.
[18] Second, the degree of intrusion on Covey’s activities was not significant. While
the stop necessarily impeded Covey’s ordinary freedom of movement, there is
no evidence that the decision to stop restrained her freedom of movement to a
greater degree than other traffic stops. See id.
[19] Third, law enforcement needs were high. Trooper Stoneking had a legitimate
interest in stopping Covey because she committed a traffic infraction. See
Marshall, 117 N.E.3d at 1262 (“[L]aw enforcement has at least a legitimate, if
not a compelling, need to enforce traffic-safety laws, including speeding limits.
So long as governments set speed limits for public safety, those limits will need
4
Covey argues that the degree of suspicion that she had engaged in unlawful activity was low because at the
hearing on her motion to suppress, she denied that she had failed to drive for at least 200 feet with her turn
signal on before changing lanes. See Appellee’s Br. at 12. In other words, she contends that she denied
committing a traffic infraction. However, we rejected this interpretation of her testimony in the previous
section of our decision, so Covey’s interpretation of her testimony has no bearing on how we resolve whether
the degree of suspicion that she had engaged in illegal behavior was high.
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to be enforced.”). In stopping Covey, Trooper Stoneking acted consistently
with the State’s compelling interest in enforcing traffic laws.
[20] After reviewing the totality of the circumstances, we conclude that the stop of
Covey was reasonable under Article 1, section 11 of the Indiana Constitution.
Washington, 898 N.E.2d at 1206. Therefore, Article I, section 11 of the Indiana
Constitution provided no basis to grant Covey’s motion to suppress.
II. Entrapment
[21] The State correctly observes that Covey argued at the suppression hearing that
if she did, in fact, commit a traffic infraction, Trooper Stoneking entrapped her
into doing so. On appeal, Covey repeats this entrapment argument, contending
she would not have changed lanes if Trooper Stoneking had not followed her so
closely, which made her “slightly nervous.” Appellee’s Br. at 19; see also Tr. Vol.
2 at 52 (“a little nervous”). The State argues that the entrapment defense would
be an erroneous basis, as a matter of law, to grant Covey’s motion to suppress.
[22] Entrapment is a defense codified at Indiana Code section 35-41-3-9, which
provides:
(a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law
enforcement officer, or his agent, using persuasion or other
means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
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(b) Conduct merely affording a person an opportunity to commit
the offense does not constitute entrapment.
Id. The defendant bears the burden to prove that police induced her to commit
the illegal conduct that she would not otherwise have committed, and merely
providing the ordinary opportunity to engage in illegal conduct is not enough.
Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 2015). Police can entrap an
individual only if they directly participate in the illegal conduct. Id.
[23] Here, Covey did not claim at the suppression hearing that Trooper Stoneking’s
actions prevented her from signaling her lane change for the statutorily required
distance. Rather, she argued “that following someone so closely to make them
signal to get out of your way and then saying they didn’t signal enough is
entrapment.” Tr. Vol. 2 at 57. Covey testified that she changed lanes in hopes
that Trooper Stoneking would pass her, id. at 50, but she did not claim that
Trooper Stoneking’s actions made it unsafe or unreasonable for her to continue
in the left lane for 200 or more feet after she activated her turn signal. Covey
did not claim that Trooper Stoneking committed any driving maneuver or other
action that created an emergency situation requiring her to abruptly change
lanes. Furthermore, on appeal, Covey cites no legal authority for the
proposition that an officer entraps a motorist into committing an infraction
simply by driving behind the motorist. Thus, there is no evidence that Trooper
Stoneking used persuasion or other means likely to cause Covey to commit an
infraction, and there is likewise no evidence that Trooper Stoneking directly
engaged in the prohibited conduct, i.e., signaling his own lane change for less
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the statutorily required distance, or committed any other traffic infraction. See
Ind. Code § 35-41-3-9; Griesemer, 26 N.E.3d at 609. Thus, there is no basis, as a
matter of law, to conclude that Trooper Stoneking entrapped Covey into
committing the traffic infraction.
[24] Reversed and remanded.
Pyle, J., and Tavitas, J., concur.
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