Curry v. State

• Decision Date: 22 December 2017
• Docket Number: Court of Appeals Case No. 36A04–1702–CR–373
• Citation: 90 N.E.3d 677
• Parties: Doran J. CURRY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

90 N.E.3d 677

Doran J. CURRY, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

Court of Appeals Case No. 36A04–1702–CR–373

Court of Appeals of Indiana.

FILED December 22, 2017

Attorney for Appellant : R. Patrick Magrath, Alcorn Sage Schwartz & Magrath, LLP, Madison, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Katherine M. Cooper, Deputy Attorney General, Indianapolis, Indiana

Bailey, Judge.

Case Summary

[1] A traffic stop on Indiana Interstate 65 was initiated to warn a driver of the hazards of traveling too slowly in the fast lane. The stop culminated with the discovery of 100 grams of heroin secreted in the clothing of the passenger, Doran J. Curry ("Curry"). Curry now appeals his convictions and aggregate sentence for Dealing in Cocaine or a Narcotic Drug, as a Level 2 felony,¹ and Resisting Law Enforcement, as a Class A misdemeanor.² We affirm.³

Issues

[2] Curry presents three issues for review:

I. Whether the trial court abused its discretion by admitting evidence obtained during a pat-down search conducted during a traffic stop;

II. Whether the trial court abused its discretion by admitting evidence in violation of Indiana Evidence Rule 404(b) ; and

III. Whether Curry's sentence is inappropriate.

Facts and Procedural History

[3] On January 14, 2015, at around 1:47 p.m., Indiana State Police Trooper James Wells ("Trooper Wells") approached a vehicle in the left lane of southbound Interstate 65 that was traveling below the posted speed limit of 70 miles per hour. Before the vehicle yielded the lane, Trooper Wells clocked its speed and determined that it was traveling at approximately 63 miles per hour. Trooper Wells turned on his lights and initiated a traffic stop based upon his belief that slower-moving vehicles were required to remain in the right-hand lane of the roadway.⁴

[4] The driver, Chastity Westmoreland ("Westmoreland"), pulled the vehicle onto the berm of the roadway yet close to the white line. To avoid standing in the roadway, Trooper Wells approached the passenger side. He requested Westmoreland's driver's license and addressed Curry, who had his eyes closed: "is it bright? Did you just wake up?" (Ex. 2, pg. 11.) Curry responded, "Yeah." (Ex. 2, pg. 11.) He handed Trooper Wells a rental agreement for the vehicle in lieu of its registration.

[5] Trooper Wells verbally warned Westmoreland that she could drive slowly, so long as she stayed in the right lane, and he expressed his fear that "she's gonna get run over." (Ex. 2, pg. 11.) Concluding that he could not safely stand next to the driver's door to complete his duties, Trooper Wells asked Westmoreland to "come on back" to his vehicle for the check of her license. (Ex. 2, pg. 11.) Westmoreland acknowledged that she had been traveling too slowly, but assured the officer that she had a valid driver's license and no legal problems. In response to Trooper Wells' inquiries, Westmoreland advised that she and Curry had been to Indianapolis to visit their grandmother, they left the day before, Curry had assisted with the driving, and he was the person who had rented the vehicle. She volunteered the information that she had to get back to work, necessitating a short trip. Trooper Wells advised Westmoreland that her license "looked good" and inquired about Curry's employment. (Ex. 2, pg. 14.) After learning that Curry was Westmoreland's unemployed cousin, Trooper Wells exited his vehicle and re-approached the rental vehicle.

[6] Trooper Wells confirmed with Curry that he had rented the vehicle. He asked for identification, which Curry produced. Trooper Wells asked Curry about the purpose and timing of his travel. Curry responded that he and Westmoreland, his cousin, had been visiting their grandmother. However, when Curry was asked when he saw his grandmother, he "froze," broke eye contact, and began to breathe heavily. (Tr. Vol. III, pg. 117.) After five inquiries, Curry responded "what did she say." (Tr. Vol. III, pg. 117.) Due to Curry's nervousness and evasiveness, Trooper Wells decided to call for backup.⁵

[7] Trooper Wells returned to his police vehicle and reached for his microphone just as Trooper Randall Miller ("Trooper Miller"), who had been patrolling nearby in his canine unit, happened upon the stopped vehicle. Trooper Wells signaled that Trooper Miller should "run the dog" and then contacted the State Police post to obtain criminal record checks on Westmoreland and Curry. (Tr. Vol. III, pg. 119.) Trooper Miller conducted a canine sniff and the dog, certified for detection of certain drugs, alerted at the rear wheel well on the driver's side. Trooper Miller reported the alert to Trooper Wells and they agreed that Trooper Miller should "get [Curry] out" while Trooper Wells was waiting for criminal history and warrant information. (Tr. Vol. III, pg. 121.)

[8] Trooper Miller approached Curry and advised that the police canine had alerted. Curry repeated "the canine alerted" and began shaking. (Tr. Vol. III, pg. 77.) Trooper Miller assessed Curry's demeanor as consistent with "fight or flight" and he assisted Curry out of the vehicle. (Tr. Vol. III, pg. 78.) Trooper Miller commanded Curry to turn around and advised Curry that he would be subjected to a "check for weapons" because the "dog alerted on your car." (Tr. Vol. III, pg. 79, Vol. II, pg. 99.) The trooper detected a large hard object that he initially "thought [to be] a hand gun" and tried to handcuff Curry. (Tr. Vol. III, pg. 80.) However, Curry spun around and Trooper Miller fell to the ground. Curry began to run.

[9] Trooper Wells ran to assist Trooper Miller, commanding Curry to stop. After Curry continued to run, Trooper Wells deployed his taser. When Curry was subdued and on the ground, Trooper Miller advised Westmoreland that Curry "had a bag of dope in his crotch." (Tr. Vol. III, pg. 86.) Ultimately, Curry was found to be in possession of 100 grams of heroin. Westmoreland was released without being given a traffic citation or written warning. Curry was arrested. The entire incident took about ten minutes.

[10] On January 26, 2015, the State charged Curry with Dealing in Cocaine or a Narcotic Drug and Resisting Law Enforcement. The State subsequently alleged Curry to be a habitual offender. Curry filed a series of motions seeking to suppress evidence obtained during the traffic stop. On December 13, 2016, the trial court denied the motions. Curry also filed motions in limine, seeking to exclude references to his past incarceration and to exclude his statements related to drug-dealing activities. The trial court preliminarily ruled that references to incarceration would be inadmissible but Curry's statements explaining his dealing activities would not be excluded.

[11] Curry was tried in a jury trial conducted on December 20 and December 21, 2016. At trial, he objected—without success—to the admission of evidence from the traffic stop and to the admission of his incriminating statements. A jury convicted Curry as charged and he admitted his status as a habitual offender. Curry was sentenced to twenty-five years imprisonment, enhanced by ten years, for his Dealing in Cocaine conviction. He was sentenced to ten days imprisonment for his Resisting Law Enforcement conviction. This appeal ensued.

Discussion and Decision

Admission of Evidence

[12] Curry has not, on appeal, specifically challenged the legality of the initial traffic stop. Rather, he focuses upon subsequent police conduct and contends that the State garnered the evidence against him in violation of his constitutional rights⁶ by dual means: the traffic stop was unreasonably prolonged to facilitate the canine unit arrival and the pat-down was conducted without reasonable suspicion that he was armed and dangerous. Curry argues that the trial court abused its discretion in admitting the challenged evidence at trial.

[13] The trial court has broad discretion to rule on the admissibility of evidence. Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017). Generally, evidentiary rulings are reviewed for an abuse of discretion and reversed when admission is clearly against the logic and effect of the facts and circumstances. Id. However, when a challenge to an evidentiary ruling is predicated on the constitutionality of a search or seizure of evidence, it raises a question of law that is reviewed de novo. Id. The State has the burden to demonstrate that the measures it used to seize information or evidence were constitutional. State v. Rager , 883 N.E.2d 136, 139 (Ind. Ct. App. 2008).

[14] The Fourth Amendment "regulates all nonconsensual encounters between citizens and law enforcement officials." Thomas , 81 N.E.3d at 625. The Fourth Amendment guarantees that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

Dog Sniff

[15] "It is unequivocal under our jurisprudence that even a minor traffic violation is sufficient to give an officer probable cause to stop the driver of a vehicle." Austin v. State , 997 N.E.2d 1027, 1034 (Ind. 2013). Moreover, a dog sniff is not a search protected by the Fourth Amendment. State v. Hobbs , 933 N.E.2d 1281, 1286 (Ind. 2010) (citing Illinois v. Caballes , 543 U.S. 405, 490, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) ). Therefore, "no degree of suspicion is required to summon the canine unit to the scene to conduct an exterior sniff of the car or to conduct the sniff itself." Id. A narcotics dog sweep "is an unreasonable investigatory detention if the motorist is held for longer than necessary to complete the officer's work related to the traffic violation and the officer lacks reasonable suspicion that the motorist is engaged in criminal activity." Austin , 997 N.E.2d at...