Danh v. State

• Decision Date: 12 March 2020
• Docket Number: Court of Appeals Case No. 19A-CR-1148
• Citation: 142 N.E.3d 1055
• Parties: Justin DANH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

142 N.E.3d 1055

Justin DANH, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 19A-CR-1148

Court of Appeals of Indiana.

FILED March 12, 2020

Attorney for Appellant: Shay J. Hughes, Tippecanoe Public Defender's Office, Lafayette, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Megan M. Smith, Courtney Staton, Deputy Attorneys General, Indianapolis, Indiana

May, Judge.

[1] Justin Danh appeals the denial of his motion to suppress. He argues the trial court abused its discretion when it denied his motion to suppress the evidence found during the search of his vehicle because the search of his vehicle violated his Fourth Amendment right against unreasonable search and seizure. Specifically, Danh argues (1) the officer did not have reasonable suspicion to perform a patdown search of him or a canine sniff of his vehicle and (2) the dog sniff search of Danh's car unreasonably prolonged the duration of the traffic stop. We affirm.

Facts and Procedural History¹

[2] On December 12, 2017, Officer Keifer Mikels, a Purdue University Police Officer, was dispatched to McCutcheon Hall, located on Purdue University's campus, when an anonymous caller reported a resident of the dormitory was using drugs. Upon his arrival at the room where the activity was reported, Officer Mikels deployed his K9, who alerted to the presence of narcotics in the room. Officer Mikels was unable to make contact with the residents of the room at that time and went to the front desk to inquire as to the names of the room's residents. The front desk indicated Justin Danh and his roommate, Calvin, lived there.

[3] Officer Mikels returned on January 14, 2018, to continue the investigation and spoke with Calvin, who expressed concern over Danh's alleged narcotics activity but would not allow Officer Mikels to search the room. Officer Mikels did not submit a report on this investigation, and there is nothing in the record indicating he spoke with Danh during this time.

[4] At some point between August 21, 2018, and September 11, 2018, Officer Mikels read a report drafted by West Lafayette Police Department ("WLPD") Officer Michael Max that indicated Officer Max spoke with Danh's new roommate, Tristin Moreno, on August 21, 2018. Moreno reported to Officer Max that Danh had been using drugs and had shown Moreno a handgun that Moreno described as a Chippewa Model 1911, .22 caliber handgun that was either blue or black with a wooden grip and a missing rear sight. Moreno stated Danh's girlfriend, Alexis, also saw the gun and Danh stored the gun behind the headboard of his bed. Moreno told the officer that Danh told Moreno that the gun was stolen. Moreno had touched the gun and was concerned he would get in trouble with the police.

[5] The report also indicated Moreno called shortly after his interview with Officer Max to report that, when he returned home, Danh's bedroom door was open and the bed had been moved, indicating the handgun stored there might not be at the apartment. Approximately five hours later, Moreno's father called the police to report that Moreno had entered Danh's room but had not located the gun; instead, Moreno found .22 caliber ammunition and a bag of pills. According to the report, Moreno was to call Officer Max when Danh returned home so Officer Max could speak to Danh. The report did not indicate if Officer Max ever spoke to Danh. Officer Max indicated in the report that a handgun matching the description Moreno gave had been stolen from a nearby pawn shop.

[6] On September 11, 2018, Officer Mikels initiated a traffic stop of Danh's vehicle based on the vehicle's alleged failure to signal a turn. Officer Mikels collected identification from Danh and his passenger, Alexis Pantig. Officer Mikels radioed for back-up based on his belief Danh possessed the handgun from the earlier WLPD report. Officer Mikels searched the relevant databases for information regarding Danh and Pantig, such as the existence of a suspended license or outstanding warrant, but Officer Mikels did not find anything. Shortly thereafter, back-up officers arrived on scene. Officer Mikels later testified he "suspend[ed] the original traffic infraction investigation" when the back-up officers arrived. (Tr. Vol. II at 52.)²

[7] Officer Mikels told a back-up officer, Sergeant Balzer, that he believed, based on Moreno's earlier statement, that Danh possessed an allegedly stolen firearm. He told Sergeant Balzer that he did not smell anything when he approached the vehicle and did not know if Danh had the firearm in his possession, but that he also knew Danh was "dealing pills out of McCutcheon." (State's Ex. 2 at 06:37 – 06:38.)

[8] Officer Mikels asked Danh to exit the vehicle. After Danh exited the vehicle, Officer Mikels performed a pat-down search. Officer Mikels asked Danh if he possessed the firearm in question, and Danh denied having the firearm. Officer Mikels asked Danh if he could search Danh's vehicle, and Danh did not consent to a search.

[9] Officer Mikels continued his conversation with Danh, discussing Danh's recent arrest for operating a vehicle while intoxicated. Sergeant Balzer removed Pantig from the vehicle and conducted a canine search of Danh's vehicle. The canine alerted to the presence of drugs. The officers searched Danh's vehicle and found Xanax

and marijuana. Danh admitted that he had prescription drugs in the car for which he did not have a valid prescription. Police then placed Danh under arrest and administered his Miranda³ warnings. Danh admitted possessing the handgun in question, but he indicated the handgun was located at his apartment. Danh gave police permission to search his apartment. Officers then searched Danh's apartment where they found a handgun and additional Xanax and marijuana.

[10] On September 11, 2018, the State charged Danh with Level 3 felony dealing a schedule IV controlled substance,⁴ Level 6 felony possession of a controlled substance,⁵ Level 6 felony maintaining a common nuisance,⁶ Class A misdemeanor possession of a controlled substance,⁷ and Class B misdemeanor possession of marijuana.⁸ On December 18, 2018, Danh filed a motion to suppress the evidence found as part of the vehicle and apartment searches. On March 1, 2019, the trial court held a hearing on the matter and denied Danh's motion on April 17, 2019. On April 24, 2019, Danh filed a motion for certification of interlocutory appeal, which the trial court granted. On May 22, 2019, Danh filed a motion for this court to accept the interlocutory appeal, which we granted.

Discussion and Decision

[11] Our standard of review for the denial of a motion to suppress evidence is similar to that of other sufficiency issues. Jackson v. State , 785 N.E.2d 615, 618 (Ind. Ct. App. 2003), reh'g denied , trans. denied . We determine whether there is substantial evidence of probative value to support denial of the motion. Id. We do not reweigh the evidence, and we consider conflicting evidence in a light most favorable to the trial court's ruling. Id. However, the review of a denial of a motion to suppress is different from other sufficiency matters in that we must also consider uncontested evidence that is favorable to the defendant. Id. We review de novo a ruling on the constitutionality of a search or seizure. Campos v. State , 885 N.E.2d 590, 596 (Ind. 2008).

[12] The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures by prohibiting them without a warrant supported by probable cause. To deter State actors from violating that prohibition, evidence obtained in violation of the Fourth Amendment generally is not admissible in a prosecution of the citizen whose right was violated. Clark v. State , 994 N.E.2d 252, 260 (Ind. 2013). The State has the burden of demonstrating the admissibility of evidence collected during a seizure or search. Id.

[13] 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 . It is well-settled that a traffic stop "must be supported by, at least, reasonable suspicion that a traffic law has been violated or other criminal activity is afoot." Bush v. State , 925 N.E.2d 787, 790 (Ind. Ct. App. 2010), clarified on reh'g 929 N.E.2d 897 (Ind. Ct. App. 2010). An officer may stop and briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion of criminal activity, even if the officer lacks probable cause to make an arrest. Armfield v. State , 918 N.E.2d 316, 319 (Ind. 2009).

1. Reasonable Suspicion

[14] An officer may perform a brief investigatory stop when, based on the totality of the circumstances, the officer has a reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Reasonable suspicion is a less demanding standard than probable cause, not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Alabama v. White , 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L.Ed.2d 301 (1990). Even though different, reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Id . "Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.’ " Id. (quoting United States v. Cortez , 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L.Ed.2d 621 (1981) ).

Washburn v. State , 868 N.E.2d 594, 601 (Ind. Ct. App. 2007), trans. denied .

A. Nature of Tip

[15] In...