Killebrew v. State

• Decision Date: 19 October 2012
• Docket Number: No. 34A02–1204–CR–303.,34A02–1204–CR–303.
• Citation: 976 N.E.2d 775
• Parties: Rodney KILLEBREW, II, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

976 N.E.2d 775

Rodney KILLEBREW, II, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 34A02–1204–CR–303.

Court of Appeals of Indiana.

Oct. 19, 2012.

Donald E.C. Leicht, Kokomo, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Defendant, Rodney D. Killebrew, II (Killebrew), appeals his conviction for possession of marijuana, a Class A misdemeanor, Ind.Code § 35–48–4–11.

We reverse.

ISSUE

Killebrew raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion when it admitted evidence discovered following a traffic stop of his vehicle.

FACTS AND PROCEDURAL HISTORY

On March 3, 2011, Police Officer Chad VanCamp (Officer VanCamp) of the Kokomo Police Department was traveling northbound on Apperson Way in Kokomo, Indiana, when he observed a white Cadillac traveling southbound. The Cadillac had its turn signal activated but continued through an intersection without turning. Officer VanCamp thought that the driver might be impaired, so he initiated a traffic stop.

When Officer VanCamp exited his squad car, he immediately detected “an overwhelming amount of air fresheners, more than what the normal person would usually use” and suspected that the air fresheners might be masking agents used to hide the smell of illegal drugs. (Transcript p. 6). He approached the driver's side of the vehicle and spoke to Killebrew, who was the driver. When Officer VanCamp asked Killebrew about the turn signal, Killebrew told him that the signal sometimes stuck. Killebrew also admitted that he had initially thought the Officer was pulling him over for a seatbelt violation because he had a malfunctioning seatbelt. Up until that point, though, Officer VanCamp had not noticed that Killebrew was not wearing a seatbelt.

Officer VanCamp then asked Killebrew to exit his vehicle and spoke to him about the overwhelming amount of air fresheners in the Cadillac. Killebrew's explanation was that he had just cleaned out his vehicle and that he thought he needed that many air fresheners. Officer VanCamp brought his canine over to the Cadillac to sniff its exterior for drugs. The canine alerted to the passenger door and the open window. As a result, Officer VanCamp searched the interior of the Cadillac and found two clear plastic bags containing plant material in the vehicle's middle console. The plant material later tested positive for marijuana.

On March 4, 2011, the State filed an Information charging Killebrew with possession of marijuana, a Class A misdemeanor, I.C. § 35–48–4–11(1). On February 9, 2012, a bench trial was held. During the State's direct examination of Officer VanCamp, Killebrew made a motion to suppress the evidence of the marijuana on the grounds that it was obtained pursuant to an illegal traffic stop. The trial court denied the motion and ultimately found Killebrew guilty as charged. On March 15, 2012, the trial court held a sentencing hearing and sentenced Killebrew to one year suspended, except for time served.

Killebrew now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Killebrew requests that we reverse his conviction for possession of marijuana on the ground that the trial court abused its discretion in admitting evidence of the marijuana found in his Cadillac. Our review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Graham v. State, 971 N.E.2d 713, 716 (Ind.Ct.App.2012). We do not reweigh the evidence, and we consider conflicting evidence in the light most favorable to the trial court's ruling. Id. However, we must also consider the uncontested evidence favorable to the defendant. Id.

II. Waiver

As a threshold issue, the State argues that Killebrew did not preserve his claim because he failed to properly object to the evidence at trial. It is well-established that a motion to suppress is insufficient to preserve an error for appeal. Jackson v. State, 890 N.E.2d 11, 15 (Ind.Ct.App.2008). A defendant must instead reassert his objection at trial contemporaneously with the introduction of the evidence to preserve the error. Id. Here, we cannot agree with the State that Killebrew failed to preserve his claim. Instead, it is clear that Killebrew's objection occurred after the bench trial had commenced and was contemporaneous with Officer VanCamp's testimony regarding his search of Killebrew's vehicle and his discovery of the marijuana. Although Killebrew characterized his objection as a motion, it was an objection, and it occurred at the proper point during the trial to preserve his claim. See id. We also reject the State's assertion that Killebrew did not preserve his claim for appeal because he stipulated to the admission of the marijuana. Killebrew did not stipulate to the admission of the marijuana. He merely stipulated that the “green plant material” was marijuana so that the chemist would not have to testify. (Tr. p. 18). Thus, the stipulation was an agreement concerning the testimony an absent witness would give if he were present, not its admissibility.

III. Fourth Amendment

Because we find that Killebrew has preserved his claim, we now turn to the merits of his argument. We note that he has not specified whether he appeals the trial court's admission of the evidence under the Fourth Amendment of the United States Constitution or Article I, section 11 of the Indiana Constitution and that he has not presented us with any legal authority relating to Article I, section 11. We have previously held that the failure to present any authority or independent analysis supporting a separate standard under the state constitution waives any state constitutional claims. Lockett v. State, 747 N.E.2d 539, 541 (Ind.2001), reh'g denied. Accordingly, we will only analyze Killebrew's arguments under the standard for Fourth Amendment claims.

The Fourth Amendment to the United States Constitution protects the privacy and possessory interests of individuals by prohibiting unreasonable searches and seizures. Riggle v. State, 967 N.E.2d 522, 524 (Ind.Ct.App.2012). It provides:

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. A traffic stop of a vehicle and temporary detention of its occupants constitutes a “seizure” within the meaning of the Fourth Amendment. Reinhart v. State, 930 N.E.2d 42, 45 (Ind.Ct.App.2010). Thus, we must evaluate whether Officer VanCamp's seizure of Killebrew and his Cadillac during the traffic stop violated Killebrew's privacy rights under the Fourth Amendment.

A law enforcement officer must have probable cause to instigate a full-blown arrest or a detention that lasts for more than a short period. Id. However, a traffic stop is valid under the Fourth Amendment if it is based on an observed traffic violation or if the officer has reasonable suspicion that the person detained is involved in criminal activity. State v. Rhodes, 950 N.E.2d 1261, 1265–66 (Ind.Ct.App.2011). A law enforcement officer's good faith belief that a person has committed a violation will justify a traffic stop, but an officer's mistaken belief about what constitutes a violation does not amount to good faith. Ransom v. State, 741 N.E.2d 419, 422 (Ind.Ct.App.2000), trans. denied. Such discretion is not constitutionally permissible. Id. The State also argues that if we conclude that Killebrew's actions did not constitute a traffic violation and that Officer VanCamp did not have a reasonable suspicion that Killebrew was impaired, we should extend the “community caretaking” exception to the Fourth Amendment's protections to validate Officer VanCamp's traffic stop. We will address each of these points in turn.

A. Traffic Violation

Indiana courts have never addressed the issue of whether driving through an intersection with an activated turn signal without turning or changing lanes is a traffic violation under Indiana law. Utilizing the rules of statutory construction, though, we conclude that it is not.

In applying a statute, our primary goal is to ascertain and give effect to the Legislature's intent. Crowel v. Marshall Cnty. Drainage Bd., 971 N.E.2d 638, 645–46 (Ind.2012). If a statute is unambiguous, i.e., susceptible to only one meaning, we must give the statute its clear and plain meaning. In re D.W., 969 N.E.2d 89, 94 (Ind.Ct.App.2012). However, if a statute is susceptible to multiple interpretations, we must try to ascertain the Legislature's intent and interpret the statute so as to accomplish that intent. Id. In ascertaining the Legislature's intent, we consider the phraseology, nature, and design of the statute, and the consequences that flow from the reasonable alternative interpretations of the statute. Id. at 95. We presume that our Legislature intended the statutory language to be applied in a logical manner consistent with the underlying goals and policy of the statute. Id.

I.C. § 9–21–8–25 provides that “[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. [ ]” I.C. § 9–21–8–26 also provides that: “a person may not stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal to a person who drives a vehicle immediately to the rear when there is opportunity to give a signal.” The trial court concluded that these provisions prohibited Killebrew's use of his turn signal. We disagree....