Marshall v. State, 022719 INSC, 18S-CR-00464

Docket Nº:18S-CR-00464
Opinion Judge:GOFF JUSTICE
Party Name:Zachariah J. Marshall, Appellant (Defendant below), v. State of Indiana, Appellee (Plaintiff below).
Attorney:ATTORNEY FOR APPELLANT Michael A. Campbell Schwerd, Fryman & Torrenga, LLP Valparaiso, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General, J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
Judge Panel:Rush, C.J., and David, Massa, and Slaughter, JJ., concur.
Case Date:February 27, 2019
Court:Supreme Court of Indiana
 
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Zachariah J. Marshall, Appellant (Defendant below),

v.

State of Indiana, Appellee (Plaintiff below).

No. 18S-CR-00464

Supreme Court of Indiana

February 27, 2019

Argued: October 15, 2018

Appeal from the Porter Superior Court 4, No. 64D04-1611-CM-010105 The Honorable David L. Chidester, Judge

On Petition to Transfer from the Indiana Court of Appeals, No. 64A05-1710-CR-02368

ATTORNEY FOR APPELLANT Michael A. Campbell Schwerd, Fryman & Torrenga, LLP Valparaiso, Indiana

ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General, J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

OPINION

GOFF JUSTICE

Zachariah Marshall challenges the propriety of his traffic stop for speeding under both the United States and Indiana Constitutions. He presents us with an interesting question: When a police officer's calibrated radar indicates an oncoming vehicle is speeding, the officer then verifies the radar speed exceeds the posted speed limit, but he ultimately fails to document the excessive speed, is there reasonable suspicion for a traffic stop? We answer yes and affirm the trial court.

Factual and Procedural History

During the early morning hours of October 29, 2016, as Reserve Officer Sean Dolan patrolled near State Road 8 and 500 West in Hebron, Indiana, in Porter County, he observed a vehicle approaching him through the darkness. That night Officer Dolan drove a marked police car equipped with a radar unit that was mounted on the dashboard, turned on, and properly calibrated. As the vehicle approached him, Officer Dolan heard the radar giving off a high-pitch tone. He later explained that the higher the tone's pitch, the faster the speed. Upon hearing the high pitch, Officer Dolan looked at the radar's target speed, compared it to the 50-miles-per-hour speed limit sign posted just north of him, and saw the oncoming vehicle was traveling faster than the posted speed limit. It was a clear, dry night and Officer Dolan had no trouble seeing his radar unit, the posted speed limit, or the approaching car.

One-hundred-percent sure the oncoming vehicle was speeding, Officer Dolan initiated a traffic stop, intending to cite the driver for speeding only. With the car stopped, Officer Dolan approached and found Zachariah Marshall was the driver. Explaining that he stopped Marshall for speeding, Dolan asked him for his driver's license and vehicle registration. While Officer Dolan ran a warrant and BMV check, his backup officer (Corporal O'Dea) arrived at the scene and talked with Marshall. Corporal O'Dea smelled alcohol on Marshall and noticed his slowed and slurred speech. With the routine speeding traffic stop now turned into an OWI investigation, Officer Dolan exercised his discretion and decided not to cite Marshall for speeding, later explaining: "I knew he was going to have plenty of money problems and legal problems ahead of him that were going to be costly and I decided to cut him a break on the citation for speeding." Tr. p. 15. Since Officer Dolan did not issue Marshall a speeding ticket or a written warning, he did not document the speed he clocked Marshall driving.

The State of Indiana eventually charged Marshall with three counts: (1) A-Misdemeanor Operating a Vehicle While Intoxicated, Endangering a Person; (2) C-Misdemeanor Operating a Vehicle with an Alcohol Concentration Equivalent to at least 0.08 but less than 0.15; and (3) C-Misdemeanor Operating a Vehicle While Intoxicated.

Marshall's counsel deposed Officer Dolan on June 15, 2017, nearly eight months after the traffic stop. During that deposition, Officer Dolan could recall neither the posted speed limit near the intersection of Route 8 and 500 West where he pulled over Marshall nor could he remember the radar reading of how fast Marshall was driving that night. Officer Dolan, however, stated that at the time of the traffic stop, he could see the speed limit sign posted on 500 West.

On August 4, 2017, Marshall moved to suppress all evidence from the traffic stop, alleging he'd been illegally seized under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Regarding the Fourth Amendment, Marshall alleged Officer Dolan lacked reasonable suspicion to stop him for speeding that night. And concerning the Indiana Constitution, he alleged the traffic stop proved unreasonable considering the totality of the circumstances. Both arguments hinged upon the point that in his deposition testimony Officer Dolan could not recall how fast Marshall was driving before the traffic stop and could not remember the posted speed limit.

Officer Dolan testified at the suppression hearing, recounting the details surrounding the traffic stop and repeatedly acknowledging that he could not remember the posted speed or the radar speed during his deposition two months earlier. He testified he did not document Marshall's speed that night. He explained he returned to the scene of the traffic stop between his deposition and the suppression hearing and he could now definitely say the speed limit there is 50 miles per hour. Ultimately, Officer Dolan testified that he knew the posted speed limit the night of the stop and he was one-hundred-percent certain that Marshall was speeding before he stopped him.

The trial court eventually denied Marshall's suppression motion. The court's factual findings included that Officer Dolan "observed Defendant's car speeding and . . . [he] was using a radar." The trial court then concluded: Officer Dolan was sure, based on his...

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