State v. Keck

• Decision Date: 25 March 2014
• Docket Number: No. 67S01–1403–CR–179.,67S01–1403–CR–179.
• Citation: 4 N.E.3d 1180
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. Darrell L. KECK, Appellee (Defendant below).
• Court: Indiana Supreme Court

4 N.E.3d 1180

STATE of Indiana, Appellant (Plaintiff below),

v.Darrell L. KECK, Appellee (Defendant below).

No. 67S01–1403–CR–179.

Supreme Court of Indiana.

March 25, 2014.

Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Joel C. Wieneke, Plainfield, IN, Attorney for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 67A01–1208–CR–362

MASSA, Justice.

In this case, the second of two companion cases we decide today, the trial court granted the defendant's motion to suppress the evidence against him on the ground the officer lacked reasonable suspicion to initiate a traffic stop. We affirm.

Facts and Procedural History

Around 11 o'clock at night on February 25, 2012, Putnam County Sheriff's Deputy Terry Smith was on duty and driving west on U.S. 36, where the posted speed limit is fifty-five miles per hour. Deputy Smith later testified that the vehicle in front of him was traveling only about forty-three miles per hour, so he followed it as it came to a complete stop and turned onto County Road 100 East, a two-way road with no center line. Deputy Smith testified the vehicle proceeded to travel “down the middle of the roadway” for about a quarter of a mile before he activated his lights and initiated a traffic stop. The driver, Darrell L. Keck, was traveling with a single passenger, Travis R. Grimes.

During the traffic stop, Deputy Smith noticed Keck's eyes were bloodshot and he smelled of alcohol. He also noticed an open case of beer in the front seat with several cans missing. After Keck admitted he had three beers that evening, Deputy Smith proceeded to conduct three sobriety tests. Keck failed two of them, so Deputy Smith conducted a breath test, which showed Keck had a breath-alcohol level of 0.14. At that point, Deputy Smith handcuffed Keck and took him to the Putnam County Jail, where a second breath test showed Keck had a breath-alcohol level of 0.11.

The State charged Keck with two Class C misdemeanors: operating a vehicle while intoxicated and operating a vehicle with an alcohol concentration equivalent of 0.08 or more. Keck, by counsel, moved to suppress the evidence against him. At the suppression hearing, Deputy Smith testified that although Keck may have been traveling under the speed limit and come to a full stop before turning left, neither of those actions constituted traffic violations. He also testified that County Road 100 East is a mixture of gravel and hard surface, and that it had at least two “chuckholes” in it on the night in question. Grimes testified the vehicle did not come to a full stop before turning left and that County Road 100 East is in such “terrible” condition that Keck had to drive “a little slower” than normal and left of center because it is impossible to drive in the right-hand area of the roadway “without hitting every hole in the road.” Trans. at 22. Finally, Keck himself testified, stating he “slowed down to maybe five mile an hour” before he turned onto County Road 100 East. Trans. at 32. He said he travels on that road during his daily commute, and there were “a lot of potholes” and loose gravel on the sides of the road, so he drove “in the middle of the road to miss those potholes.” Trans. at 32.

The trial court granted Keck's motion, concluding there was conflicting testimony as to whether Keck stopped before making the left turn and taking

Judicial Notice of the condition of the County's roads throughout Putnam County. Because of the poor road conditions, the Court finds it wholly unreasonable to expect motorists in Putnam County to take a perfectly straight course, on the far right side of a roadway riddled with potholes in the absence of oncoming traffic, as in the case at Bar. Evasive action, including possibly driving left-of-center has become a necessity with the current conditions of our County Roads.

App. at 16–17.

The State, pursuant to statutory authorization, appealed. Ind.Code § 35–38–4–2(5) (2008) (authorizing the State to appeal “from an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution.”). The Court of Appeals affirmed. State v. Keck, 986 N.E.2d 847, 852 (Ind.Ct.App.2013).

We now grant transfer, thus vacating the opinion below, Ind. Appellate Rule 58(A), and affirm the trial court.

Standard of Review

When the State appeals from a negative judgment, it bears the burden to “show that the trial court's ruling on the suppression motion was contrary to law.” State v. Washington, 898 N.E.2d 1200, 1203 (Ind.2008). We evaluate the trial court's findings of fact deferentially, neither reweighing the evidence nor reassessing the credibility of the witnesses. Id. We will affirm if we find within the record “substantial evidence of probative value” to support the judgment. State v. Quirk, 842 N.E.2d 334, 340 (Ind.2006). But we review the trial court's conclusions of law, including determinations of reasonable suspicion, de novo. Sellmer v. State, 842 N.E.2d 358, 361 (Ind.2006).

The Trial Court Correctly Granted Keck's Motion to Suppress

The State argues the traffic stop was constitutionally permissible and therefore the trial court erred in granting Keck's motion to suppress. Our review is somewhat hampered by the fact that neither Keck's motion to suppress nor the trial court's order granting that motion invoke a statutory or constitutional basis for suppression. In his motion, Keck statedDeputy Smith “did not have probable cause to stop and arrest” him. App. at 14. On appeal, however, both the State and Keck base their arguments on the federal Fourth Amendment and Article 1, § 11 of our state constitution. We agree that those provisions govern here and frame our discussion accordingly.

The Fourth Amendment guarantees:

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. Our jurisprudence reflects two types of police encounters that implicate Fourth Amendment protection: the investigatory stop and the custodial arrest. Clark v. State, 994 N.E.2d 252, 261 (Ind.2013). An investigatory stop is generally brief in duration and is constitutionally permissible so long as the law enforcement officer “has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The custodial arrest constitutes a greater restriction upon the subject's liberty and requires a commensurately greater justification: probable cause. Clark, 994 N.E.2d at 261.

The first question we face is whether Deputy Smith had reasonable suspicion to support a brief investigatory stop of Keck's vehicle. When determining whether an officer had reasonable suspicion for a Terry stop, we consider whether “the totality of the circumstances” presented “a particularized and objective basis” for the officer's belief that the subject was engaged in criminal activity. Sellmer, 842 N.E.2d at 360 (internal citations omitted). If an officer observes a driver commit a traffic violation, he has probable cause—and thus also the lesser included reasonable suspicion—to stop that driver. Quirk, 842 N.E.2d at 340. But if the officer stops a driver based on the officer's mistaken belief that the observed conduct constituted an infraction, the officer's suspicion is no longer reasonable, and the stop is therefore unsupported and impermissible. Meredith v. State, 906 N.E.2d 867, 870 (Ind.2009) (internal citations omitted).

Here, Deputy Smith testified there were three reasons he stopped Keck: first, Keck was traveling approximately forty-three miles per hour on U.S. 36, which has a posted speed limit of fifty-five miles per hour; second, Keck came to a complete stop before turning left onto 100 East; and third, Keck drove down the middle of 100 East rather than on the right half of the roadway. Deputy Smith also testified, however, he did not believe either of these first two actions were unlawful, and on the probable cause affidavit, Deputy Smith listed the reason for the stop as “driving left of center.” App. at 10.

Both Keck and the State agree that Ind.Code § 9–21–8–2 (2010) is the controlling statute, but the consensus ends there; the State argues Keck violated subsection (a), while Keck maintains his actions were permissible under subsection (b). The statute provides:

(a) Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway except as follows:

(1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing overtaking and passing.

(2) When the right half of a roadway is closed to traffic under construction or repair.

(3) Upon a roadway divided into three (3) marked lanes for traffic under the rules applicable to a roadway divided into three (3) marked lanes.

(4) Upon a roadway designated and signposted for one-way traffic.

(b) Upon all roadways, a vehicle proceeding at less than the normal speed of traffic at the time and place under the conditions then existing shall be driven:

(1) in the right-hand lane then available for traffic; or

(2) as close as practicable to the right-hand curb or edge of the roadway;

except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.

Ind.Code § 9–21–8–2.

The State urges us to follow Combs v. State, 878 N.E.2d 1285 (Ind.Ct.App.2008). The defendant in Combs, like Keck, was stopped for driving left of center. Id. at...