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Date: 06-29-2021
Case Style:
Maung Tway v. State of Indiana
Case Number: 20A-CR-01710
Judge: Elizabeth F. Tavitas
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Defendant's Attorney:
Description:
Indianapolis, IN: Criminal defense lawyer represented Defendant charged with possession of methamphetamine, paraphernalia, and marijuana.
On May 9, 2019, Officer Andrew Arndt of the Fishers Police Department
observed a PT Cruiser that Officer Arndt believed was not properly displaying
its license plate. Officer Arndt followed the vehicle on I-69 and observed the
vehicle make a sudden lane change. The PT Cruiser then appeared to follow Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 3 of 15
the vehicle ahead of it too closely, and Officer Arndt initiated a traffic stop at
approximately 12:03:45 p.m.
1
[4] At approximately 12:06:24 p.m., Officer Arndt requested that the driver—
Tway—exit his vehicle and sit in the passenger seat of Officer Arndt’s police
vehicle. Officer Arndt made this request in part for safety purposes, and in part
to separate Tway from his passengers, thereby eliminating the possibility that a
fabricated story might be concocted among them. Tway complied, and sat in
the passenger seat of the police vehicle. At 12:08:15 p.m., while investigating
Tway’s license and vehicle registration via computer, Officer Arndt proceeded
to ask Tway a series of questions regarding, among other things, Tway’s
reasons for travel, the identities of two other occupants in Tway’s vehicle, and
Tway’s tattoos, one of which depicted a marijuana leaf. Tway answered all of
Officer Arndt’s questions.
[5] After inputting Tway’s personal information, Officer Arndt proceeded to
investigate Tway’s vehicle ownership at approximately 12:16 p.m., by entering
information from the car’s title and registration into his police computer. One
minute later, Officer Arndt informed Tway that Tway’s license and registration
“appear[ed]” to be valid, but that Officer Arndt was still checking. At 12:20:30
p.m., Officer Arndt contacted dispatch to determine whether Tway had any
1 There is a discrepancy in the record. The computer-aided dispatch report indicates that the stop was
initiated at 12:01:39 p.m. Ex. Vol. III p. 5. The timestamp from the dashboard camera footage indicates that
the stop was initiated at 12:03:45 p.m. For consistency, we will refer to the dash camera footage timestamp
throughout this opinion. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 4 of 15
outstanding warrants in Allen County, where Tway was heading.
Approximately thirty seconds later, Officer Arndt’s partner arrived on the scene
and began speaking with the two passengers in Tway’s car.
[6] At 12:22 p.m., Officer Arndt began explaining the nature of the warning being
issued to Tway. Two minutes later, Officer Arndt printed the warning and
removed it from the printer without giving it to Tway. With the warning in
hand, Officer Arndt repeated a series of questions about whether there was
anything illegal in Tway’s car, asking specifically if Tway had any illegal drugs,
weapons, or large amounts of currency. Tway denied that there was anything
illegal in his car. Officer Arndt then informed Tway that a canine officer was
going to inspect Tway’s vehicle.
[7] At 12:26:30 p.m., Tway asked whether all of his papers were in order, and
Officer Ardnt confirmed that they were. At 12:27:18 p.m., Tway asked for the
warning, and Officer Arndt handed the warning to Tway eight seconds later.
At 12:28:15 p.m., Officer Arndt received a radio call indicating that Tway had
no outstanding warrants in Allen County. At 12:28:29 p.m., Officer Arndt
exited his vehicle with the intention of asking questions of Tway’s passengers
regarding their itinerary and ownership of the PT Cruiser. Tway remained in
the police vehicle. The dog sniff began at 12:28:43 p.m., and the canine officer
alerted. Officer Arndt subsequently searched Tway’s vehicle and discovered
methamphetamine, marijuana, and glass pipes used for smoking
methamphetamine, in addition to marijuana in Tway’s wallet. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 5 of 15
[8] On May 14, 2019, the State charged Tway with possession of
methamphetamine, a Level 6 felony; possession of marijuana, a Class B
misdemeanor; and possession of paraphernalia, a Class C misdemeanor. On
June 5, 2020, Tway filed a motion to suppress evidence, arguing that the drugs
and paraphernalia were obtained as a result of an illegal seizure in
contravention of both the federal and state constitutions.2
The trial court
conducted a hearing on Tway’s motion to suppress evidence on July 7, 2020.
[9] Officer Arndt testified that he noticed the following during the course of the
traffic stop: (1) Tway had tattoos that included a marijuana leaf and others that
Officer Ardnt believed were gang-related; (2) Tway left the door to the police
vehicle open when he got into it; (3) Tway’s driver’s license was broken in half
and taped back together; (4) Tway’s license plate was partially obscured; (5)
Tway’s glove compartment was locked; (6) Tway appeared to be breathing
rapidly and trembling when he was initially pulled over; (7) Tway’s t-shirt
featured a marijuana leaf; (8) Tway asked questions about the warning citation
while Officer Arndt was processing it; (9) Tway’s name was not on the vehicle
registration; (10) Tway did not have a bill of sale for the PT Cruiser; and (11)
Officer Arndt believed Tway could not recite the names of his passengers.
Additionally, Officer Arndt observed inconsistencies in Tway’s answers to
Officer Arndt’s questions
2 U.S. const. amend IV; Ind. Const. art. 1 § 11.Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 6 of 15
[10] Officer Arndt further testified that, while Tway was being held in the police car,
Officer Arndt was attempting to ascertain whether Tway had outstanding
warrants and whether the PT Cruiser had been reported stolen. Officer Arndt
determined that Tway had no outstanding warrants and did not discover
anything indicating that the car had been stolen.3 Finally, Officer Arndt
testified to his ongoing questions about whether Tway was the owner of the
vehicle. Tr. Vol. II p. 26. Tway told Officer Arndt that he had just purchased
the vehicle, but he did not have a bill of sale. Officer Arndt was unable to verify
that Tway was the owner from either the registration or the car’s title.
[11] The trial court denied Tway’s motion to suppress on August 14, 2020, and
found that: “In the case here, there were no articulable facts that the police had
reasonable suspicion of criminal activity in order to proceed after the traffic stop
thereafter with an investigatory detention.” Appellant’s App. Vol. II p. 64. The
trial court further found that:
Based upon the video in the case here, it appears that the officer
concluded the traffic stop at 12:23 pm, and that the officer and
Defendant had sporadic conversation for the next three minutes
before than [sic] canine unit arrived. Another two minutes
expired before the canine sniff began. The officer never told the
Defendant that he was free to leave. Accordingly, the canine
sniff prolonged the traffic stop for three to five minutes.
3 The PT Cruiser, which was subsequently impounded, was later released to Tway.Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 7 of 15
Id. at 65. The trial court concluded:
In the case here, the officer’s conversation did extend the traffic
stop by a few minutes. But relying on the Curry[4
] case above,
this Court rules that the officer’s inquiries into matters unrelated
to the justification for the traffic stop did not convert the traffic
stop into something other than a lawful seizure, because the
inquiries did not significantly extend the duration of the stop.
Id. at 66.
[12] On August 17, 2020, Tway moved to certify the trial court’s order for
interlocutory appeal, and the trial court granted the motion the same day. We
accepted jurisdiction over the appeal pursuant to Indiana Appellate Rule 5(B).
Analysis
[13] Tway argues his rights under the Fourth Amendment of the United States
Constitution and Article 1, section 11 of the Indiana Constitution were violated
during the traffic stop; and, therefore, the trial court erred by denying Tway’s
motion to suppress evidence discovered while Tway’s person was seized.
“When a trial court denies a motion to suppress evidence, we necessarily
review that decision ‘deferentially, construing conflicting evidence in the light
most favorable to the ruling.’” Marshall v. State, 117 N.E.3d 1254, 1258 (Ind.
2019) (quoting Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014)), cert. denied, 140
S. Ct. 113 (2019). We, however, consider any substantial and uncontested
4 Curry v. State, 90 N.E.3d 677, 684 (Ind. Ct. App. 2017), trans. denied.Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 8 of 15
evidence favorable to the defendant. Id. We review the trial court’s factual
findings for clear error, and we decline invitations to reweigh evidence or judge
witness credibility. Id. We consider “‘afresh any legal question of the
constitutionality of a search and seizure[,]’” O’Keefe v. State, 139 N.E.3d 263,
267 (Ind. Ct. App. 2019) (quoting Hansbrough v. State, 49 N.E.3d 1112, 1114
(Ind. Ct. App. 2016), trans. denied), which is to say we review such questions
under a de novo standard. Marshall, 117 N.E.3d 1258 (citing Robinson, 5
N.E.3d at 365).
I. Federal Constitutional Challenge
[14] “The Fourth Amendment prohibits unreasonable searches and seizures by the
government, and its safeguards extend to brief investigatory stops of persons or
vehicles that fall short of traditional arrest.” Ertel v. State, 928 N.E.2d 261, 264
(Ind. Ct. App. 2010) (citing Moultry v. State, 808 N.E.2d 168, 170 (Ind. Ct. App.
2004)), trans. denied. “Evidence obtained in violation of the Fourth Amendment
may not be used against a defendant at trial.” Id. (citing Rice v. State, 916
N.E.2d 296, 301 (Ind. Ct. App. 2009), trans. denied). A law enforcement official
may detain a person for a short period of time for purposes of investigation
without a warrant or probable cause, but official intrusion must be reasonably
warranted, and the official must have “‘reasonable suspicion’” that criminal
activity “‘may be afoot.’” See, e.g., id. (quoting Moultry, 808 N.E.2d at 170-71).
That reasonable suspicion must be “based upon specific and articulable facts
together with rational inferences from those facts.” Id.Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 9 of 15
[15] In the particular context of a traffic stop, we first note that Tway does not
contest the validity of the initial seizure of his person; nor could he do so
successfully. “‘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.’” O’Keefe, 139 N.E.3d at 267 (quoting Tinker v. State, 129 N.E.3d
251, 255 (Ind. Ct. App. 2019), trans. denied). “A narcotics dog sweep, however,
becomes ‘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.’” Tinker, 129 N.E.3d at 256 (quoting Austin v. State, 997
N.E.2d 1027, 1034 (Ind. 2013)).
[16] The United States Supreme Court defined the acceptable duration of a traffic
stop in Rodriguez v. United States, 575 U.S. 348, 135 S. Ct. 1609 (2015), wherein
it held that the outer limit of the seizure is determined by the “mission” of the
traffic stop.
In the context of a traffic stop, an officer’s mission is to address
the underlying traffic violations that warranted the stop and
attend to related safety concerns. This includes checking the
driver’s license, determining whether there are outstanding
warrants against the driver, and inspecting the vehicle’s
registration and proof of insurance. While these checks serve the
same objective as enforcement of the traffic code: ensuring that
vehicles on the road are operated safely and responsibly, a canine
sniff, by contrast, is a measure aimed at detecting evidence of
ordinary criminal wrongdoing. Thus, a traffic stop prolonged
beyond the time reasonably required to complete the stop’s
mission is unlawful. The critical question, then, is not whether Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 10 of 15
the dog sniff occurs before or after the officer issues a ticket, but
whether conducting the sniff prolongs—i.e., adds time to—the
stop. The burden is on the State to show that the time for the
traffic stop was not increased due to a canine sniff.
Tinker, 129 N.E.3d at 256 (internal citations and quotations omitted). “The
United States Supreme Court recently re-emphasized that a police officer
cannot ‘incremental[ly]’ lengthen a traffic stop by even a de minimis amount
beyond the time needed to complete the mission of the stop.” Browder v. State,
77 N.E.3d 1209, 1214 (Ind. Ct. App. 2017) (quoting Rodriguez, 575 U.S. at 357,
135 S. Ct. at 1616), trans. denied. A traffic stop ends when a reasonable person,
having been previously seized, would believe herself free to leave, or “whether a
reasonable person would have felt free to decline the officers’ requests or
otherwise terminate the encounter,” Florida v. Bostick, 501 U.S. 429, 438, 111 S.
Ct. 2382, 2388 (1991), though an officer is not required to inform a person that
he or she is free to go for the seizure to terminate. Ohio v. Robinette, 519 U.S.
33, 35, 117 S. Ct. 417, 419 (1996).
[17] We emphasize that such traffic stop cases require highly fact-sensitive inquiries.
See, e.g., Ertel, 928 N.E.2d at 265 (referring to the “fact-sensitive nature of each
case”). For example, in Curry v. State, 90 N.E.3d 677, 684 (Ind. Ct. App. 2017),
we first noted that “‘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.’” (quoting State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010)). We then
observed that: (1) the stop was brief in duration; (2) the officer was “still waiting
for a response to his criminal history and warrant request when the dog Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 11 of 15
alerted;” and (3) “[n]o additional time was expended to summon the canine
unit to the scene.” Curry, 90 N.E.3d at 684-86. We concluded that neither the
officer’s questions nor the dog sniff unconstitutionally prolonged the traffic
stop.
[18] More recently, in Thayer v. State, 144 N.E.3d 843, 847-48 (Ind. Ct. App. 2020),
we noted that the officer was still in the process of inputting the information
into the ticket-issuing software when the dog sniff occurred. We also observed
that sometimes additional steps will need to be taken in order to verify a driver’s
identity if questions still remain after documentation has—or has not—been
produced. Id. Again, we concluded that the traffic stop was not
unconstitutionally prolonged.
[19] In the case at bar, the trial court found that “the officer’s inquiries into matters
unrelated to the justification for the traffic stop did not convert the traffic stop
into something other than a lawful seizure, because the inquiries did not
significantly extend the duration of the stop.” Appellant’s App. Vol. II p. 66.
On that point, we agree. Additionally, however, the trial court held that the
traffic stop should have concluded prior to the dog sniff. If that were the case,
then the trial court’s ultimate conclusion—that the subsequent de minimis
extension of the stop was permissible—would plainly run afoul of the Fourth
Amendment. See, e.g., Browder, 77 N.E.3d at 1214 (quoting Rodriguez, 575 U.S.
at 357, 135 S. Ct. at 1616). Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 12 of 15
[20] Nevertheless, unlike the trial court, we find that the mission of the stop was not
concluded when the canine sniff was conducted. Some inquiries incident to the
authorized aims of ensuring traffic and officer safety fall within the boundaries
of a stop’s mission. Tinker, 129 N.E.3d at 256. In addition, though not
enjoying categorical permissibility, many courts have held that questions
pertaining to a traveler’s itinerary may also further the mission. See, e.g., United
States v. Cortez, 965 F.3d 827, 838 (10th Cir. 2020), cert. denied, 141 S. Ct. 1250;
United States v. Garner, 961 F.3d 264, 271 (3d Cir. 2020), cert. denied, 141 S. Ct.
687; United States v. Dion, 859 F.3d 114, 125 (1st Cir. 2017), cert. denied, 138 S.
Ct. 346. Questions about a driver’s itinerary and registration “rarely offend our
Fourth Amendment jurisprudence.” United States v. Lyons, 687 F.3d 754, 770
(6th Cir. 2012); see also United States v. Collazo, 818 F.3d 247, 258 (6th Cir. 2016),
cert. denied, 137 S. Ct. 169; United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259
(10th Cir. 2006) (“Such limited questioning is proper, because an officer may
routinely ask about travel plans and ownership during a lawful traffic stop.”);
United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (en banc) (“[Q]uestions
that do not increase the length of detention (or that extend it by only a brief
time) do not make the custody itself unreasonable.”), cert. denied, 123 S. Ct. 126.
[21] When Officer Arndt stepped out of his vehicle, his intent was to speak with
Tway’s passengers. Officer Arndt initially separated Tway from his passengers
“[t]o avoid the potential for a fabricated story between them and the other
people.” Tr. Vol. II p. 13. At the time of the dog sniff, Officer Arndt was still
attempting to verify that Tway owned the PT Cruiser. At the time, Officer Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 13 of 15
Arndt was not able to match the temporary registration and car title to Tway,
and believed that Tway’s story as to when the car was purchased was
inconsistent. Officer Arndt asked the passengers “what the[ ] relationship [was]
between them and Mr. Tway and the purpose of their trip with him and if they
knew who the vehicle belonged to.” Id. at 25 (emphasis added). Thus, the
questions pertained to the travelers’ itinerary and the ownership of the vehicle.
[22] We recognize that a simple records check will not always be dispositive of a car
registration’s provenance and that, on occasion, additional inquiry will be
necessary. “An officer’s inquiries into matters unrelated to the justification for
the traffic stop . . . do not convert the encounter into something other than a
lawful seizure, so long as those inquiries do not measurably extend the duration
of the stop.” Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 788 (2009).
[23] We conclude that Officer Arndt was still engaged in an “inspection” of the car’s
registration when he asked the passengers about the ownership of said car.
Tinker, 129 N.E.3d at 256. Officer Arndt was, therefore, continuing to fulfill
the mission of the stop. Given that the dog sniff occurred contemporaneously
with those questions, the dog sniff did not prolong the stop. Because we
conclude that the dog sniff occurred prior to the moment when the traffic stop
was constitutionally required to end, we need not address the arguments
pertaining to reasonable suspicion. We hold that, under the Fourth
Amendment, the trial court did not err in denying Tway’s motion to suppress
evidence. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 14 of 15
II. State Constitutional Challenge
[24] Tway’s challenge, however, is not concluded. Our Indiana Constitution
provides protection against unreasonable searches and seizures as well. See Ind.
const. art. 1 § 11. “Even though the Fourth Amendment and Article 1, Section
11 share parallel language, they part ways in application and scope. The
Indiana Constitution sometimes affords broader protections than its federal
counterpart and requires a separate, independent analysis from this Court.”
Marshall, 117 N.E.3d at 1258 (citing Dycus v. State, 108 N.E.3d 301, 304 (Ind.
2018)). Given our conclusion that the traffic stop was not prolonged by the dog
sniff, however, Tway is not benefitted by the protections of our State
Constitution.
[25] Tway concedes that the justification for pulling him over was legitimate. Tway
also recognizes that a dog sniff is not a “search” for constitutional purposes.
Appellant’s Br. p. 10 (citing Wilson v. State, 847 N.E.2d 1064, 1067 (Ind. Ct.
App. 2006)). We further note that, in this case, the amount of time that passed
between Tway being pulled over and the beginning of the dog sniff was
approximately twenty-five minutes. Tway argues that Officer Arndt lacked
reasonable suspicion to continue to hold Tway past that point. We have
already found, however, that Officer Arndt did not need reasonable suspicion,
because the mission of the traffic stop was ongoing. Thus, Tway’s argument
under the State Constitution is moot. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1710 | June 24, 2021 Page 15 of 15
[26] Accordingly, given that our de novo review of the legality of the traffic stop
finds that the stop was constitutional, we conclude that the trial court did not
err in denying Tway’s motion to suppress.
Outcome: The traffic stop did not violate either the United States Constitution or the
Indiana Constitution. Accordingly, we affirm the denial of the motion to
suppress evidence.
Plaintiff's Experts:
Defendant's Experts:
Comments: