Maung Tway v. State of Indiana

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.

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.