Canonge v. State

218 N.E.3d 620

Theodore J. CANONGE, Jr., Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 22A-CR-2451

Court of Appeals of Indiana.

Filed September 25, 2023

Attorneys for Appellant: Susan D. Rayl, Aaron J. Harshman, Morgan B. Brading, Harshman Ponist Smith & Rayl, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Catherine E. Brizzi, Deputy Attorney General, Indianapolis, Indiana

Foley, Judge.

[1] Theodore J. Canonge, Jr. ("Canonge") challenges the denial of his motion to suppress evidence obtained from a vehicle search, where law enforcement brought in a K-9 unit during a traffic stop and the dog alerted to the presence of contraband. He argues that the seizure violated the Fourth Amendment because law enforcement prolonged the traffic stop and otherwise lacked independent reasonable suspicion to conduct the dog sniff. Because we conclude that law enforcement had independent reasonable suspicion to conduct the dog sniff, we affirm the denial of the motion to suppress.

Facts and Procedural History

[2] Canonge faces four drug-related charges stemming from the discovery of contraband in a vehicle he was driving. Canonge moved to suppress evidence obtained from a search of the vehicle. At a hearing on Canonge's motion, the State presented evidence about a traffic stop conducted on April 22, 2021. The evidence included testimony from the officer who conducted the traffic stop, Officer Kevin Roach of the Avon Police Department ("Officer Roach"), and the officer who later brought his K-9 partner to the traffic stop, Officer Steven Kaspryzk of the Avon Police Department ("Officer Kaspryzk"). The evidence also included footage from a camera installed in Officer Roach's police vehicle.

[3] Officer Roach testified that he saw the driver of a Chevy Malibu commit multiple traffic violations, including changing lanes without proper signaling. He decided to conduct a traffic stop. When Officer Roach activated the lights of his patrol vehicle, he noticed "three (3) occupants moving about in the car, reaching in various locations and then continuously looking back at [his] patrol vehicle." Tr. Vol. II p. 13. When the Chevy Malibu pulled over and stopped, Officer Roach "saw movements continue inside the vehicle," with the "occupants reaching around[.]" Id. at 14. Officer Roach saw the occupants engaged in these movements "a few times at least." Id. at 17. From Officer Roach's vantage point, it seemed as though the occupants were "reaching down, across, ... like in the floorboard area[.]" Id. at 18. As Officer Roach approached the vehicle, he observed "backpacks at the floorboard[.]" Id.

[4] Before Officer Roach reached the front window to speak with the occupants, he noticed that the driver—Canonge—was already "reaching over" to hand documents to Officer Roach. Id. at 17. It seemed to Officer Roach that Canonge was "try[ing] to accelerate [sic] the stop" or "expediate [sic] the stop." Id. When asked to clarify why it seemed as though Canonge "was trying to expedite the stop," Officer Roach said: "It's unusual for ... a driver to present documentation before I even address them." Id. Officer Roach testified that he had conducted "around five hundred" traffic stops. Id. at 12. Reflecting on that experience, Officer Roach remarked: "I don't believe I've had another traffic stop where I have experienced that." Id. at 17. Officer Roach also noted: "[S]ometimes [the driver] may have [the documentation] in their hands, but they are not reaching over to hand it [to] me before I address them." Id.

[5] Officer Roach took the documents from Canonge and asked the front-seat passenger for his identification. The front-seat passenger complied with the request. However, Officer Roach observed that the passenger "wouldn't make eye contact" with him and "didn't speak ... when [Officer Roach] was talking to him[.]" Id. Officer Roach thought that the front-seat passenger's conduct was "a little unusual." Id. He also noticed that the front-seat passenger was "smoking a new cigarette, pretty rapidly," which he "kn[e]w to be indicative of a stressful situation for someone." Id. at 14. Officer Roach turned his attention to the backseat passenger, who "seemed really nervous" and was sitting completely still in "a statute[-]like state." Id. at 17. Officer Roach requested identification and, before that passenger "had the opportunity to answer," Canonge "interjected" and said that the passenger was a minor. Id. at 15.

[6] Officer Roach returned to his vehicle and began "running identification, vehicle information, things of that nature." Id. His investigatory steps included a criminal-history check through Indiana's MyCase system, which revealed "a couple of drug charges" between Canonge and the other adult occupant. Id. at 17. While Officer Roach was using the computer and "conducting [his] typical procedure with a traffic stop," he contacted officers with K-9 partners to inquire about availability for a dog sniff. Id. at 34. One officer was Officer Kaspryzk, who was addressing a roadside hazard. Officer Kaspryzk said he would bring over his K-9 partner after finding someone else to address the hazard. Officer Roach began writing a warning "to fill time until [Officer Kaspryzk] got there." Id. at 33. Officer Roach testified that he typically gave verbal warnings. When asked why he prepared a written warning on this occasion, he said: "I was waiting for an officer ... the K-9 officer to arrive to conduct the sniff. So, in the meantime I was occupying my time by writing the warning." Id. at 25.

[7] Officer Kaspryzk arrived about thirteen minutes later, which was about twenty-one minutes into the traffic stop. When Officer Kaspryzk arrived, Officer Roach exited his patrol vehicle and directed Canonge and the others to step out of the Chevy Malibu. Officer Kaspryzk then walked around the vehicle with a K-9 unit certified in detecting the odors of methamphetamine, heroin, cocaine, ecstasy, and marijuana. The dog gave a positive alert at the rear driver's side door. At that point, Officer Roach searched the vehicle, locating items that he suspected consisted of cocaine, methamphetamine, and marijuana.

[8] In lieu of oral arguments, Canonge and the State submitted briefs concerning the motion to suppress. Thereafter, on August 3, 2022, the trial court denied the motion. On September 6, 2022—more than thirty days later—Canonge moved to certify the order for interlocutory appeal. Following a hearing, the trial court granted the motion to certify. This Court later accepted jurisdiction.¹

Discussion and Decision

[9] According to Canonge, the trial court should have granted the motion to suppress evidence because the traffic stop resulted in an unreasonable seizure, contrary to the Fourth Amendment to the United States Constitution.²

[10] The Fourth Amendment provides the right to be free from "unreasonable searches and seizures"—a right that applies in Indiana because of the Fourteenth Amendment. Mapp v. Ohio , 367 U.S. 643, 654–55, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). To safeguard this right, evidence obtained through an unconstitutional search or seizure is generally excludable at trial. See, e.g. , Wong Sun v. United States , 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (recognizing that evidence may be excluded as "fruit of the poisonous tree"). A defendant may seek to exclude evidence by challenging the constitutionality of a search or seizure through (1) a pre-trial motion to suppress or (2) a timely objection at trial. Ind. Criminal Rule 2.7(B). In this case, Canonge is appealing the denial of his motion to suppress the evidence.

[11] When a defendant seeks to suppress evidence obtained through a warrantless search or seizure, the State bears the burden of proving the warrantless search or seizure was constitutional. Edwards v. State , 759 N.E.2d 626, 630 (Ind. 2001). In reviewing the denial of a motion to suppress, we defer to the trial court's proximity to the evidence by "construing conflicting evidence in the manner most favorable to the ruling." M.O. v. State , 63 N.E.3d 329, 331 (Ind. 2016). In conducting our review, we also consider "substantial and uncontested evidence favorable to the defendant." Id. (quoting Robinson v. State , 5 N.E.3d 362, 365 (Ind. 2014) ). Evaluating the evidence in this way, we decide de novo the legal question of whether the search or seizure was constitutional. Bunnell v. State , 172 N.E.3d 1231, 1234 (Ind. 2021) ; M.O. , 63 N.E.3d at 331.

[12] Canonge asserts that the traffic stop resulted in an unconstitutional seizure because law enforcement prolonged the traffic stop to bring in the K-9 unit and conduct a dog sniff. Canonge contends that the prolongment was improper because law enforcement lacked reasonable suspicion to conduct the dog sniff.

[13] A traffic stop is a seizure under the Fourth Amendment. Marshall v. State , 117 N.E.3d 1254, 1258 (Ind. 2019). For a traffic stop to comply with the Fourth Amendment, a police officer must have a lawful basis to initiate the stop, which includes "observ[ing] a driver commit a traffic violation." State v. Keck , 4 N.E.3d 1180, 1184 (Ind. 2014). Even if there is a lawful basis to initiate the stop, the Fourth Amendment does not condone indefinite seizure. See generally, e.g. , Illinois v. Caballes , 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Indeed, "a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution"—including the length of the seizure—"unreasonably infringes interests protected by the Constitution." Id. "[T]he tolerable duration of police inquiries ... is determined by the seizure's ‘mission[.]’ " Rodriguez v. United States , 575 U.S. 348, 354, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). In the traffic-stop context, that mission is to "address the traffic violation that warranted the stop ... and attend to related safety...