MEMORANDUM DECISION
Apr 17 2015, 9:21 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John D. Fierek Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew C. Stevens, April 17, 2015
Appellant-Defendant, Court of Appeals Cause No.
06A05-1404-CR-144
v. Appeal from the Boone Superior
Court; The Honorable Rebecca S.
McClure, Judge;
State of Indiana, 06D02-1102-CM-128
Appellee-Plaintiff.
May, Judge.
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[1] Andrew Stevens was convicted after a bench trial of Class A misdemeanor
operating a vehicle with an alcohol concentration equivalent to at least fifteen-
hundredths gram of alcohol per one hundred (100) milliliters of blood or two
hundred ten liters of breath.1 He argues on appeal his Fourth Amendment
rights were violated when police entered his garage without a warrant or his
consent after he committed a traffic infraction, and the trial court should not
have admitted his blood test results.
[2] We affirm.
Facts and Procedural History
[3] On February 17, 2011, a Zionsville police officer noticed Andrew Stevens’
vehicle approaching him from behind at a high rate of speed that the officer
estimated was faster than the twenty mile-per-hour speed limit in that area. The
officer turned onto a side road, then after Stevens went past him he followed
Stevens with his lights activated. Stevens approached a stop sign and slowed to
ten-to-fifteen miles per hour but did not stop. Stevens maintained that speed
until he turned into his driveway and pulled into his garage.
[4] The officer pulled into Stevens’ driveway and approached Stevens, entering the
garage and identifying himself as a police officer. Stevens did not invite the
1
Ind. Code § 9-30-5-1(b).
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officer into the garage, and the officer did not have a warrant to enter it. 2 The
officer asked Stevens for his license and registration. While he was helping
Stevens find his registration, the officer noticed Stevens had the odor of an
alcoholic beverage on his breath, glassy, bloodshot eyes, and poor manual
dexterity.
[5] Stevens asked the officer if he could go inside the house to let his dogs out. The
officer told Stevens to remain outside, but Stevens entered his house anyway.
Stevens returned from the house with his dogs. The officer told him to remain
outside, but Stevens again went back into the house. He returned and the
officer told Stevens to sit in the police car, but Stevens turned to go inside the
house again. The officer blocked his path and had Stevens sit in the police car.
[6] Two Whitestown police officers arrived, and when the Zionsville officer left his
car to speak with them, Stevens exited the police car. The officers told him to
stay in the car but Stevens tried to exit it again. The officers then asked Stevens
2
In his Statement of Facts, Stevens says the officer “testified . . . he didn’t have probable cause to arrest
Stevens for anyting [sic] when he entered the garage (Tr. p. 37).” (Appellant’s Br. at 3.) Nothing on that
page of the transcript supports counsel’s statement the officer “didn’t have probable cause to arrest Stevens.”
That misrepresentation is of particular concern because it might, if true, directly affect the propriety of
Stevens’ conviction. See Haley v. State, 696 N.E.2d 98, 101 (Ind. Ct. App. 1998) (warrantless search can be
justified only by probable cause and an exception to the warrant requirement; “[a]lthough an exception may
justify proceeding without a warrant, it does not eliminate the need for probable cause”), trans. denied. And
see Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997) (finding factual misrepresentations “particularly
offensive because they would, if true, directly affect the propriety of the trial court grant of judgment on the
evidence”).
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to perform a field sobriety test but he would not. Stevens refused a chemical
test, and the officers obtained a search warrant for a blood draw.
[7] The officers took Stevens to a hospital where a blood sample was obtained. In
such a situation, the hospital takes two samples. One, which is placed in a tube
with a red stopper (“the red tube”), contains no additives and is used as a
preliminary test and analyzed immediately. The other, which is placed in a
tube with a gray stopper (“the gray tube”), contains an additive and is analyzed
later and used as a confirmatory test. The gray tube used for Stevens’ blood
draw was three years past its expiration date, but the expiration date refers only
to the guarantee of the tube’s vacuum. The confirmatory test showed Stevens’
alcohol concentration equivalent (“ACE”) was .23 grams of alcohol per 100
milliliters of blood, and the red tube test indicated a concentration between .18
and .22. Stevens was charged with operating a vehicle with an ACE over .15.
Both blood draws were admitted into evidence and the trial court determined
the Zionsville officer was justified in entering Stevens’ garage because Stevens
was fleeing and the officer was in pursuit.
Discussion and Decision
[8] Admission of evidence at trial is left to the discretion of the trial court. Clark v.
State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review its determinations for
abuse of that discretion and reverse only when admission is clearly against the
logic and effect of the facts and circumstances and the error affects a party’s
substantial rights. Id. at 260. The standard used to review rulings on the
admissibility of evidence “is effectively the same whether the challenge is made
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by a pre-trial motion to suppress or by a trial objection.” Rush v. State, 881
N.E.2d 46, 50 (Ind. Ct. App. 2008). We will not reweigh evidence and we
consider conflicting evidence most favorable to the trial court’s ruling. Id. We
will also consider any uncontested evidence in favor of the nonmovant. Id. We
will affirm the decision if it is supported by substantial evidence of probative
value. Id. The trial court’s ruling will be upheld if it is sustainable on any legal
theory supported by the record, even if the trial court did not use that theory.
Id. Harm arising from evidentiary error is “lessened if not totally annulled”
when, as in the case before us, the trial is by the court sitting without a jury.
Loman v. State, 265 Ind. 255, 260, 354 N.E.2d 205, 209 (1976).
Police Entry into Stevens’ Garage
The Fourth Amendment generally prohibits warrantless searches. Id. The
purpose of the Fourth Amendment is to protect the privacy and possessory
interests of individuals by prohibiting unreasonable searches and seizures. Id.
The touchstone of the Fourth Amendment is reasonableness, and
reasonableness is measured in objective terms by examining the totality of the
circumstances. Id.
If a warrantless search is conducted, the burden is on the State to prove that, at
the time of the search, an exception to the warrant requirement existed. Id.
That is, searches conducted without a warrant are per se unreasonable, subject to
a few well-delineated exceptions. Id. Whether a warrantless search violates the
guarantees of the Fourth Amendment depends on the facts and circumstances
of each case. Id.
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[9] The existence of exigent circumstances falls within the exception to the warrant
requirement. Id. In essence, the warrant requirement becomes inapplicable
when the exigencies of the situation make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable under the
Fourth Amendment. Id. Such circumstances include “hot pursuit.” Id.
[10] In denying Stevens’ motion to suppress, the trial court determined the officer
was in pursuit of Stevens after he saw Stevens “speeding through his residential
neighborhood, and failing to stop for a stop sign and signal to turn into his
driveway. Further, Stevens was fleeing from [the officer] after the officer
activated his emergency lights.” (App. at 99.) The officer was not required to
obtain a warrant to enter Stevens’ garage because he was in “pursuit.”
[11] A suspect “may not defeat an arrest which has been set in motion in a public
place . . . by the expedient of escaping to a private place.” United States v.
Santana, 427 U.S. 38, 43 (1976). We acknowledge the United States Supreme
Court’s statement in Welsh v. Wisconsin, 466 U.S. 740, 750 (1984), that
hesitation in finding exigent circumstances, especially when
warrantless arrests in the home are at issue, is particularly appropriate
when the underlying offense for which there is probable cause to arrest
is relatively minor. Before agents of the government may invade the
sanctity of the home, the burden is on the government to demonstrate
exigent circumstances that overcome the presumption of
unreasonableness that attaches to all warrantless home entries. See
Payton v. New York, supra, 445 U.S. [573, 586 (1980)]. When the
government’s interest is only to arrest for a minor offense, that
presumption of unreasonableness is difficult to rebut, and the
government usually should be allowed to make such arrests only with
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a warrant issued upon probable cause by a neutral and detached
magistrate.
[12] While we are mindful of that hesitation, we have explicitly held that where
there is immediate or continuous pursuit from the scene of a misdemeanor
crime to the door of the defendant’s home, a warrantless home arrest is
permitted. See State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App. 1984) (“[a]
police officer in continuous pursuit of a perpetrator of a crime committed in the
officer’s presence, be it a felony or a misdemeanor, must be allowed to follow
the suspect into a private place, or the suspect’s home if he chooses to flee there,
and effect the arrest without a warrant”). Admission of evidence obtained after
the officer followed Stevens into his garage was not error.
Admission of Confirmatory Blood Test Results
Stevens argues the gray tube evidence should have been excluded as unreliable
because the tube was three years past its expiration date when Stevens’ blood
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was drawn.3 As the challenge Stevens raises addresses only the weight of the
gray tube evidence and not its admissibility, we find no error. 4
[13] Ind. Code § 9-30-6-6(a) provides blood samples may be obtained by a
“physician or a person trained in obtaining bodily substance samples and acting
under the direction of or under a protocol prepared by a physician,” and such
“samples, test results, and testimony may be admitted in a proceeding in
accordance with the applicable rules of evidence.” Ind. Code § 9-30-6-6(c)(2).
Once the trial court has ruled a witness qualified as a matter of law5 to give
expert scientific testimony,
subsequent evaluation of that evidence goes only to its weight as a
matter of fact. Any . . . conflict as to the reliability of evidence is to be
resolved by the trier of fact, whose finding in this regard will be upheld
3
Stevens also notes a blood test, to be admitted, must be conducted by a “physician or a person . . . acting
under the direction of or under protocol prepared by a physician.” Ind. Code § 9-30-6-6(a). Stevens asserts
the phlebotomist who conducted the blood draw “testified that she does not work under the direction of” the
physician who is medical director for the facility because “[the physician] works a day shift and [the
phlebotomist] works a night shift.” (Appellant’s Br. at 15.)
Stevens does not direct us to anyplace in the record where such testimony might be found, nor does he offer
legal authority to support the premise a person cannot act “under the direction of” another unless both work
the same shift. We are therefore unable to address that argument. See, e.g., Thomas v. State, 965 N.E.2d 70,
77 n.2 (Ind. Ct. App. 2012) (a court that must search the record and make up its own arguments because a
party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator; on
review, we will not search the record to find a basis for a party’s argument nor will we search the authorities
cited by a party in order to find legal support for its position), trans. denied.
4
As admission of the gray tube evidence was not error, we need not address whether admission of the red
tube evidence was error as it was cumulative of the gray tube evidence.
5
Stevens does not argue on appeal the phlebotomist who drew Stevens’ blood was not “qualified as a matter
of law” to give expert scientific testimony. He does assert, without explanation or citation to the record, that
Dr. Scott Krieger, the acting director of the state Department of Toxicology, was “the only expert witness to
present evidence.” (Appellant’s Br. at 18.)
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on review as long as the favorable evidence adequately supports it, as
with any sufficiency question.
Hopkins v. State, 579 N.E.2d 1297, 1303-04 (Ind. 1991). That scientific testing
may be subject to error if not properly conducted is not a reason for rejecting
evidence adduced thereby. Burp v. State, 612 N.E.2d 169, 173 (Ind. Ct. App.
1993). The persuasiveness of evidence produced by such a test depends in large
part on the expertise of the witness who conducted it and is to be determined by
the trier of fact. Id.
[14] The phlebotomist testified she had been a laboratory phlebotomist for twelve
years and had done “[h]undreds” of blood draws and at least one hundred
“legal” blood draws. (Tr. at 99-100.) She testified she conducted Stevens’
blood draw pursuant to the hospital’s protocol.
[15] The gray tube was three years past its expiration date, and the phlebotomist
testified using an expired tube would not be “proper equipment selection.” (Id.
at 114.) While she had testified at one point that she conducted Stevens’ blood
draw pursuant to the hospital’s protocol, she later agreed that “part of the
protocol, one of the steps is proper equipment selection.” (Id. at 113.)
[16] Even if the phlebotomist violated hospital protocol by using an expired tube, we
decline to find reversible error in light of evidence the use of an expired tube did
not affect Stevens’ blood sample. Dr. Krieger testified the expiration date
referred only to whether the tube had a vacuum, which is necessary to cause
enough blood to flow into the tube to obtain an adequate sample. He testified
the vacuum “won’t affect [the sample result] at all.” (Id. at 267.) In State v.
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Bisard, 973 N.E.2d 1229, 1237 (Ind. Ct. App. 2012), trans. denied, we addressed
similar allegations a blood draw protocol was not followed: “There is no
contention on appeal that this mattered in any real-world sense, much less any
medical evidence so suggesting. Indeed, the only medical evidence in the
record is from a physician who testified that it did not.” Admission of evidence
Stevens’ ACE was .23 grams of alcohol per 100 milliliters of blood was not
reversible error.
Conclusion
[17] Stevens’ Fourth Amendment rights were not violated when police entered his
garage because the officer was in pursuit of Stevens, and admission of the blood
draw evidence was not error even though the gray tube had passed its
expiration date. We accordingly affirm.
[18] Affirmed.
Vaidik, C.J., and Friedlander, J., concur.
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Andrew C. Stevens v. State of Indiana (mem. dec.)
Combined Opinion