ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory F. Zoeller Joseph M. Cleary
Attorney General of Indiana David R. Hennessy
Indianapolis, Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
FILED
______________________________________________________________________________
Jun 03 2010, 2:04 pm
In the
CLERK
Indiana Supreme Court of the supreme court,
court of appeals and
tax court
_________________________________
No. 49S02-0910-CR-428
STATE OF INDIANA,
Appellant (Defendant below),
v.
ROBERT RICHARDSON,
Appellee (Plaintiff below).
_________________________________
Appeal from the Marion County Superior Court, No. 49G20-0707-FA-135662
The Honorable William Young, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0807-CR-583
_________________________________
June 3, 2010
Sullivan, Justice.
Defendant Robert Richardson was stopped for driving his pickup truck without wearing a
seatbelt. The police officer‟s subsequent inquiry regarding a “large, unusual bulge” in his pocket
led to the discovery of cocaine. The trial court concluded that this inquiry went beyond that au-
thorized by Indiana‟s Seatbelt Enforcement Act. We agree with the trial court‟s determination.
Background
On July 10, 2007, Indianapolis Metropolitan Police Officer Tanya Eastwood was work-
ing an overtime shift when she drove past a pickup truck stopped at a stop sign and noticed that
the driver, Robert Richardson, was not wearing a seat belt.1 Officer Eastwood approached the
truck and recognized Richardson from a prior traffic stop, during which she had encountered no
problems with him. Richardson was immediately cooperative with Officer Eastwood and admit-
ted that he did not have his seat belt on. While speaking to the passenger, Officer Eastwood no-
ticed “a very large, unusual bulge” in Richardson‟s pocket. Officer Eastwood asked Richardson
what was in his pocket, and he told her that it was his handgun. Officer Eastwood requested
Richardson‟s handgun permit and asked him to exit the vehicle so she could retrieve his gun.
Richardson‟s handgun permit appeared tattered and wrinkled. The issue date of the per-
mit was “06/12/2006,” but the last digit of the year of the expiration date was illegible. 2 Officer
Eastwood‟s personal routine was to perform a criminal background check on anyone with a
handgun, regardless of the presence of a permit, so she radioed headquarters.3
Headquarters initially informed Officer Eastwood that Richardson had a “prior conviction
for possession of cocaine and public intox.” (Tr. at 22.) Richardson told Officer Eastwood that
his prior conviction was a misdemeanor, and Officer Eastwood therefore asked two sources at
headquarters if Richardson‟s prior conviction was a felony or a misdemeanor. Despite three in-
quiries, headquarters was unable to respond definitively, ultimately telling Officer Eastwood:
it shows up that it is a felony D possession of cocaine and the strange thing is I
looked under sentencing and I know he got probation, it doesn‟t tell me what pro-
1
The seat belt enforcement statute was amended effective July 1, 2007, just nine days prior to the present
incident, to require occupants of all motor vehicles, including pickup trucks, to wear safety belts. See Ind.
Code § 9-19-10-2 (Supp. 2008) (as amended by P.L. 214-2007 § 7).
2
Four years is the minimum time for which a handgun permit is issued in Indiana. See I.C. § 35-47-2-
3(e) (“A four (4) year license shall be valid for period of four (4) years from the date of issue.”).
3
Although Officer Eastwood admitted that there was nothing specific about Richardson‟s handgun per-
mit that made her suspect that it was counterfeit, she said she generally felt that all handgun permits could
be easily forged.
2
bation he got. [B]ut it shows him only serving 20 days so I don't know how accu-
rate that is.
Id. Officer Eastwood did not use her laptop computer in her patrol car to check Richardson‟s
criminal history, nor did she check the validity of Richardson‟s handgun permit with headquar-
ters.
Officer Eastwood then placed Richardson under arrest for “having a firearm with a prior
felony conviction within the last fifteen years.” (Tr. at 33.) Another police officer who had ar-
rived to assist Officer Eastwood started to pat down Richardson and felt a large object in Rich-
ardson‟s underwear. Richardson began to struggle with the officers and attempted to flee. The
officers forced Richardson down onto an embankment where he continued to resist and at-
tempted to place his hands in his pants. During the struggle, Richardson kicked Officer East-
wood in the chest, and Officer Eastwood attempted to use a taser on him. Although this proved
ineffective, the officers were eventually able to subdue Richardson. The object in Richardson‟s
underwear was later determined to be cocaine.
On July 11, 2007, the State charged Richardson with Class A felony dealing in cocaine,
Class C felony possession of cocaine, Class C felony possession of cocaine and a firearm, Class
A misdemeanor resisting law enforcement, and Class A misdemeanor battery on a law enforce-
ment officer. Richardson filed a motion to suppress the evidence, and the trial court held a hear-
ing on this motion and subsequently granted Richardson‟s motion to suppress.
The State appealed, and the Court of Appeals reversed, holding that the officer‟s ques-
tions and actions were reasonable under the totality of the circumstances and that the trial court
erred in granting Richardson‟s motion to suppress the evidence seized in connection with the seat
belt violation. State v. Richardson, 906 N.E.2d 263 (Ind. Ct. App. 2009). Richardson sought,
and we granted, transfer. Ind. Appellate Rule 58(A).
3
Discussion
I
Richardson contends that the search incident to arrest offends the proscriptions on unrea-
sonable searches and seizures contained in the Fourth Amendment to the United States Constitu-
tion and article I, section 11 (“Section 11”), of the Indiana Constitution. Because we resolve
Richardson‟s claim on statutory grounds, we do not address Richardson‟s constitutional argu-
ments.
Indiana Code section 9-19-10-3.1, also known as the Seatbelt Enforcement Act (“Act”),
provides that “a vehicle may be stopped to determine compliance with this chapter. However, a
vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be
inspected, searched, or detained solely because of a violation of this chapter.” In Baldwin v.
Reagan, 715 N.E.2d 332 (Ind. 1999), we upheld the constitutionality of Indiana Code section 9-
19-10-34 against a challenge that the statute unconstitutionally provided authority for entirely
pretextual traffic stops. We reasoned that the statute could be constitutionally applied because
under it law enforcement officers could stop motorists only where they had reasonable suspicion
that a seat belt violation had occurred. On the basis of the language of the statute, we agreed
with the Attorney General‟s position that “the statute requires that when a stop to determine seat
belt law compliance is made, the police are strictly prohibited from determining anything else,
even if other law would permit.” Baldwin, 715 N.E.2d at 339. We also stated that the statute
could be read to prohibit a police officer making a seat belt stop from even asking the driver for
consent to search the vehicle or its occupants. Id. at 339 n.8.
At the same time, the police are not ousted of authority to investigate further if the cir-
cumstances warrant. “[A] brief police detention of an individual during investigation is reasona-
ble if the officer reasonably suspects that the individual is engaged in, or about to engage in, il-
4
The statute was amended in 2007 and is now located at Indiana Code section 9-19-10-3.1. The relevant
language contained in the amended version is identical to that contained in the version Baldwin inter-
preted.
4
legal activity.” Id. at 337. We place the burden on the State to show that under the totality of the
circumstances its intrusion was reasonable. Id.
In Trigg v. State, 725 N.E.2d 446, 448 (Ind. Ct. App. 2000), the Court of Appeals inter-
preted Baldwin to allow for a limited search for weapons when an officer makes a traffic stop
based on reasonable suspicion that a seat belt violation has occurred. However, the Court said
that a limited search for weapons must be “the result of actions or behavior on the part of the de-
fendant after the initial stop that led a police officer to fear for his safety.” Trigg, 725 N.E.2d at
448 (emphasis added). The Court reasoned that under such circumstances, a limited search for
weapons after a stop under the Act is not a search “solely because of a violation” of the seat belt
law. Id at 448-49. The search is not to discover evidence of a crime, but to permit the officer to
pursue the investigation without fear for his or her own safety and that of others. Id. at 449. The
Court concluded that where circumstances existed beyond the seat belt violation itself, a limited
search for weapons was not prohibited by the Act. Id. See also Pearson v. State, 870 N.E.2d
1061, 1066 (Ind. Ct. App. 2007) (where a defendant is cooperative, a limited pat-down search for
weapons during a seat belt stop is usually unreasonable, but ultimately concluding that the li-
mited search for weapons was reasonable given the police officer‟s knowledge of the defendant‟s
violent conduct on two prior occasions), trans. denied; State v. Morris, 732 N.E.2d 224, 228 (Ind.
Ct. App. 2000) (cautioning that a traffic stop based solely upon the failure of the driver or the
passenger to wear a seat belt does not provide reasonable suspicion for the officer to “unilaterally
expand [an] investigation and „fish‟ for evidence of other possible crimes.”).
Did Officer Eastwood‟s inquiry, during a traffic stop for a seat belt violation, regarding a
“large, unusual bulge” in the defendant‟s pocket, cross the line? The State relies on our decision
in State v. Washington, 898 N.E.2d 1200, 1207-08 (Ind. 2008), to contend that Officer East-
wood‟s inquiry was entirely proper because under Section 11, an officer may ask a motorist
whether he or she has weapon on his person. However, Washington did not involve a seat belt
stop; the defendant was stopped for, inter alia, repeatedly driving a moped left of center. Id. The
language of the Act and subsequent case law clearly dictate that in adopting the Act, the Legisla-
ture intended the statute to limit, rather than expand, police authority with respect to seat belt en-
forcement stops and sought to circumscribe the power of police to use a seat belt stop as an op-
5
portunity to inspect, search, or detain on other grounds, even if constitutional law would permit
such police behavior. See Baldwin, 715 N.E.2d 332. Given the language of the Act itself, the
Attorney General‟s own position in Baldwin interpreting that language, and the case law, the Act
simply does not permit investigatory behavior based solely on a seat belt violation unless cir-
cumstances arise after the stop that independently provide the officer with reasonable suspicion
of other crimes.
Trigg, Morris, and Pearson comport with Baldwin. An officer may conduct a limited
search or inquiry concerning weapons without obtaining a search warrant if the officer reasona-
bly believes that he or others may be in danger. But Baldwin makes clear that “[r]easonable sus-
picion exists where the facts known to the officer, together with the reasonable inferences arising
from such facts, would cause an ordinarily prudent person to believe that criminal activity has or
is about to occur.” Baldwin, 715 N.E.2d at 337 (emphasis added).
Here, Officer Eastwood initiated a traffic stop solely under the Act after she observed
Richardson driving without wearing a seat belt. When Officer Eastwood approached Richard-
son‟s car, she recognized him from a prior traffic stop, during which she had encountered no
problems with violence or resistance. Additionally, Richardson was immediately cooperative
with Officer Eastwood and admitted that he was not wearing his seat belt. While Officer East-
wood did observe an “unusual bulge,” this fact standing alone did not provide the independent
basis of reasonable suspicion that Baldwin requires, especially in light of Richardson‟s imme-
diate compliance and Officer Eastwood‟s prior peaceful exchanges with Richardson. Cf. Morris,
732 N.E.2d at 228 (finding an independent basis for further inquiry above and beyond the seat
belt violation, where the defendant failed to produce a valid license, and a computer check later
revealed his license was suspended). On these facts, we agree with the trial court that Officer
Eastwood‟s questioning about the “unusual bulge” contravened the Act.
There will, of course, be circumstances where something more than an “unusual bulge”
will be visible, or other conditions that provide a police officer with the requisite reasonable sus-
picion to conduct further inquiry. This is not one of them. And even if the facts were such that
Officer Eastwood‟s questioning about the bulge was proper, the fact remains that Richardson‟s
6
production of a valid gun permit should have resulted in the termination of any further question-
ing.
II
The State contends in the alternative that even if the initial arrest of Richardson was not
based upon sufficient probable cause, Richardson‟s own conduct created separate probable cause
to arrest him for forcibly resisting arrest and battery on a law enforcement officer. Specifically,
the State maintains that the legality of the initial arrest was an issue that was rendered moot once
Richardson elected to fight and kick the officers while they tried to peacefully place him under
arrest.
At common law, a person was privileged to resist an unlawful arrest. See Gross v. State,
186 Ind. 581, 583, 117 N.E. 562, 564 (1917). Our courts, however, have uniformly accepted that
this common law rule is outmoded in today‟s modern society. See Fields v. State, 178 Ind. App.
350, 355, 382 N.E.2d 972, 975 (1978) (holding that a private citizen may not use force or resist a
peaceful arrest by one he knows or has good reason to believe is an authorized officer perform-
ing his duties, regardless of whether the arrest is legal or illegal); accord Dora v. State, 783
N.E.2d 322, 327 (Ind. Ct. App. 2003), trans. denied; Shoultz v. State, 735 N.E.2d 818, 823 (Ind.
Ct. App. 2000), trans. denied. In 1976, the Legislature, recognizing this modern trend, enacted
the resisting law enforcement statute, Indiana Code section 35-44-3-3, which makes it a crime to
“(1) forcibly resist[], obstruct[], or interfere[] with a law enforcement officer or a person assist-
ing the officer while the officer is lawfully engaged in the execution of the officer‟s duties[.]”
Additionally, Indiana Code section 35-42-2-1(a)(1)(B), makes battery, if committed upon a law
enforcement officer, a Class A misdemeanor. Id. (“A person who knowingly or intentionally
touches another person in a rude, insolent, or angry manner commits battery, a Class B misde-
meanor. However, the offense is[] (1) a Class A misdemeanor if . . . (B) it is committed against
a law enforcement officer . . . .”).
Our standard of appellate review of a trial court‟s ruling on a motion to suppress is simi-
lar to other sufficiency issues. State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006). The record must
7
disclose substantial evidence of probative value that supports the trial court‟s decision and we
will not reweigh the evidence. Id. Here, the record is insufficient to permit us to give the issue
presented by the State the meaningful appellate review deserved, and we will not reweigh the
evidence in the absence of a detailed and complete record. Upon remand, the trial court should
consider whether there is sufficient evidence supporting the State‟s theory that Richardson‟s ac-
tions of forcibly resisting arrest and battery upon a law enforcement officer were severable of-
fenses independent of the seat belt search that warrant prosecution.
Conclusion
For the reasons set forth above, we affirm the trial court‟s findings concerning the sup-
pression of the cocaine found on Richardson as a result of the search conducted pursuant to the
seat belt violation. We remand the case to the trial court for further findings concerning whether
Richardson‟s conduct created separate probable cause to arrest him for forcibly resisting arrest
and battery upon a law enforcement officer.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
8