from the Hamilton Superior Court The Honorable J. Richard
Campbell, Judge Trial Court Cause No. 29D04-1602-F6-1201.
Attorney for Appellant Christopher J. Evans Dollard Evans
Whalin LLP Noblesville, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
Samuel J. Dayton Deputy Attorney General Indianapolis,
Patrick Neil Tinker appeals his convictions, following a jury
trial, for level 6 felony dealing in marijuana and class B
misdemeanor possession of marijuana. During a valid traffic
stop of Tinker's vehicle, police officers conducted a dog
sniff around the vehicle. After the canine alerted to the
presence of an illegal substance, officers searched the
vehicle and found marijuana in the trunk. Tinker
unsuccessfully moved to suppress the evidence obtained during
the search, arguing that the dog sniff prolonged the traffic
stop in violation of his constitutional rights. The evidence
was subsequently admitted at trial over his renewed
objection. The sole restated issue on appeal is whether the
trial court abused its discretion in admitting the evidence
obtained as a result of the search. Finding no abuse of
discretion, we affirm.
and Procedural History
On February 16, 2016, Fishers Police Department Officer
Joseph Hancock was on street patrol conducting traffic stops
on Interstate 69. At approximately 11:27 p.m., Officer
Hancock was in his fully marked police vehicle parked in the
median near exit 206 when he observed a vehicle heading
northbound make "some lane movements." Tr. Vol. 2.
at 105. Specifically, the vehicle was "in the left lane,
[and] quickly jumped over to the right without proper
signaling" and then "moved back into the left
lane[.]" Id. After Officer Hancock started
following the vehicle, the driver "switched again to the
right lane without proper signaling" and then at one
point "straddled two lanes of traffic."
Id. Officer Hancock remembered observing the same
vehicle traveling southbound on Interstate 69 approximately
forty-five minutes earlier, when he saw it make rapid lane
changes and slam on its brakes; he had been unable to
"get out on it" safely so he did not attempt a
traffic stop at that time. State's Ex. 1.
Officer Hancock activated his emergency lights and initiated
a traffic stop of the vehicle a little after 11:27 p.m.
Officer Hancock approached the passenger side of the vehicle
and asked both the driver and the passenger for
identification and spoke to them briefly about where they had
been and where they were going. The men indicated that they
had traveled from Fort Wayne to Indianapolis and were
returning to Fort Wayne. Tinker was the driver and Jerome
Dowdell was the passenger. Both Tinker and Dowdell
"appeared nervous" and "wouldn't make eye
contact" with Officer Hancock, and their "breathing
was a little elevated." Tr. Vol. 2 at 107. Officer
Hancock collected each man's identification and returned
to the police vehicle. At that point, Officer Hancock
requested an assisting officer because he "knew that
[he] was going to get the driver out and explain the warning
to him and to talk to him a little more" and
"[i]t's just standard practice to officer's
safety to always have another officer there."
Id. at 15. Officer Hancock also called for a canine
unit. Officer Hancock did so because he believed it was
strange that the two men had stated that they were headed
back to Fort Wayne from Indianapolis. Having remembered
seeing that same vehicle just forty-five minutes earlier,
Officer Hancock thought that was an uncommonly "quick
turnaround." Id. at 107.
Officer Hancock ran background checks on both Tinker and
Dowdell and remained in his police vehicle until an assisting
officer arrived on the scene at 11:36 p.m. Officer Hancock
spoke with the assisting officer and informed him that his
background checks revealed prior drug and handgun possession
charges against both Tinker and Dowdell. At almost 11:38
p.m., Officer Hancock returned to Tinker's vehicle and
asked Tinker to step out of the vehicle. As Tinker opened the
door and exited the vehicle, Officer Hancock could smell the
distinct odor of raw marijuana. Officer Hancock asked Tinker
if he could pat him down, and Tinker consented. Then Officer
Hancock explained to Tinker exactly why he pulled him over,
and he stated that he planned to give Tinker only a verbal
warning for the traffic infractions. Officer Hancock also
questioned Tinker to clarify where he and Dowdell came from
and where they were headed. Tinker told Officer Hancock that
they were from Fort Wayne and had come to Indianapolis to a
barber shop either to meet a friend or to get a haircut, and
now they were headed back to Fort Wayne.
At 11:40 p.m., Officer Hancock requested Dowdell to also exit
the vehicle in order to ask him the same questions, and while
he was speaking to Dowdell, at 11:41 p.m., the canine unit
was on the scene and immediately did a walk around the
vehicle. The canine quickly alerted on the vehicle, and a
subsequent search of the vehicle's trunk revealed 3.45
pounds of marijuana packaged in vacuum-sealed bags. Officers
also found two cell phones during the search of the vehicle.
Tinker and Dowdell were arrested.
The State charged Tinker with two counts of level 6 felony
dealing in marijuana, and two counts of class B misdemeanor
possession of marijuana. Tinker filed a motion to suppress
the evidence obtained as a result of the search of his
vehicle. Following a hearing, the trial court entered an
order denying the motion to suppress. A jury trial was held
on August 30, 2018. During trial, Tinker renewed his
objection to the admission of any evidence obtained as a
result of the search of his vehicle. The trial court
overruled his objection and admitted the evidence. The jury
found Tinker guilty of one count of level 6 felony dealing in
marijuana and one count of class B misdemeanor possession of
marijuana. The trial court sentenced Tinker to 730
days, with sixty days executed in the Department of
Correction, 305 days on home detention, and 365 days
suspended to probation. This appeal ensued.
Tinker asserts that the trial court abused its discretion in
admitting evidence seized during the search of his vehicle.
Our supreme court has explained our standard of review when,
as here, a defendant fails to seek interlocutory review of
the trial ...