Opinion
24A-CR-159
10-22-2024
Richard Lynell Pigott, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney for Appellant Justin R. Wall Wall Legal Services Huntington, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Huntington Superior Court The Honorable Jennifer E. Newton, Judge Trial Court Cause No. 35D01-2203-F2-70
Attorney for Appellant Justin R. Wall Wall Legal Services Huntington, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
SHEPARD, SENIOR JUDGE
[¶1] Richard Pigott appeals his conviction and sentence for several drug offenses. He contends it was error for the trial court to admit evidence seized during a search of his vehicle following a dog sniff because it unreasonably prolonged the traffic stop without the officer having reasonable suspicion. In addition, Pigott challenges his sentence as inappropriate. Finding no basis for reversal on these claims, we affirm but remand for correction of the sentencing order.
Facts and Procedural History
[¶2] In March 2022, Huntington Police Department Officer Brock Armstrong performed a license plate check on a vehicle that he was following during his regular patrol at 1:40 a.m. The check revealed that the registered owner of the vehicle had an active warrant. Based on this information, Officer Armstrong stopped the car. The officer then discovered that the driver and sole occupant of the vehicle was not the owner but was instead Pigott. Officer Armstrong was familiar with Pigott and was aware that Pigott's driving privileges were suspended, which Pigott acknowledged. The officer allowed him to contact a licensed driver to come to the scene and drive the vehicle.
[¶3] As Officer Armstrong was talking to Pigott, he noticed in the back seat of the vehicle a backpack with a small figurine attached. The officer recognized the backpack as being "associated with" Pigott; however, when Officer Armstrong asked Pigott about the backpack, Pigott appeared to be "very nervous" and responded that it was not his. Tr. Vol. 2, p. 226. Based on these circumstances, Officer Armstrong requested a K-9 officer.
[¶4] Deputy Austin Smith of the Huntington County Sheriff's Department arrived with his K-9 partner, who performed an open air sniff around the car. The dog alerted to the presence of drugs, and the officers then asked Pigott to exit the vehicle. Officer Armstrong searched Pigott and found a baggie of what appeared to be marijuana. The officers then searched the car and found inside the backpack a digital scale, marijuana roaches, and substances that were later determined to contain methamphetamine, marijuana, and a mix of heroin and fentanyl. In addition to these items, the officers seized Pigott's cell phone.
[¶5] The State charged Pigott with dealing in meth, a Level 2 felony; possession of a narcotic drug, a Level 6 felony; and Class B misdemeanor possession of marijuana with the possibility of enhancement to a Class A misdemeanor due to a prior conviction. Pigott moved to suppress the items seized from the backpack, and, following a hearing, the court denied the motion. A jury subsequently found Pigott guilty as charged, and the court sentenced him to an aggregate sentence of twenty-five years. Pigott now appeals.
Issues
[¶6] Pigott presents two issues for our review, which we restate as:
I. Whether the court erred by admitting the evidence obtained in the search of the vehicle following the dog sniff; and
II. Whether his sentence is inappropriate.
Discussion and Decision
I. Admission of Evidence
[¶7] Although Pigott challenges the court's denial of his motion to suppress evidence obtained during the vehicle search, that issue is no longer viable. Baird v. State, 854 N.E.2d 398, 403 (Ind.Ct.App. 2006), trans. denied. Rather, because he appeals following a completed trial, the issue before us is properly framed as whether the trial court abused its discretion in admitting the evidence at trial. Bulthuis v. State, 17 N.E.3d 378, 382 (Ind.Ct.App. 2014), trans. denied. We review the propriety of the admission of evidence for an abuse of discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind.Ct.App. 2016), trans. denied. An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court. Paul v. State, 971 N.E.2d 172, 175 (Ind.Ct.App. 2012).
[¶8] Pigott does not dispute the validity of the initial traffic stop. Instead, he asserts the purpose of the stop was complete prior to the dog sniff and Officer Armstrong lacked reasonable suspicion to detain him beyond that. Therefore, separately claiming violations of both the federal and state constitutions, he argues the subsequent search of the vehicle was invalid and the evidence obtained was inadmissible. However, when a defendant argues the admission of evidence constituted a constitutional violation, we apply a de novo standard of review. Miller v. State, 201 N.E.3d 683, 687 (Ind.Ct.App. 2022).
A. Fourth Amendment
[¶9] Pigott first argues a violation of the Fourth Amendment, which protects against unreasonable searches and seizures. The dog sniff of a vehicle is not a search protected by the Fourth Amendment. Ramsey v. State, 222 N.E.3d 1038, 1045 (Ind.Ct.App. 2023), trans. denied. However, a dog sniff is "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." Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013).
[¶10] Officer Armstrong testified that, once Pigott's driver arrived and was seated in the vehicle, the purpose of the traffic stop was concluded. See Tr. Vol. 2, pp. 37, 38. We agree, and the State does not dispute this. Accordingly, because the open air sniff occurred after the completion of the stop, we must decide whether Officer Armstrong possessed reasonable suspicion that Pigott was engaged in criminal activity to justify the prolonged detention.
[¶11] While reasonable suspicion is a less demanding standard than probable cause, it still requires a minimal level of objective justification and more than an unparticularized suspicion or hunch that criminal activity is occurring. State v. Gray, 997 N.E.2d 1147, 1153 (Ind.Ct.App. 2013) (quoting State v. Schlechty, 926 N.E.2d 1, 7 (Ind. 2010)), trans. granted, 3 N.E.3d 540, and trans. Vacated, 9 N.E.3d 659 (Ind. 2014). The existence of reasonable suspicion is determined on a case-by-case basis by examining the totality of the circumstances. Gray, 997 N.E.2d 1153 (quoting Bush v. State, 925 N.E.2d 787, 791 (Ind.Ct.App.), clarified on reh'g, 929 N.E.2d 897 (2010)). In conducting our review, we are mindful that suspicious behavior, by its very nature, is ambiguous, and we presume that the officers involved have relied on their training and experience as well as common sense judgments and inferences about human behavior. Ramsey, 222 N.E.3d at 1045.
[¶12] We first note that Officer Armstrong's testimony at the suppression hearing was more detailed than his trial testimony. When a party fails to fully develop the testimony of a witness at trial, and thus, the trial testimony does not go as far as testimony from the suppression hearing, trial courts and courts on appeal may consider and rely upon the foundational evidence presented at the suppression hearing that is not in direct conflict with the evidence at trial. Kelley v. State, 825 N.E.2d 420, 426-27 n.4 (Ind.Ct.App. 2005). Accordingly, we will consider Officer Armstrong's testimony from the suppression hearing insofar as it does not conflict with the evidence at trial.
[¶13] At the suppression hearing, Officer Armstrong testified to the basis for his familiarity with Pigott prior to the stop at issue. On December 4, 2021, the officer was involved in a traffic stop in which Pigott was in the back seat of a vehicle near a jar of marijuana and a large amount of cash. Tr. Vol. 2, p. 27. Pigott was charged with dealing in methamphetamine in relation to that incident. Id. at 48.
[¶14] Armstrong additionally testified that later that month on December 27, he encountered the black backpack with the figurine when he was involved in executing a search warrant in the apartment of Pigott's friend. Id. at 33, 29. In one of the bedrooms of the apartment, officers found the backpack, which contained items of paraphernalia and a letter addressed to "B. Richard" from John Carpenter and mailed from the Wabash County Jail. Id. at 30, 45, 33; Ex. Vol. 4, pp. 6, 14-16 (Exs. 1, 9-11). The letter contained instructions for the most successful way to smuggle illegal substances into the jail. See id. at 33; Id. at 1516 (Exs. 10-11). In that bedroom, officers also found Pigott's identification card; Pigott's social security card; small baggies; a faux book safe containing a baggie, white powder residue, and a weight for a scale; charging information paperwork in a case entitled State of Indiana v. Richard Lynell Pigott; and an optometric prescription bearing Pigott's name. Id. at 31-32; Ex. Vol. 4, pp. 8-13 (Exs. 3-8). Officer Daniel Lowes of the Huntington City Police Department, who also took part in the search, testified at the suppression hearing that the primary resident of the apartment told officers the bedroom they searched was occupied by Pigott. Tr. Vol. 2, p. 49. Officer Armstrong further testified that when he saw the same backpack during the stop at issue in this case, he inquired whether there was anything of an illegal nature in the vehicle, and Pigott responded, "there should not be." Id. at 28.
[¶15] At trial, Officer Armstrong simply confirmed that he was familiar with Pigott prior to the stop at hand and was aware of the status of Pigott's driving privileges. Tr. Vol. 2, p. 225. He testified that as he talked with Pigott, he noticed the black backpack with the figurine attached and that he was familiar with the backpack and its connection to Pigott. Id. at 225-26. The officer also testified that Pigott appeared very nervous during the stop and denied ownership of the backpack. Id. at 226. He testified that while he prepared a citation for Pigott and waited for Pigott's driver to arrive, he requested a K-9 officer. Id. at 250. Deputy Smith and his K-9 partner arrived within approximately ten to fifteen minutes and performed an open air sniff. Tr. Vol. 3, p. 2; Tr. Vol. 2, p. 229. The dog alerted to the presence of drugs in the vehicle, and Officer Armstrong and other officers then searched Pigott and the vehicle. Id. at 228-29.
[¶16] Here, Officer Armstrong's experience and common sense judgments regarding human behavior in general, and Pigott in particular, carry the day. The officer was familiar enough with Pigott that he knew, even before he performed a records check, that Pigott did not have a valid driver's license. In addition, the officer was aware of Pigott's prior drug charge. And as Officer Armstrong spoke with Pigott, he observed the backpack which he recognized from the prior search of a room that contained drugs, paraphernalia, Pigott's personal items, and correspondence detailing the procedure for smuggling drugs into a jail. Though the officer knew the backpack to be associated with Pigott, when asked, Pigott told the officer it belonged to someone else. In addition, Pigott appeared very nervous during his interaction with the officer and indicated to the officer there was nothing of an illegal nature in the vehicle. Thus, the totality of the circumstances in this case leads us to conclude that Officer Armstrong had sufficient independent reasonable suspicion to justify Pigott's prolonged detention. See, e.g., Thayer v. State, 904 N.E.2d 706, 710 (Ind.Ct.App. 2009) (noting that nervousness combined with deceptive responses to officer's questions can foster reasonable suspicion of criminal activity).
B. Article 1, Section 11
[¶17] We now turn to Pigott's separate argument under the Indiana Constitution. Article 1, section 11 protects citizens from unreasonable searches and seizures, and, although its text mirrors the Fourth Amendment, we interpret it separately and independently. Robinson v. State, 5 N.E.3d 362, 368 (Ind. 2014). When a section 11 claim is raised, the State must show the police conduct was reasonable under the totality of the circumstances. Id. (quoting State v. Washington, 898 N.E.2d 1200, 1206 (Ind. 2008)). A determination of the reasonableness of the conduct turns on a balance of three factors: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities; and (3) the extent of law enforcement needs. Robinson, 5 N.E.3d at 368 (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).
[¶18] Here, as he has acknowledged, Pigott was in clear violation of the law by operating a vehicle without a valid license. In addition to his familiarity with Pigott, Officer Armstrong promptly observed the black backpack that he recognized from the prior search and asked Pigott about it. The degree of suspicion of criminal activity increased exponentially upon this observation and Pigott's deceptive response as well as his nervous behavior.
[¶19] The degree of police intrusion on Pigott's ordinary activities was relatively low, as he was delayed beyond the initial stop only about twenty-five minutes. At trial, Officer Armstrong explained that, after Pigott's driver arrived, a slight delay occurred because his attempt to call Deputy Smith directly was unsuccessful due to the late hour. Tr. Vol. 2, p. 228. He requested dispatch to contact the deputy, who then quickly returned his call. Id. Deputy Smith and his K-9 partner arrived within about ten to fifteen minutes. Tr. Vol. 3, p. 2.
[¶20] With respect to the remaining factor, the needs of law enforcement to find evidence of drug activity is obviously high. See State v. Gibson, 886 N.E.2d 639, 643 (Ind.Ct.App. 2008) (assessing needs of law enforcement and noting that trafficking of illegal drugs is frequently associated with violence and that "no simpler method exists for detection of hidden drugs than a dog sniff"); see also Austin v. State, 997 N.E.2d 1027, 1036-37 (Ind. 2013) (observing that law enforcement needs are great in arena of drug trafficking). Pigott concedes this factor. See Appellant's Br. p. 24.
[¶21] We conclude the warrantless search was reasonable in light of the totality of the circumstances and thus did not violate Pigott's rights under article 1, section 11. Therefore, the trial court did not err by admitting the evidence found in the search of the vehicle.
II. Inappropriate Sentence
[¶22] Indiana Appellate Rule 7(B) authorizes us to revise a sentence if we determine it to be inappropriate in light of the nature of the offense and the character of the offender. Although Rule 7(B) requires us to consider both of these factors, the appellant is not required to prove that each of them independently renders his sentence inappropriate. Turkette v. State, 151 N.E.3d 782, 786 (Ind.Ct.App. 2020), trans. denied. Rather, they are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate. Id.; see also Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (confirming that while reviewing courts must consider both factors, defendant need not necessarily prove sentence is inappropriate on both counts). Our determination "turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Modification under Rule 7(B) is reserved for rare and exceptional cases. Wilmsen v. State, 181 N.E.3d 469, 472 (Ind.Ct.App. 2022) (quoting Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018)).
[¶23] Our Supreme Court has long said that sentencing is "'principally a discretionary function in which the trial court's judgment should receive considerable deference.'" Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1222). This deference prevails unless overcome by "'compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).'" Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind.Ct.App. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)), trans. denied. The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Reynolds v. State, 142 N.E.3d 928, 944 (Ind.Ct.App. 2020), trans. denied.
[¶24] Our analysis of the nature of the offense starts with the advisory sentence, as it is the starting point selected by the legislature as an appropriate sentence for the crime. Reis v. State, 88 N.E.3d 1099, 1104 (Ind.Ct.App. 2017). Pigott was convicted of dealing in meth, a Level 2 felony, for which the sentencing range is between ten and thirty years, with an advisory sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5 (2014). He was also convicted of possession of a narcotic drug, a Level 6 felony, for which the sentencing range is between six months and two and one-half years, with an advisory sentence of one year, and possession of marijuana, a Class A misdemeanor, for which the sentence may not exceed one year. Ind. Code §§ 35-50-2-7(b) (2019), 35-50-3-2 (1977). The trial court sentenced Pigott to concurrent terms of twenty-five years for his methamphetamine conviction, two years for his narcotic drug conviction, and 180 days for his marijuana conviction, for an aggregate sentence of twenty-five years.
[¶25] To further assess the nature of the offenses, we look to the details and circumstances surrounding them. Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). In his brief, Pigott succinctly concedes that his offenses "involve dealing in an illegal substance that contribute to the scourge of drug usage in our society." Appellant's Br. p. 27.
[¶26] Our analysis of a defendant's character involves a broad consideration of a defendant's qualities, including age, criminal history, background, past rehabilitative efforts, and remorse. Pritcher, 208 N.E.3d at 668. In examining a criminal history, the significance varies based on the gravity, nature, temporal proximity, and number of prior offenses in relation to the current offense. Id. However, even a minor criminal record reflects poorly on a defendant's character. Id. In addition, the fact that a defendant has committed an offense while on probation is a "substantial consideration" in our assessment of his character. Rich v. State, 890 N.E.2d 44, 54 (Ind.Ct.App. 2008), trans. denied.
[¶27] Considering Pigott's character, we observe his criminal history began with offenses in November 2021 that resulted in misdemeanor convictions of carrying a handgun without a license and possession of marijuana. He quickly escalated his criminal conduct with more serious offenses the very next month by committing misdemeanor marijuana possession as well as felony dealing in methamphetamine. Then, while on probation, he committed the present offenses in March 2022. The trial court rightly considered this history to be aggravating. See Tr. Vol. 3, p. 88.
[¶28] In sum, Pigott offers no compelling evidence that portrays the nature of his offenses or his character in a positive light to overcome the deference we show to a trial court's sentence.
[¶29] Pigott correctly notes that the sentencing order erroneously states he was convicted of possession of marijuana as a Class A misdemeanor and requests that it be corrected. Appellant's Br. pp. 26-27; Appellant's App. Vol. II, p. 29. At sentencing, the State confirmed to the court that Pigott's conviction was a Class B misdemeanor because the State had not gone forward with enhancing that charge. Tr. Vol. 3, p. 86. Thus, we remand for this correction.
Conclusion
[¶30] We therefore conclude the trial court did not abuse its discretion by admitting the evidence seized during the search of the vehicle Pigott was driving following an open air sniff because, although the sniff occurred following the completion of the traffic stop, the officer possessed reasonable suspicion to further detain Pigott. In addition, Pigott failed to meet his burden of establishing that his sentence is inappropriate. And finally, we remand for the correction of the sentencing order consistent with this decision.
[¶31] Affirmed and remanded.
Pyle, J., and Kenworthy, J., concur.