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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.

FILED
Nov 30 2011, 9:24 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: CHARLES L. MARTIN Martin & Martin Boonville, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOHN A. ASHBY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 87A04-1103-CR-113

APPEAL FROM THE WARRICK SUPERIOR COURT The Honorable Robert R. Aylsworth, Judge Cause No. 87D02-0911-FD-101

November 30, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary John A. Ashby ("Ashby") presents this discretionary interlocutory appeal from the trial courts denial of his motion to suppress evidence obtained when his vehicle was stopped by the Warrick County Sheriff, Marvin Heilman ("Sheriff Heilman"), who was responding to an emergency call of a domestic dispute. Ashby presents one issue for our review, whether the trial courts denial of his motion to suppress evidence was improper because Sheriff Heilman stopped Ashbys vehicle without the reasonable suspicion required under the Fourth Amendment to the United States Constitution. We affirm. Facts and Procedural History We derive our facts from Sheriff Heilmans testimony at the hearing on Ashbys motion to suppress. On September 3, 2009, at around 5:30 p.m., Sheriff Heilman was driving to the Warrick County Courthouse in Boonville for a county council meeting when he heard a dispatch call regarding a domestic violence incident. Because he was closer to the location of the call than officers for the Boonville Police Department, Sheriff Heilman responded. Upon approaching the location of the call, a residence, Sheriff Heilman saw two women in the front yard. One of the women called out to Sheriff Heilman that "he had just left in that blue Neon and he had been drinking." (Tr. 5-6.) Sheriff Heilman understood "he" to be the individual concerning whose actions the call to police was made; Sheriff Heilman would later identify this individual as Ashby. Based on this information, and without getting out of his car, Sheriff Heilman decided 2

to follow the blue Neon in order to stop its driver and inquire about events at the residence. By the time Sheriff Heilman began to follow him, Ashby was a block away and had begun to turn a corner, but was still in Sheriff Heilmans sight. Sheriff Heilman pulled up behind Ashby at a stop sign and followed Ashby for a little over a half-mile before turning on the police cars emergency lights and initiating a traffic stop. Sheriff Heilman did not observe Ashby engaging in any improper driving. Instead, he stopped the vehicle because Ashby "had left the scene of the domestic violence call and I didnt know what his role was or if he was the suspect or victim or really what had happened back at the house ... again, the only information I had was there was a crime that had occurred." (Tr. 7.) After stopping the car, Sheriff Heilman approached Ashby and spoke with him about the domestic violence call. During the conversation, Sheriff Heilman indicated that based upon his general appearance and the smell of his breath, Ashby appeared to have reached "some level of intoxication." (Tr. 7.) Sheriff Heilman also observed a six-pack of beer in Ashbys back seat; three bottles were missing from the pack. At some point during the stop, Officer Whitney from the Boonville Police Department arrived at the scene, and Sheriff Heilman handed off continued investigation of the incident. Before Sheriff Heilman left, however, Officer Whitney administered a portable breath test, the results of which led Officer Whitney to bring Ashby to the sheriffs office for additional testing. Subsequent testing determined that Ashbys blood alcohol concentration was 0.11. Ashby was placed under arrest. 3

On November 23, 2009, Ashby was charged with Operating a Vehicle While Intoxicated Endangering a Person, as a Class A misdemeanor1; Operating a Vehicle with a Blood Alcohol Concentration Between .08 and .15, as a Class C misdemeanor2; Operating a Vehicle While Intoxicated, as a Class C misdemeanor3; Operating While Intoxicated With Prior Conviction, as a Class D felony4; and Battery, as a Class A misdemeanor.5 On October 7, 2010, Ashby filed a motion to suppress evidence, arguing that Sheriff Heilmans stop was illegal and that all evidence obtained after the stop, including breath analysis tests and all observations made of Ashby, should be suppressed from evidence at trial. A hearing was conducted on Ashbys motion on October 19, 2010, at the conclusion of which the trial court took the motion under advisement. On November 22, 2010, the trial court found Sheriff Heilmans stop to be reasonable and therefore denied Ashbys motion to suppress evidence. On December 21, 2010, Ashby moved the trial court to certify its order for interlocutory appeal; the trial court granted the motion on February 10, 2011. We accepted jurisdiction, and this appeal followed. Discussion and Decision Ashby brings this interlocutory appeal from the denial of a motion to suppress evidence, contending that Sheriff Heilmans stop violated the Fourth Amendment to the

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Ind. Code

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