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ATTORNEYS FOR APPELLANT Gregory F. Zoeller Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana

ATTORNEYS FOR APPELLEE David M. Seiter Joshua Taylor Indianapolis, Indiana

______________________________________________________________________________

FILED
of the supreme court, court of appeals and tax court

Indiana Supreme Court
_________________________________ No. 32S04-1102-CR-117 STATE OF INDIANA,

In the

Dec 29 2011, 1:11 pm

CLERK

Appellant (Plaintiff below),
V.

AMANDA RENZULLI, Appellee (Defendant below). _________________________________ Appeal from the Hendricks Superior Court, 32D04-0904-CR-194 The Honorable Mark A. Smith, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, 32A04-1003-CR-194 _________________________________ December 29, 2011

David, Justice. We have granted transfer in this case to address whether a police officer had reasonable suspicion to stop a vehicle based on a concerned citizen's tip of a possibl y intoxicated driver. At 1 a.m. on April 23, 2009, a 911 call was made by a motorist who identified himself and provided his phone number. The caller complained that he had been following a driver of a blue Volkswagen who had been driving erratically and was going to "kill somebody." The caller told the 911 operator the vehicle just pulled into a BP Gas Station. Within 90 seconds, an officer

arrived at the BP Gas Station and observed the blue Volkswagen. With this corroboration, the officer made an investigatory stop of Amanda Renzulli. The trial court granted Renzulli's motion to suppress the evidence on the grounds that there was no reasonable suspicion for the stop. We hold that the police officer in this instance did have reasonable suspicion and reverse the trial court. Facts and Procedural History The facts of this case are not in dispute. At approximately 1:00 a.m. on April 23, 2009, Andrew Davies called 911 to report a possibly intoxicated driver. Upon calling 911, Davies identified that he was on U.S. 40 in Plainfield. Davies then stated, "There is a uh, drunk driver in front of me, he is all over the road he is going to kill somebody," and thereafter told the operator, "[h]e run over the cement uh, center of ..." Davies then identified the car as "just pulling into a BP Gas Station and it's a blue Jetta," and later identified it as the BP Gas Station at U .S. 40 and Perry Road. Davies stated he was unable to get a license plate number because he "stayed away from it," and then identified the car with a different make, "[i]t looks like a Volkswagen Passat I believe it is." He then proceeded to give his name and telephone number to the 911 dispatcher. Shortly thereafter, the operator dispatched her information as follows: (Inaudible) all units stand by for broadcast, Plainfield units in the area of BP North, U.S. 40 and Perry Road, said a blue Jetta or a Passat that pulled into the BP Gas Station, vehicle described before pulled in there as weaving all over the road and had ran over the curb. (Inaudible) behind the vehicle, transcribed communications at 104.1 Sergeant Schnarr of the Plainfield Police Department was the first on the scene at the BP Gas Station.2 Schnarr exited his vehicle and began to approach a blue Volkswagen.3 At that moment, the vehicle began to back out of the parking spot, and Sergeant Schnarr asked the vehicle to stop. Schnarr then began speaking with the driver of the vehicle, identified as Amanda Renzulli. At that time, Officer Brian Stewart of the Plainfield Police Department arrived and
1

In the 911 tape played for the trial court, 90 seconds elapses between the call and officers arriving on the scene at the BP Station.
2

Sergeant Schnarr was unable to testify at the suppression hearing because he was at Camp Atterbury doing advanced sniper training. Officer Brian Stewart, who responded shortly after Schnarr, provided testimony at the hearing.
3

Officer Stewart was uncertain whether there were other blue Volkswagens in the parking lot at the time.

2

approached Renzulli and noticed she had bloodshot eyes, slurred speech, a strong odor commonly associated with alcohol, and poor manual dexterity. Stewart then administered three field sobriety tests on Renzulli. Renzulli failed each test. Renzulli was then arrested and taken for a blood draw to determine her blood alcohol content, which showed a blood alcohol concentration of .22 percent. Based on these facts, Renzulli was charged with operating a vehicle while intoxicated as a class D felony due to a prior conviction from 2005. Renzulli filed a motion to suppress the evidence, which the trial court granted. The State filed a motion to dismiss the case due to the suppression ruling and filed their notice of appeal. Standard of Review Pursuant to Indiana Code section 35-38-4-2(5), the State appeals from the suppression of evidence, which effectively precludes further prosecution. In reviewing a trial court's motion to suppress, we determine whether the record discloses "substantial evidence of probative value that supports the trial court's decision." State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006). We do not reweigh the evidence, but consider "conflicting evidence most favorably to the trial court's ruling." Id. When the State appeals from a negative judgment, as here, it "must show that the trial court's ruling on the suppression motion was contrary to law." State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008). A. Investigatory Stop Our analysis begins with Article 1, Section 11 of the Indiana Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. Investigatory stops invoke the Article 1, Section 11 protections of the Indiana Constitution. Rutledge v. State, 426 N.E.2d 638, 642 (Ind. 1981). An individual's right of free movement under Article 1, Section 11 is not absolute, for society has a right to protect itself. Williams v. State, 261 Ind. 547, 551, 307 N.E.2d 457, 460 (Ind. 1974). In balancing these factors, our courts gauge the reasonableness of an investigatory stop by striking "`a balance between the public interest [behind the investigation] and the individual's right to personal security free from arbitrary interference from law officers.'" Platt v. State, 589 N.E.2d 222, 225 3

(Ind. 1992) (alteration in original) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). An investigatory stop of a citizen by a police officer does not violate that citizen's constitutional rights if the officer has a reasonably articulable suspicion of criminal activity. Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind. 1997) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968); United States v. Hatch, 827 F. Supp. 536, 541 (N.D. Ind. 1993)). Reasonable suspicion is a "somewhat abstract" concept that is not readily reduced to a "neat set of legal rules." United States v. Arvizu, 534 U.S. 266, 274 (2002). As the Court of Appeals has written on the topic, A police officer may briefly detain a person for investigatory purposes without a warrant or probable cause if, based upon specific and articulable facts together with rational inferences from those facts, the official intrusion is reasonably warranted and the officer has a reasonable suspicion that criminal activity "may be afoot." Combs v. State, 851 N.E.2d 1053, 1057 (Ind. Ct. App. 2006). In Indiana, we have said that reasonable suspicion does not rise to the level of probable cause. Platt v. State, 589 N.E.2d 222, 226 (Ind. 1992). When making a reasonable suspicion determination, reviewing courts examine the "totality of the circumstances." Id. In Kellems v. State, 842 N.E.2d 352 (Ind. 2006), rev'd on other grounds, 849 N.E.2d 1110 (Ind. 2006), and its companion case Sellmer v. State, 842 N.E.2d 358 (Ind. 2006), we decided whether a telephone tip to the police provided the reasonably articulable suspicion of criminal activity necessary to justify an investigatory stop. In those cases, "we followed the directive of the Supreme Court that reasonable suspicion determinations are to be made `by looking at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing.'" Arvizu, 534 U.S. at 273). B. Concerned Citizen Tip Courts across this country evaluate the quality of information depending on if it was from a professional or criminal informant, or if it was from a cooperative citizen who witnessed or fell victim to a crime. We have addressed the issue in Pawloski v. State, 269 Ind. 350, 380 N.E.2d 1230 (1978). Reliability of the professional informant or anonymous tipster generally must be 4 Kellems, 842 N.E.2d at 354 (quoting

established by reference to underlying facts and circumstances which indicate that the information is trustworthy. Id. at 354, 380 N.E.2d at 1232. Our requirement for corroboration is necessitated because this type of information may be unreliable or self-serving, especially if given in return for favors such as money or leniency in possible criminal prosecution. Id. On the other hand, we recognize a concerned citizen tip is different. This tip is made up of people who may have been victims of crime or have witnessed a crime. Id. These individuals generally come forward with information out of a spirit of good citizenship and a desire to help law enforcement. Id. Some jurisdictions have therefore held informants of this type are considered more reliable. Id. In Kellems, we again reaffirmed our belief that there "may well be greater indicia of reliability in the report of the `concerned citizen' as distinguished from the `professional informant'

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