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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
Dec 12 2008, 10:10 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: STEVE CARTER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

ATTORNEY FOR APPELLEE: D. ALAN LADD Ladd Thomas Sallee & Adams

IN THE COURT OF APPEALS OF INDIANA
STATE OF INDIANA, Appellant-Plaintiff, vs. ELIZABETH PULUTI, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 49A02-0804-CR-391

APPEAL FROM THE MARION SUPERIOR COURT The Honorable William J. Nelson, Judge Cause No. 49F07-0703-CM-36351

December 12, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

The State appeals the suppression of evidence following a traffic stop of Elizabeth Puluti. The State argues the court erred because the officers had reasonable suspicion to stop Puluti's car. We reverse. FACTS1 AND PROCEDURAL HISTORY On March 3, 2007, at approximately 3:22 a.m., Puluti was driving her Mitsubishi Eclipse in downtown Indianapolis. While traveling westbound on Market Street, she stopped at a red traffic light at the intersection of Market Street and Illinois Street. What happened thereafter is disputed. Puluti asserts she smoothly proceeded forward on Market Street after the light turned green without spinning her tires or fishtailing. She then stopped her car a half a block up Market to allow her passenger to exit the car across the street from his apartment building. Officer Donald Weilhamer was standing on a sidewalk along Illinois Street, just south of the intersection with Market Street, talking to another police officer, Erich Hench. The officers claim Puluti's Mitsubishi accelerated quickly, spinning the tires, jumping, and fishtailing as she proceeded west on Market. Both officers got into their cars to follow the Mitsubishi. When they turned onto Market Street, the Mitsubishi had already stopped in the middle of the street, and a passenger was preparing to exit the car. The officers stopped their cars and approached the Mitsubishi. When Officer
Our review of the case was impeded by the State's failure to include a Statement of the Facts in its brief. We direct the State to follow the format for briefs provided in our appellate rules.
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Weilhamer approached, he noted Puluti's breath smelled of alcohol, her speech was slurred, her eyes were bloodshot and glazed, her manual dexterity was impaired, her attitude was abusive, and her clothes were disheveled. Puluti refused to take a portable breath test, and she failed the horizontal gaze nystagmus test. Officer Weilhamer

informed Puluti of Indiana's Implied Consent Law, but Puluti refused to submit to a chemical test for intoxication. Officer Weilhamer obtained a search warrant for Puluti's blood and took her to Wishard Hospital for a blood draw. The test result indicated her blood alcohol level was .24%. The State charged Puluti with a driving infraction for an unsafe start, with Class A misdemeanor operating a vehicle while intoxicated, and with Class A misdemeanor operating a vehicle with a blood alcohol content of .15 percent or more. Puluti filed a motion to suppress. After hearing evidence, the court granted Puluti's motion in a docket entry that provided: "The Court having been duly briefed by State and Defense now grants Defendant's Motion to Suppress." (Appellant's Br. at 7.)2 DISCUSSION AND DECISION When the State appeals the grant of a motion to suppress, it appeals a negative judgment. State v. Litchfield, 849 N.E.2d 170, 174 (Ind. Ct. App. 2006), trans. denied 860 N.E.2d 589 (Ind. 2006). We may reverse a negative judgment only if the court's ruling was contrary to law or if all the evidence and reasonable inferences lead to a conclusion opposite that of the trial court. Id. As we conduct our review, we may not
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The State did not provide a copy of the order in its Appendix. Accordingly we cite the copy at the back of the State's brief.

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reweigh the evidence or reassess the credibility of the witnesses. Id. Rather, we consider only the evidence favorable to the trial court's ruling. See State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006) (we consider conflicting evidence most favorable to the trial court's ruling). The State asserts the officers' traffic stop of Puluti was proper under both the federal constitution3 and state constitution4 because the officers observed Puluti commit two traffic infractions. We agree with the State that police officers may stop vehicles in accordance with constitutional requirements if the officers observe a traffic infraction. See id. ("A traffic violation, however minor, creates probable cause to stop the driver of the vehicle."). However, we do not agree with the State that the trial court was required to view the evidence as the State does. The State first insists the officers saw Puluti commit an "unsafe start." "A person

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The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Cannon v. State, 839 N.E.2d 185, 191 (Ind. Ct. App. 2005), summarily aff'd 866 N.E.2d 770, 774 (Ind. 2007). Nevertheless, a police officer may detain a person briefly to investigate without a warrant or probable cause "if the stop is based upon specific and articulable facts together with rational inferences from those facts, the intrusion is reasonably warranted, and the officer has reasonable suspicion that criminal activity may be afoot." Id. When determining whether reasonable suspicion existed, we consider whether the totality of the circumstances offer a particularized and objective basis for suspecting legal wrongdoing. Barrett v. State, 837 N.E.2d 1022, 1027 (Ind. Ct. App. 2005) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)), trans. denied 855 N.E.2d 995 (Ind. 2006). An officer had reasonable suspicion if "the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe criminal activity has occurred or is about to occur." Cannon, 839 N.E.2d at 191. 4 Article I, Section 11 provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated . . . ." The purpose of this Section is "to protect from unreasonable police activity those areas of life that Hoosiers regard as private." State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006). We are to liberally construe this provision, and the State has the burden to demonstrate an intrusion was reasonable under the totality of the circumstances. Id.

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may not start a vehicle that is stopped, standing, or parked until the movement can be made with reasonable safety." Ind. Code

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