*1 come about as result change could also shame,
embarrassment, or frustration. to draw an permissible it
do not believe contrary where a in-
evidentiary inference likely. equally
ference is took
Finally, Long there is the fact when he vacated the personal property Wright. notice to To
real estate without
me, mid-April says noth- Long's action mid-February. intention in
ing about his before, evidentiary fact
As Long's part with intention on
consistent goods, equally for the but is pay
not to Wright with the conclusion that
consistent pay goods intended to for the when he
had
signed prem- the contract and vacated the he that he would not be
ises when learned estate, agreed for the real pay
able to
taking only tangible personal property property closing become his had to retain a Wright purchase
when failed
money security goods. interest in the baseball, runner; go ties procedure, they go
eriminal to the defen- Long's
dant. I would reverse conviction. Indiana, Appellant-Plaintiff,
STATE of RENZULLI, Appellee-
Amanda
Defendant.
No. 32A04-1003-CR-194. Indiana.
Oct.
Rehearing Denied Dec. *2 Zoeller,
Gregory Attorney F. General of Indiana, Cynthia Ploughe, Deputy Attor- General, IN, Attorneys ney Indianapolis, Appellant. for Seiter, Taylor, Garri- David M. Joshua LLC, Firm, IN, Indianapolis, son Law At- for torneys Appellee.
OPINION1 RILEY, Judge.
STATEMENT THE OF CASE Indiana, Appellant-Plaintiff, ap- State of the trial court's peals after the stop evidence obtained vehicle that Appellee-Defendant, Amanda (Renzulli), driving. Renzulli affirm. We ISSUE issue, presents The State one which we grant restate as: Whether motion to Renzullis is con- trary to law. AND
FACTS PROCEDURAL HISTORY approximately April At 1:00 a.m. on stated, phoned a caller 911 and "there is a drunk driver in front of me. kill going He's all over the road and he's somebody." (Appellant's p. The App. initially caller said that the vehicle was a Volkswagen blue Jetta but later identified Passat, Volkswagen a simi- vehicle as larly shaped and sized vehicle. caller publish opinion. I vote not 1. Under the criteria forth in set Further, enough stopped. to the vehicle to Officer Stewart did close get did not number. The caller not know who the 911 caller was and could plate a license get dispatch testify credibility officer as to the of the call- explained *3 pulled gas into a station the vehicle had er. gas location of the station. gave and the hearing, At the close of the the trial asked, gave caller his name and
When to suppress court took motion under number. phone 16, 2009, advisement. On October the trial at the gas arrived station Police officers to granted court the motion con- A blue Volkswagen moments later. was cluding responding that the officers to the space and the officers parked parking in a independent did not "establish an 911 call begin space. to back out of the observed it objective and basis to create reasonable stop commanded the vehicle to One officer suspicion necessary of criminal behavior complied having after and the driver investigatory stop." (Appellant's for an police a few feet. The officers only moved App. p. investigation, determined that
began an
appeals.
The State now
Additional facts
vehicle at the time of the
the driver of the
provided
necessary.
will be
Renzulli, and that
was intoxi-
stop was
she
cated.
AND
DISCUSSION
DECISION
day,
that same
the State filed an
Later
The State contends that the trial court's
operat-
Renzulli with
charging
Information
grant of the
to suppress
was con-
intoxicated,
a
ing a vehicle while
as Class
trary to law.
Specifically,
con-
misdemeanor,
9-80-5-2(b),
§
A
Ind.Code
a
tends
911 call was
sufficient
intoxicated,
a vehicle
operating
while
suspicion
stop
basis for reasonable
to
§
felony,
as a
D
1.C. 9-30-5-8. On
Class
driving.
vehicle that Renzulli was
September
Renzulli filed a motion
When we review a trial court's
to
the evidence obtained after the
on a motion
suppress,
decision
we deter
vehicle.
stop of her
mine whether the record discloses "sub
On October
the trial court con-
probative
stantial evidence of
value that
suppression hearing.
ducted a
The State
supports
trial
court's decision." State
called
Brian S. Stewart of the
Officer
v. Washington, 898 N.E.2d
(Officer
Department
Plainfield Police
(Ind.2008)
Quirk,
(quoting State v.
Stewart) as its sole witness. Officer Stew-
(Ind.2006)).
We will not
art
that he was not the officer
testified
reweigh the evidence.
Id. Because the
vehicle
ordered the
driven
Renzulli
appealing
negative judg
when
stop,
present
but was
that order
ment,
it must show that
was made. Officer Stewart did not wit-
ruling
contrary
to law. Id.
maneuvers,
ness the vehicle make
oth-
er
began
than when it
back out
"The Fourth Amendment to the
space just
prior
being
stop.
ordered to
United States
and Article
Constitution
He
personal
admitted that he did not have
11 of the
pro
Section
Indiana Constitution
knowledge
driving
privacy
as to who had been
tect the
possessory
interests
prior
vehicle
to pulling
parking
by prohibiting
into the
of individuals
unreasonable
spot.
Officer Stewart testified that he did
searches and seizures." Coleman
(Ind.Ct.App.2006),
know whether other blue cars or 847 N.E.2d
denied,
Volkswagens
parking
reh'g
Generally,
were located in the
demied.
trams.
lot of
gas
requires
judicially
station at the time Renzulli
lawful search
issued
where a search is con- with children
his vehicle. Id. The wom-
warrant,
search
but
vehicle,
gave
description
warrant,
the State has
ducted without a
number,
plate
along
his license
with infor-
proving
exception
that an
the burden
mation about where the vehicle was travel-
requirement
the warrant
existed
ing.
police
responded
Id. A
officer
A police
the search.
Id.
officer
time of
call, caught up with the vehicle while it
investigatory stop with-
may make a brief
if,
traveling,
confirming
and after
cause
"based
probable
out a warrant or
matched,
plate
number
stopped
license
together
upon specific and articulable facts
the vehicle. Id. at 854.
facts,
from those
with rational
inferences
*4
reasonably
warrant-
the official intrusion
Our supreme court found that there was
suspi-
the officer has a reasonable
ed and
suspicion
largely upon
reasonable
based
'may
activity
cion that criminal
be afoot.'"
"tipster
fact that
identified her-
State,
Moultry v.
808 N.E.2d
170-71 self." Id. at 355. The reasoning behind
Ohio,
(quoting Terry v.
(Ind.Ct.App.2004)
supreme
our
court's
"lim-
holding was the
1, 21-22,
20
392 U.S.
S.Ct.
ited scope
purpose"
Terry stop,
of a
(1968)).
suspi-
L.Ed.2d 889
"Reasonable
and also because an "identified informant's
concept,
cion is a 'somewhat abstract'
'reputation can be
...
[they
assessed and
neat
readily
legal
reduced to 'a
set of
may]
responsible
be held
allega-
[their]
"
State,
261, 264
rules." Ertel v.
928 N.E.2d
turn
tions
out to be fabricated....'"
Id.
(Ind.Ct.App.2010),
(quoting
trans. denied
J.L.,
(quoting Florida v.
529 U.S.
(2000).
Moultry, 808 N.E.2d at
Reasonable
120 S.Ct.
the 911 call as a from an identified wagen should be considered an identified citizen. informant or concerned In Kel citizen, opposed informant or concerned (Ind. v. lems and, thus, anonymous to an the was tip, tip 2006), reh'g grounds, reversed on on other a cireumstance which bore in favor of rea supreme "tip our court held that a from an suspicion. sonable we conclude informant or identified concerned citizen police 'couple' that failed to the con coupled police with some corroborative in tip cerned citizen's with corroborative in vestigation is sufficient to create reason vestigation. ("tip See id. at 358 from an suspicion investigative stop." able for an identified informant or concerned citizen case, In City Depart the Tell Police coupled police with some corroborative in ment call telephone received from a vestigation is sufficient to create reason by woman who identified herself name. suspicion investigative stop") able for an reported seeing Id. The woman a man that added). Kellems, (emphasis our su li driving preme police she knew name without a court twice noted that plate officer confirmed that the license insurance, intoxicated, cense or while MATHIAS, J., concurring in result. Kellems matched the driven the vehicle tip- citizen by the concerned given number I so concur result. do respectfully I however, Here, and 357. Id. at ster. procedural the State's deci believing that by the State testi- called witness the sole court level have forfeited sions at the trial another not know whether fied that he did appeal.2 car, Volkswagen or another blue lot at gas parking station in the parked the State's begin by noting It stopped. vehicle was time Renzulli's cases is limited. Sim criminal that another officer possible said, erimi- may appeal ply vehicle that Renzulli's to be sure checked only when authorized proceedings nal gas at the station only vehicle was the Gradison, v. statute. by the 911 description given matched (citing State (Ind.Ct.App.2001) caller, not introduce that State did but the Aynes, hearing. As evidence at 1999)); Hicks, see also State v. above, the State bears the we have stated Pease, (Ind.1983); State v. *5 to the exception that an proving burden of (both 1207, (Ind.Ct.App.1988) N.E.2d 1208 present. is Cole- requirement warrant cannot in criminal noting that State man, light at 262. of 847 N.E.2d authorized to do specifically cases unless police officers any lack of evidence statute). Important to our consider by so Renzulli's car was the corroborated that here, when State is authorized ations to, we the 911 caller referred vehicle which cases, in criminal statute to grant that the trial court's cannot conclude strictly because it con statute is construed contrary suppress of the motion to Pease, principles. common-law travenes law. (citing
BRADFORD, J., a motion to separate granting with From an order dissents opinion. dismiss an indictment or information. party raises the issue of the timeli 2. Neither sponte. Jernigan, the issue sua 894 N.E.2d Nevertheless, appeal. ness of the State's jurisdic timely filing notice of is a of a prerequisite tional that can be raised suc provide' clause 'if the court rules so 3. "[The sponte parties question if the do not even intended to differentiate between the re is jurisdictions Supreme spective jurisdiction. Jernigan v. 1044, (Ind.Ct.App.2008); thereby v. Appeals, Bohlander and act as a Court of Bohlander, 299, guide for the State as to which to counsel Jackson, properly 2007), appellate court the should (citing Georgos v. trans. denied Thus, not ... intended to (Ind.2003)). filed with. clause is sub waived, ject jurisdiction require adoption appellate court rules matter cannot be of authorizing appeals by v. obligated the State" State courts at all levels are to consider judgment ap- a final and was prosecution (2) for the judgment order or From an under Indiana Code section 35- defendant, pealable motion for dis- upon his his trial not delay 38-4-2(5). Hunter, of charge because See State v. act, upon plea (Ind.Ct.App.2009); or his by his caused (Ind.Ct. Snider, and ruled jeopardy, presented 892 N.E2d former judg trial. from this final prior to It was upon App.2008). have perfected ment that the State should (8) a motion to order From an appeal. correct errors.
(4) by the question reserved Upon notice of filing But instead of state, acquitted. if the defendant is Octo thirty days of the trial court's within (5) a motion to From an order pursuant ber evidence, the ultimate ef- if 9(A)(1), Rule filed preclude order is to further fect titled a "motion to reconsider" what it prosecution. later, three weeks on November almost if interlocutory order any From the trial court denied the motion the eourt on
trial court certifies and later, on November 2009.4 It one week on judge thereof finds appeal or well settled that a motion to reconsider petition that: "extend the time for further does not action, motion, (A) or required permitted or will suffer substan- appellant 53.4(A)5 injury Ind. Trial proceedings." damage, tial expense, the de- the order is erroneous and And, it was filed importantly, most because *6 withheld until termination thereof is judgment, entry final after of judgment; after should have been treated as State's motion to correct error. See Hubbard v. a motion (B) the order involves substantial (Ind.Ct. law, early Hubbard, determi- question of N.E.2d (a prop is App.1998) motion to reconsider a more promote nation of which will a mo case; only judgment, er before final disposition of the orderly judg final to reconsider filed after tion (C) remedy by appeal judg- after as a motion to ment should be considered inadequate. otherwise ment is error).6 correct (emphasis § Ind.Code 35-38-4-2 added). error, motion to correct Even as a cireumstances, normal under
Here,
granted Renzulli's
the trial court
thirty days
have had
on October
2009. would then
motion to
motion
of the trial court's denial of its
suppressed
court's order
date
Because the trial
appeal.
App.
file
notice of
See
R.
investiga-
from the
to
stemming
all evidence
effectively precluded further
9(A){(1). Here,
tory stop, it
appeal
the State's notice of
Williams,
Criminal Procedure.
Ritchie v.
the Rules of
statute).
1983)
(Ind.2004).
(referring
predecessor
to
12, 2009,
the State still had
4. As November
incorporate[d]"
"expressly
6. Trial Rule 59 is
thirty
time to file its notice of
within
16(B)
applicable
"insofar as
Criminal Rule
days of the trial court's October
any specific
in
with
and when not
conflict
suppress. See
order
the motion to
Supreme
adopted by the Indiana
rule
9(A)(1).
Ind.
procedure."
conduct of criminal
for
Ritchie,
apply
16(B);
Trial Rules
to criminal
5. The Indiana
N.E.2d at 268.
Crim. R.
proceedings
they
not conflict with
do
14, 2009, just with
statutory right
December
State's
to
in crimi
was filed on
derogation
nal cases is in
of the common
thirty-day
period.7
in
time
strictly
law and must therefore be
con
are not normal cireumstances
But these
Pease,
strued.
See
207 pro 'substantial evidence of forfeited when ord discloses appeal was State's the trial court's supports within bative value that notice of failed to file its it Washington, 898 The State State v. days after that order. decision'" thirty (Ind.2008) (quoting from its 1203 authority N.E.2d had no simply (Ind. reconsider, interim, Quirk, N.E.2d 340 v. denied State law a operation 2006)). that was motion reweigh the evidence. We do State, See State v. negative to correct errors. from a appealing Id. The 586, 587, N.E.2d Ind.App. Buckley, 175 show that the trial court's judgment, must curiam) con on the motion was ruling (dismissing (per controlling statute by State where trary to law. Id. authority provide did not It well-established that even a brief a new defendant following of its stop of an automobile and detention trial). constitutes a seizure under the oceupants ap- I that the State's Although believe of the States Fourth Amendment United dismissed, the ef- practical be peal should I, and Article section 11 of Constitution that the would be fect of such a dismissal Smith, the Indiana State v. Constitution. Renzulli's mo- trial court's order (Ind.Ct.App.1994). would remain undis- tion to investigative stop a brief Judge turbed. This is the same result as justified by suspicion reasonable Riley's conclusion ac person detained is involved eriminal should be affirmed on suppression order State, tivity. Finger v. concur in result.
the merits. I therefore (Ind.2003) Ohio, v. (citing Terry 1868, 20 L.Ed.2d 88 S.Ct. U.S. J., BRADFORD, dissenting. (1968)). suspicion "The reasonable stan the trial court Because I believe that demanding probable than dard is less erroneously Renzulli's motion to granted considerably requires showing cause the in- evidence, all evidence derived from preponderance less than a stop of Renzulli's vehicle and vestigatory minimal requires but it still at least a level timely ap- filed the instant that the State justification and more than an objective peal, respectfully dissent. unparticularized suspicion inchoate activity." Teague hunch of criminal Erroneously The Trial
I. Granted Renzulli's Motion justify investigatory In order to Suppress *8 officer must be able to stop, police erroneously I believe that the trial court and articulable facts point specific motion to be- granted Renzulli's which, together with the when considered police I conclude that officers cause would facts, inferences drawn from those rational stop ample suspicion had reasonable of suspicion create a reasonable criminal appeal, the State Renzulli's vehicle. On part conduct on the of the vehicle's occu sup- that the trial court erred in argues pants. Smith, at 1355.The 638N.E.2d the evidence that was recovered
pressing suspicion determination of reasonable during investigative stop traffic of Teague, de novo. reviewed offi- police Renzulli's vehicle because 1128. suspicion cers involved had reasonable investiga- make an police A officer stop. appellate "In the review of make tory upon of an automobile based suppress, stop the re- a trial court's that a police dispatcher information from a court determines whether the ree- viewing 208 reported had to believe the driver of the blue Volks-
concerned citizen erratically. being wagen, driven who was later determined to be automobile Smith, Generally, Renzulli, at 1855. N.E.2d in- operating a vehicle while victim of a citizen includes the concerned toxicated in violation of Indiana law. personally who wit person crime or a would therefore reverse the trial court's State, crime. Pawloski sup- Renzulli's motion to nesses a N.E.2d Ind. press. (1978). usually citizens are Concerned II. Timeliness is Not an Issue of such that no basis one-time informants Subject Matter Jurisdiction prior dealings exists from to determine matter, As an initial I would note that reliability. their Id. concerned challenge Renzulli did not of timeliness provide citizens who law enforcement offi the State's notice of before this identifying gen are cials with information Therefore, court. I believe that chal erally considered reliable because "a lenge timeliness of State's notice reputation known or identified informant's of has been waived. See Timber may] ... can be assessed and be held [he State, (Ind. lake v. allegations if responsible turn out to [his] 2001) (providing generally that an issue be fabricated...." Washburn v. available, was known and but not raised on (Ind.Ct.App.2007) (quota N.E.2d waived). appeal, agree direct it is While I omitted), tion trans. denied. Judge "timely with filing Mathias Here, I believe that the record estab- of appeal jurisdictional of notice is a lishes that the officers had reasonable sus- prerequisite, and failure to conform to the picion investigatory stop to conduct an applicable time limits results in forfeiture Renzulli's vehicle. The record establishes Bohlander, appeal," of an Bohlander v. that a concerned citizen alerted officers to 301 (Ind.Ct.App.2007), trans. by an driving driving erratic individual denied, I do not believe that timeliness is a Volkswagen.
blue
This
citizen
concerned
question
subject
jurisdiction.
matter
provided law enforcement officials with his
Subject
jurisdiction
matter
is "[JJurisdic
identity
phone
and his
number. He de-
tion over the nature of the case and the
driving
being
scribed the erratic
as
"all
type
sought."
of relief
Buack's Law Dictio
running
over the road" and
over a eurb.
Nary
(8th
Appellate
ed.
Indiana
p.
Tr.
concerned citizen notified
5(A) explicitly
Rule
defines
"nature of
law enforcement officials of both his loca-
types
cases and
sought"
of relief
over
tion and the location of the blue Volks-
subject
which this court
wagen.
juris
has
matter
light
coupled
these facts
5(A)
with the
rational
inferences that officers
diction. Appellate
provides
Rule
as
4,[8]
"Except
provided
follows:
in Rule
facts,
could draw
these
I believe that
police
suspicion
officers had reasonable
Appeals
jurisdic
Court of
shall have
4(A)
(b)
provides
Judgments
Indiana
declaring
of Final
*9
Supreme
the Indiana
Court shall have man-
state or federal statute unconstitutional
in
|
datory
jurisdiction
and exclusive
over the fol-
part.
in
wholeor
lowing cases:
(c) Appeals involving
parental
waiver of
(a)
Appeals
Criminal
in which a sentence of
consent
to abortion under Rule 62.
imprisonment
parole
death or life
without
(d) Appeals involving mandate of funds un-
imposed
§
is
under
Ind.Code
35-50-2-9
60.5(B)
der Trial Rule
and Rule 61.
Appeals
post
and Criminal
conviction
relief cases in which the sentence was
death.
timeliness has
question
of
of believe
Judgments
from Final
appeals
in all
tion
notwithstanding, I
waived. Waiver
been
Probate,
County
Cireuit,
and
Superior,
law,
the State's notice of
statute
believe that
Courts, notwithstanding any
directly
timely
to the was
filed.
for
providing
or rule
of Indiana."
Supreme
Timely
Filed
III.
Appeal
the Instant
jurisdiction:
types of
"There are three
(2)
matter;
(1)
subject
jurisdiction
of
matter,
appeals
the instant
the State
(8) jurisdic
jurisdiction
person,
granting
Renzulli's
Kondamu
case."
particular
tion over the
It is well-established
suppress.
Kondamuri,
ri v.
may appeal from criminal
subject
The issue of
(Ind.Ct.App.2003).
by stat
only when authorized
proceedings
by deter
is resolved
jurisdiction
matter
Gradison,
ute. State
involved falls
whether
the claim
mining
(Ind.Ct.App.2001) (citing State v.
authority
of
con
general scope
within
Aynes,
by the Indiana Consti
ferred on the court
1999)). Further, because the State's statu
Id.
a court
by
or
statute.
When
tution
in criminal cases is in
tory right
jurisdiction,
its ac
subject matter
lacks
principles,
contravention of common-law
at
may
tions are void ab imitio
strictly
is
construed.
statutory right
On the other
at
time.
Id.
tacked
(Ind.
Pease,
State v.
hand,
case
particular
over the
jurisdiction
Ct.App.1988).
authority, and
right,
a court's
refers to
(2008)
Indiana
section 35-88-4-2
Code
specific
decide a
case
power to hear and
may appeal
when the State
establishes
over which it has
within the class of cases
Indiana
proceedings.
from eriminal
Code
judg
AId.
subject
jurisdiction.
matter
provides as follows:
section 35-38-4-2
juris
that lacks
by
ment rendered
a court
or to the
supreme
to the
court
is voidable
particular
over the
class
diction
if
rules
appeals,
court of
the court
so
objection or the lack
requires
timely
be taken
the state
provide,
case is
jurisdiction
particular
of
over the
following cases:
at 1156-57.
waived. Id.
(1)
a motion
From an order
of timeliness
I believe that
issue
an indictment or informa-
to dismiss
authority, and
right,
court's
refers to this
tion.
specific
decide a
case
power to hear and
(2)
judgment
or
for
From an order
which this
the class of cases over
within
defendant,
motion for
upon his
See
subject
jurisdiction.
matter
court has
delay
his trial
discharge because of
Therefore, I
that time
at 1156.
believe
id.
act,
plea
his
upon
his
not caused
over the
question
jurisdiction
liness is a
presented and
jeopardy,
of former
Moreover, be
particular case. See id.
trial.
upon prior
ruled
ques
is a
I believe that timeliness
cause
(3)
a motion
From an order
case,
jurisdiction
particular
over the
tion of
errors.
to correct
timeliness
challenge
I believe that
(4)
reserved
Upon
question
challenged by
is waived not
state,
acquitted.
if the defendant
Kondamuri, 799 N.E.2d
party. See
either
1156; Timberlake,
RICHMOND Similarly In
All Situated State Other Agencies, Appellants-
stitutions
Defendants, BRATTAIN,1 Ernst, Re
Paula Francis Terry Sutcliffe, Strong, Individ
becca Collectively,
ually, and on Behalf Similarly Situated, Appel
All Others
lees-Plaintiffs.
No. 49A02-0908-CV-718.
Court of Indiana.
8,Oct. Denied Dec.
Rehearing Veregge. 1. Paula now Brattain is deceased and has nie replaced representative by been as class Jen-