DICKSON, J.
The sole issue before this Court is whether, under both the Fourth Amendment to the U.S. Constitution and Article 1, § 11 of the Indiana Constitution, an officer, without reasonable suspicion, can inquire as to possible further criminal activity, in this case drug possession, when a motorist is stopped for a traffic infraction.
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From our review of United States Supreme Court jurisprudence, we conclude that the officer’s conduct in this case does not violate the Fourth Amendment. During a lawful detention, police do not need a reasonable suspicion to ask questions of the detainee. In Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), the Court emphasized that it has “held repeatedly that mere police questioning does not constitute a seizure.” 544 U.S. at 101, 125 S.Ct. at 1471, 161 L.Ed.2d at 308, quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991). “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of the individual[.]” Id., quoting Bostick, 501 U.S. at 434-35, 111 S.Ct. at 2386, 115 L.Ed.2d at 398. An officer making a traffic stop can ask questions of a detained motorist, but the detainee is not obligated to respond, and “unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released.” Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984) (footnotes omitted).
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In the present case, a police officer observed the defendant driving a moped across the center line and conducted a traffic stop also to investigate the defendant’s possible failure to wear required safety equipment. The officer’s brief questioning as to whether the defendant had any weapons, drugs, or anything else that could harm the officer was not itself a search or seizure and thus was not prohibited by the Fourth Amendment. The defendant was not obligated to answer the questions, and his choice to do so and to disclose inculpatory information provided the basis for the officer’s further request for permission to search the defendant’s trouser pockets. The defendant’s appellate brief does not argue that the officer’s question constituted an excessive delay.
We conclude that the officer’s question to the defendant did not violate the Fourth Amendment.
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Notwithstanding the textual similarity of Article 1, §11 of the Indiana Constitution [footnote omitted] to that of the federal Fourth Amendment, Section 11 is interpreted separately and independently from Fourth Amendment jurisprudence. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001). The purpose of this section is to protect those areas of life that Hoosiers consider private from unreasonable police activity. Quirk, 842 N.E.2d at 339-40. The Indiana Constitution may protect searches that the federal Constitution does not. State v. Moore, 796 N.E.2d 764, 767 (Ind. Ct. App. 2003). Section 11 should be applied to protect people from unreasonable search and seizure. Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995). When police conduct is challenged as violating this section, the burden is on the State to show that the search was reasonable under the totality of the circumstances. See, e.g., Quirk, 842 N.E.2d at 340; Bullington v. State, 802 N.E.2d 435, 438 (Ind. 2004). The determination of the reasonableness of a search and seizure under the Indiana Constitution turns “on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).
Applying the Litchfield factors, we note that the defendant was observed repeatedly driving a moped across the center line and operating it without the safety goggles required of drivers less than eighteen years of age. These facts establish a reasonable basis for the officer’s concern, suspicion, or knowledge that a traffic law violation may have occurred. In addition, the degree of police intrusion was slight. The officer merely asked the defendant a brief question, one that not only asked if he had drugs, but also if he had weapons or other items that may harm the officer. The defendant was under no obligation to answer that question, but his honest response indicating that he did indeed have marijuana in his pockets justified the officer’s request for the defendant’s consent to the officer’s removal of the contraband. As to the needs of law enforcement, the officer’s conduct in making the stop was appropriate to the enforcement of traffic laws and the statutory requirement for young moped drivers to wear protective goggles. And his question to the defendant was consistent with the officer’s concern for his own safety and law enforcement’s responsibilities to deter crime, to intercept criminal activity, and to apprehend its perpetrators.
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The officer’s question whether the defendant held contraband on his person, notwithstanding the absence of reasonable suspicion, was not unreasonable under the totality of the circumstances and did not violate Article 1, Section 11, of the Indiana Constitution.
SHEPARD, C.J., and SULLIVAN, J., concur.
BOEHM, J., dissents with separate opinion:
I respectfully dissent. This stop was based on the officer’s observing Washington cross the center line and also the officer’s suspicion, based on Washington’s appearance, that Washington had violated helmet requirements applicable to those under eighteen years of age who operate motorcycles. Because the officer observed crossing the center, he had probable cause that a traffic infraction had occurred. The majority appears to address the stop as a “Terry stop,” i.e., a stop based on reasonable suspicion, not probable cause, and also cites authority that deals with questions to persons who have not been pulled over by exercise of authority. Although I ultimately agree that the Fourth Amendment does not prohibit brief questioning on unrelated subjects during a Terry stop, in my view encounters, Terry stops, and stops on probable cause are not interchangeable under the Fourth Amendment. I therefore do not concur in the majority’s Fourth Amendment analysis.
The Indiana Constitution is the basis of my disagreement with the majority’s disposition of this case. Questioning directed to processing a traffic violation and protecting officer safety is reasonable as to both Terry stops and stops based on probable cause. But I do not believe a person stopped for a traffic violation is rendered fair game for questions on unrelated subjects. Here the officer asked Washington whether he had any drugs, then asked for and received consent to search Washington’s person. [Footnote omitted.] Both questions were posed at a time when Washington reasonably believed he was not free to go on his way. For the reasons explained below I believe this procedure crossed the line imposed by the Indiana Constitution on traffic stops.
RUCKER, J., dissents with separate opinion:
In determining whether there has been a Fourth Amendment violation in the context of a traffic stop, a number of courts look to the scope of the detention as well as its duration. [Footnote omitted.] This view is expressed by Judge Cudahy in his concurring opinion in United States v. Childs, 277 F.3d 947 (7th Cir. 2002). Observing the “common-sense notion that reasonableness includes both a scope and a duration dimension,” Childs, 277 F.3d at 956, Judge Cudahy noted:
[V]irtually, all thoughtful, civilized persons not overly steeped to the point of con-fusion in the mysteries of … Fourth Amendment jurisprudence would agree that the scope of a search or seizure must be part of the reasonableness inquiry. For if a man were stopped for speeding in Utah, it would not be reasonable for a police officer to ask whether he were practicing polygamy. There would be nothing in the circumstances to suggest any basis for such an inquiry even if the duration of the stop was not lengthened. The question itself would be an invasion of privacy. This is a good illustration why the duration of a traffic stop cannot be the only dimension of reasonableness. The subject-matter (or scope) dimension provides limits that are just as binding as the time (or duration) dimension.
(citation omitted) (emphasis in original). Id. I agree and would endorse this more reasoned view. A police officer asking a stopped motorist about the presence of illegal substances, with no basis whatsoever to believe they are present, is patently unreasonable and thus inconsistent with the protections afforded by the Fourth Amendment.
[E]ven if I were to accept for purposes of discussion that consideration of scope as well as duration of a traffic stop is analytically incorrect, I would still conclude the trial court correctly granted Washington’s motion to suppress. The United States Supreme Court has not specifically addressed the question of whether police questions unrelated to the initial reason for a detention may constitute an unlawful seizure. It has held however, that “a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). . . . .
Although the record in this case is not altogether clear concerning the timelines, what is clear is that after stopping Washington, the officer learned that “he was, in fact, over the age of eighteen.” . . . Even under “duration only” Fourth Amendment jurisprudence this should have ended any further inquiry. And this is so because the purpose of the traffic stop was completed. That is to say, Officer Hoffman stopped Washington because he believed Washington was under the age of eighteen and thus should have been, but was not, wearing protective head-gear and goggles. Once the officer confirmed Washington’s correct age, his job was done. [Footnote omitted.] Since nervousness alone is not enough to constitute reasonable suspicion, Finger v. State, 799 N.E.2d 528, 534-35 (Ind. 2003), Officer Hoffman’s additional questioning was unlawful because the initial seizure was “prolonged beyond the time reasonably required to complete [the confirmation] mission.” Cabelles, 543 U.S. at 407.