May, J.
Zachariah Marshall appeals the trial court’s denial of his renewed motion to suppress. He argues the traffic stop initiated by Reserve Officer Sean Dolan which led to Marshall’s arrest violated Marshall’s Fourth Amendment rights under the United States Constitution because Reserve Officer Dolan did not have reasonable suspicion to stop Marshall.
In the early morning on October 29, 2016, Reserve Officer Dolan initiated a traffic stop of Marshall’s vehicle based on Reserve Officer Dolan’s observation that Marshall “was going over the posted speed limit.” …
Soon thereafter, the stop escalated to an investigation of operating a vehicle while intoxicated. Reserve Officer Dolan’s supervisor, Corporal Robert O’Dea, arrived on the scene and arrested Marshall. …
On November 2, 2016, the State charged Marshall with Class A misdemeanor operating a vehicle while intoxicated, endangering a person; Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to .08 but less than .15; and Class C misdemeanor operating a vehicle while intoxicated. On August 4, 2017, Marshall filed a motion to suppress, alleging the traffic stop was unlawful. The trial court denied Marshall’s motion on August 8, 2017.
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On September 6, 2017, Marshall filed a motion asking the trial court to certify its denial of his renewed motion to suppress for interlocutory appeal. The trial court granted Marshall’s request for certification on September 12, 2017. Our court accepted jurisdiction over Marshall’s interlocutory appeal on December 5, 2017.
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The Fourth Amendment to the United States Constitution requires law enforcement officials obtain a valid warrant before conducting searches or seizures. A traffic stop is considered a seizure under the Fourth Amendment. Bush v. State, 925 N.E.2d 787, 789 (Ind. Ct. App. 2010), … “To be valid, a traffic stop must be supported by, at least, reasonable suspicion a traffic law has been violated or other criminal activity is afoot.” Id. at 790. Reasonable suspicion must consist of more than general hunches or suspicions. Abel v. State, 773 N.E.2d 276, 279 (Ind. 2002). …
Marshall argues the trial court erred when it denied his renewed motion to suppress because Reserve Officer Dolan’s traffic stop was unlawful. Marshall contends Reserve Officer Dolan’s testimony of his “visual speed estimate” was insufficient to prove Reserve Officer Dolan had reasonable suspicion to believe Marshall was exceeding the speed limit when Reserve Officer Dolan initiated the traffic stop. This is an issue of first impression in Indiana.
In its order denying Marshall’s renewed motion for summary judgment, the trial court concluded that “an officer’s testimony of speeding, without radar, pacing or some number, when based upon his or her expertise and ability to draw conclusions about the excessive speed of the vehicle, in general terms, is sufficient to establish a reasonable suspicion of a traffic infraction justifying a stop.” In support of its conclusion, the trial court cited four cases from other jurisdictions: State v. Butts, 269 P.3d 862 (Kan. 2012); State v. Konvalinka, 819 N.W.2d 426, 2012 WL 1860352 (Iowa Ct. App. 2012); State v. Allen, 978 So.2d 254 (Fla. Dist. Ct. App. 2008); and State v. Barnhill, 601 S.E.2d 215 (N.C. App. 2004), review denied.
All of the cases cited by the trial court in support of its conclusion are distinguishable from the facts in this case because they included testimony from the officer on the scene of the approximate speed the defendant was traveling prior to the initiation of the traffic stop. …
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… During a pre-trial deposition, Reserve Officer Dolan could not recall the posted speed limit at the location of the traffic stop, but he claimed he knew at the time of the stop what the speed limit was in the area. He testified he “thought maybe it was forty miles an hour[.]” During the suppression hearing, Reserve Officer Dolan indicated he had visited the location of the stop prior to the hearing and that the speed limit was fifty miles per hour. Reserve Officer Dolan testified he did not pace Marshall’s vehicle, did not write down the speed at which he observed Marshall traveling prior to the traffic stop, and did not observe Marshall commit additional traffic infractions.
Instead, he agreed when asked, “you’re testifying that Mr. Marshall was doing something above [the posted speed limit]?” Reserve Officer Dolan also testified his radar was properly calibrated and working at the time and while he did not know the exact speed Marshall was traveling, his radar indicated Marshall was going over the posted speed limit. Because Reserve Officer Dolan could not testify regarding the speed of Marshall’s vehicle in more specific terms, we hold he did not have specific articulable facts to support his initiation of a traffic stop, and therefore the traffic stop violated Marshall’s Fourth Amendment rights. …
… Accordingly, we reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
Riley, J., and Mathias, J., concur.