Crone, S.J.
Eric Wilson appeals his conviction of operating a vehicle while intoxicated, contending that the traffic stop was illegal and that the trial court erred in denying his motion to suppress the evidence obtained during the stop. Finding that the totality of the circumstances does not support a finding of reasonable suspicion for the investigatory traffic stop, we conclude that the evidence was inadmissible and reverse.
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Wilson argues that Deputy Merriman lacked reasonable suspicion to stop his vehicle and thus violated his rights under both the federal and state constitutions.
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At the suppression hearing, Deputy Merriman testified that he first observed Wilson in his car across an intersection “being quick and jerky,” “jumping around the car,” “unable to sit still,” and “[f]idgeting in the car.” Tr. Vol. 2, p. 24. The deputy further testified that he could not hear any loud music that would indicate Wilson “was jamming out.” Id. at 25. Deputy Merriman explained that his attention was drawn to Wilson’s vehicle by this behavior and the fact that Wilson made several turns to go back in the direction from which he had come. When asked if the movements were consistent with a person “bobbing their head” to the beat of music, Deputy Merriman responded, “No. Very inconsistent. So looking different ways. Different parts of the body moving. No part of the body was the same.” Id. at 26.1 The deputy initiated an investigative traffic stop based on his belief that the driver was under the influence of a stimulant drug. Id. at 27.
Deputy Merriman’s testimony during trial was consistent with his testimony at the suppression hearing. The deputy observed Wilson “kind of moving about in the car, making jerky movements,” “[u]nable to sit still,” “moving his head rapidly,” and “fidgeting around the car.” Id. at 43-44. He followed Wilson and noticed that, at one of the stop lights, Wilson activated his turn signal just before the light changed. After making a series of turns, Wilson headed back in the direction from which he had come, which Deputy Merriman found “strange.” Id. at 44. The deputy testified that he initiated the traffic stop based upon Wilson’s delay in activating his turn signal and his jerky body movements. Id. At the close of trial, the court stated that the stop was appropriate, even though “the turn signal wasn’t an issue[.]” Id. at 51. And, on appeal, the State maintains that Wilson’s jerking and twitching body movements reasonably led Deputy Merriman to initiate a stop. Appellee’s Br. p. 10.
Where, as here, we are faced with an issue of first impression, we may consider decisions from other jurisdictions for instructive guidance. King v. State, 153 N.E.3d 324, 329 (Ind. Ct. App. 2020), trans. denied. To that end, we examine State v. Rincon, 147 P.3d 233 (Nev. 2006). There, a police officer observed a vehicle drive very slowly at 12:45 a.m. and cross the yellow center divider line five times. The officer initiated an investigative stop based on his belief that the driver was under the influence of alcohol. When the driver rolled down the window, the officer smelled alcohol. The officer administered several field sobriety tests and, later, had the driver submit to blood draws. Ultimately, the driver was charged with operating while intoxicated. Defense counsel moved to suppress the blood evidence, arguing there was no reasonable suspicion to justify the traffic stop, and the trial court agreed.
On appeal, the State contended that the fact that the defendant was driving substantially under the speed limit was alone sufficient to satisfy the reasonable suspicion standard, and thus the stop was lawful. However, the Supreme Court of Nevada disagreed and held that, “absent evidence of a traffic violation, there must be additional indicia of erratic driving or unusual behavior before a reasonable suspicion arises that a motorist who is driving slowly is intoxicated.” Id. at 237. The court explained that “‘[t]he touchstone of the Fourth Amendment is reasonableness[,]’” which requires striking a balance between the interests of the public and an individual’s right to “‘personal security free from arbitrary interference by law officers.’” Id. at 236 (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991) and Semich v. State, 506 S.E.2d 216, 217 (1998)). The court further reasoned that, while there is a compelling public policy interest to protect citizens from drunk drivers, “that interest is not served by allowing a police officer unfettered discretion to stop a driver for what may very well be a prudent driving decision.” Rincon, 147 P.3d at 236-37.
The Nevada Supreme Court concluded that “‘[t]he mere fact that a driver is traveling at a slower than usual speed on a roadway does not by itself create a reasonable suspicion of driving under the influence of alcohol.’” Id. at 236. The court noted that other jurisdictions have considered the issue and reached the same conclusion. See id. n.18 (citing State v. Brown, 509 N.W.2d 69, 71 (N.D. 1993); Raulerson v. State, 479 S.E.2d 386, 387 (Ga. App. 1996); Faunce v. State, 884 So.2d 504, 506-07 (Fla. Dist. Ct. App. 2004))… Notably, the Nevada court included in its list Wells v. State, 772 N.E.2d 487 (Ind. Ct. App. 2002), a decision by this Court. In Wells, we determined the traffic stop was not illegal where the officer was able to corroborate an anonymous tip by identifying Wells’ vehicle as well as observing both that the vehicle was traveling ten miles per hour below the posted speed limit and that the vehicle was swerving in its lane of travel. Id. at 490.
With this background in mind, we are wary here of accepting the State’s argument that, in the absence of any traffic violation, an officer may acquire reasonable suspicion of criminal wrongdoing simply because a person is making jerky movements with his body. As discussed in the trial court, a reasonable explanation unrelated to any criminal behavior is that Wilson was dancing or grooving to music. The deputy discounted this premise because, according to him, 8:00 in the morning was not a time of day that individuals would be “jamming out,” “there wasn’t loud music playing,”7 and there was nothing going on outside “that would make sense for [Wilson] to be acting in such a manner.” Tr. Vol. 2, pp. 26, 25.
While we recognize that we must look at the totality of the circumstances, the State may not simply label whatever facts are present as “suspicious” to demonstrate reasonable suspicion for a stop. Wilson’s movements, in the context of the practical matters of everyday life upon which reasonable suspicion is to be based and in the absence of erratic or unusual driving behavior, would seem to indicate that Wilson was simply enjoying moving to his music as he drove or had perhaps worked the night shift and was trying to stay awake on the drive home by grooving to his music. In light of these innocent explanations, the deputy’s conclusory explanation for Wilson’s movements provides little, if any, support for reasonable suspicion that Wilson was engaged in criminal activity.
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Indeed, Deputy Merriman observed no erratic or abnormal driving behavior by Wilson during the extended period in which he followed him driving on the streets of Martinsville, observing traffic lights and negotiating turns. Indeed, the trial judge, after viewing the video footage from Deputy Merriman’s in-car camera at the suppression hearing, commented that Wilson was “driving very, very thoughtfully.” Tr. Vol. 2, p. 29. Hunches such as the one involved here do not justify an investigatory stop and, if allowed, would lead to unfettered discretion of police officers in the field.
We therefore cannot accept the State’s argument that the fact that “Wilson did not violate any traffic laws is immaterial” and that police officers observing objective signs, as Deputy Merriman did here, are permitted to stop drivers because they “could be” a danger to themselves or others. Appellee’s Br. pp. 10, 14. As a panel of our colleagues recently noted, “we are mindful of Justice Scalia’s observation in Arizona v. Hicks that ‘there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.’” Ocampo v. State, 268 N.E.3d 823, 835 (Ind. Ct. App. 2025) (quoting 480 U.S. 321, 329 (1987)). We are convinced that, without some stronger indicia of criminal activity, the articulated facts did not supply the deputy with the appropriate amount of suspicion necessary for an investigatory stop.
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We therefore hold that there must be additional indicia of erratic driving or unusual driving behavior before a reasonable suspicion arises that a motorist who is merely making jerky body movements is driving under the influence of drugs or alcohol.
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The Litchfield factors weigh in favor of Wilson. Therefore, given the totality of the circumstances, we conclude that the stop of Wilson’s vehicle was unreasonable under the Indiana Constitution.
We conclude that the seizure and subsequent search in this case violate both the Fourth Amendment and article 1, section 11. The trial court therefore abused its discretion in admitting evidence of the stop and anything that flowed from it.
Judgment reversed.
Vaidik, J., and Altice, J., concur