A Danville police officer who conducted a dog sniff during a traffic stop violated a woman’s Fourth Amendment rights, the Court of Appeals of Indiana has concluded, reversing the denial of her motion to suppress.
In the early hours of Feb. 7, 2021, Danville Police Sgt. Jeffery Slayback, traveling with his canine, observed a vehicle with a broken taillight traveling at a high rate of speed. Slayback said he observed the vehicle crossing the center line multiple times, so he activated his emergency lights.
The driver stopped the vehicle, with Brooklyn Powers in the passenger’s seat. During questioning, Slayback observed the driver “seemed nervous,” his “hands were visibly trembling,” and he “was shaking” and “was kinda stumbling over some of his words on simple questions.” He also noticed that Powers’ hands were “visibly shaking” and that she had “darkness under her eyes or dark eyes” and “open sores on her face” and arms.
The officer returned to his vehicle and wrote a warning. Slayback said he did not smell any alcohol or notice any related behaviors in the driver. But he then went over to the passenger side and spoke with Powers because he “felt like [he] developed reasonable suspicion at that point just based on their … nervous behavior of both of the occupants.”
After instructing Powers to exit the car, Slayback asked her twice if there was anything illegal in the vehicle. Powers first said “no” to the question, but on second ask told Slayback she had “go in her bra,” which he understood to mean methamphetamine.
Slayback deployed his canine to conduct an open-air sniff around the vehicle, and the dog gave a positive indication for the odor of narcotics. Officers then discovered a handgun inside a purse that was at Powers’ feet and a container in the center console with narcotics and paraphernalia.
Powers told police the gun was hers and she possessed it because she was fearful of her ex-boyfriend. She also admitted to owning the items in the center console.
Powers was charged with Level 6 felony counts of possession of methamphetamine, cocaine and a syringe and Class A misdemeanor counts of possession of a controlled substance and carrying a handgun without a license.
In May 2021, Powers filed a motion to suppress, arguing the officers seized and searched the vehicle and seized alleged contraband without lawful authority.
That motion was denied, with the Hendricks Superior Court finding “the officer had reasonable suspicion that criminal activity was afoot based on the appearance and actions of the driver of the vehicle and the Defendant.”
The Court of Appeals reversed Wednesday in Brooklyn Powers v. State of Indiana, 21A-CR-1915, finding the traffic stop had concluded once Slayback issued the warning to the driver. Also, because the officer didn’t observe any impairment, there was no reasonable suspicion of criminal activity.
“Reasonable suspicion must be comprised of more than hunches or unparticularized suspicions,” Judge Elaine Brown wrote for the court, citing Clark v. State, 994 N.E.2d 252, 263 (Ind. 2013). “… To the extent Sergeant Slayback testified that he ‘felt like [he] developed reasonable suspicion at that point just based on their … nervous behavior of both of the occupants,’ we note that the Indiana Supreme Court has observed that ‘[s]ome courts have found nervousness on the part of the occupants is a factor leading an officer to form reasonable suspicion of criminal activity’ but the Court placed ‘little weight on that fact alone.’ Finger v. State, 799 N.E.2d 528, 534 (Ind. 2003).”
The COA also noted the record didn’t reveal any evidence regarding whether Slayback had experience observing people under the influence or whether persons under the influence or in possession of illegal substances have sores on their face or arms. Additionally, Brown wrote that the record did not reveal furtive movements by the driver or Powers or reveal any indication that Slayback had safety concerns.
“Under the totality of the circumstances and in light of the State’s burden, we cannot say that Sergeant Slayback had reasonable suspicion of criminal activity,” Brown wrote. “Accordingly, we conclude that the actions of having Powers exit the vehicle, questioning her, and performing the canine sniff were improper under the Fourth Amendment.”