IN THE
Court of Appeals of Indiana
FILED
Todd E. McGraw, Sep 28 2026, 10:04 am
Appellant-Defendant CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
v.
State of Indiana,
Appellee-Plaintiff
September 28, 2026
Court of Appeals Case No.
25A-CR-2932
Appeal from the Tippecanoe Superior Court
The Honorable Michael A. Morrissey, Judge
Trial Court Cause No.
79D06-2212-CM-3210
Opinion by Chief Judge Tavitas
Judges Bradford and Felix concur.
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 1 of 11
Tavitas, Chief Judge.
Case Summary
[1] Todd McGraw appeals his conviction for operating a vehicle with an alcohol
concentration equivalent (“ACE”) of .15 or more, a Class A misdemeanor.
McGraw argues that the trial court erred by denying his motion to suppress
because the traffic stop violated the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution. We disagree
and affirm.
Issue
[2] McGraw raises one issue, which we restate as whether law enforcement had
reasonable suspicion to conduct a traffic stop of McGraw’s vehicle.
Facts
[3] On November 23, 2022, shortly before 11:00 p.m., Sergeant Ben Beutler of the
Tippecanoe County Sheriff’s Department was doing paperwork in his patrol car
on property owned by Purdue University on South River Road in West
Lafayette. Sergeant Beutler observed a vehicle parked across from his location.
The vehicle’s headlights and interior dome lights were turning on and off, and
Sergeant Beutler could hear car doors opening and closing. Sergeant Beutler
initially believed that the vehicle was parked on property owned by Evonik,
which is used for a pump station. According to Sergeant Beutler, it was
unusual for a vehicle to be parked in that location. He was concerned about
trespassing and radioed dispatch to contact Evonik.
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 2 of 11
[4] Before he heard back from Evonik, Sergeant Beutler decided to get out of his
patrol car and walk down to the vehicle’s location. By the time Sergeant
Beutler got out of his car, the vehicle’s headlights turned on, and it pulled out
onto South River Road. Sergeant Beutler returned to his patrol car and
followed the vehicle, which soon made a right turn at a stoplight onto U.S. 231
from South River Road. A short distance later, while the vehicle was on the
bridge, the vehicle’s passenger-side tires touched the fog line and then moved
back into the travel lane. A few seconds later, the vehicle’s passenger-side tires
completely crossed the fog line for a short distance and then moved back into
the travel lane. The road during this time was straight and level. Sergeant
Beutler then initiated a traffic stop of the vehicle.
[5] McGraw was driving the vehicle. His speech was slurred, his eyes were watery,
his manual dexterity was poor, and he smelled of alcohol. McGraw was taken
to the hospital, and a blood test revealed that McGraw’s ACE was 0.228.
Sergeant Beutler later discovered that McGraw was not, in fact, parked on
Evonik’s property; he was parked on a neighboring driveway.
[6] On December 12, 2022, the State charged McGraw with: Count I, operating a
vehicle while intoxicated, a Class C misdemeanor, and Count II, operating a
vehicle with an ACE of .15 or more, a Class A misdemeanor.
[7] Prior to trial, McGraw filed a motion to suppress. McGraw argued that
Sergeant Beutler did not have reasonable suspicion or probable cause to initiate
a traffic stop of McGraw and that the stop violated McGraw’s rights under the
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 3 of 11
Fourth Amendment to the United States Constitution and Article 1, Section 11
of the Indiana Constitution. After a hearing, the trial court denied McGraw’s
motion to suppress and found:
While Sgt. Beutler’s initial observation of Defendant on private
property does not constitute reasonable [suspicion] to make a
traffic stop, his observation of a vehicle driving onto private
property, opening and closing doors, and dome lights going off
and on, gave rise to a suspicion that some form of illegal activity
may be afoot – causing Sgt. Beutler to follow the subject vehicle
as it departed. While the officer did not observe any erratic
driving as [he] followed Defendant along South River Road, stop
at its intersection with SR 231, and turn southerly onto SR 231, it
is at this time that the officer did observe additional facts that
warranted the stop. Namely, Defendant’s vehicle touched the
fog line on one occasion and Sgt. Beutler subsequently observed
Defendant’s vehicle actually cross the fog line, all on a straight
stretch of roadway.
The Court finds the totality of the circumstances, including Sgt.
Beutler’s initial observations of Defendant’s vehicle and
Defendant’s vehicle crossing or touching the fog line on two
subsequent occasions on a straight portion of roadway, do
constitute reasonable [suspicion] warranting the traffic stop
herein. Defendant’s Motion to Suppress is therefore denied.
Appellant’s App. Vol. II p. 102. McGraw filed a motion for certification for
interlocutory appeal, which the trial court granted. Our motions panel,
however, denied McGraw’s motion for interlocutory appeal.
[8] A bench trial was held on October 30, 2025. Bruce Enz testified as an expert on
McGraw’s behalf. Enz testified that three anomalies existed on the bridge that
McGraw traveled across—a seam, an expansion joint, and a dip. Enz opined
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 4 of 11
that the road conditions were “a bigger cause” of McGraw’s touching or
crossing the fog line than McGraw’s ACE. Tr. Vol. II p. 158.
[9] The trial court found McGraw guilty of Count II, operating a vehicle with an
ACE of .15 or more, a Class A misdemeanor, and not guilty of Count I,
operating a vehicle while intoxicated, a Class C misdemeanor. The trial court
sentenced McGraw to 365 days with 185 days suspended to probation. The
trial court recommended that the remaining 180 days be served on home
detention. If McGraw was rejected by the program, the 180 days were to be
served in jail. McGraw now appeals.
Discussion and Decision
[10] McGraw argues that Sergeant Beutler did not have reasonable suspicion to
conduct a traffic stop of McGraw’s vehicle and challenges the admission of
evidence discovered as a result of Sergeant Beutler’s traffic stop. We review
decisions on the admissibility of evidence for an abuse of discretion. RamosOsario v. State, 280 N.E.3d 784, 789 (Ind. 2026). We will reverse only where the
decision is clearly against the logic and effect of the facts and circumstances.
Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018). But a challenge that impugns
the constitutionality of the search or seizure of the evidence raises a question of
law that we consider de novo. Ramos-Osario, 280 N.E.3d at 789. We can
“affirm the trial court’s decision on any basis supported by the record.” Id.
[11] Moreover, we review “a trial court’s denial of a defendant’s motion to suppress
deferentially, construing conflicting evidence in the light most favorable to the
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 5 of 11
ruling, but we will also consider any substantial and uncontested evidence
favorable to the defendant.” Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014).
“We defer to the trial court’s findings of fact unless they are clearly erroneous,
and we will not reweigh the evidence.” Id. When reviewing suppression issues,
we can consider evidence from both the suppression hearing and trial. RamosOsario, 280 N.E.3d at 792.
A. Fourth Amendment
[12] The Fourth Amendment permits officers to conduct a Terry stop, under which
officers may “stop and briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable facts that criminal
activity may be afoot.” Ramos-Osario, 280 N.E.3d at 790 (quoting Robinson, 5
N.E.3d at 367). “Reasonable suspicion exists if the stopping officer can
‘articulate some facts that provide a particularized and objective basis’ for
suspecting criminal activity has occurred.” Id. (quoting Marshall v. State, 117
N.E.3d 1254, 1259 (Ind. 2019)). “[T]he reasonable-suspicion ‘standard takes
into account the totality of the circumstances—the whole picture.’” Marshall,
117 N.E.3d at 1261 (quoting Navarette v. California, 572 U.S. 393, 397 (2014)).
[13] McGraw argues that the traffic stop was unsupported by reasonable suspicion.
McGraw argues: (1) Sergeant Beutler’s belief that McGraw was trespassing was
“nothing more than an unverified hunch” and Sergeant Beutler was, in fact,
mistaken; (2) Sergeant Beutler did not notice the first swerve onto the fog line
until he later reviewed the video and, thus, this touching of the fog line cannot
form the basis for reasonable suspicion; and (3) the second crossing of the fog
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 6 of 11
line cannot form the basis for reasonable suspicion because McGraw did not
commit a traffic violation and “severe road conditions” provide an explanation
for his “single, isolated fog line contact.” Appellant’s Br. pp. 15, 25.
[14] Our Supreme Court addressed a similar issue in Robinson, 5 N.E.3d 362. There,
a deputy initiated a traffic stop of a vehicle after witnessing the vehicle “drive
off the right side . . . of the road, twice.” Robinson, 5 N.E.3d at 364. The trial
court reviewed the dash camera video and concluded that the vehicle veered
onto the fog line on two occasions. The trial court found that the deputy had
reasonable suspicion for the traffic stop because “the act of weaving onto the
fog line, while not itself an illegal act, did give a trained police officer
justification to stop and inquire further as to the driver’s condition.” Id. On
appeal, our Supreme Court agreed.
[15] The Court noted: “[W]e do not believe the Fourth Amendment requires police
‘to grant drunk drivers one free swerve before they can legally be pulled over.’”
Id. at 368 (quoting Virginia v. Harris, 558 U.S. 978 (2009) (Roberts, C.J.,
dissenting from denial of certiorari)). “Even if it did, Robinson swerved twice
on a relatively straight, flat roadway. Although such movement could have
been attributable to driver distraction or some other more innocuous cause,
Terry does not require absolute certainty of illegal activity, but rather reasonable
suspicion.” Id. The Court found that the deputy had reasonable suspicion that
the driver was impaired and that the stop did not violate the Fourth
Amendment. Id.
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 7 of 11 [16] Even setting aside Sergeant Beutler’s mistaken impression that McGraw was
trespassing, we conclude that Sergeant Beutler had reasonable suspicion that
McGraw was impaired, and the traffic stop, therefore, did not violate the
Fourth Amendment. Regarding the first touch of the fog line, McGraw
misinterprets Sergeant Beutler’s testimony at the trial. Sergeant Beutler testified
at the trial that he observed the vehicle touch the fog line and, a short time later,
cross the fog line. Sergeant Beutler did not mention the first touch of the fog
line in his police report, but he did not deny seeing it. In re-cross examination
of Sergeant Beutler at the suppression hearing, the following discussion
occurred regarding the first fog line touch:
Q But more importantly, that wasn’t a basis for your stop. You
didn’t discover that until you reviewed the video later, correct?
A No.
Tr. Vol. II p. 56. It is unclear whether Sergeant Beutler’s “no” response meant
the first touch was not a basis for the stop or whether it was simply a response
to defense counsel’s “correct?” Id. McGraw’s contention that Sergeant Beutler
did not see the first fog line touch is simply not supported by the record
presented to us. Although Sergeant Beutler did not mention the first fog line
touch in his police report, our Supreme Court held in Marshall that the officer
was not required to document the defendant’s speed in a report to establish
reasonable suspicion. 117 N.E.3d at 1260-61. The first fog line touch can be
part of the totality of the circumstances supporting reasonable suspicion even
though it was not included in the police report.
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 8 of 11 [17] Sergeant Beutler observed McGraw’s vehicle swerve and touch the fog line. A
short distance later, McGraw’s vehicle swerved again and crossed the fog line.
McGraw’s contention that the second swerve was caused by “severe road
conditions” rather than his intoxication is merely a request that we reweigh the
evidence, which we cannot do. Appellant’s Br. p. 25. Under the totality of the
circumstances, Sergeant Beutler had reasonable suspicion to believe that
McGraw was impaired. McGraw’s Fourth Amendment rights were not
violated. 1
B. Article 1, Section 11 of the Indiana Constitution
[18] McGraw also argues that his rights under Article 1, Section 11 of the Indiana
Constitution were violated. “Although its text mirrors the federal Fourth
Amendment, we interpret Article 1, § 11 of our Indiana Constitution separately
and independently.” Robinson, 5 N.E.3d at 368. When a defendant raises a
claim under Article 1, Section 11, the State must show the police conduct was
reasonable under the totality of the circumstances. Id. “We consider three
factors when evaluating reasonableness: ‘1) the degree of concern, suspicion, or
knowledge that a violation has occurred, 2) the degree of intrusion the method
of the search or seizure imposes on the citizen’s ordinary activities, and 3) the
1
Even if we do not consider the first fog line touch, our Supreme Court noted in Robinson that the Fourth
Amendment does not require police “to grant drunk drivers one free swerve before they can legally be pulled
over.” 5 N.E.3d at 368. Once McGraw’s vehicle crossed the fog line, Sergeant Beutler had reasonable
suspicion to believe that McGraw was impaired.
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 9 of 11
extent of law enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d
356, 361 (Ind. 2005)).
[19] Although McGraw mentioned an Indiana Constitutional claim under Article 1,
Section 11 in his Appellant’s Brief, he did not engage in an actual analysis of
the three factors until his Reply Brief. An argument raised for the first time in a
reply brief is waived. Dunn v. State, 202 N.E.3d 1158, 1165 n.3 (Ind. Ct. App.
2023), trans. denied. Accordingly, the issue is waived.
[20] Waiver notwithstanding, McGraw’s claim under Article 1, Section 11 of the
Indiana Constitution fails. Sergeant Beutler observed McGraw’s vehicle touch
the fog line and, a short distance later, completely cross the fog line. Thus,
Sergeant Beutler had a reasonable suspicion that McGraw was impaired and
that a violation was occurring. As in Robinson, “[t]he initial intrusion—a Terry
stop—was relatively minor.” 5 N.E.3d at 368. Accordingly, the degree of
intrusion was minor. Finally, the extent of law enforcement needs was high.
Law enforcement has a strong interest in preventing drunk driving accidents,
and “‘police should have every legitimate tool at their disposal for getting drunk
drivers off the road.’” Id. (quoting Harris, 558 U.S. at 978 (Roberts, C.J.,
dissenting from denial of certiorari)). Under the totality of the circumstances,
we conclude that Sergeant Beutler’s conduct was reasonable, and the stop did
not violate Article 1, Section 11 of our Indiana Constitution. 2
2
McGraw also argues that Sergeant Beutler’s stop of his vehicle was pretextual. “Pretextual stops are not,
per se, unreasonable under the Indiana Constitution.” Turner v. State, 862 N.E.2d 695, 699 (Ind. Ct. App.
Court of Appeals of Indiana Opinion 25A-CR-2932 September 28, 2026 Page 10 of 11
Conclusion
[21] Sergeant Beutler had reasonable suspicion to initiate a traffic stop of McGraw’s
vehicle. The traffic stop, therefore, did not violate the Fourth Amendment or
Article 1, Section 11 of the Indiana Constitution, and the trial court properly
admitted evidence obtained as a result of the traffic stop. We affirm.
[22] Affirmed.
Bradford, J., and Felix, J., concur.
ATTORNEYS FOR APPELLANT
Alexander N. Moseley
Adrian J. Deneen
Dixon & Moseley
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Daniel H. Frohman
Deputy Attorney General
Indianapolis, Indiana
2007). “If there is an objectively justifiable reason [for a traffic stop], then the stop is valid whether or not the
police officer would have otherwise made the stop but for ulterior suspicions or motives.” Id. at 699-700.
Sergeant Beutler had an objectively justifiable reason for stopping McGraw’s vehicle. Accordingly,
McGraw’s argument fails.
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