FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

MARK W. RUTHERFORD    STEVE CARTER
Laudig George Rutherford & Sipes            Attorney General of Indiana
Indianapolis, Indiana
             CYNTHIA L. PLOUGHE
            Deputy Attorney General
            Indianapolis, Indiana

 JAMES E. CLARK,        )
                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 41A01-0306-CR-224
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

                         

Id. (emphasis added). The court then observed:
Although the consent issue is not before us today, we are inclined to think that this view is consistent with the statute’s language that “a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of” a seat belt stop.

Id. at 339 n.8. The court concluded that the Attorney General’s interpretation of the statute, i.e. that the General Assembly intended to provide motorists with protection from pretextual seatbelt searches and seizures previously sanctioned under federal law, was “reasonable and constitutional.” Id.
    In State v. Morris, 732 N.E.2d 224 (Ind. Ct. App. 2000), our court addressed a challenge to the search of a vehicle made subsequent to a traffic stop for a seatbelt violation. In that case, during the traffic stop, the officer discovered that Morris’ driver’s license had been suspended. Id. at 226. After the officer asked Morris to step out of the vehicle, he also noted the odor of alcoholic beverage on Morris’ breath. Id. A chemical breath test revealed that Morris’ breath alcohol content was 0.10. Id.
    After he was charged with driving while suspended and Class D felony operating a vehicle while intoxicated, Morris successfully moved to suppress the evidence of his license suspension and intoxication. Id. Morris argued that the evidence was obtained in violation of the Seatbelt Enforcement Act. Id. On appeal, we initially observed that under Baldwin and the plain language of the statute, a traffic stop based on the failure of either a driver or passenger to wear a seatbelt does not, standing alone, “provide reasonable suspicion for the police to unilaterally expand their investigation and ‘fish’ for evidence of other possible crimes.” Id. at 228. However, we concluded:
when circumstances arise after the initial stop that create reasonable suspicion of other crimes, further reasonable inspection, search, or detention is no longer “solely” because of a seatbelt violation and does not contravene the plain language of the statute. The officer may only expand his or her investigation subsequent to the stop if other circumstances arise after the stop, which independently provide the officer with reasonable suspicion of other crimes.

Id. (citations omitted). See also Trigg v. State, 725 N.E.2d 446, 449 (Ind. Ct. App. 2000) (Indiana Code section 9-19-10-3 “cannot reasonably be interpreted to prohibit police officers from concluding limited weapons searches to ensure their safety so long as circumstances exist over and above the seatbelt violation itself.”). See footnote
    In his concurring opinion in Morris, Judge Friedlander observed that the Seatbelt Enforcement Act “carries with it the potential for significant incursion upon the rights against unreasonable search and seizure guaranteed by the Fourth Amendment to the United States Constitution and article I, section 11 of the Indiana Constitution.” 732 N.E.2d at 229 (Friedlander, J., concurring). Further, noting the Baldwin decision, the General Assembly’s enactment of section 9-19-10-3, and the Attorney General’s interpretation of the statute, he stated, “all three branches of government seem to be in accord that challenges to searches arising under the Seatbelt Law must be considered with this heightened risk of erosion of freedom in mind.” Id. Our court has often expressed similar concern with “the increasingly common practice of police stopping vehicles for minor traffic offenses and seeking consent to search with no suspicion whatsoever of illegal contraband[.]” Callahan v. State, 719 N.E.2d 430, 439 (Ind. Ct. App. 1999); see also Camp v. State, 751 N.E.2d 299, 302 (Ind. Ct. App. 2001), trans. denied; Norris v. State, 732 N.E.2d 186, 191 n.1 (Ind. Ct. App. 2000).
In this case, when he initiated the traffic stop, Officer Dillon only had reasonable suspicion to believe that Clark had committed a seatbelt violation. Aside from the seatbelt violation, the State does not argue, and we do not find, that there were any facts known to Officer Dillon that would have reasonably led him to believe that criminal activity had occurred or was about to occur when he asked for consent to search the vehicle. See footnote Accordingly, pursuant to Baldwin, and under the facts and circumstances before us in this case, we hold that during and after the seatbelt stop, without independent, reasonable suspicion of another crime by Clark, Officer Dillon was prohibited from seeking consent to search Clark’s vehicle. The search at issue therefore violated Article One, Section Eleven of the Indiana Constitution and the trial court abused its discretion in denying Clark’s motion to suppress. See footnote
Reversed and remanded with instructions to grant Clark’s motion to suppress.
SHARPNACK, J., and VAIDIK, J., concur.