United States of America v. Jason Smith

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2016
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 10 CR 107—Robert L. Miller, Jr., Judge.
ARGUED SEPTEMBER 30, 2011—DECIDED JANUARY 3, 2012
Before EASTERBROOK, Chief Judge, and POSNER and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. On July 14, 2010, an officer
with the South Bend Police Department stopped the
vehicle that Jason Smith was driving when Smith failed
to signal a right turn at an intersection. A search of
Smith’s car yielded a loaded revolver, crack cocaine,
marijuana, and a digital scale, and he was charged with
being a felon in possession of a firearm, possession of
crack cocaine with intent to deliver, and possession of a

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firearm in furtherance of a drug transaction, with the
indictment stating that the events took place “on or
about July 13, 2010.” Smith moved to suppress the
items recovered on the ground that the officer lacked
probable cause for the stop because a turn signal was
not required, which the district court denied. During
his trial, the government proved that the traffic stop
actually took place on July 14, 2010, and at the close of
evidence, Smith moved for acquittal on the ground that
the indictment was constructively amended based on
the discrepancy in dates, which the court also denied.
The jury found Smith guilty on all counts, and Smith
appeals the district court’s denial of his motion to
suppress and his motion for acquittal, arguing first that
he did not commit a traffic violation by failing to
signal because he was only bearing right. We disagree
and find that under Indiana law, Smith turned right
requiring a signal. Smith also argues that the govern-
ment constructively amended the indictment by stating
that the traffic stop occurred “on or about July 13, 2010”
in the indictment, but proving a different date at trial.
We find no constructive amendment, and affirm the
judgment.
I. BACKGROUND
On the morning of July 14, 2010 Officer Greg Early of
the South Bend Police Department was on a routine patrol
in the city of South Bend. Officer Early was driving a
marked police car with a police dog trained in narcotics
detection when he saw a Pontiac Grand Prix at a service

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No. 11-2016 3
station near the intersection of Elwood and Portage. A
few days earlier, Officer Early received a tip from an
informant that a black male in his twenties was driving
a Pontiac Grand Prix while carrying a gun and drugs.
The license plate number of the Grand Prix in Officer
Early’s view matched the one provided by the infor-
mant. Officer Early proceeded to another call, but
spotted the Pontiac between fifteen and twenty minutes
later. Officer Early later testified that he noticed a “ques-
tionable,” but “pretty dark” tint on the windows, and
a brake light that was partially out.
Smith, the driver of the Pontiac, was driving south on
Walnut Street and reached the intersection of Fassnacht,
Walnut, and LaPorte Streets. Fassnacht, Walnut, and
LaPorte Streets form a three-way, five pronged inter-
section. (A map from the record is appended to the end
of this opinion). Not all three streets intersect at the
same point, and if one were driving southbound on
Walnut, the driver could take a sharp turn right onto
LaPorte, a less severe (approximately 120 degree) turn
right onto Fassnacht, or a slight left turn to continue
onto Walnut.
Smith did not use his signal light when he turned from
Walnut onto Fassnacht Street. At that point Officer
Early activated his lights and siren and called for backup.
Smith pulled over on Fassnacht Street, and Officer Early
approached the car. Because he had trouble seeing through
the window tint, Officer Early asked Smith to show his
hands through the driver’s side window, and then asked
for his license and registration. Officer Early smelled the

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Smith was also charged with possession of ecstasy with 1
intent to distribute, 21 U.S.C. § 841. The government later
dismissed this count when the substance was found to be
caffeine pills and not ecstasy.
odor of burnt marijuana, and found Smith to appear
nervous as he “fumbled around for the registration.” Smith
handed Officer Early the registration, but could not
produce a license. Officer Early then saw Smith push
closed the front of a plastic grocery bag on the passenger’s
seat. After backup arrived, Officer Early ordered Smith out
of the car and patted him down, recovering what he
suspected were ecstasy but were later deemed caffeine
pills. He placed Smith in handcuffs and asked Smith if
there was anything else in his vehicle. Smith replied
that there was a gun in the car, and Officer Early looked
into the driver’s side door and saw a gun on the floor of
the car. Officer Early removed the gun from the car and
had his canine perform a search of the vehicle. The
dog alerted to the plastic bag on the passenger’s seat of
the vehicle. Officer Early searched the bag and found
that it contained marijuana, crack cocaine, and a digital
scale.
Smith was charged with being a felon in possession of
a firearm, 18 U.S.C. § 922(g)(1), possessing crack cocaine
with intent to deliver, 21 U.S.C. § 841(a)(1), and possessing
a firearm in furtherance of a drug transaction, 18 U.S.C.
§ 924(c). Smith filed a motion to suppress the items1
recovered during the search of his vehicle under the
Fourth Amendment, arguing that the stop was unlawful
because there was no need to signal when “bearing right”

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No. 11-2016 5
from Walnut onto Fassnacht Street. After reviewing a
map and video footage of the intersection and stop from
the police vehicle, the district court found that the traffic
stop was not a violation of the Fourth Amendment
because it was “enough of a turn that Indiana law
requires a signal.” A jury trial commenced.
While the indictment stated that the events in connec-
tion with Smith’s arrest occurred on July 13, 2010, the
government revealed at trial that the events actually
occurred on July 14, 2010. At the close of evidence,
Smith argued that his indictment was constructively
amended and moved for acquittal, which the court denied.
Smith was convicted on all three counts, and was sen-
tenced to a term of 165 months’ imprisonment. Smith
now appeals the denial of his motion to suppress and
his motion for acquittal.
II. ANALYSIS
When reviewing a district court’s ruling on a motion
to suppress, we review legal conclusions de novo and
factual findings and credibility determinations for clear
error. United States v. Cartwright, 630 F.3d 610, 613 (7th
Cir. 2010). A factual finding is only deemed clearly errone-
ous when we have a “definite and firm conviction that a
mistake has been made.” United States v. Jackson, 300 F.3d
740, 745 (7th Cir. 2010). Special deference is given to
the district court’s factual determinations because the
district court had the opportunity to hear the testimony
and observe the demeanor of witnesses at the suppres-
sion hearing. Id.

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6 No. 11-2016
A traffic stop does not violate the Fourth Amendment
when the police officer has probable cause to believe
that a driver has committed even a minor violation of a
traffic law. United States v. Garcia-Garcia, 633 F.3d 608,
612 (7th Cir. 2011) (citing Whren v. United States, 517
U.S. 806, 819 (1996)). Other actual motivations of the
police officer bear no weight on the “constitutional rea-
sonableness” of traffic stops. Whren, 517 U.S. at 813.
“But when a police officer mistakenly believes that the
law prohibits an act that is, in fact, perfectly legal, even
a good faith belief that the law has been violated will
not support the stop.” Garcia-Garcia, 633 F.3d at 612
(citing United States v. McDonald, 453 F.3d 958, 961-62
(7th Cir. 2006)). The officer’s belief that a law has been
broken must be “reasonable,” but such a belief cannot
be reasonable “when the acts to which the officer points
as supporting probable cause are not prohibited by
law.” Id. (quoting McDonald, 453 F.3d at 961). The ques-
tion, then, is whether Indiana law actually required a
turn signal at the intersection at issue here.
Indiana Code § 9-21-8-25 provides that “[a] signal of
intention to turn right or left shall be given continuously
during not less than the last two hundred (200) feet
traveled by a vehicle before turning or changing lanes.”
Though not often discussed, the Indiana Court of
Appeals has highlighted that use of a turn signal is not
restricted to “certain situations on certain roadways”
and that the statute requires the use of a turn signal
even when turning from a parking lot onto a street or
changing lanes, Datzek v. State, 838 N.E.2d 1149, 1155 (Ind.
Ct. App. 2005). But such a holding is not particularly
instructive for the specific set of facts before us.

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No. 11-2016 7
The statute does not define “turning.” As such, we look
to the Indiana courts for guidance. Brownsburg Area
Patrons Affecting Change v. Baldwin, 137 F.3d 503, 508 (7th
Cir. 1998). If an Indiana statute is not ambiguous, the
court will give effect to the plain, ordinary, and usual
meaning of the language of the statute. Miller v. LaSalle
Bank Nat. Ass’n, 595 F.3d 782, 786 (7th Cir. 2010); see also
Baldwin, 137 F.3d at 508. The Oxford English Dictionary
defines “turning” as “movement about an axis or
centre; rotation, revolution.” Oxford English Dictionary,
available at http://www.oed.com/. Headed southbound on
Walnut, Smith could have made two “right” choices: a
roughly 120-degree right onto Fassnacht, or a less than
90 degree (and thus much more sharp) right onto
LaPorte. By going right onto Fassnacht, we find that
Smith sufficiently “rotated” so that his movement was
a turn under a plain reading of Indiana’s statute.
Smith contends that no signal was required from
Walnut to Fassnacht because he did not make the sharp
right turn onto LaPorte, and using a signal would have
in fact confused a driver behind him. This, however, does
not negate or discount the fact that Smith’s turn onto
Fassnacht was a right turn under Indiana law. Indiana
law does not define a right turn in relation to other
turns and neither the statute nor the plain or ordinary
meaning defines a turn by the degree of sharpness or
a particular angle. The degree of a right turn angle can
vary from intersection to intersection. See, e.g., United
States v. Smith, 421 Fed. Appx. 572, 574 (6th Cir. 2011)
(unpublished) (“Even if not a 90-degree turn, requiring a
signal here fits within the plain language of” ordinance

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8 No. 11-2016
stating that “[n]o person shall turn a vehicle or move
right or left upon a highway . . . without giving an ap-
propriate signal”); see also United States v. Washington,
No. 07-CR-132, 2008 WL 90525, at *2 (N.D. Ind. Jan. 8,
2008) (“[P]roceeding straight ahead on a ‘direct course’
would land the driver in the business located at that
intersection—and the act of making a turn requires
the use of a turn signal as required by Sections 9-21-8-24
and 9-21-8-25.”). The record here indicates that con-
tinuing “straight” on Walnut also includes some
element of a “turn,” but in a five-pronged intersection
such as this, we agree with the district court that a
plain reading of the statute requires a turn signal from
Walnut to Fassnacht. Accordingly, Officer Early had
probable cause to conduct the traffic stop. Because we
find probable cause based on Smith’s failure to
signal, we do not reach the question of whether the vehi-
cle’s window tinting provided independent grounds
for justifying the stop.
We only briefly address Smith’s constructive amend-
ment argument. We review whether a district court
constructively amended the indictment de novo. United
States v. Alhalabi, 443 F.3d 605, 614 (7th Cir. 2006). “For a
change in the indictment to rise to the level of a construc-
tive amendment, it must establish an offense different
from, or in addition to, those originally charged.” United
States v. Mitov, 460 F.3d 901, 906 (7th Cir. 2006) (citing
United States v. Trennell, 290 F.3d 881, 888 (7th Cir.
2002)). Thus, we are primarily concerned with changes
made to the indictment that affect elements of the crime.
Id. at 906-07 (citing United States v. Krilich, 159 F.3d 1020,

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No. 11-2016 9
1027 (7th Cir. 1998)). Here, the date is not an element of
any of the offenses charged, and “where the charge is
worded so broadly as to state ‘on or about’ a certain
date, the defendant is deemed to be on notice that the
charge is not limited to a specific date.” Id. (citing United
States v. Folks, 236 F.3d 384, 391 (7th Cir. 2001)). The
indictment gave Smith proper notice of the offense
for which he was being charged and that the date of
the offense listed on the indictment was an approxima-
tion. We find that proof at trial that the events took
place one day after July 13, 2010 did not result in an
impermissible constructive amendment. See id.; Folks, 236
F.3d at 391, United States v. Leibowitz, 857 F.2d 373, 379 (7th
Cir. 1988).
III. CONCLUSION
For the reasons set forth above, the judgment of the
district court is AFFIRMED.

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