Aug 20 2013, 5:44 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
GEORGE SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GREGORY JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1301-CR-28
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William Nelson, Judge
Cause No. 49F07-1205-CM-36170
August 20, 2013
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Gregory Johnson appeals his conviction for Class A misdemeanor possession of
marijuana. We affirm.
Issue
The sole issue is whether the trial court properly admitted evidence recovered as a
result of a traffic stop of Johnson’s vehicle.
Facts
On May 29, 2012, Officer Keith Minch of the Indianapolis Metropolitan Police
Department pulled over a Dodge Caravan minivan driven by Johnson because of Officer
Minch’s belief that the rear window of the vehicle was too darkly tinted, so that he “could
not see through it clearly enough to identify the occupants inside and describe them to the
point that the law allows.” Tr. p. 7. After receiving identification from Johnson, Officer
Minch discovered that Johnson’s driver’s license was suspended. Officer Minch then
placed Johnson under arrest. During a pat down search incident to arrest, Officer Minch
found several bags of marijuana inside a pocket of Johnson’s pants.
The State charged Johnson with Class A misdemeanor dealing in marijuana and
Class A misdemeanor possession of marijuana. Johnson filed a motion to suppress the
marijuana, arguing that the initial stop of his vehicle was illegal because his windows
were not illegally tinted. The trial court did not hold a separate motion to suppress
hearing but considered it during Johnson’s bench trial, which was held on December 17,
2012. During that trial, Johnson presented uncontradicted evidence that the tint on the
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minivan was factory standard for Dodge Caravans for that year and of that type.1 The
trial court refused to suppress the marijuana; it acquitted Johnson of dealing in marijuana
and convicted him of possession of marijuana. Johnson now appeals.
Analysis
The trial court here essentially held a hearing on Johnson’s motion to suppress in
conjunction with his trial and seemed to rule on the matter as a question of admissibility
of evidence. We review a ruling concerning the admissibility of evidence for an abuse of
discretion. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). “An abuse of
discretion occurs when a decision is clearly against the logic and effect of the facts and
circumstances before the court.” Id. We cannot reweigh the evidence or judge witness
credibility, and must consider conflicting evidence in a light most favorable to the trial
court’s ruling. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans. denied.
It also is well-settled that when reviewing the constitutionality of a search or seizure, we
must also examine “any uncontested evidence favorable to the appellant.” Fair v. State,
627 N.E.2d 427, 434 (Ind. 1993).2 “Although a trial court’s determination of historical
1
The trial court sustained the State’s objection to a document from the dealer who sold the minivan
indicating that the window tint was factory standard, but Johnson testified to the same effect regarding the
window tint without objection.
2
Recently, in Walker v. State, 986 N.E.2d 328, 333 (Ind. Ct. App. 2013), another panel of this court
stated that if a defendant challenges the constitutionality of a search or seizure via objection to the
admissibility of evidence at trial and appeal from a resulting conviction, and not through a separate
motion to suppress hearing and interlocutory appeal, then on appeal “we may not consider the
uncontested evidence favorable to the defendant.” We disagree with this statement. Fair and Lindsey, for
example, both were appeals after final conviction, not interlocutory appeals from denial of a motion to
suppress. See also Lance v. State, 425 N.E.2d 77, 78 (Ind. 1981) (applying “uncontested adverse
evidence” standard to search and seizure question in appeal after trial and final conviction).
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facts is entitled to deferential review, we employ a de novo standard when reviewing the
trial court’s ultimate determinations of reasonable suspicion and probable cause.”
Lindsey, 916 N.E.2d at 238. In other words, when a trial court has admitted evidence
alleged to have been discovered as the result of an illegal search or seizure, we generally
will assume the trial court accepted the evidence presented by the State and will not
reweigh that evidence, but we owe no deference as to whether that evidence established
the constitutionality of a search or seizure.
Under the Fourth Amendment to the United States Constitution, a seizure in the
form of a traffic stop is permissible if an officer has at least reasonable suspicion that a
traffic law, or other law, has been violated. Sanders v. State, 989 N.E.2d 332, 335 (Ind.
2013). Whether reasonable suspicion for a seizure existed requires examination of the
totality of the circumstances to determine whether the detaining officer had a
particularized and objective basis for suspecting legal wrongdoing. L.W. v. State, 926
N.E.2d 52, 55 (Ind. Ct. App. 2010). The reasonable suspicion requirement is met where
the facts known to the officer, together with the reasonable inferences arising from such
facts, would cause an ordinarily prudent person to believe illegal activity has occurred or
is about to occur. Id. Reasonable suspicion cannot be based only upon an officer’s
general “hunches” or unparticularized suspicions. Id.
4
Recently, in Sanders, our supreme court highlighted the deference to be given to
police officers who have pulled over a vehicle for a perceived violation of Indiana Code
Section 9-19-19-4, the Indiana Window Tint Statute.3 The statute provides in part:
A person may not drive a motor vehicle that has a:
(1) windshield;
(2) side wing;
(3) side window that is part of a front door; or
(4) rear back window;
that is covered by or treated with sunscreening material or is
tinted to the extent or manufactured in a way that the
occupants of the vehicle cannot be easily identified or
recognized through that window from outside the vehicle.
However, it is a defense if the sunscreening material applied
to those windows has a total solar reflectance of visible light
of not more than twenty-five percent (25%) as measured on
the nonfilm side and light transmittance of at least thirty
percent (30%) in the visible light range.
Ind. Code § 9-19-19-4(c). In Sanders, Officer Minch pulled over a vehicle with tinted
windows when he was unable to clearly recognize or identify the occupants, but later
testing revealed that the windows were not in fact in violation of the Window Tint Statute
because they permitted a light transmittance of 38%. The court held that although this
testing would absolve the driver of liability for violating the Window Tint Statute, it did
not make the stop illegal, in light of the officer’s testimony that established reasonable
suspicion to make the stop. Sanders, 989 N.E.2d at 335-36. It also stated, “Although the
3
Curiously, Officer Minch also pulled over the defendant in Sanders.
5
officer was ultimately mistaken in his belief that a violation occurred, the traffic stop was
based upon a good faith, reasonable belief that a statutory infraction had occurred and
thus we are unable to say that the traffic stop was not lawful.” Id. at 336.
Even if we were to assume that the tinting on the windows of the minivan Johnson
was driving was legal,4 that does not negate Officer Minch’s testified-to observation that,
at the time of the stop, he could not clearly identify the vehicle’s occupants. Likewise,
we are precluded from accepting Johnson’s invitation to consider photographic evidence
presented during trial that he argues shows the tinting on his rear window was not
excessive and, in fact, was no darker than other similar Dodge Caravans. To do so at the
expense of Officer Minch’s testimony of what he observed at the time of the traffic stop
would constitute reweighing the evidence, which we cannot do. Viewing the evidence in
a light most favorable to the trial court’s ruling, even if Officer Minch was mistaken
about whether the rear window of the minivan violated the Window Tint Statute, his
testimony establishes that it was a good faith mistake and that there was reasonable
suspicion to make the stop. See id.
The defendant in Sanders did not make an argument under the Indiana
Constitution. Id. at 334 n.2. Johnson does make such an argument. The legality of a
search or seizure under Article 1, Section 11 of the Indiana Constitution turns on the
reasonableness of the police conduct under the totality of the circumstances. Lacey v.
4
The State has never disputed Johnson’s assertion that the windows on the minivan were factory
standard. We will assume for the sake of argument that Dodge did not mass-produce minivans with
illegally dark window tinting.
6
State, 946 N.E.2d 548, 550 (Ind. 2011). Although there may be other relevant
considerations depending on the circumstances, the reasonableness of a search or seizure
turns on a balancing of: “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 extent of law enforcement needs.”
Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).
We will admit that the degree of concern, suspicion, or knowledge that Johnson
was committing a traffic violation was not overwhelming. Unlike running a red light or
turning without signaling or speeding as measured by a radar gun, there is much
subjectivity that goes into deciding whether a window of a moving car is too dark under
the Window Tint Statute. And, again, the State does not dispute that the minivan’s
windows were factory standard. Still, the degree of suspicion was not non-existent. We
also will acknowledge that the State’s interest in enforcing the Window Tint Statute is not
an overwhelmingly pressing public safety concern. Again, the red light, failure to signal,
and speeding examples are all more inherently dangerous than having overly-tinted
windows. Nonetheless, there are legitimate law enforcement and safety interests in
prohibiting the operation of vehicles with excessive window tinting, and police officers
are entitled to enforce the statute.
Johnson concedes that the degree of intrusion caused by the traffic stop was “not
excessively high.” Appellant’s Br. p. 12. There is no argument or evidence that Officer
Minch unnecessarily extended the length of the traffic stop by conducting a “fishing
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expedition.” Instead, Officer Minch only asked Johnson for his identification, which
revealed that Johnson’s license was suspended and led to his arrest and the discovery of
the marijuana. Officers who stop a vehicle for a suspected violation of the Window Tint
Statute are permitted to briefly detain a motorist to, among other things, request a driver’s
license and vehicle identification and conduct a license plate check. See Herbert v. State,
891 N.E.2d 67, 70 (Ind. Ct. App. 2008) (quoting State v. Quirk, 842 N.E.2d 334, 340
(Ind. 2006)), trans. denied. Even if the degree of suspicion and needs of law enforcement
were not overwhelming in this case, the relative lack of intrusiveness of the traffic stop
and Officer Minch’s behavior lead us to conclude that his conduct was reasonable under
the totality of the circumstances and, therefore, did not violate the Indiana Constitution.
Johnson also makes a statutory argument, which is essentially that the General
Assembly could not have intended to permit police officers unbridled discretion to pull
over vehicles with legal window tinting on the basis of their own subjective assessment
that the tinting is too dark, or that Officer Minch’s testimony that he could not adequately
“identify . . . and describe” the occupants of the minivan did not meet the requirements of
the Window Tint Statute. Tr. p. 7. We observe, however, that Officer Minch gave very
similar testimony in Sanders, which our supreme court deemed adequate to establish
reasonable suspicion to pull over a vehicle.5 We also assume that, when drafting and
subsequently recodifying the Window Tint Statute, the General Assembly was well aware
5
Officer Minch testified in Sanders that “he could not ‘clearly recognize or identify the occupant inside.’”
Sanders, 989 N.E.2d at 335.
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of the constitutional principle that police officers are permitted to pull over vehicles upon
reasonable suspicion that a traffic law has been violated, and furthermore that
“pretextual” stops of vehicles for minor traffic violations do not run afoul of either the
United States or Indiana Constitutions. See Whren v. United States, 517 U.S. 806, 813,
116 S. Ct. 1769, 1774 (1996); Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001). If the
General Assembly believes it would be wise to re-write the Window Tint Statute in such
a way as to limit police officer authority to pull over vehicles for suspected violations of
that law, it could do so. Additionally, the primary check upon potential abuse of the
Window Tint Statute as a pretext to conduct traffic stops must lie with trial courts, which
are in a position to judge the credibility of police officer testimony regarding the ability
to see through a particular vehicle’s window tinting.
Conclusion
Officer Minch’s stop of Johnson’s vehicle did not violate the United States
Constitution, the Indiana Constitution, or the Window Tint Statute. We affirm the
admission of the marijuana into evidence and his conviction for possession of marijuana.
Affirmed.
CRONE, J., and PYLE, J., concur.
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