Clayton doctor v. State of Indiana

FILED
Jul 26 2016, 8:39 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Phillips Gregory F. Zoeller
Boonville, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Clayton Doctor, July 26, 2016
Appellant-Defendant, Court of Appeals Case No.
82A01-1507-CR-844
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli E. Fink,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1407-FA-806

Riley, Judge.

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 STATEMENT OF THE CASE

[1] Appellant-Defendant, Clayton Doctor (Doctor), appeals the trial court’s Order

denying Doctor’s motion to suppress the evidence seized during a traffic stop.

[2] We affirm and remand for further proceedings.

ISSUES

[3] Doctor presents one issue on interlocutory appeal, which we restate as follows:

Whether the trial court erred in denying his motion to suppress the evidence

seized during the course of a traffic stop.

[4] The State raises one issue on cross-appeal, which we restate as follows:

Whether Doctor’s interlocutory appeal should be dismissed because he did not

timely file his Notice of Appeal.

FACTS AND PROCEDURAL HISTORY

[5] In February of 2014, Detective Cliff Simpson (Detective Simpson), a police

officer with the Evansville Police Department’s narcotics unit and “a federally

deputized” officer with the Drug Enforcement Administration task force,

received incriminating information about Doctor from an individual in federal

custody. (Tr. p. 5). The source revealed to Detective Simpson that he had

traveled to Dallas, Texas, with Doctor, where Doctor had “a hydraulic trap”

installed “in the area of the front passenger’s side compartment, airbag

compartment” of a black Acura sedan. (Tr. p. 7). Then, in March of 2014,

Detective Simpson received information from another confidential informant

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 that Doctor was transporting large quantities of cocaine from Atlanta, Georgia,

to Evansville, Vanderburgh County, Indiana, for distribution. As part of his

investigation into Doctor, Detective Simpson located the black Acura and

applied to the United States District Court in the Southern District of Indiana to

place a GPS tracking device on the vehicle. On May 14, 2014, Detective

Simpson’s request was granted, and he placed the tracker on the underside of

the Acura. On June 19, 2014, upon Detective Simpson’s application, the

federal district court approved a forty-five-day extension to continue monitoring

Doctor’s vehicle via GPS.

[6] On June 24, 2014, the GPS device indicated that the Acura had been driven to

Atlanta. For five days, the vehicle remained in Atlanta. On June 29, 2014, it

appeared from the GPS unit that the Acura was leaving Atlanta and heading

north. Believing that Doctor was returning to Indiana, Detective Simpson and

several other officers set up surveillance points along the Pennyrile Parkway

and U.S. 41 in Kentucky and southern Indiana. Detective Simpson was

stationed at the Double Dukes Bar in Henderson, Kentucky, and at

approximately 11:00 p.m., he identified Doctor’s Acura driving by. Detective

Simpson observed that the Acura, which was driving “maybe [thirty] miles an

hour” at the time, “had dark tinted windows,” and he “was unable to tell how

many occupants were in the vehicle or who was driving the vehicle.” (Tr. pp.

11, 26). Detective Simpson radioed to Officer Aaron Fair (Officer Fair) of the

Evansville Police Department, who was stationed in Evansville in a marked

police vehicle, and advised that the Acura was approaching and that its

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 windows were tinted too dark to identify the occupants. Once the Acura

crossed the state line into Evansville, Officer Fair initiated a traffic stop based

on a window tint violation.

[7] Officer Fair approached the vehicle and gathered information from the driver,

who was identified as Doctor. Officer Fair subsequently returned to his vehicle

to “conduct[] his normal business” for processing a traffic stop. (Tr. p. 47).

Approximately “[a] minute” after Officer Fair initiated the stop, Motor Patrol

Officer Lenny Reed (Officer Reed) and his K-9 partner, Willy (K-9 Willy),

arrived on the scene. (Tr. p. 41). Officer Reed first observed the vehicle’s

window tint, noting that “[t]he occupants in the vehicle were not easily

identifiable.” (Tr. p. 41). As Officer Fair was seated in his squad car, Officer

Reed approached the driver-side window of the Acura and learned that there

was a passenger in the vehicle, identified as Jamal Grayson (Grayson). Officer

Reed walked over to the passenger-side window and spoke with Grayson.

During his conversation with Grayson, Officer Reed noticed “multiple air

freshener[]s inside the vents, all of the vents in the vehicle, . . . multiple cell

phones, . . . a prepaid phone card, . . . a hard travel appearance to the vehicle

with multiple energy drinks and/or food wrappers strung throughout the

vehicle.” (Tr. pp. 43-44). Based on his observations, Officer Reed requested

Doctor’s consent to search the vehicle. Doctor responded that the vehicle did

not belong to him. 1 After explaining to Doctor “that he was in control of the

1
The officers verified that the Acura was registered to Joshlyn Simmons.

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 vehicle,” Officer Reed again asked for consent to search the vehicle, and Doctor

refused. (Tr. pp. 46-47).

[8] At this point, approximately five or six minutes into the traffic stop, Officer

Reed “decided to deploy K-9 Willy to the free air space” around the vehicle.

(Tr. p. 47). Prior to Officer Reed even commanding K-9 Willy to “dope seek,”

K-9 Willy “stopped to investigate” alongside the driver’s door. (Tr. p. 48). K-9

Willy “stood on his hindquarters[] [and] tried to jump inside that driver’s

window.” (Tr. p. 48). Officer Reed “noticed a demeanor change in [K-9] Willy

such as his breathing rate, his nose popping, his tail set changing, those are

things that are indicative of K-9 Willy being in narcotic odor.” (Tr. p. 48).

Officer Reed directed K-9 Willy to the front of the vehicle, near the passenger-

side headlight, and gave him the “dope seek” command. (Tr. p. 49). The duo

worked counter-clockwise around the vehicle, and K-9 Willy again stopped at

the driver-side door and changed his demeanor to indicate the scent of

narcotics. When they reached the passenger-side window, K-9 Willy, once

again, rose up on his hindquarters with his nose up in the air and started

scratching at the door. (Tr. p. 49). Officer Reed then “deployed [K-9] Willy to

the interior of the vehicle.” (Tr. p. 50). K-9 Willy climbed over all the seats

before providing “an indication on the floorboard of the passenger’s seat, like a

final indication where he’s staring at and scratching at.” (Tr. p. 50). When

redirected to the dashboard area, K-9 Willy nosed through the glovebox, which

had been opened, and scratched at the passenger’s seat, which indicated to

Officer Reed that he was “smelling drugs.” (Tr. p. 51).

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[9] As Officer Reed returned K-9 Willy to his patrol vehicle, he stopped by Officer

Fair’s vehicle to inform Officer Fair that K-9 Willy had indicated the presence

of narcotics. Officer Fair advised that he was writing out a warning citation for

Doctor’s window tint violation. K-9 Willy’s indications were relayed to

Detective Simpson, who applied for and obtained a warrant to search Doctor’s

vehicle. The Acura was transported to a crime scene garage so that the search

could be conducted in a better-lit and less hazardous environment than

alongside a highway. The search revealed a hydraulic trap (i.e., a “hidden

compartment”) “in the front passenger’s side airbag.” (Tr. p. 14). After

breaching the trap, the officers discovered “two heat sealed bags containing a

white powdery substance,” both of which “field tested positive for cocaine.”

(Tr. pp. 14-15).

[10] On July 1, 2014, the State filed an Information, charging Doctor with Count 1,

dealing in cocaine, a Class A felony, Ind. Code § 35-48-4-1(a)(2)(C),(b)(1)

(2013); and Count II, conspiracy to commit dealing in cocaine, a Class A

felony, I.C. §§ 35-48-4-1(a)(2), (b)(1); -41-5-2 (2013). On November 12, 2014,

Doctor filed a motion to suppress “any evidence obtained as a result of the

search of [his] vehicle.” (Appellant’s App. p. 16). Doctor argued that “[t]he

traffic stop exceeded the parameters set forth in Terry v. Ohio, [392 U.S. 1, 20

(1968)]; . . . the basis for making the traffic stop was pretextual; . . . [t]he search

warrant obtained in his cause was not based on probable cause; and . . .

[Doctor] was not advised of his constitutional rights.” (Appellant’s App. p. 16).

On June 4, 2015, the trial court issued its Order, denying Doctor’s motion to

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 suppress except to the extent “that any statements made by [Doctor] while in

custody prior to the advisement of Miranda warnings and in response to

interrogation are suppressed.” (Appellant’s App. p. 12).

[11] On July 1, 2015, Doctor filed a motion to certify the trial court’s Order for

interlocutory appeal, which the trial court granted the same day. On July 31,

2015, our court accepted jurisdiction over this appeal. Additional facts will be

provided as necessary.

DISCUSSION AND DECISION

I. Motion to Dismiss

[12] On February 23, 2016, the State filed a Motion to Dismiss Appeal, claiming

that Doctor’s September 30, 2015 Notice of Appeal was filed after the deadline.

On March 2, 2016, Doctor filed his response to the State’s motion for dismissal.

Doctor argued that his Notice of Appeal was timely “filed with this [c]ourt on

July 6, 2015, as noted by the entry of the [c]lerk of this [c]ourt for July 6, 2015,

stating: ‘The appearance for atty. Mark Phillips was tendered in the form of a

notice of appeal.’” (Appellant’s Response to the State’s Motion to Dismiss

Appeal p. 1). Doctor contended that on September 30, 2015, his attorney

communicated with the clerk’s office “and was advised to file another Notice of

Appeal[,]” which he did the same day. (Appellant’s Response to the State’s

Motion to Dismiss Appeal p. 1). On March 17, 2016, having reviewed the

matter, our court’s motions panel denied the State’s motion to dismiss.

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[13] On cross-appeal, the State now claims that Doctor’s appeal should be dismissed

because he did not timely file a Notice of Appeal. Doctor, however, contends

that this court, via its motions panel, has already considered the merits of this

issue and denied the State’s motion to dismiss. Although we are reluctant to do

so “absent clear authority establishing that it erred as a matter of law[,]” it is

well established that our court “has inherent authority” to reconsider any ruling

by the motions panel “while an appeal remains in fieri.” Treacy v. State, 953

N.E.2d 634, 636 n.2 (Ind. Ct. App. 2011) (citing Davis v. State, 771 N.E.2d 647,

649 n.5 (Ind. 2002), abrogated on other grounds by In re Adoption of O.R., 16 N.E.3d

965 (Ind. 2014)), trans. denied; Members v. State, 851 N.E.2d 979, 981 n.2 (Ind.

Ct. App. 2006).

[14] In this case, there is no dispute that Doctor’s interlocutory appeal is

discretionary rather than a matter of right. See Ind. Appellate Rule 14(A)

(discussing interlocutory appeals of right). For a discretionary interlocutory

appeal, Indiana Appellate Rule 14(B) sets forth a specific procedure for

initiating the appeal. First, within thirty days of the trial court’s issuance of an

interlocutory order, a party must file a motion requesting that the trial court

certify the order for an interlocutory appeal. App. R. 14(B)(1)(a). Thereafter,

within thirty days of a hearing on the matter or, if no hearing is set, within

thirty days of the request for certification, the trial court must rule or the motion

for certification will be deemed denied. App. R. 14(B)(1)(e). Upon the trial

court’s certification, the moving party must request that our court accept

jurisdiction over the appeal within thirty days. App. R. 14(B)(2)(a). “The

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 motion shall be accompanied by an appearance as required by [Appellate] Rule

16(H).” App. R. 14(B)(2). Within fifteen days of our court’s order accepting

jurisdiction over the interlocutory appeal, “[t]he appellant shall conventionally

file a Notice of Appeal with the Clerk.” App. R. 14(B)(3).

[15] Here, the trial court issued the interlocutory Order on June 4, 2015. On July 1,

2015, Doctor filed a motion with the trial court to certify the Order for

interlocutory appeal, which the trial court granted the same day. On July 6,

2015, Doctor requested that our court accept jurisdiction over the interlocutory

appeal, which we granted on July 31, 2015. Accordingly, pursuant to the

Appellate Rules, Doctor’s Notice of Appeal was due to be filed within fifteen

days of July 31, 2015—i.e., no later than Monday, August 17, 2015.

[16] Doctor directs our attention to the docket, which states that “[t]he appearance

for atty. Mark Phillips was tendered in the form of a notice of appeal” on July

6, 2015. (Appellant’s Reply Br. p. 2). 2 The Chronological Case Summary

includes an entry on July 6, 2015, which states, “Notice of Appeal Received.”

(Appellant’s App. p. 9). Although not included within the record submitted by

the parties, the court’s electronic filing system, Odyssey, contains a Notice of

Appeal filed by Doctor on July 6, 2015. 3 Then, on September 30, 2015, after

2
This notation is not included in the trial court’s Chronological Case Summary; rather, it is noted on the
court’s electronic filing system, Odyssey.
3
This Notice of Appeal was filed as an appearance, which is required to accompany a motion requesting
that our court accept jurisdiction of an interlocutory appeal. App. R. 14(B)(2). The State does not
acknowledge Doctor’s July 6, 2015 Notice of Appeal.

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 apparently realizing that the Appellate Rules state that a Notice of Appeal is to

be filed after the court accepts jurisdiction, Doctor filed a second Notice of

Appeal. Accordingly, Doctor filed both a premature and a belated Notice of

Appeal.

[17] Our court has previously determined that a premature filing of a Notice of

Appeal “is simply a defect in form that is capable of being cured.” Ivy v. State,

847 N.E.2d 963, 965 (Ind. Ct. App. 2006). We stated that if a premature filing

does “not adversely affect the substantial rights of either party, the claimant’s

right to review [is] not forfeited.” Id. In this case, we find that the premature

Notice of Appeal did not adversely affect the State. Rather, the State received

advanced notice that Doctor sought to appeal the Order, especially in light of

the fact that Doctor filed a motion to certify the Order for interlocutory appeal

and filed a motion with this court to accept jurisdiction. The defect was cured

upon our court’s acceptance of jurisdiction. Therefore, we conclude that

Doctor’s right to appeal should not be forfeited, and we uphold the order of our

motions panel denying the State’s motion to dismiss.

II. Motion to Suppress

[18] Doctor claims that the evidence seized from his vehicle should have been

suppressed because it was obtained pursuant to an illegal traffic stop. Our

review of a trial court’s ruling on a motion to suppress is similar to other

sufficiency matters. State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006). Thus,

“[t]he record must disclose substantial evidence of probative value that supports

the trial court’s decision. We do not reweigh the evidence, and we consider

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 conflicting evidence most favorably to the trial court’s ruling.” Id. However,

we will “consider the uncontested evidence in a light most favorable to the

appellant.” Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2013), trans.

denied. Regarding the determination of reasonable suspicion to merit a

warrantless search, our review is de novo. Sanders v. State, 989 N.E.2d 332, 334

(Ind. 2013).

[19] Doctor contends that the traffic stop violated the protections afforded by the

Fourth Amendment to the United States Constitution and Article I, Section 11

of the Indiana Constitution. In particular, he argues that the basis for the traffic

stop—i.e., a window tint violation—was pretextual. A “pretextual” traffic stop

is “a stop that police instigate ‘under the guise of enforcing the traffic code what

they would like to do for other reasons.’” Veerkamp v. State, 7 N.E.3d 390, 396

(Ind. Ct. App. 2014) (quoting Baldwin v. Reagan, 715 N.E.2d 332, 338 (Ind.

1999)), trans. denied. Doctor posits that law enforcement “simply orchestrated a

plan in which they could obtain the information necessary to secure a search

warrant,” and a “window tint violation was the only excuse they could come

up with to justify the stop.” (Appellant’s Br. pp. 10, 15). According to Doctor,

“[i]t would be an insult to the protections afforded individuals by the Fourth

Amendment and [Article I, Section 11] of the Indiana Constitution to excuse

the stop” because “[a] cunning trap was laid with patience and planning, and

Doctor was snared.” (Appellant’s Br. p. 11).

A. Fourth Amendment to the United States Constitution

[20] The Fourth Amendment to the United States Constitution guarantees:

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 The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.

U.S. CONST. amend IV. This protection is extended to the States via the

Fourteenth Amendment. Sanders, 989 N.E.2d at 335. Accordingly, “a search

warrant is a prerequisite to a constitutionally proper search and seizure.”

Callahan v. State, 719 N.E.2d 430, 434 (Ind. Ct. App. 1999). In the event of a

warrantless search or seizure, the State bears the burden of proving that an

exception to the warrant requirement exists. Id.

[21] A traffic stop is considered to be a seizure under the Fourth Amendment. Bush

v. State, 925 N.E.2d 787, 789, clarified on reh’g, 929 N.E.2d 897 (Ind. Ct. App.

2010). It is well established that police may not initiate a stop for any

conceivable reason, but rather must possess, “at least, reasonable suspicion

[that] a traffic law has been violated or other criminal activity is afoot.” Id. at

790. Whether a law enforcement officer had reasonable suspicion of a traffic

law violation requires an “examination of the totality of the circumstances to

determine whether the detaining officer had a particularized and objective basis

for suspecting legal wrongdoing.” Johnson, 992 N.E.2d at 958. As long as there

is an observable traffic violation, “the stop is valid whether or not the police

officer would have otherwise made the stop but for ulterior suspicions or

motives.” Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014).

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[22] In this case, Officer Fair initiated a traffic stop based on a purported violation of

Indiana’s Window Tint Statute, which provides:

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.

I.C. § 9-19-19-4(c) (2013) (emphasis added).

[23] In Sanders, 989 N.E.2d at 334-35, the defendant challenged the propriety of a

traffic stop based on the Window Tint Statute, which ultimately led to the

discovery of cocaine in the defendant’s possession. The defendant hired an

expert to inspect the window tint, and it was determined that the defendant’s

tint did, in fact, comply with the statute. Id. at 335. The supreme court found

that the subsequent determination that the window tint did not violate the

statute did “not serve to vitiate the legality of the traffic stop.” Id. Because the

officer “could not ‘clearly recognize or identify the occupant inside,’” along

with “the fact that the actual tint closely borders the statutory limit,” the Sanders

court concluded that the officer had reasonable suspicion to conduct a traffic

stop. Id. Similar to Sanders, both Detective Simpson and Officer Reed testified
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 that they were unable to see who was driving the vehicle or identify the number

of occupants therein. Although Officer Fair did not testify at the suppression

hearing in order to inform the court of his reasons for conducting the traffic

stop, Detective Simpson testified that he had communicated with Officer Fair

that he had just observed Doctor’s vehicle drive by and could not see through

the window. See L.W. v. State, 926 N.E.2d 52, 58 (Ind. Ct. App. 2010) (“[A]n

investigative stop may be based upon the collective information known to the

law enforcement organization as a whole.”).

[24] Doctor now argues that a violation of the Window Tint Statute cannot serve to

justify the traffic stop because “there was no testing done to verify the percent of

window tint” and because Detective Simpson had previously observed Doctor

driving the Acura and was clearly able to identify him on those occasions.

(Appellant’s Br. pp. 7-8). In Sanders, it was the defendant who presented

evidence of an expert witness to contradict the testimony of the police officers,

while, here, Doctor offered no evidence to indicate that his window tint actually

complied with the statute. See Sanders, 989 N.E.2d at 335. Furthermore,

evidence that Doctor’s window tint complied with the Window Tint Statute

would serve to absolve him of the window tint violation, but it would not

negate the officers’ reasonable suspicion based on their observations. See id.

Additionally, although Detective Simpson did indicate that he had previously

seen Doctor driving the Acura, he clarified that Doctor’s windshield was not

tinted, so he was able to see Doctor driving by “[l]ooking through the front

windshield in daylight.” (Tr. p. 34). Conversely, on the night of the traffic

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 stop, when the vehicle passed by Detective Simpson, he only had a view of the

Acura’s tinted side windows. Based on the wording of the statute, it is a

violation if any one window is tinted to the extent that an occupant cannot be

recognized “through that window.” I.C. § 9-19-19-4(c) (2013). As we are to

consider the evidence before us in a light most favorable to the trial court’s

ruling, we find that the officers’ testimony that they could not see the occupants

inside of the Acura provided reasonable suspicion to justify the traffic stop.

[25] Nonetheless, even where a traffic stop is valid at its inception, it may violate the

protections of the Fourth Amendment “if its manner of execution unreasonably

infringes interests protected by the Constitution.” Bush, 925 N.E.2d at 790

(quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). “Specifically, a traffic

stop ‘that is justified solely by the interest in issuing a warning ticket to the

driver can become unlawful if it is prolonged beyond the time reasonably

required to complete that mission.’” Id. (quoting Myers v. State, 839 N.E.2d

1146, 149 (Ind. 2005)). Doctor now alleges that Officer Fair “intentionally

withheld completion of the traffic stop in order to allow Officer Reed to further

the investigation.” (Appellant’s Br. p. 9).

[26] We find no basis for Doctor’s accusation in the record. Rather, the only

evidence presented indicated that while Officer Fair was in his vehicle

“conducting his normal business” for a traffic stop—i.e., to issue a warning

citation for Doctor’s tinted windows, Officer Reed deployed K-9 Willy to sniff

around the vehicle. (Tr. p. 47). See, e.g., Johnson, 992 N.E.2d at 959 (“Officers

who stop a vehicle for a suspected violation of the Window Tint Statute are

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 permitted to briefly detain a motorist to, among other things, request a driver’s

license and vehicle identification and conduct a license plate check.”).

According to Officer Reed, he arrived on scene approximately one minute after

Officer Fair initiated the stop, and by the time Officer Reed returned K-9 Willy

to his patrol vehicle, Officer Fair was still working on the warning citation. See

Bush, 925 N.E.2d at 790 (noting that it would be a Fourth Amendment

violation to unreasonably prolong a traffic stop in order for a canine sniff to be

carried out “absent reasonable suspicion of criminal activity in addition to the

traffic violation”). At this point, Officer Reed estimated that the stop had been

ongoing for “probably [eight] to [ten] minutes, [twelve] minutes maybe.” (Tr.

p. 51).

[27] Officer Reed testified that the duration of a traffic stop is contingent upon

multiple factors, such as “the time of the day or the city, . . . business, traffic on

the radio, getting on the radio, things of that nature.” (Tr. pp. 57-58). When

presented with a hypothetical traffic stop for a window tint violation—and

acting under the assumption that the driver had a valid driver’s license, no

outstanding warrants, and was lawfully in possession of the vehicle—Officer

Reed opined that a normal traffic stop might take five to ten minutes. Here, no

evidence was presented to establish that the eight-to-twelve-minute period was

an unreasonable amount of time for a traffic stop.

[28] As a final note, in response to Doctor’s suggestion that “the law enforcement

officers involved in the detention, search and seizure of the black Acura and the

subsequent arrest of Doctor simply skipped over the search warrant procedure,”

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 we point out that, following the legal traffic stop, K-9 Willy conducted a sniff

around the vehicle and indicated the presence of narcotics. (Appellant’s Br. p.

15). “The ‘automobile exception’ to the warrant requirement allows police to

search a vehicle without obtaining a warrant if they have probable cause to

believe evidence of a crime will be found in the vehicle.” State v. Hobbs, 933

N.E.2d 1281, 1285 (Ind. 2010). K-9 Willy’s sniff provided probable cause that

the vehicle contained illicit drugs. See id. at 1286. Even though the officers

took the additional step of obtaining a warrant prior to searching the vehicle,

they would have been justified in conducting the search based on K-9 Willy’s

positive indications alone. Therefore, we conclude that the traffic stop did not

run afoul of the Fourth Amendment to the United States Constitution.

B. Article I, Section 11 of the Indiana Constitution

[29] Doctor also challenges the validity of the traffic stop under Article I, Section 11

of the Indiana Constitution. This provision is “almost identical in text to its

federal counterpart.” State v. Washington, 898 N.E.2d 1200, 1205 (Ind. 2008).

Nevertheless, Article I, Section 11 of the Indiana Constitution requires a

separate and independent analysis as “the Indiana Constitution may protect

searches that the federal Constitution does not.” Id. at 1206. “When police

conduct is challenged as violating this section, the burden is on the State to

show that the search [or seizure] was reasonable under the totality of the

circumstances.” Id. Relevant considerations in determining 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

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 the method of the search or seizure imposes on the citizen’s ordinary activities,

and 3) the extent of law enforcement needs.’” Johnson, 992 N.E.2d at 959

(quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).

[30] Although Doctor fails to set forth the aforementioned considerations for

analyzing an Article 1, Section 11 claim, he argues that the totality of the

circumstances does not support the traffic stop because there is no evidence that

the confidential informants who provided information about Doctor to

Detective Simpson were reliable, nor is there any indication that the officers

corroborated the informants’ tips. Doctor also asserts that Officer Reed’s

testimony that the vehicle had “a hard travel appearance” was insufficient to

pursue a narcotics investigation. (Tr. p. 44). We need not address these

contentions because our court has previously considered this issue and

determined that “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, 992 N.E.2d at 959.

Therefore, we conclude that the traffic stop was not contrary to Article I,

Section 11 of the Indiana Constitution because the officers acted reasonably

under the totality of the circumstances based on the fact that they observed a

valid traffic violation, and the officers did not unnecessarily extend the length of

the traffic stop in order to acquire probable cause to search the vehicle.

CONCLUSION

[31] Based on the foregoing, we conclude that Doctor has not forfeited his right to

appeal based on an untimely Notice of Appeal; therefore, the State’s motion to
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 dismiss is denied. We further conclude that the basis for the traffic stop did not

violate Doctor’s constitutional rights; therefore, the trial court appropriately

denied his motion to suppress.

[32] Affirmed and remanded for further proceedings.

[33] Kirsch, J. and Pyle, J. concur

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