Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

John Kindley

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tyson A. Eminger,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 10, 2019

Court of Appeals Case No.

18A-CR-2759

Appeal from the Noble Superior 

Court

The Honorable Robert E. Kirsch, 

Judge

Trial Court Cause No.

57D01-1709-F2-6

Baker, Judge.
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[1] Tyson Eminger appeals his convictions and the sentence imposed by the trial 

court for Level 2 Felony Dealing in Methamphetamine,1 Level 4 Felony 

Unlawful Possession of a Firearm by a Serious Violent Felon,2 and Class A 

Misdemeanor Resisting Law Enforcement,3 arguing that the trial court erred 

when it admitted certain evidence because the search was unlawful and that the 

sentence is inappropriate in light of the nature of the offenses and his character. 

Finding no error and the sentence not inappropriate, we affirm.

Facts

[2] On September 18, 2017, there was an active arrest warrant for Eminger. On that 

day, the Noble County Sheriff’s Department received information from Richard 

Rhoades about Eminger after Deputy Sheriff Johnny Ritchie stopped Rhoades’s

vehicle and questioned him. Rhoades agreed to meet Eminger at a gas station in 

Rome City in order to purchase methamphetamine as part of a controlled drug 

buy. Several undercover officers then drove to the gas station. 

[3] Later that evening, Eminger, Joshua Rowe, and Kristian Martin got into a 

vehicle. Martin was in the driver’s seat, Eminger was in the front passenger’s 

seat, and Rowe sat directly behind Eminger. They first drove to Eminger’s 

home to pick up two items and then to the Marathon gas station in Rome City, 

 

1

Ind. Code §§ 35-48-4-1.1(a)(2), -1.1(e)(1).

2

Ind. Code § 35-47-4-5(c).

3

Ind. Code § 35-44.1-3-1(a)(1).
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where they were to meet Rhoades. At the gas station, Eminger was standing 

outside the vehicle when law enforcement came out of hiding. The officers 

drew their weapons and ordered Eminger to lie on the ground. Eminger 

refused. He then proceeded to argue and fight with some of the officers until he 

was tased into submission.

[4] Officers then took Eminger into custody and searched him, finding $1,070 and 

a cell phone in his pockets. A search of the phone revealed the text message 

conversation between Eminger and Rhoades about methamphetamine. The 

officers ordered Martin and Rowe out of the vehicle. Deputy Sheriff Carey 

Coney then conducted an open-air sniff around the vehicle using a drug-sniffing

dog. The dog almost immediately alerted the officers to the presence of 

something in the front passenger’s seat, where Eminger had been sitting. The 

drug-sniffing dog did not alert the officers to any other part of the vehicle. The 

officers ran a VIN and license plate check of the vehicle and discovered that it

was stolen. 

[5] With this information, the officers searched the vehicle. On the floor of the

front passenger’s seat inside a blue lunch tote, they found a firearm and an 

Arizona Tea can with a hidden compartment containing a substance that was 

later determined to be methamphetamine. The methamphetamine was 

packaged in a way that is consistent with dealing. In the seat directly behind the 

front passenger’s seat, the officers found a black bag containing syringes, a 

small amount of a substance that was later determined to be marijuana, more 

methamphetamine, scales, ammunition, and small baggies that are commonly 
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used for drug transactions. Later testing revealed the total amount of 

methamphetamine to be 28.02 grams.

[6] On September 22, 2017, the State charged Eminger with one count of Level 2 

felony dealing in methamphetamine, one count of Level 4 felony unlawful 

possession of a firearm by a serious violent felon, and one count of Class A 

misdemeanor resisting law enforcement. The State also alleged that Eminger 

was an habitual offender. Eminger has a long criminal history, which includes 

convictions for Class C misdemeanor illegal possession of an alcoholic 

beverage, Class A misdemeanor resisting law enforcement, Class A 

misdemeanor operating a vehicle while intoxicated, Class A misdemeanor 

possession of marijuana, Class D felony possession of marijuana, Class A 

misdemeanor criminal recklessness with a vehicle, Class A misdemeanor 

battery resulting in bodily injury, Class A misdemeanor driving while 

suspended, Class C felony possession of two or more chemical reagents, and 

Class B felony dealing in methamphetamine.

[7] On December 22, 2017, Eminger filed a motion to suppress the evidence. 

Following a February 2, 2018, evidentiary hearing, the trial court denied 

Eminger’s motion to suppress, holding that Eminger did not have standing to 

challenge the search because it was of a stolen vehicle and that even if Eminger 

had standing, the officers had probable cause to search.

[8] On April 13, 2018, the State filed an additional charge of Level 4 felony 

possession of methamphetamine. At Eminger’s September 19-21, 2018, jury 
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trial, Eminger made a continuing objection to the admission of any evidence 

obtained from the search of the vehicle, which the trial court noted and 

overruled. See Tr. Vol. II p. 175. Eminger waived his right to a jury trial as to 

the habitual offender enhancement. The jury found Eminger guilty as charged. 

After a separate bench trial, the trial court found that Eminger was an habitual 

offender. 

[9] At Eminger’s October 19, 2018, sentencing hearing, the trial court merged the 

Level 4 felony possession conviction into the Level 2 felony dealing conviction 

for purposes of double jeopardy. The trial court then sentenced Eminger to 

twenty years for the dealing in methamphetamine conviction and enhanced the 

sentence by ten years due to Eminger’s habitual offender status; six years for the 

unlawful possession of a firearm by a serious violent felon conviction, with four 

years suspended to probation, to be served consecutively with the felony dealing 

conviction; and one year for the resisting law enforcement conviction to be 

served concurrently with the felony dealing conviction. Eminger’s aggregate 

executed sentence is thirty-two years. Eminger now appeals.

Discussion and Decision

I. Admission of Evidence

[10] First, Eminger argues that the trial court erred when it admitted certain 

evidence stemming from the search of the vehicle because the search violated 

the federal and state constitutions. Specifically, Eminger contends that the 
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officer’s search of the black bag and the blue lunch tote containing 

methamphetamine and the firearm was unlawful pursuant to the Fourth 

Amendment to the United States Constitution and Article 1, Section 11 of the 

Indiana Constitution. 

[11] As a general matter, the Fourth Amendment to the United States Constitution 

protects citizens from unreasonable searches and seizures. Article 1, Section 11 

of the Indiana Constitution contains nearly identical language and says that 

“[t]he right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable search or seizure, shall not be violated[.]” 

Evidence that is the product of an unlawful search is inadmissible under both 

the Fourth Amendment to the United States Constitution and Article 1, Section 

11 of the Indiana Constitution. Hill v. State, 956 N.E.2d 174, 177 (Ind. Ct. App. 

2011) (holding that evidence that is obtained from an illegal search is “fruit of 

the poisonous tree,” and therefore, inadmissible in a court of law). 

[12] Reversal of a trial court’s admissibility determinations is appropriate only where 

the decision is clearly against the logic and effect of the facts and circumstances. 

Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). “Moreover, we will sustain the 

trial court[’s] [decision on the admission of evidence] if it can be done on any 

legal ground apparent in the record.” Jester v. State, 724 N.E.2d 235, 240 (Ind. 

2000). However, we will review a trial court’s conclusions of law de novo, 
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giving no weight to the legal analysis below. Sanders v. State, 989 N.E.2d 332, 

334 (Ind. 2013).4

A. Fourth Amendment to the United States Constitution

[13] First and foremost, there is the question of standing. Under the Fourth 

Amendment, a defendant may not challenge the constitutionality of a search 

unless he can demonstrate that he had a reasonable expectation of privacy in 

the place to be searched. Sidener v. State, 55 N.E.3d 380, 383 (Ind. Ct. App. 

2016); see generally Minnesota v. Carter, 525 U.S. 83, 90-91 (1998). Generally, 

defendants have no standing to object to the search of a stolen automobile 

because they have no legitimate expectation of privacy therein. Medelvitz v. 

State, 416 N.E.2d 1270, 1274 (Ind. Ct. App. 1981). Additionally, passengers—

as opposed to drivers—have diminished expectations of privacy in vehicles 

because they do not exercise control over those vehicles. Sidener, 55 N.E.3d at 

383. Eminger was not only a passenger inside a vehicle, but the vehicle itself 

was also stolen. So, from the outset, the evidence appears to demonstrate that 

 

4 Both parties concede that this appeal is appropriately framed as a challenge to the admission of evidence 

since Eminger did not bring an interlocutory appeal of the denial of his motion to suppress. Cochran v. State, 

843 N.E.2d 980, 982 (Ind. Ct. App. 2006). However, the State argues that Eminger failed to make a 

continuing objection to the admission of all subsequent evidence obtained from the search on constitutional 

grounds, insisting that this Court should only review Eminger’s claims for fundamental error. See Appellee’s 

Br. p. 14-15. This is patently incorrect. Notwithstanding the trial court’s acknowledgment of Eminger’s 

continuing objection, even the State’s attorney recognized the continuing objection for appeal when he said, 

“I think Judge that it’s judicious and wise of us to make those objections of record now that way in the event 

there is a conviction that issue or those issues are reserved for appeal later.” Tr. Vol. II p. 175. Therefore, 

Eminger has not waived these issues for appeal, and we are not limited to reviewing Eminger’s claims only 

for fundamental error.
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Eminger lacks standing to challenge the constitutionality of the search under 

the Fourth Amendment to the United States Constitution.

[14] Assuming solely for argument’s sake that Eminger had standing to challenge 

the search, the Fourth Amendment prohibits warrantless searches unless an 

exception applies. Black v. State, 810 N.E.2d 713, 715 (Ind. 2004). The 

automobile exception is well established, allowing officers to conduct a 

warrantless search of a vehicle where (1) the vehicle was readily mobile or 

capable of being driven when the police first seized it; and (2) probable cause 

existed that the vehicle contained contraband or evidence of a crime. Cheatham 

v. State, 819 N.E.2d 71, 75-76 (Ind. Ct. App. 2004). Probable cause exists 

“where facts found on a reasonable inquiry would induce a reasonably 

intelligent and prudent person to believe the accused has committed [a] crime.” 

Street v. Shoe Carnival, Inc., 660 N.E.2d 1054, 1056 (Ind. Ct. App. 1996). “The 

determination of probable cause is a mixed question of law and fact.” Earles v. 

Perkins, 788 N.E.2d 1260, 1264 (Ind. Ct. App. 2003). 

[15] Here, it is undisputed that the officers had the authority to invoke the 

automobile exception to search the vehicle and its contents therein. First, the 

vehicle was readily mobile or capable of being driven when the police first 

seized it by virtue of its inherent operability. See Myers v. State, 839 N.E.2d 1146, 

1152 (Ind. 2005). 

[16] Second, the officers had probable cause to believe that the vehicle contained 

contraband or evidence of a crime. Rhoades provided the Noble County 
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Sheriff’s Department with information about Eminger. Also, they learned 

through Rhoades’s conversation with Eminger that Eminger was willing to sell 

and/or buy controlled substances. After the officers tased and arrested Eminger

at the gas station, they employed a drug-sniffing dog to conduct an open-air

sniff around the vehicle, and the drug-sniffing dog immediately alerted officers 

to something in the front passenger’s seat. While an open-air sniff by itself does 

not necessarily provide law enforcement with probable cause, our Supreme 

Court has held that a sniff and subsequent alert following the initial suspicion of 

contraband can provide law enforcement with probable cause to believe a 

vehicle contains illegal drugs. State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010); 

see also Neuhoff v. State, 708 N.E.2d 889, 891 (Ind. Ct. App. 1999).

[17] The drug-sniffing dog’s open-air sniff and alert combined with the knowledge 

that Eminger was ready and willing to engage in a transaction for controlled 

substances, that Eminger was aggressive and resistant to law enforcement’s 

commands, and that the vehicle was stolen established the requisite probable 

cause to invoke the automobile exception. 

[18] Accordingly, pursuant to the automobile exception, law enforcement had the 

authority to search any part of the vehicle that may have contained contraband, 

including the blue lunch tote with the Arizona Tea can as well as the black bag.

Wilkinson v. State, 70 N.E.3d 392, 404 (Ind. Ct. App. 2017) (holding that under 

the automobile exception, once probable cause is established, officers are 

permitted to search any items in the vehicle that might conceal controlled 

substances); see also United States v. Ross, 456 U.S. 798, 825 (1982) (establishing 
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that “if probable cause justifies the search of a lawfully stopped vehicle, it 

justifies the search of every part of the vehicle and its contents that may conceal 

the object of the search[]”). Therefore, this search did not violate the Fourth 

Amendment to the United States Constitution, and all evidence obtained from 

that search was admissible.

B. Article 1, Section 11 of the Indiana Constitution

[19] Searches by law enforcement require a different review under Article 1, Section 

11 of the Indiana Constitution:

Conformity of a search to the Indiana Constitution turns on an 

evaluation of the “reasonableness” of the conduit of the law 

enforcement officers, not on the expectation of privacy commonly 

associated with Fourth Amendment analysis. Relevant 

considerations in evaluating reasonableness of a search under all 

the circumstances include the degree to which the search or 

seizure disrupts the suspect’s normal activities, and those facts and 

observations that support the officer’s decision to initiate the 

search or seizure. . . . [T]he reasonableness of a search or seizure 

generally turns on a balance 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 

a citizen’s ordinary activities, and 3) the extent of law enforcement 

needs.

Stark v. State, 960 N.E.2d 887, 892 (Ind. Ct. App. 2012) (internal citations 

omitted). 

[20] First, regarding knowledge of a violation, there was a high degree of suspicion 

that there was unlawful activity afoot. The Noble County Sheriff’s Department 

received pertinent information from Rhoades that Eminger would readily buy 
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and/or sell methamphetamine. Additionally, the officers learned that there was 

an active warrant for Eminger’s arrest. Then, after surrounding Eminger, tasing 

him, and bringing him into custody, law enforcement conducted an open-air 

sniff using a drug-sniffing dog, and the dog almost immediately alerted the 

officers to the presence of drugs inside a stolen vehicle. All of this evidence in 

the aggregate created a strong suspicion that some law had been violated.

[21] Second, regarding the intrusion into Eminger’s ordinary activities, Eminger and 

the other passengers had been traveling in a stolen vehicle. Though a search 

under the Indiana Constitution is analyzed for reasonableness, “in examining 

the degree of intrusion, we consider the nature of the privacy interest upon 

which the search intrudes and the character of the intrusion itself.” Chest v. 

State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009) (holding that intrusion into 

defendant’s ordinary activities was “minimal” because the search occurred at 

night and involved a vehicle that did not belong to defendant); see generally 

Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). Furthermore, the open-air

sniff by the drug-sniffing dog did not lead to a search of Eminger’s most 

personal effects such as a wallet or bag that belonged to him. Rather, the 

officers ultimately searched the passenger and backseat areas of a stolen vehicle

in which Eminger was merely a passenger, which led to further searches of the 

blue lunch tote, the black bag, and the Arizona Tea can. Our Supreme Court 

has held that “individuals have a ‘reduced expectation of privacy with regard to 

the property they transport in cars’ traveling on public highways where the 

property is subject to police examination and is ‘exposed to traffic accidents that 
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may render all their contents open to public scrutiny.’” Krise v. State, 746 

N.E.2d 957, 971 (Ind. 2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 303 

(1999)). As such, this search did not unreasonably intrude into Eminger’s 

ordinary activities.

[22] Third, regarding the extent of law enforcement needs, the officers who seized 

and arrested Eminger went into the situation knowing that there was an 

outstanding warrant for Eminger’s arrest. There was a strong possibility—after 

stopping and gleaning information from Rhoades—that Eminger would have 

drugs on his person. Accordingly, the officers had the authority to use the taser, 

the drug-sniffing dog, and their methods of arrest to search Eminger, the stolen 

vehicle, and its contents to ensure that no contraband would be removed or 

destroyed. And, given that this was a controlled drug buy, it was reasonable for 

the officers to be present and to employ the tactics they used to keep the 

situation from becoming precarious.

[23] Therefore, in looking at the totality of the circumstances, this search was lawful 

pursuant to Article 1, Section 11 of the Indiana Constitution, and the trial court 

did not err by admitting all the evidence obtained from that search.

II. Appropriateness

[24] Next, Eminger argues that the aggregate sentence imposed by the trial court is 

inappropriate in light of the nature of the offenses and his character. 
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[25] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if, 

after due consideration of the trial court’s decision, the Court finds that the 

sentence is inappropriate in light of the nature of the offense[s] and the 

character of the offender.” The defendant bears the burden of persuading us 

that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 

2006). In determining whether the sentence is inappropriate, we will consider 

numerous factors such as culpability of the defendant, the severity of the crime, 

the damage done to others, and a “myriad [of] other factors that come to light 

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). It is our 

job to leaven the outliers, not to achieve a perceived “correct” sentencing result. 

Id. at 1225.

[26] The maximum sentence for a Level 2 felony dealing in methamphetamine 

conviction is thirty years and the minimum sentence is ten years. Ind. Code § 

35-50-2-4.5. The advisory sentence is seventeen and one-half years. Id. The 

maximum sentence for a Level 4 felony unlawful possession of a firearm by a 

serious violent felon conviction is twelve years and the minimum sentence is 

two years. I.C. § 35-50-2-5.5. The advisory sentence is six years. Id. For a Class 

A misdemeanor resisting law enforcement conviction, the defendant “shall be 

imprisoned for a fixed term of not more than one (1) year[.]” Ind. Code § 35-50-

3-2. 

[27] Here, the trial court sentenced Eminger to twenty years—just over the advisory 

sentence—for the dealing in methamphetamine count and enhanced it by ten 

years due to Eminger’s habitual offender status; six years—the advisory 
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sentence—with two years to be executed and four years suspended to 

probation, for the unlawful possession of a firearm by a serious violent felon

count; and the maximum one year for the resisting law enforcement count.

[28] First, as to the nature of the offenses, Eminger has committed serious drug 

crimes. The officers discovered almost thirty grams of methamphetamine inside 

the vehicle, and pursuant to the dealing statute, the State only needed to prove 

that the amount of the drug involved is at least ten grams. See I.C. §§ 35-48-4-

1.1(a)(2), -1.1(e)(1). Given this large quantity of methamphetamine along with

the presence of scales, syringes, individual baggies with labeling, and a firearm,

it is apparent that Eminger was heavily involved in the trafficking and dealing 

of illegal controlled substances. McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. 

App. 1993) (holding that “[c]ircumstantial evidence of intent to deliver, such as 

possession of a large quantity of drugs, large amounts of currency, scales, 

plastic bags, and other paraphernalia . . . can support a conviction”). 

Furthermore, the text messages from Eminger’s phone demonstrate that

Eminger was ready and willing to engage in a drug transaction with Rhoades.

And, once confronted with armed officers, Eminger argued, fought back, and 

ultimately resisted arrest until he was tased into submission. Therefore, we find 

that the nature of the offenses does not render Eminger’s sentence 

inappropriate. 

[29] Second, as to Eminger’s character, Eminger has a lengthy criminal record that 

includes multiple convictions, some for crimes that Eminger was charged with 

and convicted of in this case—namely, resisting law enforcement and dealing in 
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methamphetamine. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 

2007) (holding that “it is appropriate to consider such a [criminal] record as a 

poor reflection on the defendant’s character, because it may reveal that he . . . 

has not been deterred even after having been subjected to the police authority of 

the State[]”). The sheer number of offenses that constitute Eminger’s criminal 

record—alcohol abuses as a minor, battery resulting in bodily injury, possession 

of marijuana, dealing in methamphetamine, resisting law enforcement, and 

more—shows a clear disregard for the rule of law. Despite multiple 

opportunities for improvement, Eminger shows no sign of reform. Therefore, 

we find that Eminger’s character does not render the sentence inappropriate. 

[30] In sum, we will not revise Eminger’s sentence pursuant to Indiana Appellate 

Rule 7(B).

[31] The judgment of the trial court is affirmed.

Riley, J., and Bailey, J., concur.