A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE

Ellen M. O’Connor Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 49S02

- 1304

- CR

- 242

E RVING S ANDERS , Appellant (Defendant),

v.

S TATE OF I NDIANA , Appellee (Plaintiff )

.

_________________________________ Appeal from the Marion Superior Court, No. 49G14

- 1101

- FD

- 6488

The Honorable Jose Salinas, Judge

_________________________________ On Transfer from the Indiana Court of Appeals, No. 49A02

- 1205

- CR

- 361

_________________________________

June 25, 2013
Dickson, Chief Justice.

The defendant, facing charges of Possession of Cocaine, a class D felony, has brought this interlocutory appeal from the trial court's denial of his motion to suppress evidence obtained following a traffic stop. Concluding that the motion should have been granted, the Court of A ppeals reversed. Sanders v. State , 981 N.E.2d 616 , 623 (Ind. Ct. App. 2013). We granted tran s fer
and now affirm the trial court.

In the late afternoon of January 28, 20 11, the defendant was driving a 1991 Chevrolet
Suburban vehicle with tinted rear side and back windows when an Indianapolis Metropolitan P o-2

lice Department officer initiated a traffic stop. Approaching the driver's side window, the o f ficer
directed the def

endant to roll down the window and informed him of the reason for the stop

—his
belief that the tinted windows were so dark as to constitute a traffic infra c tion. At this time, the officer smelled marijuana. The officer asked the defendant about the smell , to which the defen dant replied that he had "just smoked a joint." 1 The officer then r e turned to his patrol car to verify the defendant's driver's license and request backup. When an assisting officer arrived at the sc ene, the officer requested that the defendant step out of the car, conducted a search of the defen dant's person, and retrieved a plastic bag containing a white substance. When the officer que stioned the defendant about the substance, asking if it was heroin, the defendant replied in the

ne gative, stating that it was cocaine. At that point, the officer placed the defendant under arrest and took him into custody. Several photographs of the vehicle were taken by an evidence tec hnician roughly one hour after the initial stop; these photograph s were admitted in ev i dence at the subsequent evidentiary hea r ing.

On January 28, 2011, the St ate charged the defendant with c lass D felony Possession of Cocaine. On May 4, 2011, the defendant filed a Motion to Suppress, claiming that the evidence
obtai ned by the officer's search was "a result of illegal actions by the police officers involved," most notably, "the lack of probable cause to stop " the defendant and to search his person. M otion to Suppress, Appellant's App'x at 24. The trial court held ev identiary hearings on the motion on May 4 and June 1, 2011. In July 2011, the defendant filed, and the trial court granted, a m otion to a l low an expert to view the automobile to measure the tint of the windows, which was found to be legally within the sta tutorily defined limits. Notwithstanding these findings, the court ultimately denied the defendant's motion, finding that an officer's good faith subjective b elief of vi o lation of a traffic law is enough to justify the initial stop, even if it is later fo und that
the tra f fic law has not in fact been violated.

On interlocutory appeal, claiming violation of the Fourth Amendment, 2 U.S. Const. amend. IV, the defendant asserted that the officer's "subjective interpretation of identity and tint

1 The defendant disputes this fact, claiming that the officer asked
, "do you smoke marij uana?" and the d e fendant replied "No." Appellant's Br. at 5.

2 The defendant makes no Indiana constitutional claims, relying wholly on the United States Co nstitution.3

did not just i fy his traffic stop of [the defendant's] Chevy Suburban, which objectively complied with Indiana's Window Tint Statute. His mistaken application of the statute did not justify a good faith exception to uphold the stop

. . . ." Appellant's Br. at 8. The Co urt of Appeals, agre eing with the defendant, reversed the ruling of the trial court, finding that there was no "objectiv ely justifiable reason for the stop of the vehicle." Sanders , 981 N.E.2d at 623. We granted tran sfer, thereby automatically vacating t he opinion of the Court of Appeals, Ind. Appellate Rule 58(A), and thus co n sider this appeal anew.

We review a trial court's denial of a motion to suppress in a manner similar to review of other sufficiency issues. Taylor v. State , 689 N.E.2d 699, 702 ( Ind. 1997). There must be su bstantial evidence of probative value in the record to support the ruling of the trial court. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorably to the trial court's ruling. Id. We revie w de novo the determination of reasonable suspicion for a warran tless search. Myers v. State , 839 N.E.2d 1154, 1160 (Ind. 2005) (citing Ornelas v. United States
, 517 U.S. 690, 694

– 700, 116 S. Ct. 1657, 1660

– 64, 134 L. Ed. 2d 911, 917

– 21 (1996)).

The def endant's primary argument is that the initial traffic stop made by the officer was unjustified because the officer's belief that the window tint on the defendant's rear side and back
windows violated the Indiana Window Tint Statute 3 was later invalidated t hrough inspe c tion of the vehicle by the defendant's expert. Because the tint objectively complied with the Window Tint Statute, the defendant argues, the officer's " subjective interpretation of identity and tint did not justify his traffic stop." Appella nt's Br. at 8 (emphasis added). Therefore, the defendant

3 Indiana Code Section 9

- 19

- 19

- 4(c) 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 ou t side 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.4

claims, any evidence seized through the subsequent search of the defendant's person is the pro duct of a pretextual investigatory stop in viol a tion of the Fourth Amendment.

The Fourth Amendment pro tects individuals against unreasonable searches and seizures, so that they may "be secure in their persons, hou ses, papers, and effects. " U.S. Const. amend. IV. This protection has been extended to the states through the Fourteenth Amendment. Mapp
v. Oh io , 367 U.S. 643, 650, 81 S. Ct. 1684, 1689, 6 L. Ed. 2d. 1081, 1087 (1961). The Fourth Amendment generally prohibits a warrantless search unless a valid exception to the warrant r equirement exists. Berry v. State , 704 N.E.2d 462, 465 (1998). Probable c ause is a reco g nized exception. Id. (citing Robles v. State , 510 N.E.2d 660, 664 (Ind. 1987)). Further, a traffic stop and limited search is permissible where an officer has at least reasonable suspicion that a traffic law, or other law, has been violate d. Id. ; see also Meredith v. State , 906 N.E.2d 867 , 869 (Ind. 2009)

.

The Indiana Window Tint Statute prohibits operation of a motor vehicle that has wi ndows tinted in such a way that "the occupants of the vehicle cannot be easily identified or reco gnize d through [those] window[s] from outside the vehicle." Ind. Code § 9

- 19

- 19

- 4(c). It is an
affirmative defense if the solar refl ectance of visible light is not more than 25% and the light
transmit tance is at least than 30%. Id. Here, the officer testifi ed that he initiated a traffic stop of
the defen d ant's vehicle based on his perception that the tint of the vehicle's windows was so dark that he could not "clearly recognize or identify the occupant inside." Tr. at 6. However, the d efen d ant's expert lat er testified that the tinted windows had a light transmittance of 38%, id. at 80, within the legal range. Such proof of compliance with the Window Tint Statute undoubtedly r elieves the defen d ant of any liability for a window tint violation. However, it d oes not serve to vitiate the legality of the traffic stop. The officer's belief, based on the fact that he could not "clearly recognize or identify the occupant inside," id. at 6, that the window tint violated the Window Tint Statute, coupled with the fac t that the actual tint closely borders the statutory limit, leads us to conclude that the officer had reasonable suspicion to make the initial stop. Conside ring this te s timony in the light most favorable to the trial court's ruling, as we must, the eviden ce clearly supports the ruling of the trial court.5

The defendant also contends that the initial traffic stop was invalid under Ind i ana Code
Section 34

- 28

- 5

- 3, which authorizes a law enforcement officer to detain an individual for a li mited time if the of

ficer "believes in good faith that a person has committed an infraction or ord inance violation." Ind. Code. § 34

- 28

- 5

- 3. The defendant argues that the officer's b e lief that the defendant had committed a violation of the Window Tint Statute was not in goo d faith because, after subsequent testing, the defendant's window tint was found to be in compliance with the
statute. A p pellant's Br. at 10 (citing Ransom v. State , 741 N.E.2d 419, 422 (Ind. Ct. App. 2000) ("[A]n officer's mistaken belief about what cons titutes a violation does not amount to good faith. Such discretion is not constitutionally permissible.")). We disagree. In Ransom , an ind i vidual was driving along a narrow street when he encountered an approaching police vehicle. Reco gnizing that both vehicles could not pass simultaneously, the driver put his vehicle in reverse and backed around the corner. The officer stopped the dri v er's vehicle for "operating in reverse," and subsequently discovered a handgun. The court found that "operating in re verse" was an infra ction which did not exist at law and that the driver's b e havior was not in violation of the reckless driving statute or any other state law. Thus, the court held, the officer "did not have an obje ctiv e ly justifiable reason for stopping [the driver]," and the traffic stop was not lawful. Ra n som , 741 N.E.2d at 422

.

This case is easily distinguished from Ransom because here, the apparent infraction for which the defendant's vehicle was initially stopped does in fact exist at law. Althou gh the 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 tra f

fic stop was not lawful.

Co nclusion

We hold that the officer had reasonable suspicion that the tint on the windows of the d efendant's vehicle was in violation of the Window Tint Statute such that the initial stop was just ified. At the initial stop, the officer smelled marijuana, which provided probable cause to search the defendant's person. The search of the defendant's person revealed a bag of cocaine, the ev idence at issue in this case. Because the evidence was obtained as a result of a fully justified and6

legal search, the t rial court was correct in denying the defendant's motion to suppress. We her eby affirm the ruling of the trial court.

Rucker, David, Massa, and Rush, JJ., concur.