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Darringer v. State

Court of Appeals of Indiana

November 13, 2015

Jeremy Darringer, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Page 465

          Appeal from the Hendricks Superior Court. The Honorable Stephenie LeMay-Luken, Judge. Trial Court Cause No. 32D05-1406-CM-574.

         ATTORNEY FOR APPELLANT: Brian J. Johnson, Danville, Indiana.

         ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Ian McLean, Deputy Attorney General, Indianapolis, Indiana.

         Brown, Judge. Altice, J., concurs. Riley, J., concurs in result without opinion.

          OPINION

Page 466

          Brown, Judge.

         [¶1] Jeremy Darringer appeals his conviction for operating while intoxicated. Darringer raises one issue which we revise and restate as whether the trial court abused its discretion in admitting certain evidence. We reverse.

         Facts and Procedural History

         [¶2] At approximately 3:10 a.m. on June 27, 2014, Hendricks County Sheriff's Deputy Nathan Hibschman was sitting in his vehicle in a church parking lot observing traffic. Deputy Hibschman saw a vehicle drive east on 100 North, did not see a license plate, and began following the vehicle. He followed the vehicle for approximately one mile at a distance of about forty feet. While following the vehicle, Deputy Hibschman did not witness any traffic infractions and initiated his emergency equipment to stop the vehicle because he believed it did not have a license plate. After turning on his emergency lights which further illuminated the scene, Deputy Hibschman was unable to see a license plate on the vehicle. The vehicle then pulled over.

         [¶3] As he was stopping and about twelve to fifteen feet behind the vehicle, he activated his spotlight, swung it across the vehicle, and saw a paper plate taped in the rear window. He was able to read the letters and numbers on the paper plate after he exited his vehicle and took a couple of steps forward. He then called in the plate as he was approaching the vehicle, observed three occupants inside, and approached the driver's side. Darringer, the driver, rolled down the window, and Deputy Hibschman detected the odor of alcohol coming from the vehicle. Deputy Hibschman said: " Good morning." State's Exhibit 5 at 1:22. Darringer asked Deputy Hibschman how he was doing. Id. at 1:24. Deputy Hibschman then introduced himself and asked Darringer for his license and registration but then stated that Darringer may not have a registration because he had a temporary plate. Id. at 1:24-1:35. Darringer explained that the car was brand new. Id. at 1:30-1:33.

         [¶4] When Deputy Hibschman was speaking with Darringer through the driver's window, he observed that Darringer had glassy eyes and slurred speech and asked him to step out of the vehicle. Deputy Hibschman still smelled the odor of alcohol after Darringer exited the vehicle. He then patted down Darringer and asked him how much he had to drink, and Darringer said: " Nothing." Id. at 2:41. Deputy Hibschman told Darringer that he thought he smelled alcohol on his breath, and Darringer again stated that he did not have anything to drink.

         [¶5] Deputy Hibschman then spoke with the passengers and said that he smelled alcohol in the vehicle. He returned to Darringer and stated:

The reason I pulled you over is at first I thought you didn't have a license plate because there's nothing down here. It wasn't until I got you stopped that I saw the temporary plate in the window there. So, just for your information and I know you're coming up well you've got a couple of weeks left to go on it, but it's actually illegal to have the temporary plate mounted in the window up there. . . . Even though it is a temporary plate, it does need to be mounted down here where the plates usually go.

Id. at 4:47-5:14.

         [¶6] Deputy Hibschman then administered field sobriety tests and still detected the odor of an alcoholic beverage. Darringer failed the horizontal gaze nystagmus test and the walk and turn test. Deputy Hibschman transported Darringer to the Sheriff's Department to perform a breath test. Darringer blew into the Datamaster

Page 467

machine and registered .12 grams of alcohol per 210 liters of breath.

         [¶7] That same day, the State charged Darringer with Count I, operating a vehicle while intoxicated as a class A misdemeanor, and Count II, operating a vehicle with an alcohol concentration equivalent to at least 0.08 grams of alcohol content as a class C misdemeanor.

         [¶8] On February 17, 2015, Darringer filed a motion to suppress. At the hearing, Deputy Hibschman testified that the license plate is " supposed to be mounted down where plates are intended to be mounted." Transcript at 10. The court watched the video recording from Deputy Hibschman's vehicle until the point in time that he exited his vehicle and approached Darringer's vehicle.

         [¶9] Defense counsel argued there were no grounds for the initial stop because the placement of the plate in the window was proper under Ind. Code § 9-32-6-11. He also argued: " I think it's clear from the video that you can see there's something in the corner. The Deputy wasn't even looking at that because at the time he was under the impression, incorrectly, that this plate had to be on the bumper." Id. at 57-58. The prosecutor conceded that it was no longer the case that an individual could not display a temporary license plate in the back window and that Deputy Hibschman was mistaken in his belief that the plate needed to be on the bumper, but argued that the license plate was not visible at all as required by the statute.

         [¶10] The court denied Darringer's motion and stated:

With regards to the stop and detention and the arrest overall, I'm denying the Motion to Suppress and Motion in Limine based on the fact that the officer stated and I watched this video, the officer did not call in the numbers on the temporary tag or paper plate or interim license plate, whatever you want to call it, until he was already approaching the vehicle. The statute says it must be clearly visible. . . . Well, in the majority of the parts of Hendricks County, it may be clearly visible at noon, but in Hendricks County and frankly across the State of Indiana, it doesn't mean it's going to be clearly visible at midnight and that is, it's supposed to be clearly visible. And so, therefore, there is no other choice that a police officer has, if you're trying to find a license plate, police officers are used to through [sic], on the whole back of the vehicle. There's no testimony that he only looked at the license plate when looking at this vehicle, he would have had to look on more than the license plate area, which is the bumper that has the lights in order to identify the make and model. If he was only was [sic] looking at the license plate bumper in the middle of the bumper where a license plate is normally attached, a metal license plate or interim license plate, he would not know anything else about the vehicle. So, therefore, I find that the stop was appropriate because the plate was not clearly visible even though it was in the proper place in the back of the window.

Id. at 71-72. On February 19, 2015, Darringer filed a motion to reconsider the court's order denying his motion to suppress, and the court denied the motion.

         [¶11] On February 24, 2015, a jury trial was held. During Deputy Hibschman's testimony, defense counsel stated: " [W]e would just make an objection to the traffic stop based on the testimony today." Id. at 173. Defense counsel asked the court to incorporate the hearing, arguments and brief, and objected " based on the lack of a traffic infraction that it's a violation of the Fourth Amendment to the U.S. Constitution and obviously Article One, Section Eleven of the Indiana Constitution."

Page 468

Id. The court overruled the objection and " ke[pt] [its] order denying the Motion to Suppress in effect." Id. at 173-174. During direct examination, Deputy Hibschman testified that he initially observed that the vehicle did not appear to have any license plate, that when he said the vehicle did not have a license plate he was referring to the bumper, that he did not see a license plate anywhere on Darringer's car, that he did not look in the rear window, that he did not look anywhere else other than the bumper, and that he first saw the license plate after he had initiated the traffic stop and activated his spotlight. Deputy Hibschman testified that his statements to Darringer that a temporary plate had to be mounted on the bumper where plates usually are placed was in fact incorrect but that he believed it at the time.

         [¶12] The court admitted the BAC DataMasters Evidence Ticket indicating a result of .12 and Deputy Hibschman's testimony that the .12 was based on grams of alcohol per 210 liters of breath. On cross-examination, Deputy Hibschman testified that after July 1, 2013, people were legally allowed to drive a vehicle with a paper plate in the left rear window. Sheila Arnold, a forensic toxicologist employed by the Indiana State Department of Toxicology, testified that her opinion was that Darringer was intoxicated and impaired on June 27, 2014.

         [¶13] After the prosecutor rested, defense counsel moved for a directed verdict on Count I, operating a vehicle while intoxicated. The court denied the motion. The jury found Darringer guilty as charged. The court entered judgment of conviction on Count I, operating a vehicle while intoxicated as a class A misdemeanor, and sentenced Darringer to 180 days in the Hendricks County Jail with 178 days suspended to probation.

         Discussion

         [¶14] The issue is whether the court abused its discretion by admitting the evidence obtained after the traffic stop. Darringer contends that the State failed to prove that the stop was based upon reasonable suspicion that Darringer committed a traffic violation or that Deputy Hibschman made an objectively reasonable mistake of fact or law justifying the stop of Darringer's car. He argues that his interim license plate was properly displayed under the version of Ind. Code § 9-32-6-11 in effect at the time of the stop, which permitted an interim plate to be displayed in the rear window. He notes that there is no dispute that Deputy Hibschman was unaware that Indiana law had changed to allow for the interim plate to be displayed in the rear window of a vehicle for almost a year before the stop, and contends that Deputy Hibschman's mistake of law cannot be said to be objectively reasonable because it was not premised upon a reasonable interpretation of an existing statute. Darringer also argues that while Deputy Hibschman testified at one point that he did not see the license plate on the vehicle, he was fixated on the bumper and did not look in the rear window, and that while it is possible that he may not have been able to see the interim plate without shining his spotlight onto the rear window, there is nothing in the record to support why he could not have done so without initiating a traffic stop.

         [¶15] The State argues that Deputy Hibschman repeatedly testified that he did not see a plate on Darringer's vehicle and only saw the plate after he had already exited his vehicle and that the video recording does not contradict his testimony. The State asserts that the facts were sufficient to justify a reasonable officer's decision to stop Darringer's vehicle and that Darringer is asking this court to reweigh

Page 469

the evidence. The State also contends that the record does not support Darringer's inference that Deputy Hibschman was fixated on the bumper to the point of disregarding any other fact, and that there is evidence supporting the trial court's decision that his on-the-spot evaluation would reasonably suggest that Darringer's plate was not clearly visible as required by statute. The State asserts that it is unnecessary for this court to apply Heien v. North Carolina, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014), cited by Darringer, which discussed an officer's mistake of law, because a plate must be clearly visible under Indiana statutory law.

         [¶16] We review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh'g denied. We reverse 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), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App. 1999), reh'g denied, trans. denied. Also, we may affirm a trial court's decision to admit evidence seized as a result of a search based on any legal theory supported by the record. Edwards v. State, 724 N.E.2d 616, 620-621 (Ind.Ct.App. 2000), trans. denied. We review de novo a ruling on the constitutionality of a search or seizure, but we give deference to a trial court's determination of the facts, which will not be overturned unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008); see also Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (holding that the ultimate determination of the constitutionality of a search or seizure is a question of law that we consider de novo ).

         [¶17] In ruling on admissibility following the denial of a motion to suppress, the trial court considers the foundational evidence presented at trial. Carpenter, 18 N.E.3d at 1001. If the foundational evidence at trial is not the same as that presented at the suppression hearing, the trial court must make its decision based upon trial evidence and may consider hearing evidence only if it does not conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014). It also considers the evidence from the suppression hearing that is favorable to the defendant only to the extent it is uncontradicted at trial. Carpenter, 18 N.E.3d at 1001.

         [¶18] The Fourth Amendment to the United States Constitution provides:

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.

         [¶19] A law enforcement officer must have reasonable suspicion of criminal conduct in order to justify a traffic stop, which is a " seizure" for purposes of the Fourth Amendment. Clarke v. State, 868 N.E.2d 1114, 1118 (Ind. 2007) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). When determining whether an officer had reasonable suspicion for a Terry stop, we consider whether the totality of the circumstances presented a particularized and objective basis for the officer's belief that the subject was engaged in criminal activity. State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014). In assessing the whole picture, we must examine the facts as known to the officer at the moment of the stop. Clark v. State, 994 N.E.2d 252, 264 (Ind. 2013). We review

Page 470

findings of reasonable suspicion de novo. Id. This is necessarily a fact-sensitive inquiry. Id.

         [¶20] We will briefly discuss the law prior to the adoption of Ind. Code § 9-32-6-11 in 2013. In Merritt v. State, 829 N.E.2d 472, 473-476 (Ind. 2005), the Indiana Supreme Court considered whether placing a license plate in a vehicle's rear window contravened Indiana's statutes then governing the proper display and illumination of plates. The Court examined Ind. Code § 9-18-2-26(b), which at the relevant time provided:

A license plate shall be securely fastened, in a horizontal position, to the vehicle for ...

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