Janyer Pinto v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 20, 2013
• Docket: 36A05-1301-CR-9
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not Aug 20 2013, 5:39 am 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: ATTORNEYS FOR APPELLEE:

T. MICHAEL CARTER GREGORY F. ZOELLER Scottsburg, Indiana Attorney General of Indiana

GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JANYER PINTO, ) ) Appellant-Defendant, ) ) vs. ) No. 36A05-1301-CR-9 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE JACKSON CIRCUIT COURT The Honorable William E. Vance, Judge Cause No. 36C01-1203-FD-75

August 20, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge As Indiana State Trooper Chris Lockman walked back to his patrol car upon

finishing a traffic stop, he observed a vehicle pass by with windows tinted so darkly he

was unable to see anyone inside. Trooper Lockman caught up with the vehicle, again

observed the windows were darkly tinted, and initiated a traffic stop, during which he

discovered that the driver, Janyer Pinto, had no driver’s license and was an habitual

traffic violator. The State charged Pinto with operating a vehicle as an habitual traffic

violator, a Class D felony. Pinto filed a motion to suppress Trooper Lockman’s

testimony as “the product of an illegal arrest of the defendant without probable cause”

because Trooper Lockman made no effort to check the windows for a violation by

making an “objective accurate comparison” to a standard for windows that are tinted in

violation of statute. Appellant’s Appendix at 25. Following a hearing, the trial court

denied the motion to suppress. During Pinto’s jury trial, Trooper Lockman testified to

the details of the traffic stop without objection from Pinto. The jury found Pinto guilty as

charged and he was sentenced to one and one-half years. Pinto appeals, claiming the trial

court erred in denying his motion to suppress.

A motion to suppress is insufficient to preserve an error for appeal. Smith v. State,

983 N.E.2d 226, 230 (Ind. Ct. App. 2013), trans. denied. Rather, the defendant must

make a contemporaneous objection to the admission of the evidence at trial in order to

provide the trial court an opportunity to make a final ruling on the matter in the context in

which the evidence is sought to be introduced. Lanham v. State, 937 N.E.2d 419, 423

(Ind. Ct. App. 2010). Failure to make an objection at trial waives any claim on appeal

that the evidence was improperly admitted. Hale v. State, 976 N.E.2d 119, 123 (Ind. Ct.

2 App. 2012). Because Pinto did not object to Trooper Lockman’s testimony when it was

offered at trial, any error in the admission of the testimony has been waived.

Even if Pinto had made a proper objection, however, the admission of the

evidence was not error. In Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013), our

supreme court held that an officer who subjectively believed, based on the fact that he

could not clearly recognize or identify the occupant of a vehicle, that the tint on the

windows was darker than allowed by law, see Ind. Code § 9-19-19-4(c), had reasonable

suspicion to make a traffic stop, even though later objective measures showed the

windows complied with the statute. Trooper Lockman testified that the tint on the

windows was so dark he was unable to see anyone inside the vehicle and that he observed

the vehicle twice before making the stop. Thus, the initial stop was justified by Trooper

Lockman’s reasonable suspicion the driver was operating a vehicle in violation of the

window tinting statute, and his testimony was properly admitted.

Pinto’s conviction of operating a vehicle as an habitual traffic violator is affirmed.

Affirmed.

RILEY, J., and KIRSCH, J., concur.