MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 18 2015, 6:55 am 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kezalis Harris, November 18, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1503-CR-128 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G19-1409-CM-44609
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 1 of 7 Case Summary [1] Kezalis Harris’s car was stopped by police because the car’s license plate was
improperly displayed. As the police officer approached Harris’s car on foot, he
observed a temporary license plate in the rear window of the car; he also saw
Harris pour a liquid out of the car window, smelled the odor of alcohol coming
from the car, and found that Harris was “aggravated” and said repeatedly that
the officer had stopped him for no reason. Harris ultimately consented to a
chemical breath test, the result of which was 0.129. Harris was charged with
Class C misdemeanor operating a vehicle while intoxicated and Class C
misdemeanor operating a vehicle with an ACE of .08 or more.1 At trial, Harris
filed a motion to suppress the evidence of intoxication, arguing that the police
officer lacked reasonable suspicion to stop him. Because the evidence shows
that Harris’s temporary license plate was improperly displayed, we find that the
police officer had reasonable suspicion to stop the car, and thus we affirm the
denial of the motion to suppress.
Facts and Procedural History [2] In September 2014, Officer David Wooten of the Indianapolis Metropolitan
Police Department was on patrol duty when he saw a car driving eastbound on
10th Street with no visible license plate in the license-plate holder on the back of
1 ACE stands for “alcohol concentration equivalent,” as in, “an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol . . . .” Ind. Code § 9-30-5-1.
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 2 of 7 the car. When the car started to turn, Officer Wooten activated his emergency
lights for a traffic stop. Once he had stopped the car and approached on foot,
the officer could see that there was, in fact, a temporary license plate in the left-
side rear window of the car. Officer Wooten also saw Kezalis Harris, the driver
of the car, “pouring a liquid out of the vehicle window.” Tr. p. 13. The officer
detected “the odor of alcohol coming from the vehicle.” Id. at 14. Harris
seemed “aggravated . . . [k]ept saying I stopped him for no reason.” Id. at 15.
[3] Officer Wooten requested Harris’s information and then walked back to his car
to request a DUI car from dispatch. IPD Sergeant Michael Duke responded to
the call and asked Harris to step out of the car so he could conduct a Horizontal
Gaze Nystagmus test on him. Harris continued to protest that there was “no
reason for [the police] to be talking to [him] at all” and Sergeant Duke observed
that Harris had red and glassy eyes and the odor of an alcoholic beverage on his
breath. Id. at 20. After Harris was unable to perform the walk-and-turn test
and took a portable breath test, Sergeant Duke advised Harris of Indiana’s
Implied Consent Law and Harris agreed to take a chemical breath test. The test
result was 0.129, and Sergeant Duke placed him under arrest.
[4] The State charged Harris with Count I, Class C misdemeanor operating a
vehicle while intoxicated; and Count II, Class C misdemeanor operating a
vehicle with an ACE of .08 or more. At a bifurcated bench trial in January and
March 2015, Harris moved to suppress evidence of his intoxication, arguing
that Officer Wooten did not have reasonable suspicion to stop Harris’s car
because his license plate was in a valid location. The trial court denied Harris’s
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 3 of 7 motion to suppress. Following the admission of evidence, Harris was found
guilty as charged. Harris now appeals.
Discussion and Decision [5] On appeal, Harris argues that the traffic stop violated his Fourth Amendment
rights because Officer Wooten’s stated justification for the stop—that there was
no license plate in the car’s license-plate holder—was based on what Harris
characterizes as a “mistaken belief of the law” regarding the proper display of
license plates. Appellant’s Br. p. 6. Because Officer Wooten lacked reasonable
suspicion to stop the car, the argument continues, the evidence of Harris’s
intoxication was improperly admitted and should have been suppressed. We
disagree.
[6] This Court reviews admission of evidence for an abuse of discretion. Croom v.
State, 996 N.E.2d 436, 439 (Ind. Ct. App. 2013), reh’g denied. We will reverse a
trial court’s decision when it is clearly against the logic and effect of the facts
and circumstances before it. Id. We do not reweigh evidence, and we consider
conflicting evidence most favorable to the trial court’s ruling. Id. However, the
question of whether an officer had reasonable suspicion to conduct an
investigatory stop is reviewed de novo. Id. at 439-40.
[7] Harris argues that the trial court erred in denying his motion to suppress under
the Fourth Amendment of the United States Constitution. The Fourth
Amendment provides protection against unreasonable searches and seizures of
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 4 of 7 a person. Id. at 440. A traffic stop of a vehicle is also a “seizure” within the
meaning of the Fourth Amendment. Id. But a brief investigatory stop may
occur when justified by a reasonable suspicion that the person stopped is
involved in criminal activity. Id. (citing Terry v. Ohio, 392 U.S. 1, 31 (1968)). In
determining reasonable suspicion, we must examine the “totality of the
circumstances” of each case to see whether the detaining officer has a
“particularized and objective basis” for suspecting legal wrongdoing. Id.
(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). In the context of an
investigatory stop, an officer’s decision to stop a vehicle is valid so long as his
on-the-spot evaluation reasonably suggests law-breaking occurred. Id. “It is
well-settled that a police officer may briefly detain a person whom the officer
believes has committed an infraction or an ordinance violation.” Goens v. State,
943 N.E.2d 829, 832 (Ind. Ct. App. 2011) (quoting Datzek v. State, 838 N.E.2d
1149, 1154 (Ind. Ct. App. 2005), trans. denied).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 18 2015, 6:55 am 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kezalis Harris, November 18, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1503-CR-128 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G19-1409-CM-44609
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 1 of 7 Case Summary [1] Kezalis Harris’s car was stopped by police because the car’s license plate was
improperly displayed. As the police officer approached Harris’s car on foot, he
observed a temporary license plate in the rear window of the car; he also saw
Harris pour a liquid out of the car window, smelled the odor of alcohol coming
from the car, and found that Harris was “aggravated” and said repeatedly that
the officer had stopped him for no reason. Harris ultimately consented to a
chemical breath test, the result of which was 0.129. Harris was charged with
Class C misdemeanor operating a vehicle while intoxicated and Class C
misdemeanor operating a vehicle with an ACE of .08 or more.1 At trial, Harris
filed a motion to suppress the evidence of intoxication, arguing that the police
officer lacked reasonable suspicion to stop him. Because the evidence shows
that Harris’s temporary license plate was improperly displayed, we find that the
police officer had reasonable suspicion to stop the car, and thus we affirm the
denial of the motion to suppress.
Facts and Procedural History [2] In September 2014, Officer David Wooten of the Indianapolis Metropolitan
Police Department was on patrol duty when he saw a car driving eastbound on
10th Street with no visible license plate in the license-plate holder on the back of
1 ACE stands for “alcohol concentration equivalent,” as in, “an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol . . . .” Ind. Code § 9-30-5-1.
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 2 of 7 the car. When the car started to turn, Officer Wooten activated his emergency
lights for a traffic stop. Once he had stopped the car and approached on foot,
the officer could see that there was, in fact, a temporary license plate in the left-
side rear window of the car. Officer Wooten also saw Kezalis Harris, the driver
of the car, “pouring a liquid out of the vehicle window.” Tr. p. 13. The officer
detected “the odor of alcohol coming from the vehicle.” Id. at 14. Harris
seemed “aggravated . . . [k]ept saying I stopped him for no reason.” Id. at 15.
[3] Officer Wooten requested Harris’s information and then walked back to his car
to request a DUI car from dispatch. IPD Sergeant Michael Duke responded to
the call and asked Harris to step out of the car so he could conduct a Horizontal
Gaze Nystagmus test on him. Harris continued to protest that there was “no
reason for [the police] to be talking to [him] at all” and Sergeant Duke observed
that Harris had red and glassy eyes and the odor of an alcoholic beverage on his
breath. Id. at 20. After Harris was unable to perform the walk-and-turn test
and took a portable breath test, Sergeant Duke advised Harris of Indiana’s
Implied Consent Law and Harris agreed to take a chemical breath test. The test
result was 0.129, and Sergeant Duke placed him under arrest.
[4] The State charged Harris with Count I, Class C misdemeanor operating a
vehicle while intoxicated; and Count II, Class C misdemeanor operating a
vehicle with an ACE of .08 or more. At a bifurcated bench trial in January and
March 2015, Harris moved to suppress evidence of his intoxication, arguing
that Officer Wooten did not have reasonable suspicion to stop Harris’s car
because his license plate was in a valid location. The trial court denied Harris’s
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 3 of 7 motion to suppress. Following the admission of evidence, Harris was found
guilty as charged. Harris now appeals.
Discussion and Decision [5] On appeal, Harris argues that the traffic stop violated his Fourth Amendment
rights because Officer Wooten’s stated justification for the stop—that there was
no license plate in the car’s license-plate holder—was based on what Harris
characterizes as a “mistaken belief of the law” regarding the proper display of
license plates. Appellant’s Br. p. 6. Because Officer Wooten lacked reasonable
suspicion to stop the car, the argument continues, the evidence of Harris’s
intoxication was improperly admitted and should have been suppressed. We
disagree.
[6] This Court reviews admission of evidence for an abuse of discretion. Croom v.
State, 996 N.E.2d 436, 439 (Ind. Ct. App. 2013), reh’g denied. We will reverse a
trial court’s decision when it is clearly against the logic and effect of the facts
and circumstances before it. Id. We do not reweigh evidence, and we consider
conflicting evidence most favorable to the trial court’s ruling. Id. However, the
question of whether an officer had reasonable suspicion to conduct an
investigatory stop is reviewed de novo. Id. at 439-40.
[7] Harris argues that the trial court erred in denying his motion to suppress under
the Fourth Amendment of the United States Constitution. The Fourth
Amendment provides protection against unreasonable searches and seizures of
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 4 of 7 a person. Id. at 440. A traffic stop of a vehicle is also a “seizure” within the
meaning of the Fourth Amendment. Id. But a brief investigatory stop may
occur when justified by a reasonable suspicion that the person stopped is
involved in criminal activity. Id. (citing Terry v. Ohio, 392 U.S. 1, 31 (1968)). In
determining reasonable suspicion, we must examine the “totality of the
circumstances” of each case to see whether the detaining officer has a
“particularized and objective basis” for suspecting legal wrongdoing. Id.
(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). In the context of an
investigatory stop, an officer’s decision to stop a vehicle is valid so long as his
on-the-spot evaluation reasonably suggests law-breaking occurred. Id. “It is
well-settled that a police officer may briefly detain a person whom the officer
believes has committed an infraction or an ordinance violation.” Goens v. State,
943 N.E.2d 829, 832 (Ind. Ct. App. 2011) (quoting Datzek v. State, 838 N.E.2d
1149, 1154 (Ind. Ct. App. 2005), trans. denied).
[8] Here, we find that Officer Wooten had reasonable suspicion to stop Harris’s car
because his temporary license plate was improperly displayed. License plates,
including temporary license plates, are statutorily required to be displayed upon
the rear of the vehicle, securely fastened, in a horizontal position, and
illuminated by a white light so as to be clearly visible from fifty feet. Ind. Code
§ 9-18-2-26 (providing that license plates, including temporary license plates,
shall be displayed upon the rear of the vehicle and securely fastened in a
horizontal position to the vehicle for which the plate is issued); Ind. Code § 9-
19-6-4(e) (“Either a tail lamp or a separate lamp must be placed and constructed
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 5 of 7 so as to illuminate the rear registration plate with a white light and make the
plate clearly legible from a distance of fifty (50) feet to the rear.”); Merritt v.
State, 829 N.E.2d 472, 476 (Ind. 2005) (“Together, these provisions require that
the license plate be displayed upon the rear of the vehicle, securely fastened, in
a horizontal position, and also be illuminated at night by a separate white light
so as to be clearly legible from fifty feet.”). The evidence shows that Harris’s
temporary plate was located inside the rear window of the car. Because this is
an improper license-plate display, Officer Wooten had reasonable suspicion to
stop the car. Houston v. State, 898 N.E.2d 358, 361 (Ind. Ct. App. 2008)
(“[N]on-compliance with the Indiana statutory requirements concerning
placement, secure attachment, illumination and legibility of a license plate may
serve as a basis for reasonable suspicion for law enforcement officers to make a
traffic stop to ascertain whether the display fully complies with all statutory
requirements.”), trans. denied.
[9] Harris maintains on appeal, as he did at trial, that Indiana Code section 9-32-6-
11, which governs “interim plates,” is somehow relevant to this matter.2 That
statute provides that it is permissible to display an interim plate in the following
manner: affixed to “the left side of a window facing the rear of the motor
2 In Indiana, there are three types of paper license plates: temporary registration permits, temporary license plates, and interim dealer plates. Croom, 996 N.E.2d at 440 n.3. According to statute, only interim plates can be displayed in the rear window of a car. The reason for this exception is not clear, and this is an area of law that the legislature may want to reconsider. In any event, Officer Wooten testified unambiguously at trial that Harris had a “temporary plate.” See Tr. p. 7, 9.
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 6 of 7 vehicle that is clearly visible and unobstructed.” Ind. Code § 9-32-6-11. Harris
does not argue that his license plate was an interim plate; instead he contends
that Officer Wooten did not have a “good-faith belief” that Harris’s plate was
improperly displayed because the officer did not “run the plate at any time to
determine whether it was an interim or temporary plate.” Appellant’s Br. p. 9.
Leaving aside the fact that Officer Wooten testified he couldn’t see any license
plate on Harris’s car at the time of the traffic stop, Harris’s argument is
inapposite because the evidence shows that Harris’s plate was an improperly
displayed temporary—not interim—license plate, and thus Section 9-32-6-11 is
irrelevant.
[10] In light of the above, we affirm the trial court’s denial of Harris’s motion to
suppress, finding that there was no Fourth Amendment violation here because
Officer Wooten had reasonable suspicion to stop Harris’s car.
[11] Affirmed.
Robb, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-128 | November 18, 2015 Page 7 of 7