Tawon L. Wright v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 20, 2013
• Docket: 34A02-1304-CR-368
• Status: Unpublished

Opinion

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, Nov 20 2013, 10:10 am collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DONALD E.C. LEICHT GREGORY F. ZOELLER Kokomo, Indiana Attorney General of Indiana

JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

TAWON L. WRIGHT, ) ) Appellant-Defendant, ) ) vs. ) No. 34A02-1304-CR-368 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable William C. Menges, Judge Cause No. 34D01-1203-FA-0208

November 20, 2013 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge Tawon Wright (“Wright”) was convicted in Howard Superior Court of Class C

felony possession of cocaine. The trial court sentenced Wright to an aggregate term of

thirteen years. Wright’s cocaine was discovered as the result of a traffic stop of the

vehicle that Wright was a passenger in. Wright appeals and argues that the trial court

erred in admitting evidence obtained as a result of the traffic stop because the stop was

not supported by reasonable suspicion that the driver of the vehicle Wright was

committing a crime.

We affirm.

Facts and Procedural History

On March 8, 2012, Kokomo Police Officer Chad VanCamp (“Officer VanCamp”),

a canine officer, was on patrol when he observed a vehicle passing by with heavily tinted

windows. The tint was so dark that Officer VanCamp was not able to ascertain the

physical characteristics of the car’s occupants, so he initiated a traffic stop based on his

suspicion that the window tint exceeded the legal limit. Officer VanCamp then

approached the car from the passenger side and requested identification from its

occupants, Shautae Franklin (“Franklin”), who was the driver, and Wright. Franklin

provided Officer VanCamp with her driver’s license and Wright produced his birth

certificate.

As Officer VanCamp spoke with Franklin and Wright, he noticed a strong odor

coming from the interior of the car. He determined that the odor was the result of at least

two air fresheners inside the car and a cigar that Wright was smoking. Officer VanCamp

2 believed that Wright and Franklin were using the cigar and the air fresheners in an

attempt to cover the odors of illegal narcotics.

Officer VanCamp performed a “tint-o-meter” test on the car and determined that

the darkness of the front driver’s side window tint was illegal, in violation of Indiana

Code section 9-19-19-4.1 He then contacted dispatch to send an additional unit to assist

him. When Officers Brad Reed (“Officer Reed”), Travis Williams (“Officer Williams”),

and Detective Gary Taylor arrived at the scene of the stop, Officer VanCamp returned to

his cruiser to conduct a driver’s license inquiry and warrants check using the

identification provided to him by Wright and Franklin.

While Officer VanCamp awaited the results of the driver’s license inquiry, based

on the masking odor he had detected inside Franklin’s car, he and his canine conducted a

drug sweep around the exterior of the vehicle. When the canine alerted to the presence of

illegal narcotics, Officer Reed instructed Wright to exit the vehicle. Officer Reed then

searched Wright and the vehicle and discovered a plastic bag of cocaine in Wright’s shoe.

Officer Reed and Officer Williams arrested Wright and transported him to the Howard

County Jail. After Wright was booked into the jail, Officer Williams discovered an

1 Indiana Code section 9-19-19-4(c) provides that

[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 outside 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. 3 additional plastic bag of cocaine in the backseat of his patrol car where Wright had been

detained.

The next day, March 9, 2012, the State charged Wright with Class A felony

dealing in cocaine. A jury trial was held on February 22, 2013. During the trial, Wright

moved to suppress evidence of the cocaine, arguing that the initial traffic stop was not

supported by reasonable suspicion. The trial court denied Wright’s motion. On February

26, 2013, the jury returned a verdict of guilty on a lesser-included offense, Class C felony

possession of cocaine. Wright then pleaded guilty to being an habitual substance

offender. On March 27, 2013, Wright was sentenced to eight years executed in the

Department of Correction and an additional five years executed for the habitual offender

enhancement, for an aggregate of thirteen years executed. Wright now appeals.

Standard of Review

Wright argues that the trial court erred when it denied his motion to suppress

evidence. However, because Wright did not seek an interlocutory appeal after the denial

of his motion to suppress, the issue presented is more appropriately framed as whether

the trial court abused its discretion by admitting the evidence at trial. Washington v.

State, 784 N.E.2d 584, 586-87 (Ind. Ct. App. 2003).

Questions regarding the admission of evidence are left to the sound discretion of

the trial court, and on appeal, we review the court’s decision only for an abuse of that

discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied. The

trial court abuses its discretion only if its decision is clearly against the logic and effect of

the facts and circumstances before it, or if the court has misinterpreted the law. Id.

4 Our review of rulings on the admissibility of evidence is essentially the same

regardless of whether the challenge is made through a pretrial motion to suppress or by

an objection at trial. Jackson v. State, 890 N.E.2d 11, 15 (Ind. Ct. App. 2008). We will

not reweigh the evidence, and we consider conflicting evidence in a light most favorable

to the trial court’s ruling. Id. We will, however, consider any undisputed evidence that is

favorable to the defendant and any foundational evidence introduced at trial in

conjunction with evidence from a suppression hearing that is not in direct conflict with

the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind. Ct. App. 2005).

Discussion and Decision

Wright claims that the trial court erred in admitting evidence seized pursuant to

Officer VanCamp’s traffic stop because the stop was not supported by reasonable

suspicion. He further argues that he was illegally detained when he was allegedly

ordered back into his car while attempting to exit during Officer VanCamp’s license

inquiry.

The Fourth Amendment of the United States Constitution affords individuals

protection from unreasonable searches and seizures.2 Woodson v. State, 960 N.E.2d 224,

227 (Ind. Ct. App. 2012). These protections extend to brief investigatory stops of persons

that fall short of traditional arrest. Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009).

“[A]n officer is permitted to stop and briefly detain a person for investigative purposes if

the officer has a reasonable suspicion supported by articulable facts that criminal activity

2 Wright makes no claim under Article 1, Section 11 of the Indiana Constitution and has therefore waived review under that provision. 5 may be afoot, even if the officer lacks probable cause.” Id. at 319 (internal quotations

omitted).

Reasonable suspicion requires that there be “some objective manifestation that the

person stopped is, or is about to be, engaged in criminal activity.” Woodson, 960 N.E.2d

at 227 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d

621 (1981)). Although there is no set of hard-and-fast rules to determine what constitutes

reasonable suspicion, a mere “hunch” is insufficient. Id. On appeal, we make reasonable

suspicion determinations by looking at the totality of the circumstances of each case to

determine whether the detaining officer has a particularized and objective basis for

suspecting legal wrongdoing. Id.

A traffic stop is permissible as long as an officer has at least a reasonable

suspicion that a law has been violated. Indiana Code section 34-28-5-3 allows an officer

to detain a person if the officer believes, in good faith, that the person has violated a law.

Our supreme court has found “good faith” where an officer initiates a traffic stop on a car

with windows too heavily tinted for him to determine the physical appearance of the car’s

occupants. Sanders v. State, 989 N.E.2d 332 (Ind. 2013).

Here, the trial court found that, at the time he performed the traffic stop, Officer

VanCamp believed in good faith that the tint on the windows of Franklin’s car were in

violation of the law. The tint was so dark that Officer VanCamp could not see into the

car to determine its occupants’ physical characteristics. This observation provided

reasonable suspicion for Officer VanCamp to initiate the traffic stop. The subsequent

canine search was not improper, since it was performed during the course of a lawful

6 traffic stop and did not itself prolong the time required to complete the traffic stop. See

Myers v. State, 839 N.E.2d 1146, 1149 (Ind. 2005) (citing Illinois v. Caballes, 543 U.S.

405, 125 S.Ct. 834, 837, 838, 160 L.Ed.2d 842, 846, 847 (2005)). Wright does not argue

that the subsequent searches of his person and of Franklin’s car were unsupported by

probable cause. Therefore, the trial court did not abuse its discretion in admitting

evidence seized pursuant to the traffic stop and subsequent search.

Wright further argues that the trial court erred in finding more credible Officer

VanCamp’s testimony that Wright did not attempt to leave Franklin’s vehicle over

Franklin’s testimony that Wright attempted to exit the vehicle but was ordered by an

officer to remain in the vehicle, and that the officer’s order constituted an illegal seizure

of Wright.3 Wright’s argument amounts to a request that we reweigh the evidence and

judge for ourselves the credibility of the witnesses, which we will not do. See McHenry

v. State, 820 N.E.2d 124, 127 (Ind. 2005). However, in this regard it is important to note

that, even if the trial court had found Franklin’s testimony to be credible, a police officer

“may order a passenger who has exited a lawfully stopped vehicle to return to the

vehicle . . . in order to ascertain the situation and to alleviate any concerns the officer has

for his or her safety.” Tawdul v. State, 720 N.E.2d 1211, 1216-17 (Ind. Ct. App. 1999).

See also Harper v. State, 922 N.E.2d 75, 80 (Ind. Ct. App. 2010) (holding that a police

officer’s request that an automobile passenger not leave the scene of the traffic stop did

3 Franklin testified that, after VanCamp returned to his cruiser to perform the license inquiry and warrant check, Wright attempted to exit Franklin’s car and one of the officers ordered him to “get back in.” Tr. p. 73. Officer VanCamp’s testimony, however, indicated that Wright did not attempt to exit the vehicle until officers asked him to do so. 7 not exceed the permissible scope of a traffic stop where passenger had exited vehicle and

started walking toward a nearby motel door, officer was unsure what the passenger was

doing, and the officer then explained that the basis for traffic stop was an un-illuminated

tail light).

Conclusion

For all of these reasons, and under the facts and circumstances before us, we

conclude that the police had reasonable suspicion to perform the traffic stop at issue for

illegally tinted windows. Therefore, the trial court did not abuse its discretion in

admitting evidence obtained as a result of Wright’s encounter with police as a result of

this traffic stop.

Affirmed.

NAJAM, J., and BROWN, J., concur.