MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Apr 17 2017, 6:08 am
court except for the purpose of establishing                       CLERK
the defense of res judicata, collateral                        Indiana Supreme Court
                                                                  Court of Appeals
estoppel, or the law of the case.                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                       Curtis T. Hill, Jr.
Oldenburg, Indiana                                       Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Eaphram Lincey,                                          April 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1609-CR-2185
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Seiter, Judge
Appellee-Plaintiff                                       Pro Tempore
                                                         Trial Court Cause No.
                                                         49G10-1507-CM-26403



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2185 | April 17, 2017   Page 1 of 5
                                          Case Summary
[1]   Following a traffic stop, Eaphram Lincey was convicted of driving while

      suspended and possession of marijuana. He now appeals, arguing that the

      police officer did not have reasonable suspicion to stop him. Because the officer

      testified that Lincey did not stop at a stop light and a stop sign—both

      infractions—the trial court did not err in finding that reasonable suspicion

      existed for the traffic stop. We therefore affirm.



                            Facts and Procedural History
[2]   Just after midnight on July 26, 2015, Indianapolis Police Department Officer

      David Wisneski was patrolling the northside near 38th Street and Arlington

      Avenue when he encountered Lincey operating a motorcycle with a female

      passenger. The motorcycle was “wobbling” and traveling unusually slow, so

      Officer Wisneski decided to slow down and see if there was a problem. Tr. Vol.

      II pp. 7, 44. When Lincey made a right turn at a red light without first coming

      to a stop, Officer Wisneski decided to follow Lincey. Id. at 8. Officer Wisneski

      then saw Lincey make a left turn at a stop sign without coming to a stop or

      putting his foot down. Id. at 9, 48, 55-56. At this point, Officer Wisneski

      decided to initiate a traffic stop. During the traffic stop, Officer Wisneski

      learned that Lincey’s license was suspended. Officer Wisneski also smelled the

      odor of alcohol coming from Lincey. Officer Wisneski informed Lincey of

      Indiana’s implied-consent law, and Lincey agreed to take a certified breath test

      at the station. Before Lincey was transported, he was searched incident to his

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2185 | April 17, 2017   Page 2 of 5
      arrest for driving while suspended. During that search, marijuana was found in

      his pants pocket. He was then taken to the station, where a warrant had to be

      obtained for a blood draw.


[3]   Thereafter, the State charged Lincey with Count I: Class A misdemeanor

      operating while intoxicated endangering a person; Count II: Class A

      misdemeanor driving while suspended; Count III: Class B misdemeanor

      possession of marijuana; and Count IV operating a vehicle with an alcohol

      concentration equivalent (ACE) to at least .08. Before trial, Lincey moved to

      suppress the evidence against him, arguing that the officer did not have

      reasonable suspicion to stop him. After a hearing at which Officer Wisneski

      testified, the trial court denied the motion. A bench trial was then held. Lincey

      renewed his motion to suppress during trial, and Officer Wisneski, Lincey, and

      the female passenger testified during the in-trial suppression hearing. The trial

      court again denied the motion. The court acknowledged that there was

      conflicting testimony regarding whether Lincey stopped at both the stop light

      and the stop sign; however, the court believed Officer Wisneski and found that

      the traffic stop was valid. Trial resumed, and the trial court acquitted Lincey of

      operating while intoxicated and operating with an ACE of at least .081 but

      found him guilty of driving while suspended and possession of marijuana.




      1
        The trial court acquitted Lincey of operating with an ACE of at least .08 because the blood draw was done
      “outside the three (3) hour window.” Tr. p. 116. And the trial court acquitted Lincey of operating while
      intoxicated because the State failed to prove beyond a reasonable doubt that Lincey was intoxicated. The

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2185 | April 17, 2017            Page 3 of 5
[4]   Lincey now appeals.



                                  Discussion and Decision
[5]   Lincey contends that Officer Wisneski did not have reasonable suspicion to

      stop him and therefore the trial court erred in admitting evidence stemming

      from the stop. The Fourth Amendment protects citizens from unreasonable

      searches and seizures. U.S. Const. amend IV. Our jurisprudence reflects two

      types of police encounters that implicate Fourth Amendment protection:

      investigatory stops and custodial arrests. State v. Keck, 4 N.E.3d 1180, 1184

      (Ind. 2014). An investigatory stop is generally brief in duration and is

      constitutionally permissible so long as the officer “has a reasonable suspicion

      supported by articulable facts that criminal activity may be afoot.” Id.

      (quotations omitted). If an officer observes a driver commit a traffic violation,

      he has probable cause—and thus also the lesser included reasonable suspicion—

      to stop that driver. Id.


[6]   Lincey acknowledges that Officer Wisneski stopped him based on the officer’s

      belief that Lincey “committed two traffic infractions by not coming to a stop at

      a stop light and a stop sign.” Appellant’s Br. p. 11. And Lincey does not

      dispute that failing to stop at a stop light and a stop sign are infractions.

      However, Lincey argues that the officer’s belief was “mistaken[]” and asks us to




      court explained that although Lincey was wobbling and driving slowly, there was evidence of potholes in the
      road.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2185 | April 17, 2017           Page 4 of 5
      credit his own suppression-hearing testimony. Id. Lincey testified at the second

      suppression hearing that he in fact stopped at both the red light and the stop

      sign, but Officer Wisneski testified otherwise. The trial court believed Officer

      Wisneski. In reviewing a trial court’s reasonable-suspicion determination, we

      do not reweigh the evidence and consider conflicting evidence most favorably

      to the trial court. See Finger v. State, 799 N.E.2d 528, 533 (Ind. 2003) (“The

      reasonable suspicion inquiry is highly fact-sensitive and is reviewed under a

      sufficiency of the evidence standard. Like any matter of sufficiency of the

      evidence, the record must disclose substantial evidence of probative value that

      supports the trial court’s decision. We do not reweigh the evidence and we

      consider conflicting evidence most favorably to the trial court’s ruling.”

      (quotation omitted)). Because Officer Wisneski testified that Lincey did not

      stop at a stop light and a stop sign, thus committing two traffic infractions, the

      trial court did not err in finding that reasonable suspicion existed for the traffic

      stop.2 We therefore affirm the trial court’s admission of evidence stemming

      from that stop.

[7]   Affirmed.

      Bailey, J., and Robb, J., concur.




      2
        Lincey also challenges the traffic stop under Article 1, Section 11 of the Indiana Constitution. Although the
      standards are different, his argument is the same: the trial court should have believed his testimony instead of
      the officer’s testimony.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2185 | April 17, 2017               Page 5 of 5
