FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

ROBERT D. WICKENS                            GREGORY F. ZOELLER
Greensburg, Indiana                          Attorney General of Indiana

                                             MONIKA PREKOPA TALBOT
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                               IN THE                                  Apr 29 2014, 9:43 am

                    COURT OF APPEALS OF INDIANA

TYLER J. VEERKAMP,                           )
                                             )
     Appellant-Defendant,                    )
                                             )
              vs.                            )      No. 16A01-1310-CR-439
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                    APPEAL FROM THE DECATUR SUPERIOR COURT
                         The Honorable Matthew D. Bailey, Judge
                             Cause No. 16D01-1303-FD-151


                                   April 29, 2014

                            OPINION – FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

       Tyler J. Veerkamp (“Veerkamp”) files an interlocutory appeal of the trial court’s

denial of his motion to suppress evidence. We hold that a law enforcement officer has

probable cause that Indiana Code § 9-19-8-5 has been violated when fumes or smoke

emanating from the engine or power mechanism of a motor vehicle completely obscure a

motorist’s view of a portion of the vehicle being followed.

       We affirm.

                                         ISSUE

       Whether the trial court abused its discretion when it denied Veerkamp’s
       motion to suppress evidence.

                                         FACTS

       At approximately 10:35 p.m. on March 2, 2013, Greensburg Police Officer Justin

Wells (“Officer Wells”) was driving westbound on Main Street in Greensburg, Indiana,

when Veerkamp, driving his truck, turned onto Main Street a block in front of the officer.

As Veerkamp’s truck turned and accelerated, its exhaust system emitted “excessive”

smoke. (Tr. 7). At one point, Officer Wells “could not even see [] the passenger side tail

light of [Veerkamp’s] vehicle because the smoke was so excessive.” (Tr. 7). After

Veerkamp turned, his truck stopped emitting smoke, and Officer Wells was able to see

again. However, Officer Wells initiated a traffic stop of the truck based on the smoke

and discovered that Veerkamp seemed to be driving while under the influence of alcohol.

Subsequently, on March 3, 2013, the State charged Veerkamp with Class D felony

operating a vehicle while intoxicated.


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       On April 15, 2013, Veerkamp filed a motion to suppress all of the evidence

obtained as a result of the traffic stop. He argued that the stop had violated his rights

under the Fourth Amendment of the United States Constitution and Article I, Section 11

of the Indiana Constitution and that any evidence gained as a result of the search was,

thus, inadmissible. Specifically, he contended that Officer Wells did not have reasonable

suspicion to stop his vehicle because the smoke coming from his truck did not constitute

a traffic violation. He argued that it only lasted for a brief amount of time and, in his

view, was not excessive.

       The trial court held a hearing on Veerkamp’s motion on July 22, 2013. At the

hearing, the State introduced the video from Officer Wells’ in-car video system into

evidence. The video contained footage of Veerkamp turning onto Main Street, as well as

the smoke coming from Veerkamp’s truck. Officer Wells also testified and stated that he

did not see Veerkamp driving erratically or speeding before the traffic stop. Nor did he

notice any other driving behaviors that would have led him to believe that Veerkamp was

driving while impaired.        When Veerkamp’s counsel asked Officer Wells how he

differentiated between excessive and non-excessive smoke, he replied “if it obscures

visib[ility], I think it’s excessive.” (Tr. 12).

       At the conclusion of the hearing, the trial court issued an order denying the motion

to suppress evidence.       The court found that Veerkamp had committed a Class C

infraction by violating Indiana Code § 9-19-8-5, which provides that “[t]he engine and

power mechanism of a motor vehicle must be equipped and adjusted so as to prevent the

escape of excessive fumes and smoke.” As a result of this infraction, the trial court

                                                   3
concluded that Officer Wells had reasonable suspicion to stop Veerkamp and that both

the U.S. and Indiana Constitutions permitted the stop. On September 9, 2013, Veerkamp

moved to certify the trial court’s order for interlocutory appeal, and the trial court granted

the order.   This Court then accepted jurisdiction of the interlocutory appeal, and

Veerkamp appeals the trial court’s order on an interlocutory basis. We will provide

additional facts as necessary.

                                        DECISION

       Veerkamp argues that Officer Wells’ traffic stop violated his rights under the

Fourth Amendment of the U.S. Constitution and Article I, Section 11 of the Indiana

Constitution and that any evidence gained as a result of the stop is, thus, inadmissible.

We will address each of these constitutional arguments in turn.

       First, though, we recognize that our standard of review of a trial court’s ruling on a

motion to suppress is similar to other sufficiency issues. State v. Quirk, 842 N.E.2d 334,

340 (Ind. 2006). The record must disclose substantial evidence of probative value that

supports the trial court’s decision. Id. We will not reweigh the evidence or reassess the

credibility of witnesses, and we consider conflicting evidence most favorably to the trial

court’s decision. State v. Keck, 4 N.E.3d 1180, 1183 (Ind. 2014). We review the trial

court’s conclusions of law, including determinations of reasonable suspicion, de novo.

Id.

1. Fourth Amendment




                                              4
       The Fourth Amendment to the United States Constitution protects the privacy and

possessory interests of individuals by prohibiting unreasonable searches and seizures.

Sugg v. State, 991 N.E.2d 601, 607 (Ind. Ct. App. 2013). It 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.

U.S. CONST. amend. IV.       An investigatory traffic stop of a vehicle and temporary

detention of its occupants constitutes a “seizure” within the meaning of the Fourth

Amendment. McLain v. State, 963 N.E.2d 662, 666 (Ind. Ct. App. 2012), trans. denied.

However, a traffic stop is permissible under the Fourth Amendment if the law

enforcement officer “has a reasonable suspicion supported by articulable facts that

criminal activity ‘may be afoot.’” Terry v. Ohio, 392 U.S. 1, 30 (1968). If an officer

observes a driver commit a traffic violation, that constitutes probable cause—and the

lesser included reasonable suspicion—to stop the driver. See Keck, 4 N.E.3d at 1184. If

the officer stops a driver based on a mistaken belief that the observed conduct constitutes

an infraction, the officer’s suspicion is no longer reasonable, and the stop is therefore

unsupported and impermissible. Id.

       The trial court here determined that Officer Wells’ stop of Veerkamp was

constitutionally permissible because he had reasonable suspicion that Veerkamp had

committed an infraction by violating Indiana Code § 9-19-8-5, which provides that “[t]he

engine and power mechanism of a motor vehicle must be equipped and adjusted so as to

prevent the escape of excessive fumes and smoke.” Pursuant to Indiana Code § 9-19-8-6,

                                            5
violation of Indiana Code § 9-19-8-5 is a Class C infraction. Veerkamp disputes the trial

court’s conclusion by claiming that the smoke his truck emitted was not “excessive” as

prohibited by Indiana Code § 9-19-8-5. He also points to an exception to Indiana Code §

9-19-8-5. Under Indiana Code § 9-19-8-6, section 9-19-8-5’s prohibitions do not apply

to a person “who owns or operates a vehicle or combination of vehicles that: (1) contains

parts and accessories; and (2) is equipped; as required under regulations of the United

States Department of Transportation.” I.C. § 9-19-8-6. Veerkamp argues that Officer

Wells did not have reasonable suspicion because he did not determine whether this

exception applied to Veerkamp prior to stopping him.

      With respect to Veerkamp’s first argument concerning whether he committed a

traffic infraction, we note that the Indiana Code does not define the term excessive, and

we have never interpreted it in the context of Indiana Code § 9-19-8-5. However, we will

give an unambiguous statute its clear and plain meaning. McCabe v. Comm’r, Ind. Dep’t

Ins., 949 N.E.2d 816, 819 (Ind. 2011). The Merriam-Webster Online Dictionary defines

excessive as “exceeding what is usual, proper, necessary, or normal.”         MERRIAM-

WEBSTER       ONLINE       DICTIONARY,         available    at     http://www.merriam-

webster.com/dictionary/excessive (last visited April 15, 2014). Based on this definition,

we conclude that the trial court did not err in determining that the smoke coming from

Veerkamp’s truck was excessive. Officer Wells testified that he could not visibly see

through the smoke and that at one point the smoke covered Veerkamp’s passenger side

tail light. The officer also testified that in his experience visible smoke such as that

coming from Veerkamp’s vehicle was not “common.”            (Tr. 12).   “Common” is a

                                           6
synonym for the word “normal.”       See ROGET’S II THE NEW THESAURUS 180 (3rd ed.

2003). Accordingly, this testimony implied that the smoke coming from Veerkamp’s

truck exceeded “normal” amounts and was, therefore, “excessive.” We will not address

Veerkamp’s arguments concerning the duration of the smoke or Officer Wells’ credibility

as this court does not reweigh evidence or address credibility on appeal. See Keck, 4

N.E.3d at 1183.

       Veerkamp’s second argument is that Officer Wells did not have reasonable

suspicion to instigate the traffic stop because he did not determine whether Veerkamp fell

under an exception to Indiana Code § 9-19-8-5. As stated above, Indiana Code § 9-19-8-

5’s prohibitions do not apply to a person “who owns or operates a vehicle or combination

of vehicles that: (1) contains parts and accessories; and (2) is equipped; as required under

regulations of the United States Department of Transportation.”           I.C. § 9-19-8-6.

Veerkamp suggests that, because Officer Wells did not attempt to determine whether this

exception applied to Veerkamp, he could not have known whether Veerkamp had

committed a traffic infraction. The State responds by arguing that Veerkamp waived this

argument by failing to raise it before the trial court. We agree. A party waives “appellate

review of an issue or argument unless the party raised that issue or argument before the

trial court.” GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC, 764 N.E.2d 647,

652 (Ind. Ct. App. 2002). We will not address this argument any further.

       Because Veerkamp committed a traffic infraction, we conclude that Officer Wells

had reasonable suspicion to stop Veerkamp and that the stop was permissible under the

Fourth Amendment.

                                             7
2. Article I, Section 11

       Veerkamp also challenges his traffic stop under Article I, Section 11 of the Indiana

Constitution. Although the Fourth Amendment and Article I, Section 11 are worded

identically, our Indiana constitutional standard “has evolved differently from the Fourth

Amendment analysis.” Smith v. State, 744 N.E.2d 437, 440 (Ind. 2001). Under Article I,

Section 11, “‘we focus on the actions of the police officer[] and employ a totality-of-the-

circumstances test to evaluate the reasonableness of the officer’s actions.’” Austin v.

State, 997 N.E.2d 1027, 1034 (Ind. 2013) (quoting Duran v. State, 930 N.E.2d 10, 17

(Ind. 2010)). In doing so, we balance three factors: “‘1) the degree of concern, suspicion,

or knowledge that a violation has occurred; 2) the degree of intrusion the method of the

search or seizure imposes on the citizens’ ordinary activities; and 3) the extent of law

enforcement needs.’” Id. (quoting Duran, N.E.2d at 17-18). It is the State’s burden to

show that intrusion into “‘those areas of life that Hoosiers regard as private’ was

reasonable under the circumstances.” Austin, 997 N.E.2d at 1034 (quoting Quirk, 842

N.E.2d at 340). However, even a minor traffic violation is sufficient to give an officer

probable cause to stop the driver of a vehicle. Id.

       Here, Veerkamp argues that “[c]onsidering that the traffic stop occurred on a

Saturday night at 10:30 p.m. in a rural town with little traffic on the street, the totality of

the circumstances show that it was likely a pretextual stop.” (Veerkamp’s Br. 11). A

“pretextual” stop is a stop that police instigate “under the guise of enforcing the traffic

code what they would like to do for other reasons.” Baldwin v. Reagan, 715 N.E.2d 332,



                                              8
338 (Ind. 1999).      In support of this argument, Veerkamp points to Officer Wells’

testimony that his driving was otherwise appropriate.

       Regardless of Veerkamp’s performance driving, we find the traffic stop reasonable

based on the condition of his truck and the three balancing factors listed above. When

Officer Wells drove down the street, he saw Veerkamp’s truck produce an “excessive”

amount of smoke, to the point that Veerkamp’s passenger side tail light was not visible.

(Tr. 7). As a result, Officer Wells had a high degree of suspicion that Veerkamp had

committed a traffic infraction.   In addition, Officer Wells’ degree of intrusion was

minimal as he simply initiated a short traffic stop, and the need for law enforcement was

high because the smoke was extensive and blocked visibility, thereby creating a potential

traffic hazard. Based on our balancing of the above factors, we conclude that Officer

Wells acted reasonably to investigate a suspected traffic infraction and that his actions

did not violate Veerkamp’s rights under the Indiana Constitution.

       Further, because we have determined that Officer Wells’ stop did not violate

Veerkamp’s rights under the Fourth Amendment of the U.S. Constitution and Article I,

Section 11 of the Indiana Constitution, we hold that the trial court did not abuse its

discretion when it denied Veerkamp’s motion to suppress the evidence obtained as a

result of the stop.

       Affirmed.

FRIEDLANDER, J., and MATHIAS, J., concur.




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