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
                                                           Mar 13 2013, 9:04 am
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ADAM C. SQUILLER                                  GREGORY F. ZOELLER
Squiller Law Office, P.C.                         Attorney General of Indiana
Auburn, Indiana

                                                  RYAN D. JOHANNINGSMEIER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA

TYLER BECKER,                                     )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )      No. 57A03-1203-CR-124
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                      APPEAL FROM THE NOBLE SUPERIOR COURT
                          The Honorable Michael J. Kramer, Judge
                              Cause No. 57D02-1012-CM-979


                                        March 13, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Tyler Becker appeals his conviction and sentence for Class A misdemeanor

operating while intoxicated. We affirm.

                                           Issues

       Becker raises three issues, which we consolidate and restate as:

              I.     whether evidence obtained during a traffic stop was
                     properly admitted; and

              II.    whether he was properly sentenced.

                                            Facts

       At approximately 12:30 a.m. on December 10, 2010, Officer Carey Coney of the

Noble County Sherriff’s Department was on patrol in Kendallville. As Officer Coney

was making a left turn from Main Street onto North Street, he changed from the right

lane to the left lane. Becker then pulled out of a gas station parking lot in front of Officer

Coney, requiring Officer Coney to slam on his brakes to avoid an accident. Officer

Coney immediately initiated a traffic stop. When Officer Coney approached Becker, he

noticed Becker’s pupils were dilated and his eyes were bloodshot. Becker told Officer

Coney his name and date of birth and suggested that his license might be suspended for

failing to pay a ticket. Nothing about the way Becker answered the questions gave

Officer Coney any suspicion about anything improper.

       When Officer Coney returned to his vehicle to check the validity of Becker’s

license, Sergeant Johnny Ritchie of the Kendallville Police Department arrived at the

scene and suggested that Becker, who was twenty years old, had previously been caught


                                              2
drinking underage. Although Becker’s license was valid, Officer Coney reapproached

Becker’s car and asked him to step out of the car. As Becker stood up, a cigar-type

cigarette fell to the ground. Becker and Officer Coney moved to the back of Becker’s

car, and Officer Coney again observed that Becker’s pupils were dilated. Officer Coney

questioned whether Becker had been drinking, and Becker eventually admitted he had

smoked marijuana earlier in the day. Officer Coney gave Becker an informed consent

advisement, Becker agreed to a chemical test, and a urine test confirmed the presence of

cannabinoids.

      The State charged Becker with Class A misdemeanor operating while intoxicated

in a manner that endangered a person, Class C misdemeanor operating a vehicle with a

controlled substance in the body, and disregarding a stop sign as an infraction. Becker

filed a motion to suppress, which the trial court denied after a hearing. Following a

bench trial, at which Becker objected to the admission of evidence obtained during the

stop, Becker was found guilty of the Class A misdemeanor operating while intoxicated

charge. The trial court found that the Class C misdemeanor charge merged with the Class

A misdemeanor and found in favor of Becker on the infraction. The trial court sentenced

Becker to 365 days in jail, with all but ten days suspended, and to 355 days on probation.

The executed portion of Becker’s sentence was stayed pending appeal, but he was

ordered to begin serving his probation immediately. Becker now appeals.

                                        Analysis

                               I. Admission of Evidence



                                            3
       Becker argues that the trial court should not have admitted evidence obtained

during the traffic stop because there was no reasonable suspicion to justify the initial stop

and because the stop was unreasonably lengthened. “Our standard of review of rulings

on the admissibility of evidence is essentially the same whether the challenge is made by

a pre-trial motion to suppress or by trial objection: we do not reweigh the evidence, and

we consider conflicting evidence most favorable to the trial court’s ruling.” Jackson v.

State, 890 N.E.2d 11, 15 (Ind. Ct. App. 2008). “However, we must also consider the

uncontested evidence favorable to the defendant.” Id.

                                      A. Initial Stop

       Becker argues that Officer Coney did not have reasonable suspicion to initiate the

traffic stop. “Because a traffic stop is a seizure under the Fourth Amendment, police may

not initiate a stop for any conceivable reason, but must possess at least reasonable

suspicion that a traffic law has been violated or that other criminal activity is taking

place.” Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). An officer’s decision to stop

a vehicle is valid so long as his or her on-the-spot evaluation reasonably suggests that

lawbreaking occurred. Id. We review trial court determinations of reasonable suspicion

de novo by looking at the totality of the circumstances of each case to see whether the

detaining officer had a particularized and objective basis for suspecting legal

wrongdoing. Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009).

       Becker contends that the near accident was not caused by his driving but by

Officer Coney’s sudden and unforeseeable decision to change lanes while making the left

hand turn onto North Street. Regardless of whether Officer Coney’s lane change was

                                             4
proper, the video of the stop taken from Officer Coney’s police car shows that Becker

pulled into the road and in front of Officer Coney after Officer Coney made the lane

change. Officer Coney confirmed this when he testified that he did not think the lane

change contributed to the near collision. The video also shows that it was snowing,

suggesting the possibility of slippery road conditions, making the manner in which

Becker pulled out onto the street even more dangerous. Based on the totality of the

circumstances, we agree with the trial court that Officer Coney had reasonable suspicion

to initiate the traffic stop.

       To the extent Becker asserts that there was no reasonable suspicion because he

was not found to have committed any traffic violation by the trial court, reasonable

suspicion entails some minimal level of objective justification for making a stop,

something more than unparticularized suspicion or hunch, but less than the level of

suspicion required for probable cause. See Corwin v. State, 962 N.E.2d 118, 120 (Ind.

Ct. App. 2011), trans. denied. Therefore, it was not necessary for Becker to have been

found to have committed the traffic violation; it was only necessary for Officer Carney to

have a minimal level of objective justification for making the stop, which he had.

                                   B. Length of the Stop

       Becker also argues that Officer’s Coney’s continued investigation unreasonably

prolonged the stop. The Supreme Court has explained:

               A lawful roadside stop begins when a vehicle is pulled over
               for investigation of a traffic violation. The temporary seizure
               of driver and passengers ordinarily continues, and remains
               reasonable, for the duration of the stop. Normally, the stop
               ends when the police have no further need to control the

                                             5
               scene, and inform the driver and passengers they are free to
               leave. An officer’s inquiries into matters unrelated to the
               justification for the traffic stop, this Court has made plain, do
               not convert the encounter into something other than a lawful
               seizure, so long as those inquiries do not measurably extend
               the duration of the stop.

Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 788 (2009) (internal citation

omitted). “A seizure that is justified solely by the interest in issuing a warning ticket to

the driver can become unlawful if it is prolonged beyond the time reasonably required to

complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837

(2005)

         Here, when Becker pulled out in front of Officer Coney almost causing an

accident, Officer Coney initiated the traffic stop and briefly questioned Becker. Although

nothing about the way Becker answered the questions gave Officer Coney any suspicion

of anything improper, Officer Coney noticed Becker’s pupils were dilated and his eyes

were bloodshot. Officer Coney then returned to his car to verify the status of Becker’s

driver’s license. While waiting for that information, another police officer informed

Officer Coney that Becker, who was twenty years old, had previously been caught

drinking underage. Officer Coney remained in his car while he waited for information

and prepared paperwork.

         Officer Coney then reapproached Becker’s car and immediately asked him to step

out of the car. As Becker got out of the car, a cigar-type cigarette fell from Becker’s lap.

From his training and experience, Officer Coney had known people to hollow out these

cigars and put marijuana in them. As Officer Coney walked toward the back of Becker’s


                                              6
car, he asked Becker where he was headed and how he knew his passenger. Officer

Coney asked Becker if he had had anything to drink and asked him to close his eyes.

Officer Coney observed that, when Becker opened his eyes, his pupils remained dilated.

Officer Coney asked Becker when he had last smoked marijuana, and Becker said earlier

in the day. After questioning where Becker worked, Officer Coney requested Becker’s

consent to a chemical test and Becker agreed. Based on Becker’s pulling out in front of

Officer Coney, Becker’s dilated pupils and bloodshot eyes,1 and the information about

Becker’s underage drinking, we conclude that Officer Coney had reasonable suspicion to

further investigate and ask Becker to step out of the car.2

        Becker also asserts that the continued detention violated his rights under the

Indiana Constitution.3 Becker cites State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006), in

which Quirk, a truck driver who was stopped because a headlight was out, claimed that

his detention after he was advised he was free to leave violated his rights under Article 1,

Section 11. The court explained, “A police stop and brief detention of a motorist is

reasonable and permitted under Section 11 if the officer reasonably suspects that the

1
   Becker asserts that no evidence was presented regarding what it means to have dilated pupils and
bloodshot eyes. Officer Coney testified that he had Advanced Roadside Impairment Driving Enforcement
training and mentioned various manuals for detecting impairment. Under these circumstances, we believe
the testimony regarding Becker’s eyes is appropriate for determining whether Officer Coney had
reasonable suspicion to further investigate.
2
   Although neither party makes a specific argument regarding the amount of time that had passed, it is
notable that only a little over a minute passed from the time Officer Coney asked Becker to step out the
car until he asked for Becker’s consent to a chemical test and less than eleven minutes passed from the
time Becker pulled out in front of Officer Coney until Officer Coney asked for Becker’s consent.
3
  The State argues that this issue is waived because Becker did not present a separate analysis to support
his assertion that his state constitutional rights were violated. However, we believe that Becker’s reliance
on Quirk and his general argument relating to the reasonableness of the detention are sufficient to
preserve the Indiana constitutional claim.
                                                     7
motorist is engaged in, or about to engage in, illegal activity.” Quirk, 842 N.E.2d at 340.

After considering the various reasons offered by the Trooper for the extended detention,

our supreme court concluded, “a combination of irrelevant conduct and innocent conduct,

without more, cannot be transformed into a suspicious conglomeration.” Id. at 343. Our

supreme court concluded, “under the totality of the circumstances the Troopers’ detention

of Quirk beyond the period necessary to issue a warning ticket and the subsequent search

of his truck was unreasonable within the meaning of Article 1, Section 11.” Id.

        Unlike in Quirk, however, it is not clear that Officer Coney had completed the

process of writing the ticket and Becker was not told he was free to leave. Moreover, the

manner in which Becker was driving, his dilated pupils and bloodshot eyes, and the

report of underage drinking justified the brief detention that followed. Becker has not

established that the trial court abused its discretion by admitting evidence from the traffic

stop.

                                       II. Sentence

        Becker argues he was sentenced to 365 days in jail, all of which was suspended

except ten days, and to an additional 355 days of probation. He asserts that this is a 720-

day sentence that exceeds the maximum sentence permitted by Indiana Code Section 35-

50-3-1(b), which states, “the combined term of imprisonment and probation for a

misdemeanor may not exceed one (1) year.”

        At the sentencing hearing, the trial court stated, “I will sentence you the 365 days

in the Noble County jail and I will suspend all of that accept [sic] for 10 days, with one

day credit and I’ll place you on probation for 355 days under standard terms . . . .” Tr. p.

                                             8
95. In its written sentencing order, the trial court stated, “defendant shall be committed to

the Noble County Jail for 365 days, all suspended except for 10 days, which shall be

served, with 1 day(s) credit and the Defendant placed on probation for 355 days under

standard terms . . . .” App. p. 75. Although it could have been more precisely stated, we

believe the trial court intended to sentence Becker to 365 in jail, with ten days executed

and 355 suspended to probation. As our supreme court has recently clarified, such a

sentence is not in violation of Indiana Code Section 35-50-3-1(b) because the ten-day

term of imprisonment and 355-day suspended sentence do not exceed one year. See

Jennings v. State, No. 53S01-1209-CR-526 (Feb. 20, 2013) (holding that “term of

imprisonment” for purposes of misdemeanor sentencing does not include suspended

time). Becker was properly sentenced to ten days executed and 355 days suspended to

probation.

                                        Conclusion

       The trial court properly admitted evidence obtained during the traffic stop because

Officer Coney had reasonable suspicion to initiate the traffic stop and his decision to

further investigate was supported by reasonable suspicion.         Because Becker’s total

sentence was 365 days, he was not sentenced in violation of 35-50-3-1(b). We affirm.

       Affirmed.

BAKER, J., and RILEY, J., concur.




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