      OPINION ON REHEARING                                          Mar 24 2015, 9:04 am




      ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE
      Craig A. Dechert                                     Gregory F. Zoeller
      Howard County Deputy Public Defender                 Attorney General of Indiana
      Kokomo, Indiana
                                                           Larry D. Allen
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                                 IN THE
           COURT OF APPEALS OF INDIANA

      Kolyann Williams,                                         March 24, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                34A02-1406-CR-418
      v.                                                        Appeal from the Howard Superior
                                                                Court
                                                                The Honorable William C. Menges,
      State of Indiana,                                         Jr., Judge
      Appellee-Plaintiff                                        Case No. 34D01-1402-CM-101




      Bradford, Judge.

[1]   On December 9, 2014, in a published opinion, we reversed Appellant-

      Defendant Kolyann Williams’s conviction for Class A misdemeanor marijuana

      possession. Williams v. State, 22 N.E.3d 730 (Ind. Ct. App. 2014). We reversed

      Williams’s conviction on the basis that the traffic stop that led to the discovery

      of marijuana in his possession was based on the police officer’s mistaken belief


      Court of Appeals of Indiana | Opinion on Rehearing 34A02-1406-CR-418| March 24, 2015   Page 1 of 6
      that an infraction had occurred. Id. at 735. Appellee-Plaintiff the State of

      Indiana now petitions for rehearing, arguing that the United States Supreme

      Court’s recent decision in Heien v. N. Carolina, 135 S. Ct. 530 (2014), requires a

      different result. Heien held that reasonable mistakes of law, as well as fact, can

      give rise to reasonable suspicion under the Fourth Amendment. Id. at 536.

      Because we agree with the State, we grant its petition for rehearing and affirm

      the judgment of the trial court.


[2]   In Heien, a case similar to this one, the defendant was a passenger in a car that

      was pulled over for having only one properly functioning brake light. Id. at

      535. After being convicted of trafficking in cocaine, Heien appealed, and the

      North Carolina Court of Appeals reversed on the basis that driving with only

      one working brake light was not actually a violation of North Carolina law,

      which provided that a car must be


              equipped with a stop lamp on the rear of the vehicle. The stop
              lamp shall display a red or amber light visible from a distance of
              not less than 100 feet to the rear in normal sunlight, and shall be
              actuated upon application of the service (foot) brake. The stop
              lamp may be incorporated into a unit with one or more other rear
              lamps.


      Id. (citations omitted).


[3]   Ultimately, the United States Supreme Court took the case, and held as follows:

      “The question here is whether reasonable suspicion can rest on a mistaken

      understanding of the scope of a legal prohibition. We hold that it can.” Id. at


      Court of Appeals of Indiana | Opinion on Rehearing 34A02-1406-CR-418| March 24, 2015   Page 2 of 6
      536. The Court qualified this, requiring that the error of law be objectively

      reasonable. Id. at 540.


[4]   The Heien Court had


              little difficulty concluding that the officer’s error of law was
              reasonable. Although the North Carolina statute at issue refers to
              “a stop lamp,” suggesting the need for only a single working
              brake light, it also provides that “[t]he stop lamp may be
              incorporated into a unit with one or more other rear lamps.”
              N.C. Gen. Stat. Ann. § 20-129(g) (emphasis added). The use of
              “other” suggests to the everyday reader of English that a “stop
              lamp” is a type of “rear lamp.” And another subsection of the
              same provision requires that vehicles “have all originally
              equipped rear lamps or the equivalent in good working order,” §
              20-129(d), arguably indicating that if a vehicle has multiple “stop
              lamp[s],” all must be functional.
              The North Carolina Court of Appeals concluded that the “rear
              lamps” discussed in subsection (d) do not include brake lights,
              but, given the “other,” it would at least have been reasonable to
              think they did. Both the majority and the dissent in the North
              Carolina Supreme Court so concluded, and we agree. See 366
              N.C., at 282-283, 737 S.E.2d, at 358-359; id., at 283, 737 S.E.2d,
              at 359 (Hudson, J., dissenting) (calling the Court of Appeals’
              decision “surprising”). This “stop lamp” provision, moreover,
              had never been previously construed by North Carolina’s
              appellate courts. See id., at 283, 737 S.E.2d, at 359 (majority
              opinion). It was thus objectively reasonable for an officer in
              Sergeant Darisse’s position to think that Heien’s faulty right
              brake light was a violation of North Carolina law. And because
              the mistake of law was reasonable, there was reasonable
              suspicion justifying the stop.


      Id. at 540.


      Court of Appeals of Indiana | Opinion on Rehearing 34A02-1406-CR-418| March 24, 2015   Page 3 of 6
[5]   The basis of our holding in our original opinion was that even a good-faith but

      mistaken belief about what constitutes an infraction could not give rise to

      reasonable suspicion to make a traffic stop under the Fourth Amendment.1 See

      Ransom v. State, 741 N.E.2d 419, 422 (Ind. Ct. App. 2000) (“Although a law

      enforcement officer’s good faith belief that a person has committed a violation

      will justify a traffic stop…, an officer’s mistaken belief about what constitutes a

      violation does not amount to good faith.”). After Heien, the basis for our

      original disposition is no longer good law.


[6]   The only question, then, is whether Officer Packard’s belief that an infraction

      was being committed was objectively reasonable. To briefly reiterate, Officer

      Packard, when he encountered Williams’s car, “observed that the passenger

      side taillight had a large hole in it that was allowing a significant amount of

      white light to emit out of it while it was in forward motion.” Tr. p. 6. The hole

      was the size of approximately forty to fifty percent of the entire tail lamp with a

      “miniscule” amount of red light emitting from around the outer rim. Tr. p. 10.

      Officer Packard described the “unfiltered” white light as “overwhelming” the

      “filtered red light whose source was the same bulb.” Tr. pp. 11-12. Officer

      Packard testified to his belief that “any white light emitting out of the rear of a

      vehicle while it [was] in forward was a violation of the statute.” Tr. p. 9.




              1
                 As the State points out in its rehearing petition, Williams did not mention, much less develop a
      cogent argument based upon, Article I, section 11, of the Indiana Constitution. We therefore leave for
      another day the question of whether a reasonable mistake of law can support a traffic stop under the Indiana
      Constitution.

      Court of Appeals of Indiana | Opinion on Rehearing 34A02-1406-CR-418| March 24, 2015              Page 4 of 6
[7]   We conclude that Officer Packard’s belief, while ultimately mistaken, was

      reasonable. Indiana Code section 9-19-6-4 provides, in part, that “a motor

      vehicle … that is registered in Indiana and manufactured or assembled after

      January 1, 1956, must be equipped with at least two (2) tail lamps mounted on

      the rear that, when lighted, … emit[] a red light plainly visible from a distance

      of five hundred (500) feet to the rear.” While we stand by our original

      determination that the statute, when read closely, does not prohibit other colors

      of light from also being emitted, it certainly implies as much. A reasonable

      person unversed in statutory interpretation would very likely read section 4 to

      mean, “A car must have at least two tail lamps which emit only red light, or at

      least so much as to appear almost completely red.”


[8]   This reading appears even more reasonable in cases such as this one, involving

      a broken tail lamp lens, which gives rise to the risk of dangerous confusion with

      a back-up lamp. Back-up lamps are not required in Indiana but, if present,

      “must be white or amber.” Ind. Code § 9-19-6-8(c)(3). In practice, back-up

      lamps are nearly ubiquitous and, when present, are invariably white.2 If one tail

      lamp is totally red and the other mostly white, one may well be unable to tell at

      a glance whether the vehicle in question is in forward or reverse gear, creating

      obvious safety issues. The danger presented by this situation was undoubtedly

      behind Officer Packard’s testimony that he believed it to be an infraction for




              2
                Federal regulations provide that any back-up lamp that is required must be white. See 49 C.F.R. §
      571-108 (2011).

      Court of Appeals of Indiana | Opinion on Rehearing 34A02-1406-CR-418| March 24, 2015            Page 5 of 6
any white light to emit from the rear of a vehicle while that vehicle was in

forward motion. In conclusion, while we agree that Williams was committing

no infraction at the time he was stopped by Officer Packard, Officer Packard

had a reasonable belief that he was, thereby justifying the stop. Consequently,

the evidence seized as a result of the stop need not be suppressed. We grant the

State’s petition for rehearing and, reversing our prior disposition, affirm the

judgment of the trial court.


Najam, J., and Mathias, J., concur.




Court of Appeals of Indiana | Opinion on Rehearing 34A02-1406-CR-418| March 24, 2015   Page 6 of 6
