MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jul 10 2019, 10:17 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
John Kindley                                              Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyson A. Eminger,                                         July 10, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2759
        v.                                                Appeal from the Noble Superior
                                                          Court
State of Indiana,                                         The Honorable Robert E. Kirsch,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          57D01-1709-F2-6



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019                    Page 1 of 15
[1]   Tyson Eminger appeals his convictions and the sentence imposed by the trial

      court for Level 2 Felony Dealing in Methamphetamine,1 Level 4 Felony

      Unlawful Possession of a Firearm by a Serious Violent Felon,2 and Class A

      Misdemeanor Resisting Law Enforcement,3 arguing that the trial court erred

      when it admitted certain evidence because the search was unlawful and that the

      sentence is inappropriate in light of the nature of the offenses and his character.

      Finding no error and the sentence not inappropriate, we affirm.


                                                        Facts
[2]   On September 18, 2017, there was an active arrest warrant for Eminger. On that

      day, the Noble County Sheriff’s Department received information from Richard

      Rhoades about Eminger after Deputy Sheriff Johnny Ritchie stopped Rhoades’s

      vehicle and questioned him. Rhoades agreed to meet Eminger at a gas station in

      Rome City in order to purchase methamphetamine as part of a controlled drug

      buy. Several undercover officers then drove to the gas station.


[3]   Later that evening, Eminger, Joshua Rowe, and Kristian Martin got into a

      vehicle. Martin was in the driver’s seat, Eminger was in the front passenger’s

      seat, and Rowe sat directly behind Eminger. They first drove to Eminger’s

      home to pick up two items and then to the Marathon gas station in Rome City,



      1
          Ind. Code §§ 35-48-4-1.1(a)(2), -1.1(e)(1).
      2
          Ind. Code § 35-47-4-5(c).
      3
          Ind. Code § 35-44.1-3-1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 2 of 15
      where they were to meet Rhoades. At the gas station, Eminger was standing

      outside the vehicle when law enforcement came out of hiding. The officers

      drew their weapons and ordered Eminger to lie on the ground. Eminger

      refused. He then proceeded to argue and fight with some of the officers until he

      was tased into submission.


[4]   Officers then took Eminger into custody and searched him, finding $1,070 and

      a cell phone in his pockets. A search of the phone revealed the text message

      conversation between Eminger and Rhoades about methamphetamine. The

      officers ordered Martin and Rowe out of the vehicle. Deputy Sheriff Carey

      Coney then conducted an open-air sniff around the vehicle using a drug-sniffing

      dog. The dog almost immediately alerted the officers to the presence of

      something in the front passenger’s seat, where Eminger had been sitting. The

      drug-sniffing dog did not alert the officers to any other part of the vehicle. The

      officers ran a VIN and license plate check of the vehicle and discovered that it

      was stolen.


[5]   With this information, the officers searched the vehicle. On the floor of the

      front passenger’s seat inside a blue lunch tote, they found a firearm and an

      Arizona Tea can with a hidden compartment containing a substance that was

      later determined to be methamphetamine. The methamphetamine was

      packaged in a way that is consistent with dealing. In the seat directly behind the

      front passenger’s seat, the officers found a black bag containing syringes, a

      small amount of a substance that was later determined to be marijuana, more

      methamphetamine, scales, ammunition, and small baggies that are commonly

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 3 of 15
      used for drug transactions. Later testing revealed the total amount of

      methamphetamine to be 28.02 grams.


[6]   On September 22, 2017, the State charged Eminger with one count of Level 2

      felony dealing in methamphetamine, one count of Level 4 felony unlawful

      possession of a firearm by a serious violent felon, and one count of Class A

      misdemeanor resisting law enforcement. The State also alleged that Eminger

      was an habitual offender. Eminger has a long criminal history, which includes

      convictions for Class C misdemeanor illegal possession of an alcoholic

      beverage, Class A misdemeanor resisting law enforcement, Class A

      misdemeanor operating a vehicle while intoxicated, Class A misdemeanor

      possession of marijuana, Class D felony possession of marijuana, Class A

      misdemeanor criminal recklessness with a vehicle, Class A misdemeanor

      battery resulting in bodily injury, Class A misdemeanor driving while

      suspended, Class C felony possession of two or more chemical reagents, and

      Class B felony dealing in methamphetamine.


[7]   On December 22, 2017, Eminger filed a motion to suppress the evidence.

      Following a February 2, 2018, evidentiary hearing, the trial court denied

      Eminger’s motion to suppress, holding that Eminger did not have standing to

      challenge the search because it was of a stolen vehicle and that even if Eminger

      had standing, the officers had probable cause to search.


[8]   On April 13, 2018, the State filed an additional charge of Level 4 felony

      possession of methamphetamine. At Eminger’s September 19-21, 2018, jury


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 4 of 15
       trial, Eminger made a continuing objection to the admission of any evidence

       obtained from the search of the vehicle, which the trial court noted and

       overruled. See Tr. Vol. II p. 175. Eminger waived his right to a jury trial as to

       the habitual offender enhancement. The jury found Eminger guilty as charged.

       After a separate bench trial, the trial court found that Eminger was an habitual

       offender.


[9]    At Eminger’s October 19, 2018, sentencing hearing, the trial court merged the

       Level 4 felony possession conviction into the Level 2 felony dealing conviction

       for purposes of double jeopardy. The trial court then sentenced Eminger to

       twenty years for the dealing in methamphetamine conviction and enhanced the

       sentence by ten years due to Eminger’s habitual offender status; six years for the

       unlawful possession of a firearm by a serious violent felon conviction, with four

       years suspended to probation, to be served consecutively with the felony dealing

       conviction; and one year for the resisting law enforcement conviction to be

       served concurrently with the felony dealing conviction. Eminger’s aggregate

       executed sentence is thirty-two years. Eminger now appeals.


                               Discussion and Decision

                               I. Admission of Evidence
[10]   First, Eminger argues that the trial court erred when it admitted certain

       evidence stemming from the search of the vehicle because the search violated

       the federal and state constitutions. Specifically, Eminger contends that the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 5 of 15
       officer’s search of the black bag and the blue lunch tote containing

       methamphetamine and the firearm was unlawful pursuant to the Fourth

       Amendment to the United States Constitution and Article 1, Section 11 of the

       Indiana Constitution.


[11]   As a general matter, the Fourth Amendment to the United States Constitution

       protects citizens from unreasonable searches and seizures. Article 1, Section 11

       of the Indiana Constitution contains nearly identical language and says that

       “[t]he right of the people to be secure in their persons, houses, papers, and

       effects, against unreasonable search or seizure, shall not be violated[.]”

       Evidence that is the product of an unlawful search is inadmissible under both

       the Fourth Amendment to the United States Constitution and Article 1, Section

       11 of the Indiana Constitution. Hill v. State, 956 N.E.2d 174, 177 (Ind. Ct. App.

       2011) (holding that evidence that is obtained from an illegal search is “fruit of

       the poisonous tree,” and therefore, inadmissible in a court of law).


[12]   Reversal of a trial court’s admissibility determinations is appropriate only where

       the decision is clearly against the logic and effect of the facts and circumstances.

       Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). “Moreover, we will sustain the

       trial court[’s] [decision on the admission of evidence] if it can be done on any

       legal ground apparent in the record.” Jester v. State, 724 N.E.2d 235, 240 (Ind.

       2000). However, we will review a trial court’s conclusions of law de novo,




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 6 of 15
       giving no weight to the legal analysis below. Sanders v. State, 989 N.E.2d 332,

       334 (Ind. 2013).4

                             A. Fourth Amendment to the United States Constitution

[13]   First and foremost, there is the question of standing. Under the Fourth

       Amendment, a defendant may not challenge the constitutionality of a search

       unless he can demonstrate that he had a reasonable expectation of privacy in

       the place to be searched. Sidener v. State, 55 N.E.3d 380, 383 (Ind. Ct. App.

       2016); see generally Minnesota v. Carter, 525 U.S. 83, 90-91 (1998). Generally,

       defendants have no standing to object to the search of a stolen automobile

       because they have no legitimate expectation of privacy therein. Medelvitz v.

       State, 416 N.E.2d 1270, 1274 (Ind. Ct. App. 1981). Additionally, passengers—

       as opposed to drivers—have diminished expectations of privacy in vehicles

       because they do not exercise control over those vehicles. Sidener, 55 N.E.3d at

       383. Eminger was not only a passenger inside a vehicle, but the vehicle itself

       was also stolen. So, from the outset, the evidence appears to demonstrate that




       4
         Both parties concede that this appeal is appropriately framed as a challenge to the admission of evidence
       since Eminger did not bring an interlocutory appeal of the denial of his motion to suppress. Cochran v. State,
       843 N.E.2d 980, 982 (Ind. Ct. App. 2006). However, the State argues that Eminger failed to make a
       continuing objection to the admission of all subsequent evidence obtained from the search on constitutional
       grounds, insisting that this Court should only review Eminger’s claims for fundamental error. See Appellee’s
       Br. p. 14-15. This is patently incorrect. Notwithstanding the trial court’s acknowledgment of Eminger’s
       continuing objection, even the State’s attorney recognized the continuing objection for appeal when he said,
       “I think Judge that it’s judicious and wise of us to make those objections of record now that way in the event
       there is a conviction that issue or those issues are reserved for appeal later.” Tr. Vol. II p. 175. Therefore,
       Eminger has not waived these issues for appeal, and we are not limited to reviewing Eminger’s claims only
       for fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019                      Page 7 of 15
       Eminger lacks standing to challenge the constitutionality of the search under

       the Fourth Amendment to the United States Constitution.


[14]   Assuming solely for argument’s sake that Eminger had standing to challenge

       the search, the Fourth Amendment prohibits warrantless searches unless an

       exception applies. Black v. State, 810 N.E.2d 713, 715 (Ind. 2004). The

       automobile exception is well established, allowing officers to conduct a

       warrantless search of a vehicle where (1) the vehicle was readily mobile or

       capable of being driven when the police first seized it; and (2) probable cause

       existed that the vehicle contained contraband or evidence of a crime. Cheatham

       v. State, 819 N.E.2d 71, 75-76 (Ind. Ct. App. 2004). Probable cause exists

       “where facts found on a reasonable inquiry would induce a reasonably

       intelligent and prudent person to believe the accused has committed [a] crime.”

       Street v. Shoe Carnival, Inc., 660 N.E.2d 1054, 1056 (Ind. Ct. App. 1996). “The

       determination of probable cause is a mixed question of law and fact.” Earles v.

       Perkins, 788 N.E.2d 1260, 1264 (Ind. Ct. App. 2003).


[15]   Here, it is undisputed that the officers had the authority to invoke the

       automobile exception to search the vehicle and its contents therein. First, the

       vehicle was readily mobile or capable of being driven when the police first

       seized it by virtue of its inherent operability. See Myers v. State, 839 N.E.2d 1146,

       1152 (Ind. 2005).


[16]   Second, the officers had probable cause to believe that the vehicle contained

       contraband or evidence of a crime. Rhoades provided the Noble County


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 8 of 15
       Sheriff’s Department with information about Eminger. Also, they learned

       through Rhoades’s conversation with Eminger that Eminger was willing to sell

       and/or buy controlled substances. After the officers tased and arrested Eminger

       at the gas station, they employed a drug-sniffing dog to conduct an open-air

       sniff around the vehicle, and the drug-sniffing dog immediately alerted officers

       to something in the front passenger’s seat. While an open-air sniff by itself does

       not necessarily provide law enforcement with probable cause, our Supreme

       Court has held that a sniff and subsequent alert following the initial suspicion of

       contraband can provide law enforcement with probable cause to believe a

       vehicle contains illegal drugs. State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010);

       see also Neuhoff v. State, 708 N.E.2d 889, 891 (Ind. Ct. App. 1999).


[17]   The drug-sniffing dog’s open-air sniff and alert combined with the knowledge

       that Eminger was ready and willing to engage in a transaction for controlled

       substances, that Eminger was aggressive and resistant to law enforcement’s

       commands, and that the vehicle was stolen established the requisite probable

       cause to invoke the automobile exception.


[18]   Accordingly, pursuant to the automobile exception, law enforcement had the

       authority to search any part of the vehicle that may have contained contraband,

       including the blue lunch tote with the Arizona Tea can as well as the black bag.

       Wilkinson v. State, 70 N.E.3d 392, 404 (Ind. Ct. App. 2017) (holding that under

       the automobile exception, once probable cause is established, officers are

       permitted to search any items in the vehicle that might conceal controlled

       substances); see also United States v. Ross, 456 U.S. 798, 825 (1982) (establishing

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 9 of 15
       that “if probable cause justifies the search of a lawfully stopped vehicle, it

       justifies the search of every part of the vehicle and its contents that may conceal

       the object of the search[]”). Therefore, this search did not violate the Fourth

       Amendment to the United States Constitution, and all evidence obtained from

       that search was admissible.

                               B. Article 1, Section 11 of the Indiana Constitution

[19]   Searches by law enforcement require a different review under Article 1, Section

       11 of the Indiana Constitution:


               Conformity of a search to the Indiana Constitution turns on an
               evaluation of the “reasonableness” of the conduit of the law
               enforcement officers, not on the expectation of privacy commonly
               associated with Fourth Amendment analysis. Relevant
               considerations in evaluating reasonableness of a search under all
               the circumstances include the degree to which the search or
               seizure disrupts the suspect’s normal activities, and those facts and
               observations that support the officer’s decision to initiate the
               search or seizure. . . . [T]he reasonableness of a search or seizure
               generally turns on a balance of: 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
               a citizen’s ordinary activities, and 3) the extent of law enforcement
               needs.


       Stark v. State, 960 N.E.2d 887, 892 (Ind. Ct. App. 2012) (internal citations

       omitted).


[20]   First, regarding knowledge of a violation, there was a high degree of suspicion

       that there was unlawful activity afoot. The Noble County Sheriff’s Department

       received pertinent information from Rhoades that Eminger would readily buy


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 10 of 15
       and/or sell methamphetamine. Additionally, the officers learned that there was

       an active warrant for Eminger’s arrest. Then, after surrounding Eminger, tasing

       him, and bringing him into custody, law enforcement conducted an open-air

       sniff using a drug-sniffing dog, and the dog almost immediately alerted the

       officers to the presence of drugs inside a stolen vehicle. All of this evidence in

       the aggregate created a strong suspicion that some law had been violated.


[21]   Second, regarding the intrusion into Eminger’s ordinary activities, Eminger and

       the other passengers had been traveling in a stolen vehicle. Though a search

       under the Indiana Constitution is analyzed for reasonableness, “in examining

       the degree of intrusion, we consider the nature of the privacy interest upon

       which the search intrudes and the character of the intrusion itself.” Chest v.

       State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009) (holding that intrusion into

       defendant’s ordinary activities was “minimal” because the search occurred at

       night and involved a vehicle that did not belong to defendant); see generally

       Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). Furthermore, the open-air

       sniff by the drug-sniffing dog did not lead to a search of Eminger’s most

       personal effects such as a wallet or bag that belonged to him. Rather, the

       officers ultimately searched the passenger and backseat areas of a stolen vehicle

       in which Eminger was merely a passenger, which led to further searches of the

       blue lunch tote, the black bag, and the Arizona Tea can. Our Supreme Court

       has held that “individuals have a ‘reduced expectation of privacy with regard to

       the property they transport in cars’ traveling on public highways where the

       property is subject to police examination and is ‘exposed to traffic accidents that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 11 of 15
       may render all their contents open to public scrutiny.’” Krise v. State, 746

       N.E.2d 957, 971 (Ind. 2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 303

       (1999)). As such, this search did not unreasonably intrude into Eminger’s

       ordinary activities.


[22]   Third, regarding the extent of law enforcement needs, the officers who seized

       and arrested Eminger went into the situation knowing that there was an

       outstanding warrant for Eminger’s arrest. There was a strong possibility—after

       stopping and gleaning information from Rhoades—that Eminger would have

       drugs on his person. Accordingly, the officers had the authority to use the taser,

       the drug-sniffing dog, and their methods of arrest to search Eminger, the stolen

       vehicle, and its contents to ensure that no contraband would be removed or

       destroyed. And, given that this was a controlled drug buy, it was reasonable for

       the officers to be present and to employ the tactics they used to keep the

       situation from becoming precarious.


[23]   Therefore, in looking at the totality of the circumstances, this search was lawful

       pursuant to Article 1, Section 11 of the Indiana Constitution, and the trial court

       did not err by admitting all the evidence obtained from that search.


                                     II. Appropriateness
[24]   Next, Eminger argues that the aggregate sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 12 of 15
[25]   Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,

       after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense[s] and the

       character of the offender.” The defendant bears the burden of persuading us

       that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). In determining whether the sentence is inappropriate, we will consider

       numerous factors such as culpability of the defendant, the severity of the crime,

       the damage done to others, and a “myriad [of] other factors that come to light

       in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). It is our

       job to leaven the outliers, not to achieve a perceived “correct” sentencing result.

       Id. at 1225.


[26]   The maximum sentence for a Level 2 felony dealing in methamphetamine

       conviction is thirty years and the minimum sentence is ten years. Ind. Code §

       35-50-2-4.5. The advisory sentence is seventeen and one-half years. Id. The

       maximum sentence for a Level 4 felony unlawful possession of a firearm by a

       serious violent felon conviction is twelve years and the minimum sentence is

       two years. I.C. § 35-50-2-5.5. The advisory sentence is six years. Id. For a Class

       A misdemeanor resisting law enforcement conviction, the defendant “shall be

       imprisoned for a fixed term of not more than one (1) year[.]” Ind. Code § 35-50-

       3-2.


[27]   Here, the trial court sentenced Eminger to twenty years—just over the advisory

       sentence—for the dealing in methamphetamine count and enhanced it by ten

       years due to Eminger’s habitual offender status; six years—the advisory

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 13 of 15
       sentence—with two years to be executed and four years suspended to

       probation, for the unlawful possession of a firearm by a serious violent felon

       count; and the maximum one year for the resisting law enforcement count.


[28]   First, as to the nature of the offenses, Eminger has committed serious drug

       crimes. The officers discovered almost thirty grams of methamphetamine inside

       the vehicle, and pursuant to the dealing statute, the State only needed to prove

       that the amount of the drug involved is at least ten grams. See I.C. §§ 35-48-4-

       1.1(a)(2), -1.1(e)(1). Given this large quantity of methamphetamine along with

       the presence of scales, syringes, individual baggies with labeling, and a firearm,

       it is apparent that Eminger was heavily involved in the trafficking and dealing

       of illegal controlled substances. McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct.

       App. 1993) (holding that “[c]ircumstantial evidence of intent to deliver, such as

       possession of a large quantity of drugs, large amounts of currency, scales,

       plastic bags, and other paraphernalia . . . can support a conviction”).

       Furthermore, the text messages from Eminger’s phone demonstrate that

       Eminger was ready and willing to engage in a drug transaction with Rhoades.

       And, once confronted with armed officers, Eminger argued, fought back, and

       ultimately resisted arrest until he was tased into submission. Therefore, we find

       that the nature of the offenses does not render Eminger’s sentence

       inappropriate.


[29]   Second, as to Eminger’s character, Eminger has a lengthy criminal record that

       includes multiple convictions, some for crimes that Eminger was charged with

       and convicted of in this case—namely, resisting law enforcement and dealing in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 14 of 15
       methamphetamine. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App.

       2007) (holding that “it is appropriate to consider such a [criminal] record as a

       poor reflection on the defendant’s character, because it may reveal that he . . .

       has not been deterred even after having been subjected to the police authority of

       the State[]”). The sheer number of offenses that constitute Eminger’s criminal

       record—alcohol abuses as a minor, battery resulting in bodily injury, possession

       of marijuana, dealing in methamphetamine, resisting law enforcement, and

       more—shows a clear disregard for the rule of law. Despite multiple

       opportunities for improvement, Eminger shows no sign of reform. Therefore,

       we find that Eminger’s character does not render the sentence inappropriate.


[30]   In sum, we will not revise Eminger’s sentence pursuant to Indiana Appellate

       Rule 7(B).


[31]   The judgment of the trial court is affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2759 | July 10, 2019   Page 15 of 15
