                                                                             Nov 13 2015, 8:51 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Brian J. Johnson                                           Gregory F. Zoeller
Danville, Indiana                                          Attorney General of Indiana
                                                           Ian McLean
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
     COURT OF APPEALS OF INDIANA
Jeremy Darringer,                                          November 13, 2015
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           32A01-1503-CR-86
        v.                                                 Appeal from the Hendricks
                                                           Superior Court
State of Indiana,                                          The Honorable Stephenie LeMay-
Appellee-Plaintiff.                                        Luken, Judge
                                                           Trial Court Cause No.
                                                           32D05-1406-CM-574




Brown, Judge.




Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015                Page 1 of 24
[1]   Jeremy Darringer appeals his conviction for operating while intoxicated.

      Darringer raises one issue which we revise and restate as whether the trial court

      abused its discretion in admitting certain evidence. We reverse.


                                       Facts and Procedural History

[2]   At approximately 3:10 a.m. on June 27, 2014, Hendricks County Sheriff’s

      Deputy Nathan Hibschman was sitting in his vehicle in a church parking lot

      observing traffic. Deputy Hibschman saw a vehicle drive east on 100 North, did

      not see a license plate, and began following the vehicle. He followed the vehicle

      for approximately one mile at a distance of about forty feet. While following

      the vehicle, Deputy Hibschman did not witness any traffic infractions

      and initiated his emergency equipment to stop the vehicle because he believed it

      did not have a license plate. After turning on his emergency lights which further

      illuminated the scene, Deputy Hibschman was unable to see a license

      plate on the vehicle. The vehicle then pulled over.


[3]   As he was stopping and about twelve to fifteen feet behind the vehicle, he

      activated his spotlight, swung it across the vehicle, and saw a paper plate taped

      in the rear window. He was able to read the letters and numbers on the paper

      plate after he exited his vehicle and took a couple of steps forward. He then

      called in the plate as he was approaching the vehicle, observed three occupants

      inside, and approached the driver’s side. Darringer, the driver, rolled down the

      window, and Deputy Hibschman detected the odor of alcohol coming from the

      vehicle. Deputy Hibschman said: “Good morning.” State’s Exhibit 5 at 1:22.

      Darringer asked Deputy Hibschman how he was doing. Id. at 1:24. Deputy
      Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 2 of 24
      Hibschman then introduced himself and asked Darringer for his license and

      registration but then stated that Darringer may not have a registration because

      he had a temporary plate. Id. at 1:24-1:35. Darringer explained that the car

      was brand new. Id. at 1:30-1:33.


[4]   When Deputy Hibschman was speaking with Darringer through the driver’s

      window, he observed that Darringer had glassy eyes and slurred speech and

      asked him to step out of the vehicle. Deputy Hibschman still smelled the odor

      of alcohol after Darringer exited the vehicle. He then patted down Darringer

      and asked him how much he had to drink, and Darringer said: “Nothing.” Id.

      at 2:41. Deputy Hibschman told Darringer that he thought he smelled alcohol

      on his breath, and Darringer again stated that he did not have anything to

      drink.


[5]   Deputy Hibschman then spoke with the passengers and said that he smelled

      alcohol in the vehicle. He returned to Darringer and stated:

               The reason I pulled you over is at first I thought you didn’t have
               a license plate because there’s nothing down here. It wasn’t until
               I got you stopped that I saw the temporary plate in the window
               there. So, just for your information and I know you’re coming
               up well you’ve got a couple of weeks left to go on it, but it’s
               actually illegal to have the temporary plate mounted in the
               window up there. . . . Even though it is a temporary plate, it does
               need to be mounted down here where the plates usually go.


      Id. at 4:47-5:14.




      Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 3 of 24
[6]   Deputy Hibschman then administered field sobriety tests and still detected the

      odor of an alcoholic beverage. Darringer failed the horizontal gaze nystagmus

      test and the walk and turn test. Deputy Hibschman transported Darringer to

      the Sheriff’s Department to perform a breath test. Darringer blew into the

      Datamaster machine and registered .12 grams of alcohol per 210 liters of

      breath.


[7]   That same day, the State charged Darringer with Count I, operating a vehicle

      while intoxicated as a class A misdemeanor, and Count II, operating a vehicle

      with an alcohol concentration equivalent to at least 0.08 grams of alcohol

      content as a class C misdemeanor.


[8]   On February 17, 2015, Darringer filed a motion to suppress. At the hearing,

      Deputy Hibschman testified that the license plate is “supposed to be mounted

      down where plates are intended to be mounted.” Transcript at 10. The court

      watched the video recording from Deputy Hibschman’s vehicle until the point

      in time that he exited his vehicle and approached Darringer’s vehicle.


[9]   Defense counsel argued there were no grounds for the initial stop because the

      placement of the plate in the window was proper under Ind. Code § 9-32-6-11.

      He also argued: “I think it’s clear from the video that you can see there’s

      something in the corner. The Deputy wasn’t even looking at that because at the

      time he was under the impression, incorrectly, that this plate had to be on the

      bumper.” Id. at 57-58. The prosecutor conceded that it was no longer the case

      that an individual could not display a temporary license plate in the back


      Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 4 of 24
       window and that Deputy Hibschman was mistaken in his belief that the plate

       needed to be on the bumper, but argued that the license plate was not visible at

       all as required by the statute.


[10]   The court denied Darringer’s motion and stated:

               With regards to the stop and detention and the arrest overall, I’m
               denying the Motion to Suppress and Motion in Limine based on
               the fact that the officer stated and I watched this video, the officer
               did not call in the numbers on the temporary tag or paper plate or
               interim license plate, whatever you want to call it, until he was
               already approaching the vehicle. The statute says it must be
               clearly visible. . . . Well, in the majority of the parts of Hendricks
               County, it may be clearly visible at noon, but in Hendricks
               County and frankly across the State of Indiana, it doesn’t mean
               it’s going to be clearly visible at midnight and that is, it’s
               supposed to be clearly visible. And so, therefore, there is no
               other choice that a police officer has, if you’re trying to find a
               license plate, police officers are used to through [sic], on the
               whole back of the vehicle. There’s no testimony that he only
               looked at the license plate when looking at this vehicle, he would
               have had to look on more than the license plate area, which is the
               bumper that has the lights in order to identify the make and
               model. If he was only was [sic] looking at the license plate
               bumper in the middle of the bumper where a license plate is
               normally attached, a metal license plate or interim license plate,
               he would not know anything else about the vehicle. So,
               therefore, I find that the stop was appropriate because the plate
               was not clearly visible even though it was in the proper place in
               the back of the window.


       Id. at 71-72. On February 19, 2015, Darringer filed a motion to reconsider the

       court’s order denying his motion to suppress, and the court denied the motion.


       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 5 of 24
[11]   On February 24, 2015, a jury trial was held. During Deputy Hibschman’s

       testimony, defense counsel stated: “[W]e would just make an objection to the

       traffic stop based on the testimony today.” Id. at 173. Defense counsel asked

       the court to incorporate the hearing, arguments and brief, and objected “based

       on the lack of a traffic infraction that it’s a violation of the Fourth Amendment

       to the U.S. Constitution and obviously Article One, Section Eleven of the

       Indiana Constitution.” Id. The court overruled the objection and “ke[pt] [its]

       order denying the Motion to Suppress in effect.” Id. at 173-174. During direct

       examination, Deputy Hibschman testified that he initially observed that the

       vehicle did not appear to have any license plate, that when he said the vehicle

       did not have a license plate he was referring to the bumper, that he did not see a

       license plate anywhere on Darringer’s car, that he did not look in the rear

       window, that he did not look anywhere else other than the bumper, and that he

       first saw the license plate after he had initiated the traffic stop and activated his

       spotlight. Deputy Hibschman testified that his statements to Darringer that a

       temporary plate had to be mounted on the bumper where plates usually are

       placed was in fact incorrect but that he believed it at the time.


[12]   The court admitted the BAC DataMasters Evidence Ticket indicating a result of

       .12 and Deputy Hibschman’s testimony that the .12 was based on grams of

       alcohol per 210 liters of breath. On cross-examination, Deputy Hibschman

       testified that after July 1, 2013, people were legally allowed to drive a vehicle

       with a paper plate in the left rear window. Sheila Arnold, a forensic

       toxicologist employed by the Indiana State Department of Toxicology, testified


       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015    Page 6 of 24
       that her opinion was that Darringer was intoxicated and impaired on June 27,

       2014.


[13]   After the prosecutor rested, defense counsel moved for a directed verdict on

       Count I, operating a vehicle while intoxicated. The court denied the motion.

       The jury found Darringer guilty as charged. The court entered judgment of

       conviction on Count I, operating a vehicle while intoxicated as a class A

       misdemeanor, and sentenced Darringer to 180 days in the Hendricks County

       Jail with 178 days suspended to probation.


                                                     Discussion

[14]   The issue is whether the court abused its discretion by admitting the evidence

       obtained after the traffic stop. Darringer contends that the State failed to prove

       that the stop was based upon reasonable suspicion that Darringer committed a

       traffic violation or that Deputy Hibschman made an objectively reasonable

       mistake of fact or law justifying the stop of Darringer’s car. He argues that his

       interim license plate was properly displayed under the version of Ind. Code § 9-

       32-6-11 in effect at the time of the stop, which permitted an interim plate to be

       displayed in the rear window. He notes that there is no dispute that Deputy

       Hibschman was unaware that Indiana law had changed to allow for the interim

       plate to be displayed in the rear window of a vehicle for almost a year before the

       stop, and contends that Deputy Hibschman’s mistake of law cannot be said to

       be objectively reasonable because it was not premised upon a reasonable

       interpretation of an existing statute. Darringer also argues that while Deputy

       Hibschman testified at one point that he did not see the license plate on the
       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 7 of 24
       vehicle, he was fixated on the bumper and did not look in the rear window, and

       that while it is possible that he may not have been able to see the interim plate

       without shining his spotlight onto the rear window, there is nothing in the

       record to support why he could not have done so without initiating a traffic

       stop.


[15]   The State argues that Deputy Hibschman repeatedly testified that he did not see

       a plate on Darringer’s vehicle and only saw the plate after he had already exited

       his vehicle and that the video recording does not contradict his testimony. The

       State asserts that the facts were sufficient to justify a reasonable officer’s decision

       to stop Darringer’s vehicle and that Darringer is asking this court to reweigh

       the evidence. The State also contends that the record does not support

       Darringer’s inference that Deputy Hibschman was fixated on the bumper to the

       point of disregarding any other fact, and that there is evidence supporting the

       trial court’s decision that his on-the-spot evaluation would reasonably suggest

       that Darringer’s plate was not clearly visible as required by statute. The State

       asserts that it is unnecessary for this court to apply Heien v. North Carolina, 135

       S. Ct. 530 (2014), cited by Darringer, which discussed an officer’s mistake of

       law, because a plate must be clearly visible under Indiana statutory law.


[16]   We review the trial court’s ruling on the admission or exclusion of evidence for

       an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g

       denied. We reverse 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),

       reh’g denied. Even if the trial court’s decision was an abuse of discretion, we will

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015    Page 8 of 24
       not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d

       957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied. Also, we may affirm a

       trial court’s decision to admit evidence seized as a result of a search based on

       any legal theory supported by the record. Edwards v. State, 724 N.E.2d 616,

       620-621 (Ind. Ct. App. 2000), trans. denied. We review de novo a ruling on the

       constitutionality of a search or seizure, but we give deference to a trial court’s

       determination of the facts, which will not be overturned unless clearly

       erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008); see also Carpenter v.

       State, 18 N.E.3d 998, 1001 (Ind. 2014) (holding that the ultimate determination

       of the constitutionality of a search or seizure is a question of law that we

       consider de novo).


[17]   In ruling on admissibility following the denial of a motion to suppress, the trial

       court considers the foundational evidence presented at trial. Carpenter, 18

       N.E.3d at 1001. If the foundational evidence at trial is not the same as that

       presented at the suppression hearing, the trial court must make its decision

       based upon trial evidence and may consider hearing evidence only if it does not

       conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).

       It also considers the evidence from the suppression hearing that is favorable to

       the defendant only to the extent it is uncontradicted at trial. Carpenter, 18

       N.E.3d at 1001.

[18]   The Fourth Amendment to the United States Constitution provides:

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 9 of 24
               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.


[19]   A law enforcement officer must have reasonable suspicion of criminal conduct

       in order to justify a traffic stop, which is a “seizure” for purposes of the Fourth

       Amendment. Clarke v. State, 868 N.E.2d 1114, 1118 (Ind. 2007) (citing Terry v.

       Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). When determining whether an officer

       had reasonable suspicion for a Terry stop, we consider whether the totality of

       the circumstances presented a particularized and objective basis for the officer’s

       belief that the subject was engaged in criminal activity. State v. Keck, 4 N.E.3d

       1180, 1184 (Ind. 2014). In assessing the whole picture, we must examine the

       facts as known to the officer at the moment of the stop. Clark v. State, 994

       N.E.2d 252, 264 (Ind. 2013). We review findings of reasonable suspicion de

       novo. Id. This is necessarily a fact-sensitive inquiry. Id.


[20]   We will briefly discuss the law prior to the adoption of Ind. Code § 9-32-6-11 in

       2013. In Merritt v. State, 829 N.E.2d 472, 473-476 (Ind. 2005), the Indiana

       Supreme Court considered whether placing a license plate in a vehicle’s rear

       window contravened Indiana’s statutes then governing the proper display and

       illumination of plates. The Court examined Ind. Code § 9-18-2-26(b), which at

       the relevant time provided:

               A license plate shall be securely fastened, in a horizontal
               position, to the vehicle for which the plate is issued:



       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 10 of 24
                     (1) To prevent the license plate from swinging;

                     (2) At a height of at least twelve (12) inches from the
                     ground, measuring from the bottom of the license plate;

                     (3) In a place and position that are clearly visible;

                     (4) Maintained free from foreign materials and in a
                     condition to be clearly legible; and

                     (5) Not obstructed or obscured by tires, bumpers,
                     accessories, or other opaque objects.

829 N.E.2d at 474. The Court also examined Ind. Code § 9-19-6-4(e), which

required illumination of license plates.1 Id. The Court found these provisions

interacted to “require that the license plate be displayed upon the rear of the

vehicle, securely fastened, in a horizontal position, and also be illuminated at

night by a separate white light so as to be clearly legible from fifty feet.” Id. at

476. The Court concluded that because “the defendant’s license plate inserted

inside the back window of his automobile was not displayed appropriately, . . .

the officer’s stop was proper, and . . . the trial court did not err in admitting

evidence resulting from the stop.” Id. at 475.




1
    At the time of the offense in Merritt and the present offense, Ind. Code § 9-19-6-4(e) provided:


            Either a tail lamp or a separate lamp must be placed and constructed so as to illuminate the
            rear registration plate with a white light and make the plate clearly legible from a distance of
            fifty (50) feet to the rear. A tail lamp or tail lamps, together with a separate lamp for
            illuminating the rear registration plate, must be wired so as to be lighted whenever the head
            lamps or auxiliary driving lamps are lighted.

Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015                              Page 11 of 24
[21]   In Meredith v. State, 906 N.E.2d 867, 871 (Ind. 2009), the Indiana Supreme

       Court discussed the display and illumination of plates before a vehicle is

       permanently registered. The Court held that the statute for interim license

       plates, Ind. Code § 9-18-26-10,2 failed to alter or amend the required placement

       and display of license plates set forth in Ind. Code §§ 9-18-2-26 and 9-19-6-4(e).

       906 N.E.2d at 872. The Court observed that Ind. Code § 9-18-2-26 governed

       the display of “license plates” without discriminating between interim and

       regular plates. Id. The Court also observed that Ind. Code § 9-19-6-4(e)

       required that all “registration plate[s]” be illuminated so as to be visible from a

       distance of fifty feet. Id. The Court held:


                  As explained in Merritt, these provisions “require that the license
                  plate be displayed upon the rear of the vehicle, securely fastened,
                  in a horizontal position, and also be illuminated at night by a



       2
           At the time of the alleged offense in Meredith, Ind. Code § 9-18-26-10 provided:

                  (a) The bureau may issue an interim license plate to a dealer or manufacturer who is
                  licensed and has been issued a license plate under section 1 [IC 9-18-26-1] of this chapter.
                  (b) The bureau shall prescribe the form of an interim license plate issued under this section.
                  However, a plate must bear the assigned registration number and provide sufficient space
                  for the expiration date as provided in subsection (c).
                  (c) Whenever a dealer or manufacturer sells a motor vehicle, the dealer or manufacturer
                  may provide the buyer with an interim license plate. The dealer shall, in the manner
                  provided by the secretary of state, affix on the plate in numerals and letters at least three (3)
                  inches high the date on which the interim license plate expires.
                  (d) An interim license plate authorizes a motor vehicle owner to operate the vehicle for a
                  maximum period of thirty-one (31) days after the date of delivery of the vehicle to the
                  vehicle’s owner or until a regular license plate is issued, whichever occurs first.
                  (e) A motor vehicle that is required by law to display license plates on the front and rear of
                  the vehicle is only required to display a single interim plate.
       (Repealed by Pub. L. No. 92-2013, § 46 (eff. July 1, 2013)).



       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015                               Page 12 of 24
               separate white light so as to be clearly legible from fifty feet.”
               829 N.E.2d at 476. Placing “a license plate on the inside of the
               back window clearly does not satisfy the requirement that license
               plates be displayed ‘upon the rear of the vehicle.’” Id. at 475.
               Likewise, the defendant’s license plate was not illuminated by a
               separate white light so that it was clearly legible from fifty feet.
               Officer Lackey was therefore justified in stopping the defendant.


       Id. The Court concluded:


               [A]s neither the statutes nor regulations differentiate between the
               display requirements for a permanent and interim plate, the
               interim plate must be mounted in the same fashion as the
               permanent plate. Any other method of display may give rise to
               reasonable suspicion for law enforcement officers to initiate a
               traffic stop to ascertain whether the display complies with all
               statutory requirements.


               As to this defendant, Officer Lackey had, by virtue of the interim
               plate being both unilluminated and placed incorrectly, reasonable
               suspicion to pull over the defendant’s vehicle for a traffic stop.
               Thus, the initial stop due to the suspected license plate display
               violation was proper and the trial court did not err in refusing to
               suppress the resulting evidence on this basis.


       Id. at 873.


[22]   Effective July 1, 2013, the legislature amended Ind. Code § 9-18-2-26 to provide

       that “(a) License plates, including temporary license plates, shall be displayed as

       follows . . . (3) For every other vehicle, upon the rear of the vehicle” and “(c)

       [a]n interim license plate must be displayed in the manner required by IC 9-32-




       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015    Page 13 of 24
       6-11(f).” The legislature also added Ind. Code § 9-32-6-11, titled “Interim

       plates,” effective July 1, 2013, and subsection (f) provided in part:

                An interim license plate[3] shall be displayed: (1) in the same
                manner required in IC 9-18-2-26; or (2) in a location on the left side
                of a window facing the rear of the motor vehicle that is clearly visible and
                unobstructed. The plate must be affixed to the window of the motor
                vehicle.


       (Emphasis added).


[23]   Upon the adoption of Ind. Code § 9-32-6-11, the legislature altered the required

       placement and display of interim plates set forth in Ind. Code §§ 9-18-2-26 and

       9-19-6-4(e). The State does not dispute on appeal that Darringer’s plate was an

       interim plate. For almost one year prior to the stop in this case, the statute as

       amended allowed for an interim license plate to be displayed on the left side of

       the rear window of Darringer’s vehicle. Accordingly, we conclude that Deputy

       Hibschman stopped Darringer’s vehicle based upon an unreasonable mistake of

       law.


[24]   In Heien v. North Carolina, 135 S. Ct. 530, 534 (2014), the United States Supreme

       Court addressed whether a police officer’s mistake of law can give rise to the

       reasonable suspicion necessary to uphold a seizure under the Fourth




       3
         Ind. Code § 9-32-6-11(c) provides that “[w]henever a dealer or manufacturer sells or leases a motor vehicle,
       the dealer or manufacturer may provide the buyer or lessee with an interim license plate.” Ind. Code § 9-32-
       6-11(d) provides that “[a]n interim license plate authorizes a motor vehicle owner or lessor to operate the
       vehicle for a maximum period of thirty-one (31) days after the date of sale or lease of the vehicle to the
       vehicle’s owner or lessor or until a regular license plate is issued, whichever occurs first.”

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015                        Page 14 of 24
         Amendment. In that case, a police officer initiated a traffic stop after observing

         only the left brake light illuminate when a vehicle braked. 135 S. Ct. at 534.

         Nicholas Brady Heien, a passenger of the stopped vehicle, consented to a

         search, and police discovered cocaine. Id. The State charged Heien with

         attempted trafficking of cocaine. Id. at 535. Heien moved to suppress the

         evidence seized from the car, contending that the stop and search had violated

         the Fourth Amendment of the United States Constitution. Id. The trial court

         denied the suppression motion. Id. Heien pled guilty but reserved the right to

         appeal the suppression decision. Id.


[25]     The relevant provision of the vehicle code in Heien 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. at 535 (quoting N.C. Gen. Stat. Ann. § 20-129(g) (2007)). The North

         Carolina Court of Appeals reversed and held that the initial stop was not valid

         because driving with only one working brake light was not actually a violation

         of North Carolina law. Id. (citing 214 N.C. App. 515, 714 S.E.2d 827 (2011)).


[26]   The State of North Carolina appealed, and the North Carolina Supreme Court

         reversed. Id. (citing 366 N.C. 271, 737 S.E.2d 351). Noting that the State had

         chosen not to seek review of the Court of Appeals’ interpretation of the vehicle

         code, the North Carolina Supreme Court assumed for purposes of its decision
         Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 15 of 24
       that the faulty brake light was not a violation. Id. The court concluded that, for

       several reasons, the police officer could have reasonably, even if mistakenly,

       read the vehicle code to require that both brake lights be in good working order.

       Id. The North Carolina Supreme Court noted that a nearby code provision

       required that all originally equipped rear lamps be functional. Id. (citing 366

       N.C. at 282-283, 737 S.E.2d at 358-359).

[27]   The United States Supreme Court observed that the ultimate touchstone of the

       Fourth Amendment is reasonableness. Id. at 536. “To be reasonable is not to

       be perfect, and so the Fourth Amendment allows for some mistakes on the part

       of government officials, giving them ‘fair leeway for enforcing the law in the

       community’s protection.’” Id. (quoting Brinegar v. United States, 338 U.S. 160,

       176, 69 S. Ct. 1302 (1949)). The Court observed that searches and seizures

       based on mistakes of fact can be reasonable and held:

               But reasonable men make mistakes of law, too, and such
               mistakes are no less compatible with the concept of reasonable
               suspicion. Reasonable suspicion arises from the combination of
               an officer’s understanding of the facts and his understanding of
               the relevant law. The officer may be reasonably mistaken on
               either ground. Whether the facts turn out to be not what was
               thought, or the law turns out to be not what was thought, the
               result is the same: the facts are outside the scope of the law.
               There is no reason, under the text of the Fourth Amendment or
               our precedents, why this same result should be acceptable when
               reached by way of a reasonable mistake of fact, but not when
               reached by way of a similarly reasonable mistake of law.


       Id. The Court also held:


       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 16 of 24
        Heien also contends that the reasons the Fourth Amendment
        allows some errors of fact do not extend to errors of law. Officers
        in the field must make factual assessments on the fly, Heien notes,
        and so deserve a margin of error. In Heien’s view, no such
        margin is appropriate for questions of law: The statute here either
        requires one working brake light or two, and the answer does not
        turn on anything “an officer might suddenly confront in the
        field.” Brief for Petitioner 21. But Heien’s point does not
        consider the reality that an officer may “suddenly confront” a
        situation in the field as to which the application of a statute is
        unclear—however clear it may later become. A law prohibiting
        “vehicles” in the park either covers Segways or not, see A. Scalia
        & B. Garner, Reading Law: The Interpretation of Legal Texts 36-
        38 (2012), but an officer will nevertheless have to make a quick
        decision on the law the first time one whizzes by.


        Contrary to the suggestion of Heien and amici, our decision does
        not discourage officers from learning the law. The Fourth
        Amendment tolerates only reasonable mistakes, and those
        mistakes—whether of fact or of law—must be objectively
        reasonable. We do not examine the subjective understanding of
        the particular officer involved. Cf. Whren v. United States, 517
        U.S. 806, 813, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996). And the
        inquiry is not as forgiving as the one employed in the distinct
        context of deciding whether an officer is entitled to qualified
        immunity for a constitutional or statutory violation. Thus, an
        officer can gain no Fourth Amendment advantage through a
        sloppy study of the laws he is duty-bound to enforce.


Id. at 539-540. In applying the test of whether the mistake of law was

reasonable to the facts, the Court stated:

        Here we have 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

Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 17 of 24
               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.


[28]   The facts in Heien are clearly distinguishable from those present here. As noted,

       the legislature added Ind. Code § 9-32-6-11, titled “Interim plates,” which

       allowed an interim plate to be placed “in a location on the left side of a window

       facing the rear of the motor vehicle that is clearly visible and unobstructed” so

       that for almost one year prior to the stop, an interim license plate could be

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 18 of 24
       displayed on the left side of a window facing the rear of the motor vehicle.

       Unlike in Heien, which dealt with a statute referring to “a stop lamp” suggesting

       the need for only a single working brake light, another portion of the statute

       referring to “other rear lamps,” and yet another subsection requiring that

       vehicles “have all originally equipped rear lamps or the equivalent in good

       working order,” Ind. Code § 9-32-6-11(f) explicitly allows an interim plate to be

       displayed “in a location on the left side of a window facing the rear of the motor

       vehicle that is clearly visible and unobstructed” and that “[t]he plate must be

       affixed to the window of the motor vehicle.” The evidence was that the plate

       was an interim plate,4 the prosecutor conceded that the relevant statute was Ind.

       Code § 9-32-6-11, and the State does not contend on appeal that the plate in

       Darringer’s window was any type other than an interim plate. Under the

       circumstances, we cannot say that the reason for stopping the vehicle based

       upon the failure to mount the interim plate on the bumper was a reasonable

       mistake of law.


[29]   To the extent that the State asserts that the stop was proper because the plate

       was not clearly visible, we acknowledge that “if a police officer makes a

       temporary detention on one basis, later determined to be insufficient, the stop

       may be upheld on another basis shown by the facts known to the officer.”

       WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH



       4
         Deputy Hibschman testified at trial that Darringer would not have a registration based upon his plate. This
       testimony indicates that Darringer had an interim plate, which is one that is provided by a dealer to a
       purchaser or lessee of a vehicle. See Ind. Code § 9-32-6-11(c) and (d).


       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015                       Page 19 of 24
       AMENDMENT 157 n.30 (5th ed. 2012). However, the critical component is

       whether the facts supplying a separate basis were known to the officer. See Clark,

       994 N.E.2d at 264 (“In assessing the whole picture, we must examine the facts

       as known to the officer at the moment of the stop.”); Campos, 885 N.E.2d at 597

       (“Reasonable suspicion exists where the facts known to the officer, together

       with the reasonable inferences arising from such facts, would cause an

       ordinarily prudent person to believe that criminal activity has or is about to

       occur.” (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999))).


[30]   The record reveals that Deputy Hibschman specifically testified that he did not

       look in the rear window or anywhere else on the vehicle other than the bumper.

       Specifically, the following exchange occurred during the direct examination of

       Deputy Hibschman:


               Q And what attracted your attention to [the vehicle]?

               A When the vehicle passed I initially observed that the vehicle
               did not appear to have any license plate.

               Q Did this peak your interest at all?

               A It did.

               Q Why?

               A Because vehicles are required to have a registration.

               Q By registration, do you mean license plate?

               A Yes, I do.

               Q Now, when you say that the vehicle didn’t have a license
               plate, are you referring to the bumper?

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 20 of 24
        A Yes.

        Q Was there a license plate anywhere else in that vehicle?

        A I later found out that there was.

        Q Well, let’s say when you’re in the Lutheran Church parking
        lot, you saw the car, did you see a license plate on Mr.
        Darringer’s car?

        A I could not.

        Q Anywhere?

        A No.

        Q Not in the windshield?

        A No.

        Q Not on the side?

        A No.

        Q So what did you do?

        A Uh, at that point, I pulled out from the parking lot and begin
        following the vehicle? [sic]

        Q And how long did you follow the vehicle?

        A Approximately one (1) mile.

        Q About what distance do you follow Mr. Darringer’s vehicle?

        A Since, I didn’t see a plate, there was no need to get close
        enough to try and get the license plate numbers, so I hung back
        approximately three (3) to four (4) car lengths I would estimate it
        at probably forty (40) feet or more.



Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 21 of 24
               Q During this mile that you followed Mr. Darringer’s vehicle,
               did you ever see a license plate?

               A I did not.

               Q Did you look on the bumper?

               A I did.

               Q Did you look in the rear window?

               A I didn’t.

               Q You did not?

               A I didn’t.

               Q Did you look anywhere else other than the bumper?

               A I did not.

               Q And so, you mentioned you did see a license plate at some
               point. When was the first point you saw the license plate?

               A Just after we had crossed over Ronald Reagan Parkway, we
               were just east of Ronald Reagan Parkway when I had initiated
               the traffic stop, um, when I had activated my spot light and
               shone it up on the vehicle, I did catch the, uh, white temporary
               plate that was taped in the rear window.

       Transcript at 166-168.


[31]   While Deputy Hibschman testified that he did not see a plate on the vehicle, he

       also repeatedly stated that he did not look in the rear window and did not look

       anywhere else other than the bumper. Accordingly, we cannot say that the

       facts known to Deputy Hibschman would have otherwise provided a basis for

       the stop based upon the idea that the interim plate in the rear window was not

       clearly visible, where Deputy Hibschman specifically testified that he did not
       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 22 of 24
       look in the rear window. Under the circumstances, we conclude that the trial

       court abused its discretion when it admitted evidence obtained pursuant to an

       illegal traffic stop. Accordingly, we reverse Darringer’s conviction for operating

       while intoxicated as a class A misdemeanor.5 See Kroft v. State, 992 N.E.2d 818,

       822 (Ind. Ct. App. 2013) (observing that an officer testified that he pulled over

       the defendant simply because there was white light coming out of a tiny hole

       and that he did not testify that he had trouble spotting the defendant’s vehicle

       from behind, holding that the officer did not have reasonable suspicion to stop

       the defendant pursuant to Ind. Code § 9-21-7-1 which required that a vehicle be

       in good working order and not endanger others, and reversing the trial court’s

       denial of the defendant’s motion to suppress); Killebrew v. State, 976 N.E.2d 775,

       783 (Ind. Ct. App. 2012) (concluding that the trial court abused its discretion

       when it admitted evidence obtained pursuant to an illegal traffic stop and

       reversing the defendant’s conviction for possession of marijuana as a class A

       misdemeanor), reh’g denied, trans. denied.


                                                       Conclusion

[32]   For the foregoing reasons, we reverse Darringer’s conviction for operating a

       vehicle while intoxicated as a class A misdemeanor.




       5
        Because we reverse Darringer’s conviction on the basis that he was subjected to an unreasonable search
       under the Fourth Amendment, we do not reach Darringer’s claim that the seizure was unreasonable under
       Article 1, Section 11 of the Indiana Constitution. See Reinhart v. State, 930 N.E.2d 42, 45 n.1 (Ind. Ct. App.
       2010).


       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015                         Page 23 of 24
[33]   Reversed.


       Altice, J., concurs.

       Riley, J., concurs in result without opinion.




       Court of Appeals of Indiana | Opinion 32A01-1503-CR-86 | November 13, 2015   Page 24 of 24
