FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JEFFREY ELFTMAN                              GREGORY F. ZOELLER
Kokomo, Indiana                              Attorney General of Indiana

                                             KARL M. SCHARNBERG
                                             Deputy Attorney General
                                             Indianapolis, Indiana
                                                                           FILED
                                                                       Sep 12 2012, 9:55 am

                            IN THE
                                                                              CLERK
                  COURT OF APPEALS OF INDIANA                               of the supreme court,
                                                                            court of appeals and
                                                                                   tax court




DEZMON GAINES,                               )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )    No. 34A05-1201-CR-21
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE HOWARD SUPERIOR COURT
                      The Honorable William C. Menges, Judge
                          Cause No. 34D01-1107-FD-570


                                 September 12, 2012

                            OPINION - FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Dezmon Gaines (Gaines), appeals the trial court’s denial of

his motion to suppress the evidence.

       We affirm.

                                          ISSUES

       Gaines raises two issues on interlocutory appeal, which we restate as:

       (1) Whether Indiana Code section 9-19-19-4, which prescribes the requirements

          for a vehicle’s tinted windows, is void for vagueness; and

       (2) Whether Gaines’ search was reasonable.

                        FACTS AND PROCEDURAL HISTORY

       On July 7, 2011, Sergeant Tonda Cockrell with the Kokomo Police Department

(Officer Cockrell) was attempting to locate a missing woman in the area of 1800 North

Purdum in Kokomo, Indiana. During her search, Officer Cockrell received information

that the woman might be associated with Jeremy Wilson (Wilson), who drove a black

Cadillac or a tan Buick. While driving in the area of where Wilson was known to live,

Officer Cockrell noticed a black Cadillac with tinted windows. Because she was driving

an unmarked police vehicle and was not in uniform, she called for a marked unit to

conduct a traffic stop of the Cadillac for having illegally tinted windows.

       Kokomo Police Officers Bruce Rood (Officer Rood) and Thomas Mygrant

(Officer Mygrant) responded to her call. The Officers stopped the vehicle in the Elks

Lodge parking lot. As Officer Rood approached the window he could see people inside



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the car but could not tell how many people there were “until the window was rolled

down.” (Transcript p. 25). After the window was down, Officer Cockrell noticed Gaines

on the back seat. He had something in his mouth that he was chewing. Officers Rood

and Cockrell both went to the car’s passenger side where Officer Rood ordered Gaines

out of the vehicle. A strong odor of marijuana emanated from the vehicle.

       Officer Rood placed Gaines in handcuffs. He briefly searched Gaines for weapons

and detected what he believed to be a baggie containing marijuana in Gaines’ front

pocket. Officer Rood did not take the baggie out of the pants’ pocket; instead, he placed

his tazer in the small of Gaines’ back and ordered him to spit out the object in his mouth

or he would be tazed. Gaines complied with the order and he spit out a baggie containing

a substance that resembled rock cocaine.

       On July 8, 2011, the State filed an Information charging Gaines with Count I,

possession of cocaine, a Class D felony, Ind. Code § 35-48-4-6(a); Count II, dealing in

marijuana, a Class D felony, I.C. §§ 35-48-4-10(a)(2); -(b)(1)(B); and Count III,

possession of marijuana, a Class D felony, I.C. § 35-48-4-11(1). On November 1, 2011,

Gaines filed a motion to suppress the evidence resulting from an invalid traffic stop and

an illegal search. On December 16, 2011, the trial court conducted a hearing on Gaines’

motion, at the conclusion of which the trial court denied the motion to suppress evidence.

On December 27, 2011, Gaines requested certification to pursue an interlocutory appeal,

which the trial court granted on the same day. On February 24, 2012, we accepted the

interlocutory appeal.

       Additional facts will be provided as necessary.


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                            DISCUSSION AND DECISION

                                  I. Standard of Review

      When reviewing a ruling on a motion to suppress, we consider the evidence most

favorable to the ruling and any uncontradicted evidence to the contrary to determine

whether there is sufficient evidence to support the ruling. Williams v. State, 754 N.E.2d

584, 587 (Ind. Ct. App. 2001), trans. denied. Where the evidence is conflicting, we

consider only the evidence favorable to the ruling. Id. We will affirm if the decision is

supported by substantial evidence of probative value. Id.

                                     II. Traffic Stop

      First, Gaines contends that the trial court abused its discretion when it declared the

Officers’ traffic stop to be legal because of the vehicle’s illegally tinted windows. An

officer may stop a vehicle when he observes minor traffic violations. Williams, 754

N.E.2d at 587. Indiana Code section 9-19-19-4(c) provides in pertinent part:

      A person may not drive a motor vehicle that has a:
      (1) windshield;
      (2) side wing;
      (3) side window that is part of a front door; or
      (4) rear back window

      that is covered by or treated with sunscreening material or is tinted to the
      extent or manufactured in a way that the occupants of the vehicle cannot be
      easily identified or recognized through that window from outside the
      vehicle. However, it is a defense if the sunscreening material applied to
      those windows has a total solar reflectance of visible light of not more than
      twenty-five percent (25%) as measured on the nonfilm side and light
      transmittance of at least thirty percent (30%) in the visible light range.

Focusing on the statutory requirement that the infraction is established when the vehicle’s

occupants “cannot be easily identified or recognized,” Gaines asserts that this


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qualification is void for vagueness because the statute “does not state if identification of

race, gender, and number of passengers is sufficient or if window tinting must be such

that every feature of every person can be seen.” (Appellant’s Br. p. 6).

       Upon a challenge that a statute is unconstitutional we presume the statute is

constitutional. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). The

burden is on the defendant to rebut this presumption and we resolve all reasonable doubts

in favor of the constitutionality of the statute. Id. A criminal statute may be void for

vagueness for either of two independent reasons:        (1) for failing to provide notice

enabling ordinary people to understand the conduct that it prohibits, and (2) for the

possibility that it authorizes or encourages arbitrary or discriminatory enforcement.

Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007). Where, as here, the defendant asserts

the second prong, the statute must include a line of demarcation between trivial and

substantial acts in order to avoid arbitrary or discriminatory enforcement of the statute.

Id. Assessment of a vagueness challenge is limited to the facts and circumstances of each

case. Id.

       Although we agree that the statute omits a definition of “identified” or

“recognized,” the statute does delineate a scientifically objective measurement for

compliance within its context. As such, the statute imposes firm boundaries on the

window tint, thereby precluding any arbitrariness or discriminatory enforcement by

police officers.

       Moreover, the statute as applied to the current situation did not invite “overly

broad discretion by police.” (Appellant’s App. p. 7). During the hearing on the motion


                                             5
to suppress, Officer Rood, who conducted the traffic stop, testified that upon approaching

the vehicle, he could not see through the windshield into the car. He stated that he could

“see people but [he] couldn’t see what was going on, the windows were tinted too much.”

(Tr. p. 25). Officer Rood clarified that he could not tell how many people were inside the

car until the window was rolled down. Although Officer Cockrell stated during the

hearing that she could see through the window and notice the “nervous state of the people

inside” as well as the race and gender of the driver, we are mindful that where the

evidence is conflicting, we only consider the evidence favorable to the ruling. (Tr. p. 17).

See Williams, 754 N.E.2d at 587. Therefore, based on Officer’s Rood testimony, we find

substantial evidence of probative value to affirm the trial court’s ruling.

                                         III. Search

       Next, Gaines alleges that the trial court erred when it found Officer Rood’s search

of Gaines to have been reasonable. Specifically, Gaines claims that Officer Rood’s threat

of using a tazer to induce Gaines to spit out what he was chewing after smelling an odor

of marijuana coming from the car was unreasonable.

       The Fourth Amendment to the United States Constitution protects citizens against

unreasonable searches and seizures of persons and property by requiring a warrant based

on probable cause. Moore v. State, 827 N.E.2d 631, 637 (Ind. Ct. App. 2005), reh’g

denied, trans. denied. Probable cause exists when an officer has knowledge of facts and

circumstances that would lead a reasonably prudent person to believe a crime has been

committed. Id. However, it is axiomatic that warrants, both search and arrest, are

required unless probable cause exists along with exigent circumstances rendering it


                                              6
impractical to seek a warrant. Id. Exigent circumstances may include danger to law

enforcement officers or the risk of loss or destruction of evidence. Id. Absent probable

cause, exigent circumstances alone are insufficient to justify a warrantless seizure. Id.

       Officers Rood and Cockrell testified that when they opened up the passenger door,

an odor of marijuana emanated from the vehicle. At the same time, all three Officers

noticed Gaines chewing on something in his mouth. Both Officers Rood and Cockrell

stated that they believed Gaines was attempting to swallow some type of narcotic or other

contraband. Based on these circumstances, we conclude that a reasonably prudent person

could believe that Gaines was attempting to destroy contraband. Therefore, probable

cause existed for Gaines’ warrantless search.

       Gaines now points to Conwell v. State 714 N.E.2d 764 (Ind. Ct. App. 1999) as

support for his argument that the means used by Officer Rood—i.e., the threat to use a

tazer—to compel Gaines to spit out the contraband were unreasonable. In Conwell,

Conwell, on probation at the time, was stopped for travelling at a high rate of speed in an

area known to be a “high narcotics area.” Id. at 766. Because of the officer’s experience

that individuals hide their narcotics “either in their mouth or in between the crack of their

buttocks,” the officer requested Conwell to open his mouth and to lift his tongue. Id.

Conwell did not comply but the officer observed that Conwell began to make a chewing

motion. Id. The officer testified that he neither saw Conwell place anything in his mouth

nor did he see Conwell chewing on an object. Id. Failing to get compliance, the officer

began to choke Conwell. Id. A struggle ensued which only ended after Conwell was

maced twice with CS spray. Id.


                                             7
       In analyzing the reasonableness of the means used to compel compliance, the

Conwell court adopted the three-part balancing test of Winston v. Lee, 470 U.S. 753, 761-

62, 105 S. Ct. 1611, 1617-18, 84 L.Ed.2d 662 (1985). The Winston test requires the

reasonableness of force used during a body search procedure to be measured against (1)

the extent to which the procedure used may threaten the safety or health of the individual,

(2) the extent of the intrusion upon the individual’s dignitary interests in personal privacy

and bodily integrity, and (3) the community’s interest in fairly and accurately

determining guilt or innocence. Id. Balancing these factors, the Conwell court focused

on the method of force, as it found a choke hold to be dangerous, with a risk of serious

injury to Conwell. Conwell, 714 N.E.2d at 768. As such, the court determined that the

use of the choke hold amounted to unreasonable force. Id. at 769.

       The Conwell court distinguished its situation from Foxall v. State, 298 N.E.2d 470

(Ind. Ct. App. 1973). In Foxall, officers inserted a plastic shoehorn in Foxall’s mouth to

facilitate the removal of the contents in his mouth after Foxall had bitten the fingers of

two of the officers. Id. at 477. The Foxall court determined the use of force to have been

reasonable as Foxall’s air flow had not been restricted. Id.

       Here, we cannot conclude that Officer Rood used unreasonable force by ordering

Gaines to spit out the contraband under threat of using a tazer. Unlike Conwell, Gaines

was not choked and he was not maced. Gaines was only told that he would be tazed if he

did not comply with the Officer’s order. No amount of physical force was used and there

was no risk to Gaines’ physical safety. There was no intrusion on Gaines’ bodily

integrity by uttering a threat. At no time was Gaines’ airflow restricted. Consequently,


                                             8
balancing the Winston factors, we cannot conclude that the issuance of a verbal threat

amounted to unreasonable force. We affirm the trial court.

                                    CONCLUSION

      Based on the foregoing, we conclude that Indiana Code section 9-19-19-4 is not

void for vagueness and the Officer’s search of Gaines was reasonable.

      Affirmed.

BAILEY, J. concurs

CRONE, J. concurs in result




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