FOR PUBLICATION
                                                           FILED
                                                         Jan 22 2013, 8:52 am


                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR                             GREGORY F. ZOELLER
Marion County Public Defender Agency          Attorney General of Indiana
Indianapolis, Indiana
                                              GEORGE P. SHERMAN
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

ERVING SANDERS,                               )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 49A02-1205-CR-361
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Jose Salinas, Judge
                           Cause No. 49G14-1101-FD-6488



                                   January 22, 2013


                             OPINION - FOR PUBLICATION


BROWN, Judge
       Erving Sanders appeals the trial court’s denial of his motion to suppress. Sanders

raises one issue, which we restate as whether the trial court erred in denying his motion to

suppress. We reverse.

                        FACTS / COURSE OF PROCEEDINGS

       At approximately 4:30 p.m. on January 28, 2011, Indianapolis Metropolitan Police

Officer Keith Minch noticed the tint of the rear window of Sanders’s vehicle, a blue

Chevy Suburban, and initiated a traffic stop. Officer Minch approached the driver’s side

door of Sanders’s vehicle, spoke to Sanders, and Sanders identified himself. Officer

Minch then noticed the smell of marijuana. After Officer Minch asked about the smell,

Sanders stated that he had “just smoked a joint.” Transcript at 7. Officer Minch had

Sanders exit the vehicle, conducted a search, discovered a substance which Sanders stated

was cocaine, and placed Sanders under arrest.

       On January 28, 2011, the State charged Sanders with possession of cocaine as a

class D felony. On May 4, 2011, Sanders filed a motion to suppress the evidence

obtained as a result of the traffic stop. The trial court held hearings on Sanders’s motion

to suppress on May 4, June 1, and November 16, 2011.

       Several photographs of the Chevy Suburban were admitted into evidence during

the May 4, 2011 hearing. The photographs admitted as State’s Exhibits 1, 2, and 3 were

taken by an evidence technician at approximately 5:30 p.m., about one hour after Officer

Minch first observed Sanders’s vehicle. State’s Exhibits 1 and 2 show that the Suburban

has side windows which are part of the front and rear doors and also side panel windows

which are located over the rear wheels and cargo area of the Suburban. The photographs


                                             2
reveal that the rear window and side panel windows of the cargo area of the vehicle were

tinted to some extent and that the front windshield and the side windows which were part

of the vehicle’s front and back doors were either not tinted or tinted to a lesser extent than

the side panel windows of the cargo area and the rear window. In the photograph

admitted as State’s Exhibit 3, which appears to have been taken from several feet directly

behind the vehicle without anyone inside, it is possible to see the outline of the front

window, the top of the steering wheel, and a portion of the windshield wiper blade.

Officer Minch testified that the photograph admitted as State’s Exhibit 3 reflects the view

that he had when he decided to stop Sanders.

       During his testimony on May 4, 2011, Officer Minch testified that he noticed

Sanders’s vehicle at about 4:30 p.m. and the weather was “kind of gloomy.” Id. at 6. He

testified that he noticed the window tint of Sanders’s vehicle and that “[i]t did not allow

[him] to clearly recognize or identify the occupant inside.” Id. When asked why he

believed that the window tinting was an infraction, Officer Minch testified “[b]ecause I

could not make out the occupant inside. The three tests that I use is if I can identify

approximate age, the ethnicity and the gender of the individual inside.” Id. at 7. When

asked the angle from which he first observed Sanders’s vehicle and determined that he

wished to pull Sanders over for the window tinting, Officer Minch testified that he

“would have been behind him.” Id. at 10. Officer Minch also indicated that he “could

tell that there was one occupant” in the vehicle. Id. at 12.

       On cross-examination, Officer Minch testified that he had been following

“[a]pproximately twenty or thirty feet” behind Sanders’s vehicle. Id. at 15. When asked


                                              3
how long he observed Sanders before he stopped him, Officer Minch indicated that he

“was behind him probably half a block.” Id. Officer Minch also reiterated that he was

able to see that there was an occupant in the Suburban and that the criteria he used to

identify a person included age, ethnicity and gender. When asked “[h]ow many people

can you determine the age, ethnicity and gender from behind their head,” Officer Minch

stated “[a] lot,” and when asked “[s]o you think that you could tell if a person was

twenty-one or fifty-two from the back of their head,” Officer Minch stated “Yes.” Id. at

17. When asked whether there was a significant amount of difference from the location

of the sun in the sky at 4:30 and 5:30 p.m., Officer Minch stated that he could not “testify

to that.” Id. at 24. Officer Minch further indicated that he did not attempt to look into the

Suburban through any of the vehicle’s side windows to identify the occupant inside.

       When asked if he agreed that the “tinting on the passenger window is not as tinted

as the back . . . based upon the photos of the vehicle and your personal observation,”

Officer Minch responded “[f]rom the angle, it is not possible to determine that,” and

when asked “is the tinting in the back windows, as reflected in the photographs, darker

than it is on the driver’s and the passenger side,” Officer Minch stated “I cannot

determine that from the photo.” Id. at 27. When asked “[y]ou have seen it, sir. You

were there. . . . Is it lighter or not lighter,” Officer Minch testified “I believe it to be

about the same.” Id. When asked “[a]re you saying that there are equal tinting on all

windows of that vehicle,” Officer Minch stated “I don’t know,” and when asked “[y]ou

don’t even have an opinion is that correct,” Officer Minch replied “I cannot determine

from that photo.” Id. at 28.


                                             4
       Sanders testified that he had purchased the 1991 Suburban from his cousin four

years earlier, that the rear window tint was on the vehicle when he bought it, and that his

cousin had purchased the vehicle from D&S Auto.

       In July 2011, Sanders filed a motion for an expert to view the automobile and the

court granted the motion. On November 16, 2011, Sanders presented the testimony of

Robert Rady who measured the window tint of the windows of the Suburban. Rady

testified that the vehicle’s front window and side windows which were part of the

vehicle’s doors were not tinted and were “clear glass.” Id. at 76. Rady testified that his

measurements showed that the light transmittance of the side panel windows of the cargo

area and the rear back window was thirty-eight percent. Rady also indicated that he had

an opportunity to visually look into the vehicle at about 4:30 p.m. on the previous day

and, when asked whether he was able to clearly see through the back window, responded

“[a]bsolutely.” Id. at 81. Further, Rady testified that he had been tinting windows for

twenty-four years, that he tinted windows for Butler Auto Group, Tom Wood Auto

Group and several dealerships in Indianapolis, that he was familiar with the tinting

regulations in Indiana, and that as a matter of course he tinted windows with a light

transmittance of thirty-five percent for the car dealerships, which is higher than the thirty

percent required by Indiana statute, in order that occupants of the vehicles could be

identified and so that the windows complied with Indiana law.

       On January 18, 2012, the court found that Sanders presented evidence showing

that the tint of the windows of his vehicle was not unlawful. The court noted that Ind.

Code § 9-19-19-4(c) provided that a window of a vehicle may not be tinted to the extent


                                             5
that the occupants of the vehicle could not be easily identified or recognized through the

window, that the language was “[p]retty broad,” and that “[t]hat’s why . . . the statute . . .

shifts the burden to the defendant to prove . . . that the window tint is within the

prescribed limits.” Id. at 92. The court stated that “[t]he hard question for the Court is

does that burden shifting, once they prove that the window tint is within the legal limits,

does that affect only the driving offense or the tint charge or does that affect also, the

suppression issue” and that “in other words, does it affect what the Court believes a good

faith stop by the officer indicating that he believed the window tinting was not within the

legal limits . . . .” Id. The court noted that “during the suppression hearing, it did come

out that [the officer] was able to identify or he could see someone was inside – was able

to identify there was a male inside but as far as dynamics, male, black, white or what

have you, . . . he could not identify from the outside.” Id. at 92-93. The court found that

the investigatory stop was lawful and stated “I do believe as long as there’s a good faith

intent of the officer when he believes that a window tint is illegal . . . because he could

not see the occupants inside, I do believe that that good faith effort or that good faith

reasoning on the officer’s part is enough to justify a stop.” Id. at 94. The court denied

Sanders’s motion to suppress. Sanders sought and obtained permission to bring this

interlocutory appeal.

                                           ISSUE

       The issue is whether the trial court erred in denying Sanders’s motion to suppress.

Our standard of appellate review of a trial court’s ruling on a motion to suppress is

similar to other sufficiency issues. State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006). The


                                              6
record must disclose substantial evidence of probative value that supports the trial court’s

decision. Id. We do not reweigh the evidence, and we consider conflicting evidence

most favorably to the trial court’s ruling. Id. However, unlike the typical sufficiency of

the evidence case, we must also consider the uncontested evidence favorable to the

defendant. Ransom v. State, 741 N.E.2d 419, 421 (Ind. Ct. App. 2000), trans. denied.

We review de novo the ultimate determination of reasonable suspicion.              Id. (citing

Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 1663, (1996)).

       Sanders argues that Officer Minch’s “subjective interpretation of identity and tint

did not justify the traffic stop of [his] Chevy Suburban, which objectively complied with

Indiana’s Window tint statute” and that “[h]is mistaken application of the statute did not

justify a good faith exception to uphold the stop.” Appellant’s Brief at 8. Sanders argues

that Officer Minch mistakenly believed at the time of the stop that all of the vehicle’s

windows were equally dark, that in fact the front windshield and side windows were

clear, that only “[t]he side and rear windows of the back end of the Suburban were

tinted,” and that the expert and the trial court concluded that these windows were in

compliance with the statute. Id. at 9. Sanders maintains that Officer Minch’s “wide

latitude to determine traffic violations was unreasonable” and that “[n]o good faith

existed to justify the initial stop of [] Sanders which resulted in his seizure . . . and the

search of his person.” Id. at 10. Sanders contends that the trial court’s ruling results “in a

‘heads, you lose; tails, you lose’ situation. The officer is never wrong. The officer

decides the tint is unlawful; the defendant does not meet his burden. The stop is upheld.

The officer decides the tint is unlawful; the defendant does meet his burden. The stop is


                                              7
upheld.” Id. at 11. Sanders asserts that “[t]his result not only shift[s] the burden to the

defendant on proving statutory compliance for his windows, but also shifts the burden of

proof on warrantless seizures to the defendant” and that “the State bears the burden of

proving that an exception to the warrant requirement existed at the time of the search.”

Id. Sanders also argues that the trial court’s statement that the statutory language “could

not be easily identified or recognized” was very broad and generic, that penal statutes

should be construed against the State, and that any ambiguities should be resolved in

favor of the accused. Id. at 12.

       The State’s position is that Officer Minch had a valid basis to stop Sanders’s

vehicle. The State asserts that Ind. Code § 9-19-19-4 does not require an officer to

conclusively determine that a window has a light transmittance of less than thirty percent

before stopping a vehicle for a suspected window tint violation. The State points to

Officer Minch’s testimony that he could not identify the occupant of the vehicle in

question and that therefore he had a valid basis to believe that the driver was in violation

of the window tinting statute. The State argues that Ransom v. State, 741 N.E.2d 419

(Ind. Ct. App. 2000), trans. denied, is not applicable here because in Ransom the officer

incorrectly believed it was unlawful for the defendant to operate his vehicle in reverse

and that in contrast, here the officer correctly knew that Indiana law prohibits a vehicle

from being driven when the vehicle’s rear back window is tinted to the extent that the

vehicle’s occupants cannot be easily identified through that window.




                                             8
                                           ANALYSIS

       The Fourth Amendment to the United States Constitution protects an individual’s

privacy and possessory interests by prohibiting unreasonable searches and seizures.1

State v. Sitts, 926 N.E.2d 1118, 1120 (Ind. Ct. App. 2010) (citing State v. Rager, 883

N.E.2d 136, 139 (Ind. Ct. App. 2008)). These safeguards extend to brief investigatory

stops of persons or vehicles that fall short of traditional arrest. Id. The State has the

burden of demonstrating that the measures it used to seize evidence were constitutional.

Id.

       “A police officer may stop a vehicle when he observes a minor traffic violation. A

stop is lawful if there is an objectively justifiable reason for it, and the stop may be

justified on less than probable cause.” Id. (citations omitted).

               It is the requirement of reasonable suspicion which strikes the
       balance between the government’s legitimate interest in traffic safety and
       an individual’s reasonable expectation of privacy. Reasonable suspicion
       entails some minimum level of objective evidentiary justification. Due
       weight must be given, not to the officer’s inchoate and unparticularized
       suspicion or “hunch” but to the specific reasonable inferences which the
       officer is entitled to draw from the facts in light of his experience. A court
       sitting to determine the existence of reasonable suspicion must require the
       agent to articulate the factors leading to that conclusion.

Id. (citations omitted).

       Whether the officer’s suspicion was reasonable is determined on a case-by-case

basis by engaging in a fact-sensitive analysis of the totality of the circumstances. Id.

(citing State v. Belcher, 725 N.E.2d 92, 94 (Ind. Ct. App. 2000), reh’g denied, trans.


       1
          Sanders cites only to the Fourth Amendment and not to Article 1, Section 11 of the Indiana
Constitution.


                                                 9
denied). “Although a law enforcement officer’s good faith belief that a person has

committed a violation will justify a traffic stop, Ind. Code § 34-28-5-3,[2] an officer’s

mistaken belief about what constitutes a violation does not amount to good faith. Such

discretion is not constitutionally permissible.” Id. (citing Rager, 883 N.E.2d at 139-140

(quoting Ransom, 741 N.E.2d at 422 (citing Cash v. State, 593 N.E.2d 1267, 1268-1269

(Ind. Ct. App. 1992) (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1879-

1880 (1968)) (holding that “simple good faith on the part of the arresting officer is not

enough. . . . If subjective good faith alone were the test, the protections of the Fourth

Amendment would evaporate, and the people would be ‘secure in their persons, houses,

papers and effects,’ only in the discretion of the police.”) (internal quotation marks and

citation omitted)))).

       Here, Officer Minch pulled Sanders over based upon the tint of the rear window of

Sanders’s Suburban. Ind. Code § 9-19-19-4(c) provides:

       A person may not drive a motor vehicle that has a:

                 (1)     windshield;

       2
           Ind. Code § 34-28-5-3 provides:

       Whenever a law enforcement officer believes in good faith that a person has committed
       an infraction or ordinance violation, the law enforcement officer may detain that person
       for a time sufficient to:

                 (1)     inform the person of the allegation;

                 (2)     obtain the person’s:

                         (A)     name, address, and date of birth; or

                         (B)     driver’s license, if in the person’s possession; and

                 (3)     allow the person to execute a notice to appear.


                                                    10
              (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.

       Evidence was presented at the suppression hearing that the tint of Sanders’s

window was not a violation of Ind. Code § 9-19-19-4(c) and that Officer Minch

mistakenly believed that Sanders’s vehicle was in violation of the statute. The State does

not point to authority beyond the statute to support Officer Minch’s subjective

determination that he should be able to identify the approximate age, ethnicity, and

gender of the individual inside a vehicle from behind the vehicle, and that if he cannot, a

stop of the vehicle is justified, and indeed we are unaware of any such authority. Further,

the photographs of the Suburban admitted into evidence show the tint of the rear window

and side windows, that the front windshield and side windows which were part of the

vehicle’s front and back doors were either not tinted or tinted to a lesser extent than the

side panel windows of the cargo area and the rear window, and that, from the photograph

taken from behind the vehicle and admitted as State’s Exhibit 3, which Officer Minch

testified reflected his view at the time he decided to stop Sanders, one can see the outline




                                            11
of the front window, the top of the steering wheel, and a portion of the windshield wiper

blade.

         Based upon the evidence presented at the suppression hearings, including the

photographs of the Suburban which were taken one hour after the stop and depict the

window tinting, we cannot say that there was an objectively justifiable reason for the stop

of the vehicle. Accordingly, under the totality of the circumstances Officer Minch lacked

reasonable suspicion to stop Sanders for investigatory purposes at the time he observed

Sanders’s vehicle. The trial court erred in denying Sanders’s motion to suppress.

         For the foregoing reasons, we reverse the trial court’s denial of Sanders’s motion

to suppress.

         Reversed.

BAILEY, J., and VAIDIK, J., concur.




                                             12
