Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                       Jun 16 2014, 9:14 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MARYLYN K. L. ERNSBERGER                           GREGORY F. ZOELLER
Stout Law Group, P.C.                              Attorney General of Indiana
Angola, Indiana
                                                   MONIKA PREKOPA TALBOT
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LLOY J. BALL,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 76A03-1312-CR-00501
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE STEUBEN CIRCUIT COURT
                           The Honorable Allen N. Wheat, Judge
                          The Honorable Randy Coffey, Magistrate
                              Cause No. 76C01-1106-CM-468



                                          June 16, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge
       Lloy J. Ball appeals his conviction for operating a vehicle while intoxicated in a

manner that endangers a person as a class A misdemeanor. Ball raises one issue which we

revise and restate as whether the trial court abused its discretion when it admitted evidence

gathered from Ball’s traffic stop. We affirm.

                         FACTS AND PROCEDURAL HISTORY

       The facts most favorable to the conviction follow. On June 4, 2011, Indiana State

Police Trooper Christopher Kinsey was on duty traveling on State Road 727 in Steuben

County, Indiana. Road signs posted on State Road 727 indicated that the speed limit was

forty miles per hour. Trooper Kinsey observed a vehicle that appeared to be driving faster

than the speed limit. He activated his radar and obtained a reading that the vehicle was

traveling at a speed of forty-nine miles per hour.

       Trooper Kinsey turned around, and as he approached he saw the vehicle drive left of

center so that only the tires on the passenger’s side of the vehicle remained on the right side

of the road. He immediately activated his lights and pulled the vehicle over. He approached

the vehicle, found that Ball was the driver, and smelled alcohol on his breath. Ball’s eyes

were glassy and bloodshot. He told Trooper Kinsey that he drank two beers before driving

and swerved into the other lane when his wife handed him a piece of chewing gum. Trooper

Kinsey asked him to step outside the vehicle, he stumbled slightly as he exited the car, and he

failed a standard field sobriety test.

       Trooper Kinsey placed Ball under arrest and transported him to the Steuben County

Jail in order to perform additional tests for intoxication. At the jail, Trooper Kinsey

                                              2
instructed Ball to perform three more field sobriety tests, all of which he failed. Ball also

submitted to a chemical breath test, and his blood-alcohol content was shown to be 0.13

grams of alcohol per 210 liters of breath.

       On June 6, 2011, the State charged Ball with Count I, operating a vehicle while

intoxicated in a manner that endangers a person as a class A misdemeanor; and Count II,

operating a vehicle with at least .08 gram alcohol content as a class C misdemeanor. On May

23, 2012, Ball filed a motion to suppress evidence gathered from the traffic stop, contending

that there was no legal basis for the stop. He argued that the evidence should not be admitted

because a public records request revealed that the Indiana Department of Transportation

(“INDOT”) did not have a speed resolution for State Road 727 in Steuben County to reduce

the speed limit to forty miles per hour. On August 2, 2012, the court held a hearing, and the

next day it denied Ball’s motion to suppress. The court subsequently overruled his objection

on the same ground at Ball’s bench trial, on October 2, 2013. The court found Ball guilty of

Count I and dismissed Count II. On November 22, 2013, the court held a sentencing hearing

and sentenced Ball to 365 days suspended to probation.

                                       DISCUSSION

       The issue is whether the trial court abused its discretion when it admitted evidence

gathered from Ball’s traffic stop. The admission and exclusion of evidence falls within the

sound discretion of the trial court, and we review the admission of evidence only for an abuse

of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion

occurs “where the decision is clearly against the logic and effect of the facts and

                                              3
circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001). Although Ball originally

challenged the admission of the evidence through a motion to suppress, he now challenges

the admission of the evidence at trial. Thus, the issue is appropriately framed as whether the

trial court abused its discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d

77, 80 (Ind. Ct. App. 2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind.

Ct. App. 2005).

        Ball challenges the investigatory stop as violating his constitutional rights under the

Fourth Amendment,1 arguing specifically that since INDOT did not issue a speed resolution

for the speed limit on State Road 727, the speed limit sign was posted in violation of Ind.

Code § 9-21-5-12, because no engineering study or traffic investigation had been performed

on the highway. He argues that pursuant to Section 12, INDOT exclusively determines

whether to change the speed limit on a state highway by basing the findings on an

engineering study and traffic investigation, and in this case INDOT did not have a speed

resolution for this road to reduce the posted speed limit to forty miles per hour. He asserts

that the maximum speed should be fifty-five miles per hour unless the requirements of

Section 12 are met, and that since he was traveling at forty-nine miles per hour, he was not

violating the law.

        The State contends that Ball’s traffic stop was not initiated in violation of the Fourth



        1
          In his brief, Ball mentions both the Fourth Amendment and Article 1, Section 11 of the Indiana
Constitution. However, he fails to provide an independent analysis of Article 1, Section 11 of the Indiana
Constitution. Failure to make a cogent argument constitutes waiver of the issue on appeal. See Jackson v.
State, 996 N.E.2d 378, 383 n.3 (Ind. Ct. App. 2013) (citing Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002)
(concluding state constitutional claim waived where defendant presented no authority or independent analysis
                                                      4
Amendment to the United States Constitution and thus that the evidence collected as a result

of the stop was properly admitted at trial. The State maintains that Trooper Kinsey witnessed

Ball drive faster than the posted speed limit and drive left of center, which were two traffic

violations that each independently provided reasonable suspicion to stop Ball’s vehicle.

        The Fourth Amendment to the United States Constitution protects citizens from

unreasonable searches and seizures. Combs v. State, 878 N.E.2d 1285, 1288 (Ind. Ct. App.

2008). Because a traffic stop is a seizure under the Fourth Amendment, police may not

initiate a stop for any conceivable reason, but must possess at least reasonable suspicion that

a traffic law has been violated or that other criminal activity is taking place. Potter v. State,

912 N.E.2d 905, 907-908 (Ind. Ct. App. 2009). “It is well settled that a police officer may

stop a car when he observes a minor traffic violation.” Goens v. State, 943 N.E.2d 829, 832

(Ind. Ct. App. 2011); see also Sanders v. State, 989 N.E.2d 332, 335 (Ind. 2013), reh’g

denied. “An officer’s decision to stop a vehicle is valid so long as his on-the-spot evaluation

reasonably suggests that lawbreaking occurred.” Meredith v. State, 906 N.E.2d 867, 870

(Ind. 2009). 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. Sitts v.

State, 926 N.E.2d 1118, 1120 (Ind. Ct. App. 2010). An officer’s good-faith belief that a

person has committed a traffic violation will justify a traffic stop. Id. But “an officer’s

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

discretion is not constitutionally permissible.” Id. (quotation omitted). The determination of


supporting separate standard under state constitution); West v. State, 755 N.E.2d 173, 181 (Ind. 2001); Ind.
                                                     5
reasonable suspicion requires de novo review on appeal. Goens, 943 N.E.2d at 832.

        Ind. Code § 34-28-5-3 authorizes law enforcement to detain an individual for a limited

time if the officer “believes in good faith that a person has committed an infraction or

ordinance violation.” Ball suggests that Trooper Kinsey did not have a good faith belief that

he had committed a speeding violation because the speed limit sign that was posted was in

violation of Ind. Code § 9-21-5-12, which provides INDOT the authority to conduct traffic

investigations and change highway speed limits. We disagree, as Trooper Kinsey had an

objectively justifiable basis for making the initial traffic stop because he had a good faith

reason to believe that two traffic laws had been violated when he observed Ball: (1) driving

forty-nine miles per hour when the posted sign stated that the speed limit was forty miles per

hour; and (2) driving left of center.

        In Ransom v. State, 741 N.E.2d 419 (Ind. Ct. App. 2000), trans. denied, an individual

was driving along a narrow street when he encountered an approaching police vehicle.

Recognizing that both vehicles could not pass simultaneously, the driver put his vehicle in

reverse and backed around the corner. 741 N.E.2d at 420. The officer stopped the driver’s

vehicle for “operating in reverse,” and subsequently discovered a handgun. Id. at 420-421.

The court found that “operating in reverse” was not an infraction existing at law and that the

driver’s behavior was not in violation of the reckless driving statute or any other state law.

Id. at 422. Thus, the court held that the officer “did not have an objectively justifiable reason

for stopping” the driver and the traffic stop was not lawful. Id.


Appellate Rule 46(A)(8)), trans. denied.
                                               6
       Here, by contrast, the infractions for which Ball’s vehicle was stopped do in fact exist

at law, the traffic stop was based upon a reasonable, good faith belief that a statutory

infraction had occurred, and thus we are unable to say that the traffic stop was not lawful.

See Sanders, 989 N.E.2d at 336 (distinguishing Ransom and holding that the apparent

infraction for which the defendant’s vehicle was initially stopped does in fact exist at law).

Trooper Kinsey testified on multiple occasions that he did not turn his lights on to pull over

Ball until he began driving left of center. According to Ind. Code § 9-21-8-2(a), upon all

roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway.

The evidence shows that Ball was driving left of center, and therefore he was not driving on

the right half of the road, which Section 2(a) requires. Driving left of center alone was

sufficient to justify Trooper Kinsey’s good faith belief that Ball had committed a traffic

infraction in order to initiate the stop. Additionally, Ball was traveling faster than the posted

speed limit. To the extent he suggests that the stop was in violation of Ind. Code § 9-21-5-12

because INDOT had not conducted a traffic investigation based thereon, we note that even if

the posted speed of forty miles per hour violated Section 12, Trooper Kinsey still had a

reasonable, good faith belief that Ball was committing a violation by driving forty-nine miles

per hour in an area where the posted speed limit was forty miles per hour.2 While it would be

unreasonable if Trooper Kinsey pulled Ball over believing certain conduct was against the

law when it is not, that is not the case before us. Exceeding the speed limit is against the law.



       2
        We observe that Ind. Code § 9-21-5-12 is not the exclusive means by which speed limits on state
highways may be lowered. Ind. Code § 9-21-5-3 provides that “[t]he maximum speed limits set forth in
                                                  7
Ind. Code §§ 9-21-5. Thus, even if the speed limit as posted was erroneous, Trooper Kinsey

was justified in making the traffic stop in reliance on the posted forty miles per hour sign and

having observed Ball drive left of center. Under the totality of the circumstances, we

conclude that the traffic stop was reasonable and cannot say that the trial court abused its

discretion in admitting the evidence obtained after the stop.

                                               CONCLUSION

        For the foregoing reasons, we affirm Ball’s conviction for operating a vehicle while

intoxicated in a manner that endangers a person as a class A misdemeanor.

        Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.




section 2 of this chapter may be altered as follows: (1) By local jurisdictions under section 6 of this chapter. (2)
By the Indiana department of transportation under section 12 of this chapter. . . .”
                                                         8
