                                                                              FILED
                                                                          Jul 26 2016, 8:39 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark K. Phillips                                           Gregory F. Zoeller
Boonville, Indiana                                         Attorney General of Indiana
                                                           Jesse R. Drum
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Clayton Doctor,                                            July 26, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           82A01-1507-CR-844
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Honorable Kelli E. Fink,
Appellee-Plaintiff.                                        Magistrate
                                                           Trial Court Cause No.
                                                           82C01-1407-FA-806



Riley, Judge.




Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016                           Page 1 of 19
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Clayton Doctor (Doctor), appeals the trial court’s Order

      denying Doctor’s motion to suppress the evidence seized during a traffic stop.


[2]   We affirm and remand for further proceedings.


                                                      ISSUES

[3]   Doctor presents one issue on interlocutory appeal, which we restate as follows:

      Whether the trial court erred in denying his motion to suppress the evidence

      seized during the course of a traffic stop.


[4]   The State raises one issue on cross-appeal, which we restate as follows:

      Whether Doctor’s interlocutory appeal should be dismissed because he did not

      timely file his Notice of Appeal.


                            FACTS AND PROCEDURAL HISTORY

[5]   In February of 2014, Detective Cliff Simpson (Detective Simpson), a police

      officer with the Evansville Police Department’s narcotics unit and “a federally

      deputized” officer with the Drug Enforcement Administration task force,

      received incriminating information about Doctor from an individual in federal

      custody. (Tr. p. 5). The source revealed to Detective Simpson that he had

      traveled to Dallas, Texas, with Doctor, where Doctor had “a hydraulic trap”

      installed “in the area of the front passenger’s side compartment, airbag

      compartment” of a black Acura sedan. (Tr. p. 7). Then, in March of 2014,

      Detective Simpson received information from another confidential informant


      Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016    Page 2 of 19
      that Doctor was transporting large quantities of cocaine from Atlanta, Georgia,

      to Evansville, Vanderburgh County, Indiana, for distribution. As part of his

      investigation into Doctor, Detective Simpson located the black Acura and

      applied to the United States District Court in the Southern District of Indiana to

      place a GPS tracking device on the vehicle. On May 14, 2014, Detective

      Simpson’s request was granted, and he placed the tracker on the underside of

      the Acura. On June 19, 2014, upon Detective Simpson’s application, the

      federal district court approved a forty-five-day extension to continue monitoring

      Doctor’s vehicle via GPS.


[6]   On June 24, 2014, the GPS device indicated that the Acura had been driven to

      Atlanta. For five days, the vehicle remained in Atlanta. On June 29, 2014, it

      appeared from the GPS unit that the Acura was leaving Atlanta and heading

      north. Believing that Doctor was returning to Indiana, Detective Simpson and

      several other officers set up surveillance points along the Pennyrile Parkway

      and U.S. 41 in Kentucky and southern Indiana. Detective Simpson was

      stationed at the Double Dukes Bar in Henderson, Kentucky, and at

      approximately 11:00 p.m., he identified Doctor’s Acura driving by. Detective

      Simpson observed that the Acura, which was driving “maybe [thirty] miles an

      hour” at the time, “had dark tinted windows,” and he “was unable to tell how

      many occupants were in the vehicle or who was driving the vehicle.” (Tr. pp.

      11, 26). Detective Simpson radioed to Officer Aaron Fair (Officer Fair) of the

      Evansville Police Department, who was stationed in Evansville in a marked

      police vehicle, and advised that the Acura was approaching and that its


      Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016   Page 3 of 19
      windows were tinted too dark to identify the occupants. Once the Acura

      crossed the state line into Evansville, Officer Fair initiated a traffic stop based

      on a window tint violation.


[7]   Officer Fair approached the vehicle and gathered information from the driver,

      who was identified as Doctor. Officer Fair subsequently returned to his vehicle

      to “conduct[] his normal business” for processing a traffic stop. (Tr. p. 47).

      Approximately “[a] minute” after Officer Fair initiated the stop, Motor Patrol

      Officer Lenny Reed (Officer Reed) and his K-9 partner, Willy (K-9 Willy),

      arrived on the scene. (Tr. p. 41). Officer Reed first observed the vehicle’s

      window tint, noting that “[t]he occupants in the vehicle were not easily

      identifiable.” (Tr. p. 41). As Officer Fair was seated in his squad car, Officer

      Reed approached the driver-side window of the Acura and learned that there

      was a passenger in the vehicle, identified as Jamal Grayson (Grayson). Officer

      Reed walked over to the passenger-side window and spoke with Grayson.

      During his conversation with Grayson, Officer Reed noticed “multiple air

      freshener[]s inside the vents, all of the vents in the vehicle, . . . multiple cell

      phones, . . . a prepaid phone card, . . . a hard travel appearance to the vehicle

      with multiple energy drinks and/or food wrappers strung throughout the

      vehicle.” (Tr. pp. 43-44). Based on his observations, Officer Reed requested

      Doctor’s consent to search the vehicle. Doctor responded that the vehicle did

      not belong to him. 1 After explaining to Doctor “that he was in control of the



      1
          The officers verified that the Acura was registered to Joshlyn Simmons.


      Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016       Page 4 of 19
      vehicle,” Officer Reed again asked for consent to search the vehicle, and Doctor

      refused. (Tr. pp. 46-47).


[8]   At this point, approximately five or six minutes into the traffic stop, Officer

      Reed “decided to deploy K-9 Willy to the free air space” around the vehicle.

      (Tr. p. 47). Prior to Officer Reed even commanding K-9 Willy to “dope seek,”

      K-9 Willy “stopped to investigate” alongside the driver’s door. (Tr. p. 48). K-9

      Willy “stood on his hindquarters[] [and] tried to jump inside that driver’s

      window.” (Tr. p. 48). Officer Reed “noticed a demeanor change in [K-9] Willy

      such as his breathing rate, his nose popping, his tail set changing, those are

      things that are indicative of K-9 Willy being in narcotic odor.” (Tr. p. 48).

      Officer Reed directed K-9 Willy to the front of the vehicle, near the passenger-

      side headlight, and gave him the “dope seek” command. (Tr. p. 49). The duo

      worked counter-clockwise around the vehicle, and K-9 Willy again stopped at

      the driver-side door and changed his demeanor to indicate the scent of

      narcotics. When they reached the passenger-side window, K-9 Willy, once

      again, rose up on his hindquarters with his nose up in the air and started

      scratching at the door. (Tr. p. 49). Officer Reed then “deployed [K-9] Willy to

      the interior of the vehicle.” (Tr. p. 50). K-9 Willy climbed over all the seats

      before providing “an indication on the floorboard of the passenger’s seat, like a

      final indication where he’s staring at and scratching at.” (Tr. p. 50). When

      redirected to the dashboard area, K-9 Willy nosed through the glovebox, which

      had been opened, and scratched at the passenger’s seat, which indicated to

      Officer Reed that he was “smelling drugs.” (Tr. p. 51).


      Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016   Page 5 of 19
[9]    As Officer Reed returned K-9 Willy to his patrol vehicle, he stopped by Officer

       Fair’s vehicle to inform Officer Fair that K-9 Willy had indicated the presence

       of narcotics. Officer Fair advised that he was writing out a warning citation for

       Doctor’s window tint violation. K-9 Willy’s indications were relayed to

       Detective Simpson, who applied for and obtained a warrant to search Doctor’s

       vehicle. The Acura was transported to a crime scene garage so that the search

       could be conducted in a better-lit and less hazardous environment than

       alongside a highway. The search revealed a hydraulic trap (i.e., a “hidden

       compartment”) “in the front passenger’s side airbag.” (Tr. p. 14). After

       breaching the trap, the officers discovered “two heat sealed bags containing a

       white powdery substance,” both of which “field tested positive for cocaine.”

       (Tr. pp. 14-15).


[10]   On July 1, 2014, the State filed an Information, charging Doctor with Count 1,

       dealing in cocaine, a Class A felony, Ind. Code § 35-48-4-1(a)(2)(C),(b)(1)

       (2013); and Count II, conspiracy to commit dealing in cocaine, a Class A

       felony, I.C. §§ 35-48-4-1(a)(2), (b)(1); -41-5-2 (2013). On November 12, 2014,

       Doctor filed a motion to suppress “any evidence obtained as a result of the

       search of [his] vehicle.” (Appellant’s App. p. 16). Doctor argued that “[t]he

       traffic stop exceeded the parameters set forth in Terry v. Ohio, [392 U.S. 1, 20

       (1968)]; . . . the basis for making the traffic stop was pretextual; . . . [t]he search

       warrant obtained in his cause was not based on probable cause; and . . .

       [Doctor] was not advised of his constitutional rights.” (Appellant’s App. p. 16).

       On June 4, 2015, the trial court issued its Order, denying Doctor’s motion to


       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016       Page 6 of 19
       suppress except to the extent “that any statements made by [Doctor] while in

       custody prior to the advisement of Miranda warnings and in response to

       interrogation are suppressed.” (Appellant’s App. p. 12).


[11]   On July 1, 2015, Doctor filed a motion to certify the trial court’s Order for

       interlocutory appeal, which the trial court granted the same day. On July 31,

       2015, our court accepted jurisdiction over this appeal. Additional facts will be

       provided as necessary.


                                    DISCUSSION AND DECISION

                                               I. Motion to Dismiss

[12]   On February 23, 2016, the State filed a Motion to Dismiss Appeal, claiming

       that Doctor’s September 30, 2015 Notice of Appeal was filed after the deadline.

       On March 2, 2016, Doctor filed his response to the State’s motion for dismissal.

       Doctor argued that his Notice of Appeal was timely “filed with this [c]ourt on

       July 6, 2015, as noted by the entry of the [c]lerk of this [c]ourt for July 6, 2015,

       stating: ‘The appearance for atty. Mark Phillips was tendered in the form of a

       notice of appeal.’” (Appellant’s Response to the State’s Motion to Dismiss

       Appeal p. 1). Doctor contended that on September 30, 2015, his attorney

       communicated with the clerk’s office “and was advised to file another Notice of

       Appeal[,]” which he did the same day. (Appellant’s Response to the State’s

       Motion to Dismiss Appeal p. 1). On March 17, 2016, having reviewed the

       matter, our court’s motions panel denied the State’s motion to dismiss.




       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016     Page 7 of 19
[13]   On cross-appeal, the State now claims that Doctor’s appeal should be dismissed

       because he did not timely file a Notice of Appeal. Doctor, however, contends

       that this court, via its motions panel, has already considered the merits of this

       issue and denied the State’s motion to dismiss. Although we are reluctant to do

       so “absent clear authority establishing that it erred as a matter of law[,]” it is

       well established that our court “has inherent authority” to reconsider any ruling

       by the motions panel “while an appeal remains in fieri.” Treacy v. State, 953

       N.E.2d 634, 636 n.2 (Ind. Ct. App. 2011) (citing Davis v. State, 771 N.E.2d 647,

       649 n.5 (Ind. 2002), abrogated on other grounds by In re Adoption of O.R., 16 N.E.3d

       965 (Ind. 2014)), trans. denied; Members v. State, 851 N.E.2d 979, 981 n.2 (Ind.

       Ct. App. 2006).


[14]   In this case, there is no dispute that Doctor’s interlocutory appeal is

       discretionary rather than a matter of right. See Ind. Appellate Rule 14(A)

       (discussing interlocutory appeals of right). For a discretionary interlocutory

       appeal, Indiana Appellate Rule 14(B) sets forth a specific procedure for

       initiating the appeal. First, within thirty days of the trial court’s issuance of an

       interlocutory order, a party must file a motion requesting that the trial court

       certify the order for an interlocutory appeal. App. R. 14(B)(1)(a). Thereafter,

       within thirty days of a hearing on the matter or, if no hearing is set, within

       thirty days of the request for certification, the trial court must rule or the motion

       for certification will be deemed denied. App. R. 14(B)(1)(e). Upon the trial

       court’s certification, the moving party must request that our court accept

       jurisdiction over the appeal within thirty days. App. R. 14(B)(2)(a). “The


       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016     Page 8 of 19
       motion shall be accompanied by an appearance as required by [Appellate] Rule

       16(H).” App. R. 14(B)(2). Within fifteen days of our court’s order accepting

       jurisdiction over the interlocutory appeal, “[t]he appellant shall conventionally

       file a Notice of Appeal with the Clerk.” App. R. 14(B)(3).


[15]   Here, the trial court issued the interlocutory Order on June 4, 2015. On July 1,

       2015, Doctor filed a motion with the trial court to certify the Order for

       interlocutory appeal, which the trial court granted the same day. On July 6,

       2015, Doctor requested that our court accept jurisdiction over the interlocutory

       appeal, which we granted on July 31, 2015. Accordingly, pursuant to the

       Appellate Rules, Doctor’s Notice of Appeal was due to be filed within fifteen

       days of July 31, 2015—i.e., no later than Monday, August 17, 2015.


[16]   Doctor directs our attention to the docket, which states that “[t]he appearance

       for atty. Mark Phillips was tendered in the form of a notice of appeal” on July

       6, 2015. (Appellant’s Reply Br. p. 2). 2 The Chronological Case Summary

       includes an entry on July 6, 2015, which states, “Notice of Appeal Received.”

       (Appellant’s App. p. 9). Although not included within the record submitted by

       the parties, the court’s electronic filing system, Odyssey, contains a Notice of

       Appeal filed by Doctor on July 6, 2015. 3 Then, on September 30, 2015, after




       2
         This notation is not included in the trial court’s Chronological Case Summary; rather, it is noted on the
       court’s electronic filing system, Odyssey.
       3
         This Notice of Appeal was filed as an appearance, which is required to accompany a motion requesting
       that our court accept jurisdiction of an interlocutory appeal. App. R. 14(B)(2). The State does not
       acknowledge Doctor’s July 6, 2015 Notice of Appeal.

       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016                           Page 9 of 19
       apparently realizing that the Appellate Rules state that a Notice of Appeal is to

       be filed after the court accepts jurisdiction, Doctor filed a second Notice of

       Appeal. Accordingly, Doctor filed both a premature and a belated Notice of

       Appeal.


[17]   Our court has previously determined that a premature filing of a Notice of

       Appeal “is simply a defect in form that is capable of being cured.” Ivy v. State,

       847 N.E.2d 963, 965 (Ind. Ct. App. 2006). We stated that if a premature filing

       does “not adversely affect the substantial rights of either party, the claimant’s

       right to review [is] not forfeited.” Id. In this case, we find that the premature

       Notice of Appeal did not adversely affect the State. Rather, the State received

       advanced notice that Doctor sought to appeal the Order, especially in light of

       the fact that Doctor filed a motion to certify the Order for interlocutory appeal

       and filed a motion with this court to accept jurisdiction. The defect was cured

       upon our court’s acceptance of jurisdiction. Therefore, we conclude that

       Doctor’s right to appeal should not be forfeited, and we uphold the order of our

       motions panel denying the State’s motion to dismiss.


                                              II. Motion to Suppress

[18]   Doctor claims that the evidence seized from his vehicle should have been

       suppressed because it was obtained pursuant to an illegal traffic stop. Our

       review of a trial court’s ruling on a motion to suppress is similar to other

       sufficiency matters. State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006). Thus,

       “[t]he record must disclose substantial evidence of probative value that supports

       the trial court’s decision. We do not reweigh the evidence, and we consider

       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016   Page 10 of 19
       conflicting evidence most favorably to the trial court’s ruling.” Id. However,

       we will “consider the uncontested evidence in a light most favorable to the

       appellant.” Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2013), trans.

       denied. Regarding the determination of reasonable suspicion to merit a

       warrantless search, our review is de novo. Sanders v. State, 989 N.E.2d 332, 334

       (Ind. 2013).


[19]   Doctor contends that the traffic stop violated the protections afforded by the

       Fourth Amendment to the United States Constitution and Article I, Section 11

       of the Indiana Constitution. In particular, he argues that the basis for the traffic

       stop—i.e., a window tint violation—was pretextual. A “pretextual” traffic stop

       is “a stop that police instigate ‘under the guise of enforcing the traffic code what

       they would like to do for other reasons.’” Veerkamp v. State, 7 N.E.3d 390, 396

       (Ind. Ct. App. 2014) (quoting Baldwin v. Reagan, 715 N.E.2d 332, 338 (Ind.

       1999)), trans. denied. Doctor posits that law enforcement “simply orchestrated a

       plan in which they could obtain the information necessary to secure a search

       warrant,” and a “window tint violation was the only excuse they could come

       up with to justify the stop.” (Appellant’s Br. pp. 10, 15). According to Doctor,

       “[i]t would be an insult to the protections afforded individuals by the Fourth

       Amendment and [Article I, Section 11] of the Indiana Constitution to excuse

       the stop” because “[a] cunning trap was laid with patience and planning, and

       Doctor was snared.” (Appellant’s Br. p. 11).


                          A. Fourth Amendment to the United States Constitution

[20]   The Fourth Amendment to the United States Constitution guarantees:

       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016    Page 11 of 19
               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               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.


       U.S. CONST. amend IV. This protection is extended to the States via the

       Fourteenth Amendment. Sanders, 989 N.E.2d at 335. Accordingly, “a search

       warrant is a prerequisite to a constitutionally proper search and seizure.”

       Callahan v. State, 719 N.E.2d 430, 434 (Ind. Ct. App. 1999). In the event of a

       warrantless search or seizure, the State bears the burden of proving that an

       exception to the warrant requirement exists. Id.


[21]   A traffic stop is considered to be a seizure under the Fourth Amendment. Bush

       v. State, 925 N.E.2d 787, 789, clarified on reh’g, 929 N.E.2d 897 (Ind. Ct. App.

       2010). It is well established that police may not initiate a stop for any

       conceivable reason, but rather must possess, “at least, reasonable suspicion

       [that] a traffic law has been violated or other criminal activity is afoot.” Id. at

       790. Whether a law enforcement officer had reasonable suspicion of a traffic

       law violation requires an “examination of the totality of the circumstances to

       determine whether the detaining officer had a particularized and objective basis

       for suspecting legal wrongdoing.” Johnson, 992 N.E.2d at 958. As long as there

       is an observable traffic violation, “the stop is valid whether or not the police

       officer would have otherwise made the stop but for ulterior suspicions or

       motives.” Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014).


       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016     Page 12 of 19
[22]   In this case, Officer Fair initiated a traffic stop based on a purported violation of

       Indiana’s Window Tint Statute, which provides:

               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.


       I.C. § 9-19-19-4(c) (2013) (emphasis added).


[23]   In Sanders, 989 N.E.2d at 334-35, the defendant challenged the propriety of a

       traffic stop based on the Window Tint Statute, which ultimately led to the

       discovery of cocaine in the defendant’s possession. The defendant hired an

       expert to inspect the window tint, and it was determined that the defendant’s

       tint did, in fact, comply with the statute. Id. at 335. The supreme court found

       that the subsequent determination that the window tint did not violate the

       statute did “not serve to vitiate the legality of the traffic stop.” Id. Because the

       officer “could not ‘clearly recognize or identify the occupant inside,’” along

       with “the fact that the actual tint closely borders the statutory limit,” the Sanders

       court concluded that the officer had reasonable suspicion to conduct a traffic

       stop. Id. Similar to Sanders, both Detective Simpson and Officer Reed testified
       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016        Page 13 of 19
       that they were unable to see who was driving the vehicle or identify the number

       of occupants therein. Although Officer Fair did not testify at the suppression

       hearing in order to inform the court of his reasons for conducting the traffic

       stop, Detective Simpson testified that he had communicated with Officer Fair

       that he had just observed Doctor’s vehicle drive by and could not see through

       the window. See L.W. v. State, 926 N.E.2d 52, 58 (Ind. Ct. App. 2010) (“[A]n

       investigative stop may be based upon the collective information known to the

       law enforcement organization as a whole.”).


[24]   Doctor now argues that a violation of the Window Tint Statute cannot serve to

       justify the traffic stop because “there was no testing done to verify the percent of

       window tint” and because Detective Simpson had previously observed Doctor

       driving the Acura and was clearly able to identify him on those occasions.

       (Appellant’s Br. pp. 7-8). In Sanders, it was the defendant who presented

       evidence of an expert witness to contradict the testimony of the police officers,

       while, here, Doctor offered no evidence to indicate that his window tint actually

       complied with the statute. See Sanders, 989 N.E.2d at 335. Furthermore,

       evidence that Doctor’s window tint complied with the Window Tint Statute

       would serve to absolve him of the window tint violation, but it would not

       negate the officers’ reasonable suspicion based on their observations. See id.

       Additionally, although Detective Simpson did indicate that he had previously

       seen Doctor driving the Acura, he clarified that Doctor’s windshield was not

       tinted, so he was able to see Doctor driving by “[l]ooking through the front

       windshield in daylight.” (Tr. p. 34). Conversely, on the night of the traffic


       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016   Page 14 of 19
       stop, when the vehicle passed by Detective Simpson, he only had a view of the

       Acura’s tinted side windows. Based on the wording of the statute, it is a

       violation if any one window is tinted to the extent that an occupant cannot be

       recognized “through that window.” I.C. § 9-19-19-4(c) (2013). As we are to

       consider the evidence before us in a light most favorable to the trial court’s

       ruling, we find that the officers’ testimony that they could not see the occupants

       inside of the Acura provided reasonable suspicion to justify the traffic stop.


[25]   Nonetheless, even where a traffic stop is valid at its inception, it may violate the

       protections of the Fourth Amendment “if its manner of execution unreasonably

       infringes interests protected by the Constitution.” Bush, 925 N.E.2d at 790

       (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). “Specifically, a traffic

       stop ‘that is justified solely by the interest in issuing a warning ticket to the

       driver can become unlawful if it is prolonged beyond the time reasonably

       required to complete that mission.’” Id. (quoting Myers v. State, 839 N.E.2d

       1146, 149 (Ind. 2005)). Doctor now alleges that Officer Fair “intentionally

       withheld completion of the traffic stop in order to allow Officer Reed to further

       the investigation.” (Appellant’s Br. p. 9).


[26]   We find no basis for Doctor’s accusation in the record. Rather, the only

       evidence presented indicated that while Officer Fair was in his vehicle

       “conducting his normal business” for a traffic stop—i.e., to issue a warning

       citation for Doctor’s tinted windows, Officer Reed deployed K-9 Willy to sniff

       around the vehicle. (Tr. p. 47). See, e.g., Johnson, 992 N.E.2d at 959 (“Officers

       who stop a vehicle for a suspected violation of the Window Tint Statute are

       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016     Page 15 of 19
       permitted to briefly detain a motorist to, among other things, request a driver’s

       license and vehicle identification and conduct a license plate check.”).

       According to Officer Reed, he arrived on scene approximately one minute after

       Officer Fair initiated the stop, and by the time Officer Reed returned K-9 Willy

       to his patrol vehicle, Officer Fair was still working on the warning citation. See

       Bush, 925 N.E.2d at 790 (noting that it would be a Fourth Amendment

       violation to unreasonably prolong a traffic stop in order for a canine sniff to be

       carried out “absent reasonable suspicion of criminal activity in addition to the

       traffic violation”). At this point, Officer Reed estimated that the stop had been

       ongoing for “probably [eight] to [ten] minutes, [twelve] minutes maybe.” (Tr.

       p. 51).


[27]   Officer Reed testified that the duration of a traffic stop is contingent upon

       multiple factors, such as “the time of the day or the city, . . . business, traffic on

       the radio, getting on the radio, things of that nature.” (Tr. pp. 57-58). When

       presented with a hypothetical traffic stop for a window tint violation—and

       acting under the assumption that the driver had a valid driver’s license, no

       outstanding warrants, and was lawfully in possession of the vehicle—Officer

       Reed opined that a normal traffic stop might take five to ten minutes. Here, no

       evidence was presented to establish that the eight-to-twelve-minute period was

       an unreasonable amount of time for a traffic stop.


[28]   As a final note, in response to Doctor’s suggestion that “the law enforcement

       officers involved in the detention, search and seizure of the black Acura and the

       subsequent arrest of Doctor simply skipped over the search warrant procedure,”

       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016     Page 16 of 19
       we point out that, following the legal traffic stop, K-9 Willy conducted a sniff

       around the vehicle and indicated the presence of narcotics. (Appellant’s Br. p.

       15). “The ‘automobile exception’ to the warrant requirement allows police to

       search a vehicle without obtaining a warrant if they have probable cause to

       believe evidence of a crime will be found in the vehicle.” State v. Hobbs, 933

       N.E.2d 1281, 1285 (Ind. 2010). K-9 Willy’s sniff provided probable cause that

       the vehicle contained illicit drugs. See id. at 1286. Even though the officers

       took the additional step of obtaining a warrant prior to searching the vehicle,

       they would have been justified in conducting the search based on K-9 Willy’s

       positive indications alone. Therefore, we conclude that the traffic stop did not

       run afoul of the Fourth Amendment to the United States Constitution.


                             B. Article I, Section 11 of the Indiana Constitution

[29]   Doctor also challenges the validity of the traffic stop under Article I, Section 11

       of the Indiana Constitution. This provision is “almost identical in text to its

       federal counterpart.” State v. Washington, 898 N.E.2d 1200, 1205 (Ind. 2008).

       Nevertheless, Article I, Section 11 of the Indiana Constitution requires a

       separate and independent analysis as “the Indiana Constitution may protect

       searches that the federal Constitution does not.” Id. at 1206. “When police

       conduct is challenged as violating this section, the burden is on the State to

       show that the search [or seizure] was reasonable under the totality of the

       circumstances.” Id. Relevant considerations in determining the reasonableness

       of a search or seizure “turns on a balancing of: ‘1) the degree of concern,

       suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion


       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016      Page 17 of 19
       the method of the search or seizure imposes on the citizen’s ordinary activities,

       and 3) the extent of law enforcement needs.’” Johnson, 992 N.E.2d at 959

       (quoting Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005)).


[30]   Although Doctor fails to set forth the aforementioned considerations for

       analyzing an Article 1, Section 11 claim, he argues that the totality of the

       circumstances does not support the traffic stop because there is no evidence that

       the confidential informants who provided information about Doctor to

       Detective Simpson were reliable, nor is there any indication that the officers

       corroborated the informants’ tips. Doctor also asserts that Officer Reed’s

       testimony that the vehicle had “a hard travel appearance” was insufficient to

       pursue a narcotics investigation. (Tr. p. 44). We need not address these

       contentions because our court has previously considered this issue and

       determined that “there are legitimate law enforcement and safety interests in

       prohibiting the operation of vehicles with excessive window tinting, and police

       officers are entitled to enforce the statute.” Johnson, 992 N.E.2d at 959.

       Therefore, we conclude that the traffic stop was not contrary to Article I,

       Section 11 of the Indiana Constitution because the officers acted reasonably

       under the totality of the circumstances based on the fact that they observed a

       valid traffic violation, and the officers did not unnecessarily extend the length of

       the traffic stop in order to acquire probable cause to search the vehicle.


                                                CONCLUSION

[31]   Based on the foregoing, we conclude that Doctor has not forfeited his right to

       appeal based on an untimely Notice of Appeal; therefore, the State’s motion to
       Court of Appeals of Indiana | Opinion 82A01-1507-CR-844 | July 26, 2016   Page 18 of 19
       dismiss is denied. We further conclude that the basis for the traffic stop did not

       violate Doctor’s constitutional rights; therefore, the trial court appropriately

       denied his motion to suppress.


[32]   Affirmed and remanded for further proceedings.


[33]   Kirsch, J. and Pyle, J. concur




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