Denton v. State, 41A05-0309-CR-488.

• Docket Nº: No. 41A05-0309-CR-488.
• Citation: 805 N.E.2d 852
• Case Date: April 06, 2004
• Court: Court of Appeals of Indiana

805 N.E.2d 852

Carl R. DENTON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 41A05-0309-CR-488.

Court of Appeals of Indiana.

April 6, 2004.

805 N.E.2d 853

Matt Rumble, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Monica Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

Today we hold that the fact that the vehicle the defendant was driving had what appeared to be a broken rear window did not, without more, afford police a reasonable suspicion that the vehicle was stolen so as to justify an investigatory stop. Appellant-defendant Carl R. Denton, Jr., appeals his conviction for Operating a Motor Vehicle After Having Been Adjudged a Habitual Traffic Violator,¹ a class D felony. Specifically, Denton challenges the denial of his motion to suppress on the grounds that the arresting police officer improperly stopped his vehicle and further argues that the State failed to show that his driver's license was validly suspended in accordance

805 N.E.2d 854

with Indiana Code section 9-30-10-5. Inasmuch as we conclude that the traffic stop was unlawful and therefore reverse the judgment of the trial court on that basis, we need not address Denton's argument regarding the suspension of his driver's license

FACTS²

On May 25, 2001, at approximately 2:10 p.m., Major Randy Werden, a Johnson County Sheriff's Department deputy, was on routine patrol. At one point, Major Werden noticed an individual who was subsequently identified as Denton, driving a 1987 Oldsmobile with a rear passenger or driver's side window that he thought had been broken out. He then pulled in behind the vehicle and began to follow it. Although it had been raining quite heavily, Major Werden noticed that there was no plastic covering on the window.

Suspecting that the vehicle may have been stolen because of the broken window, Major Werden radioed in the license plate number, but the dispatcher at the Sheriff's Department advised him that the computer system was not functioning properly and that the license plate number could not be tracked. Thus, Major Werden activated his lights and stopped the vehicle. When Major Werden approached, he noticed broken glass on the back seat.

He then requested Denton's license and registration, whereupon Denton responded that both documents were at his residence. Instead, Denton handed Major Werden a work identification card, which included his name and social security number. Major Werden again asked Denton for the registration and suggested that Denton look in his glove box. When Denton opened the box, the registration fell out. Major Werden then contacted the dispatcher in Greenwood and learned that the vehicle was, in fact, registered to Denton. However, Major Werden was also informed that Denton's driving privileges had been suspended because he had been adjudged a habitual traffic violator (HTV). Denton acknowledged to Major Werden that he knew he was a HTV. As a result, Denton was charged with the above offense.

Thereafter, on May 31, 2002, Denton filed a motion to suppress, alleging that the initial stop of the vehicle was improper because Major Werden had not observed any traffic or equipment violation or any suspicious behavior by Denton that may have justified the stop. At the suppression hearing, Major Werden testified that his eighteen years of experience as a police officer taught him that vehicle thieves typically break "unsuspecting windows," such as rear wing windows or driver's side wing windows. Tr. p. 3. Therefore, the State argued that the stop was proper. The trial court ultimately denied this motion on December 12, 2002, and the case proceeded to a bench trial on March 5, 2003.

At trial, it was revealed that the Bureau of Motor Vehicles (BMV) was preparing to suspend Denton's driving privileges for ten years as of September 2, 1997. Thus, on September 3, the Driver Improvement Safety (DIS) division of the BMV entered the suspension into Denton's driver's record and attempted to notify Denton of his pending HTV status by mailing a notice of the suspension to him at 1345 South Jefferson Street in Brownsburg. The BMV purportedly had obtained this address from a probable cause affidavit and thus changed Denton's address in September 1992. However, the alleged probable cause affidavit was not in Denton's BMV packet and was not offered into evidence.

805 N.E.2d 855

Before this notice of suspension was sent, however, Denton had renewed his "identification card" with the BMV on March 13, 1992, and gave his address as 6111 Elaine Street in Indianapolis

The contents of the September 3 notice sent by the BMV included: (1) the offenses that were the bases for the suspension; (2) the beginning and ending dates of the suspension; and (3) notice of the administrative and judicial remedies available. However, this notice was marked undeliverable and was returned to the BMV. Thereafter, the BMV sent two additional notices of suspension to the Brownsburg address on October 3, 1997, and neither was returned. Both of the October 3, 1997 notices contained the...