Herbert v. State

• Decision Date: 25 July 2008
• Docket Number: No. 79A04-0712-CR-748.,79A04-0712-CR-748.
• Parties: Torin HERBERT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

891 N.E.2d 67

Torin HERBERT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A04-0712-CR-748.

Court of Appeals of Indiana.

July 25, 2008.

Thomas J. O'Brien, O'Brien & Dekker, Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Arturo Rodriguez II, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Torin Herbert appeals his convictions for class A felony dealing in cocaine, class D felony dealing in marijuana, and class D felony maintaining a common nuisance. We affirm.

Issues

I. Did the trial court abuse its discretion in admitting evidence seized following a traffic stop?

II. Did the trial court abuse its discretion in excluding the testimony of Herbert's witness regarding the tinting of his car windows?

Facts and Procedural History

The facts most favorable to the jury's verdict indicate that around 6:30 p.m. on January 18, 2007, Tippecanoe County Sheriff's Deputy Andrew Heath was patrolling in his marked police cruiser when he noticed a car with windows tinted so darkly that he could not tell "who was in the vehicle or how many." Tr. at 127. Indiana Code Section 9-19-19-4(c) 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.

Based on the darkness of the car's window tint, Deputy Heath initiated a traffic stop.

Deputy Heath shone his spotlight on the car. As he approached the driver's side, he "still couldn't tell who was in the vehicle." Tr. at 131. Deputy Heath asked Herbert, the driver, to roll down the rear window so that he "could tell if anybody was on the inside of the vehicle at the rear seat just so [he] could see what that person was doing." Id. Deputy Heath asked Herbert for his driver's license and registration and asked the two passengers for identification. Deputy Heath asked all three persons to exit the car and requested the assistance of a narcotics detection canine. Officer Albert Demello and his canine responded to Deputy Heath's request.

Deputy Heath asked Herbert if he had any "dangerous weapons on him." Id. at 135. Herbert said no. Deputy Heath then asked Herbert if he had "any illegal narcotics or contraband in the vehicle[.]" Id. Herbert initially said no, but once Deputy Heath advised him that a narcotics detection canine "would be walked around his vehicle[,]" Herbert admitted that "there was a little bit of weed under the driver's seat." Id. Officer Demello's canine indicated the presence of contraband on the driver's side of the car. Officer Demello reached under the driver's seat and found a bag containing 108.27 grams of marijuana. Herbert was arrested and transported to the county jail, where an officer strip-searched him and found a bag containing 17.7 grams of cocaine between his buttocks.

The State charged Herbert with class A felony dealing in cocaine, class A felony possession of cocaine, class D felony dealing in marijuana, class D felony possession of marijuana, and class D felony maintaining a common nuisance. Herbert filed a motion to suppress the drug-related evidence, which the trial court denied. A jury trial commenced on October 23, 2007. Herbert made a continuing objection to the drug-related evidence based on the arguments raised in his motion to suppress. The trial court overruled the objection. On October 24, 2007, the jury found Herbert guilty as charged. On November 16, 2007, the trial court merged the possession counts with the dealing counts and sentenced Herbert to thirty-three years.

Discussion and Decision

I. Admission of Evidence

Herbert contends that the trial court erred in admitting evidence regarding the marijuana found in his car and the cocaine found on his person after his arrest. "The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances." Robertson v. State, 877 N.E.2d 507, 512 (Ind.Ct.App.2007) (citation omitted). "We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. We also consider uncontroverted evidence in the defendant's favor." Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007) (citation omitted).

Herbert's arguments regarding the admissibility of the drug-related evidence are premised on Article 1, Section 11 of the Indiana Constitution, which provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

"The purpose of Article One, Section 11 is to protect from unreasonable police activity, those areas of life that Hoosiers regard as private." Brown v. State, 653 N.E.2d 77, 79 (Ind.1995). "Section 11 `must receive a liberal construction in its application to guarantee the people against unreasonable search and seizure.'" Mitchell v. State, 745 N.E.2d 775, 786 (Ind.2001) (quoting Brown, 653 N.E.2d at 79). The State bears "the burden of showing that, in the totality of the circumstances, the intrusion was reasonable." Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999).

Our supreme court has stated that Article 1, Section 11 "permits police to stop and briefly detain a motorist if the officer reasonably suspects that the motorist is engaged in, or about to engage in, illegal activity" and that there is "nothing unreasonable in permitting an officer, who may have knowledge or suspicion of unrelated criminal activity by the motorist, to nevertheless respond to an observed traffic violation." Mitchell, 745 N.E.2d at 787. A traffic stop "is lawful if there is an objectively justifiable reason for it, and the stop may be justified on less than probable cause." Ransom v. State, 741 N.E.2d 419, 421 (Ind.Ct.App.2000), trans. denied (2001).

Our supreme court has also stated that Section 11 permits an officer, during an investigatory stop, to detain a motorist briefly only as necessary to complete the officer's work related to the illegality for which the motorist was stopped. Where an officer stops a vehicle for a traffic violation, a request for the driver's license and vehicle registration, a license plate check, a request to search the driver's vehicle and an inquiry regarding whether the driver has a weapon in the vehicle are within the scope of reasonable detention.

State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006) (citation omitted).

Here, Deputy Heath stopped Herbert's car based on a suspected violation of Indiana Code Section 9-19-19-4(c).¹ Deputy Heath asked Herbert for his driver's license and registration, asked him to exit the car, and asked if he had any "dangerous weapons on him." Tr. at 135. Herbert does not specifically challenge the constitutionality of these actions. Herbert does contend, however, that Deputy Heath violated Article 1, Section 11 in asking him whether "he had any illegal narcotics or contraband in the vehicle" without any reasonable and articulable suspicion that he possessed such items. Id.

Herbert relies on State v. Washington, 875 N.E.2d 278 (Ind.Ct.App.2008), trans. granted, in which a police officer stopped the defendant's moped for suspected traffic violations and asked him if he had any guns, drugs, or items on his person that might harm the officer. Washington replied that he had "`a couple dime bags' in his front pocket" and, upon request, gave the officer permission to remove them. 875 N.E.2d at 280. The State charged Washington with marijuana possession, and he moved to suppress the marijuana on the basis that the officer violated his constitutional rights by asking him if he had drugs. The trial court granted Washington's motion to suppress.

In addressing the State's appeal, the Washington majority held that such an inquiry is "unreasonable and unconstitutional under Article 1, Section 11." Id. at 283. The majority noted that the traffic stop of Washington's moped "presented no indications of drugs or other criminal activity" and attached considerable significance to

the fact that to allow police to routinely question individuals during a traffic stop about the presence of drugs would open the door to all sorts of inquiries, including whether the person cheated on his last year's tax return or had in the past illegally pirated music from the internet. While tax fraud and internet piracy are—like illegal drug possession—serious concerns, routine traffic stops are not the place for such inquiries.

Id. at 282-83. Consequently, the majority upheld the trial court's suppression of the marijuana seized during the traffic stop of Washington's moped.

Judge Barnes dissented, stating that although the law from other jurisdictions was "mixed" regarding "whether a police officer can ask a motorist stopped for a traffic violation questions unrelated to the initial reason for the stop," he "would side with those cases holding that police officers generally may ask such questions." Id. at 283 (Barnes, J., dissenting). Judge Barnes went on to say,

Regarding the Fourth Amendment, I acknowledge that there are cases...