Dezmon Gaines v. State of Indiana , 973 N.E.2d 1239 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY ELFTMAN GREGORY F. ZOELLER
Kokomo, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
FILED
Sep 12 2012, 9:55 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
DEZMON GAINES, )
)
Appellant-Defendant, )
)
vs. ) No. 34A05-1201-CR-21
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable William C. Menges, Judge
Cause No. 34D01-1107-FD-570
September 12, 2012
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Dezmon Gaines (Gaines), appeals the trial court’s denial of
his motion to suppress the evidence.
We affirm.
ISSUES
Gaines raises two issues on interlocutory appeal, which we restate as:
(1) Whether Indiana Code section 9-19-19-4, which prescribes the requirements
for a vehicle’s tinted windows, is void for vagueness; and
(2) Whether Gaines’ search was reasonable.
FACTS AND PROCEDURAL HISTORY
On July 7, 2011, Sergeant Tonda Cockrell with the Kokomo Police Department
(Officer Cockrell) was attempting to locate a missing woman in the area of 1800 North
Purdum in Kokomo, Indiana. During her search, Officer Cockrell received information
that the woman might be associated with Jeremy Wilson (Wilson), who drove a black
Cadillac or a tan Buick. While driving in the area of where Wilson was known to live,
Officer Cockrell noticed a black Cadillac with tinted windows. Because she was driving
an unmarked police vehicle and was not in uniform, she called for a marked unit to
conduct a traffic stop of the Cadillac for having illegally tinted windows.
Kokomo Police Officers Bruce Rood (Officer Rood) and Thomas Mygrant
(Officer Mygrant) responded to her call. The Officers stopped the vehicle in the Elks
Lodge parking lot. As Officer Rood approached the window he could see people inside
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the car but could not tell how many people there were “until the window was rolled
down.” (Transcript p. 25). After the window was down, Officer Cockrell noticed Gaines
on the back seat. He had something in his mouth that he was chewing. Officers Rood
and Cockrell both went to the car’s passenger side where Officer Rood ordered Gaines
out of the vehicle. A strong odor of marijuana emanated from the vehicle.
Officer Rood placed Gaines in handcuffs. He briefly searched Gaines for weapons
and detected what he believed to be a baggie containing marijuana in Gaines’ front
pocket. Officer Rood did not take the baggie out of the pants’ pocket; instead, he placed
his tazer in the small of Gaines’ back and ordered him to spit out the object in his mouth
or he would be tazed. Gaines complied with the order and he spit out a baggie containing
a substance that resembled rock cocaine.
On July 8, 2011, the State filed an Information charging Gaines with Count I,
possession of cocaine, a Class D felony, Ind. Code § 35-48-4-6(a); Count II, dealing in
marijuana, a Class D felony, I.C. §§ 35-48-4-10(a)(2); -(b)(1)(B); and Count III,
possession of marijuana, a Class D felony, I.C. § 35-48-4-11(1). On November 1, 2011,
Gaines filed a motion to suppress the evidence resulting from an invalid traffic stop and
an illegal search. On December 16, 2011, the trial court conducted a hearing on Gaines’
motion, at the conclusion of which the trial court denied the motion to suppress evidence.
On December 27, 2011, Gaines requested certification to pursue an interlocutory appeal,
which the trial court granted on the same day. On February 24, 2012, we accepted the
interlocutory appeal.
Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Standard of Review
When reviewing a ruling on a motion to suppress, we consider the evidence most
favorable to the ruling and any uncontradicted evidence to the contrary to determine
whether there is sufficient evidence to support the ruling. Williams v. State, 754 N.E.2d
584, 587 (Ind. Ct. App. 2001), trans. denied. Where the evidence is conflicting, we
consider only the evidence favorable to the ruling. Id. We will affirm if the decision is
supported by substantial evidence of probative value. Id.II. Traffic Stop
First, Gaines contends that the trial court abused its discretion when it declared the
Officers’ traffic stop to be legal because of the vehicle’s illegally tinted windows. An
officer may stop a vehicle when he observes minor traffic violations. Williams, 754
N.E.2d at 587. Indiana Code section 9-19-19-4(c) provides in pertinent part:
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.
Focusing on the statutory requirement that the infraction is established when the vehicle’s
occupants “cannot be easily identified or recognized,” Gaines asserts that this
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qualification is void for vagueness because the statute “does not state if identification of
race, gender, and number of passengers is sufficient or if window tinting must be such
that every feature of every person can be seen.” (Appellant’s Br. p. 6).
Upon a challenge that a statute is unconstitutional we presume the statute is
constitutional. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). The
burden is on the defendant to rebut this presumption and we resolve all reasonable doubts
in favor of the constitutionality of the statute. Id. A criminal statute may be void for
vagueness for either of two independent reasons: (1) for failing to provide notice
enabling ordinary people to understand the conduct that it prohibits, and (2) for the
possibility that it authorizes or encourages arbitrary or discriminatory enforcement.
Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007). Where, as here, the defendant asserts
the second prong, the statute must include a line of demarcation between trivial and
substantial acts in order to avoid arbitrary or discriminatory enforcement of the statute.
Id. Assessment of a vagueness challenge is limited to the facts and circumstances of each
case. Id.Although we agree that the statute omits a definition of “identified” or
“recognized,” the statute does delineate a scientifically objective measurement for
compliance within its context. As such, the statute imposes firm boundaries on the
window tint, thereby precluding any arbitrariness or discriminatory enforcement by
police officers.
Moreover, the statute as applied to the current situation did not invite “overly
broad discretion by police.” (Appellant’s App. p. 7). During the hearing on the motion
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to suppress, Officer Rood, who conducted the traffic stop, testified that upon approaching
the vehicle, he could not see through the windshield into the car. He stated that he could
“see people but [he] couldn’t see what was going on, the windows were tinted too much.”
(Tr. p. 25). Officer Rood clarified that he could not tell how many people were inside the
car until the window was rolled down. Although Officer Cockrell stated during the
hearing that she could see through the window and notice the “nervous state of the people
inside” as well as the race and gender of the driver, we are mindful that where the
evidence is conflicting, we only consider the evidence favorable to the ruling. (Tr. p. 17).
See Williams, 754 N.E.2d at 587. Therefore, based on Officer’s Rood testimony, we find
substantial evidence of probative value to affirm the trial court’s ruling.
III. Search
Next, Gaines alleges that the trial court erred when it found Officer Rood’s search
of Gaines to have been reasonable. Specifically, Gaines claims that Officer Rood’s threat
of using a tazer to induce Gaines to spit out what he was chewing after smelling an odor
of marijuana coming from the car was unreasonable.
The Fourth Amendment to the United States Constitution protects citizens against
unreasonable searches and seizures of persons and property by requiring a warrant based
on probable cause. Moore v. State, 827 N.E.2d 631, 637 (Ind. Ct. App. 2005), reh’g
denied, trans. denied. Probable cause exists when an officer has knowledge of facts and
circumstances that would lead a reasonably prudent person to believe a crime has been
committed. Id. However, it is axiomatic that warrants, both search and arrest, are
required unless probable cause exists along with exigent circumstances rendering it
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impractical to seek a warrant. Id. Exigent circumstances may include danger to law
enforcement officers or the risk of loss or destruction of evidence. Id. Absent probable
cause, exigent circumstances alone are insufficient to justify a warrantless seizure. Id.Officers Rood and Cockrell testified that when they opened up the passenger door,
an odor of marijuana emanated from the vehicle. At the same time, all three Officers
noticed Gaines chewing on something in his mouth. Both Officers Rood and Cockrell
stated that they believed Gaines was attempting to swallow some type of narcotic or other
contraband. Based on these circumstances, we conclude that a reasonably prudent person
could believe that Gaines was attempting to destroy contraband. Therefore, probable
cause existed for Gaines’ warrantless search.
Gaines now points to Conwell v. State 714 N.E.2d 764 (Ind. Ct. App. 1999) as
support for his argument that the means used by Officer Rood—i.e., the threat to use a
tazer—to compel Gaines to spit out the contraband were unreasonable. In Conwell,
Conwell, on probation at the time, was stopped for travelling at a high rate of speed in an
area known to be a “high narcotics area.” Id. at 766. Because of the officer’s experience
that individuals hide their narcotics “either in their mouth or in between the crack of their
buttocks,” the officer requested Conwell to open his mouth and to lift his tongue. Id.Conwell did not comply but the officer observed that Conwell began to make a chewing
motion. Id. The officer testified that he neither saw Conwell place anything in his mouth
nor did he see Conwell chewing on an object. Id. Failing to get compliance, the officer
began to choke Conwell. Id. A struggle ensued which only ended after Conwell was
maced twice with CS spray. Id.7
In analyzing the reasonableness of the means used to compel compliance, the
Conwell court adopted the three-part balancing test of Winston v. Lee, 470 U.S. 753, 761-
62, 105 S. Ct. 1611, 1617-18, 84 L.Ed.2d 662 (1985). The Winston test requires the
reasonableness of force used during a body search procedure to be measured against (1)
the extent to which the procedure used may threaten the safety or health of the individual,
(2) the extent of the intrusion upon the individual’s dignitary interests in personal privacy
and bodily integrity, and (3) the community’s interest in fairly and accurately
determining guilt or innocence. Id. Balancing these factors, the Conwell court focused
on the method of force, as it found a choke hold to be dangerous, with a risk of serious
injury to Conwell. Conwell, 714 N.E.2d at 768. As such, the court determined that the
use of the choke hold amounted to unreasonable force. Id. at 769.
The Conwell court distinguished its situation from Foxall v. State, 298 N.E.2d 470(Ind. Ct. App. 1973). In Foxall, officers inserted a plastic shoehorn in Foxall’s mouth to
facilitate the removal of the contents in his mouth after Foxall had bitten the fingers of
two of the officers. Id. at 477. The Foxall court determined the use of force to have been
reasonable as Foxall’s air flow had not been restricted. Id.Here, we cannot conclude that Officer Rood used unreasonable force by ordering
Gaines to spit out the contraband under threat of using a tazer. Unlike Conwell, Gaines
was not choked and he was not maced. Gaines was only told that he would be tazed if he
did not comply with the Officer’s order. No amount of physical force was used and there
was no risk to Gaines’ physical safety. There was no intrusion on Gaines’ bodily
integrity by uttering a threat. At no time was Gaines’ airflow restricted. Consequently,
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balancing the Winston factors, we cannot conclude that the issuance of a verbal threat
amounted to unreasonable force. We affirm the trial court.
CONCLUSION
Based on the foregoing, we conclude that Indiana Code section 9-19-19-4 is not
void for vagueness and the Officer’s search of Gaines was reasonable.
Affirmed.
BAILEY, J. concurs
CRONE, J. concurs in result
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