Jeremy Darringer v. State of Indiana

Nov 13 2015, 8:51 am

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Brian J. Johnson Gregory F. Zoeller

Danville, Indiana Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeremy Darringer, November 13, 2015

Appellant-Defendant, Court of Appeals Case No.

32A01-1503-CR-86

v. Appeal from the Hendricks

Superior Court

State of Indiana, The Honorable Stephenie LeMay-

Appellee-Plaintiff. Luken, Judge

Trial Court Cause No.

32D05-1406-CM-574

Brown, Judge.

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[1] Jeremy Darringer appeals his conviction for operating while intoxicated.

Darringer raises one issue which we revise and restate as whether the trial court

abused its discretion in admitting certain evidence. We reverse.

Facts and Procedural History

[2] At approximately 3:10 a.m. on June 27, 2014, Hendricks County Sheriff’s

Deputy Nathan Hibschman was sitting in his vehicle in a church parking lot

observing traffic. Deputy Hibschman saw a vehicle drive east on 100 North, did

not see a license plate, and began following the vehicle. He followed the vehicle

for approximately one mile at a distance of about forty feet. While following

the vehicle, Deputy Hibschman did not witness any traffic infractions

and initiated his emergency equipment to stop the vehicle because he believed it

did not have a license plate. After turning on his emergency lights which further

illuminated the scene, Deputy Hibschman was unable to see a license

plate on the vehicle. The vehicle then pulled over.

[3] As he was stopping and about twelve to fifteen feet behind the vehicle, he

activated his spotlight, swung it across the vehicle, and saw a paper plate taped

in the rear window. He was able to read the letters and numbers on the paper

plate after he exited his vehicle and took a couple of steps forward. He then

called in the plate as he was approaching the vehicle, observed three occupants

inside, and approached the driver’s side. Darringer, the driver, rolled down the

window, and Deputy Hibschman detected the odor of alcohol coming from the

vehicle. Deputy Hibschman said: “Good morning.” State’s Exhibit 5 at 1:22.

Darringer asked Deputy Hibschman how he was doing. Id. at 1:24. Deputy

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Hibschman then introduced himself and asked Darringer for his license and

registration but then stated that Darringer may not have a registration because

he had a temporary plate. Id. at 1:24-1:35. Darringer explained that the car

was brand new. Id. at 1:30-1:33.

[4] When Deputy Hibschman was speaking with Darringer through the driver’s

window, he observed that Darringer had glassy eyes and slurred speech and

asked him to step out of the vehicle. Deputy Hibschman still smelled the odor

of alcohol after Darringer exited the vehicle. He then patted down Darringer

and asked him how much he had to drink, and Darringer said: “Nothing.” Id.

at 2:41. Deputy Hibschman told Darringer that he thought he smelled alcohol

on his breath, and Darringer again stated that he did not have anything to

drink.

[5] Deputy Hibschman then spoke with the passengers and said that he smelled

alcohol in the vehicle. He returned to Darringer and stated:

The reason I pulled you over is at first I thought you didn’t have

a license plate because there’s nothing down here. It wasn’t until

I got you stopped that I saw the temporary plate in the window

there. So, just for your information and I know you’re coming

up well you’ve got a couple of weeks left to go on it, but it’s

actually illegal to have the temporary plate mounted in the

window up there. . . . Even though it is a temporary plate, it does

need to be mounted down here where the plates usually go.

Id. at 4:47-5:14.

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[6] Deputy Hibschman then administered field sobriety tests and still detected the

odor of an alcoholic beverage. Darringer failed the horizontal gaze nystagmus

test and the walk and turn test. Deputy Hibschman transported Darringer to

the Sheriff’s Department to perform a breath test. Darringer blew into the

Datamaster machine and registered .12 grams of alcohol per 210 liters of

breath.

[7] That same day, the State charged Darringer with Count I, operating a vehicle

while intoxicated as a class A misdemeanor, and Count II, operating a vehicle

with an alcohol concentration equivalent to at least 0.08 grams of alcohol

content as a class C misdemeanor.

[8] On February 17, 2015, Darringer filed a motion to suppress. At the hearing,

Deputy Hibschman testified that the license plate is “supposed to be mounted

down where plates are intended to be mounted.” Transcript at 10. The court

watched the video recording from Deputy Hibschman’s vehicle until the point

in time that he exited his vehicle and approached Darringer’s vehicle.

[9] Defense counsel argued there were no grounds for the initial stop because the

placement of the plate in the window was proper under Ind. Code § 9-32-6-11.

He also argued: “I think it’s clear from the video that you can see there’s

something in the corner. The Deputy wasn’t even looking at that because at the

time he was under the impression, incorrectly, that this plate had to be on the

bumper.” Id. at 57-58. The prosecutor conceded that it was no longer the case

that an individual could not display a temporary license plate in the back

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window and that Deputy Hibschman was mistaken in his belief that the plate

needed to be on the bumper, but argued that the license plate was not visible at

all as required by the statute.

[10] The court denied Darringer’s motion and stated:

With regards to the stop and detention and the arrest overall, I’m

denying the Motion to Suppress and Motion in Limine based on

the fact that the officer stated and I watched this video, the officer

did not call in the numbers on the temporary tag or paper plate or

interim license plate, whatever you want to call it, until he was

already approaching the vehicle. The statute says it must be

clearly visible. . . . Well, in the majority of the parts of Hendricks

County, it may be clearly visible at noon, but in Hendricks

County and frankly across the State of Indiana, it doesn’t mean

it’s going to be clearly visible at midnight and that is, it’s

supposed to be clearly visible. And so, therefore, there is no

other choice that a police officer has, if you’re trying to find a

license plate, police officers are used to through [sic], on the

whole back of the vehicle. There’s no testimony that he only

looked at the license plate when looking at this vehicle, he would

have had to look on more than the license plate area, which is the

bumper that has the lights in order to identify the make and

model. If he was only was [sic] looking at the license plate

bumper in the middle of the bumper where a license plate is

normally attached, a metal license plate or interim license plate,

he would not know anything else about the vehicle. So,

therefore, I find that the stop was appropriate because the plate

was not clearly visible even though it was in the proper place in

the back of the window.

Id. at 71-72. On February 19, 2015, Darringer filed a motion to reconsider the

court’s order denying his motion to suppress, and the court denied the motion.

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[11] On February 24, 2015, a jury trial was held. During Deputy Hibschman’s

testimony, defense counsel stated: “[W]e would just make an objection to the

traffic stop based on the testimony today.” Id. at 173. Defense counsel asked

the court to incorporate the hearing, arguments and brief, and objected “based

on the lack of a traffic infraction that it’s a violation of the Fourth Amendment

to the U.S. Constitution and obviously Article One, Section Eleven of the

Indiana Constitution.” Id. The court overruled the objection and “ke[pt] [its]

order denying the Motion to Suppress in effect.” Id. at 173-174. During direct

examination, Deputy Hibschman testified that he initially observed that the

vehicle did not appear to have any license plate, that when he said the vehicle

did not have a license plate he was referring to the bumper, that he did not see a

license plate anywhere on Darringer’s car, that he did not look in the rear

window, that he did not look anywhere else other than the bumper, and that he

first saw the license plate after he had initiated the traffic stop and activated his

spotlight. Deputy Hibschman testified that his statements to Darringer that a

temporary plate had to be mounted on the bumper where plates usually are

placed was in fact incorrect but that he believed it at the time.

[12] The court admitted the BAC DataMasters Evidence Ticket indicating a result of

.12 and Deputy Hibschman’s testimony that the .12 was based on grams of

alcohol per 210 liters of breath. On cross-examination, Deputy Hibschman

testified that after July 1, 2013, people were legally allowed to drive a vehicle

with a paper plate in the left rear window. Sheila Arnold, a forensic

toxicologist employed by the Indiana State Department of Toxicology, testified

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that her opinion was that Darringer was intoxicated and impaired on June 27,

2014.

[13] After the prosecutor rested, defense counsel moved for a directed verdict on

Count I, operating a vehicle while intoxicated. The court denied the motion.

The jury found Darringer guilty as charged. The court entered judgment of

conviction on Count I, operating a vehicle while intoxicated as a class A

misdemeanor, and sentenced Darringer to 180 days in the Hendricks County

Jail with 178 days suspended to probation.

Discussion

[14] The issue is whether the court abused its discretion by admitting the evidence

obtained after the traffic stop. Darringer contends that the State failed to prove

that the stop was based upon reasonable suspicion that Darringer committed a

traffic violation or that Deputy Hibschman made an objectively reasonable

mistake of fact or law justifying the stop of Darringer’s car. He argues that his

interim license plate was properly displayed under the version of Ind. Code § 9-

32-6-11 in effect at the time of the stop, which permitted an interim plate to be

displayed in the rear window. He notes that there is no dispute that Deputy

Hibschman was unaware that Indiana law had changed to allow for the interim

plate to be displayed in the rear window of a vehicle for almost a year before the

stop, and contends that Deputy Hibschman’s mistake of law cannot be said to

be objectively reasonable because it was not premised upon a reasonable

interpretation of an existing statute. Darringer also argues that while Deputy

Hibschman testified at one point that he did not see the license plate on the

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vehicle, he was fixated on the bumper and did not look in the rear window, and

that while it is possible that he may not have been able to see the interim plate

without shining his spotlight onto the rear window, there is nothing in the

record to support why he could not have done so without initiating a traffic

stop.

[15] The State argues that Deputy Hibschman repeatedly testified that he did not see

a plate on Darringer’s vehicle and only saw the plate after he had already exited

his vehicle and that the video recording does not contradict his testimony. The

State asserts that the facts were sufficient to justify a reasonable officer’s decision

to stop Darringer’s vehicle and that Darringer is asking this court to reweigh

the evidence. The State also contends that the record does not support

Darringer’s inference that Deputy Hibschman was fixated on the bumper to the

point of disregarding any other fact, and that there is evidence supporting the

trial court’s decision that his on-the-spot evaluation would reasonably suggest

that Darringer’s plate was not clearly visible as required by statute. The State

asserts that it is unnecessary for this court to apply Heien v. North Carolina, 135

S. Ct. 530 (2014), cited by Darringer, which discussed an officer’s mistake of

law, because a plate must be clearly visible under Indiana statutory law.

[16] We review the trial court’s ruling on the admission or exclusion of evidence for

an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g

denied. We reverse only where the decision is clearly against the logic and effect

of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997),

reh’g denied. Even if the trial court’s decision was an abuse of discretion, we will

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not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d

957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied. Also, we may affirm a

trial court’s decision to admit evidence seized as a result of a search based on

any legal theory supported by the record. Edwards v. State, 724 N.E.2d 616,

620-621 (Ind. Ct. App. 2000), trans. denied. We review de novo a ruling on the

constitutionality of a search or seizure, but we give deference to a trial court’s

determination of the facts, which will not be overturned unless clearly

erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008); see also Carpenter v.

State, 18 N.E.3d 998, 1001 (Ind. 2014) (holding that the ultimate determination

of the constitutionality of a search or seizure is a question of law that we

consider de novo).

[17] In ruling on admissibility following the denial of a motion to suppress, the trial

court considers the foundational evidence presented at trial. Carpenter, 18

N.E.3d at 1001. If the foundational evidence at trial is not the same as that

presented at the suppression hearing, the trial court must make its decision

based upon trial evidence and may consider hearing evidence only if it does not

conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).

It also considers the evidence from the suppression hearing that is favorable to

the defendant only to the extent it is uncontradicted at trial. Carpenter, 18

N.E.3d at 1001.

[18] The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

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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.

[19] A law enforcement officer must have reasonable suspicion of criminal conduct

in order to justify a traffic stop, which is a “seizure” for purposes of the Fourth

Amendment. Clarke v. State, 868 N.E.2d 1114, 1118 (Ind. 2007) (citing Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). When determining whether an officer

had reasonable suspicion for a Terry stop, we consider whether the totality of

the circumstances presented a particularized and objective basis for the officer’s

belief that the subject was engaged in criminal activity. State v. Keck, 4 N.E.3d

1180, 1184 (Ind. 2014). In assessing the whole picture, we must examine the

facts as known to the officer at the moment of the stop. Clark v. State, 994

N.E.2d 252, 264 (Ind. 2013). We review findings of reasonable suspicion de

novo. Id. This is necessarily a fact-sensitive inquiry. Id.

[20] We will briefly discuss the law prior to the adoption of Ind. Code § 9-32-6-11 in

2013. In Merritt v. State, 829 N.E.2d 472, 473-476 (Ind. 2005), the Indiana

Supreme Court considered whether placing a license plate in a vehicle’s rear

window contravened Indiana’s statutes then governing the proper display and

illumination of plates. The Court examined Ind. Code § 9-18-2-26(b), which at

the relevant time provided:

A license plate shall be securely fastened, in a horizontal

position, to the vehicle for which the plate is issued:

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(1) To prevent the license plate from swinging;

(2) At a height of at least twelve (12) inches from the

ground, measuring from the bottom of the license plate;

(3) In a place and position that are clearly visible;

(4) Maintained free from foreign materials and in a

condition to be clearly legible; and

(5) Not obstructed or obscured by tires, bumpers,

accessories, or other opaque objects.

829 N.E.2d at 474. The Court also examined Ind. Code § 9-19-6-4(e), which

required illumination of license plates.1 Id. The Court found these provisions

interacted to “require that the license plate be displayed upon the rear of the

vehicle, securely fastened, in a horizontal position, and also be illuminated at

night by a separate white light so as to be clearly legible from fifty feet.” Id. at

476. The Court concluded that because “the defendant’s license plate inserted

inside the back window of his automobile was not displayed appropriately, . . .

the officer’s stop was proper, and . . . the trial court did not err in admitting

evidence resulting from the stop.” Id. at 475.

1

At the time of the offense in Merritt and the present offense, Ind. Code § 9-19-6-4(e) provided:

Either a tail lamp or a separate lamp must be placed and constructed so as to illuminate the

rear registration plate with a white light and make the plate clearly legible from a distance of

fifty (50) feet to the rear. A tail lamp or tail lamps, together with a separate lamp for

illuminating the rear registration plate, must be wired so as to be lighted whenever the head

lamps or auxiliary driving lamps are lighted.

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[21] In Meredith v. State, 906 N.E.2d 867, 871 (Ind. 2009), the Indiana Supreme

Court discussed the display and illumination of plates before a vehicle is

permanently registered. The Court held that the statute for interim license

plates, Ind. Code § 9-18-26-10,2 failed to alter or amend the required placement

and display of license plates set forth in Ind. Code §§ 9-18-2-26 and 9-19-6-4(e).

906 N.E.2d at 872. The Court observed that Ind. Code § 9-18-2-26 governed

the display of “license plates” without discriminating between interim and

regular plates. Id. The Court also observed that Ind. Code § 9-19-6-4(e)

required that all “registration plate[s]” be illuminated so as to be visible from a

distance of fifty feet. Id. The Court held:

As explained in Merritt, these provisions “require that the license

plate be displayed upon the rear of the vehicle, securely fastened,

in a horizontal position, and also be illuminated at night by a

2

At the time of the alleged offense in Meredith, Ind. Code § 9-18-26-10 provided:

(a) The bureau may issue an interim license plate to a dealer or manufacturer who is

licensed and has been issued a license plate under section 1 [IC 9-18-26-1] of this chapter.

(b) The bureau shall prescribe the form of an interim license plate issued under this section.

However, a plate must bear the assigned registration number and provide sufficient space

for the expiration date as provided in subsection (c).

(c) Whenever a dealer or manufacturer sells a motor vehicle, the dealer or manufacturer

may provide the buyer with an interim license plate. The dealer shall, in the manner

provided by the secretary of state, affix on the plate in numerals and letters at least three (3)

inches high the date on which the interim license plate expires.

(d) An interim license plate authorizes a motor vehicle owner to operate the vehicle for a

maximum period of thirty-one (31) days after the date of delivery of the vehicle to the

vehicle’s owner or until a regular license plate is issued, whichever occurs first.

(e) A motor vehicle that is required by law to display license plates on the front and rear of

the vehicle is only required to display a single interim plate.

(Repealed by Pub. L. No. 92-2013, § 46 (eff. July 1, 2013)).

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separate white light so as to be clearly legible from fifty feet.”

829 N.E.2d at 476. Placing “a license plate on the inside of the

back window clearly does not satisfy the requirement that license

plates be displayed ‘upon the rear of the vehicle.’” Id. at 475.

Likewise, the defendant’s license plate was not illuminated by a

separate white light so that it was clearly legible from fifty feet.

Officer Lackey was therefore justified in stopping the defendant.

Id. The Court concluded:

[A]s neither the statutes nor regulations differentiate between the

display requirements for a permanent and interim plate, the

interim plate must be mounted in the same fashion as the

permanent plate. Any other method of display may give rise to

reasonable suspicion for law enforcement officers to initiate a

traffic stop to ascertain whether the display complies with all

statutory requirements.

As to this defendant, Officer Lackey had, by virtue of the interim

plate being both unilluminated and placed incorrectly, reasonable

suspicion to pull over the defendant’s vehicle for a traffic stop.

Thus, the initial stop due to the suspected license plate display

violation was proper and the trial court did not err in refusing to

suppress the resulting evidence on this basis.

Id. at 873.

[22] Effective July 1, 2013, the legislature amended Ind. Code § 9-18-2-26 to provide

that “(a) License plates, including temporary license plates, shall be displayed as

follows . . . (3) For every other vehicle, upon the rear of the vehicle” and “(c)

[a]n interim license plate must be displayed in the manner required by IC 9-32-

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6-11(f).” The legislature also added Ind. Code § 9-32-6-11, titled “Interim

plates,” effective July 1, 2013, and subsection (f) provided in part:

An interim license plate[3] shall be displayed: (1) in the same

manner required in IC 9-18-2-26; or (2) in a location on the left side

of a window facing the rear of the motor vehicle that is clearly visible and

unobstructed. The plate must be affixed to the window of the motor

vehicle.

(Emphasis added).

[23] Upon the adoption of Ind. Code § 9-32-6-11, the legislature altered the required

placement and display of interim plates set forth in Ind. Code §§ 9-18-2-26 and

9-19-6-4(e). The State does not dispute on appeal that Darringer’s plate was an

interim plate. For almost one year prior to the stop in this case, the statute as

amended allowed for an interim license plate to be displayed on the left side of

the rear window of Darringer’s vehicle. Accordingly, we conclude that Deputy

Hibschman stopped Darringer’s vehicle based upon an unreasonable mistake of

law.

[24] In Heien v. North Carolina, 135 S. Ct. 530, 534 (2014), the United States Supreme

Court addressed whether a police officer’s mistake of law can give rise to the

reasonable suspicion necessary to uphold a seizure under the Fourth

3

Ind. Code § 9-32-6-11(c) provides that “[w]henever a dealer or manufacturer sells or leases a motor vehicle,

the dealer or manufacturer may provide the buyer or lessee with an interim license plate.” Ind. Code § 9-32-

6-11(d) provides that “[a]n interim license plate authorizes a motor vehicle owner or lessor to operate the

vehicle for a maximum period of thirty-one (31) days after the date of sale or lease of the vehicle to the

vehicle’s owner or lessor or until a regular license plate is issued, whichever occurs first.”

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Amendment. In that case, a police officer initiated a traffic stop after observing

only the left brake light illuminate when a vehicle braked. 135 S. Ct. at 534.

Nicholas Brady Heien, a passenger of the stopped vehicle, consented to a

search, and police discovered cocaine. Id. The State charged Heien with

attempted trafficking of cocaine. Id. at 535. Heien moved to suppress the

evidence seized from the car, contending that the stop and search had violated

the Fourth Amendment of the United States Constitution. Id. The trial court

denied the suppression motion. Id. Heien pled guilty but reserved the right to

appeal the suppression decision. Id.

[25] The relevant provision of the vehicle code in Heien provided that a car must be:

equipped with a stop lamp on the rear of the vehicle. The stop

lamp shall display a red or amber light visible from a distance of

not less than 100 feet to the rear in normal sunlight, and shall be

actuated upon application of the service (foot) brake. The stop

lamp may be incorporated into a unit with one or more other rear

lamps.

Id. at 535 (quoting N.C. Gen. Stat. Ann. § 20-129(g) (2007)). The North

Carolina Court of Appeals reversed and held that the initial stop was not valid

because driving with only one working brake light was not actually a violation

of North Carolina law. Id. (citing 214 N.C. App. 515, 714 S.E.2d 827 (2011)).

[26] The State of North Carolina appealed, and the North Carolina Supreme Court

reversed. Id. (citing 366 N.C. 271, 737 S.E.2d 351). Noting that the State had

chosen not to seek review of the Court of Appeals’ interpretation of the vehicle

code, the North Carolina Supreme Court assumed for purposes of its decision

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that the faulty brake light was not a violation. Id. The court concluded that, for

several reasons, the police officer could have reasonably, even if mistakenly,

read the vehicle code to require that both brake lights be in good working order.

Id. The North Carolina Supreme Court noted that a nearby code provision

required that all originally equipped rear lamps be functional. Id. (citing 366

N.C. at 282-283, 737 S.E.2d at 358-359).

[27] The United States Supreme Court observed that the ultimate touchstone of the

Fourth Amendment is reasonableness. Id. at 536. “To be reasonable is not to

be perfect, and so the Fourth Amendment allows for some mistakes on the part

of government officials, giving them ‘fair leeway for enforcing the law in the

community’s protection.’” Id. (quoting Brinegar v. United States, 338 U.S. 160,

176, 69 S. Ct. 1302 (1949)). The Court observed that searches and seizures

based on mistakes of fact can be reasonable and held:

But reasonable men make mistakes of law, too, and such

mistakes are no less compatible with the concept of reasonable

suspicion. Reasonable suspicion arises from the combination of

an officer’s understanding of the facts and his understanding of

the relevant law. The officer may be reasonably mistaken on

either ground. Whether the facts turn out to be not what was

thought, or the law turns out to be not what was thought, the

result is the same: the facts are outside the scope of the law.

There is no reason, under the text of the Fourth Amendment or

our precedents, why this same result should be acceptable when

reached by way of a reasonable mistake of fact, but not when

reached by way of a similarly reasonable mistake of law.

Id. The Court also held:

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Heien also contends that the reasons the Fourth Amendment

allows some errors of fact do not extend to errors of law. Officers

in the field must make factual assessments on the fly, Heien notes,

and so deserve a margin of error. In Heien’s view, no such

margin is appropriate for questions of law: The statute here either

requires one working brake light or two, and the answer does not

turn on anything “an officer might suddenly confront in the

field.” Brief for Petitioner 21. But Heien’s point does not

consider the reality that an officer may “suddenly confront” a

situation in the field as to which the application of a statute is

unclear—however clear it may later become. A law prohibiting

“vehicles” in the park either covers Segways or not, see A. Scalia

& B. Garner, Reading Law: The Interpretation of Legal Texts 36-

38 (2012), but an officer will nevertheless have to make a quick

decision on the law the first time one whizzes by.

Contrary to the suggestion of Heien and amici, our decision does

not discourage officers from learning the law. The Fourth

Amendment tolerates only reasonable mistakes, and those

mistakes—whether of fact or of law—must be objectively

reasonable. We do not examine the subjective understanding of

the particular officer involved. Cf. Whren v. United States, 517

U.S. 806, 813, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996). And the

inquiry is not as forgiving as the one employed in the distinct

context of deciding whether an officer is entitled to qualified

immunity for a constitutional or statutory violation. Thus, an

officer can gain no Fourth Amendment advantage through a

sloppy study of the laws he is duty-bound to enforce.

Id. at 539-540. In applying the test of whether the mistake of law was

reasonable to the facts, the Court stated:

Here we have little difficulty concluding that the officer’s error of

law was reasonable. Although the North Carolina statute at

issue refers to “a stop lamp,” suggesting the need for only a single

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working brake light, it also provides that “[t]he stop lamp may be

incorporated into a unit with one or more other rear lamps.”

N.C. Gen. Stat. Ann. § 20-129(g) (emphasis added). The use of

“other” suggests to the everyday reader of English that a “stop

lamp” is a type of “rear lamp.” And another subsection of the

same provision requires that vehicles “have all originally

equipped rear lamps or the equivalent in good working order,” §

20-129(d), arguably indicating that if a vehicle has multiple “stop

lamp[s],” all must be functional.

The North Carolina Court of Appeals concluded that the “rear

lamps” discussed in subsection (d) do not include brake lights,

but, given the “other,” it would at least have been reasonable to

think they did. Both the majority and the dissent in the North

Carolina Supreme Court so concluded, and we agree. See 366

N.C., at 282-283, 737 S.E.2d, at 358-359; id., at 283, 737 S.E.2d,

at 359 (Hudson, J., dissenting) (calling the Court of Appeals’

decision “surprising”). This “stop lamp” provision, moreover,

had never been previously construed by North Carolina’s

appellate courts. See id., at 283, 737 S.E.2d, at 359 (majority

opinion). It was thus objectively reasonable for an officer in

Sergeant Darisse’s position to think that Heien’s faulty right

brake light was a violation of North Carolina law. And because

the mistake of law was reasonable, there was reasonable

suspicion justifying the stop.

Id. at 540.

[28] The facts in Heien are clearly distinguishable from those present here. As noted,

the legislature added Ind. Code § 9-32-6-11, titled “Interim plates,” which

allowed an interim plate to be placed “in a location on the left side of a window

facing the rear of the motor vehicle that is clearly visible and unobstructed” so

that for almost one year prior to the stop, an interim license plate could be

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displayed on the left side of a window facing the rear of the motor vehicle.

Unlike in Heien, which dealt with a statute referring to “a stop lamp” suggesting

the need for only a single working brake light, another portion of the statute

referring to “other rear lamps,” and yet another subsection requiring that

vehicles “have all originally equipped rear lamps or the equivalent in good

working order,” Ind. Code § 9-32-6-11(f) explicitly allows an interim plate to be

displayed “in a location on the left side of a window facing the rear of the motor

vehicle that is clearly visible and unobstructed” and that “[t]he plate must be

affixed to the window of the motor vehicle.” The evidence was that the plate

was an interim plate,4 the prosecutor conceded that the relevant statute was Ind.

Code § 9-32-6-11, and the State does not contend on appeal that the plate in

Darringer’s window was any type other than an interim plate. Under the

circumstances, we cannot say that the reason for stopping the vehicle based

upon the failure to mount the interim plate on the bumper was a reasonable

mistake of law.

[29] To the extent that the State asserts that the stop was proper because the plate

was not clearly visible, we acknowledge that “if a police officer makes a

temporary detention on one basis, later determined to be insufficient, the stop

may be upheld on another basis shown by the facts known to the officer.”

WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH

4

Deputy Hibschman testified at trial that Darringer would not have a registration based upon his plate. This

testimony indicates that Darringer had an interim plate, which is one that is provided by a dealer to a

purchaser or lessee of a vehicle. See Ind. Code § 9-32-6-11(c) and (d).

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AMENDMENT 157 n.30 (5th ed. 2012). However, the critical component is

whether the facts supplying a separate basis were known to the officer. See Clark,

994 N.E.2d at 264 (“In assessing the whole picture, we must examine the facts

as known to the officer at the moment of the stop.”); Campos, 885 N.E.2d at 597

(“Reasonable suspicion exists where the facts known to the officer, together

with the reasonable inferences arising from such facts, would cause an

ordinarily prudent person to believe that criminal activity has or is about to

occur.” (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999))).

[30] The record reveals that Deputy Hibschman specifically testified that he did not

look in the rear window or anywhere else on the vehicle other than the bumper.

Specifically, the following exchange occurred during the direct examination of

Deputy Hibschman:

Q And what attracted your attention to [the vehicle]?

A When the vehicle passed I initially observed that the vehicle

did not appear to have any license plate.

Q Did this peak your interest at all?

A It did.

Q Why?

A Because vehicles are required to have a registration.

Q By registration, do you mean license plate?

A Yes, I do.

Q Now, when you say that the vehicle didn’t have a license

plate, are you referring to the bumper?

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A Yes.

Q Was there a license plate anywhere else in that vehicle?

A I later found out that there was.

Q Well, let’s say when you’re in the Lutheran Church parking

lot, you saw the car, did you see a license plate on Mr.

Darringer’s car?

A I could not.

Q Anywhere?

A No.

Q Not in the windshield?

A No.

Q Not on the side?

A No.

Q So what did you do?

A Uh, at that point, I pulled out from the parking lot and begin

following the vehicle? [sic]

Q And how long did you follow the vehicle?

A Approximately one (1) mile.

Q About what distance do you follow Mr. Darringer’s vehicle?

A Since, I didn’t see a plate, there was no need to get close

enough to try and get the license plate numbers, so I hung back

approximately three (3) to four (4) car lengths I would estimate it

at probably forty (40) feet or more.

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Q During this mile that you followed Mr. Darringer’s vehicle,

did you ever see a license plate?

A I did not.

Q Did you look on the bumper?

A I did.

Q Did you look in the rear window?

A I didn’t.

Q You did not?

A I didn’t.

Q Did you look anywhere else other than the bumper?

A I did not.

Q And so, you mentioned you did see a license plate at some

point. When was the first point you saw the license plate?

A Just after we had crossed over Ronald Reagan Parkway, we

were just east of Ronald Reagan Parkway when I had initiated

the traffic stop, um, when I had activated my spot light and

shone it up on the vehicle, I did catch the, uh, white temporary

plate that was taped in the rear window.

Transcript at 166-168.

[31] While Deputy Hibschman testified that he did not see a plate on the vehicle, he

also repeatedly stated that he did not look in the rear window and did not look

anywhere else other than the bumper. Accordingly, we cannot say that the

facts known to Deputy Hibschman would have otherwise provided a basis for

the stop based upon the idea that the interim plate in the rear window was not

clearly visible, where Deputy Hibschman specifically testified that he did not

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look in the rear window. Under the circumstances, we conclude that the trial

court abused its discretion when it admitted evidence obtained pursuant to an

illegal traffic stop. Accordingly, we reverse Darringer’s conviction for operating

while intoxicated as a class A misdemeanor.5 See Kroft v. State, 992 N.E.2d 818,

822 (Ind. Ct. App. 2013) (observing that an officer testified that he pulled over

the defendant simply because there was white light coming out of a tiny hole

and that he did not testify that he had trouble spotting the defendant’s vehicle

from behind, holding that the officer did not have reasonable suspicion to stop

the defendant pursuant to Ind. Code § 9-21-7-1 which required that a vehicle be

in good working order and not endanger others, and reversing the trial court’s

denial of the defendant’s motion to suppress); Killebrew v. State, 976 N.E.2d 775,

783 (Ind. Ct. App. 2012) (concluding that the trial court abused its discretion

when it admitted evidence obtained pursuant to an illegal traffic stop and

reversing the defendant’s conviction for possession of marijuana as a class A

misdemeanor), reh’g denied, trans. denied.

Conclusion

[32] For the foregoing reasons, we reverse Darringer’s conviction for operating a

vehicle while intoxicated as a class A misdemeanor.

5

Because we reverse Darringer’s conviction on the basis that he was subjected to an unreasonable search

under the Fourth Amendment, we do not reach Darringer’s claim that the seizure was unreasonable under

Article 1, Section 11 of the Indiana Constitution. See Reinhart v. State, 930 N.E.2d 42, 45 n.1 (Ind. Ct. App.

2010).

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[33] Reversed.

Altice, J., concurs.

Riley, J., concurs in result without opinion.

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