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Tuesday, August 20, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Carl J. Brandenburg v. State of Indiana, a 6-page opinion, Judge Najam writes:

Carl Brandenburg appeals his sentence following the revocation of his probation. He presents two issues for our review: 1. Whether the trial court abused its discretion when it ordered him to serve the balance of his suspended sentence in the Department of Correction. 2. Whether the trial court miscalculated the amount of his child support arrearage. We affirm, but we remand with instructions.
In Gregory Johnson v. State of Indiana, a 9-page opinion, Judge Barnes writes:
Even if we were to assume that the tinting on the windows of the minivan Johnson was driving was legal, that does not negate Officer Minch’s testified-to observation that, at the time of the stop, he could not clearly identify the vehicle’s occupants. Likewise, we are precluded from accepting Johnson’s invitation to consider photographic evidence presented during trial that he argues shows the tinting on his rear window was not excessive and, in fact, was no darker than other similar Dodge Caravans. To do so at the expense of Officer Minch’s testimony of what he observed at the time of the traffic stop would constitute reweighing the evidence, which we cannot do. Viewing the evidence in a light most favorable to the trial court’s ruling, even if Officer Minch was mistaken about whether the rear window of the minivan violated the Window Tint Statute, his testimony establishes that it was a good faith mistake and that there was reasonable suspicion to make the stop. * * *

Johnson also makes a statutory argument, which is essentially that the General Assembly could not have intended to permit police officers unbridled discretion to pull over vehicles with legal window tinting on the basis of their own subjective assessment that the tinting is too dark, or that Officer Minch’s testimony that he could not adequately “identify . . . and describe” the occupants of the minivan did not meet the requirements of the Window Tint Statute. We observe, however, that Officer Minch gave very similar testimony in Sanders, which our supreme court deemed adequate to establish reasonable suspicion to pull over a vehicle. We also assume that, when drafting and subsequently recodifying the Window Tint Statute, the General Assembly was well aware of the constitutional principle that police officers are permitted to pull over vehicles upon reasonable suspicion that a traffic law has been violated, and furthermore that “pretextual” stops of vehicles for minor traffic violations do not run afoul of either the United States or Indiana Constitutions. See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996); Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001). If the General Assembly believes it would be wise to re-write the Window Tint Statute in such a way as to limit police officer authority to pull over vehicles for suspected violations of that law, it could do so. Additionally, the primary check upon potential abuse of the Window Tint Statute as a pretext to conduct traffic stops must lie with trial courts, which are in a position to judge the credibility of police officer testimony regarding the ability to see through a particular vehicle’s window tinting.

NFP civil opinions today (6):

Deborah D. Minnich v. William B. Minnich (NFP)

City of Bloomington v. Cheryl Underwood (NFP)

In the Matter of the Termination of the Parent Child Relationship of: D.W., Minor Child, D.C., Father v. The Indiana Department of Child Services (NFP)

Hoosier Enterprises VII, LLC v. Diamond Vending, Inc. (NFP)

Debra Barrett v. Katie Patton (NFP)

NFN Valance v. Brandy L. Valance (NFP)

NFP criminal opinions today (3):

Joyce Ann Hawkins v. State of Indiana (NFP)

Janyer Pinto v. State of Indiana (NFP)

Akeem Turner v. State of Indiana (NFP)

Posted by Marcia Oddi on August 20, 2013 01:11 PM
Posted to Ind. App.Ct. Decisions