Tyson A. Eminger v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 10 2019, 10:17 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Kindley Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tyson A. Eminger, July 10, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2759
v. Appeal from the Noble Superior
Court
State of Indiana, The Honorable Robert E. Kirsch,
Appellee-Plaintiff Judge
Trial Court Cause No.
57D01-1709-F2-6
Baker, Judge.
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[1] Tyson Eminger appeals his convictions and the sentence imposed by the trial
court for Level 2 Felony Dealing in Methamphetamine,1 Level 4 Felony
Unlawful Possession of a Firearm by a Serious Violent Felon,2 and Class A
Misdemeanor Resisting Law Enforcement,3 arguing that the trial court erred
when it admitted certain evidence because the search was unlawful and that the
sentence is inappropriate in light of the nature of the offenses and his character.
Finding no error and the sentence not inappropriate, we affirm.
Facts
[2] On September 18, 2017, there was an active arrest warrant for Eminger. On that
day, the Noble County Sheriff’s Department received information from Richard
Rhoades about Eminger after Deputy Sheriff Johnny Ritchie stopped Rhoades’s
vehicle and questioned him. Rhoades agreed to meet Eminger at a gas station in
Rome City in order to purchase methamphetamine as part of a controlled drug
buy. Several undercover officers then drove to the gas station.
[3] Later that evening, Eminger, Joshua Rowe, and Kristian Martin got into a
vehicle. Martin was in the driver’s seat, Eminger was in the front passenger’s
seat, and Rowe sat directly behind Eminger. They first drove to Eminger’s
home to pick up two items and then to the Marathon gas station in Rome City,
1
Ind. Code §§ 35-48-4-1.1(a)(2), -1.1(e)(1).
2
Ind. Code § 35-47-4-5(c).
3
Ind. Code § 35-44.1-3-1(a)(1).
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where they were to meet Rhoades. At the gas station, Eminger was standing
outside the vehicle when law enforcement came out of hiding. The officers
drew their weapons and ordered Eminger to lie on the ground. Eminger
refused. He then proceeded to argue and fight with some of the officers until he
was tased into submission.
[4] Officers then took Eminger into custody and searched him, finding $1,070 and
a cell phone in his pockets. A search of the phone revealed the text message
conversation between Eminger and Rhoades about methamphetamine. The
officers ordered Martin and Rowe out of the vehicle. Deputy Sheriff Carey
Coney then conducted an open-air sniff around the vehicle using a drug-sniffing
dog. The dog almost immediately alerted the officers to the presence of
something in the front passenger’s seat, where Eminger had been sitting. The
drug-sniffing dog did not alert the officers to any other part of the vehicle. The
officers ran a VIN and license plate check of the vehicle and discovered that it
was stolen.
[5] With this information, the officers searched the vehicle. On the floor of the
front passenger’s seat inside a blue lunch tote, they found a firearm and an
Arizona Tea can with a hidden compartment containing a substance that was
later determined to be methamphetamine. The methamphetamine was
packaged in a way that is consistent with dealing. In the seat directly behind the
front passenger’s seat, the officers found a black bag containing syringes, a
small amount of a substance that was later determined to be marijuana, more
methamphetamine, scales, ammunition, and small baggies that are commonly
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used for drug transactions. Later testing revealed the total amount of
methamphetamine to be 28.02 grams.
[6] On September 22, 2017, the State charged Eminger with one count of Level 2
felony dealing in methamphetamine, one count of Level 4 felony unlawful
possession of a firearm by a serious violent felon, and one count of Class A
misdemeanor resisting law enforcement. The State also alleged that Eminger
was an habitual offender. Eminger has a long criminal history, which includes
convictions for Class C misdemeanor illegal possession of an alcoholic
beverage, Class A misdemeanor resisting law enforcement, Class A
misdemeanor operating a vehicle while intoxicated, Class A misdemeanor
possession of marijuana, Class D felony possession of marijuana, Class A
misdemeanor criminal recklessness with a vehicle, Class A misdemeanor
battery resulting in bodily injury, Class A misdemeanor driving while
suspended, Class C felony possession of two or more chemical reagents, and
Class B felony dealing in methamphetamine.
[7] On December 22, 2017, Eminger filed a motion to suppress the evidence.
Following a February 2, 2018, evidentiary hearing, the trial court denied
Eminger’s motion to suppress, holding that Eminger did not have standing to
challenge the search because it was of a stolen vehicle and that even if Eminger
had standing, the officers had probable cause to search.
[8] On April 13, 2018, the State filed an additional charge of Level 4 felony
possession of methamphetamine. At Eminger’s September 19-21, 2018, jury
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trial, Eminger made a continuing objection to the admission of any evidence
obtained from the search of the vehicle, which the trial court noted and
overruled. See Tr. Vol. II p. 175. Eminger waived his right to a jury trial as to
the habitual offender enhancement. The jury found Eminger guilty as charged.
After a separate bench trial, the trial court found that Eminger was an habitual
offender.
[9] At Eminger’s October 19, 2018, sentencing hearing, the trial court merged the
Level 4 felony possession conviction into the Level 2 felony dealing conviction
for purposes of double jeopardy. The trial court then sentenced Eminger to
twenty years for the dealing in methamphetamine conviction and enhanced the
sentence by ten years due to Eminger’s habitual offender status; six years for the
unlawful possession of a firearm by a serious violent felon conviction, with four
years suspended to probation, to be served consecutively with the felony dealing
conviction; and one year for the resisting law enforcement conviction to be
served concurrently with the felony dealing conviction. Eminger’s aggregate
executed sentence is thirty-two years. Eminger now appeals.
Discussion and Decision
I. Admission of Evidence
[10] First, Eminger argues that the trial court erred when it admitted certain
evidence stemming from the search of the vehicle because the search violated
the federal and state constitutions. Specifically, Eminger contends that the
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officer’s search of the black bag and the blue lunch tote containing
methamphetamine and the firearm was unlawful pursuant to the Fourth
Amendment to the United States Constitution and Article 1, Section 11 of the
Indiana Constitution.
[11] As a general matter, the Fourth Amendment to the United States Constitution
protects citizens from unreasonable searches and seizures. Article 1, Section 11
of the Indiana Constitution contains nearly identical language and says that
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable search or seizure, shall not be violated[.]”
Evidence that is the product of an unlawful search is inadmissible under both
the Fourth Amendment to the United States Constitution and Article 1, Section
11 of the Indiana Constitution. Hill v. State, 956 N.E.2d 174, 177 (Ind. Ct. App.
2011) (holding that evidence that is obtained from an illegal search is “fruit of
the poisonous tree,” and therefore, inadmissible in a court of law).
[12] Reversal of a trial court’s admissibility determinations is appropriate 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). “Moreover, we will sustain the
trial court[’s] [decision on the admission of evidence] if it can be done on any
legal ground apparent in the record.” Jester v. State, 724 N.E.2d 235, 240 (Ind.
2000). However, we will review a trial court’s conclusions of law de novo,
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giving no weight to the legal analysis below. Sanders v. State, 989 N.E.2d 332,
334 (Ind. 2013).4
A. Fourth Amendment to the United States Constitution
[13] First and foremost, there is the question of standing. Under the Fourth
Amendment, a defendant may not challenge the constitutionality of a search
unless he can demonstrate that he had a reasonable expectation of privacy in
the place to be searched. Sidener v. State, 55 N.E.3d 380, 383 (Ind. Ct. App.
2016); see generally Minnesota v. Carter, 525 U.S. 83, 90-91 (1998). Generally,
defendants have no standing to object to the search of a stolen automobile
because they have no legitimate expectation of privacy therein. Medelvitz v.
State, 416 N.E.2d 1270, 1274 (Ind. Ct. App. 1981). Additionally, passengers—
as opposed to drivers—have diminished expectations of privacy in vehicles
because they do not exercise control over those vehicles. Sidener, 55 N.E.3d at
383. Eminger was not only a passenger inside a vehicle, but the vehicle itself
was also stolen. So, from the outset, the evidence appears to demonstrate that
4
Both parties concede that this appeal is appropriately framed as a challenge to the admission of evidence
since Eminger did not bring an interlocutory appeal of the denial of his motion to suppress. Cochran v. State,
843 N.E.2d 980, 982 (Ind. Ct. App. 2006). However, the State argues that Eminger failed to make a
continuing objection to the admission of all subsequent evidence obtained from the search on constitutional
grounds, insisting that this Court should only review Eminger’s claims for fundamental error. See Appellee’s
Br. p. 14-15. This is patently incorrect. Notwithstanding the trial court’s acknowledgment of Eminger’s
continuing objection, even the State’s attorney recognized the continuing objection for appeal when he said,
“I think Judge that it’s judicious and wise of us to make those objections of record now that way in the event
there is a conviction that issue or those issues are reserved for appeal later.” Tr. Vol. II p. 175. Therefore,
Eminger has not waived these issues for appeal, and we are not limited to reviewing Eminger’s claims only
for fundamental error.
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Eminger lacks standing to challenge the constitutionality of the search under
the Fourth Amendment to the United States Constitution.
[14] Assuming solely for argument’s sake that Eminger had standing to challenge
the search, the Fourth Amendment prohibits warrantless searches unless an
exception applies. Black v. State, 810 N.E.2d 713, 715 (Ind. 2004). The
automobile exception is well established, allowing officers to conduct a
warrantless search of a vehicle where (1) the vehicle was readily mobile or
capable of being driven when the police first seized it; and (2) probable cause
existed that the vehicle contained contraband or evidence of a crime. Cheatham
v. State, 819 N.E.2d 71, 75-76 (Ind. Ct. App. 2004). Probable cause exists
“where facts found on a reasonable inquiry would induce a reasonably
intelligent and prudent person to believe the accused has committed [a] crime.”
Street v. Shoe Carnival, Inc., 660 N.E.2d 1054, 1056 (Ind. Ct. App. 1996). “The
determination of probable cause is a mixed question of law and fact.” Earles v.
Perkins, 788 N.E.2d 1260, 1264 (Ind. Ct. App. 2003).
[15] Here, it is undisputed that the officers had the authority to invoke the
automobile exception to search the vehicle and its contents therein. First, the
vehicle was readily mobile or capable of being driven when the police first
seized it by virtue of its inherent operability. See Myers v. State, 839 N.E.2d 1146,
1152 (Ind. 2005).
[16] Second, the officers had probable cause to believe that the vehicle contained
contraband or evidence of a crime. Rhoades provided the Noble County
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Sheriff’s Department with information about Eminger. Also, they learned
through Rhoades’s conversation with Eminger that Eminger was willing to sell
and/or buy controlled substances. After the officers tased and arrested Eminger
at the gas station, they employed a drug-sniffing dog to conduct an open-air
sniff around the vehicle, and the drug-sniffing dog immediately alerted officers
to something in the front passenger’s seat. While an open-air sniff by itself does
not necessarily provide law enforcement with probable cause, our Supreme
Court has held that a sniff and subsequent alert following the initial suspicion of
contraband can provide law enforcement with probable cause to believe a
vehicle contains illegal drugs. State v. Hobbs, 933 N.E.2d 1281, 1286 (Ind. 2010);
see also Neuhoff v. State, 708 N.E.2d 889, 891 (Ind. Ct. App. 1999).
[17] The drug-sniffing dog’s open-air sniff and alert combined with the knowledge
that Eminger was ready and willing to engage in a transaction for controlled
substances, that Eminger was aggressive and resistant to law enforcement’s
commands, and that the vehicle was stolen established the requisite probable
cause to invoke the automobile exception.
[18] Accordingly, pursuant to the automobile exception, law enforcement had the
authority to search any part of the vehicle that may have contained contraband,
including the blue lunch tote with the Arizona Tea can as well as the black bag.
Wilkinson v. State, 70 N.E.3d 392, 404 (Ind. Ct. App. 2017) (holding that under
the automobile exception, once probable cause is established, officers are
permitted to search any items in the vehicle that might conceal controlled
substances); see also United States v. Ross, 456 U.S. 798, 825 (1982) (establishing
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that “if probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may conceal
the object of the search[]”). Therefore, this search did not violate the Fourth
Amendment to the United States Constitution, and all evidence obtained from
that search was admissible.
B. Article 1, Section 11 of the Indiana Constitution
[19] Searches by law enforcement require a different review under Article 1, Section
11 of the Indiana Constitution:
Conformity of a search to the Indiana Constitution turns on an
evaluation of the “reasonableness” of the conduit of the law
enforcement officers, not on the expectation of privacy commonly
associated with Fourth Amendment analysis. Relevant
considerations in evaluating reasonableness of a search under all
the circumstances include the degree to which the search or
seizure disrupts the suspect’s normal activities, and those facts and
observations that support the officer’s decision to initiate the
search or seizure. . . . [T]he reasonableness of a search or seizure
generally turns on a balance of: 1) the degree of concern,
suspicion, or knowledge that a violation has occurred, 2) the
degree of intrusion the method of the search or seizure imposes on
a citizen’s ordinary activities, and 3) the extent of law enforcement
needs.
Stark v. State, 960 N.E.2d 887, 892 (Ind. Ct. App. 2012) (internal citations
omitted).
[20] First, regarding knowledge of a violation, there was a high degree of suspicion
that there was unlawful activity afoot. The Noble County Sheriff’s Department
received pertinent information from Rhoades that Eminger would readily buy
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and/or sell methamphetamine. Additionally, the officers learned that there was
an active warrant for Eminger’s arrest. Then, after surrounding Eminger, tasing
him, and bringing him into custody, law enforcement conducted an open-air
sniff using a drug-sniffing dog, and the dog almost immediately alerted the
officers to the presence of drugs inside a stolen vehicle. All of this evidence in
the aggregate created a strong suspicion that some law had been violated.
[21] Second, regarding the intrusion into Eminger’s ordinary activities, Eminger and
the other passengers had been traveling in a stolen vehicle. Though a search
under the Indiana Constitution is analyzed for reasonableness, “in examining
the degree of intrusion, we consider the nature of the privacy interest upon
which the search intrudes and the character of the intrusion itself.” Chest v.
State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009) (holding that intrusion into
defendant’s ordinary activities was “minimal” because the search occurred at
night and involved a vehicle that did not belong to defendant); see generally
Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). Furthermore, the open-air
sniff by the drug-sniffing dog did not lead to a search of Eminger’s most
personal effects such as a wallet or bag that belonged to him. Rather, the
officers ultimately searched the passenger and backseat areas of a stolen vehicle
in which Eminger was merely a passenger, which led to further searches of the
blue lunch tote, the black bag, and the Arizona Tea can. Our Supreme Court
has held that “individuals have a ‘reduced expectation of privacy with regard to
the property they transport in cars’ traveling on public highways where the
property is subject to police examination and is ‘exposed to traffic accidents that
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may render all their contents open to public scrutiny.’” Krise v. State, 746
N.E.2d 957, 971 (Ind. 2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 303
(1999)). As such, this search did not unreasonably intrude into Eminger’s
ordinary activities.
[22] Third, regarding the extent of law enforcement needs, the officers who seized
and arrested Eminger went into the situation knowing that there was an
outstanding warrant for Eminger’s arrest. There was a strong possibility—after
stopping and gleaning information from Rhoades—that Eminger would have
drugs on his person. Accordingly, the officers had the authority to use the taser,
the drug-sniffing dog, and their methods of arrest to search Eminger, the stolen
vehicle, and its contents to ensure that no contraband would be removed or
destroyed. And, given that this was a controlled drug buy, it was reasonable for
the officers to be present and to employ the tactics they used to keep the
situation from becoming precarious.
[23] Therefore, in looking at the totality of the circumstances, this search was lawful
pursuant to Article 1, Section 11 of the Indiana Constitution, and the trial court
did not err by admitting all the evidence obtained from that search.
II. Appropriateness
[24] Next, Eminger argues that the aggregate sentence imposed by the trial court is
inappropriate in light of the nature of the offenses and his character.
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[25] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,
after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense[s] and the
character of the offender.” The defendant bears the burden of persuading us
that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). In determining whether the sentence is inappropriate, we will consider
numerous factors such as culpability of the defendant, the severity of the crime,
the damage done to others, and a “myriad [of] other factors that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). It is our
job to leaven the outliers, not to achieve a perceived “correct” sentencing result.
Id. at 1225.
[26] The maximum sentence for a Level 2 felony dealing in methamphetamine
conviction is thirty years and the minimum sentence is ten years. Ind. Code §
35-50-2-4.5. The advisory sentence is seventeen and one-half years. Id. The
maximum sentence for a Level 4 felony unlawful possession of a firearm by a
serious violent felon conviction is twelve years and the minimum sentence is
two years. I.C. § 35-50-2-5.5. The advisory sentence is six years. Id. For a Class
A misdemeanor resisting law enforcement conviction, the defendant “shall be
imprisoned for a fixed term of not more than one (1) year[.]” Ind. Code § 35-50-
3-2.
[27] Here, the trial court sentenced Eminger to twenty years—just over the advisory
sentence—for the dealing in methamphetamine count and enhanced it by ten
years due to Eminger’s habitual offender status; six years—the advisory
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sentence—with two years to be executed and four years suspended to
probation, for the unlawful possession of a firearm by a serious violent felon
count; and the maximum one year for the resisting law enforcement count.
[28] First, as to the nature of the offenses, Eminger has committed serious drug
crimes. The officers discovered almost thirty grams of methamphetamine inside
the vehicle, and pursuant to the dealing statute, the State only needed to prove
that the amount of the drug involved is at least ten grams. See I.C. §§ 35-48-4-
1.1(a)(2), -1.1(e)(1). Given this large quantity of methamphetamine along with
the presence of scales, syringes, individual baggies with labeling, and a firearm,
it is apparent that Eminger was heavily involved in the trafficking and dealing
of illegal controlled substances. McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct.
App. 1993) (holding that “[c]ircumstantial evidence of intent to deliver, such as
possession of a large quantity of drugs, large amounts of currency, scales,
plastic bags, and other paraphernalia . . . can support a conviction”).
Furthermore, the text messages from Eminger’s phone demonstrate that
Eminger was ready and willing to engage in a drug transaction with Rhoades.
And, once confronted with armed officers, Eminger argued, fought back, and
ultimately resisted arrest until he was tased into submission. Therefore, we find
that the nature of the offenses does not render Eminger’s sentence
inappropriate.
[29] Second, as to Eminger’s character, Eminger has a lengthy criminal record that
includes multiple convictions, some for crimes that Eminger was charged with
and convicted of in this case—namely, resisting law enforcement and dealing in
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methamphetamine. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App.
2007) (holding that “it is appropriate to consider such a [criminal] record as a
poor reflection on the defendant’s character, because it may reveal that he . . .
has not been deterred even after having been subjected to the police authority of
the State[]”). The sheer number of offenses that constitute Eminger’s criminal
record—alcohol abuses as a minor, battery resulting in bodily injury, possession
of marijuana, dealing in methamphetamine, resisting law enforcement, and
more—shows a clear disregard for the rule of law. Despite multiple
opportunities for improvement, Eminger shows no sign of reform. Therefore,
we find that Eminger’s character does not render the sentence inappropriate.
[30] In sum, we will not revise Eminger’s sentence pursuant to Indiana Appellate
Rule 7(B).
[31] The judgment of the trial court is affirmed.
Riley, J., and Bailey, J., concur.
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