text:
    STATE of Indiana, Appellant-Plaintiff, v. Gregory LAGRONE, Appellee-Defendant.
    No. 49A05-1203-CR-135.
    Court of Appeals of Indiana.
    March 26, 2013.

      Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorney for Appellant.
    Yvonne Ferguson-Watkins, Ferguson-Watkins & Associates, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

The State charged Gregory Lagrone with one count of dealing in marijuana and one count of possession of marijuana, as Class D felonies. Lagrone filed a motion to suppress evidence seized pursuant to a search warrant that was obtained and executed after police had entered Lagrone’s residence and secured the premises. Following a hearing, the trial court granted the motion to suppress, effectively preventing prosecution of Lagrone. In the State’s appeal, we consider the following issues sua sponte:

1.Whether the insertion of a global positioning device (“GPS”) inside an already opened package of marijuana obtained from United Parcel Service (“UPS”) or the tracking of the package’s location via that device constituted a search under the Fourth Amendment.
2. Whether the insertion of a “parcel wire” in the marijuana package or the monitoring of that device by police once Lagrone had carried the package into his home constituted a search under the Fourth Amendment.

We also consider the following issue:

3. Whether the State’s warrantless entry into Lagrone’s home was justified under the exigent circumstances exception to the warrant requirement.

We affirm.

FACTS AND PROCEDURAL HISTORY

On December 31, 2010, personnel from UPS alerted the Indianapolis Metropolitan Police Department (“IMPD”) that they had found marijuana in a package that they were repackaging because the box had been damaged during shipping. IMPD officers from the Criminal Interdiction Unit, a branch of the narcotics division, retrieved the opened package containing marijuana from UPS and found that it was addressed to a “Michael Davis” at the address of the Wingate Hotel near West 71st Street and 1-465 in Indianapolis. The package contained three semitransparent, heat-sealed plastic bags of marijuana.

The officers took the package and its contents back to the police station; repackaged the marijuana with a GPS device and an electronic parcel wire; and affixed the original shipping label to the outside of the package. When affixed in a closed parcel, a parcel wire transmits “different tones to alert law enforcement officers that the device is working, is moving, and when the parcel is opened.” Appellant’s App. at 17. The parcel wire is tripped when light is let inside the package. The alarm sounds only on the receiver, not on the parcel wire itself.

Officer Scott Wildauer went to the Win-gate Hotel and spoke with the desk clerk, who said that no one by the name of Michael Davis was registered there. However, the clerk said that someone had phoned to say that he was expecting a delivery and asked to be called when a package arrived. After back-up officers were dispatched to the hotel, Officer Wil-dauer, acting as a hotel employee, called the number provided by the caller and said that a package had arrived. Lagrone arrived in a Jaguar at 12:15 p.m., a few minutes after that call. He picked up the package in the hotel lobby, returned to his car with it, and drove away. At that point, officers knew neither Lagrone’s identity nor his destination, so surveillance officers followed Lagrone’s Jaguar by car, watching him and tracking the package via the GPS tracking device.

Lagrone proceeded at a high rate of speed to his home, a split-level house at 4381 Dunsany Court in Indianapolis. The trip took approximately ten minutes, and he took the package with him inside when he arrived. Within a few minutes of his arrival, the parcel wire indicated that the package had been opened. Officers sur-veilling the house knocked and announced themselves as police, but no one answered the door.

Officers became concerned that Lagrone might attempt to dispose of the marijuana because the presence of the parcel wire would make police involvement “plainfully [sic] obvious” once the package was open. May 25 Transcript at 62. Therefore, when no one answered the door, they forced the door open, entered the home, and secured it for people and weapons. Upon securing the home, officers found Lagrone in the upstairs hallway and ordered him to the ground. They found an open pocketknife underneath him, and the package was on the bed in a nearby bedroom. Also in the home were Lagrone’s three children, who were twelve, fourteen, and fifteen years old. After securing the home, officers applied for and obtained a warrant to search Lagrone’s home. A judge signed the warrant at 3:36 p.m. that afternoon, and the officers received the warrant and began executing it around 4:00 p.m.

The State charged Lagrone with dealing in marijuana and possession of marijuana, as Class D felonies. Lagrone filed a motion to suppress evidence. The trial court held an evidentiary hearing on that motion on May 25 and November 2, 2011. On February 22, 2012, the court entered its order granting the motion to suppress. Because the suppression of evidence effectively prevents prosecution of this case, the State now appeals. See Ind.Code § 35-38-4-2(5).

DISCUSSION AND DECISION

Standard of Review

Upon reviewing a motion to suppress, we do not reweigh the evidence or judge the credibility of witnesses but instead consider all uncontroverted evidence together with the conflicting evidence that supports the trial court’s decision. McDermott v. State, 877 N.E.2d 467, 471 (Ind.Ct.App.2007) (citation omitted), trans. denied. A trial court has broad discretion in ruling on the admissibility of evidence, and we will disturb its ruling only where it is shown that the trial court abused that discretion. Id. (citation omitted). An abuse of discretion occurs if the decision is against the logic and effect of the facts and circumstances before the court. Id. (citation omitted).

We review a trial court’s ruling on the constitutionality of a search or seizure de novo. State v. Peters, 921 N.E.2d 861, 866 (Ind.Ct.App.2010) (citing Campos v. State, 885 N.E.2d 590, 596 (Ind.2008)). However, deference is given to a trial court’s determination of the facts, which will not be overturned unless clearly erroneous. Id. A reviewing court looks to the totality of the circumstances and considers all un-controverted evidence together with conflicting evidence that supports the- trial court’s decision. Id.

When the State appeals the trial court’s grant of a defendant’s motion to suppress evidence, the State is appealing from a negative judgment and therefore has the burden to demonstrate that the measures it used to seize the evidence were constitutional. Nolan v. City of Indianapolis, 933 N.E.2d 894, 898 (Ind.Ct.App.2010) (citation omitted), trans. denied.. To fulfill this burden, the State must demonstrate that the evidence is without conflict and that the evidence and all reasonable inferences flowing therefrom lead to a conclusion opposite that of the trial court. Id. This court may not weigh the evidence or judge the credibility of the witnesses, and we consider only the evidence most favorable to the trial court’s judgment. Id.

Electronic Surveillance and the Fourth Amendment

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, 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.

Warrantless searches are presumptively unreasonable, although the Court has recognized a few limited exceptions to this rule. Brigham City v. Stuart, 547 U.S. 398, 402, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Thus, unless one of several established exceptions applies, law enforcement officers -must obtain a warrant based on probable cause before executing a search or a seizure. State v. Hobbs, 933 N.E.2d 1281, 1284 (Ind.2010).

We initially consider whether the officers’ warrantless installation and monitoring of the GPS device and the parcel wire violated the Fourth Amendment. We then consider whether the warrantless entry of Lagrone’s home by police falls under the exigent circumstances exception to the warrant requirement. Although we have found no single precedent , involving a previously opened container, .the use of these electronic devices, and transmission from the defendant’s home, three -United States Supreme Court’s opinions when considered together provide an analytical framework. In Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983), the Court held that the privacy interest in a container is lost when it is lawfully opened and that that interest is not revived when the container is closed or sealed again. In United States v. Karo, 468 U.S. 705, 715, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), the Court held that the warrantless monitoring of a tracking beeper in a container located inside a home violates the Fourth Amendment rights of those with a reasonable privacy interest in the home. Finally, in Kentucky v. King, — U.S. —, 131 S.Ct. 1849, 1858, 179 L.Ed.2d 865 (2011), the Court heid that a warrantless entry into a home by police to prevent the destruction of evidence is reasonable and, thus, allowed under the Fourth Amendment only where the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. Synthesizing these three cases, together with other relevant authority, we conclude that the warrantless use of the parcel wire to monitor the package within Lagrone’s house violated the Fourth Amendment. Due to that violation, under King the State cannot justify its warrantless intrusion into Lagrone’s home under the exigent circumstances exception to the Fourth Amendment.

Issue One: GPS Device

The first question presented is whether the insertion of the GPS device in the opened package obtained from UPS or the tracking of the package’s location via that device constitutes a search under the Fourth Amendment. The United States Supreme Court considered GPS tracking in United States v. Jones, — U.S. —, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). There, a task force comprised of FBI and local agents in the District of Columbia attached a GPS device without a warrant to the undercarriage of an automobile in the possession of a suspected drug trafficker. The task force tracked the vehicle via the GPS device for twenty-eight days, replacing the external battery on the device once in that time period while the vehicle was parked in a public lot. Based in part on the data obtained from that monitoring, Jones was convicted of drug offenses. The United States Court of Appeals for the District of Columbia reversed the conviction, concluding that the “admission of evidence obtained by warrantless use of the GPS device ... violated the Fourth Amendment.” 132 S.Ct. at 949. The United States Supreme Court granted certiorari and held that the Government’s installation of a GPS device on a target’s vehicle and use of the device to track the vehicle’s movements constituted a “search” under the Fourth Amendment. Id.

The facts in the present case are distinguishable. In Jones, the GPS device was attached to a vehicle after the vehicle was already in Jones’ possession, and Jones’ movements were tracked for twenty-eight days. But here the GPS device was attached before the parcel came into La-grone’s possession, the police used the device to track Lagrone’s movements for only ten minutes, and during those ten minutes police followed Lagrone and supplemented the information provided by the device with visual surveillance. Thus, while Jones provides a Fourth Amendment analysis for the monitoring of GPS devices, it is inapposite on the facts in this case.

We next consider the Court’s opinion in Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983). In that case the Court held that “[n]o privacy interest remains in contraband in a container once government officers lawfully have opened that container and identified its contents as illegal.” Id. at 771, 103 S.Ct. 3319. “The simple act of resealing the container to enable the police to make a controlled delivery does not operate to revive or restore the lawfully invaded privacy rights.” Id. Similarly, in United States v. Jacobsen, 466 U.S. 109, 117, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), where a shipper opened a package, found contraband, and then notified law enforcement, the Court held that, “[o]nce the frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now[ ]nonprivate information.” Here, UPS had opened the package before calling and turning it over to police. Any privacy interest in the package was lost when it was opened while in the shipper’s possession. See id. The officers’ subsequent repackaging of the contraband did not revive any privacy interest. See Jacobsen, 466 U.S. at 117, 104 S.Ct. 1652; Andreas, 463 U.S. at 771, 103 S.Ct. 3319. As such, the officers did not violate any privacy interest when they installed the GPS device when they repackaged the marijuana and, therefore, they did not violate the Fourth Amendment by installing the device. See Jacobsen, 466 U.S. at 117, 104 S.Ct. 1652.

Having determined that the installation of the GPS device did not violate the Fourth Amendment, we next address the transmission of information from the GPS device under the Fourth Amendment. Relevant to this inquiry is the Court’s opinion in United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). There, law enforcement officers installed a beeper inside a container, with the permission of the owner, before delivery was made to the addressee. The beeper signal was tracked on the public roads to the location where defendants deposited it outside a building. Id. at 285, 103 S.Ct. 1081. The Court held that the warrantless monitoring of the beeper signal by law enforcement agents on the public road and outside the building where defendants left it did not violate legitimate expectations of privacy. Id.

The Supreme Court’s opinion in United States v. Karo is also on point. In Karo, law enforcement officers installed a beeper into a container with the owner’s permission before delivery to the addressee. The officers tracked the container via the beeper as defendants drove on public roads and then carried the container into a home they had rented. The Court held that the monitoring of the beeper while the vehicle was on public roads did not violate the Fourth Amendment. 468 U.S. at 721, 104 S.Ct. 3296.

Here, the GPS device was used in conjunction with visual surveillance as officers followed Lagrone from the hotel where he had picked up the package and then along public roadways to his ultimate destination, his home. Under Knotts and Karo, use of the GPS device in this manner and to this limited extent did not constitute a search. At oral argument on appeal, La-grone does not contend or identify any evidence in the record that the police continued to monitor the package using the GPS device after Lagrone had carried it into his home. And the State pointed out that no data obtained from the GPS device was introduced at trial. On these facts, we find no Fourth Amendment violation in the officer’s use of the GPS device to track the location of the package. See Knotts, 460 U.S. at 285, 103 S.Ct. 1081.

Issue Two: Parcel Wire

Next we consider whether the installation and monitoring of the parcel wire constitutes a search under the Fourth Amendment. As explained in Issue One above, Lagrone had no privacy interest in the package once it was opened while in the possession of the commercial shipper and was turned over to law enforcement. See Andreas, 463 U.S. at 771, 103 S.Ct. 3319. As such, the insertion of the parcel wire, without more, did not constitute a search under the Fourth Amendment. See id. Thus, we are left to determine whether the use of the parcel wire to determine when the parcel was opened, namely the monitoring of that device when located within Lagrone’s home, constitutes a search under the Fourth Amendment. We conclude that it does.

Again, in Karo, law enforcement officers used a beeper to track a container, and the Court held that using the beeper to track the container while on public roads did not violate the Fourth Amendment. 468 U.S. at 717, 104 S.Ct. 3296. But the Court reached a different result with respect to the continued monitoring that occurred once the container was taken inside a residence that some of the defendants had rented. After the container was taken inside the residence, officers used the beeper on two separate days to confirm that the container was still inside. The officers then applied for and obtained a search warrant for the home. The Court stated:

We ... reject the Government’s contention that it should be able to monitor beepers in private residences without a warrant if there is the requisite justification in the facts for believing that a crime is being or will be committed and ■that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity. Warrantless searches are presumptively unreasonable, though the Court has recognized a few limited exceptions to this rule....

Id. at 717, 104 S.Ct. 3296. And the Court observed that the monitoring of an electronic device like a beeper “revealfs] a critical fact about the interior of the premises that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant.” 468 U.S. at 715, 104 S.Ct. 3296. Thus, the Court held that the monitoring of the beeper violated the Fourth Amendment rights of the defendants who had a justifiable privacy interest in the home. Id. at 714, 104 S.Ct. 3296.

In rejecting the Government’s argument that warrants should not be required in such circumstances, the Court observed:

The Government’s contention that war-’ rantless beeper searches should be deemed reasonable is based upon its deprecation of the benefits and exaggeration of the difficulties associated with the procurement of a warrant.... The primary reason for the warrant requirement is to interpose a “neutral and detached magistrate” between the citizen and “the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14 [68 S.Ct. 367, 92 L.Ed. 436] (1948). Those suspected of drug offenses are no less entitled to that protection than those suspected of nondrug offenses. Requiring a warrant will have the salutary effect of ensuring that use of beepers is not abused, by imposing upon agents the requirement that they demonstrate in advance their justification for the desired search.

Id. at 717, 104 S.Ct. 3296 (some citations omitted).

Still, the Government argued that “it would be impossible to describe the ‘place’ to be searched, because the location of the place is precisely what is sought to be discovered through the search.” Id. at 718, 104 S.Ct. 3296. But the Court held that, “it will still be possible to describe the object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper, and the length of time for which the beeper surveillance is requested.” Id.

Here, after Lagrone picked up the package, law enforcement officers monitored the parcel wire’s receiver for the signal indicating that the package had been opened. A few minutes after Lagrone entered his home, the receiver was activated by the signal, indicating that someone had opened the package. At that point, La-grone was inside his home and, therefore, had a reasonable expectation of privacy. See U.S. Const, amend. IV. Whether someone had opened the package was information that could not have been observed from outside the home. Under Karo, the monitoring of the parcel wire to determine when the package was opened constitutes a search of Lagrone’s home. Karo, 468 U.S. at 717, 104 S.Ct. 3296.

Having determined that the monitoring of the parcel wire inside La-grone’s home was a warrantless search, we next consider whether that search was unreasonable. Again, a search is unreasonable unless it satisfies one of the exceptions to the warrant requirement. King, 131 S.Ct. at 1856. Only the exigent circumstances exception might apply on the facts presented. In such cases, the “exigencies of the situation make the needs of law enforcement so compelling that a war-rantless search is objectively reasonable under the Fourth Amendment.” King, 131 S.Ct. at 1856 (internal quotation marks and alteration omitted) (citation omitted). Exigencies justifying the warrantless search of a home include entry to render emergency assistance to an injured occupant or to protect an occupant from imminent injury, entry in hot pursuit of a suspect, and entry to prevent the imminent destruction of evidence. Id. A review of the record does not show that any of these situations existed so as to render the war-rantless monitoring of the parcel wire objectively reasonable. See id. Therefore, the exigent circumstances exception to the warrant requirement does not apply to the monitoring of the parcel wire inside La-grone’s home. As such, we conclude that the monitoring of the parcel wire inside Lagrone’s home constitutes an unreasonable search in violation of the Fourth Amendment.

Issue Three: Warrantless Entry and Exigent Circumstances

Finally, we must determine whether the warrantless entry of La-grone’s home violated the Fourth Amendment. As mentioned above, the warrant requirement of the Fourth Amendment is subject to certain reasonable exceptions. King, 131 S.Ct. at 1856. One well-recognized exception applies when “the exigencies of the situation make the needs of law enforcement so compelling that [a] war-rantless search is objectively - reasonable under the Fourth Amendment.” Id. (internal quotation marks omitted) (citation omitted). “Warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement.” Id. at 1858. Therefore, as the Supreme Court explained in King:

[T]he exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where ... the police did not create the exigency by engaging or threatening to engage in condMCt that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.[ ]”

Id. (emphasis added).

Probable cause to believe contraband is present is necessary to justify a warrantless search, but that alone is not sufficient. United States v. Rubin, 474 F.2d 262, 268 (3rd Cir.1973), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). When government agents have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. Id. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. .Id.

Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant, compare United States v. Pino, 431 F.2d 1043, 1045 (2d Cir.1970)[, cert. denied, 402 U.S. 989, 91 S.Ct. 1675, 29 L.Ed.2d 154 (1971) ], with Niro v. United States, 388 F.2d 535 (1st Cir.1968); (2) reasonable belief that the contraband is about to be removed, United States v. Davis, 461 F.2d 1026, 1029-30 (3d Cir.1972); Hailes v. United States, 267 A.2d 363 (D.C.C.A.1970); (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, United States v. Pino, 431 F.2d at 1045; (4) information indicating the possessors of the contraband are aware that the police are on their trail, United States v. Doyle, 456 F.2d 1246 (5th Cir.1972); and (5) the ready destructibility of the contraband and the knowledge “that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic,” United States v. Manning, 448 F.2d 992, 998-99 (2d Cir.1971)[, cert. denied, 404 U.S. 995, 92 S.Ct. 541, 30 L.Ed.2d 548 (1971) ]; United States v. Davis, 461 F.2d at 1031-32.

Id. at 268-69. When a search is conducted without a warrant, the State has the burden of proving that the search falls into one of the exceptions to the warrant requirement. Peters v. State, 888 N.E.2d 274, 278 (Ind.Ct.App.2008) (citation omitted), trans. denied.

Here, the trial court granted La-grone’s motion to suppress the evidence obtained from his home upon execution of a search warrant that police obtained following the warrantless entry of the home. At a hearing a few days later, the court explained the reasoning behind its decision:

The Court ruled in the defense’s favor on [sic] this case on the grounds one, that I think in this case that the police officers created the exigent circumstances in this case by the way the investigation occurred. And what I mean by that is that the only marijuana that the officers knew about was the marijuana in the box. And when Mr. Lagrone came and picked up the box they had the opportunity, at that time, to seize him in the hotel or two, they could have made a traffic stop on [sic] this case. And I think it was perfectly foreseeable that when the marijuana went into the house that that box could have been opened. And if the officers were truly interested in preserving the box in a closed state once it was picked up they could have got him at the hotel, they could have got him in a traffic stop. They did not have to wait under any circumstances for the marijuana to go into the residence. And at that time, they had no other information that there was [sic] any other drugs[.]

February 29 Transcript at 35-36 (emphasis added).

We agree with the trial court that the police officers created the exigent circumstances by the manner in which the investigation occurred. We also agree with the trial court that police could have arrested Lagrone as soon as he picked up the package at the hotel or en route to his house. We emphasize, however, that the police were not required to make the arrest sooner rather than later.

[L]aw enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause. Faulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution.

King, 131 S.Ct. at 1860-61 (internal quotation marks and citations omitted). Such a rule would unnecessarily impede police investigations in drug and other contraband cases.

But the facts here fall squarely within the rule in King that a warrantless entry based on exigent circumstances does not violate the Fourth Amendment so long as the police “did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” King, 131 S.Ct. at 1858. As discussed above, just as with a beeper, see Karo, 468 U.S. at 715, 104 S.Ct. 3296, the warrantless monitoring of the parcel wire while it was inside the home violated the Fourth Amendment. The exigency here arose only because the officers were alerted by the parcel wire that Lagrone had opened the package, knowledge they acquired by conduct that violated the Fourth Amendment. Under King, the police may not use information obtained in violation of the Fourth Amendment to establish exigent circumstances and avoid the warrant requirement. Thus, on these facts, the exigent circumstances exception to the warrant requirement cannot apply to the warrantless entry of Lagrone’s home. See King, 131 S.Ct. at 1858.

Conclusion

In sum, we conclude that the installation of the GPS device and the parcel wire into the package Lagrone picked up from the hotel did not violate the Fourth Amendment because any privacy interest La-grone had in the package was lost when UPS opened the package on its premises. Nor did the police monitoring of the GPS device to track the package en route to Lagrone’s home violate the Fourth Amendment, because officers also tracked Lagrone on the highway visually. Moreover, the evidence presented does not show that the GPS monitoring continued after Lagrone carried the package into his home.

But the police then monitored the package without a warrant via the parcel wire after the package was inside Lagrone’s home. The information obtained from that device, namely, that the package had been opened, could not have been observed from outside the home. As such, the receipt of that information via the parcel wire without a warrant violated Lagrone’s Fourth Amendment rights. And under King the police cannot use the exigent circumstances exception to justify a warrantless entry into the home, based on the electronic signal from the parcel wire located inside the home, without having first obtained a warrant. Thus, we affirm the trial court’s order granting Lagrone’s motion to suppress evidence obtained as a result of their warrantless search of La-grone’s home.

Affirmed.

KIRSCH, J., and MAY, J., concur.

      . We held oral argument on December 17, 2012.

      . Agents had obtained a warrant but did not execute the warrant until after it had expired.

      . The vehicle was registered to the suspect's wife, but that fact was not a material issue on appeal.

      .Although the Court held that the installation and monitoring of the GPS device constituted a search, the Court specifically declined to address whether that search was reasonable under the Fourth Amendment. Jones, 132 S.Ct. at 954.

      . A beeper transmits a signal via radio waves, and monitoring the signal allows police to track its location within a city or country. A GPS device uses satellite technology to track location anywhere on the planet.

      . Other exceptions include consent and plain view, see King, 131 S.Ct. at 1858; open fields, Oliver v. United States, 466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); and searches incident to a lawful arrest, see Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). None of those exceptions apply in this case.

      . Because we conclude on the facts presented that the warrantless entry of Lagrone’s home violated the Fourth Amendment, we need not consider whether the entry violated Article I, Section 11 of the Indiana Constitution.


source: Caselaw Access Project

author: DICKSON, C.J.,

license: Public Domain

text:
    In the Matter of Ray W. ROBISON, Respondent.
    No. 47S00-1206-DI-365.
    Supreme Court of Indiana.
    April 9, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Two sisters were co-personal representatives of a decedent’s estate. While counsel of record in the supervised estate, Respondent gave one co-personal representative a number of documents to sign. When one document was returned unsigned, Respondent signed the co-personal representative’s name and forwarded all the documents to be signed by the second co-personal representative, who recognized that one signature was not her sister’s. When confronted by the sisters, Respondent admitted he had signed the document. The co-personal representatives then terminated the representation, and he withdraw his appearance for the estate.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent’s misconduct was not due to a dishonest or selfish motive, but rather was motivated by a desire to avoid inconvenience to a client; (4) Respondent has acknowledged his misconduct and is remorseful; (5) Respondent fully cooperated with his clients’ desire that he withdraw from his representation and he apologized to them.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(c), which prohibits engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except DICKSON, C.J., and RUSH, J., who dissent.

DICKSON, C.J.,

dissenting.

Much of our legal system is predicated on the authenticity and reliability of signatures. For a lawyer to affix a false signature is a deception that gravely undermines public trust, respect, and confidence in the legal profession. Such inexcusable misconduct is not justified or excused by considerations of client convenience, expediency, or lack of personal gain. Affixing a false signature is manifestly dishonest and an absolute ethical transgression. For this offense, I favor a substantial period of suspension.

RUSH, J., concurs with the dissent of DICKSON, C.J.


text:
    In the Matter of Octavia F. SNULLIGAN, Respondent.
    No. 49S00-1301-DI-55.
    Supreme Court of Indiana.
    April 15, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On January 28, 2013, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $511.90 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: NAJAM, Judge.

text:
    C.B., Appellant-Respondent, v. B.W., Appellee-Petitioner.
    No. 49A02-1206-JP-539.
    Court of Appeals of Indiana.
    March 21, 2013.

      Jaimie L. Cairns, Ruppert & Schaefer, P.C., Indianapolis, IN, Attorney for Appellant.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

C.B. (“Mother”) appeals the trial court’s order granting the request of B.W. (“Father”) to change the surname of C.D.B. (“the child”) in initial paternity proceedings. Mother presents a single issue for review, namely, whether the trial court abused its discretion when it granted Father’s request for the child’s surname to be changed to Father’s surname.

We affirm.

FACTS AND PROCEDURAL HISTORY

C.D.B. was born on April 6, 2007. Father and Mother were a couple “on and off for four years.” Transcript at 10. On July 23, 2009, the parties became engaged, and they agreed to change the child’s surname to Father’s when they married. But Mother and Father subsequently separated in December 2009 without having changed the child’s name, and, on February 25, 2011, Father filed a petition to establish paternity.

The trial court approved a mediated settlement agreement in the paternity action, establishing paternity and settling custody, visitation, and support issues (“Agreement”). But Mother objected to Father’s request to change the child’s surname to Father’s. On June 21, 2012, the court held an evidentiary hearing on Father’s name change request. And on June 25, the court entered its order changing the child’s surname to Father’s. In sua sponte findings, the trial court found, in part:

4. The Court has carefully weighed the evidence regarding both parents!’] wishes of the best interests] of the child [sic] and related Indiana statutes and case law.
5. Father requests the child’s surname be changed to his [Father’s] last name in this initial paternity action. Mother adamantly objects. This is a finalization of the initial paternity action.
6. The Court [notes] that although paternity was established in the mediated settlement agreement [the] parties could not agree on Father’s request for name change[,] which was left for the Court to decide. There was no evidence that Father ever agreed to the child’s name remaining C[.]D[.]
7. There was no evidence the child holds property under the [Mother’s] surname.
8. The [five-year-old] child is identified by public and private entities and community members by a particular surname [Mother’s].
9. The child is not of sufficient maturity to consider the child’s desires. Although testimony by Mother suggested the child had difficulty learning to write [her last name] in pre-kindergarten, the Court does not find that there is a degree of confusion likely to be occas-sioned [sic] by a name change given the child’s age.
10. The birth records, school records, health records have the child’s surname as [Mother’s] as this is an initial paternity action where Father did not sign the paternity affidavit. There was no evidence presented that the child has a baptismal record of [Mother’s] surname ....
11. The Court does not find that the impact of a surname [change] would be significant given the evidence!,] especially since the child has no siblings with Mother currently, and' the sibling with Father[] given the evidence.
12. Mother is getting married August 13. 2012[,] and testifies that she will hyphenate her name if the child keeps [Mother’s] surname....
13. Father filed the petition to establish paternity voluntarily and not Mother. Father has actively sought and maintained a relationship with the child. Since at least the court order [establishing paternity] Father has financially supported the child. Mother and Father were together on and off for four (4) [y]ears. In fact, the' parties were engaged to be married in 2009. Mother agreed to change the child’s surname once the parties were together and married. However, the parties never married.
14. The Court after weighing Father’s testimony determines his reasons for the child’s surname change was [sic] in the best interest of the child and not for his own interests at this initial paternity decision. The Court also observed Father’s demeanor.
15. Father did not have his father’s last name and wants the child to have his last name for the child’s best interest.
16. The child may be resistant at age five (5) years old to write and learn a new last name but the child is only five (5) years old and has the ability to learn and adjust as he enters kindergarten if he is told to do so despite being what Mother said as a slow learner. Mother presented no evidence that the child was incapable of learning to write and know a change of his surname. It may be difficult, but there was no evidence of the [five-year-old] cannot accomplish [sic] this task.
17. Father stated it was in the child’s best interest for the child to carry[]on [Father’s] last name for various reasons.
18. The Court orders that the child’s last name be changed to [Father’s surname].

Appellant’s App. at 6-8. Mother now appeals.

DISCUSSION AND DECISION

The standard of review in juvenile name change cases is well-settled. A biological father seeking to obtain a name change of his nonmarital child bears the burden of persuading the trial court that the change is in the child’s best interests. Petersen v. Burton, 871 N.E.2d 1025, 1029 (Ind.Ct.App.2007). Absent evidence of the child’s best interests, the father is not entitled to obtain a name change. J.T. v. S.W. (In re Paternity of Tibbitts), 668 N.E.2d 1266, 1267-68 (Ind.Ct.App.1996), trans. denied. We review the trial court’s order in such cases under an abuse of discretion standard. In re Paternity of M.O.B., 627 N.E.2d 1317, 1318 (Ind.Ct.App.1994) (citation omitted). A trial court abuses its discretion when its decision is against the logic and effect of the facts and circumstances before the court or is contrary to law. Petersen, 871 N.E.2d at 1028.

When a surname change is sought in a paternity action, among other factors the trial court may properly consider whether the child holds property under a given name, whether the child is identified by public and private entities and community members by a particular name, the degree of confusion likely to be occasioned by a name change, and (if the child is of sufficient maturity) the child’s desires. Tibbitts v. Warren, 668 N.E.2d 1266, 1268 (Ind.Ct.App.1996) (citation omitted). Additional factors which have been considered are the birth and baptismal records of the child, the school records of any older children, health records, and the impact of a name change when there are siblings involved whose name(s) would not be changed. Id. (citation omitted).

Here, the trial court entbred findings of fact pursuant to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they are clearly erroneous. Ind. Trial R. 52(A); Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind.2000). In our review, we first consider whether the evidence supports the factual findings. Menard, 726 N.E.2d at 1210. Second, we consider whether the findings support the judgment. Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). A judgment is clearly erroneous if it relies on an incorrect legal standard. Menard, 726 N.E.2d at 1210. We give due regard to the trial court’s ability to assess the credibility of witnesses. Ind. Trial R. 52(A). While we defer substantially to findings of fact, we do not do so to conclusions of law. Menard, 726 N.E.2d at 1210. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind.1999).

Further, in this case the trial court entered special findings sua sponte. When a trial court makes specific findings upon its own motion, the general judgment will control as to the issues upon which the court has not found and specific findings control only as to the issues they cover. In re Marriage of Snemis, 575 N.E.2d 650 (Ind.Ct.App.1991). Thus, it may not be necessary that each and every special finding be correct, and even where one or more special findings are clearly erroneous, the judgment may be affirmed if the judgment is supported by other findings or is otherwise supported by the record. Where, as here, special findings are entered sua sponte, the general judgment will be affirmed if it can be sustained upon any legal theory by the evidence introduced at trial. Id. While special findings entered sua sponte control as to the issues upon which the court has found, they do not otherwise affect our general judgment standard of review, and we may look both to other findings and beyond the findings to the evidence of record to determine if the result is against the facts and circumstances before the court. Id.

We note that Father did not file an appellee’s brief. When an appellee does not submit a brief, an appellant may prevail by establishing a prima facie case of error, i.e., error at first sight, on first appearance, or on the face of it. Carlisle Libbert v. Van Winkle (In re J.C.), 819 N.E.2d 525, 527 (Ind.Ct.App.2004) (citation omitted). By requiring the appellant to show some error, we ensure that the court, not the parties, decides the law. Pala v. Loubser, 943 N.E.2d 400, 407 (Ind.Ct.App.2011), trans. denied. By allowing the appellant to prevail upon a showing of only prima facie error, we avoid the improper burden of having to act as advocate for the absent appellee. Id.

Here, Mother contends that the trial court abused its discretion when it granted Father’s request to change the child’s surname over her objection. In particular, Mother asserts that the trial court’s findings are not supported by the evidence and that the trial court’s findings contain several clearly erroneous statements and, hence, that Father failed to meet his burden to show that the name change is in the best interests of the child.

Mother contends that the evidence does not support the following findings: (1) that there will not be “a degree of confusion likely to be occasioned by a name change given the child’s age[;]” (2) that the impact of a surname change would not be significant given the child’s age, especially since the child has no siblings with Mother currently; (3) that Father’s reason for the surname change is not for Father’s own interests; (4) that “Father has actively sought and maintained a relationship. Since at least the Court order [establishing child support] Father has financially supported the child[;]” and (5) that “[t]he child may be resistant at age five (5) years old to ■write and learn a new last name but the child is only five years old and has the ability to learn and adjust as he enters kindergarten if he is told to do so.” Appellant’s Brief at 9-11. Mother contends that these findings are clearly erroneous and, therefore, do not support the trial court’s conclusion that the name change is in the child’s best interests.

Mother’s argument with regard to these findings amounts to a request that we reweight the evidence, which we cannot do. Yoon, 711 N.E.2d at 1268. For example, Mother challenges the finding that “[t]he court does not find that the impact of a surname change would be significant given the evidence.” Appellant’s App. at 7, 12. But, as Mother also notes correctly, that finding is qualified by the following language: “Especially since the child has no siblings with Mother currently, and the sibling with Father given the evidence.” Id. at 7, 12. The finding is supported by evidence that Mother has no other children at this time and that Father’s other child does not bear his surname. Thus, changing C.D.B.’s surname would neither alienate him from nor connect him with another sibling.

Mother also points to Father’s shortcomings when she challenges the finding that “Father has actively sought and maintained a relationship with the child” as well as his support for the child. Appellant’s App. at 7, 12. But a father’s performance with respect to parent-child involvement and financial support need not be perfect in order to be credited in a name change proceeding. See Petersen v. Burton, 871 N.E.2d 1025, 1029-30 (Ind.Ct.App.2007) (affirming father’s name change request where, in part, “Father’s ‘performance,’ while not flawless, does demonstrate a genuine desire to form a parent-child relationship” with the child). Thus, Mother’s challenge to this finding also asks us to reweigh the evidence.

We do question the significance of another finding, that Mother and Father were once engaged and Mother had “agreed to change the child’s surname once the parties were together and married.” That fact, even if proven, cannot be used to support the name change. Prior agreement of parents regarding the name of their minor child is not a proper basis upon which a trial court should determine whether a child’s surname should be changed. See In re Paternity of J.C., 819 N.E.2d 525, 528 (Ind.Ct.App.2004). Thus, to the extent the trial court based its best interests determination on the parties’ pri- or agreement, the court abused its discretion.

Nevertheless, and we emphasize, it is not necessary that every finding support the trial court’s conclusion. In this case and on this record we need not parse each of the challenged or other findings. Assuming for the sake of argument that Mother is correct, that there is no evidence in the record to support the challenged findings, that would not necessarily establish reversible error. As discussed below, numerous other findings and facts in the record remain intact to support the trial court’s determination, whether directly or by inference, that the name change is in the child’s best interests.

In addition to her objections to specific findings, Mother broadly contends that Father did not present “any evidence” as to why the name change was in the child’s best interest and that “Father did not testify why [the child] would benefit from the name change.” Brief of Appellant at 8. But in determining the best interests of the child, the trial court is not limited to consideration of Father’s testimony. The court may, and should, consider any relevant and probative facts and circumstances before the court, and may draw reasonable inferences from those facts and circumstances. Indeed, our abuse of discretion standard of review is not confined to testimony but includes consideration of the facts and circumstances before the court as well as “the reasonable, probable and actual deductions to be drawn therefrom.” D.R.S. v. R.S.H., 412 N.E.2d 1257, 1266 (Ind.Ct.App.1980).

Mother relies on In re Paternity of M.O.B. as “very similar” to the instant case. In M.O.B. the evidence showed that the child was known by his birth name in his family and community, that he owned property and had a Social Security card in his name, that a doctor testified that the name change would not be in the child’s best interests, and that the father believed his last name was an honorable name that he wanted “carried on.” 627 N.E.2d at 1319. We reversed the trial court’s order granting the father’s name change request, holding that this evidence did not show that the name change was in the child’s best interests. Id. Mother also relies on Garrison v. Knauss, 637 N.E.2d 160 (Ind.Ct.App.1994). In that case, we again reversed the trial court’s grant of father’s request to change the last name of his children, reasoning that “[t]he only evidence Knauss presented in relation to the best interests of the children was his statement that it was in the children’s best interests for — just for — that paternal feeling that they are my children.” Id. at 161. In both M.O.B. and Garrison, the father testified as to personal reasons for requesting the child’s name change, either to carry on the father’s name or to create or enhance the father’s paternal feelings.

However, in Tibbitts, on similar evidence, we affirmed the father’s request to change his child’s surname. There we stated that the issue was “whether it is sufficiently in the best interest of the child to give the child its father’s surname when the father pays support, has visitation, and is actively involved in the child’s life.” 668 N.E.2d at 1268. In Tibbitts the child was known in the community and in private by the mother’s name and all records were in the mother’s name, but the father wanted the child to bear his surname “because he pays child support, has visitation, and is involved in the child’s life.” Id. Further, the evidence showed that the father was a Potowami Indian and “elaim[ed] that the child having his last name is relevant to the child’s Indian heritage.” Id. On those facts, we concluded that the father was entitled to have the child bear his surname. Id. Likewise, on similar facts, in Petersen we applied the “same reasoning” as in Tibbitts and affirmed. 871 N.E.2d at 1029.

These cases, M.O.B. and Garrison on the one hand, and Tibbitts and Petersen on the other hand, show a split of authority on this court as to whether a father’s financial support for, visitation and involvement with the child is sufficient evidence to demonstrate that changing the child’s surname to his father’s name is in the best interests of the child. In M.O.B. and Garrison, we reversed, and in Tibbitts and Petersen we affirmed, a father’s petition to change the surname of his child or children born out of wedlock. These four cases illustrate that whether it is in the best interests for a child born out of wedlock to be given the father’s surname when paternity has been established is an issue to be resolved on a case-by-case basis. Tibbitts, 668 N.E.2d at 1269.

Here, it was Father who filed a petition to establish paternity. Father and Mother then negotiated a mediated settlement agreement in which the parties agreed to share joint legal custody of the child and resolved visitation and support issues. And the trial court found that “Father has actively sought and maintained a relationship with the child. Since at least the court order [establishing paternity] Father has financially supported the child.” Appellant’s App. at 7, 12. As we have already noted, while Mother disputes that finding, in so doing she asks us to reweigh the evidence. As noted above, a father’s performance with respect to parent-child involvement and financial support need not be perfect in order to be credited in a name change proceeding. Petersen, 871 N.E.2d at 1029.

We acknowledge, as we did in Petersen (when interpreting application of a statute not here relevant), that there has been a change in modern attitudes and practices regarding the surnames of children born out of wedlock. Id. at 1028. Thus, we do not suggest, as was stated in D.R.S., that significant consideration is given to the father’s interest in having his child bear the paternal surname “in accordance with tradition,” 412 N.E.2d at 1263, nor do we suggest, as was also stated in D.R.S., that “a father who exercises his paternal rights has a protectable interest in his children bearing his surname and this interest is one quid pro quo of his reciprocal obligation of support and maintenance.” 412 N.E.2d at 1265.

These statements from D.R.S. were quoted in Tibbitts, but the opinion in D.R.S. was the opinion of one judge, with one judge concurring in result and another dissenting. The opinion of a single judge is not an opinion of the Court of Appeals. Key v. State, 651 N.E.2d 1190, 1192 n. 1 (Ind.Ct.App.1995). And it is clear that the Tibbitts court did not adopt the “protecta-ble interest” or “quid pro quo” rationale for deciding when the father of a child born out of wedlock is entitled to have the child bear his surname. Rather, again, just as here, the question- presented in Tibbitts was “whether it is sufficiently in the best interest of the child to give the child its father’s surname when the father pays support, has visitation, and is actively involved in the child’s life.” 668 N.E.2d at 1268. We agree with the Tibbitts court that this is conduct that society wants to encourage of men who father children born out of wedlock. 668 N.E.2d at 1269. Still, while these factors are relevant, material,- and probative, their presence, without more, may not always result in a' best interests determination for the name change petitioner.

In this case there is an additional factor apparently not present in either Tibbitts or Petersen, namely, that Father shares joint legal custody of the child, which is further evidence of his commitment to participate regularly and directly in the child’s upbringing. See Ind.Code § 31-9-2-67 (“joint legal custody” means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training). Thus, in sum, Father initiated proceedings to establish his paternity, pays -support, exercises visitation, participates in the life of the child and shares joint legal custody , of the child with Mother, all of which are indicators of Father’s desire to maintain a parent-child relationship and evidence that Father’s request to change the child’s surname is in the child’s best interests. See Tibbitts, 668 N.E.2d at 1269; Petersen, 871 N.E.2d at 1029.

And, finally, the court stated that it had “also observed Father’s demeanor.” Appellant’s App. at 7, 13. Demeanor is a component of credibility, and demeanor evidence is not reviewable on appeal. Wampler v. Review Bd. of Ind. Emp. Sec. Div., 498 N.E.2d 998, 999 (Ind.Ct.App.1986) (demeanor remains outside the reviewing authority’s abilities to assess); see Jones v. State, 847 N.E.2d 190, 200 (Ind.Ct.App.2006) (under abuse of discretion standard, appellate courts will not determine credibility), trans. denied. Demeanor evidence may be a significant factor in the trial court’s evaluation of Father’s sincerity and commitment to the child which, in turn, is a factor to be considered in a best interests determination.

We conclude that, like all children, a child born out of wedlock is better served when he knows and is identified with both parents, and both parents are engaged in his upbringing. A child’s surname connects the child with the parent. Here, Mother will have physical custody of the child and, as such, the child will continue to be identified with her and will be connected with her in countless ways, large and small, on a daily basis. Father’s surname will connect the child with his noncustodial parent and is a tangible reminder to the child that the child has two parents who care for him, which is in the child’s best interests.

We conclude that the trial court’s decision is not clearly against the logic and effect of the facts and circumstances before the court or contrary to law. Mother has not shown reversible error. The evidence, taken as a whole, supports the conclusion that it is in the child’s best interests to share his father’s surname. Our opinion supports the general principle that it is in the best interests of children born out of wedlock for their fathers not only to provide financial support but also to actively and visibly identify themselves as parents and to participate in their children’s upbringing.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.

      . Father had a child with another woman, but that child does not share Father’s surname Father did not petition for a name change.

      . Peterson also has the additional factor that the father wanted his child to know him as more than just a friend of the family.


author: BROWN, Judge.

text:
    Thomas PORTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1205-CR-398.
    Court of Appeals of Indiana.
    April 4, 2013.

      .Mark Small, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Thomas Porter appeals his conviction and sentence for operating a vehicle after a lifetime suspension. Porter raises three issues which we revise and restate as:

I. Whether the trial court abused its discretion by admitting evidence obtained as a result of a traffic stop; and
II. Whether the court exceeded statutorily prescribed limits when it suspended Porter’s driving privileges for life.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On May 12, 2011, Indianapolis Metropolitan Police Officer John Montgomery observed Porter driving a vehicle for approximately one to two minutes. Officer Montgomery could not see the license plate from fifty feet away, initiated a traffic stop, and discovered that Porter was driving while he was suspended for life.

On May 13, 2011, the State charged Porter with operating a motor vehicle while being an habitual traffic violator as a class D felony, and on June 10, 2011, with Count II, operating a motor vehicle after his license had been forfeited for life as a class C felony.

On November 18, 2011, Porter filed a motion to suppress evidence and challenged “each stage of the encounter.” Appellant’s Appendix at 43. On January 5, 2012, the court held a hearing. The parties focused on the license plate light during the hearing, and the court admitted photographs of the vehicle. The court later stated that “if the pictures show me what the officer saw, then the equipment problem that caused the stop was a justifiable reason for a stop,” ánd then denied Porter’s motion. Id. at 52.

On March 1, 2012, the court held a bench trial, and Porter renewed his motion to suppress evidence. Porter introduced the testimony of Joseph Porter, the passenger in the vehicle on the night of the stop, and testimony from Pam Porter, the owner of the vehicle, as well as various photographs of the vehicle. Pam testified that the vehicle was a 1995 Chevy Camaro, that she had owned the vehicle for two and one-half years, and that she had not altered the vehicle since the date of Porter’s arrest. When asked to compare one of the photographs of the vehicle with how his eyes saw the vehicle, Joseph testified that the photograph was “really way off’ and that he could not see anything on the photograph but “could see clearly the night when [they were] out there looking at the plate.” Id. at 112. Porter’s counsel argued:

There’s CFR’s that manufacturers have to comply with, 49 CFR 571.108 that deals with lamps and bulbs and reflective devices. This would be. a different story, Judge, if this was a kit car, a stock car, people would put parts from one car on and a part was damaged and they would put after market parts on and so forth. It would be different if it was adjustable, if [sic] would be different if there were two lights, the manufacturer had two lights on each ... and one light was burnt out.

Id. at 122-123. The court, stated:

[T]here is a line of demarcation on the license plate itself where part of it is clearly illuminated and part of it is barely illuminated. The portion that is barely illuminated is not readable. I think the statute to have, to make sense has to require that the light be enough to make the plate readable and not merely in less shadow than it would be if there were no light.

Id. at 130. The court denied Porter’s motion.

Porter’s counsel then stipulated that the testimony of Officer Montgomery from the hearing on the motion to suppress would be admitted for purposes of the trial subject to the objection under Article 1, Section 11, and the Fourth Amendment. The court continued the trial to March 23, 2012.

On March 23, 2012, Porter’s counsel made the following statements during closing argument:

Judge, when we started the trial back on March 1st we (indecipherable) in the record on the motion to suppress, this court also as part of the State’s case-in-chief took notice of the record we had made in January with. regard to suppression. Part of that record, Judge was my complaining, like a broken record about the license plate light not being a valid stop and then in my closing statements at the end of the suppression hearing in January I said as a side note the State also hasn’t proven that the officer was in either a fully marked vehicle or in uniform and I said I’m not saying that that’s going to make your issue, you know, I imagine they can easily overcome that and present such evidence. When we showed here for trial on March 1st and he called and asked his officer some other questions, I didn’t hear him ask if there was a fully marked vehicle, I didn’t hear him ask if he was in a distinctive, uh, met the requirements of the uniform and it’s the statute that deals with this is 9-30-2-2 which requires either one of those and there’s a bunch of cases that require those with regard to the State proving their case then, um, there’s a .challenge on the stop and one of the best ones, one ■of the more recent ones is [Bovie v. State ] and I’ve got a copy of that case right here.

Id. at 181-182. The court indicated that it had read the important parts of Bovie, found Porter guilty of Count II, operating a motor vehicle after his license had been forfeited for life as a class C felony, and dismissed Count I based upon double jeopardy concerns.

On April 20, 2012, the court held a sentencing hearing. At the hearing, Porter’s counsel informed the court that Porter had an “AMS petition pending in Tippecanoe County” related to an arrest on August 25, 2008, and “[s]ince then the conviction up there was reduced to a misdemeanor.” Id. at 189. The State acknowledged that Porter’s license was no longer suspended for life because he received alternative misdemeanor sentencing on his last D felony conviction, but requested that the court suspend Porter’s license for life. Porter’s counsel conceded that the fact that Porter’s license was no longer forfeited for life was not a defense because at the time of the offense in question his license was actually forfeited for life, but argued that the court could not order a lifetime suspension. The court sentenced Porter to four years in the Department of Correction and suspended Porter’s driving privileges for life.

ISSUES

I.

The first issue is whether the trial court abused its discretion by admitting evidence, i.e., Porter’s identity as the driver of the vehicle, obtained as a result of a traffic stop. Although Porter originally challenged the admission of the evidence through a motion to suppress, he now challenges the admission of the evidence at trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80 (Ind.Ct.App.2008), trans. denied; Lund-quist v. State, 834 N.E.2d 1061, 1067 (Ind.Ct.App.2005).

Porter appears to argue that the evidence should have been suppressed because: (A) the license plate light on the vehicle was operational; and (B) Officer Montgomery was not in full uniform or a marked police vehicle.

A. License Plate Light

Porter argues that the traffic stop was without a warrant and the officer’s ground for stopping the vehicle based upon the license plate light was improper. Porter also argues that “since the light worked, and there was no evidence [the] vehicle was other than as it had been made or altered in any way, Porter met his burden of proof as to suppression.” Appellant’s Brief at 13. Porter also refers to Ind. Code § 9-19-6-24 which provides:

(a) This section does not apply to a person who owns or operates a vehicle or combination of vehicles that:
(1) contains parts and accessories; and
(2) is equipped;
as required under regulations of the United States Department of Transportation.
(b) A person who violates this chapter commits a Class C infraction. Porter points out that his wife owned the vehicle and testified that she had never altered the license plate light.

The State argues that Officer Montgomery’s testimony and the photos are all that are required to support a violation of Ind. Code § 9-19-6-4(e) and to justify a stop on that basis. With respect to Ind.Code § 9-19-6-24, the State asserts that “[b]y its own terms, application of Section 24 does nothing more than exempt a violation of a statute from also being an infraction,” and that “[i]t does not purport to negate the violation of the statute.” Appellee’s Brief at 9. The State contends that subsection 24 “maintains the violation but eliminates the penalty for such a violation.” Id.

The Fourth Amendment to the United States Constitution protects an individual’s privacy and possessory interests by prohibiting unreasonable searches and seizures. State v. Sitts, 926 N.E.2d 1118, 1120 (Ind.Ct.App.2010) (citing State v. Rager, 888 N.E.2d 136, 139 (Ind.Ct.App.2008)). These safeguards extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Id. The State has the burden of demonstrating that the measures it used to seize evidence were constitutional. Id. “In reviewing the trial court’s ruling on the admissibility of evidence from an allegedly illegal search, an appellate court does not reweigh the evidence but defers to the trial court’s factual determinations unless clearly erroneous.” Meredith v. State, 906 N.E.2d 867, 869 (Ind.2009). An appellate court also “views conflicting evidence most favorably to the ruling, and considers afresh any legal question of the constitutionality of a search or seizure.” Id. See also Brown v. State, 653 N.E.2d 77, 81 (Ind.1995) (“In evaluating the propriety of a warrantless search on appeal, the trial court’s findings of fact are accepted unless clearly erroneous and the review of the conclusions of law is performed de novo.”).

Because a traffic stop is a seizure under the Fourth Amendment, police may not initiate a stop for any conceivable reason, but must possess at least reasonable suspicion that a traffic law has been violated or that other criminal activity is taking place. Meredith, 906 N.E.2d at 869. “An officer’s decision to stop a vehicle is valid so long as his on-the-spot evaluation reasonably suggests that lawbreaking occurred.” Id. at 870. “This discretion, however, does not extend to an officer’s mistaken belief about what constitutes a violation as a matter of law.” Id.

Here, Officer Montgomery initiated a traffic stop because he could not see the license plate from fifty feet away. Ind. Code § 9-19-6-4(e) requires illumination of license plates and provides in part: “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.”

The following exchange occurred during the direct examination of Officer Montgomery:

Q What did you notice about [the vehicle]?
A The license plate was what appeared to be angled upward and in fact that I couldn’t see the license plate light from 50 feet away.
Q Excuse me, you couldn’t see the light or you couldn’t see the plate?
A I could not see the license plate from 50 feet away.
Q Okay. So what did you do when you couldn’t see the license plate?
A Initiated the traffic stop.
Q How close did you get to the car while you were effecting the traffic stop?
A Approximately around 15 feet away. Q Could you see the license plate then? A No.
Q Did you ever actually see the license plate?
A Yes, sir.
Q To a point where you could read it? A Yes.
Q When?
A When I used my spotlight on my police vehicle.

Transcript at 9-10.

The trial court examined the license plate light and observed that “it couldn’t be pointed in any particular direction,” Id. at 69, but also stated:

[TJhere is a line of demarcation on the license plate itself where part of it is clearly illuminated and part of it is barely illuminated. The-portion that is barely illuminated is not readable. I think the statute to have, to make sense has to require that the light be enough to make the plate readable and not merely in less shadow than it would be if there were no light.

Id. at 130. While Porter introduced photographs of the vehicle, some of the pictures were taken well within fifty feet of the vehicle and at least one of the pictures was from about twenty feet, and the flash from the camera itself illuminated the plate when the picture was taken.

The record reveals evidence that Officer Montgomery had a reasonable-and objectively justifiable basis for making the initial'traffic stop. Even assuming that Porter’s vehicle met federal regulations, we cannot say that Officer Montgomery lacked reasonable suspicion to initiate a traffic stop of Porter’s vehicle when he could not see the license plate from fifty feet away. See Potter v. State, 912 N.E.2d 905, 908 (Ind.Ct.App.2009) (holding that a traffic violation is not a condition precedent to a stop otherwise supported by the facts); see also U.S. v. Cashman, 216 F.3d 582, 587 (7th Cir.2000) (holding that “[t]he propriety of the traffic stop does not depend ... on whether [the defendant] was actually guilty of committing a traffic offense by driving a vehicle with an excessively cracked windshield,” that' “[t]he pertinent question instead is whether it was reasonable for [the officer] to believe that the windshield was cracked to an impermissible degree,” and that “the Fourth Amendment requires only a reasonable assessment of the facts, not a perfectly accurate one”). Under the circumstances, we cannot say that the trial court abused its discretion or erred in admitting the evi- . dence obtained after the stop. See Meredith, 906 N.E.2d at 872-873 (holding that the improper display of registration may constitute reasonable suspicion for a traffic stop); Houston v. State, 898 N.E.2d 358 (Ind.Ct.App.2008) (holding that non-compliance with statutory requirements concerning placement, secure attachment, illumination and legibility of a license plate may serve as a basis for reasonable suspicion for law enforcement officers to make a traffic stop to ascertain whether the display fully complies with all statutory requirements), tram, denied.

B. Uniform/Marked Police Vehicle

Porter phrases the issue as “[w]hether the trial court clearly erred when it overruled Porter’s timely objection that the State did not present any evidence that the police officer who made the traffic stop was in a fully marked car or uniform at the time of the stop.” Appellant’s Brief at 1. Porter argues that the stop and arrest were illegal and appears to suggest that the trial court abused its discretion by admitting evidence, i.e. Porter’s identity as the driver, following the stop of the vehicle based upon Ind.Code § 9-80-2-2. -

On appeal, Porter points only to his counsel’s statements during closing argument regarding whether the State had established that the arresting officer was in a fully marked vehicle or in uniform as required by Ind.Code § 9-30-2-2. Porter argues that the arrest was in violation of the statute, and the trial court erred when it dismissed counsel’s argument by stating: “I’ve read the important parts of [Bovie]. Anything else?” Appellant’s Brief at 13.

The State points out that the probable cause affidavit indicated that Officer Montgomery returned to his fully marked police vehicle after stopping Porter, and acknowledges that the probable cause affidavit does not appear to have been formally admitted as evidence, but argues that “it is equally clear from the multiple references to the document that the parties and the court treated it as though it had been.” Appellee’s Brief at 12. The State also argues that the fact that Officer Montgomery was in a marked police car is implied by his testimony that he pointed his spotlight at the license plate. The State contends that the “uniform/marked vehicle requirement is pertinent to an inquiry into whether an investigatory stop is licit and no more.” Id.

Ind.Code § 9-30-2-2 provides that in order for an officer to make an arrest or issue a traffic information or summons for a violation of a law regulating operation of a motor vehicle, the officer must be either wearing a uniform and badge, or driving a clearly marked police vehicle. Bovie v. State, 760 N.E.2d 1195, 1198 (Ind.Ct.App.2002). Specifically, Ind. Code § 9-30-2-2 provides:

A law enforcement officer may not arrest or issue a traffic information and summons to a person for a violation of an Indiana law regulating the use and operation of a motor vehicle on an Indiana highway or an ordinance of a city or town regulating the use and operation of a motor vehicle on an Indiana highway unless at the time of the arrest the officer is:
(1) wearing a distinctive uniform and a badge of authority; or
(2) operating a motor vehicle that is clearly marked as a police vehicle;
that will clearly show the officer or- the officer’s vehicle to casual observations to be an officer or a police vehicle. This section does not apply to an officer making an arrest when there is a uniformed officer present at the time of the arrest.

“The purpose of this statute is to protect drivers from police impersonators and to protect officers from resistance should they not be recognized as officers.” Ervin v. State, 968 N.E.2d 315, 318 (Ind.Ct.App.2012). “The statute seeks to help distinguish law enforcement officers from those individuals on our highways who, for illicit purposes, impersonate law enforcement officers.” Id. Evidence obtained in an unlawful arrest may be excluded upon proper motion by the defendant. State v. Caplinger, 616 N.E.2d 793, 795 (Ind.Ct.App. 1993) (citing Pawloski v. State, 269 Ind. 350, 380 N.E.2d 1230 (1978)).

We observe that Porter’s motion to suppress did not mention Ind.Code § 9-30-2-2. At the hearing on Porter’s motion to suppress, his counsel stated:

I would note just as a side note, I don’t know if it’s a really fair criticism, I didn’t hear that the vehicle, his vehicle was fully marked, I also didn’t hear that he was in — or that he was in full uniform. So I, I don’t know that they’ve actually technically if you (indecipherable) I don’t know that they’ve proved on those grounds but just being genuine, the real issue here is the one we presented about the license plate light not justifying the stop.

Transcript at 39. Based upon these statements, it is unclear whether Porter’s counsel was objecting to the admission of the evidence based upon Ind.Code § 9-30-2-2 or whether he waived the issue. See 1A I.L.E. Appeals § 46 (2013) (“[A]n objection sufficient to preserve error on appeal must point out the ground or grounds for the objection in such a manner as to advise the court and the adverse party so that the ruling may be made understandingly and the objection obviated if possible.”). Moreover, even assuming that Porter sufficiently objected on this basis at the hearing, at the trial, when discussing Officer Montgomery’s testimony from the hearing in which Officer Montgomery identified Porter as the driver of the vehicle, Porter’s counsel stipulated that Officer Montgomery’s testimony would be admitted for purposes of the trial subject to the objection under Article 1, Section 11, and the Fourth Amendment. However, Porter’s counsel did not object under Ind.Code § 9-30-2-2. Under the circumstances, we conclude that Porter waived this issue. See Hollowell v. State, 753 N.E.2d 612, 615-616 (Ind.2001) (“Absent either a ruling admitting evidence accompanied by a timely objection or a ruling excluding evidence accompanied by a proper offer of proof, there is no basis for a claim of error.”) (citing Ind. Evidence Rule 103(a)); Wright v. State, 593 N.E.2d 1192, 1194 (Ind.1992) (‘When the trial court denies a motion to suppress evidence or takes the motion under advisement, the moving party must renew his objection to admission of the evidence at trial. If the moving party does not object to the evidence at trial, then any error is waived. Alleged error likewise is waived if an appellant states one ground at trial and later states another ground on appeal.”) (internal citations omitted), cert. denied, 506 U.S. 1001, 113 S.Ct. 605, 121 L.Ed.2d 540 (1992), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206-1207 (Ind.2007).

II.

The next issue is whether the court exceeded statutorily prescribed limits when it suspended Porter’s driving privileges for life. The State concedes that “[a]s a result of the conversion of [Porter’s] most recent felony conviction, [Porter] was subject only to a ten-year suspension at the time of his sentencing in this case.” Appellee’s Brief at 5. In discussing a reserved question of law, this court has previously held that “entering a judgment of conviction for a class A misdemeanor pursuant to Indiana Code section 35-38-1-1.5 for an offense under Indiana Code section 9-30-10-16 removes the lifetime forfeiture of a defendant’s driving privileges.” State v. Vankirk, 955 N.E.2d 765, 769 (Ind.Ct.App.2011), trans. denied. Thus, we conclude that Porter’s driving privileges were no longer suspended for life at the time of the sentencing hearing. Accordingly, we turn our attention to whether the trial court had the authority to impose a lifetime suspension for the present offense.

To the extent that this case rests upon statutory interpretation, our review is de novo. See Gardiner v. State, 928 N.E.2d 194, 196 (Ind.2010). Penal statutes should be construed strictly against the State and ambiguities should be resolved in favor of the accused. Merritt v. State, 829 N.E.2d 472, 475 (Ind.2005). At the same time, however, statutes should not be narrowed so much as to exclude eases they would fairly cover. Id. Also, we assume that the language in a statute was used intentionally and that every word should be given effect and meaning. Id. We seek to give a statute practical application by construing it in a way favoring public convenience and avoiding absurdity, hardship, and injustice. Id. Statutes concerning the same subject matter must be read together to harmonize and give effect to each. Id. “The judicial function is to apply the laws as enacted by the legislature.” Moore v. State, 949 N.E.2d 343, 345 (Ind.2011).

Both parties point to Ind.Code §§ 9-30-10-16 and 17. Ind.Code § 9-30-10-16 is titled “Operating a motor vehicle while privileges are suspended; Class D felony; Class A misdemeanor,” and provides:

(a) A person who operates a motor vehicle:
(1) while the person’s driving privileges are validly suspended under this chapter or IC 9-12-2 (repealed July 1, 1991) and the person knows that the person’s driving privileges are suspended; or
(2) in violation of restrictions imposed under this chapter or IC 9-12-2 (repealed July 1, 1991) and who knows of the existence of the restrictions;
commits a Class D felony.
*****
(c) In addition to any criminal penalty, a person who is convicted of a felony under subsection (a) forfeits the privilege of operating a motor vehicle for life. However, if judgment for conviction of a Class A misdemeanor is entered for an offense under subsection (a), the court may order a period of suspension of the convicted person’s driving privileges that is in addition to any suspension of driving privileges already imposed upon the person.

(Emphasis added). Ind.Code § 9-30-10-17 is titled “Operating motor vehicle while privileges are forfeited for life; Class C felony,” and provides in its entirety: “A person who operates a motor vehicle after the person’s driving privileges are forfeited for life under section 16 of this chapter, IC 9-4-13-14 (repealed April 1, 1984), or IC 9-12-3-1 (repealed July 1, 1991) commits a Class C felony.”

Porter argues that “[bjeyond the rule of construction that places specific statutes ahead of general ones, when a conflict arises over the question of imposing a harsher penalty or a more lenient one, the longstanding Rule of Lenity should be applied.” Appellant’s Brief at 8. He maintains that he was convicted under Ind. Code § 9-30-10-17, that the statute does not empower the trial court to impose any license suspension, and requests that we vacate his lifetime suspension.

The State concedes that Ind.Code § 9-30-10-17 is silent on imposition of a lifetime suspension, but argues that “the lifetime suspension is an element of the offense under Indiana Code § 9-30-10-17,” and that “[i]t would be incongruous in such a case if the court were then directed by the statute to do that which has already been proven beyond a reasonable doubt to have already been done by a previous court.” Appellee’s Brief at 6. The State observes that the court found sufficient evidence to convict Porter of Count I but dismissed the count based upon double jeopardy concerns. The State contends that “[i]f a court would be authorized to impose a sanction on a conviction of a lesser offense, that authorization should not be lost simply because the defendant was convicted of a more severe crime that included the lesser offense.” Id. at 7. The State also argues that we should hold that the legislature could not have intended for a court to be powerless to reimpose a lifetime suspension after a conviction for driving after lifetime suspension when that suspension has been lifted between the commission of the offense and the sentencing of the defendant.

Trial courts have broad discretion in sentencing, but must act within statutorily prescribed limits. Laux v. State, 821 N.E.2d 816, 818 (Ind.2005). Ind.Code § 9-30-10-17 does not provide for a lifetime license suspension. Mindful that penal statutes should be construed strictly against the State, that ambiguities should be resolved in favor of the accused, and that the judicial function is to apply the laws as enacted by the legislature, we conclude that the trial court exceeded statutory authority and improperly suspended Porter’s driving privileges for life. See id. at 818-819 (vacating a nó-contact order imposed by the court where the sentencing statutes by their terms did not authorize imposition of a no-contact order as part of an executed sentence); Barnett v. State, 414 N.E.2d 965, 966 (Ind.Ct.App.1981) (holding that the trial court was without the power to impose restitution as part of the sentence where the imposition of restitution is not within the sentencing statute).

CONCLUSION

For the foregoing reasons, we affirm Porter’s conviction for operating a vehicle after a lifetime suspension, reverse the trial court’s suspension of Porter’s driving privileges for life, and remand for proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

BAILEY, J., and VAIDIK, J., concur.

      . Ind.Code§ 9-30-10-16 (2004).

      . Ind.Code§ 9-30-10-17(2004).

      . Specifically, the following exchange occurred:
      [Porter’s Counsel]: [A] C felony (indecipherable) does not carry a license suspension upon conviction. Unlike the D felony HTV that specifically in the statute gives the court authority to suspend a license....
      THE COURT: It sounds like you’re saying that [the prosecutor] is requesting that I order a lifetime suspension and you’re saying I can’t do that.
      [Porter’s Counsel]: That’s correct, respectfully I'm saying that.
      * * ⅜ * *
      [Porter’s Counsel]: The conviction in this case was not under 9-30-10-16, it was under 9-30-10-17—
      THE COURT: That’s this one, that's the one that brings us here today.
      [Porter’s Counsel]: That’s correct. Now this tells us that in a D felony conviction such as in Tippecanoe County, that if on the D felony he had to be suspended for life, if the misdemeanor, the court then can suspend for a period of years.
      [Porter’s Counsel]: (c) says in addition to any criminal penalty, any person who is convicted of a felony under subsection (a)-
      THE COURT: Well, I’ll give you something to appeal. Let's move on.
      Transcript at 200-203.

      . On appeal, Porter cites only to the Fourth Amendment and not to Article 1, Section 11 of the Indiana Constitution.

      . Neither party points to a specific portion of 49 C.F.R 571.108, which provides requirements for license plate lights.

      . We observe that the prosecutor stated at the sentencing hearing that Porter was "now back on a ten-year license suspension....” Transcript at 196.


author: CRONE, Judge.

text:
    Adolfo LOPEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 15A01-1212-CR-550.
    Court of Appeals of Indiana.
    April 8, 2013.

      Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Adolfo Lopez appeals the trial court’s denial of his motion for bond reduction. Lopez and 108 other individuals were charged with numerous nonviolent crimes involving a chain of Acapulco Mexican restaurants co-owned by Lopez. Specifically, Lopez was charged with six class C felonies and four class D felonies. The trial court set Lopez’s bond at $3,000,000 surety plus $250,000 cash. On appeal, Lopez asserts the trial court abused its discretion in denying his motion for bond reduction. Finding the bond excessive, we conclude that the trial.court abused its discretion when it denied the motion for reduction. Therefore, we reverse and remand.

Facts and Procedural History

In 2010, Indiana State Excise Police Officer Timothy Sutton began investigating a chain of Acapulco Mexican restaurants after he became aware that the restaurants may not have been reporting or documenting all sales. In addition to conducting undercover surveillance, Sutton and Indiana Department of Revenue Agent Rick Albrecht reviewed cash register receipts, payroll records, income statements from the restaurants, and bank deposits, which all indicated an underreporting of gross sales. They also ran employees’ social security numbers through a state database and discovered fraudulent numbers. The subsequent execution of a search warrant on various safety deposit boxes owned by Lopez resulted in the seizure of cash in excess of $8,000,000.

On September 24, 2012, the State charged Lopez and 108 other individuals with numerous crimes. Specifically, the State charged Lopez with one count of class C felony corrupt business influence, one count of class C felony conspiracy to commit corrupt business influence, and four counts of class C felony forgery. The State also charged Lopez with four counts of class D felony perjury. These charges involve allegations of failure to properly report restaurant sales, failure to pay state sales taxes, falsification of tax forms, and the use of false social security numbers. The trial court set bond at $8,000,000 surety plus $250,000 cash.

On October 31, 2012, Lopez filed a motion to reduce bond alleging that his bond was unconstitutionally excessive and contrary to Indiana Code Section 35-33-8-4(b). Following a hearing, the trial court denied Lopez’s motion on November 21, 2012. This appeal ensued.

Discussion and Decision

As a general matter, the setting of the amount of bail is within the discretion of the trial court and will be reversed only for an abuse of that discretion. Winn v. State, 973 N.E.2d 653, 655 (Ind.Ct.App.2012). We therefore review the trial court’s denial of a defendant’s motion to reduce bail for an abuse of discretion. Id. “An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it.” Sneed v. State, 946 N.E.2d 1255, 1257 (Ind.Ct.App.2011). The denial of a motion to reduce bail is a final judgment appealable as of right. Id. at 1256 n. 1.

The Indiana Constitution prohibits excessive bail. Ind. Const, art. 1, § 16. Bail is excessive if set at an amount higher than reasonably calculated to ensure the accused party’s presence in court. Sneed, 946 N.E.2d at 1257 (citing Hobbs v. Lindsey, 240 Ind. 74, 79, 162 N.E.2d 85, 88 (1959) and Ind.Code § 35-33-8-4(b)). When setting and accepting an amount of bail, the trial court is required to take into account all facts relevant to the risk of nonappearance, including:

(1) the length and character of the defendant’s residence in the community;
(2) the defendant’s employment status and history and his ability to give bail;
(3) the defendant’s family ties and relationships;
(4) the defendant’s character, reputation, habits, and mental condition;
(5) the defendant’s criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court’s authority to bring him to trial:
(6) the defendant’s previous record of not responding to court appearances when required or with respect to flight to avoid criminal prosecution;
(7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;
(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;
(9) that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and
(10) any other factors, including any evidence of instability and a , disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring him to trial.

Ind.Code § 35-33-8-4(b).

While our review of a defendant’s challenge to the trial court’s initial setting of bail and our review of a defendant’s challenge to the trial court’s denial of a motion to reduce bail are conceptually and legally distinct, the two inquiries substantially overlap. Sneed, 946 N.E.2d at 1257-58. In deciding whether to exercise its discretion to reduce bail, the trial court considers the same statutory factors relevant to the initial setting of bail provided in Indiana Code Section 35-33-8-4(b). See id.

Here, in considering Lopez’s motion to reduce bond, the trial court held a hearing and received evidence, specifically considering the statutory factors listed in Indiana Code Section 35-33-8^1(b). The evidence presented indicates that some factors weigh in favor of the motion to reduce while other factors weigh against the motion to reduce. We note that factors 1, 2, 3, 5, 6, and 9 weigh in favor of Lopez’s motion to reduce. Lopez is an eight-year resident of Dearborn County; he has a long and stable employment history, but his assets have been seized, severely limiting his ability to post bail; he has been married for fifteen years with two children enrolled in local schools; he has no criminal record; he has no record of failure to appear in court and his passport has been seized; and he has been a United States citizen since 1998. Factors 4, 7, and 10, however, weigh against the motion to reduce and in favor of the trial court’s denial of that motion. Indeed, as noted by the trial court, testimony regarding Lopez’s alleged business practices do not reflect favorably on his character; he is facing a possible aggregate penalty of sixty years imprisonment and potential fines of $100,000 if convicted; and his alleged business practices indicate instability and disdain for authority. The trial court also noted that Lopez has been known to frequently visit Mexico and that he maintains various ties to that country.

We are most troubled by the trial court’s apparent failure to consider or give any weight to factor 8 regarding the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance. As noted earlier, the record indicates that all of Lopez’s assets have been seized and that he does not have access to the funds necessary to post the extraordinarily high bail set here. While the State asserts that it is “reasonable to assume” that Lopez’s brothers, who continue to operate restaurants outside the jurisdiction, can procure the necessary funds to satisfy the bond or that Lopez himself likely “has access to large funds outside of this jurisdiction,” while possibly true, such speculation is not supported by evidence in the record. Appel-lee’s Br. at 10-11.

Still, the inability to procure the amount necessary to make bond does not in and of itself render the amount- unreasonable. Mott v. State, 490 N.E.2d 1125, 1128 (Ind.Ct.App.1986). However, we must emphasize that we are dealing with a constitutional right here, and the goal is not to punish in advance of conviction but to assure the defendant’s appearance in court. See Samm v. State, 893 N.E.2d 761, 766 (Ind.Ct.App.2008). Significantly, the State has already seized in excess of $3,000,000 from -the search of Lopez’s safety deposit boxes. Nonappearance by Lopez jeopardizes his ability to eventually recover any portion of that large sum of money. This fact alone indicates that the risk of nonappearance is lowered and that the extraordinary bail set here is at an amount significantly higher than reasonably calculated to assure Lopez’s presence in court.

Under the circumstances, bond set at $3,000,000 surety plus $250,000 cash is excessive and more than necessary to assure Lopez’s presence in court. Accordr ingly, we conclude that the trial cqurt abused its discretion' when it denied Lopez’s motion for- bond reduction. Therefore, we reverse the judgment of the trial court and remand with instructions for the trial court to set a reasonable bond amount based upon the relevant statutory factors.

Reversed and remanded.

ROBB, C.J., and FRIEDLANDER, J., concur.

      . The trial court noted that Lopez "opened the door” to the State's evidence regarding the manner in which he conducted his businesses by asserting evidence of his good character and good business practices as support for the motion to reduce. Appellant’s App. at 69.

      . Bail should be established by the trial court and not by this' Court on appeal. Reeves v. State, 923 N.E.2d 418, 422 (Ind.Ct.App.2010).