No. 71A05-9806-CR-283 | Ind. Ct. App. | Dec 29, 1998
Lead Opinion
OPINION
A jury convicted Donald Ray Peck of operating a motor vehicle while suspended as an habitual traffic violator.
We reverse.
FACTS AND PROCEDURAL HISTORY
At approximately 2:00 on the morning of December 10,1997, police officer Mark Szwe-
At trial, Peek argued that the traffic stop was illegal and moved to suppress all evidence obtained as a result of that stop. The trial court denied Peck’s motion, and a jury convicted him. Peck appeals.
DISCUSSION AND DECISION
IC 9-21-8-24 prohibits a person from, among other things, turning his vehicle unless such turn can be made with reasonable safety. The statute further requires that the driver use an appropriate signal if his turn may affect a pedestrian or other vehicle. There is nothing in the Record to indicate that Peck could not turn his vehicle with reasonable safety. Furthermore, Officer Szweda specifically testified that there were no other vehicles in the area, and because he was not asked about the presence of pedestrians, we infer from the silent Record that there were none. Therefore, Peck was not required to signal before turning. Officer S2weda’s reliance on Peck’s failure to signal was therefore unjustified, making the stop illegal. See Cash v. State, 593 N.E.2d 1267" court="Ind. Ct. App." date_filed="1992-06-18" href="https://app.midpage.ai/document/cash-v-state-2025851?utm_source=webapp" opinion_id="2025851">593 N.E.2d 1267 (Ind.Ct.App.1992) (police officer’s mistaken belief that motorist’s license plate was improperly fastened to vehicle did not justify traffic stop).
The State argues that even if Peck did not commit a traffic infraction, Officer Szweda was justified in his actions because he had a good faith belief that Peck had done so. Although a law enforcement officer’s good faith belief that a person has committed an infraction will justify a traffic stop, IC 34-4-32-2 (repealed, now codified at IC 34-28-5-3), a police officer’s mistaken belief about what constitutes an infraction does not amount to good faith.
Peck’s conviction is reversed.
. See Ind.Code § 9-30-10-16.
. We reject the State's reliance on English v. State, 603 N.E.2d 161" court="Ind. Ct. App." date_filed="1992-11-16" href="https://app.midpage.ai/document/english-v-state-2244459?utm_source=webapp" opinion_id="2244459">603 N.E.2d 161 (Ind.Ct.App.1992), because the court's reference to the police officer’s good faith belief was dicta given that a traffic infraction had in fact been committed.
Dissenting Opinion
dissenting.
I dissent.
The majority erroneously concludes that Officer Szweda’s stop of Peck was unjustified. First, Ind.Code § 9-21-8-25 (1993) provides, in part: “A signal of intention to turn right or left shall be given continuously during not less than the last two hundred (200) feet traveled by a vehicle before turning or changing lanes.” Peck failed to signal before turning right. Thus, Peck violated IC 9-21-8-25, thereby committing a Class C infraction,
Second, contrary to the majority’s holding, the record supports the conclusion that Peek violated Ind.Code § 9-21-8-24 (1993). IC 9-21-8-24 requires a motorist to give a turn signal when any other vehicle may be affected by the turn. The record establishes that Officer Szweda was driving a half-block behind Peck when Peck turned without signaling. Given the proximity of Officer Szweda’s vehicle to Peck’s vehicle, the trial court could have concluded that Officer Szweda’s vehicle “may” have been “affected” by Peck’s turn.
. Ind.Code § 9-21-8-49 (1993).