Anthony Eugene Carter v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 25, 2023
• Docket: 23A-CR-394
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision is not binding Oct 25 2023, 8:58 am precedent for any court and may be cited only for persuasive value or to establish res CLERK Indiana Supreme Court judicata, collateral estoppel, or law of the Court of Appeals and Tax Court case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Theodore E. Rokita Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony Eugene Carter, October 25, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-394 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Stoner, Appellee-Plaintiff. Judge The Honorable Andrew Borland, Magistrate Trial Court Cause No. 49D32-2106-F2-18965

Memorandum Decision by Judge Riley Judges Crone and Mathias concur.

Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 1 of 11 Riley, Judge.

STATEMENT OF THE CASE [1] Appellant-Defendant, Anthony Eugene Carter (Carter), appeals his conviction

for dealing in cocaine, a Level 2 felony, Ind. Code § 35-48-4-1(a)(2).

[2] We affirm.

ISSUE [3] Carter presents this court with one issue on appeal, which we restate as:

Whether the warrantless search of Carter’s purse violated his rights under

Article 1, Section 11 of the Indiana Constitution.

FACTS AND PROCEDURAL HISTORY [4] On June 19, 2021, around 11:00 p.m., Carter crashed while riding a motorcycle

near the intersection of 30th Street and Arlington Street in Indianapolis, Indiana.

Marion County Sheriff’s Deputy Christian Schloegel (Deputy Schloegel) was

the first to arrive on the scene. Carter was sitting in the street, had a large bump

on his head, and was clutching a brown purse to his chest. Deputy Schloegel

helped Carter move off the road into a grassy area. Indianapolis Metropolitan

Police Officer Elizabeth Flatter (Officer Flatter) was next to arrive. She

acquired Carter’s driver’s license for identification, and she further discovered

that Carter’s license was suspended and that he did not have an endorsement to

ride a motorcycle. Officer Flatter decided not to arrest Carter at this time

because he had extensive head injuries which necessitated medical attention.

Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 2 of 11 [5] While Officer Flatter investigated Carter’s license status, an ambulance arrived

on the scene and Carter was placed inside, together with his brown purse.

Outside, Officer Flatter noticed a broken bracelet near Carter’s motorcycle.

Believing that it belonged to Carter, Officer Flatter picked it up and walked to

the ambulance to return it to Carter. After entering the ambulance, Officer

Flatter asked if Carter wanted the bracelet, to which Carter “said yes and

reached for it.” (Transcript Vol. II, p. 100). Because the bracelet was broken

and Carter was on the gurney, Officer Flatter suggested “to wrap it up inside

[her] glove that way all the beads stayed together[.]” (Tr. Vol. II, p. 100).

Officer Flatter offered to “drop it in the bag for him and he nodded his head as

if that was okay.” (Tr. Vol. II, p. 100). “The bag was already on the bench in

the ambulance. It was already open. [Officer Flatter] didn’t touch it.” (Tr.

Vol. II, p. 100). When Officer Flatter dropped the bracelet in the brown purse,

she observed “what [she] recognized to be a firearm” inside the purse. (Tr. Vol.

II, p. 60). Officer Flatter remained silent about the firearm at first because

Carter was being treated for his injuries and she did not want him to react, as

she needed to ask him questions about the crash.

[6] When Officer Flatter exited the ambulance, she requested to see the purse. She

found the handgun in the purse and took possession of it because weapons are

not allowed to be transported in an ambulance. In accordance with the

Indianapolis Emergency Medical Services policy, “[p]atients shall not be

allowed to retain a weapon in their possession during transport, this would

include in a purse or bag within their reach. [] Any time a weapon is

Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 3 of 11 encountered, it will be secured. Ideally, the weapon should be left at the

residence or scene. If law enforcement is on the scene, they will be requested to

assess the situation, and take the weapon into their possession.” (Exh. Vol. I, p.

5). Accordingly, it is standard procedure when transported to the hospital in an

ambulance to conduct a safety check of a patient’s possessions and any

weapons found must be collected and secured. The serial number is checked on

all collected weapons prior to being placed in the property room for safekeeping

until the patient is released from the hospital.

[7] Another officer on the scene checked the serial number on the handgun

collected from Carter’s purse and discovered that it had been reported stolen.

Officer Flatter also discovered that Carter did not have a permit to carry a

handgun. 1 Carter was placed under arrest. His purse was thoroughly searched,

and officers discovered three cell phones and $328 in cash. Prior to leaving for

the hospital, Officer William McMillian (Officer McMillian), who

accompanied Carter to the hospital, smelled raw marijuana inside the

ambulance.

[8] Once at the hospital, Carter was placed in the shock room, which is the room

designated for patients who have suffered traumatic injuries. Patients are

stripped down to their underwear in order to fully assess their injuries. Officer

McMillian again smelled raw marijuana inside the shock room. While being

1 Carter had been convicted of a felony within the previous fifteen years which prohibited him from carrying a firearm in general.

Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 4 of 11 treated, Carter was protective of his underwear and swatted at the nurses.

Seeing this, Officer McMillian believed Carter had marijuana in his underwear

and decided to conduct a search. Officer McMillian recovered a black

drawstring bag from Carter’s underwear. Although Carter informed Officer

McMillian that “it’s just a little bit of weed,” the bag contained twenty-three

individually wrapped quantities of a white, powdery substance which the officer

believed to be cocaine. (Tr. Vol. II, p. 123). Officer McMillian also recovered a

second bag from Carter’s underwear which contained marijuana. Subsequent

testing revealed that the black drawstring bag contained 5.1917 grams of

cocaine and that the second bag contained 18.87 grams of marijuana.

[9] On June 21, 2021, the State filed an Information, charging Carter with Count I,

Level 2 felony dealing in cocaine; Count II, Class A misdemeanor carrying a

handgun without a license; Count III, Class A misdemeanor driving while

suspended; and Count IV, Class B misdemeanor possession of marijuana. On

August 22, 2022, the State added Count V, Level 3 felony dealing in cocaine.

On December 19, 2022, the State added Count VI, Level 2 felony dealing in

cocaine. The following day, the State moved to dismiss Counts I, III, and IV,

which was granted by the trial court.

[10] On November 9, 2022, Carter moved to suppress all evidence derived from the

search as violating his rights under the Fourth Amendment of the United States

Constitution and Article 1, Section 11 of the Indiana Constitution. On

November 16, 2022, the trial court conducted a hearing on Carter’s motion to

suppress and, after receiving evidence, denied Carter’s motion. On December

Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 5 of 11 21, 2022, the trial court conducted a bench trial. At trial, Carter objected to the

admission of the handgun found in his purse. The trial court overruled Carter’s

objection and admitted the handgun into evidence. Carter also objected to the

admission of the drugs retrieved from his underwear at the hospital. Again, the

trial court overruled the objection and admitted the evidence. At the close of

the evidence, the trial court found Carter guilty of Count II, Class A

misdemeanor carrying a handgun without a license; Count V, Level 3 felony

dealing in cocaine; and Count VI, Level 2 felony dealing in cocaine. On

February 1, 2021, the trial court conducted a sentencing hearing. Due to

double-jeopardy concerns, the trial court only sentenced Carter for Count VI,

Level 2 felony dealing in cocaine, and imposed a sentence of twenty years, with

thirteen years executed and seven years suspended.

[11] Carter now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [12] Carter contends that the trial court abused its discretion by admitting the

handgun into evidence because it was discovered pursuant to a warrantless

search of his purse, which violated his rights under Article 1, Section 11 of the

Indiana Constitution. Because Carter’s case proceeded to trial where he

renewed his objection to the admission of that evidence, his appeal is properly

framed as a request to review the trial court’s ruling on its admissibility. Clark v.

State, 994 N.E.2d 252, 259 (Ind. 2013) (“Direct review of the denial of a motion

to suppress is only proper when the defendant files an interlocutory appeal.”).

The trial court has broad discretion to rule on the admissibility of evidence. Id. Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 6 of 11 at 259-60. We review its rulings “for an abuse of that discretion and reverse

only when admission is clearly against the logic and effect of the facts and

circumstances and the error affects a party’s substantial rights.” Id. But when

an appellant’s challenge to such a ruling is predicated on an argument that

impugns the constitutionality of the search or seizure of the evidence, it raises a

question of law, and we consider that question de novo. Kelly v. State, 997

N.E.2d 1045, 1050 (Ind. 2013).

[13] Carter’s handgun was discovered in “open view.” See Justice v. State, 765

N.E.2d 161, 165 (Ind. Ct. App. 2002), clarified on reh’g, 767 N.E.2d 995 (Ind. Ct.

App. 2002). The concept of “open view” is used in situations in which a law

enforcement officer sees contraband from an area that is not constitutionally

protected, but rather is in a place where the officer is lawfully entitled to be.

McAnalley v. State, 134 N.E.3d 488, 500-01 (Ind. Ct. App. 2019). In such

situations, anything that is within “open view” may be observed without having

to obtain a search warrant because making such “open view” observations does

not constitute a search in the constitutional sense. Id. However, the Justice

court recognized that “in order to lawfully seize items in ‘open view,’ it may be

necessary to obtain a search warrant or be able to justify a warrantless seizure

under an exception to the warrant requirement.” Justice, 765 N.E.2d at 165. In

the cause before us, Carter’s handgun was not discovered during a search of his

purse but, rather, was observed by Officer Flatter in open view when she placed

Carter’s bracelet in his unzipped purse after receiving his consent to do so.

After Officer Flatter discovered the weapon and exited the ambulance, she

Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 7 of 11 requested to see the purse. She seized the weapon and took possession of it.

Carter now contends that this seizure violated his rights pursuant to Article 1,

Section 11 of the Indiana Constitution.

[14] Article 1, Section 11 of the Indiana Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

When analyzing Article 1, Section 11 of the Indiana Constitution, “[i]nstead of

focusing on the defendant’s reasonable expectation of privacy, we focus on the

actions of the police officer and employ a totality-of-the-circumstances test to

evaluate the reasonableness of the officer’s actions.” Berry v. State, 121 N.E.3d

633, 638 (Ind. Ct. App. 2019), trans. denied. Litchfield v. State, 824 N.E.2d 356,

361 (Ind. 2005) establishes the test for the reasonableness of a search or seizure

pursuant to Article 1, Section 11 of the Indiana Constitution and prescribes a

balancing of three factors: 1) the degree of concern, suspicion, or knowledge

that a violation has occurred, 2) the degree of intrusion the method of the

search or seizure imposes on the citizen’s ordinary activities, and 3) the extent

of law enforcement needs. It is the State’s burden to show its intrusion was

reasonable. State v. Bulington,802 N.E.2d 435, 438 (Ind. 2004).

[15] In evaluating the degree of suspicion, courts consider “the reasonableness of the

officers’ assumptions, suspicions, or beliefs based on the information available Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 8 of 11 to them at the time.” Berry, 121 N.E.3d at 638. Here, Officer Flatter’s

suspicion was high. She had observed a handgun in Carter’s purse when she

placed his broken bracelet in the purse. She also was aware that Carter’s license

was suspended and that he did not have a motorcycle endorsement. Turning to

the second Litchfield factor, we note that the degree of intrusion is evaluated

from the defendant’s point of view. Id. at 339. An “ordinary” pat-down of the

outside of a suspect’s clothing is a fairly limited intrusion for the purposes of the

Indiana Constitution. J.R. v. State, 89 N.E.3d 408, 412 (Ind. Ct. App. 2017),

trans. granted, summarily aff’d in relevant part, 100 N.E.3d 256 (Ind. 2018). We

have also previously held that police are not required to wait until an individual

appears to be reaching for a weapon in order to ensure his safety and the safety

of the others at the scene. Wilson v State, 745 N.E.2d 789, 792 (Ind. 2001). We

find that the degree of intrusion was low. Although a purse may contain

personal items, Carter had not taken steps to hide the handgun from open view

as the purse was sitting unattended, was unzipped, and the handgun was clearly

visible without manipulating the bag or its contents. Lastly, the needs of law

enforcement were high due to the Indianapolis Emergency Medical Services

policy, which prohibits patients retaining a weapon in their possession during

transport and which requires all weapons to be secured by law enforcement on

the scene. Balancing the Litchfield factors and based on the totality of the

circumstances, we conclude that Officer Flatter’s seizure of the handgun was

reasonable.

Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 9 of 11 [16] Carter points to Pinner v. State, 74 N.E.3d 226 (Ind. 2017) and Webster v. State,

908 N.E.2d 289 (Ind. Ct. App. 2009) in support of his argument that the seizure

of the handgun was unreasonable under Article 1, Section 11 of the Indiana

Constitution. We find both cases to be unavailing to the cause at hand. In

Pinner, our supreme court held that the evidence was obtained in violation of

the Fourth Amendment of the United States Constitution when police officers

detained the defendant after receiving a tip that he possessed a handgun in a

taxi and then proceeded to enter a movie theater because the officers lacked

reasonable suspicion that he was engaged in or about to be engaged in criminal

activity. Pinner, 74 N.E.3d at 234. Unlike Pinner, Carter is proceeding under

Article 1, Section 11 of the Indiana Constitution. Although its text mirrors the

Fourth Amendment, we interpret Article 1, Section 11 of our Indiana

Constitution separately and independently. State v. Washington, 898 N.E.2d

1200, 1205-06 (Ind. 2008).

[17] Webster too is factually distinguishable. In Webster, we held that the search of a

purse and subsequent seizure of a handgun was unreasonable under the Indiana

Constitution. Webster, 908 N.E.2d at 293-94. In that case, an officer conducted

a traffic stop and Webster was a passenger in the vehicle. Id. at 290. Before the

driver complied with the traffic stop, the driver allowed Webster to exit the

vehicle with her purse and wait across the street near a gas station. Id. During

the traffic stop, the driver could not find the vehicle’s registration and the officer

beckoned Webster in hopes that the registration was in her purse. Id. at 291.

While Webster approached, the officer noticed a bulge in the bottom of her

Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 10 of 11 purse and believed it to be a handgun. Id. When Webster reached into the

purse to obtain her identification, the officer detained her and secured the purse.

Id. Upon a search of the purse, the officer found a handgun. Id. Unlike in

Webster, where the officer’s generalized concern that Webster was carrying a

handgun was based on mere speculation, here, the handgun was first observed

by Officer Flatter in ‘open view’ in an unzipped purse and subsequently was

seized pursuant to department policy prior to transporting Carter to the

hospital.

[18] Based on the totality of the circumstances before us, we find the seizure of

Carter’s handgun to be reasonable, and we affirm the trial court’s decision. 2

CONCLUSION [19] Based on the foregoing, we hold that the trial court did not abuse its discretion

by admitting Carter’s handgun into evidence because the handgun’s seizure did

not violate his rights pursuant to Article 1, Section 11 of the Indiana

Constitution.

[20] Affirmed.

Crone, J. and Mathias, J. concur

2 Because we conclude that the seizure of Carter’s handgun was reasonable under the Indiana Constitution, we do not address Carter’s argument that the discovery of the illegal drugs in Carter’s underwear should be suppressed as fruit of the poisonous tree.

Court of Appeals of Indiana | Memorandum Decision 23A-CR-394 | October 25, 2023 Page 11 of 11