Carla Shaw v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 29, 2019
• Docket: 18A-CR-1975
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 29 2019, 11:03 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anna Onaitis Holden Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carla Shaw, May 29, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1975 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Certo, Judge Appellee-Plaintiff. The Honorable David Hooper, Magistrate Trial Court Cause No. 49G12-1708-CM-32156

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Defendant, Carla Shaw (Shaw), appeals her conviction for

possession of marijuana, a Class B misdemeanor, Ind. Code § 35-48-4-11(a)(1).

[2] We reverse.

ISSUE [3] Shaw presents one issue on appeal, which we restate as: Whether the trial court

abused its discretion when it admitted evidence procured from a warrantless

inventory search of her vehicle.

FACTS AND PROCEDURAL HISTORY [4] On August 29, 2017, just before midnight, Officer Michael Kasper (Officer

Kasper) of the Indianapolis Metropolitan Police Department (IMPD) was on

patrol in the east district of Indianapolis when he observed a car driven by Shaw

fail to signal a turn from Sherman Drive onto 9th Street. Officer Kasper

followed the vehicle as Shaw signaled and turned left onto Bradley Street,

where Officer Kasper initiated a traffic stop. Shaw drove approximately 100

feet, pulled over, and parked on the public street in what is considered by law

enforcement to be a “high crime” area. (Trial Transcript Vol. II, p. 10). Officer

Kasper requested back up and then approached Shaw’s vehicle. Shaw provided

her name and date of birth. Shaw also volunteered that she did not have a valid

driver’s license, a fact that Officer Kasper confirmed by checking with the

Bureau of Motor Vehicle’s data base. Shaw had two passengers in the vehicle,

neither of whom possessed a valid driver’s license. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 2 of 11 [5] Officer Kasper decided to have Shaw’s vehicle towed because there was no one

present with a valid driver’s license to take possession of the vehicle. Officer

Kasper called for a tow truck. After Officer Katrina McEvilly (Officer

McEvilly) arrived to assist, Officer Kasper removed Shaw and the two

passengers from the vehicle. Officer Kasper detained Shaw but did not place

her under arrest for driving without a valid license. Pursuant to the IMPD’s

written policy on the towing and impounding of vehicles, General Order 7.3

(GO 7.3), the vehicle was searched prior to being towed. Officer McEvilly

found a bag of marijuana underneath the driver’s seat within reach of the

backseat passenger. Officer Kasper also searched the vehicle and found a bag of

marijuana between the front seat and the center console.

[6] As the officers were finishing the inventory search, four of Shaw’s family

members arrived. None of them had valid driver’s licenses, so the officers

continued the process of preparing the vehicle to be towed. GO 7.3 provided

that only items which had a value of $100 or more were to be inventoried prior

to towing a vehicle. Because the only other item found in Shaw’s vehicle apart

from the contraband was a bag of fast food, the officers did not prepare a list of

property. Eventually, Shaw’s daughter arrived. Officer Kasper had discretion

to decide whether to tow the vehicle, and he decided not to do so in light of

Shaw’s and her passengers’ good behavior during the traffic stop. After

verifying that she had a valid driver’s license, Officer Kasper released Shaw’s

vehicle to Shaw’s daughter. Based on the contraband found during the

inventory search, Officer Kasper arrested all the occupants of the vehicle.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 3 of 11 [7] On August 30, 2017, the State filed an Information, charging Shaw with

possession of marijuana, a Class B misdemeanor; driving while suspended, a

Class A misdemeanor; and operating a motor vehicle without ever receiving a

license, a Class A misdemeanor. On January 31, 2018, Shaw filed a motion to

suppress any evidence obtained from the warrantless search of her vehicle. On

March 5, 2018, the trial court held a hearing on Shaw’s motion, which it denied

the same day, finding that the search was a valid inventory search. 1

[8] On July 19, 2018, the trial court conducted Shaw’s bench trial. Shaw renewed

her motion to suppress and further evidence was taken on the renewed motion.

When the trial court asked if Shaw had parked her vehicle in line with other

cars parked on the street, Officer Kasper responded, “Close to. It was at

somewhat of an angle” and “[t]he front end closer to the curb than the back

end.” (Trial Tr. Vol. II, p. 23). The State had GO 7.3 admitted into evidence.

The trial court denied Shaw’s renewed motion to suppress.

[9] At the conclusion of the evidence, the trial court found Shaw guilty as charged.

Directly following Shaw’s bench trial, the trial court sentenced her to 180 days

for possessing marijuana, one year for driving while suspended, and one year

for operating a motor vehicle without ever receiving a license. The trial court

suspended the entirety of the sentence to time served.

1 A copy of the trial court’s written order denying Shaw’s motion to suppress is not part of the record on appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 4 of 11 [10] Shaw now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [11] Shaw challenges the admission of the evidence garnered from the inventory

search as fruit of an unlawful search under the Fourth Amendment and Article

I, Section 11, of our state constitution.

I. Standard of Review

[12] Trial courts have broad discretion to admit or exclude evidence. Blount v. State,

22 N.E.3d 559, 564 (Ind. 2014). A trial court’s decision on the admissibility of

evidence is reviewed for an abuse of discretion. Sams v. State, 71 N.E.3d 372,

376 (Ind. Ct. App. 2017). We will reverse that decision only where it is clearly

against the logic and effect of the facts and the error affects the defendant’s

substantial rights. Id. When reviewing the admission at trial of evidence

stemming from an inventory search, we do not reweigh evidence, and we

consider conflicting evidence in the light most favorable to the trial court’s

ruling. Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). We also consider any

uncontroverted evidence favorable to the defendant. Id. “[T]he ultimate

determination of ‘reasonableness’ is a constitutional legal question meriting

independent consideration by this Court.” Id.

II. Fourth Amendment

[13] The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures[.]” U.S. CONST. amend IV. A search conducted without a search

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 5 of 11 warrant is per se unreasonable unless it fits within one of a few “specifically

established and well-delineated exceptions.” Mincey v. Arizona, 437 U.S. 385,

390 (1978). When the State seeks to admit evidence garnered from a

warrantless search, it bears the burden of showing the need for an exemption

from the warrant requirement and that its conduct fell within the exception.

Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006).

[14] One well-defined exception to the warrant requirement is the inventory search.

Illinois v. Lafayette, 462 U.S. 640, 642 (1983); Fair v. State, 627 N.E.2d 427, 431

(Ind. 1993). An inventory search is an exception because it serves an

administrative, not an investigatory, purpose—to document the contents of a

vehicle to preserve the owner’s property and to protect the State against claims

of stolen or lost property. South Dakota v. Opperman, 428 U.S. 364, 369 (1976).

In order to establish the reasonableness of an inventory search, as a threshold

issue the State must show the propriety of the impoundment itself because the

need for the inventory arises from the impoundment. Fair, 627 N.E.2d at 431.

If the impoundment is not specifically authorized by statute, to show that the

impoundment of a vehicle was warranted, the State must demonstrate “(1) that

the belief that the vehicle posed some threat or harm to the community or was

itself imperiled was consistent with objective standards of sound policing, and

(2) that the decision to combat that threat by impoundment was in keeping with

established departmental routine or regulation.” Id. at 433 (citations omitted).

When assessing whether a vehicle posed a hazard, courts look at two main

factors, namely the degree to which the property where the vehicle was located

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 6 of 11 was under the control of the defendant and the length of time the officer

impounding the car perceived that the car would be unattended. Id. at 434.

Ultimately, the inquiry is not whether impounding the vehicle was absolutely

necessary; rather, courts must determine whether the decision to impound was

reasonable in light of the applicable standard. Id. at 433.

[15] If the impoundment itself was warranted, the State must also establish that the

inventory search was conducted pursuant to standard police procedures.

Sansbury v. State, 96 N.E.3d 587, 592 (Ind. Ct. App. 2017). An inventory search

cannot be a pretext for a fishing expedition for incriminating evidence. Id. If

either the propriety of the impoundment or the scope of the inventory is

unreasonable, the search will not be upheld. Fair, 627 N.E.2d at 431.

[16] Here, there was no evidence from which it could be inferred that Officer Kasper

believed that Shaw’s vehicle was parked in a manner which posed a threat to

the community or which placed the vehicle itself in peril. He never testified as

such; rather, Officer Kasper testified that he decided to tow Shaw’s vehicle

simply because there was no licensed driver available to take possession of it.

The State did not attempt to show that Shaw parked her vehicle illegally, and

the evidence at the suppression hearing was that, at most, the vehicle was

slightly askew in relation to other parked cars on the same street. The fact that

Shaw’s car was not parked illegally or creating a traffic hazard militates against

the reasonableness of the impound. See Taylor, 842 N.E.2d at 331-32

(concluding the impound was unreasonable in part because it was unclear that

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 7 of 11 vehicle was parked illegally, and, in any event, vehicle was not a potential

hazard to public safety).

[17] In addition, although the car was parked in what was considered to be a high-

crime area, other cars were parked on the same street that were unattended at

that late hour. This was not a case where Shaw’s would have been the sole

vehicle in a deserted area, rendering it more of a target. Contrary to the State’s

assertions, unlike the circumstances in Abran v. State, 825 N.E.2d 384, 390 (Ind.

Ct. App. 2005), trans. denied, where the truck at issue had items of value

exposed in its bed, there was no evidence here that Shaw’s car was particularly

susceptible to being stolen or vandalized. At the time he made the decision to

impound, Officer Kasper had also decided that he would not arrest Shaw for

driving without a valid license, and so there was no reason for him to believe

that her car would be left unattended for a long period of time. See Fair, 627

N.E.2d at 434.

[18] The State argues that it was reasonable for Officer Kasper to impound the

vehicle because, if he did not, Shaw or one of the unlicensed passengers would

have been likely to drive it away once the traffic stop was completed. However,

before deciding to impound the vehicle, Officer Kasper verified Shaw’s driving

status by looking at her driver record, a copy of which was admitted at the

suppression hearings. Those records indicated that Shaw’s home address was

only blocks away from the site of the traffic stop. The fact that Shaw lived just

a few blocks away would have been known to Officer Kasper when he made his

impound decision, and we find that it was unreasonable for him to assume that

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 8 of 11 Shaw would attempt to drive home instead of walking home and arranging for

someone else with a valid driver’s license to retrieve the vehicle. Thus, we

cannot conclude that Officer Kasper’s decision to impound Shaw’s vehicle was

reasonable because there was no evidence that Officer Kasper believed,

consistent with standards of good policing, that the vehicle “posed some threat

or harm to the community or was itself imperiled.” See Fair, 627 N.E.2d at 433.

[19] We also conclude that Officer Kasper’s decision to impound Shaw’s vehicle

was not consistent “with established departmental routine or regulation.” Id.

GO 7.3 provided guidance on towing decisions in relevant part as follows:

I. Authority to Tow

A. Officers have the authority to tow and impound vehicles when authorized by city ordinance or state statute, or as part of the officers’ community caretaking function.

B. Officers must be aware of the current on the [sic] city ordinances and state statutes that authorize the tow and impoundment of vehicles. Some applicable legal authority is provided in Section VII. below.

C. Community Caretaking Function

1. For a tow to be valid under this rationale, the following must be shown:

a. The vehicle poses some threat or harm to the community, or is itself in danger; and

b. Impoundment of the vehicle is in accordance with established department policy. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 9 of 11 2. In assessing whether a particular vehicle constitutes a hazard or is itself in danger, officers should consider:

a. The degree to which the property upon which the vehicle is situated is under the control of the vehicle owner/operator; and

b. The length of time the officer reasonably believes the impounded car would be left unattended.

3. Not every vehicle illegally parked or left unattended can be towed under the authority of the community caretaking function; officers must be able to particularly describe why the vehicle is a potential harm to the community or is itself in danger.

II. Vehicles Which May be Towed

Assuming proper authority exists under Section I. above, the following vehicles may be towed and impounded:

****

F. Being operated by an unlicensed or suspended driver[.]

(State’s Exh. 3) (emphasis added). Thus, pursuant to GO 7.3, which largely

tracts the language of Fair, an officer could only tow a vehicle operated by an

unlicensed or suspended driver if that officer could particularly describe why the

vehicle is a hazard to the community or is itself in danger, which we have

already concluded that Officer Kasper did not, and could not, do in this case.

[20] The inventory search conducted on Shaw’s vehicle was invalid under the

Fourth Amendment, and, therefore, the trial court abused its discretion when it

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 10 of 11 admitted evidence garnered from that search at trial. Because we conclude that

the State did not meet its burden of proof on the threshold issue of whether

Officer Kasper’s decision to impound was reasonable, we need not address the

validity of the scope of the search. See Fair, 627 N.E. at 431. In addition,

having concluded that the search of Shaw’s vehicle did not fall within the

inventory search exception to the warrant requirement under the Fourth

Amendment, we do not address Shaw’s state constitutional claim. See Berry v.

State, 967 N.E.2d 87, 92 n.3 (Ind. Ct. App. 2012) (concluding that the search of

his vehicle violated the Fourth Amendment and declining to address Berry’s

state constitutional claim).

CONCLUSION [21] Based on the foregoing, we conclude that the trial court abused its discretion

when it admitted evidence that was procured from an invalid inventory search

of Shaw’s vehicle.

[22] Reversed.

[23] Bailey, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019 Page 11 of 11