MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 30 2017, 9:05 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Desmond Gary, June 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1701-CR-35 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy M. Jones, Appellee-Plaintiff Judge Trial Court Cause No. 49G08-1512-CM-44391
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 1 of 13 Case Summary [1] Desmond Gary appeals his conviction, following a bench trial, for class A
misdemeanor carrying a handgun without a license. He contends that the trial
court abused its discretion when it admitted into evidence the handgun found
during an inventory search of his vehicle. Gary argues that the inventory search
was pretextual and unreasonable in violation of the Fourth Amendment to the
United States Constitution. Finding no constitutional violation and thus no
abuse of discretion, we affirm.
Facts and Procedural History [2] On December 14, 2015, Indianapolis Metropolitan Police Department
(“IMPD”) Officer Daniel Majors was on patrol when he observed a green
Nissan vehicle traveling with only one working headlight and an improperly
displayed license plate. Officer Majors initiated a traffic stop and ran a routine
records and driver’s license check on Gary, the driver of the vehicle. The check
indicated that Gary had an outstanding arrest warrant for child support and his
driver’s license was suspended. Officer Majors called for backup, and Officer
Alexandra Lowcher and another officer arrived on scene. Officer Majors then
placed Gary under arrest. Because there was no valid driver on scene1 and the
vehicle was illegally parked in a high crime area, Officer Majors decided to
impound Gary’s vehicle. Tr. Vol. 2 at 6.
1 There was a juvenile passenger in the car with Gary. The juvenile was identified as his twelve-year-old niece and was subsequently released to her mother.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 2 of 13 [3] Officer Lowcher conducted an inventory search of Gary’s vehicle in accordance
with IMPD’s general order 7.3 on impounded vehicles. State’s Ex. 1. Officer
Lowcher found a backpack with money that belonged to Gary, and there were
other bags in the backseat as well as some clothing. The juvenile passenger that
had been in the vehicle identified a few of the bags in the backseat, which were
released to her. When Officer Lowcher searched the unlocked center console in
the vehicle, she found a handgun.2 Gary spontaneously told the officers that he
had forgotten that the gun was in the car. Officer Majors determined that Gary
did not have a valid permit for the handgun.
[4] The State charged Gary with class A misdemeanor carrying a handgun without
a license. Gary filed a pretrial motion to suppress the handgun seized from his
vehicle. The trial court held a suppression hearing and thereafter denied the
motion to suppress. Following a bench trial on December 15, 2016, the trial
court found Gary guilty as charged. The trial court sentenced him to 365 days’
incarceration with 359 days suspended to nonreporting probation. This appeal
ensued.
Discussion and Decision [5] Gary contends that the trial court abused its discretion in admitting into
evidence the handgun seized during the inventory search of his vehicle.
2 At the suppression hearing, Officer Lowcher stated that she found the gun in the glove compartment. Tr. Vol. 3 at 14. However, during trial, both Officer Majors and Officer Lowcher testified that the handgun was found in the center console. Tr. Vol. 2 at 8, 13. The police report also indicated that the gun was found in the center console. Appellant’s App. at 14.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 3 of 13 Specifically, he claims that the search was pretextual and unreasonable in
violation of the Fourth Amendment to the United States Constitution.3 We
give trial courts broad discretion on whether to admit or exclude evidence.
Blount v. State, 22 N.E.3d 559, 564 (Ind. 2013). An abuse of discretion occurs
when the trial court’s ruling is, “clearly against the logic, facts, and
circumstances presented. When reviewing the admissibility of evidence, we do
not reweigh evidence, and we consider conflicting evidence most favorable to
the trial court’s ruling.” Phillips v. State, 25 N.E.3d 1284, 1288 (Ind. Ct. App.
2015). “The constitutionality of a search is a question of law, which we review
de novo.” J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App. 2014).
The search of Gary’s vehicle did not violate the Fourth Amendment.
Section 1 – The impoundment was reasonable. [6] Before addressing the validity of the inventory search of Gary’s vehicle, we
must address the threshold question of the propriety of the impoundment. Our
supreme court recently explained:
Both the Fourth Amendment and Article 1, Section 11 protect “[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; IND. CONST. art. 1, § 11. Automobiles
3 Although Gary mentions the Indiana Constitution, he provides no separate or independent state constitutional analysis in his brief. Consequently, any state constitutional claim is waived. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (failure to present authority or independent analysis supporting separate standard under state constitution results in waiver of state constitutional claim).
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 4 of 13 are among the “effects” protected by these provisions. Brown v. State, 653 N.E.2d 77, 79, 81 (Ind. 1995). Thus, when police impound a vehicle and inventory its contents, they effect a search and seizure, and both measures must be reasonable—that is, executed under a valid warrant or a recognized exception to the warrant requirement. [Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006)].
The inventory search is one such exception since it serves an administrative, not investigatory, purpose—because when police lawfully impound a vehicle, they must also perform an administrative inventory search to document the vehicle’s contents to preserve them for the owner and protect themselves against claims of lost or stolen property. Id. at 330-31. Consequently, proper impoundment is the “threshold question” to valid inventory search. [Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993)]. Nevertheless, as with any warrantless search or seizure, the State bears the burden of proving reasonableness, id. at 430, and that is where our analysis begins.
Impoundment is reasonable if it is authorized either by statute or the police’s discretionary community-caretaking function. Id. at 431-32. Impoundment pursuant to a statute is necessarily reasonable because the Legislature has deemed that citizens’ privacy interests in their cars yield to State interests in those circumstances, making police inventorying a necessary collateral administrative function. Discretionary impoundment, by contrast, is an exercise of the police community-caretaking function in order to protect the car and community from hazards. Discretionary impoundments, too, may be reasonable—but as we recognized in Fair, and more recently in Taylor, they are vulnerable to constitutional reasonableness challenges because of their potential for misuse as pretext for warrantless investigative searches under the guise of inventory. See Fair, 627 N.E.2d at 435; Taylor, 842 N.E.2d at 331-33.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 5 of 13 Wilford v. State, 50 N.E.3d 371, 374-75 (Ind. 2016).
[7] The Wilford court went on to reiterate that “police may discharge their
caretaking function whenever circumstances compel it, but also that a decision
to impound must be exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal activity.” Id. (citations
and quotation marks omitted). Thus, Fair set forth a strict two-prong standard
for establishing that the decision to impound a person’s vehicle without a
warrant was reasonable:
(1) Consistent with objective standards of sound policing, an officer must believe the vehicle poses a threat of harm to the community or is itself imperiled; and
(2) The officer’s decision to impound adhered to established departmental routine or regulation.
Id. at 326 (citing Fair, 627 N.E.2d at 433).
[8] Here, Officer Majors testified that Gary’s vehicle was illegally parked in a no-
parking zone on a public street in a high crime area and, thus, he believed that
the vehicle both posed a threat to the community and was itself imperiled.
Moreover, Officer Majors stated that his decision to impound Gary’s vehicle
was pursuant to established IMPD routine and regulation. Specifically,
according to IMPD’s departmental policy, general order 7.3, if “[a]ny vehicle
the operator of which is unable to move such vehicle by reason of his
incapacity from injury or arrest,” the vehicle can be considered a public
nuisance and impounded. State’s Ex. 1 (emphasis added). Section 2 of the Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 6 of 13 general order also states that a vehicle may be towed and impounded if
parked in no parking or other special parking restrictions, being operated by
a suspended driver, or owned or operated by a person under custodial arrest
for any charge. Id. The general order further provides that in assessing
whether a particular vehicle constitutes a hazard or is itself in danger, an
officer should consider the degree to which the property upon which the
vehicle is located is under the control of the vehicle owner/operator and the
length of time the officer believes the impounded car would be left
unattended. Id.
[9] Officer Majors testified that, following Gary’s arrest, no one showed up to
claim or remove the illegally parked vehicle from the public street, and that the
only person to arrive was the juvenile’s mother who was not the owner of the
vehicle. Tr. Vol. 2 at 10. Thus, Officer Majors could reasonably infer that
Gary’s vehicle would be left unattended for an extended period. Under the
circumstances presented, Officer Majors’s decision to impound the vehicle was
consistent with objective standards of sound policing and adhered to established
departmental routine or regulation. Accordingly, we conclude that his decision
to impound the vehicle was reasonable.
Section 2 – The inventory search was reasonable. [10] Having determined that Officer Majors’s decision to impound the vehicle was
reasonable, we next address the subsequent inventory search.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 7 of 13 [T]he lawful custody of an impounded vehicle does not of itself dispense with the constitutional requirement of reasonableness in regard to the searches conducted thereafter. Instead, to pass constitutional muster, the search itself must be conducted pursuant to standard police procedures. The rule that standardized criteria or established routine must exist as a precondition to a valid inventory search is designed to ensure that the inventory is not a pretext “for a general rummaging in order to discover incriminating evidence.” In order to perform this function, the procedures must be rationally designed to meet the objectives that justify the search in the first place, and must sufficiently limit the discretion of the officer in the field. Searches in conformity with such regulations are reasonable under the Fourth Amendment. Thus, to defeat a charge of pretext the State must establish the existence of sufficient regulations and that the search at issue was conducted in conformity with them.
Weathers v. State, 61 N.E.3d 279, 286-87 (Ind. Ct. App. 2016) (quoting Fair, 627
N.E.2d at 435) (citations omitted).
[11] To meet its burden, the State must present more than a mere statement from an
officer that the search was performed as a routine inventory. State v. Lucas, 859
N.E.2d 1244, 1250 (Ind. Ct. App. 2007), trans. denied. “The circumstances of
the intrusion must also indicate that the search was carried out under routine
department procedures which are consistent with the protection of officers from
potential danger and false claims of lost or stolen property as well as protection
of those arrested.” Id.
[12] Here, Officer Lowcher testified that she performed an inventory search of
Gary’s vehicle at the scene and that she had been trained according to IMPD’s
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 8 of 13 departmental policy regarding impounding vehicles and that she followed that
policy. IMPD’s general order regarding inventory searches provides that
“whenever an officer takes a vehicle into custody, an inventory search will be
conducted prior to impoundment.” State’s Ex. 1. The vehicle inventory search
“will consist of searching the passenger compartment of the vehicle” and, “if a
key is available, or if unlocked, the glove compartment and trunk will also be
searched.” Id. The general order further states that a “detailed listing” of any
items of significant value will be made and will be listed in the “officer’s
personal notebook, the tow slip, or in an incident report.” Id.
[13] Officer Lowcher stated that she found a handgun in the unlocked center console
of the vehicle, a backpack containing money, and some clothing. A few other
items found in the car belonged to the juvenile and were released to her at the
scene prior to the impoundment. Officer Lowcher admitted that she did not
make a detailed listing of the items found in the vehicle in her personal
notebook, but explained that she thought that such requirement “might be part
of the newer version” of the departmental policy that was not in effect at the
time of the stop. Tr. Vol. 3 at 15. She also stated that she believed that Officer
Majors, who was at the scene but did not actually conduct the search, had at
least listed the handgun and the backpack in an incident report. The record
reveals that the police report prepared by Officer Majors did list the items of
value found in the vehicle that belonged to Gary. Appellant’s App. at 14-15.
[14] Gary complains that Officer Lowcher failed to submit a “proper and complete
inventory sheet of all property” found in the vehicle as required by the
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 9 of 13 established policies. Appellant’s Br. at 7. However, we have held on more than
one occasion that the mere failure to follow established police policy does not
necessarily render the inventory search unreasonable. See Weathers, 61 N.E.3d
at 288; Whitley v. State, 47 N.E.3d 640, 646 (Ind. Ct. App. 2015), trans. denied
(2016). Indeed, even major deviations from established policy do not
automatically require suppression if the inventory search fulfilled its
administrative purposes and there are no other indications of pretext for an
investigative purpose. Sams v. State, 71 N.E.3d 372, 378 (Ind. Ct. App. 2017)
(citing Weathers and Whitley). In such cases, we look to the specific
circumstances presented to determine whether the failure to follow the
established police policy suggested a pretextual search. See, e.g.,Weathers, 61
N.E.3d at 288-89; Whitley, 47 N.E.3d at 646.
[15] For example, in Weathers, after determining that it was necessary to impound
the defendant’s vehicle, the police officer involved asked the defendant whether
there were any drugs or guns in the vehicle. 61 N.E.3d at 283. The defendant
responded that there was a handgun inside the vehicle and told the officer
where it was located. Id. The officer then looked inside the vehicle and
observed the barrel of the handgun located in plain view between the driver’s
seat and the center console just as the defendant had indicated. Id. The officer
proceeded to conduct a warrantless inventory search and found nothing of
value in the vehicle other than the handgun and the vehicle’s registration. Id.
[16] The defendant argued on appeal that the search was unreasonable based upon
the officer’s failure to follow that portion of the departmental policy requiring
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 10 of 13 him to complete a written inventory following his warrantless inventory search
of a vehicle. Id. at 288. Under the facts presented, we disagreed. We noted
that the officer’s failure to complete a written inventory had no bearing on the
fact that the defendant did not contest that the handgun was recovered from the
vehicle and that it was recovered from the exact location where he told the
officer it was located. Id. Thus, we were unable to see how the defendant was
prejudiced by the mere lack of a written inventory. Id. at 289. Moreover, we
were unconvinced that the officer’s failure to complete a written inventory
suggested that his rationale for conducting the warrantless inventory search was
a pretext. Id. Therefore, we determined that the search was reasonable under
the Fourth Amendment. Id.
[17] Similarly, in Whitley, the defendant argued that an inventory search of his truck
was unreasonable under the Fourth Amendment because the officers failed to
complete a written inventory of the items found during the search in their
personal notebooks as was required by department policy. 47 N.E.3d at 646.
We acknowledged that the circumstances of the case presented more than a
minor deviation from the applicable policy, as it was apparent that one of the
officers ceased inventorying the remaining contents of the truck after finding the
contraband. Id. at 648. Nevertheless, because no evidence suggested that the
officer was looking for evidence of a crime when he began searching the truck
at the other officer’s request, and because there was a photographic record
made of the contents found in the truck, we concluded that the officers’ failure
to list all items found in the truck in their personal notebooks as was required by
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 11 of 13 policy, did not, in itself, render the search pretextual. Id. Under the
circumstances, we concluded that the search was reasonable under the Fourth
Amendment. Id.
[18] As in Weathers and Whitley, based on the facts presented, we think the inventory
search of Gary’s vehicle was reasonable. Specifically, we are not convinced
that Officer Lowcher’s failure to record all items found in her personal
notebook prejudiced Gary or suggests that her rationale for completing the
warrantless inventory search was pretextual. Officer Lowcher explained that
she failed to list all items found in her personal notebook because she thought
that she was not required to do so. She further explained that some items that
were found were released to the juvenile at the scene, and that the other items
of value belonging to Gary were properly listed in an incident report prepared
by Officer Majors. Under the circumstances, the inventory search essentially
fulfilled its administrative purpose and there are no other indications of pretext
for an investigative purpose. We conclude that despite Officer Lowcher’s
apparent failure to strictly follow all aspects of the relevant procedure, her
inventory search of the vehicle was reasonable.
[19] In sum, neither the impoundment nor the inventory search of the vehicle was
unreasonable under the Fourth Amendment, and therefore the trial court did
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 12 of 13 not abuse its discretion in admitting the handgun found during the search. 4
Gary’s conviction is affirmed.
[20] Affirmed.
Baker, J., and Barnes, J., concur.
4 We note that much of our caselaw regarding inventory searches somewhat conflates the federal and state constitutional analyses and thus, notwithstanding Gary’s waiver of his state constitutional claim, we conclude that both the impoundment and the inventory search were also reasonable under Article 1, Section 11 of the Indiana Constitution. While Article 1, Section 11 involves independent analysis under the totality of the circumstances, see Wilford, 50 N.E.3d at 378, for the same reasons we outlined above, the impoundment and inventory search were reasonable under those circumstances.
Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017 Page 13 of 13