MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 21 2019, 10:30 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael C. Borschel Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary Tindall, March 21, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1487 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy Barbar, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G02-1708-F5-31427
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 1 of 16 Case Summary
[1] Gary Tindall appeals his conviction for carrying a handgun without a license, a
Level 5 felony. We reverse and remand. 1
Issue
[2] Tindall raises one issue on appeal, which we restate as whether the trial court
abused its discretion by admitting evidence found during a warrantless search of
Tindall’s vehicle.
Facts
[3] On August 24, 2017, at approximately 3:00 a.m., Officer Justin Keehn with the
Indianapolis Metropolitan Police Department was on Massachusetts Avenue,
approaching the 34th Street and Arlington Avenue intersection when he
observed a silver Chevy Tahoe run a red light. Officer Keehn initiated a traffic
stop.
[4] Before exiting his vehicle, Officer Keehn ran the license plate of the vehicle and
determined that the vehicle was registered to Tindall and his mother. Officer
Keehn approached Tindall’s vehicle on the driver’s side. Officer Keehn asked
Tindall for his driver’s license; however, Tindall was only able to produce an
Indiana identification card. Tindall was the sole occupant of the vehicle.
1 Oral argument was held in this matter on February 5, 2019, at Andrean High School in Merrillville. We thank counsel for their presentations and Andrean High School for its hospitality.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 2 of 16 [5] Officer Keehn returned to his patrol car and ran Tindall’s information through
the BMV database; he determined that Tindall’s driving status was suspended.
While Officer Keehn was processing Tindall’s information, he observed Tindall
reach across the car toward the glovebox for approximately thirty seconds to
one minute. 2 Officer Keehn had not yet asked Tindall for his registration or
insurance information. After observing Tindall’s movements toward the
glovebox, Officer Keehn called for backup, and additional officers arrived
shortly thereafter. Officer Keehn then asked Tindall to step out of his vehicle.
[6] After Tindall exited his vehicle, Officer Keehn completed a pat down of
Tindall. Officer Keehn then instructed Tindall to stand at the rear of Tindall’s
vehicle, in front of Officer Keehn’s vehicle, with the other officers. Officer
Keehn conducted a protective sweep of the inside front of Tindall’s vehicle.
Because the glovebox was locked, Officer Keehn took the keys out of the
ignition and unlocked the glovebox. 3 There, Officer Keehn located a nine
millimeter handgun with an extended magazine. Tindall did not have a license
for the firearm. After finding the firearm in the glovebox, Officer Keehn
noticed a holster on the front passenger seat.
2 There is some discrepancy in the record, however, as Officer Keehn’s probable cause affidavit states that he saw Tindall reach towards the glovebox area when he first approached the vehicle. 3 Notably, Officer Keehn turned off the vehicle in order to access the glovebox; however, Officer Keehn could not recall whether Tindall turned off the vehicle while leaning over toward the glovebox.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 3 of 16 [7] Tindall was charged with Count I, carrying a handgun without a license, a
Level 5 felony 4, and Count II, driving while suspended, a Class A
misdemeanor.
[8] Prior to trial, Tindall moved to suppress evidence of the handgun found in his
vehicle, citing violations of the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution. At the
motion to suppress hearing, Officer Keehn provided additional information
regarding the traffic stop. 5 Specifically, Officer Keehn stated he asked Tindall if
there were any weapons inside the vehicle, which is a routine question for
traffic stops. Tindall responded, “not. . . that [I know] of.” Motion to Suppress
Tr. Vol. II p. 11. Officer Keehn testified he called for backup due to Tindall’s
statement regarding the gun, and additional reasons including “the time of
night, the area, [and Tindall’s license] being suspended.” Id. at 13.
Furthermore, Officer Keehn stated: “I did look up a brief criminal history.
Those all factored into me asking for a backup to get him out of the vehicle.”
Id. Once Tindall was out of the vehicle, officers advised Tindall he was
4 Tindall was initially charged with carrying a handgun without a license as a Class A misdemeanor; however, because Tindall had been convicted of felony possession of cocaine in the preceding fifteen years, Tindall’s charge was increased to a Level 5 felony pursuant to Indiana Code Section 35-47-2-1(e)(2)(B). Tindall and the sentencing order both state the conviction is “felon carrying a handgun”; however, we will continue to refer to Tindall’s conviction as “carrying a handgun without [a] license,” as the statute does. See Appellant’s Br. p. 5; see also Appellant’s App. Vol. II p. 11. Tindall was not convicted under “unlawful possession of firearm by serious violent felon” pursuant to Indiana Code Section 35-47-4-5. 5 This additional evidence was not presented to the jury.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 4 of 16 detained before beginning the pat down of Tindall and the protective sweep of
the vehicle.
[9] Following the motion to suppress hearing, the trial court denied the motion and
stated:
The officers testified that [Tindall] made a furtive motion. It was three o’clock in the morning. [Officer Keehn] may have allowed [Tindall] to get back in the car just if – if it was just a suspension. And [Officer Keehn] did notice the – he said that he indicated the brief criminal history of [Tindall], although he didn’t tell me what that was, and so I really – I’m not considering that.
Id. at 32.
[10] At the jury trial, Tindall’s counsel renewed his objection regarding the officer’s
discovery of the firearm on the same basis as the motion to suppress. Officer
Keehn testified at the jury trial that, had he not found the firearm, he likely
would have instructed Tindall not to operate the vehicle, but would have
returned the vehicle to Tindall, and allowed him to leave with only a warning.
[11] The jury found Tindall guilty of both Count I and Count II. 6 Tindall now
appeals.
6 The jury only considered Count I as a Class A misdemeanor. Tindall admitted that he was convicted of possession of cocaine in 2015, and accordingly, Count I was enhanced to a Level 5 felony.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 5 of 16 Analysis
[12] Tindall argues that the officer’s warrantless search of the vehicle and,
specifically, the locked glovebox violated his rights under the Fourth
Amendment to the United States Constitution and Article 1, Section 11 of the
Indiana Constitution. Because Tindall appeals from a completed jury trial, the
issue is more appropriately framed as whether the trial court properly admitted
the evidence at trial. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). “The
general admission of evidence at trial is a matter we leave to the discretion of
the trial court.” Id. at 259-60. “We review these determinations for 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. at 260. “‘When an appellant’s challenge to such a ruling is
predicated on an argument that impugns the constitutionality of the search or
seizure of evidence, it raises a question of law, and we consider that question de
novo.’” Negash v. State, 113 N.E.3d 1281, 1288 (Ind. Ct. App. 2018) (quoting
Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014)).
A. Fourth Amendment
[13] Tindall first argues that the officer’s warrantless search of the locked glovebox
violated his rights under the Fourth Amendment to the United States
Constitution. The Fourth Amendment to the United States Constitution
protects citizens against unreasonable searches and seizures by prohibiting them
without a warrant supported by probable cause. U.S. Const. amend. IV. “The
fundamental purpose of the Fourth Amendment to the United States
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 6 of 16 Constitution is to protect the legitimate expectations of privacy that citizens
possess in their persons, their homes, and their belongings.” Taylor v. State, 842
N.E.2d 327, 330 (Ind. 2006).
[14] This protection has been “extended to the states through the Fourteenth
Amendment.” Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). “As a deterrent
mechanism, evidence obtained in violation of this rule is generally not
admissible in a prosecution against the victim of the unlawful search or seizure
absent evidence of a recognized exception.” Clark, 994 N.E.2d at 260. “When
a search is conducted without a warrant, the State has the burden of proving
that an exception to the warrant requirement existed at the time of the search.”
Bradley, 54 N.E.3d at 999. “The ‘touchstone of the Fourth Amendment is
reasonableness,’ and reasonableness is measured in objective terms by
examining the totality of the circumstances.” Rush v. State, 881 N.E.2d 46, 50
(Ind. Ct. App. 2008) (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417
(1996)).
[15] Officer Keehn stated he discovered the firearm while conducting a “protective
sweep.” Tr. Vol. II p. 14. The protective sweep exception to the warrant
requirement “applies in circumstances that ‘include risk of bodily harm or
death, aiding a person in need of assistance, protecting private property, or
actual or imminent destruction or removal of evidence before a search warrant
may be obtained.’” Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008)
(quoting Harless v. State, 577 N.E.2d 245, 248 (Ind. Ct. App. 1991)). More
specifically, “an officer with a reasonable suspicion that a motorist is dangerous
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 7 of 16 and may be able to gain immediate control of weapons may conduct a
protective search of the passenger compartment of the vehicle without a
warrant.” Parish v. State, 936 N.E.2d 346, 349 (Ind. Ct. App. 2010) (citing
Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S. Ct. 3469 (1983)).
[16] Tindall argues that the protective sweep was improper under the Fourth
Amendment because officers had already detained Tindall, which “alleviat[ed]
any Officer Safety concerns supporting the decision to search the vehicle[.]”
Appellant’s Br. p. 13. Tindall also argues that it was reasonable to believe that
Tindall was extracting his registration and other paperwork from the glovebox
when Officer Keehn observed this furtive movement, citing Anderson v. State, 64
N.E.3d 903 (Ind. Ct. App. 2016). In Anderson, Anderson was pulled over by an
officer after the officer ran Anderson’s license plate and discovered that
Anderson’s driving privileges were suspended and that Anderson had an
outstanding warrant for strangulation. Anderson, 64 N.E.3d at 904. Once the
officer determined Anderson was indeed the driver, the officer instructed
Anderson to step out of the vehicle. Id. Anderson did so after removing his
jacket, which seemed unusual to the officer. Id. The officer handcuffed
Anderson, then returned to Anderson’s car and searched it before it was towed.
Id. When the officer picked up Anderson’s jacket, he noticed it was heavy and
found a loaded handgun in the pocket. Id. Anderson did not have a license to
carry the handgun. Id.
[17] A panel of our court concluded that the search was unlawful under the Fourth
Amendment. The Anderson court concluded that “the search of a passenger
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 8 of 16 compartment of a car, incident to the arrest of the car’s driver and sole
occupant, was not justified when the driver ‘could not have accessed his car to
retrieve weapons or evidence at the time of the search.’” Id. at 906 (citing
Arizona v. Gant, 556 U.S. 332, 335, 129 S. Ct. 1710 (2009)).
[18] The State argues here that Officer Keehn articulated many reasons for the
protective sweep, including: (1) the late hour; (2) the location; (3) Tindall’s
“suspicious response” to the inquiry about whether weapons were in the
vehicle; (4) Tindall’s suspended driving status; and (5) Tindall’s movements
toward the glovebox. Appellee’s Br. p. 12. The State argues the protective
sweep was necessary because Officer Keehn wanted to “look[] for weapons that
could harm [him] if [he] put [Tindall] back in the vehicle.” Id.
[19] Based on the facts of this case, we agree with Tindall that the warrantless search
of the glovebox was not justified. Tindall was out of the vehicle and standing
with the other officers who had arrived on the scene when Officer Keehn
searched Tindall’s vehicle. Officer Keehn had already conducted a pat down of
Tindall and determined that Tindall did not have any weapons on his person.
While the State contends that Officer Keehn needed to conduct a protective
sweep because he planned to return the vehicle to Tindall, under this factual
scenario, a protective sweep was not lawful. Officer Keehn testified that he was
not going to allow Tindall to drive the vehicle due to Tindall’s suspended
driver’s license. Based on these facts, a protective sweep of the locked glovebox
was not permissible because the locked glovebox was not easily accessible, and
Tindall could not have gained immediate control of the weapon.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 9 of 16 [20] The State relies on Parish v. State, 936 N.E.2d 346 (Ind. Ct. App. 2010). In
Parish, Parish, who was believed to be involved in a recent shooting, failed to
use his turn signal while turning his car. Parish, 936 N.E.2d at 347-48. After
recognizing Parish, the officer who initiated the traffic stop called for backup,
approached the vehicle, and instructed Parish to step out of the vehicle. Id. at
348. Parish, whom officers believed to be armed, did not initially comply, but
he eventually exited the vehicle. Id. Officers then handcuffed Parish and patted
him down. Id. Simultaneously, another officer searched “wherever [she] could
reach” in Parish’s vehicle. Id. Officers tried to open the glovebox, which was
locked. Id. “Immediately” and “without even thinking,” the officer pulled the
key from the ignition and unlocked the glovebox. Id. There, officers found a
firearm. Id. Subsequently, for some unknown reason, officers only confiscated
the firearm, wrote Parish a citation for the traffic violation, and allowed Parish
to drive away. Id.
[21] A panel of our court concluded that the search of the glovebox did not violate
the Fourth Amendment, because:
At the time of the traffic stop, Parish was a suspect in several shootings, including a homicide, and the police were on high alert that Parish was armed. Indeed, a “gang unit” officer had warned other officers that Parish had threatened to kill the next police officer he encountered and was even taking drugs in preparation for a shootout with the police. In addition, when Officer Foster first approached Parish’s car and told him to step out of the vehicle, Parish did not immediately comply. He instead asked Officer Foster why she did not want to see his driver’s license and registration. Only when Officer Foster
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 10 of 16 explained to Parish that she knew who he was and again told him to step out of the car did he slowly take off his seat belt and exit the car.
Id. at 350. The panel found that a reasonably prudent person in the officer’s
position would believe her safety was in danger, and the officer was “therefore
justified in searching the passenger compartment of Parish’s car, limited to
those areas in which a weapon might be placed or hidden.” Id.
[22] The circumstances of this case are starkly different to the facts in Parish. Unlike
Parish, Tindall was not a person officers knew to be armed and dangerous.
Further, Parish did not want to comply with the officers’ instructions, whereas
here, there is no evidence that Tindall did not comply with the officers’
instructions. Moreover, Officer Keehn had an independent basis to arrest
Tindall because Tindall was driving without a license.
[23] As the State articulated at the oral argument, the protective sweep led to the
arrest as the outcome of the traffic stop. After identifying the events that Officer
Keehn articulated as constituting reasonable suspicion, Officer Keehn could
have arrested Tindall for his driving without a license violation, impounded the
vehicle, and performed an inventory search. Instead, Officer Keehn appeared
to simply conduct a search under the purview of a protective sweep in order to
discover evidence of criminal activity. The State may not now justify the
warrantless search based on the alleged need for a protective sweep. See State v.
Estep, 753 N.E.2d 22, 28 (Ind. Ct. App. 2001) (affirming the trial court’s finding
that the protective sweep “exceeded the spirit of the limited grant to search”).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 11 of 16 [24] The facts of this case are also starkly different from other opinions of this court,
or our Supreme Court, where a protective sweep was found to be reasonable.
See Taylor v. State, 929 N.E.2d 912, 920 (Ind. Ct. App. 2010) (finding a
protective sweep of a home valid when officers responded to a call that three
juveniles had fired a shot and one of the boys exclaimed, “it wasn’t us with the
gun,” indicating another person may be inside the home), trans. denied; see also
Weddle v. State, 989 N.E.2d 371, 377 (Ind. Ct. App. 2013) (finding the protective
sweep of the home permissible when officers believed more than one person
was hiding in the back of the home, concluding that “police officers may search
rooms that are not immediately adjacent to the area of arrest when there is
reasonable suspicion that the rooms might contain a person who is hiding and
may jeopardize officer safety”), trans. denied.
[25] The contents of the locked glovebox were not immediately accessible to Tindall
and, therefore, not within the bounds of a protective sweep. See Merchant v.
State, 926 N.E.2d 1058, 1065 (Ind. Ct. App. 2010) (finding that, in a protective
sweep as part of a search incident to arrest, the officers’ protective sweep of the
passenger compartment was within the bounds of the Fourth Amendment
because “Merchant was within reaching distance of the passenger compartment
of the vehicle”), trans. denied. Accordingly, we find that the search was
impermissible under the Fourth Amendment, and thus, the trial court abused its
discretion in admitting the evidence found during the illegal search.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 12 of 16 B. Indiana Constitution
[26] Tindall also challenges the search as improper under Article 1, Section 11 of the
Indiana Constitution. The language of Article 1, Section 11 tracks the Fourth
Amendment; however, “Indiana has explicitly rejected the expectation of
privacy as a test of the reasonableness of a search or seizure.” Litchfield v. State,
824 N.E.2d 356, 359 (Ind. 2005). Instead, the legality of a search “turns on an
evaluation of the reasonableness of the police conduct under the totality of the
circumstances.” Id. Reasonableness is determined by balancing: (1) the degree
of concern, suspicion, or knowledge that a violation has occurred; (2) the degree
of intrusion imposed by the search; and (3) the extent of law enforcement
needs. Id. at 361. In other words, “[a]lthough its text mirrors the federal
Fourth Amendment, we interpret Article 1, Section 11 of our Indiana
Constitution separately and independently.” State v. Crager, 113 N.E.3d 657,
663 (Ind. Ct. App. 2018), trans. denied.
[27] Tindall argues that, applying the Litchfield factors, the warrantless search was
improper; we agree. First, the degree of concern, suspicion, or knowledge that
a violation had occurred was low. It is reasonable to believe that Tindall was
reaching for his registration information, even if Officer Keehn had not yet
asked for this information. Further, Tindall’s response regarding whether
weapons were in the vehicle was not necessarily objectively suspicious,
considering that Tindall was not the sole owner of the vehicle. Officer Keehn
testified that he was aware that Tindall was not the sole owner of the vehicle,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 13 of 16 and that Tindall’s mother was also listed on the vehicle’s registration
information. This first factor weighs against the legality of the search.
[28] The degree of intrusion was high. The glovebox was locked, and the keys were
in the ignition. Officer Keehn had to turn off the vehicle in order to access the
key to the glovebox and then unlock the glovebox before searching it. See Conn
v. State, 89 N.E.3d 1093, 1098 (Ind. Ct. App. 2017) (“Our courts have
consistently held that when Indiana citizens put mechanisms in place to keep
others out, ignoring these obstructions constitutes highly intrusive conduct by
law enforcement.”) (citing Carpenter v. State, 18 N.E.3d 998, 1002 (Ind. 2014)),
trans. denied. Officer Keehn also turned off Tindall’s vehicle in order to access
the keys to open the locked glovebox. Accordingly, the degree of intrusion was
high, and this factor weighs against the legality of the search.
[29] Finally, with regard to law enforcement needs, we believe the need at the time
of the protective sweep was minimal. Tindall was outside the vehicle, had been
patted down, and was standing with other officers at the time of the protective
sweep. Tindall was not near the locked glovebox; nor did Tindall have any
access to the locked glovebox at that time. Tindall would not have been able to
quickly access the locked glovebox under these circumstances, and no longer
posed any potential threat to officer safety. As noted above, if officers believed
Tindall to still be a threat based on the contents of the vehicle, officers could
have arrested Tindall prior to the search for driving without a license. Officers’
failure to do so points to the conclusion that law enforcement’s need to search
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 14 of 16 the locked glovebox was minimal, and this factor weighs against the legality of
the search.
[30] We understand that Officer Keehn had several factors to consider when he
pulled Tindall over at 3:00 a.m. in a high crime area. We also understand
Officer Keehn’s hesitation with regard to Tindall reaching towards the glovebox
without being asked for his registration information. Still, on balance, the
Litchfield factors weigh in favor of finding that the warrantless search was not
justified. The record shows that, of the specific facts Officer Keehn pointed to
in support of his decision to conduct a protective sweep, Officer Keehn was
aware of at least three of the factors before returning to his patrol car. Officer
Keehn also left Tindall in the car for the “[m]aybe three minutes” it took other
officers to arrive, even after Officer Keehn had observed Tindall reaching
towards the glovebox. Tr. Vol. III p. 60.
[31] In other words, Officer Keehn decided to leave Tindall in his vehicle despite the
factors Officer Keehn later used to justify the warrantless search of Tindall’s
vehicle. Moreover, Tindall was the sole occupant of the vehicle and was not
near the locked glovebox at the time of the search. Accordingly, the totality of
the circumstances demonstrate that the search was impermissible under Article
1, Section 11 of the Indiana Constitution, and thus, the trial court abused its
discretion in admitting the evidence found during the illegal search.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 15 of 16 Conclusion
[32] The warrantless search of Tindall’s locked glovebox was impermissible under
the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.
The trial court, therefore, abused its discretion in admitting evidence found
during the impermissible search. Accordingly, we reverse and remand.
[33] Reversed and remanded.
Vaidik, C.J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019 Page 16 of 16