MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 30 2017, 5:33 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 Suzy St. John Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Heather Ryon, August 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1609-CR-2079 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Allan Reid, Appellee-Plaintiff. Commissioner Trial Court Cause No. 49G10-1603-CM-10220
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 1 of 17 [1] Heather Ryon appeals her conviction for possession of paraphernalia as a class
C misdemeanor. She raises one issue which we revise and restate as whether
the court abused its discretion in admitting evidence of a search. We affirm.
Facts and Procedural History
[2] At 8:30 p.m. on March 15, 2016, Beech Grove Police Officer David Parker was
conducting a routine patrol in his fully marked police car and full uniform when
he conducted a traffic stop on a vehicle for no rear taillights. Officer Parker
observed Ryon sitting in the rear passenger’s seat and asked her if she would be
willing to identify herself, and she did. Officer Parker performed a check, found
that Ryon had an active warrant, and decided to take her into custody. A
backup officer arrived at the scene, and Ryon and the driver exited the vehicle,
leaving an elderly female in the front passenger seat who, based upon Officer
Parker’s observation “seemed like she would be fine just to stay in the vehicle.”
Transcript at 8. Officer Parker placed Ryon and the driver in handcuffs.
[3] Officer Parker approached the front passenger who claimed to be the owner of
the vehicle and asked her if she cared if he briefly checked the vehicle for any
contraband or weapons, and she said it was fine. Officer Parker saw the purse
that had been on Ryon’s lap sitting on the rear seat, took the purse, brought it
back to Ryon, and asked, “this is yours correct?” Id. Ryon answered
affirmatively. Officer Parker asked Ryon, “would you like this to go to jail with
you,” and Ryon said, “yes.” Id. at 49. Officer Parker searched the purse and
found a black small “velvet-like cinch bag” which contained a glass pipe Officer
Parker believed to be used to smoke narcotics. When Ryon saw the pipe, she Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 2 of 17 “in kind of a startled or uh-oh type of look said, ‘oh, I didn’t even know that
was in there, uh, that is just mine from some time ago. I don’t even use
anymore.’” Id. at 50. Later testing indicated methamphetamine residue in the
pipe.
[4] On March 16, 2016, the State charged Ryon with possession of paraphernalia
as a class C misdemeanor. On April 11, 2016, Ryon filed a motion to suppress
her statements and any items discovered during the search. On June 13, 2016,
the court held a hearing on the motion and the parties and the court questioned
Officer Parker. Ryon’s counsel argued that the evidence should be suppressed
under the Fourth Amendment of the United States Constitution and Article 1,
Section 11 of the Indiana Constitution. The court took the matter under
advisement.
[5] On July 11, 2016, the court entered an order denying Ryon’s motion to
suppress, and on August 15, 2016, a bench trial was held. During cross
examination of Officer Parker, Ryon’s counsel asked him if Ryon told him that
she wanted to take the purse with her to booking, to which he responded that
Ryon did not explicitly state she wanted to take the purse and that “[a]t that
time that I cuffed her she did not say ‘Officer, please get my purse.’” Id. at 27.
After the State rested, Ryon testified that her boyfriend was driving his
grandmother, that they retrieved quite a few items from storage, that a purse
was on top of a “bunch of coats and stuff that was sitting beside” her, and that
the purse Officer Parker retrieved was not her purse and came from storage. Id.
at 44. She also testified that Officer Parker retrieved the purse after she was
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 3 of 17 handcuffed and took it back to his car and that she did not tell him that it was
her purse. On cross-examination, she testified that she did not give Officer
Parker an identification card, she just verbally gave him her information, that
she never claimed anything inside of the purse belonged to her, that she never
wanted the purse to come with her to the jail, and that Officer Parker did not
ask if she wanted the purse to go to the jail with her.
[6] On rebuttal, the prosecutor asked Officer Parker what Ryon said about the
items inside of the purse, and defense counsel objected and argued that it was
redundant and that Officer Parker already testified to this. The court overruled
the objection, and Officer Parker answered: “Well, I had reached into the car
and grabbed the purse out then I asked Ms. Ryon, ‘is this your purse; would
you like it to go to the jail with you’ as courtesy more than anything because
that is common for a female arrestee to want her purse to go with her.” Id. at
49. Officer Parker also testified that he showed the purse to Ryon and that “I
said, ‘is this yours’, she said ‘yes’, then I said, ‘would you like this to go to jail
with you’ and she said, ‘yes’.” Id. He also stated that he placed the purse on
the hood of his car where it was in bright light, searched it, and located the
cinch bag.
[7] The court found Ryon guilty and sentenced her to sixty days with fifty-six days
suspended and 365 days probation.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 4 of 17 Discussion
[8] The issue is whether the trial court abused its discretion in admitting evidence
of the search. The admission and exclusion of evidence falls within the sound
discretion of the trial court, and we review the admission of evidence only for
an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An
abuse of discretion occurs “where the decision is clearly against the logic and
effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.
2001). Even if the trial court’s decision was an abuse of discretion, we will not
reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d
957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied. “[T]he ultimate
determination of the constitutionality of a search or seizure is a question of law
that we consider de novo.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
[9] In ruling on admissibility following the denial of a motion to suppress, the trial
court considers the foundational evidence presented at trial. Id. If the
foundational evidence at trial is not the same as that presented at the
suppression hearing, the trial court must make its decision based upon trial
evidence and may consider hearing evidence only if it does not conflict with
trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).
[10] Ryon raises arguments under: (A) the Fourth Amendment of the United States
Constitution; and (B) Article 1, Section 11 of the Indiana Constitution.
A. Fourth Amendment
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 5 of 17 [11] Ryon argues that the search of her purse was unreasonable under the Fourth
Amendment because it did not fall within one of the exceptions to the warrant
requirement, and that the search was not consensual because the grandmother’s
consent to a search of her car did not authorize Officer Parker to search Ryon’s
purse on the backseat. She asserts that her agreement that her purse be
transported to jail was not knowing and voluntary consent to Officer Parker’s
rummaging through it at the scene and that her authorization limited Officer
Parker to being a courier for her purse. She also argues that the search was not
reasonable as a search incident to arrest because she was away from the vehicle
and secured in handcuffs, they were not in a high crime area, no one behaved
suspiciously, and the purse presented no concerns for safety. She contends that
there is no evidence the search was performed according to established
departmental inventory procedures, and that applying the inevitable discovery
exception would swallow the rule that inventory searches must be done
according to established departmental policy and procedures.
[12] The State asserts that Ryon lacks standing to litigate a challenge to a search of
the purse because she testified to facts disavowing any expectation of privacy in
the purse. It contends that it did not waive this argument because it never had
an opportunity to raise this argument in the trial court because Ryon had not
disavowed her ownership of the purse at the time of the suppression hearing or
when she renewed her suppression objection at trial. Its positon is that Officer
Parker lawfully searched Ryon’s purse incident to her arrest, and that if a
person is in actual possession of an item such as a purse at or immediately
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 6 of 17 preceding the time of her arrest, this container is part of her person for purposes
of the search, just as her outer clothing is, and it therefore falls under United
States v. Robinson, 414 U.S. 218 (1973), and may be searched based solely on the
fact of the arrest, without needing any particularized concern for officer safety
or evidence preservation. The State further asserts that the search would still be
valid even if it was governed by Arizona v. Gant, 556 U.S. 332 (2009), because
Gant’s officer-safety justification requiring the container in the vehicle to be
within reach and accessible is still satisfied when there are other unsecured
persons remaining in the vehicle who could reach the container and pose a
threat to the officer. Finally, the State argues that the pipe in Ryon’s purse
inevitably would have been discovered when she was processed at the jail.
[13] To the extent the State asserts that Ryon does not have standing to challenge
the search, we note that while Ryon did not testify that the purse did not belong
to her until after the State had rested, the State set forth rebuttal testimony from
Officer Parker, and the prosecutor made arguments, but never asserted that
Ryon lacked standing to contest the search. Accordingly, we will examine the
propriety of Officer Parker’s search of the purse. See Tumblin v. State, 736
N.E.2d 317, 320-321 (Ind. Ct. App. 2000) (holding that the State did not
challenge the defendant’s standing at the suppression hearing and trial and had
waived the argument and noting that where the prosecution has failed to make
any trial court challenge to standing, the government may not raise the issue for
the first time on appeal and that, in resolving a claim of unlawful search and
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 7 of 17 seizure, an appellate court should not invoke a lack of standing sua sponte)
(citing Everroad v. State, 590 N.E.2d 567, 569 (Ind. 1992)), trans. denied.
[14] The Fourth Amendment to the United States Constitution provides, in
pertinent part: “[t]he right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated . . . .” U.S. CONST. amend. IV. If the search is conducted without a
warrant, the State bears the burden to show that one of the well-delineated
exceptions to the warrant requirement applies. M.O. v. State, 63 N.E.3d 329,
331 (Ind. 2016).
[15] We begin with a review of cases from the United States Supreme Court. In
Riley v. California, 134 S. Ct. 2473, 2482, (2014), the Court stated that “[a]s the
text makes clear, ‘the ultimate touchstone of the Fourth Amendment is
“reasonableness.”’” (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.
Ct. 1943 (2006)). The Court addressed whether the police may, without a
warrant, search digital information on a cell phone seized from an individual
who had been arrested, and reviewed three related precedents that set forth the
rules governing searches incident to arrest. 134 S. Ct. at 2483-2484.
Specifically, the Court stated:
The first, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), laid the groundwork for most of the existing search incident to arrest doctrine. Police officers in that case arrested Chimel inside his home and proceeded to search his entire three-bedroom house, including the attic and garage. In
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 8 of 17 particular rooms, they also looked through the contents of drawers. Id., at 753-754, 89 S. Ct. 2034.
The Court crafted the following rule for assessing the reasonableness of a search incident to arrest:
“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id., at 762-763, 89 S. Ct. 2034.
The extensive warrantless search of Chimel’s home did not fit within this exception, because it was not needed to protect officer safety or to preserve evidence. Id., at 763, 768, 89 S. Ct. 2034.
Four years later, in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L.Ed.2d 427 (1973), the Court applied the Chimel analysis in the context of a search of the arrestee’s person. A police officer had arrested Robinson for driving with a revoked license. The officer conducted a patdown search and felt an object that he could not identify in Robinson’s coat pocket. He removed the object, which turned out to be a crumpled cigarette package, and opened it. Inside were 14 capsules of heroin. Id., at 220, 223, 89 S. Ct. 2034.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 9 of 17 The Court of Appeals concluded that the search was unreasonable because Robinson was unlikely to have evidence of the crime of arrest on his person, and because it believed that extracting the cigarette package and opening it could not be justified as part of a protective search for weapons. This Court reversed, rejecting the notion that “case-by-case adjudication” was required to determine “whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.” Id., at 235, 89 S. Ct. 2034. As the Court explained, “[t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Ibid. Instead, a “custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Ibid.
The Court thus concluded that the search of Robinson was reasonable even though there was no concern about the loss of evidence, and the arresting officer had no specific concern that Robinson might be armed. Id., at 236, 89 S. Ct. 2034. In doing so, the Court did not draw a line between a search of Robinson’s person and a further examination of the cigarette pack found during that search. It merely noted that, “[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it.” Ibid. A few years later, the Court clarified that this exception was limited to “personal property . . . immediately associated with the person of the arrestee.” United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 53 L.Ed.2d 538 (1977) (200-pound, locked footlocker could not be searched incident to arrest), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L.Ed.2d 619 (1991).
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 10 of 17 The search incident to arrest trilogy concludes with [Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009)], which analyzed searches of an arrestee’s vehicle. Gant, like Robinson, recognized that the Chimel concerns for officer safety and evidence preservation underlie the search incident to arrest exception. See 556 U.S., at 338, 129 S.Ct. 1710. As a result, the Court concluded that Chimel could authorize police to search a vehicle “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U.S., at 343, 129 S. Ct. 1710. Gant added, however, an independent exception for a warrantless search of a vehicle’s passenger compartment “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’” Ibid. (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 158 L.Ed.2d 905 (2004) (Scalia, J., concurring in judgment)). That exception stems not from Chimel, the Court explained, but from “circumstances unique to the vehicle context.” 556 U.S., at 343, 129 S. Ct. 1710.
Riley, 134 S. Ct. at 2483-2484. The Court held that “[m]odern cell phones, as a
category, implicate privacy concerns far beyond those implicated by the search
of a cigarette pack, a wallet, or a purse.” Id. at 2488-2489.
[16] We next review Garcia v. State, 47 N.E.3d 1196 (Ind. 2016), a recent decision in
which the Indiana Supreme Court discussed the search incident to arrest
exception. The Court held that the opening of a pill container during the course
of a pat-down search incident to arrest constituted a reasonable search. Garcia,
47 N.E.3d at 1197. The Indiana Supreme Court stated:
We continue to be persuaded by Robinson regarding the degree of suspicion necessary to conduct a search incident to arrest. The United States Supreme Court set out a clear standard in Robinson.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 11 of 17 “A custodial arrest of a suspect based on probable cause is a reasonable intrusion . . . that intrusion being lawful, a search incident to the arrest requires no additional justification.” 414 U.S. at 235, 94 S. Ct. 467. We similarly conclude that it is “the lawful arrest which establishes the authority to search.” Id.
Id. at 1200.
[17] The record reveals that Officer Parker obtained permission to search the interior
of the vehicle by the owner, and Ryon made movements related to the purse
prior to exiting the vehicle. Officer Parker testified that Ryon’s movements
“she made are like touching the purse or, just like my wife, her purse will be
beside her and she will often pat it just to kind confirm that it is there or as you
rest your hands its touching it. So, the movements that touched it.” Transcript
at 39. He also testified that the purse had been seated “just about her lap or
touching her leg that she’d been getting into and fumbling when I was talking
with her.” Id. at 24. Ryon admitted the purse belonged to her and requested
that it be transported to the jail with her. Under these circumstances, we
conclude that the purse was immediately associated with Ryon, and the search
was reasonable under the circumstances and did not violate Ryon’s rights under
the Fourth Amendment.1
1 Ryon cites Anderson v. State, 64 N.E.3d 903 (Ind. Ct. App. 2016). In that case, we held that the search of the defendant’s jacket which was left in a car by the defendant and sole occupant of the car was unconstitutional because the police unlawfully entered the passenger compartment of the defendant’s car to access the jacket. 64 N.E.3d at 906. Unlike Anderson, the owner of the vehicle consented to a search of the vehicle, Ryon indicated that the purse belonged to her, and she requested that the purse be transported to jail with her. Thus, we find Anderson distinguishable.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 12 of 17 [18] Further, under the Fourth Amendment, “the inevitable discovery exception to
the exclusionary rule permits the introduction of evidence that eventually
would have been located had there been no error.” Shultz v. State, 742 N.E.2d
961, 965 (Ind. Ct. App. 2001) (quotations and citations omitted), reh’g denied,
trans. denied. Given Ryon’s request for Officer Parker to transport her purse to
the jail with her, we conclude that the officer inevitably would have discovered
the glass pipe. Thus, under the Fourth Amendment, the pipe would have been
admissible because it eventually would have been located even assuming that
Officer Parker’s search of the purse at the scene was improper. See Nix v.
Williams, 467 U.S. 431, 444 (1984).
B. Indiana Constitution
[19] Ryon argues that the search of the purse was unreasonable under Article 1,
Section 11 of the Indiana Constitution. She contends that, even assuming her
The State notes that it found two Indiana cases in which searches of purses were found improper and cites Bradford v. State, 401 N.E.2d 77 (Ind. Ct. App. 1980), and Johnson v. State, 413 N.E.2d 335 (Ind. Ct. App. 1980), but argues that those cases are not instructive. In Bradford, the trooper that ultimately searched a purse arrived ten or fifteen minutes after Bradford left the vehicle to stand in front of it and there was no indication that the purse belonged to Bradford other than the fact the purse was removed from the automobile in which Bradford had been sitting. See Bradford, 401 N.E.2d at 78. Similarly, in Johnson, some ten or fifteen minutes after Johnson was placed under arrest, handcuffed, and placed in the police car, police searched a purse and discovered the handgun. See Johnson, 413 N.E.2d at 336. We also observe that both Bradford and Johnson relied upon Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586 (1979). See Bradford, 401 N.E.2d at 79; Johnson, 413 N.E.2d at 336. The Court in Sanders noted that it was not considering the constitutionality of searches of the luggage at issue incident to the arrest of its possessor. Sanders, 442 U.S. at 763 n.11, 99 S. Ct. at 2593 n.11, abrogated by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982 (1991). Further, those cases did not involve an owner of the vehicle consenting to a search of the vehicle, the defendant indicating that the purse belonged to her, or the defendant’s request that the purse be transported to jail with her. Thus, we find those cases distinguishable. See Chambers v. State, 422 N.E.2d 1198 (Ind. 1981) (distinguishing Bradford and Johnson and observing that those cases more nearly paralleled the case of United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476 (1977), in which a footlocker was seized when the defendant was arrested and one and one-half hours after the arrest the police opened the footlocker without either a warrant or the permission of the defendant).
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 13 of 17 statement could be viewed as an intelligent relinquishment of her right to keep
its contents private, the consent would still be invalid under Pirtle v. State, 263
Ind. 16, 323 N.E.2d 634 (1975), because Article 1, Section 11 of the Indiana
Constitution requires a person in custody to explicitly waive the right to consult
with counsel before giving a valid consent to a search. The State asserts that the
search did not violate Article 1, Section 11 of the Indiana Constitution and
points to Garcia v. State, 47 N.E.3d 1196 (Ind. 2016).
[20] Article 1, Section 11 of the Indiana Constitution provides:
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.
[21] Although its text mirrors the federal Fourth Amendment, we interpret Article 1,
Section 11 of our Indiana Constitution separately and independently. Robinson
v. State, 5 N.E.3d 362, 368 (Ind. 2014). “When a defendant raises a Section 11
claim, the State must show the police conduct ‘was reasonable under the
totality of the circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d
1200, 1205-1206 (Ind. 2008), reh’g denied). Generally, “[w]e consider three
factors when evaluating reasonableness: ‘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
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 14 of 17 extent of law enforcement needs.’” Id. (quoting Litchfield v. State, 824 N.E.2d
356, 361 (Ind. 2005)).2
[22] Applying the factors articulated in Litchfield, we first consider “the degree of
concern, suspicion, or knowledge that a violation has occurred.” Litchfield, 824
N.E.2d at 361. In analyzing this factor, the Indiana Supreme Court has
recently held that it had “previously recognized that ‘once a lawful arrest has
been made, authorities may conduct a “full search” of the arrestee for weapons
or concealed evidence. No additional probable cause for the search is required,
and the search incident to arrest may “involve a relatively extensive exploration
of the person.”’” Garcia, 47 N.E.3d at 1200 (quoting Edwards v. State, 759
N.E.2d 626, 629 (Ind. 2001) (citing Robinson, 414 U.S. at 227, 235, 94 S. Ct.
467) (internal quotation and citation omitted)). The record reveals and Ryon
does not dispute that she had an arrest warrant.
[23] Regarding the degree of intrusion, we note that the elderly woman consented to
a search of the vehicle. With respect to the purse, we note that the Indiana
Supreme Court has stated that “society accepts as objectively reasonable that
persons have a legitimate expectation of privacy in their purses and other closed
2 We note that the inevitable discovery exception has not been adopted as a matter of Indiana constitutional law. Ammons v. State, 770 N.E.2d 927, 935 (Ind. Ct. App. 2002), trans. denied. The Indiana Supreme Court has held that “our state constitution mandates that the evidence found as a result of [an unconstitutional] search be suppressed.” Brown v. State, 653 N.E.2d 77, 80 (Ind. 1995). See also Grier v. State, 868 N.E.2d 443, 445 (Ind. 2007) (“Evidence obtained as a result of an unconstitutional search must be suppressed.”). See also Gyamfi v. State, 15 N.E.3d 1131, 1138 (Ind. Ct. App. 2014) (declining to adopt the inevitable discovery rule as part of Indiana constitutional law in light of the Indiana Supreme Court’s firm language in Brown), reh’g denied; Ammons, 770 N.E.2d at 935.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 15 of 17 containers that normally hold highly personal items.” Krise v. State, 746 N.E.2d
957, 970 (Ind. 2001). Here, Officer Parker testified that he asked Ryon if the
purse belonged to her, that she responded affirmatively, that he asked her if she
wanted the purse to go to jail with her, and that she said yes. Officer Parker
testified that he “gathered her purse to send it to jail with her as her personally
[sic] property.” Transcript at 25. Given that she was already being placed
under arrest and requested that the purse be transported to jail with her, the
brief delay to search the purse would have had little to no additional impact on
Ryon’s ordinary activities and we cannot say that the degree of intrusion was
high.
[24] With respect to the extent of law enforcement needs, Officer Parker testified
that Ryon indicated that she wanted her purse to go to jail with her. In Garcia,
the Indiana Supreme Court held:
When the pill container was discovered on Garcia’s person, it is insignificant that Officer Robinett acknowledged that the container could contain legal or illegal substances or that he did not subjectively view Garcia or the container as dangerous. First, we have continually reiterated that “[a] search incident to a valid arrest is lawful regardless of what it reveals.” Farrie [v. State], [255 Ind. 681, 683, 266 N.E.2d 212, 214 (1971)]. Second, the objective reasonableness of the search is controlling, not Officer Robinett’s subjective views. Even under a brief stop and frisk, it is well established that the reasonableness of an officer’s suspicion turns upon whether “the totality of the circumstances presented a particularized and objective basis for the officer’s belief . . . .” State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014) (internal citation and quotation omitted) (emphasis added). Under an objective standard, we agree that “unknown physical objects may
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 16 of 17 always pose risks, no matter how slight, during the tense atmosphere of a custodial arrest.” Riley v. California, ––– U.S. –– ––, 134 S. Ct. 2473, 2485, 189 L.Ed.2d 430 (2014). In fact, these risks continue to some extent into the ensuing time thereafter the arrest. For example, a risk may still exist while police are transporting an arrestee to a secure location and during booking of that individual at the police station. See Chambers v. State, 422 N.E.2d 1198, 1203 (Ind. 1981) (upholding the validity of a search incident to arrest, regardless of the fact that the search did not occur at the exact time and place of the arrest, but occurred once the police arrived at the police station with the defendant.)
47 N.E.3d at 1203. The Court also stated: “we see no basis in the present
circumstances why an independent warrant should be required to search an
item already lawfully seized.” Id. The Court further stated: “When taking an
individual into custody, officer safety is a primary concern. Small and
seemingly innocuous items have the potential to pose a threat. We see no
reason to delay the officer’s ability to inspect such items once they have already
been lawfully seized.” Id. This factor weighs in favor of the State.
[25] Under the totality of the circumstances, we conclude that the search of the
purse was reasonable and did not violate Ryon’s rights under Article 1, Section
11 of the Indiana Constitution.
Conclusion [26] For the foregoing reasons, we affirm Ryon’s conviction for possession of
paraphernalia as a class C misdemeanor.
[27] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2079 | August 30, 2017 Page 17 of 17