Jamie Cole v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 24, 2017
• Docket: 58A01-1612-PC-2797
• Status: Published

Opinion

MEMORANDUM DECISION FILED Oct 24 2017, 8:50 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey A. Baldwin Curtis T. Hill, Jr. Tyler D. Helmond Attorney General of Indiana Voyles Zahn & Paul James B. Martin Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jamie Cole, October 24, 2017

Appellant-Petitioner, Court of Appeals Case No. 58A01-1612-PC-2797 v. Appeal from the Ohio Circuit Court. The Honorable James D. Humphrey, Judge. State of Indiana, Trial Court Cause No. Appellee-Respondent. 58C01-1410-PC-2

Barteau, Senior Judge

Statement of the Case [1] Jamie Cole appeals the denial of his petition for post-conviction relief. We

affirm.

Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 1 of 12 Issue [2] Cole raises one issue, which we restate as: whether the post-conviction court

erred in denying his claim of ineffective assistance of counsel.

Facts and Procedural History [3] On May 23, 2012, an officer employed by the Rising Sun Police Department

(RSPD) stopped a Jeep in Ohio County. Katherine Cole (Katherine) was

driving. Her husband, Jamie Cole, and their infant child were in the vehicle.

[4] Other officers arrived at the scene to assist. They arrested Katherine for driving

with a suspended license, driving with an expired license plate, and operating a

vehicle without proof of financial responsibility. Cole also lacked a valid

driver’s license. The officers impounded the Jeep, and an officer conducted an

inventory search of its contents, including Katherine’s purse. The purse

contained fifty (50) grams of marijuana, thirty-three (33) pills that were later

identified as various controlled substances (all opioid painkillers), a pill grinder,

a plastic straw, and a set of digital scales.

[5] The police took Cole into custody after finding the contraband. Detective

Norman Rimstidt of the RSPD questioned Cole and Katherine separately.

Katherine claimed the marijuana and pills belonged to her and that “Jamie had

nothing to do” with those items. Tr. Ex. Vol., Petitioner’s Ex. 1. Similarly,

Cole denied any involvement with the marijuana and controlled substances,

claiming Katherine “had a pill problem” and had “snorted pills and smoked

marijuana in the past.” Id. After questioning Cole and Katherine, the police

Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 2 of 12 obtained search warrants for an apartment and a unit at a storage facility, as

well as for Katherine’s phone.

[6] On May 25, 2012, the State charged Cole with dealing in cocaine or a narcotic

drug, a Class B felony; dealing in a schedule I, II, or III controlled substance, a

Class B felony; dealing in a schedule IV controlled substance, a Class C felony;

dealing in marijuana, a Class D felony; possession of cocaine or a narcotic

drug, a Class D felony; possession of a controlled substance, a Class D felony;

possession of marijuana, a Class D felony; possession or use of a legend drug or

precursor, a Class D felony; possession of paraphernalia, a Class A

misdemeanor; maintaining a common nuisance, a Class D felony; and neglect

of a dependent, a Class D felony. The State also filed an habitual offender

sentencing enhancement.

[7] Cole and the State negotiated a plea agreement. Pursuant to the agreement,

Cole pleaded guilty to dealing in a narcotic drug, a Class B felony. Sentencing

would be left to the discretion of the trial court, and the State promised not to

recommend a specific sentence. In turn, Cole agreed to waive his right to

appeal the sentence imposed by the trial court. Finally, the State agreed to

dismiss all other charges and the habitual offender sentencing enhancement.

[8] On April 26, 2013, the court sentenced Cole to twenty (20) years. Per the terms

of his plea agreement, Cole did not appeal his sentence.

Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 3 of 12 [9] On October 20, 2014, Cole filed a pro se petition for post-conviction relief. He

later obtained counsel, who amended the petition for post-conviction relief to

raise a claim of ineffective assistance of counsel. The post-conviction court held

an evidentiary hearing on October 7, 2016. Cole’s trial counsel did not testify at

the hearing.

[10] After the hearing, the post-conviction court denied Cole’s petition, concluding,

“Petitioner has failed to show that his trial attorney’s performance fell below an

objective standard of reasonableness, and that this deficient performance

prejudiced him.” Appellant’s App. Vol. II, p. 126. This appeal followed.

Discussion and Decision [11] In post-conviction proceedings, the petitioner bears the burden of establishing

the grounds for relief by a preponderance of the evidence. Helton v. State, 907

N.E.2d 1020, 1023 (Ind. 2009). To prevail on appeal from the denial of post-

conviction relief, the petitioner must show that the evidence as a whole leads

unerringly and unmistakably to a conclusion opposite that reached by the trial

court. Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). We will not reweigh

the evidence or judge the credibility of witnesses. Wine v. State, 637 N.E.2d

1369, 1373 (Ind. Ct. App. 1994), trans. denied. We review the trial court’s

findings for clear error but do not defer to its conclusions of law. Talley v. State,

51 N.E.3d 300, 303 (Ind. Ct. App. 2016), trans. denied.

[12] Cole argues his trial counsel rendered ineffective assistance by failing to file a

motion to suppress all evidence discovered through the seizure of the Jeep and

Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 4 of 12 the inventory search, which led to the discovery of contraband in Katherine’s

purse. He claims that the officers acted unconstitutionally in impounding the

Jeep and in conducting the search. Cole further claims that if his counsel had

filed a motion to suppress, it would have been successful, and he would not

have needed to plead guilty. The State responds that Cole had no grounds to

object to the inventory search, and in any event the impoundment of the Jeep

and the inventory search did not infringe upon his rights.

[13] To establish a claim of ineffective assistance of counsel, a defendant must

demonstrate that counsel performed deficiently and the deficiency resulted in

prejudice. Helton, 907 N.E.2d at 1023. Counsel performs deficiently when his

or her work falls below an objective standard of reasonableness based on

prevailing professional norms. Polk v. State, 822 N.E.2d 239, 245 (Ind. Ct. App.

2005), trans. denied. Counsel’s performance is presumed effective, and a

defendant must offer strong and convincing evidence to overcome this

presumption. Talley, 51 N.E.3d at 303. As for the test for prejudice, the

petitioner must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Polk, 822 N.E.2d at 245.

[14] To prevail on an ineffective assistance of counsel claim based upon counsel’s

failure to file a motion, such as a motion to suppress, the petitioner must

demonstrate that the motion, if filed, would have been successful. Talley, 51

N.E.3d at 303. We must consider whether the seizure of the vehicle and the

search of Katherine’s purse was unconstitutional as to Cole.

Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 5 of 12 [15] The Fourth Amendment provides in relevant part, “the right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” Similarly, article I, section 11 of

the Indiana Constitution provides, in relevant part: “the right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable

search or seizure, shall not be violated.”

[16] A key question is whether Cole could have raised a valid objection to the

admission of evidence obtained from the search of Katherine’s purse. For

purposes of the Fourth Amendment, a defendant may not challenge the

constitutionality of a search unless he or she can demonstrate that he or she had

a reasonable expectation of privacy in the place to be searched. Sidener v. State,

55 N.E.3d 380, 384 (Ind. Ct. App. 2016). A defendant aggrieved by an illegal

search and seizure only through the introduction of prejudicial evidence secured

by the search of a third person’s premises has not suffered infringement upon

his or her Fourth Amendment rights. Bradley v. State, 4 N.E.3d 831, 839 (Ind.

Ct. App. 2014), trans. denied.

[17] In this case, when Detective Rimstidt questioned Cole, he “denied any

involvement with the drugs.” Tr. Ex. Vol., Petitioner’s Ex. 1, p. Instead, he

stated “Katherine had a pill problem and that she had snorted pills and smoked

marijuana in the past.” Id. Katherine told Detective Rimstidt that Cole had

nothing to do with the contraband. Detective Rimstidt further testified that he

had asked Cole if anything in the purse belonged to him, and Cole said no. In

addition, the officer stated that aside from a prescription medicine bottle

Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 6 of 12 bearing Cole’s name, he did not see anything in the purse that appeared to

belong to Cole.

[18] Cole testified during the post-conviction hearing that he lied when he originally

told the detective that he had no interest in the purse. Cole further testified that

he regularly stored personal items in Katherine’s purse and sometimes carried it

with him when Katherine was not around. The post-conviction court found

Cole’s testimony on this issue to be “unpersuasive.” Appellant’s App. Vol. II,

p. 126. We may not second-guess the court’s credibility determinations. We

conclude that Cole has failed to demonstrate that he had a reasonable

expectation of privacy in Katherine’s purse. See Rawlings v. Kentucky, 448 U.S.

98, 105, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633 (1980) (defendant failed to

prove he had expectation of privacy in acquaintance’s purse, in which he had

hidden controlled substances).

[19] Turning to the Indiana Constitution, as a general rule a challenge to a search

under article I, section 11 “differs in some respects from standing to assert a

Fourth Amendment claim.” Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008).

The Indiana Constitution provides protections for claimed possessions

regardless of the defendant’s interest in the place where the possession was

found. Id. Nevertheless, it remains true that “if the facts fail to establish that

the alleged illegal search and seizure actually concerned the person, house,

papers or effects of the defendant,” he or she will not have standing to challenge

the alleged illegality. Peterson v. State, 674 N.E.2d 528, 534 (Ind. 1996).

Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 7 of 12 [20] In this case, viewing the facts in the light most favorable to the judgment, at the

time of the police investigation Cole disclaimed any interest in the purse or its

contents. Later, during the post-conviction hearing he claimed an interest in

the purse and in a prescription bottle bearing his name that was found in the

purse, but the post-conviction court did not find Cole’s testimony to be credible.

We cannot conclude that Cole demonstrated an ownership interest in the purse

for purposes of article I, section 11, and he thus lacked standing to challenge a

search of the purse.

[21] Even if Cole had grounds to raise constitutional challenges to the search and

seizure of the Jeep and its contents, Cole would have had to demonstrate that

the impoundment and the subsequent inventory search was inappropriate. The

Fourth Amendment, as applied to the states through the Fourteenth

Amendment, generally requires a warrant for a search to be considered

reasonable. Jackson v. State, 890 N.E.2d 11, 17 (Ind. Ct. App. 2008). One well-

recognized exception to the warrant requirement is a valid inventory search of a

vehicle following a valid impoundment. Id. Impoundment is proper when it is

part of the routine administrative caretaking function of the police or is

otherwise authorized by statute. Id.

[22] Indiana Code section 9-18-2-43 (2005) provides, in relevant part:

a law enforcement officer authorized to enforce motor vehicle laws who discovers a vehicle required to be registered under this article that does not have the proper certificate of registration or license plate: Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 8 of 12 (1) shall take the vehicle into the officer’s custody; and (2) may cause the vehicle to be taken to and stored in a suitable place until: (A) the legal owner of the vehicle can be found; or (B) the proper certificate of registration and license plates have been procured.

[23] There is no dispute that Katherine and Cole’s vehicle did not have a proper

license plate. As a result, the officer was required by statute to take the Jeep

into his custody, and he properly arranged to have it towed. Cole

acknowledges he did not have a valid license but argues the officer should have

let him call his roadside assistance program to have the vehicle towed without

being impounded. Allowing Cole to tow the Jeep without impoundment would

not necessarily have fulfilled Indiana Code section 9-18-2-43’s goal of ensuring

the vehicle is not driven again until proper license plates have been procured.

The officers’ decision to impound the vehicle did not violate the Fourth

Amendment.

[24] Next, to be valid under the Fourth Amendment, an inventory search must be

conducted pursuant to and in conformity with standard police procedures.

Whitley v. State, 47 N.E.3d 640, 645 (Ind. Ct. App. 2015), trans. denied.

Inventory searches serve three purposes: (1) protection of private property in

police custody; (2) protection of police against claims of lost or stolen property;

and (3) protection of police from possible danger. Id. An inventory search

Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 9 of 12 must not be a ruse for general rummaging to discover incriminating evidence.

Id. (quotation omitted).

[25] In the current case, Cole does not argue that the officers failed to follow

standard inventory procedures. Rather, he claims the officers should have

simply given him Katherine’s purse without searching it. As the petitioner,

Cole bore the burden of proving that the officers failed to comply with

established police department policies in conducting the search. He failed to

submit any evidence to the post-conviction court regarding relevant department

policies on inventory searches and whether the officers complied with them.

The department’s inventory policy reasonably could have required the officers

to search the purse. See, e.g., Moore v. State, 637 N.E.2d 816, 820 (Ind. Ct. App.

1994) (considering a police department’s impoundment policy that required an

“[i]nventory of all items in the vehicle, which are not regular parts or

accessories to the car”), trans. denied. Indeed, in this case the RSPD issued a

receipt for the purse and its contents. Cole has failed to demonstrate that the

inventory search violated the Fourth Amendment.

[26] Turning to article I, section 11 of the Indiana Constitution, as a general rule the

Indiana Supreme Court interprets and applies that provision independently

from the Fourth Amendment. Whitley, 47 N.E.3d at 648. The purpose of

article I, section 11 is to protect from unreasonable police activity those areas of

life that Hoosiers regard as private. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 10 of 12 2001). In resolving challenges under section 11, courts must consider whether

the police intrusion was reasonable under the totality of the circumstances. Id.

We consider: (1) the degree of concern, suspicion, or knowledge that a

violation has occurred; (2) the degree of intrusion the method of the search or

seizure imposes on the citizen’s ordinary activities; and (3) the extent of law

enforcement needs. Holloway v. State, 69 N.E.3d 924, 931 (Ind. Ct. App. 2017),

trans. denied.

[27] In this case, the officers’ decision to impound the Jeep was authorized by

statute, and they were aware that the driver, Katherine, had committed several

criminal offenses. Furthermore, the seizure was a minimal, reasonable

intrusion on Cole’s right of ownership in the Jeep because he was not licensed

to drive, and without proper license plates the vehicle was not drivable in any

event. Further, impoundment served important law enforcement needs,

namely ensuring the Jeep was not driven again without proper plates,

insurance, and a properly licensed driver.

[28] The inventory search was also reasonable under the totality of the

circumstances. Again, the officers were already aware that Katherine had

committed offenses. Based on the record before us, the intrusion caused by the

search was minimal because there is no indication that the officers permanently

seized anything other than the contraband. Finally, the officers needed to

conduct the search to ensure that the Coles’ personal property would be taken Court of Appeals of Indiana | Memorandum Decision 58A01-1612-PC-2797 | October 24, 2017 Page 11 of 12 care of during impoundment and to protect themselves from possible claims of

theft. See Whitley, 47 N.E.3d at 649 (impoundment of car in roadway and

inventory search of vehicle, which led to discovery of contraband, did not

violate article I, section 11).

[29] In summary, if Cole’s trial attorney had filed a motion to suppress evidence

obtained from the inventory search on grounds that the search and seizure

violated Cole’s rights under the Fourth Amendment and article I, section 11,

that motion would not have prevailed because Cole did not have an expectation

of privacy in Katherine’s purse or standing to challenge that portion of the

inventory search. Furthermore, the impoundment of the vehicle and the search

of the purse did not infringe upon Cole’s constitutional protections against

unconstitutional search and seizure. As a result, the post-conviction court did

not err in rejecting Cole’s claim of ineffective assistance, because prevailing

professional norms do not require counsel to file a motion that would not have

been granted.

Conclusion [30] For the reasons stated above, we affirm the judgment of the trial court.

[31] Affirmed.

Kirsch, J., and Bailey, J., concur.

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