Mario Gonzaga v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 5, 2017
• Docket: 49A04-1610-CR-2357
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 05 2017, 8:27 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 Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mario Gonzaga, July 5, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1610-CR-2357 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy M. Jones, Appellee-Plaintiff. Judge Trial Court Cause No. 49G08-1511-CM-40807

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017 Page 1 of 9 Case Summary [1] On November 15, 2015, Indianapolis Metropolitan Police Department

(“IMPD”) Officer Michael Wagner-Gilbert responded to a dispatch about a

reckless driver on the northeast side of Indianapolis. Upon his arrival to the

scene, Officer Wagner-Gilbert observed Appellant-Defendant Mario Gonzaga

driving erratically. After stopping Gonzaga, Officer Wagner-Gilbert observed

that Gonzaga had slurred speech, bloodshot and glassy eyes, the odor of

alcoholic beverage on his breath, and poor balance. Believing that Gonzaga

was impaired, Officer Wagner-Gilbert performed a portable breath test

(“PBT”), and the result showed that Gonzaga had an alcohol content

equivalent (“ACE”) of at least 0.15 gram of alcohol per 100 milliliters of his

blood. Using this information, Appellee-Plaintiff the State of Indiana (“the

State”) obtained a search warrant in order to draw a blood sample. The results

of the blood sample revealed that Gonzaga had an ACE of 0.241.

[2] On November 17, 2015, the State charged Gonzaga with Class A misdemeanor

operating a vehicle while intoxicated endangering a person, Class A

misdemeanor operating a vehicle with an ACE of 0.15 or more, and Class C

misdemeanor operating a motor vehicle without ever receiving a license. The

State tried Gonzaga at a bench trial on September 21, 2016. During the trial,

Gonzaga orally moved to suppress the evidence of his blood draw. The trial

court denied his motion and found Gonzaga guilty as charged. That same day,

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017 Page 2 of 9 the trial court sentenced Gonzaga to an aggregate sentence of 365 days with

361 days suspended to probation.

[3] On appeal, Gonzaga contends that the trial court abused its discretion in

admitting the evidence found pursuant to the search warrant. Specifically,

Gonzaga argues that the warrant was deficient due to the presence of numerous

misstatements. Because we disagree, we affirm.

Facts and Procedural History [4] Around midnight on November 15, 2015, IMPD Officer Wagner-Gilbert

responded to a dispatch concerning a “reckless driver” near Post Road and

Washington Street. Tr. p. 6. Upon Officer Wagner-Gilbert’s arrival to the

scene, he witnessed Gonzaga driving a vehicle that matched the description

from the dispatch. Officer Wagner-Gilbert observed Gonzaga make an “erratic

left turn,” almost collide with his patrol car, and drive across three lanes of

traffic. Tr. p. 8. After Officer Wagner-Gilbert activated his emergency lights

and pursued the vehicle, Gonzaga stopped his car in the middle of the road.

Officer Wagner-Gilbert approached Gonzaga on the driver’s side of the vehicle

and asked him to move his car to the side of the road. Gonzaga was the only

person in the vehicle. When Officer Wagner-Gilbert asked for Gonzaga’s

driver’s license, Gonzaga responded that he did not have one. Officer Wagner-

Gilbert later confirmed via the control operator that Gonzaga had never been

issued an Indiana driver’s license.

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017 Page 3 of 9 [5] During the stop, Officer Wagner-Gilbert observed that Gonzaga’s breath

smelled of alcoholic beverage, his speech was slurred, and he had bloodshot

and glassy eyes. Believing that Gonzaga was extremely impaired, Officer

Wagner-Gilbert asked Gonzaga to exit the vehicle. Once outside the vehicle,

Officer Wagner-Gilbert noticed that Gonzaga could not maintain adequate

balance and had to lean against his own vehicle for stability. Officer Wagner-

Gilbert then administered a PBT. After administering the PBT, which

indicated an ACE of greater than 0.15, Officer Wagner-Gilbert placed Gonzaga

in handcuffs and transported him to the Arrestee Processing Center (“APC”).

[6] After transporting Gonzaga to the APC, Officer Wagner-Gilbert met with

Officer Craig Wildauer, an IMPD impaired driving investigator, and told him

about the stop and his suspicion that Gonzaga was intoxicated. Officer

Wildauer also noted that Gonzaga smelled of alcoholic beverage, his eyes were

glossy and bloodshot, and he had difficulty staying balanced. Using the

information he obtained from Officer Wagner-Gilbert, Officer Wildauer

completed an affidavit for probable cause and applied for a search warrant for a

blood sample from Gonzaga. The affidavit included the following information:

On 11-15-15, at 12:23 am at 9100 E. Washington Street that there is now concealed certain evidence, namely: Blood in such person, which is evidence of the crime of operating a vehicle/ motor vehicle while intoxicated that occurred on 11-15-15 at 12:08 at 9100 E. Washington Street and tends to show that said person committed such offense; that unless samples of said blood are obtained for chemical analysis forthwith, the opportunity to make such analysis will be lost forever; and that the facts tending

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017 Page 4 of 9 to so establish grounds for issuance of a search warrant are as follow:

1. I am an officer with the IMPD Department.

2. In the course of my duties I had occasion to investigate:

C. [X] the scene of an operating a vehicle while intoxicated. Officer Michael Wagner[-]Gilbert observed erratic and/or unlawful motor vehicle operation as follows: observed Mario Gonzaga operate a 2003 Honda with Indiana license plate #[] and observed the vehicle fail to stay within its lane markings at N. Post Road and E. Washington street, travelling southbound, then eastbound.

4. I believe the above named individual was intoxicated because I learned through my investigation the suspect:

[X] Odor of alcohol beverage on their breath [X] Eyes were glassy & bloodshot [X] Displayed an abusive attitude [X] Balance was very poor [X] Leaning against vehicle

P.B.T. Result: .17%

5. The above named individual:

D. [X] is unable to consent to a blood sample being taken because an appropriate interpreter was not available to translate the Indiana Implied Consent Law.

State’s Exhibit 1.

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017 Page 5 of 9 [7] The warrant was signed by a judge at 12:45am. After receiving the signed

warrant, Officer Wildauer transported Gonzaga to Eskenazi Hospital to have

his blood drawn. At Eskanazi, Nurse Jessica Rand drew blood from Gonzaga

at 1:22am. The blood sample later revealed that Gonzaga’s blood had an ACE

of 0.241.

[8] On November 21, 2015, Gonzaga was charged with Class A misdemeanor

operating a vehicle while intoxicated endangering a person, Class A

misdemeanor operating a vehicle with an ACE of 0.15 or more, and Class C

misdemeanor operating a vehicle without ever receiving a license. On

September 21, 2016, a bench trial commenced during which Gonzaga orally

moved to suppress the evidence obtained by his blood sample. Gonzaga argued

that the warrant for his blood sample violated his Fourth Amendment Rights.

However, the trial court denied Gonzaga’s motion to suppress and Gonzaga

was found guilty on all three counts. The trial court sentenced Gonzaga to an

aggregate sentence of 365 days with 361 days suspended to probation.

Discussion and Decision [9] Gonzaga argues that the warrant for the blood draw was deficient because the

affidavit for probable cause was vague and contained too many misstatements.

“The admission of evidence is within the sound discretion of the trial court, and

the decision whether to admit evidence will not be reversed absent a showing of

manifest abuse of discretion by the trial court resulting in the denial of a fair

trial.” Johnson v. State, 831 N.E.2d 163, 168-69 (Ind. Ct. App. 2005) (citing

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017 Page 6 of 9 Williams v. State, 782 N.E.2d 1039, 1045 (Ind. Ct. App. 2003)), trans. denied.

The Court does not reweigh evidence and considers conflicting evidence in a

light most favorable to the trial court’s decision. See Warner v. State, 579 N.E.2d

1307, 1309 (Ind. 1991) (citing Massey v. State, 473 N.E.2d 146, 147 (Ind. 1985));

Coleman v. State, 490 N.E.2d 711, 713 (Ind. 1986)). The burden is on Gonzaga

to rebut the presumption that the warrant is valid. See Perez v. State, 981 N.E.2d

1242, 1251 (Ind. Ct. App. 2013) (citing Britt v. State, 810 N.E.2d 1077, 1080

(Ind. Ct. App. 2004)).

[10] Gonzaga argues that the court abused its discretion in admitting the blood

sample from Gonzaga pursuant to the search warrant because there were

inaccuracies in the affidavit that made the warrant invalid. Gonzaga also

contends that the officer signing the affidavit for the warrant lacked personal

knowledge thereby making the warrant invalid.

[11] Officer Wildauer did use a template that had the “displayed an abusive

attitude” box checked. Officer Wildauer did not notice this mistake until the

day of the bench trial. However, once he noticed this mistake, Officer

Wildauer immediately made the court aware of this error and even testified that

at no time was Gonzaga abusive during his or Officer Wagner-Gilbert’s

encounter with him. “Mistakes and inaccuracies of facts stated in the affidavit,

however, will not vitiate the reliability of the affidavit by the magistrate so long

as it is also determined that such mistakes were innocently made.” Johnson v.

State, 472 N.E.2d 892, 900 (Ind. 1985). Furthermore, we recognize that Officer

Wagner-Gilbert still had probable cause to find that Gonzaga was intoxicated

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017 Page 7 of 9 despite him not displaying an abusive attitude. Indeed, the trial court found

that “the abusive attitude quite frankly is probably absolutely one of the least

signs of intoxication that you know—it’s one of the least probative signs.” Tr.

p. 37. Therefore, because this mistake was made innocently and Officer

Wagner-Gilbert still had probable cause to assume that Gonzaga was

intoxicated, we conclude the affidavit was not deficient due to this minor

mistake.

[12] Gonzaga also refers us to Herron v. State, 44 N.E.3d 833 (Ind. Ct. App. 2015)

and argues that Officer Wildauer’s use of boilerplate language and vague

information makes the warrant invalid. This court is reminded that the use of

boilerplate language is valid “as long as the affidavit contains sufficient facts

specific to the search at issue to establish probable cause….” Rios v. State, 762

N.E.2d 153, 160 (Ind. Ct. App. 2002). Furthermore, Herron is easily

distinguished, from the instant matter. In Herron, the affidavit that was

submitted did not contain detailed facts concerning the events that took place

the night of the arrest nor who was operating the vehicle. Herron, 44 N.E.3d at

836-37. In the current case, Officer Wildauer mentions that Officer Wagner-

Gilbert “observed Mario Gonzaga operate a 2003 Honda” and that Gonzaga

was the “only person in the vehicle” in the affidavit. Tr. p. 7-8. We conclude

that the previously-mentioned statements are sufficient to determine who was

driving the car. Furthermore, the affidavit does give a detailed account,

including the date, time, and location that these events took place on the night

of Gonzaga’s arrest.

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017 Page 8 of 9 [13] Once arrested, Officer Wagner-Gilbert transferred custody of Gonzaga to

Officer Wildauer, who filled out the affidavit for probable cause. Gonzaga

argues that Officer Wildauer was not authorized to do so. However, Officer

Wildauer was able to fill out the affidavit for probable cause because, “as long

as participating officers seeking the issuance of a search warrant collectively

have probable cause, their individual knowledge can be imputed to the officer

signing the affidavit in support of the search warrant.” Taylor v. State, 615

N.E.2d 907, 911 (Ind. App. 1993) (citing Utley v. State, 589 N.E.2d 232, 237

(Ind. 1992)). While he may not have been on the scene, Officer Wagner-

Gilbert’s knowledge was imputed to Officer Wildauer; therefore, there was no

error in him filling out the affidavit. Therefore, because the information

presented within the affidavit was factual, the mistake was made innocently,

and Officer Wagner-Gilbert’s knowledge was imputed to Officer Wildauer, we

find that Gonzaga did not meet his burden of proving that the warrant was

invalid.

Conclusion [14] The trial court did not abuse its discretion when it denied Gonzaga’s motion to

suppress evidence obtained pursuant to the valid search warrant. We affirm the

judgement of the trial court.

[15] The judgement of the trial court is affirmed.

Brown, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2357 | July 5, 2017 Page 9 of 9