Melvin Levy v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 14, 2017
• Docket: 20A04-1705-CR-1206
• Status: Published

Opinion

MEMORANDUM DECISION FILED Nov 14 2017, 9:08 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Bellin Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Melvin Levy, November 14, 2017 Appellant-Defendant, Court of Appeals Case No. 20A04-1705-CR-1206 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Stephen R. Appellee-Plaintiff. Bowers, Judge Trial Court Cause No. 20D02-1508-F4-46

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 1 of 13 Case Summary [1] Melvin Levy appeals his convictions for unlawful possession of a firearm by a

serious violent felon and possession of marijuana. He argues that the search

that led to the discovery of the gun and the marijuana violated the Fourth

Amendment to the U.S. Constitution. We agree and reverse Levy’s

convictions.

Facts and Procedural History [2] On the afternoon of August 21, 2015, Corporal Brandon Roundtree and

Corporal Jason Gruber of the Elkhart Police Department were together in a

squad car in Elkhart, “watching cars” at an intersection. Tr. p. 11. They saw

an SUV with darkly tinted windows and, “being proactive,” decided to follow

it. Id. at 12. The driver of the SUV, later identified as Levy, pulled up to a stop

sign, activated his right-turn signal, and turned right. Corporal Roundtree

immediately initiated a traffic stop because Levy did not signal for at least 200

feet before the turn (as required by Indiana Code section 9-21-8-25). A video of

the stop shows that Levy parked the SUV in front of some buildings on Indiana

Avenue, in a parking lane separated from the driving lane by a solid white line.

[3] When the officers approached Levy, he informed them that he did not have

insurance. The officers decided to have the SUV impounded. While waiting

for a tow truck, Corporal Roundtree searched the SUV, and he found a revolver

under the driver’s seat. Because Levy did not have a license to carry a

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 2 of 13 handgun, and none of the exceptions to the license requirement applied, see Ind.

Code § 35-47-2-1, the officers placed him under arrest. Corporal Gruber then

searched Levy and found two bags of marijuana.

[4] After the arrest, the State determined that Levy had been convicted of dealing

in cocaine in 2008 and charged him with unlawful possession of a firearm by a

serious violent felon (dealing in cocaine being a “serious violent felony” under

the controlling statute, see Ind. Code § 35-47-4-5), as well as possession of

marijuana (elevated from a Class B misdemeanor to a Class A misdemeanor

based on the same cocaine-dealing conviction). Levy filed a motion to suppress

the gun and the marijuana, claiming that the searches of him and his SUV were

done “without a warrant, consent by the Defendant or probable cause that a

crime had been committed that would have justified a warrantless search of the

person and property of the Defendant” and that the searches therefore violated

the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.

Appellant’s App. Vol. II pp. 66-67.

[5] In its written response to Levy’s motion, the State asserted that no warrant was

required for the search of the SUV because it was merely an “inventory

search”—a term used to describe the process of documenting the contents of an

automobile that has been or is going to be impounded. The State cited Wilford

v. State, in which our Supreme Court explained that such warrantless searches

are permissible as long as both the impoundment and the inventory are

reasonable. 50 N.E.3d 371 (Ind. 2016). The State argued that the decision to

impound Levy’s SUV was “lawful” because he did not have insurance and that

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 3 of 13 the subsequent search was proper because “the Elkhart Police Department has a

valid inventory policy, and the Officers followed their Department’s inventory

polic[y][.]” Appellant’s App. Vol. II p. 54. The State also argued that Levy

was lawfully arrested for carrying the gun without a license and that the

marijuana was discovered as the result of a proper search incident to that arrest.

[6] A bench trial and a hearing on Levy’s motion were scheduled to be held on the

same morning, with the motion “to be heard prior to the Bench Trial.” Id. at

63. By the scheduled day, however, the parties had agreed that the trial

evidence would largely duplicate the evidence relevant to Levy’s motion and

that therefore all the evidence should be heard at one time. They also agreed

that the outcome of the trial would turn on the court’s ruling on the motion to

suppress—if denied, Levy would be found guilty; if granted, Levy would be

found not guilty.

[7] The State’s first witness was Corporal Roundtree. When asked about the

decision to impound the SUV, he initially testified, consistently with the State’s

written response to Levy’s motion, that it was based on the fact that Levy “did

not have insurance.” Tr. p. 24. In a subsequent exchange with the prosecutor,

however, Corporal Roundtree addressed the location and manner in which the

SUV was parked:

Q: So just to be clear uhm, a vehicle that does not have insurance, can that be driven on an Indiana roadway?

A: No.

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 4 of 13 Q: So in this case why did you decide to impound the vehicle?

Q: The vehicle was on – the vehicle was parked on a public roadway. Even though it was in front of the One Stop Shop uhm, you have to have permission from the owners to keep that vehicle parked. Given the fact that it was on roadway [sic] and the parking spot was short, we had no other choice but to tow the vehicle.

Id. at 35. Corporal Roundtree also testified that he is “trained on the EPD’s

policies and procedures for impounded a vehicle [sic]” and that when he

impounds a vehicle he does so “pursuant to an EPD policy[.]” Id. at 24.

Neither Corporal Roundtree nor Corporal Gruber provided any additional

testimony about an Elkhart Police Department policy on the impoundment of

vehicles.

[8] A month later, the trial court issued an order agreeing with the State that the

warrantless search of Levy’s SUV was a valid inventory search. The court

concluded that the decision to impound was proper, though not on the grounds

stated by Corporal Roundtree (lack of insurance and inconvenience to nearby

businesses). Instead, the court found that Levy parked his SUV “at a distance

from the curb that created a potential hazard.” Appellant’s App. Vol. II p. 47.

The court also concluded that the subsequent search of the SUV was

reasonable. Accordingly, the court denied Levy’s motion to suppress and found

him guilty as charged.

[9] Levy now appeals.

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 5 of 13 Discussion and Decision [10] Levy contends that the search of his SUV was not a valid inventory search

under the Fourth Amendment and that the trial court therefore erred by

admitting the gun and the marijuana into evidence.1 Because the facts relevant

to this issue are undisputed, we review the matter de novo. Kelly v. State, 997

N.E.2d 1045, 1050 (Ind. 2013) (“The constitutionality of a search or seizure is a

question of law, and we review it de novo.”).

[11] Before considering Levy’s argument, we need to address the State’s claim that

he waived the argument by failing to object when the State moved to introduce

the gun and the marijuana into evidence. In making this claim, the State

actually relies in part on Levy’s appellate attorney, who noted in her brief that

“counsel for the Defendant did not object to any of the evidence submitted by

the State, as required to do in order to properly preserve a suppression issue for

appeal.” Appellant’s Br. p. 7 n.1. In fact, Levy’s appellate attorney goes so far

as to suggest that Levy may have an ineffective-assistance-of-counsel claim

against his trial attorney. See id. at 10 n.2.

[12] We are troubled by this mutual mischaracterization of the record. In the trial

court, it was abundantly clear to all involved—judge, prosecutor, defense

1 Levy also argues that using his 2008 cocaine-dealing conviction as the basis for the unlawful possession of a firearm by a serious violent felon conviction and as the basis for elevating the marijuana charge from a Class B misdemeanor to a Class A misdemeanor constitutes an impermissible “double enhancement.” Because we reverse his convictions on Fourth Amendment grounds, we need not reach that issue.

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 6 of 13 counsel—that Levy objected to the admission of the gun and the marijuana. In

fact, Levy’s challenge to the impoundment and subsequent search was his only

defense. This is why the parties agreed to a bench trial and then agreed that the

trial should be held in conjunction with the suppression hearing. See Tr. p. 4

(judge noting parties’ agreement that he “would hear all the evidence at one

time and make a decision with respect to the Motion to Suppress Evidence”).

Levy’s attorney confirmed the reason for the combined trial/hearing in the first

line of his opening statement, when he said, “[W]hy we are here contesting this

case – is not so much contesting elements of the underlying crime, but the

actual stop and the search of the vehicle.” Id. at 6. In this sense, the entire

proceeding served as one long objection by Levy. Because that was the shared

understanding of the participants, there was no need for Levy to voice

additional objections when the gun and the marijuana were introduced. We

therefore turn to the merits of Levy’s argument.

[13] The outcome of this appeal is controlled by our Supreme Court’s decision in

Wilford, the impoundment case the State mentioned in its response to Levy’s

motion to suppress. The Wilford Court began its analysis by alluding to three

basic principles: (1) the Fourth Amendment prohibits “unreasonable” searches

of private property, (2) a search, to be considered reasonable, generally must be

authorized by a valid warrant, and (3) a warrantless search is reasonable only if

it falls within a recognized exception to the warrant requirement. 50 N.E.3d at

374. When the State seeks to rely on evidence obtained during a warrantless

search, and the defendant objects, the State bears the burden of proving the

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 7 of 13 applicability of an exception. Id. One such exception, the Court explained, is

the inventory search, “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. As we noted earlier, for this exception to apply, the State

must show that both the decision to impound and the search itself were

reasonable. Id.

[14] Here, Levy does not dispute the reasonableness of the search itself; he

challenges only the initial decision to impound his SUV.2 In Wilford, the Court

explained that law enforcement officers enjoy some measure of discretion in

deciding whether to have a vehicle impounded “in order to protect the car and

community from hazards” (as part of the so-called “community-caretaking

function”) but that such decisions “are vulnerable to constitutional

reasonableness challenges because of their potential for misuse as pretext for

warrantless investigative searches under the guise of inventory.” Id. at 375.

Given the potential for pretext, the State must satisfy the “strict two-prong

standard” set forth in Fair v. State, 627 N.E.2d 427 (Ind. 1993), specifically, that

(1) the impounding officer believed, consistent with objective standards of

sound policing, that the vehicle posed a threat of harm to the community or

2 For this reason, the State’s reliance on Weathers v. State, 61 N.E.3d 279 (Ind. Ct. App. 2016), is misplaced. In that case, the defendant challenged the search but not the decision to impound. See id. at 285 (“Weathers does not . . . contest Deputy Andre’s decision to impound the vehicle.”).

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 8 of 13 was itself imperiled and (2) the officer’s decision to impound “adhered to

established departmental routine or regulation.” Wilford, 50 N.E.3d at 375-76.

If the State fails to satisfy either element, the impoundment and inventory

search will be declared unreasonable, and any contraband found during the

search is inadmissible “poisoned fruit.” Id. at 375.

[15] Applying this standard to the facts before it, the Wilford Court skipped over the

threat-of-harm prong of Fair and went straight to the impoundment-policy

prong. When the officer in Wilford was asked why he decided to have a car

impounded, he testified that it was damaged, that the driver was being arrested

for driving with a suspended license, and that the driver was not the owner of

the car. He then added, “[W]ith our procedures in that situation, we towed the

vehicle.” Id. at 377. The State did not present any further evidence of the

police department’s alleged impoundment policy. The Court held that while

officer testimony regarding an impoundment policy can suffice when there is no

evidence of a written policy, such testimony is adequate only if it “outlines the

department’s standard impound procedure and specifically describes how the

decision to impound adhered to departmental policy or procedure[.]” Id. at

376-77. The Court concluded that an officer’s passing reference to “our

procedures in that situation” does not satisfy that standard. The Court

explained:

On this record, we know literally nothing about the substance of the “procedures” the officer referenced, let alone how his actions adhered to those procedures. Without these “particulars,” then, we cannot evaluate whether this impoundment was a reasonable

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 9 of 13 exercise of the community-caretaking function and not merely pretext for an inventory search. In sum, absent more detail, [the officer’s] testimony provided inadequate evidence of established departmental routine or regulation, making impoundment unreasonable under Fair’s second prong and rendering the handgun found during the subsequent inventory search inadmissible “poisoned fruit.”

Id. at 377-78.

[16] Here, the trial court found that Levy’s SUV was parked “at a distance from the

curb that created a potential hazard” and that impoundment was therefore

proper. Notably, however, neither officer testified that the SUV was parked too

far from the curb, and the video of the stop casts significant doubt on the trial

court’s conclusion. In any event, even if we were to hold that the trial court got

it right on Fair’s threat-of-harm prong, the court made no mention of the

impoundment-policy prong, and the State’s evidence on that issue is woefully

inadequate. The State did not present any evidence of a written policy.3

Moreover, Corporal Roundtree testified only that he is “trained on the EPD’s

policies and procedures for impounded a vehicle [sic]” and that he impounds

vehicles “pursuant to an EPD policy[.]” Tr. p. 24. We see little difference

between this testimony and the testimony found insufficient in Wilford.

3 The State introduced a copy of the Elkhart Police Department’s policy on the “Inventory of Impounded Vehicles,” see Ex. 4 p. 10, but that policy simply says that “lawfully impounded” vehicles must be inventoried and describes how inventories are to be conducted. The policy does not provide any guidance as to when impoundment is “lawful,” and the State makes no argument that it constitutes an “impoundment policy” for purposes of Fair and Wilford.

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 10 of 13 Corporal Roundtree neither outlined a standard impound procedure for his

department nor specifically described how his decision to impound Levy’s SUV

adhered to any such procedure.

[17] In an attempt to explain the lack of evidence of an impoundment policy, the

State notes that Levy did not specifically “raise an objection to the officer[s’]

decision to impound the vehicle before or during the officer[s’] testimony.”

Appellee’s Br. p. 9. The State asserts, “If Levy had raised an objection to the

officer’s decision to impound, while the officer was testifying, it is possible that

additional evidence could have been offered concerning the Elkhart Police

Department policy the officer referred to regarding the decision to impound a

vehicle[.]” Id. at n.1. We see two problems with the State’s position.

[18] First, as with any exception to the warrant requirement, the burden was on the

State to prove the applicability of the inventory-search exception. See Wilford,

50 N.E.3d at 374. That includes the burden of showing that the decision to

impound was reasonable. Id. The State took on this burden the moment it

decided to rely on the inventory-search exception; no objection by Levy,

beyond his motion to suppress, was necessary.

[19] Second, the suggestion that the State did not think the reasonableness of the

impoundment was at issue is belied by the record. The prosecutor spent the

bulk of his closing argument trying to convince the judge that the decision to

impound Levy’s SUV was reasonable. He spoke at length about Wilford, which

deals solely with the reasonableness of impoundments. When the judge pressed

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 11 of 13 the prosecutor about the decision to impound the SUV—“Is there any evidence

that this was anything other than a public street where anyone could park for

whatever length of time they wanted?” Tr. p. 82—the prosecutor did not argue

that Levy had waived any objection to the reasonableness of the impoundment,

nor did the prosecutor ask the court for an opportunity to present additional

evidence about an impoundment policy. Likewise, the prosecutor did not

object when Levy’s attorney attacked the reasonableness of the impoundment

during his closing argument. The prosecutor clearly believed that Levy was

challenging the decision to impound, and he therefore had every incentive to

present evidence about the purported impoundment policy.4

[20] Levy’s failure to specifically object to the reasonableness of the impoundment

did not relieve the State of its burden on that issue. And given the lack of

evidence that the decision to impound adhered to established department

routine or regulation, the subsequent inventory search was necessarily

unreasonable under the Fourth Amendment.5 Therefore, the gun and the

4 The State also notes the following passage from the opening statement of Levy’s attorney: “What happens after the stop? Mr. Levy is very honest, he says, look I don’t have any insurance on this vehicle. We understand at that point the car uh, the car could have been impounded.” Tr. p. 7. While the State would have been justified in treating this language as a concession that the impoundment was reasonable, there is no indication that it actually did so. If the State truly believed that Levy had conceded the issue, surely it would have begun its closing argument by saying so. Instead, as just described, the State (and the judge) proceeded as if the reasonableness of the impoundment was still very much in dispute. 5 Levy argues that the search was also unreasonable under Article 1, Section 11 of the Indiana Constitution. We agree. See Wilford, 50 N.E.3d at 378 (“Our conclusion that this impoundment was unreasonable applies under the Indiana Constitution as well.”).

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 12 of 13 marijuana are inadmissible, and we must reverse Levy’s convictions.6 We

remand this matter to the trial court, where, presumably, the State will dismiss

the charges against Levy. See Tr. p. 97 (trial court explaining that “I think we’re

all in agreement that if the Court grants the Motion to Suppress evidence the

case is over.”).

[21] Reversed and remanded.

Mathias, J., and Crone, J., concur.

6 While the marijuana was not found during the search of the SUV, but rather during a search incident to arrest, that arrest was the direct result of the search of the SUV. As such, the marijuana is no more admissible than the gun. The State does not argue otherwise.

Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 13 of 13