Mortimer H. McClendon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 17, 2020
• Docket: 19A-CR-2399
• 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 17 2020, 10:40 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald J. Frew Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mortimer H. McClendon, July 17, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2399 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Appellee-Plaintiff. David M. Zent, Judge Trial Court Cause No. 02D05-1808-F4-64

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2399 | July 17, 2020 Page 1 of 6 [1] Mortimer H. McClendon (“McClendon”) was convicted of unlawful possession

of a firearm by a serious violent felon,1 a Level 4 felony, and dealing in a

synthetic drug or synthetic drug lookalike substance,2 a Level 6 felony, and was

adjudicated as an habitual offender.3 On appeal, McClendon argues that a

police detective violated his rights under the Fourth Amendment to the United

States Constitution and Article I, section 11 of the Indiana Constitution when

the detective conducted an inventory search of the car in which McClendon

rode as a passenger, with the search uncovering a handgun and illegal drugs.

We address the following threshold issue: whether McClendon has standing

under the Fourth Amendment or Article I, section 11 to challenge the

inventory search.

[2] We affirm.

Facts and Procedural History [3] In the early hours of August 13, 2018, Rodney Belcher (“Belcher”),

McClendon’s friend, gave McClendon a ride in Belcher’s Nissan Maxima (“the

Nissan”) to take McClendon to his girlfriend’s residence. Tr. Vol. 2 at 189-91.

McClendon was carrying a bag when he entered the Nissan. Id. at 191.

Belcher was the registered owner of the Nissan. Id. at 142. At approximately

1 See Ind. Code § 35-47-4-5(c). 2 See Ind. Code § 35-48-4-10.5 (repealed July 1, 2019). 3 See Ind. Code § 35-50-2-8.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2399 | July 17, 2020 Page 2 of 6 2:41 a.m., Fort Wayne Police Department (“FWPD”) Detective Gavin Dambra

(“Detective Dambra”) observed that the license plate light of the Nissan was

not working. Id. at 139. Once McClendon and Belcher noticed that Detective

Dambra was trailing them, McClendon grabbed his bag and was able to place it

in the trunk of the Nissan through the “pass through,” which provided direct

access to the trunk. Id. at 191, 197. Detective Dambra stopped the Nissan. Id.

139-40.

[4] Belcher was unable to provide insurance information on the Nissan, so

Detective Dambra called for a tow truck to impound Belcher’s vehicle. Id. at

142-44. Before the tow truck arrived, Detective Dambra conducted an

“administrative” inventory search of the Nissan pursuant to FWPD procedures,

uncovering the bag that McClendon had placed in the trunk. Id. at 144-47. The

bag contained a semiautomatic 9-millimeter handgun; two large plastic bags

that contained the synthetic drug “Spice”; a black scale; and a box of clear

sandwich baggies, which collectively contained 377.11 grams of Fluoro ADB, a

controlled substance. Id. at 148-49, 207; Tr. Vol. 3 at 7.

[5] On August 16, 2018, the State charged McClendon with Count I: unlawful

possession of a firearm by a serious violent felon; Count II: dealing in a

synthetic drug or synthetic drug lookalike substance; Count III: possession of a

synthetic drug or a synthetic drug lookalike substance; Count IV: invasion of

privacy; and Count V: criminal mischief. Appellant’s App. Vol. II at 24-29, 30-

33. On September 24, 2018, the State filed a notice of intention to seek a

habitual offender enhancement. Id. at 6, 57-58.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2399 | July 17, 2020 Page 3 of 6 [6] On March 29, 2019, McClendon filed a motion to suppress the evidence found

inside of the Nissan, which the trial court denied the next day. Id. at 89-94. On

June 7, 2019, McClendon filed a motion for certification of interlocutory order

and for stay of proceedings pending appeal, which the trial court denied on

June 25, 2019. Id. at 102-03. On July 26, 2019, the State filed a motion to

dismiss counts III, IV, and V, which the trial court granted. Id. at 107-08. The

two-day jury trial commenced on July 30, 2019. Tr. Vol. 2 at 2. Following the

proceedings, on August 2, 2019, McClendon was convicted of unlawful

possession of a firearm by a serious violent felon and dealing in a synthetic drug

or synthetic drug lookalike substance; he was also adjudicated as an habitual

offender. Appellant’s App. Vol. II at 15, 137-38, 166. On September 10, 2019,

McClendon was sentenced to an aggregate term of eighteen years, with sixteen

years executed. Id. at 164-67. McClendon now appeals.

Discussion and Decision [7] McClendon contends that his rights under the Fourth Amendment to the

United States Constitution and Article I, section 11 of the Indiana Constitution

were violated by the inventory search of Belcher’s Nissan. A person’s Fourth

Amendment rights against unreasonable search and seizure are personal.

Minnesota v. Carter, 525 U.S. 83, 88 (1998). To raise a challenge under the

Fourth Amendment, a defendant must have a legitimate expectation of privacy

in the place that is searched, id., or show that government obtained information

by physically intruding on a constitutionally protected area. United States v.

Jones, 565 U.S. 400, 407 (2012).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2399 | July 17, 2020 Page 4 of 6 [8] To raise a challenge under Article I, section 11, a defendant “must establish

ownership, control, possession, or interest in the premises searched.” Barker v.

State, 96 N.E.3d 638, 647 (Ind. Ct. App. 2018), trans. denied. “Many search and

seizure issues are resolved in the same manner under both the Indiana and

Federal Constitutions.” Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).

“[F]ederal precedent addressing standing of a passenger asserting an interest in

a searched vehicle is equally applicable under the Indiana Constitution.” Id. at

598. Passengers in a car driven by the owner do not have standing to challenge

a search of the car. Id.

[9] Here, McClendon lacks standing under both the Fourth Amendment and

Article I, section 11 to challenge the inventory search. Belcher owned the

Nissan, and McClendon was a mere passenger. Tr. Vol. 2 at 142. McClendon

concedes both facts. See Appellant’s Br. at 15. Therefore, McClendon lacked a

legitimate expectation of privacy in the Nissan, and he failed to demonstrate

that he had a possessory interest in the Nissan. See Carter, 525 U.S. at 88;

Barker, 96 N.E.3d at 647. Similarly, McClendon has not even contended he

had a possessory interest in the bag containing the handgun and illegal drugs.

Accordingly, McClendon lacks standing to challenge the propriety of the

inventory search under the Fourth Amendment and Article I, section 11. See

Campos, 885 N.E.2d at 598.

[10] Affirmed.

Najam, J., and Brown, J., concur.

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