Myers v. State

806 N.E.2d 350, 2004 WL 837798

• Court: Indiana Court of Appeals
• Decided: June 3, 2004
• Docket: 72A01-0306-CR-217
• Status: Published

Opinions

OPINION

BROOK, Senior Judge.

Case Summary

Appellant-defendant John P. Myers appeals from the denial of his motion to suppress a handgun seized during a war-rantless search of his vehicle. We affirm.

Issue

We combine and restate the three issues Myers presents as whether the warrant less search of his vehicle was unreasonable under the Fourth Amendment to the United States Constitution.¹

Facts and Procedural History²

The Scott County School Board authorized the use of police dogs to conduct general sweeps for narcotics on school property. On December 12, 2002, police notified officials at Austin High School that they would be conducting a sweep that morning. School officials locked the students in their classrooms for safety purposes. K-9 patrol officers arrived to conduct a sweep of student lockers and vehicles. If one dog detected the scent of narcotics, then a second dog would be brought to that location. If the second dog detected the scent of narcotics, then a school official would search the locker or vehicle.

Two dogs twice detected the scent of nareotiecs upon sniffing a red Jeep Cherokee in the school parking lot. The school system's license plate records linked the Jeep to Myers. Myers was summoned to the parking lot. The assistant principal confirmed that the Jeep belonged to Myers and asked him to unlock the door. Myers complied. The assistant principal searched the Jeep and found a loaded handgun under the driver's seat.

The State charged Myers with possession of a firearm on school property, a Class D felony. See Ind.Code § 35-47-9-2. Myers moved to suppress the handgun seized during the warrantless search of his Jeep. On May 15, 2003, the trial court denied Myers's motion to suppress. This interlocutory appeal ensued.

Discussion and Decision

The Fourth Amendment to the United States Constitution provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment protects against unreasonable searches and seizures. Johnson v. State, 766 N.E.2d 426, 482 (Ind.Ct.App.2002), trans. demied. Generally, a search warrant is required to conduct a lawful search. Id. Before we may address Myers's contention that the warrant-less search of his Jeep was unreasonable under the Fourth Amendment, we must determine the proper standard for assessing the legality of the search and the propriety of the suspicionless canine sweep.

"Ordinarily, a search-even one that may permissibly be carried out without a warrant-must be based upon 'probable cause' to believe that a violation of the law has occurred." New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). "Probable cause to search exists where the facts and cireum-stances within the knowledge of the officer making the search, based on reasonably trustworthy information, are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed." State v. Hawkins, 766 N.E.2d 749, 751 (Ind.Ct.App.2002), trans. denied.

In 7.L.O., the United States Supreme Court held that the legality of the search of a student conducted by school officials acting alone and on their own authority does not depend on the existence of probable cause, but only on whether the " 'action was justified at its inception' " and whether the search "'was reasonably related in seope to the circumstances which justified the interference in the first place."" T.L.O., 469 U.S. at 341, 105 S.Ct. 733 (citations omitted). The T.L.O. court specifically reserved the question "of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies[.]" Id. at n. 7.

One might argue that question is presented by the facts of this case, but we need not decide it because the more stringent standard of probable cause was met here. It is well settled that a trained dog's alert to the scent of narcotics gives rise to probable cause to search a vehicle. See Cannon v. State, 722 N.E.2d 881, 884 (Ind.Ct.App.2000), trans. denied; Kenner v. State, 703 N.E.2d 1122, 1125 (Ind.Ct.App.1999), trans. denied. Here, two trained dogs twice alerted to the seent of narcotics after sniffing Myers's Jeep, thereby providing ample probable cause to search the vehicle.³

Nevertheless, Myers relies on Cannon and Kenner to assert that canine sweeps may not be conducted absent reasonable suspicion of criminal activity. We disagree. Those cases state that reasonable suspicion of eriminal activity must exist before police may detain a vehicle to conduct a canine sweep. See Cannon, 722 N.E.2d at 884 ("Detention of personal property for such a sniff test is not prohibited if law enforcement authorities have reasonable suspicion to believe the property contains narcotics."); Kenner, 703 N.E.2d at 1125 ("Also, the Fourth Amendment does not prohibit law enforcement authorities from detaining personal property for a sniff test by a trained narcotics detection dog if there is reasonable suspicion to believe the property contains narcotics."). Myers does not assert that his Jeep was detained for Fourth Amendment purposes during the canine sweep; as such, reasonable suspicion was not a prerequisite for the sweep.

We now address the merits of Myers's contention that the warrantless search of his Jeep was unreasonable under the Fourth Amendment and that the trial court erred in denying his motion to suppress the handgun seized as a result of the search. We review denial of motions to suppress as a matter of sufficiency, considering the evidence favorable to the trial court's ruling and any uncontradicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling. Griffith v. State, 788 N.E.2d 835, 839 (Ind.2003) (addressing validity of warrantless arrest).

"Searches conducted without a warrant are per se unreasonable subject to a few well delineated exceptions. The State bears the burden of establishing that a warrantless search falls within an exeeption to the warrant requirement. One exception to the warrant requirement is the automobile exception." Johnson, 766 N.E.2d at 432 (citations omitted). In Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996), the United States Supreme Court noted that the "first cases establishing the automobile exeeption to the Fourth Amendment's warrant requirement were based on the automobile's 'ready mobility, an exigency sufficient to excuse failure to obtain a search warrant onee probable cause to conduct the search is clear." Id. at 940, 116 S.Ct. 2485.⁴ The Labron court further stated,

"More recent cases provide a further justification: the individual's reduced expectation of privacy in an automobile, owing to its pervasive regulation." Id. (citing California v. Carney, 471 U.S. 386, 390-93, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985)). In Carney, the Court explained,

When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes-temporary or otherwise-the two justifications for the vehicle exception come into play. First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable.

Carney, 471 U.S. at 392-93, 105 S.Ct. 2066 (footnote omitted).

The Supreme Court has emphasized that the automobile exception has no separate exigency requirement. See Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) ("We made this clear in United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 ... (1982), when we said that in cases where there was probable cause to search a vehicle 'a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained." ") (emphasis in Dyson); see also Labron, 518 U.S. at 940, 116 S.Ct. 2485 ("If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more."). In Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982), the Court explained that "the justification to conduct such a warrantless search does not vanish onee the car has been immobilized, nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant." Id. at 261, 102 S.Ct. 3079 (footnote omitted); see also South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) ("[TThe inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction.") (citing, inter alia, Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967)).⁵

In Carney, federal agents had probable cause to believe that the defendant was selling marijuana in a motor home parked in a downtown San Diego lot. The defendant exited the motor home in response to a knock at his door, whereupon one of the assembled agents entered the vehicle and observed marijuana and related paraphernalia. The Court held that the warrant-less search was reasonable under the Fourth Amendment. Carney, 471 U.S. at 394-95, 105 S.Ct. 2066. Here, we have determined that probable cause existed to search Myers's Jeep for contraband. The Jeep was readily mobile by the turn of an ignition key, and, as a high school student who parked his vehicle on school property, Myers had an even lesser expectation of privacy in his vehicle than that of the typical motorist and was subject to a wider range of police regulation. Seq, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 656, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (noting that "Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere"); Ind.Code § 85-47-9-2 (outlawing possession of a firearm on school property). The fact that Myers was surrounded by school and law enforcement officials and was therefore unlikely to drive the Jeep away is irrelevant in determining the reasonableness of the search. See Thomas, 458 U.S. at 261, 102 S.Ct. 3079; Opperman, 428 U.S. at 367, 96 S.Ct. 3092. Under these circumstances, we conclude that the warrantless search of Myers's Jeep was reasonable under the Fourth Amendment and that the trial court properly denied Myers's motion to suppress.

Affirmed.

SULLIVAN, J., concurs.

1 . Myers also asserts that the search was unreasonable under Article I, Section 11 of the Indiana Constitution. Myers recites a standard of review for state constitutional claims but relies solely on Fourth Amendment jurisprudence to support his assertion. The State contends, and we agree, that Myers has waived this claim because he has failed to offer an analysis supporting an independent standard under the state constitution. See Abel v. State, 773 N.E.2d 276, 278 n. 1 (Ind.2002).

2 . Myers's motion for oral argument is hereby denied.

3 . It is also well settled that "smell testing by a trained dog is not a search within the meaning of the Fourth Amendment." Kenner, 703 N.E.2d at 1125. Myers acknowledges this axiom in passing, yet he repeatedly mischar-acterizes a canine sniff as a "search." See Appellant's Br. at 18, 20, 22, 23.

4 . In his dissent in United States v. Ross, 456 U.S. 798, 102 S.Ct 2157, 72 L.Ed.2d 572 (1982), Justice Marshall observed, "This 'mobility' rationale is something of a misnomer, since the police ordinarily can remove the car's occupants and secure the vehicle on the spot." Id. at 830, 102 S.Ct. 2157 (Marshall, J., dissenting) (citation omitted).

5 . In light of these precedents, we are unpersuaded by Myers's reliance on Scott v. State, 775 N.E.2d 1207 (Ind.Ct.App.2002), trans. denied (2003), in which a different panel of this court held that the search of the handcuffed appellant's vehicle was unreasonable because the vehicle "was not inherently mobile and obtaining a search warrant would have been reasonably practicable under the circumstances[.]" Id. at 1211.