Steven Lamont Cunningham v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 26, 2019
• Docket: 18A-CR-2988
• 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 Aug 26 2019, 7:02 am

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

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Valerie K. Boots Attorney General of Indiana Marion County Public Defender Agency Matthew B. MacKenzie Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven Lamont Cunningham, August 26, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2988 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Jose D. Salinas, Judge Trial Court Cause No. 49G14-1804-F6-12533

Kirsch, Judge.

[1] Steven Lamont Cunningham (“Cunningham”) brings this permissive

interlocutory appeal of the denial of his motion to suppress, which had asked

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019 Page 1 of 4 the trial court to exclude from evidence pills that police seized from the car in

which Cunningham was a passenger. Cunningham raises several issues

regarding the seizure of the pills, but we find as dispositive the following issue

raised by the State: whether Cunningham had standing to challenge the seizure

of the pills.

[2] We affirm.

Facts and Procedural History [3] On August 27, 2018, Officer Lane Cooper (“Officer Cooper”) of the

Indianapolis Metropolitan Police Department pulled over a white Chevy Tahoe

for speeding. Tr. Vol. II at 7-9. Derrick House (“Derrick”) was the driver of the

vehicle, which was registered to Julia House (“Julia”), Derrick’s sister, and

Cunningham was the front seat passenger. Id. at 10-12, 15. Officer Cooper

obtained Derrick’s and Cunningham’s identification and discovered an open

warrant for Cunningham’s arrest. Id at 9-10, 15. Officer Cooper re-approached

the vehicle on the passenger side, asked Cunningham to step out of the vehicle,

and arrested him. Id. at 15. When Cunningham stood up, Officer Cooper

noticed six oblong pills on the passenger seat. Id. After walking Cunningham

back to the police car, Officer Cooper returned to the vehicle and seized the

pills, which were later determined to contain hydrocodone. Id. at 15-16;

Appellant’s App. Vol. II at 9. Cunningham denied that the pills were his. Id. at

16.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019 Page 2 of 4 [4] On April 18, 2018, the State charged Cunningham with Level 6 felony

possession of a narcotic drug.1 Appellant’s App. Vol. II at 10. On July 2, 2018,

Cunningham filed a motion to suppress, and on August 27, 2018, the trial court

heard the motion. Id. at 38-39; Tr. Vol. II at 1-29. In denying the motion, the

trial court found that Cunningham had standing to challenge the seizure of the

pills but ruled the seizure did not violate Cunningham’s rights. Tr. Vol. II at 28-

29. Cunningham now appeals.

Discussion and Decision [5] Cunningham first contends that Officer Cooper did not have probable cause to

seize the pills and have them tested. Second, he argues that the seizure of the

pills was not justified by the exception to the warrant requirement for searches

incident to an arrest. Third, he claims that the seizure of the pills was not

reasonable under the Indiana Constitution.

[6] We do not reach these issues because we agree with the State that Cunningham

has failed to demonstrate that he had standing to challenge the seizure of the

pills. See Livingston v. State, 542 N.E.2d 192, 194 (Ind. 1989). Fourth

Amendment rights are personal and may not be vicariously asserted. Rakas v.

Illinois, 439 U.S. 128, 133-34 (1978); Allen v. State, 893 N.E.2d 1092, 1096 (Ind.

Ct. App. 2008), trans. denied. A defendant must demonstrate a legitimate

expectation of privacy in the item that is searched. Livingston, 542 N.E.2d at

1 See Ind. Code § 35-48-4-6(a).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019 Page 3 of 4 194; Allen, 893 N.E.2d at 1096. A defendant “aggrieved by an illegal search

and seizure only through the introduction of damaging evidence secured by the

search of a third person’s premises has not had any of his Fourth Amendment

rights infringed.” Rakas, 439 U.S. at 134. In reviewing whether an expectation

of privacy exists, we look to whether a defendant has control over or ownership

in the area to be searched. See Lee v. State, 545 N.E.2d 1085, 1091 (Ind. 1989).

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

search of the car.” Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008) (citing

Pollard v. State, 270 Ind. 599, 604, 388 N.E.2d 496, 502 (1979) (quoting Rakas,

439 U.S. at 148)). “[F]ederal precedent addressing standing of a passenger

asserting an interest in a searched vehicle is equally applicable under the

Indiana Constitution.” Campos, 885 N.E.2d at 598.

[7] Here, Cunningham lacked standing to challenge the search and seizure of the

pills because he has failed to demonstrate that he had a legitimate expectation

of privacy in the vehicle. See Livingston, 542 N.E.2d at 194. Cunningham did

not have control or ownership of the vehicle because it belonged to a third

person, Julia. See Rakas, 439 U.S. at 134; Lee, 545 N.E.2d at 1091. Thus, as a

passenger in a car that belonged to another person, Cunningham lacked

standing to challenge the seizure of the pills under both the United States and

Indiana Constitutions. See Campos, 885 N.E.2d at 598.

[8] Affirmed.

Baker, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019 Page 4 of 4