MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 13 2017, 10:11 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Yvette M. LaPlante Curtis T. Hill, Jr. Keating & LaPlante, LLP Attorney General of Indiana Evansville, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Terry McNary, March 13, 2017 Appellant-Defendant, Court of Appeals Case No. 82A04-1607-CR-1733 v. Interlocutory Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Kelli E. Fink, Appellee-Plaintiff Magistrate Trial Court Cause No. 82C01-1603-F3-1640
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 1 of 15 Case Summary [1] In this interlocutory appeal, Terry McNary challenges the denial of his motion
to suppress certain evidence from his trial on charges of level 3 felony
methamphetamine possession, level 6 felony cocaine possession, and level 6
felony narcotics possession. He specifically asserts that the challenged evidence
was obtained pursuant to an unlawful search of his vehicle and certain
containers found therein during a traffic stop. We affirm.
Facts and Procedural History [2] One evening in March 2016, Evansville Police Department Sergeant Stephen
Kleeman was patrolling city streets for seatbelt enforcement and aggressive
driving. He observed a vehicle with a broken taillight and watched as the driver
turned directly in front of a vehicle on his right and made an immediate right
turn into a movie theater parking lot. The sergeant activated his lights and
initiated a traffic stop for aggressive driving.
[3] When Sergeant Kleeman approached the vehicle, he noticed that there were
four passengers in addition to the driver, McNary. When the sergeant asked for
McNary’s driver’s license, he indicated that he did not have one. He gave the
sergeant his name and birthdate, and the sergeant returned to his patrol vehicle
to enter the information into his computer. The National Crime Information
Center (“NCIC”) database indicated that McNary had an active warrant in
Clay County, Indiana, for failure to appear on charges of possession of a
handgun without a license and marijuana possession. The NCIC entry
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 2 of 15 indicated that McNary was to be considered “armed and dangerous.” Tr. at 6-
7. The sergeant also learned that McNary’s driver’s license had been suspended
in Kentucky.
[4] Sergeant Kleeman became concerned for his safety and called for backup.
When backup officers arrived and were apprised of the situation, they removed
McNary from his vehicle,1 handcuffed him, and placed him in Sergeant
Kleeman’s patrol vehicle. Sergeant Kleeman informed McNary that he had
discovered his active warrant in Clay County on weapons and drug charges and
told him that he had notified law enforcement there concerning possible
extradition. He told McNary that he would be held until they got a response
and that if Clay County did not seek extradition, he would be released.
According to the sergeant, he did not Mirandize McNary at that time, and the
only conversation he had with McNary was “whether he was going to be going
to jail for the NCIC hit.” Id. at 19-20.
[5] Meanwhile, McNary’s adult female passenger (“Girlfriend”) remained in the
front seat of his vehicle, and his three juvenile passengers remained in the back
seat. Officer Jacklyn Smith kept watch over the passengers and found that the
tinted windows and dark, misty weather conditions made it difficult to observe
their movements. She opened the passenger door, and when she saw a backseat
1 We refer to the vehicle that McNary was driving as “his vehicle” for purposes of distinguishing it from the police vehicles present at the scene. The registered owner of the vehicle was the father of one of the juvenile passengers. On appeal, the State does not argue that McNary lacks standing to complain about the search of the vehicle.
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 3 of 15 passenger moving around or reaching for something, she directed the
passengers to “keep their hands on their laps.” Id. at 22. She removed the
passengers from the vehicle and immediately conducted a search of the areas of
the vehicle within the driver’s “wingspan.” Id. at 22-23, 27. On the floorboard
right behind the front passenger’s seat, she discovered a zippered pouch/coin-
purse which, in her experience, resembled those sometimes used to store drugs.
She opened the pouch and found a small tin containing what appeared to be
narcotics (and later was determined to be methamphetamine, cocaine, and
hydrocodone). Officer Smith approached Sergeant Kleeman and informed him
that she had discovered the drugs. The sergeant told Officer Smith that he
would ask McNary and Girlfriend if either one would claim the pouch of drugs,
and if not, he would arrest them both. McNary apparently overheard the
officers’ conversation and “stated that it was not her dope and that it was all
his.” Id. at 23. Shortly thereafter, Clay County law enforcement responded
that it did not wish to pursue extradition of McNary at that time.
[6] The State charged McNary with level 3 felony methamphetamine possession,
level 6 felony cocaine possession, and level 6 felony narcotics possession.
Claiming that he had been subjected to an unlawful search and seizure,
McNary filed a motion to suppress the evidence recovered from his vehicle. 2
The trial court held a suppression hearing, and the parties submitted briefing
2 As part of his motion to suppress, McNary also challenged the admissibility of certain inculpatory statements that he made to officers at the scene. However, he does not argue this issue on appeal. Appellant’s App. at 11-12. As such, we limit our discussion to the search of his vehicle and its contents.
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 4 of 15 after the hearing. The trial court issued an order with findings of fact denying
McNary’s motion.
[7] Upon McNary’s request, the trial court certified the order for interlocutory
appeal, and we accepted jurisdiction. Additional facts will be provided as
necessary.
Discussion and Decision [8] McNary maintains that the trial court erred in denying his motion to suppress
evidence obtained during a warrantless search of his vehicle. Our standard of
review for the denial of a motion to suppress evidence is similar to that which
we apply to other sufficiency issues. Stark v. State, 960 N.E.2d 887, 888 (Ind.
Ct. App. 2012), trans. denied. In determining whether substantial evidence of
probative value exists to support the denial of the motion, we do not reweigh
evidence but instead consider the conflicting evidence most favorable to the trial
court’s ruling. Id. However, in contrast to our review of other sufficiency
matters, we also consider any uncontested evidence favorable to the appellant.
Id. at 888-89. We review de novo a ruling on the constitutionality of a search or
seizure but give deference to a trial court’s factual determinations and will not
overturn them unless they are clearly erroneous. Id. at 889. Because McNary
alleges violations of both the Fourth Amendment to the U.S. Constitution and
Article 1, Section 11 of the Indiana Constitution, we review his claims using the
independent analyses of each. Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016).
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 5 of 15 Section 1 – The search of McNary’s vehicle did not violate the Fourth Amendment’s prohibition against unreasonable search and seizure. [9] McNary submits that the search of his vehicle and the search and seizure of the
pouch violated his protections against unreasonable search and seizure found in
the Fourth Amendment of the U.S. Constitution, which 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.
Unless an established exception applies, law enforcement must obtain a warrant
based on probable cause before executing a search and seizure. Stark, 960
N.E.2d at 889. One such exception is a search incident to arrest. Id. In Chimel
v. California, 395 U.S. 752, 763 (1969), the U.S. Supreme Court held that a
search incident to arrest may include the arrestee’s person and the area “within
his immediate control,” meaning the area within reach, “from within which he
might gain possession of a weapon or destructible evidence.” Id. Where the
arrestee is the occupant of an automobile, officers may, incident to a lawful
arrest, “search the passenger compartment of that automobile” as well as any
containers found therein. New York v. Belton, 453 U.S. 454, 460 (1981).
[10] However, noting that Belton should not be read to give police officers
“unbridled discretion to rummage at will amongst a person’s private effects,”
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 6 of 15 the U.S. Supreme Court took a narrower view in Arizona v. Gant, 556 U.S. 332,
345 (2009). There, the Court considered circumstances involving an arrest for
driving on a suspended license where the arrestee had been removed from his
vehicle, handcuffed, and placed in a patrol vehicle prior to the search of his
vehicle and concluded, “Police may search a vehicle incident to a recent
occupant’s arrest only if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe the vehicle
contains evidence of the offense of arrest.” Id. at 351. Noting that there were
no passengers in Gant’s vehicle and that bystanders had likewise been arrested
and placed in patrol vehicles, the Gant court reasoned that the typical
justifications of officer safety and evidence preservation were absent, thus
rendering the ensuing search of Gant’s vehicle unreasonable under the Fourth
Amendment. Id. at 347-48.
[11] In Stark, 960 N.E.2d at 891-92, another panel of this Court affirmed the denial
of the defendant’s motion to suppress a handgun found inside a jacket that he
had left inside his vehicle. There, a police officer patrolling a high crime area
noticed a vehicle parked along the road with four occupants, no lights on, and
no engine running. Id. at 888. When the officer approached and asked each
occupant for identification, Stark, a backseat passenger, appeared to slide an
object under his coat, which he held firmly in his lap. Id. The officer noticed
that Stark appeared intoxicated and that there was an open plastic cup near his
feet. Stark admitted that the cup contained alcohol, and the officer ordered him
out of the vehicle. Id. Stark slid his jacket off his lap and left it inside the
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 7 of 15 vehicle. He was handcuffed and arrested for public intoxication and alcohol
possession by a minor. Three other occupants remained in the vehicle, and the
officer reached inside and retrieved Stark’s jacket, in which he discovered a
loaded semi-automatic handgun for which Stark had no permit and which had
been reported as stolen. Id. The State charged Stark with carrying a firearm
without a license.
[12] Stark appealed the trial court’s denial of his motion to suppress the handgun as
the product of an unlawful search. The Stark court held that the search of the
defendant’s jacket was permissible as a search incident to arrest under Gant. Id.
As in Gant, police had removed the arrestee from his vehicle and handcuffed
him. Id. at 888. During his arrest, Stark stood outside between the arresting
officer and the vehicle. Id. The Stark court found Gant factually
distinguishable, as there had been no occupants remaining in Gant’s vehicle. In
contrast, the Stark court concluded that officer safety was implicated by an
objective consideration of the presence of three unsecured occupants inside
Stark’s vehicle, Stark’s suspicious behavior concerning his jacket, and the fact
that the arrest occurred in a high-crime area. Id. at 891-92.
[13] As a threshold matter, we address McNary’s argument that the exception for
search incident to arrest does not apply because he was not under arrest at the
time of the search. He predicates this argument on Sergeant Kleeman’s
statement that he was either going to go to jail on the Clay County warrant or
be released. “Arrest is the taking of a person into custody, that he may be held
to answer for a crime.” Ind. Code § 35-33-1-5. This occurs when an officer
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 8 of 15 interrupts the accused’s freedom and restricts his liberty of movement. Merchant
v. State, 926 N.E.2d 1058, 1064 (Ind. Ct. App. 2010), trans. denied. We evaluate
whether a person is in custody based on objective circumstances, not upon the
subjective views of officers. Crocker v. State, 989 N.E.2d 812, 818 (Ind. Ct. App.
2013), trans. denied. “[E]ven when a police officer does not tell a defendant that
he is under arrest before a search, that fact dos not invalidate a search incident
to an arrest as long as there is probable cause to make an arrest.” Merchant, 926
N.E.2d at 1064.
[14] Here, McNary had been removed from the vehicle, handcuffed, and placed in
custody in the back of the sergeant’s patrol vehicle pending a response from
Clay County concerning extradition on his active warrant. He was not free to
leave. Notwithstanding Sergeant Kleeman’s statement that McNary would
either be going to jail on the warrant or released, the sergeant’s subjective
considerations are irrelevant, and probable cause existed to arrest McNary for
misdemeanor driving on a suspended license and cite him for aggressive driving
regardless of the response from Clay County or the results of the ensuing
search. McNary was under arrest.
[15] Concerning the wingspan search incident to arrest, we find that officer safety
was implicated not only by the NCIC warning that McNary was to be
considered armed and dangerous but also by the presence and conduct of the
unsecured passengers. Officer Smith testified that when she observed one of the
backseat passengers reaching for something, she ordered all the passengers to
keep their hands on their laps. She decided to remove them from the vehicle
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 9 of 15 just before she conducted her wingspan search. Even then, the passengers stood
unsecured immediately outside the vehicle. Under these circumstances, we
conclude that an objective officer would have been warranted in conducting a
wingspan search of the vehicle incident to arrest.
[16] As for Officer Smith’s decision to search inside the pouch, McNary observes
that the container was too small to contain a firearm and therefore did not
present an officer safety concern. He also submits that it was objectively
unreasonable for Officer Smith to believe that the container held “evidence of
the offense of arrest.” Gant, 556 U.S. at 351. In this vein, he claims that the
offense of arrest was “failure to appear,” and therefore only such items as a
dated docket entry or a transcript from the hearing for which he had failed to
appear would qualify as evidence of the offense. We find this reasoning
oversimplified and believe that an objective evaluation of reasonableness must
include consideration of the underlying charges for which the defendant has
failed to appear – here, weapons and drug offenses. In other words, law
enforcement’s approach to a detainee with an active warrant for failure to
appear on weapons or drug charges could reasonably be expected to differ from
its approach to one whose warrant is for failure to appear on a misdemeanor
traffic offense. That being said, nothing in the record indicates the date upon
which McNary was arrested on the marijuana charge in Clay County relative to
the date of the instant drug offenses. However, police must operate on the facts
known at the time, and we believe that a reasonable officer in the same
circumstances would have been warranted in checking inside the pouch. Based
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 10 of 15 on the foregoing, we conclude that the trial court properly denied McNary’s
motion to suppress on Fourth Amendment grounds.
Section 2 – The search of McNary’s vehicle did not violate the Indiana Constitution’s prohibition against unlawful search and seizure. [17] McNary also maintains that the search and seizure was unlawful under Article
1, Section 11 of the Indiana Constitution. While the text of Article 1, Section
11 is identical to that of the Fourth Amendment, the analyses vary somewhat.
Stark, 960 N.E.2d at 892. “Conformity of a search to the Indiana Constitution
turns on an evaluation of the ‘reasonableness’ of the conduct of the law
enforcement officers, not on the expectation of privacy commonly associated
with Fourth Amendment analysis.” Id. We evaluate the reasonableness of
such conduct under “the totality of the circumstances.” Litchfield v. State, 824
N.E.2d 356, 361 (Ind. 2005). Although we recognize that there may be other
relevant considerations under the circumstances of each case, we evaluate the
reasonableness of a search or seizure under the Indiana Constitution by
balancing (1) the degree of concern, suspicion, or knowledge that a violation
has occurred; (2) the degree of intrusion the method of the search or seizure
imposes on the citizen’s ordinary activities; and (3) the extent of law
enforcement needs. Id.
[18] First, the officers had a high degree of suspicion and knowledge that McNary
had violated the law. Sergeant Kleeman observed his aggressive driving in
making an immediate turn off the roadway after cutting off another driver.
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 11 of 15 McNary admitted that he was driving without a license, and computer records
showed that his Kentucky license had been suspended. He also had an
outstanding warrant on weapons and drug charges and was listed in the NCIC
database as “armed and dangerous.” Sergeant Kleeman acted on his high
degree of concern and knowledge by calling for backup. Officer Smith acted on
the information that she was given concerning the danger and, after observing
the passengers as best she could in the dark, misty weather, conducted a limited
search of the vehicle commensurate with the concerns surrounding McNary.
The degree of concern, suspicion, and knowledge weighs in favor of the State.
[19] With respect to the degree of intrusion on McNary’s ordinary activities, Officer
Smith testified that she merely conducted a wingspan search of the areas of the
vehicle within McNary’s reach. By that time, McNary had been removed from
the vehicle, handcuffed, and placed in a police vehicle because of the Clay
County warrant and the information in the NCIC database. As such, his
activities were already restricted based on the outstanding warrant. Because
darkness, tinted windows, and weather conditions impaired Officer Smith’s
ability to observe movements by the passengers remaining inside McNary’s
vehicle, she simply ordered them to stand immediately outside the vehicle. She
emphasized that she found the pouch within the parameters of her wingspan
search, that she did not search the whole vehicle, and that the pouch was not
hidden but was sitting on the floorboard immediately behind the front
passenger’s seat near the center hump. By the time Sergeant Kleeman received
a response from Clay County law enforcement concerning extradition of
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 12 of 15 McNary on the warrant, Officer Smith had completed her search, discovered
the contraband, and reported her findings to the sergeant. This occurred within
ten minutes’ time.
[20] As for the degree of intrusion attendant to Officer Smith’s opening the small
pouch that she obtained during the wingspan search, our supreme court
recently held that a defendant’s rights were not violated when police opened a
pill container obtained during a patdown search incident to a valid arrest.
Garcia v. State, 47 N.E.3d 1196, 1205 (Ind. 2016). While we acknowledge that
the pouch was obtained during a vehicle search rather than a patdown of
McNary, we see no significant difference in the degree of intrusion, especially
given the brief time that elapsed and the fact that the wingspan search had been
completed before the officers received a response from Clay County concerning
the active warrant. As such, the search did not lengthen the duration of
McNary’s detention. Moreover, we are unpersuaded by McNary’s assertion
that opening the pouch amounted to an unlawful intrusion because it was too
small to contain a firearm. “A search incident to a valid arrest is lawful
regardless of what it reveals.” Guilmette v. State, 14 N.E.3d 38, 42 (Ind. 2014)
(quoting Farrie v. State, 255 Ind. 681, 683, 266 N.E.2d 212, 214 (1971)). Even
so, we remind McNary that while officer safety concerns precipitated the
wingspan search for possible weapons, the active warrant concerned both
weapons and drug charges. The minimal degree of intrusion weighs in favor of
the State.
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 13 of 15 [21] Finally, with respect to law enforcement needs, we observe that the most
commonly recognized bases for conducting a search incident to arrest include
“ensuring that the arrestee is unarmed, preventing the arrestee from bringing
contraband into jail, and preventing the destruction of evidence.” Garcia, 47
N.E.3d at 1202 (quoting Edmond v. State, 951 N.E.2d 585, 592 (Ind. Ct. App.
2011)). Here, the need to ensure officer safety was high, as the NCIC database
showed that McNary had an active warrant for failure to appear on weapons
and drug charges in another county. Concern for officer safety was further
heightened by the statement in the NCIC database that McNary was to be
considered “armed and dangerous.” Officer Smith testified concerning the
number of officers at the scene that it was an “officer safety issue with the
handgun, we don’t take handguns lightly.” Tr. at 22. When asked about the
wingspan search, she stated, “we were making sure that there was no other
weapon in the car.” Id. at 23. Moreover, the need to prevent destruction or
loss of evidence was high, since Girlfriend was a licensed driver and could have
driven away. Officer Smith expressed concern because of conditions that
impaired her ability to see what McNary’s four passengers were doing while
still inside the vehicle. She testified that when she opened the passenger’s side
door and observed movement and reaching by one of the passengers, she first
warned the passengers to keep their hands on their laps. Her needs as a law
enforcement officer involved not only addressing what the “armed and
dangerous” McNary might have attempted to stash within his reach during the
initial minutes of the stop but also what one of the passengers might have taken
possession of or attempted to stash in the ensuing minutes between the original Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 14 of 15 stop and the wingspan search. The passengers remained inside the vehicle for
several minutes and were removed just moments before the search. Even then,
the passengers stood unsecured next to the vehicle. Law enforcement needs of
officer safety and evidence preservation weigh in favor of the State.
[22] In short, police acted lawfully under the totality of the circumstances pursuant
to Article 1, Section 11. As such, we conclude that McNary was not denied his
constitutional protections when police seized and searched the pouch
containing illegal substances. Thus, the trial court did not err in denying
McNary’s motion to suppress. Accordingly, we affirm.
[23] Affirmed.
Riley, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017 Page 15 of 15