                                                                                  FILED
                                                                              Dec 11 2017, 9:35 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Rory Gallagher                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Angela N. Sanchez
                                                          Supervising Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Bernard Sansbury,                                 December 11, 2017

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A05-1704-CR-793
        v.                                                Appeal from the Marion Superior
                                                          Court.
                                                          The Honorable Steven J. Rubick,
State of Indiana,                                         Magistrate.
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49G10-1601-CM-2065




Barteau, Senior Judge




Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017                      Page 1 of 16
                                          Statement of the Case
[1]   Richard Bernard Sansbury appeals his convictions of carrying a handgun
                                                              1
      without a license, a Class A misdemeanor, and driving with a suspended

      license with a similar infraction within the past ten years, a Class A
                           2
      misdemeanor. We reverse and remand.


                                                     Issues
[2]   Sansbury raises three issues, which we consolidate and restate as:

                 I.       Whether the court erred in admitting evidence obtained
                          during a search of the vehicle Sansbury was driving.
                 II.      Whether there is sufficient evidence to sustain Sansbury’s
                          conviction for driving with a suspended license with a
                          similar infraction within the past ten years.

                                   Facts and Procedural History
[3]   On the evening of January 17, 2016, Detective Andrew McKalips and Officer

      Mollie Johanningsmeier of the Indianapolis Metropolitan Police Department

      (IMPD) were on patrol in Indianapolis. Detective McKalips was training

      Officer Johanningsmeier, who was a rookie. McKalips saw a vehicle,

      specifically a Pontiac Aztek, make a turn without activating a turn signal. He

      also noted that one of the Aztek’s headlights was not working.




      1
          Ind. Code § 35-47-2-1 (2014).
      2
          Ind. Code § 9-24-19-2 (2012).


      Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017      Page 2 of 16
[4]   McKalips turned his car around and stopped the Aztek in an apartment

      complex. The Aztek stopped near an apartment building, one and a half to two

      feet from the curb. The vehicle did not stop in a marked parking spot, but was

      instead sitting by the side of a road where traffic drove through the complex.

      McKalips approached the Aztek and learned that Sansbury was the driver.

      Sansbury had a passenger, Elisha Goins. Sansbury lived in the nearby building.


[5]   McKalips determined Sansbury did not have a valid driver’s license. Further,

      Sansbury was not the Aztek’s registered owner. The registered owner was

      Sansbury’s mother, Jorja Payton. McKalips decided to impound the Aztek.

      He contacted a tow truck and requested backup.


[6]   Next, McKalips searched the vehicle, claiming it was necessary to inventory its

      contents. During the search he found three handguns. Two were in the center

      console, which was closed but not locked. McKalips found the third handgun

      under a back seat, concealed under a shirt. He also saw a clip of ammunition

      wedged between the driver’s seat and the center console. McKalips determined

      that neither Sansbury nor Goins had a valid permit to possess guns. At that

      point, the search ended, and neither McKalips nor Johanningsmeier prepared a

      written inventory of the Aztek’s contents.


[7]   The State charged Sansbury with possession of a handgun without a license and

      driving with a suspended license with a similar infraction within the past ten

      years. Sansbury filed a motion to suppress all evidence discovered through the




      Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 3 of 16
       search and seizure of the automobile. The trial court held an evidentiary

       hearing and denied the motion at the end of the hearing.


[8]    The case was tried to the bench, and Sansbury renewed his objection to the

       admission of evidence discovered during McKalips’ search. The trial court

       overruled his objection. After the State ended its presentation of evidence,

       Sansbury moved for involuntary dismissal. The court adjourned the hearing to

       consider cases cited by Sansbury. At a subsequent hearing, the court denied

       Sansbury’s motion and offered Sansbury the opportunity to present evidence.

       Sansbury chose not to present any evidence. The trial court determined

       Sansbury was guilty as charged and imposed a sentence. This appeal followed.


                                     Discussion and Decision
                                           I. Evidentiary Issue
[9]    As a preliminary matter, we note that the parties’ briefs contain references to

       evidence presented during the suppression hearing. The consideration of

       evidence presented at a previous proceeding in the same action is sometimes

       permitted. L.H. v. State, 878 N.E.2d 425, 429 (Ind. Ct. App. 2007). For

       example, incorporation of testimony from one proceeding into another may be

       appropriate when agreed to by the parties or when authorized by statute. Id.


[10]   In the current case, prior to trial, neither party asked the court to incorporate

       the evidence that was presented during the suppression hearing into the

       evidence presented at trial. Sansbury merely stated during trial that he was

       incorporating his arguments from the suppression hearing in support of his

       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 4 of 16
       objections and motion for involuntary dismissal. Further, there is no indication

       that the court relied on evidence presented at the suppression hearing during

       trial. We thus limit our evidentiary review to the testimony and exhibits

       presented during trial.


         II. Constitutional Claims - Impoundment and Search of the
                                   Vehicle
[11]   Sansbury claims the handguns and ammunition should not have been admitted

       into evidence because the officers’ impoundment of his mother’s Aztek and

       subsequent search violated his federal and constitutional protections against

       unreasonable search and seizure. The State responds that the impoundment

       and inventory search were proper and did not violate Sansbury’s constitutional

       rights. We resolve this issue under the Fourth Amendment and need not

       address Sansbury’s claim under the Indiana Constitution.


[12]   We review de novo a trial court’s ruling on the constitutionality of a search or

       seizure, but we give deference to a trial court’s determination of the facts.

       Belvedere v. State, 889 N.E.2d 286, 287 (Ind. 2008). We do not reweigh the

       evidence, but consider conflicting evidence most favorable to the trial court’s

       ruling. Id. at 288.


[13]   The Fourth Amendment provides in relevant part, “the right of the people to be

       secure in their persons, houses, papers, and effects, against unreasonable

       searches and seizures, shall not be violated.” The amendment, as applied to the

       states through the Fourteenth Amendment, requires a warrant for a search to be


       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 5 of 16
       considered reasonable unless an exception to the warrant requirement applies.

       Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998). When a search is conducted

       without a warrant, the State has the burden of proving that the search falls into

       one of the exceptions to the warrant requirement. Meister v. State, 933 N.E.2d

       875, 878 (Ind. 2010).


[14]   One exception to the warrant requirement is a police inventory search of a

       vehicle following impoundment. Fair v. State, 627 N.E.2d 427, 430 (Ind. 1993).

       Impoundment is proper when it is part of law enforcement’s community

       caretaking function or is otherwise authorized by statute. Id. at 432. In this

       case, the State does not allege that the impoundment of the Aztek was justified

       by statute, and we must determine whether the seizure was permissible under

       law enforcement’s community caretaking function.


[15]   When impoundment is not specifically directed by statute, the risk increases

       that a decision to tow will be motivated solely by the desire to conduct an

       investigatory search. Id. at 433. To prevail on the question of whether an

       impoundment was warranted under the community caretaking function, the

       State must demonstrate that: (1) the belief that the vehicle posed some threat or

       harm to the community or was itself imperiled was consistent with objective

       standards of sound policing; and (2) the decision to combat that threat by

       impoundment was in keeping with established departmental routine or

       regulation. Id.




       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 6 of 16
[16]   In the current case, the IMPD’s policy on impounding vehicles and conducting

       inventory searches was admitted into evidence at trial. Detective McKalips

       explained that he impounded the vehicle pursuant to the department’s policy,

       specifically a provision that a vehicle may be impounded and towed if it is

       “operated by a non-licensed or suspended driver.” Tr. Vol. III, State’s Trial Ex.

       2, p. 2. He also noted the car was “not in a parking spot.” Tr. Vol. II, p. 70.

       The record reflects that Sansbury parked the car near an apartment building,

       one and a half to two feet from the curb, in an area where traffic drove through

       the complex. Tr. Vol. III, State’s Trial Ex. 1. The IMPD’s policy authorizes

       the towing of a vehicle that is causing “a traffic or other hazard.” Tr. Vol. III,

       State’s Trial Ex. 2, p. 2. Based upon these two reasons, we conclude the State

       established, for purposes of the Fourth Amendment, that the vehicle posed a

       threat of harm or was itself imperiled, and the decision to impound the car

       complied with established department regulations. See Ratliff v. State, 770

       N.E.2d 807, 810 (Ind. 2002) (decision to impound truck did not violate Fourth

       Amendment; truck was stopped in the middle of a parking lot, not in a space).


[17]   Sansbury cites to Taylor v. State, 842 N.E.2d 327 (Ind. 2006), in support of his

       claim that the decision to impound was improper, but that case is factually

       distinguishable. In that case, the Court concluded the car posed no hazard to

       public safety because it was parked “on the correct side of the parking lot,” in

       “a permissible parking area.” Id. at 332. In Sansbury’s case, the car was not

       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 7 of 16
       parked in a parking area, but rather was stopped in a road where traffic drove

       through the complex.


[18]   Sansbury also cites to Fair, 627 N.E.2d 427, but that case is distinguishable as to

       the issue of impoundment. In that case, the Indiana Supreme Court determined

       that the police erred in impounding the defendant’s car because it was “neatly

       parked” in an apartment complex and “did not impede traffic.” Id. at 433-34.

       By contrast, Sansbury’s car was parked one and a half to two feet from the curb,

       in the flow of traffic.


[19]   As further support for his challenge to the impoundment of his car, Sansbury

       points to testimony that: (1) the owner of the apartment complex permitted

       residents to park along the curb when the parking spots were full; and (2)

       Sansbury’s roommate had called Sansbury’s mother during the stop, and she

       appeared at the apartment complex during the stop and should have been

       allowed to move the car. This evidence was submitted at the suppression

       hearing, not at trial. Even if the evidence had been submitted at trial, it does

       not change the result. Regardless of where the owner of the complex permitted

       people to park under certain circumstances, the Aztek was still stopped in an

       area through which traffic drove. In addition, Detective McKalips had told

       Sansbury’s roommate he would release the car to Sansbury’s mother if she

       arrived before it was placed on the tow truck, but she did not meet that



       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 8 of 16
       deadline. We agree with the trial court that the decision to impound the vehicle

       did not violate the Fourth Amendment.


[20]   We reach a different conclusion as to the vehicle search that followed the

       decision to impound the Aztek. The State claims the search was a valid

       inventory search. To be reasonable under the Fourth Amendment, an

       inventory search must be conducted pursuant to standard police procedures. Id.

       at 435. The rationale for the inventory exception is threefold: (1) protection of

       private property in police custody; (2) protection of police against claims of lost

       or stolen property; and (3) protection of police from possible danger. Gibson v.

       State, 733 N.E.2d 945, 956 (Ind. Ct. App. 2000). An inventory search must not

       be a pretext for a general rummaging to discover incriminating evidence. Fair,

       627 N.E.2d at 435 (quotation omitted).


[21]   At the risk of stating the obvious, courts should keep in mind that such a search

       must be “designed to produce an inventory of the vehicle’s contents.” Id. at

       430. If an officer conducts an inventory search in compliance with valid

       protocol, the search may be constitutionally valid despite minor deviations from

       the policy. Sams v. State, 71 N.E.3d 372, 377-78 (Ind. Ct. App. 2017). Major

       deviations from an inventory search policy may give rise to an inference of

       pretext which the State must overcome. Id. at 378.




       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 9 of 16
[22]   In this case, the IMPD’s policy for impounding vehicles defines an inventory

       search as “conducting an administrative, routine and warrantless search of the

       passenger area (including the glove compartment), trunk, and closed containers,

       pursuant to lawfully towing a vehicle.” Tr. Vol. III, State’s Trial Ex. 2, p. 2.

       The policy further provides, in relevant part:

               IV. Inventory Searches
               NOTE: An inventory search should not be motivated by an
               officer’s desire to investigate and seize evidence of a criminal act.
               A. Whenever an officer takes a vehicle into custody, an
               inventory search will be conducted prior to impoundment and a
               detailed listing of any property found in the vehicle will be made.
               1. The vehicle inventory search will consist of searching the
               passenger compartment of the vehicle.
               2. If a key is available, or if unlocked, the glove compartment
               and trunk will also be searched.
               NOTE: Under NO circumstances should force be used to open
               either the glove compartment or trunk for an inventory search.
               3. All containers in the vehicle must be searched. Locked
               containers should not be forced open.
               ****
               B. All property discovered during an inventory search, including
               those found in closed containers, will be listed in the officer’s
               personal notebook.

       Id. at 5-6 (emphasis added).


[23]   In this case, the officers’ conduct deviated greatly from the requirements of the

       policy. Although Detective McKalips conceded the policy required an

       inventory “to insure [sic] that the valuables are accounted for,” Tr. Vol. II, p.
       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 10 of 16
       64, neither he nor Officer Johanningsmeier created a list of property found

       during the search of the Aztek. Officer Johanningsmeier filled out a tow slip for

       the tow truck, but she did not include a description of the vehicle’s contents,

       even though she testified it was her understanding that all property of value

       should be listed on the tow slip. The officers’ failure to produce a written

       inventory disserved two of the purposes of inventory searches: protection of

       private property in police custody and protection of police against claims of lost

       or stolen property.


[24]   Further, Detective McKalips’ focus on valuable items does not comport with

       the policy, which requires an inventory of all property found in the vehicle, not

       just items that the officer subjectively perceives to be valuable. The focus on

       “valuable” items undermines confidence in the validity of the inventory search.

       See Sams, 71 N.E.3d at 381 (finding inventory search invalid where the officer

       searched only for valuable items, but the official policy required an inventory of

       all items found in the vehicle).


[25]   Officer Johanningsmeier attempted to explain these deviations from the official

       policy by stating that after Detective McKalips found the guns, his efforts

       “turned into a search of the vehicle for evidence. It wasn’t an inventory search

       any more.” Tr. Vol. II, p. 101. An officer’s focus on contraband to the

       exclusion of personal items is an additional indication of pretext. See Fair, 627

       N.E.2d at 436 (inventory search deemed unreasonable where officer focused on
       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 11 of 16
       marijuana and a sawed-off shotgun). Officer Johanningmeier’s testimony,

       combined with the officers’ misinterpretation of the policy and their failure to

       generate a written inventory of all items found in the car, leads us to conclude

       that the inventory search was in essence a general investigatory search for

       contraband, and therefore unreasonable under the Fourth Amendment. See

       Sams, 71 N.E.3d at 382-83 (officers’ failure to comply with official policy

       governing inventory searches rendered search unreasonable).


[26]   The State argues that this Court has on several occasions determined that

       failure to produce a written inventory does not render an inventory search

       unreasonable, but the cases the State cites are distinguishable. In Weathers v.

       State, 61 N.E.3d 279 (Ind. Ct. App. 2015), a panel of this Court upheld a

       conviction for possession of a handgun without a license, determining an

       inventory search was valid even though the officer failed to write an inventory

       of the vehicle’s contents. The Court noted the defendant had told the officer

       prior to the search that there was a handgun in the car, and during the search

       the officer found the gun in the exact location the defendant had described.

       Under the circumstances of that case, the Court determined the lack of a written

       inventory was not dispositive. Id. at 289.


[27]   By contrast, in the current case neither McKalips nor Johanningsmeier asked

       Sansbury or his passenger about handguns or contraband in the Aztek prior to

       the search, and after the search Sansbury and the passenger professed not to
       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 12 of 16
       know that the guns and ammunition were in the car. These facts are sufficient

       to distinguish Weathers from the current case.


[28]   In Whitley v. State, 47 N.E.3d 640 (Ind. Ct. App. 2015), trans. denied, a panel of

       this Court determined that the failure to fill out an inventory of the vehicle’s

       items did not render the search unreasonable because, among other grounds, a

       technician took photographs of the vehicle’s interior, which provided a record

       of its contents in a different format. In the current case, there are no documents

       that provide a record of the Aztek’s contents other than the probable cause

       affidavit, and that document focuses on the contraband.


[29]   Finally, in Jackson v. State, 890 N.E.2d 11 (Ind. Ct. App. 2008), a panel of this

       Court determined that an inventory search was reasonable even though the

       arresting officer did not fill out an inventory report, because another officer on

       the scene filled out the report. In Sansbury’s case, none of the officers filled out

       such a report.


[30]   The State further claims that the search was a valid inventory search because

       the officers described some of the items in the probable cause affidavit and

       because an officer photographed the vehicle prior to it being towed. These

       claims are without merit because: (1) as noted above, the affidavit discussed

       only the guns and ammunition, plus a shirt under which one of the guns had

       been hidden; and (2) the photographs were not admitted into evidence, and we


       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 13 of 16
       may not speculate as to whether they are an adequate substitute for a written

       inventory. Having concluded that the search violated the Fourth Amendment,

       we must further conclude the trial court erred in admitting as evidence the

       handguns discovered during the search. We reverse Sansbury’s conviction for

       possession of a handgun without a license.


         III. Sufficiency of the Evidence – Driving While Suspended
[31]   Sansbury argues the State failed to prove he committed the offense of driving

       with a suspended license with a similar infraction within the previous ten years.

       The State does not dispute that Sansbury did not commit a similar infraction

       within the previous ten years but claims he is still guilty of an infraction of

       driving with a suspended license.


[32]   In reviewing a sufficiency of the evidence claim, we neither reweigh the

       evidence nor assess the credibility of the witnesses. Jennings v. State, 982 N.E.2d

       1003, 1005 (Ind. 2013). Rather, we look to the evidence and reasonable

       inferences that support the verdict and affirm the conviction if a rational trier of

       fact could have found the defendant guilty beyond a reasonable doubt. Id.


[33]   To establish a conviction for the offense, the State was required to prove beyond

       a reasonable doubt that: (1) Sansbury (2) operated a motor vehicle on a

       highway (3) knowing that his driving privileges, license, or permit had been

       suspended or revoked; and (4) had committed a similar violation less than ten

       years prior. Ind. Code § 9-24-19-2.


       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 14 of 16
[34]   In this case, Detective McKalips consulted his computer during the traffic stop

       on January 17, 2016. He determined at the time that Sansbury did not have a

       valid license, but by the time of the trial he did not “recall a specific denotation

       that [Sansbury] was not supposed to be driving a vehicle on that night.” Tr.

       Vol. II, p. 62. Sansbury’s official driving record was admitted into evidence at

       trial, but it fails to demonstrate that his license was suspended on January 17,

       2016. Instead, it shows Sansbury’s license was suspended from July 7, 2015

       through October 5, 2015, with the period of suspension ending well before the

       night of the traffic stop.


[35]   The State argues the suspension could have remained in effect as of January 17,

       2016, if Sansbury had failed to provide proof of insurance to the Bureau of

       Motor Vehicles at the scheduled end of the suspension period. This argument

       invites us to speculate as to evidence not in the record. The State further argues

       that Sansbury bore the burden of proving by a preponderance of the evidence

       that he had a valid license at the time of the alleged offense. The State is

       correct. Ind. Code § 9-24-19-7 (2015). Nevertheless, the Bureau of Motor

       Vehicle’s record for Sansbury, standing alone, demonstrates his suspension had

       come to an end by the time of the traffic stop, and there is no other evidence

       from which we may infer Sansbury’s license was not reinstated following the

       end of the suspension. The State failed to carry its burden of proof as to

       whether Sansbury’s license was suspended on the date in question, and we must

       reverse his conviction. See Frink v. State, 568 N.E.2d 535, 538 (Ind. 1991)

       (insufficient evidence to sustain conviction for driving with a suspended license


       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 15 of 16
       when defendant’s record showed the period of suspension had elapsed by the

       time of the traffic stop).


                                                 Conclusion
[36]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for further proceedings not inconsistent with this opinion.


[37]   Reversed and remanded.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1704-CR-793 | December 11, 2017   Page 16 of 16
