MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                             Mar 21 2019, 10:30 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael C. Borschel                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary Tindall,                                            March 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1487
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Barbar,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G02-1708-F5-31427



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019                  Page 1 of 16
                                                Case Summary

[1]   Gary Tindall appeals his conviction for carrying a handgun without a license, a

      Level 5 felony. We reverse and remand. 1


                                                       Issue

[2]   Tindall raises one issue on appeal, which we restate as whether the trial court

      abused its discretion by admitting evidence found during a warrantless search of

      Tindall’s vehicle.


                                                       Facts

[3]   On August 24, 2017, at approximately 3:00 a.m., Officer Justin Keehn with the

      Indianapolis Metropolitan Police Department was on Massachusetts Avenue,

      approaching the 34th Street and Arlington Avenue intersection when he

      observed a silver Chevy Tahoe run a red light. Officer Keehn initiated a traffic

      stop.


[4]   Before exiting his vehicle, Officer Keehn ran the license plate of the vehicle and

      determined that the vehicle was registered to Tindall and his mother. Officer

      Keehn approached Tindall’s vehicle on the driver’s side. Officer Keehn asked

      Tindall for his driver’s license; however, Tindall was only able to produce an

      Indiana identification card. Tindall was the sole occupant of the vehicle.




      1
        Oral argument was held in this matter on February 5, 2019, at Andrean High School in Merrillville. We
      thank counsel for their presentations and Andrean High School for its hospitality.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019                Page 2 of 16
[5]   Officer Keehn returned to his patrol car and ran Tindall’s information through

      the BMV database; he determined that Tindall’s driving status was suspended.

      While Officer Keehn was processing Tindall’s information, he observed Tindall

      reach across the car toward the glovebox for approximately thirty seconds to

      one minute. 2 Officer Keehn had not yet asked Tindall for his registration or

      insurance information. After observing Tindall’s movements toward the

      glovebox, Officer Keehn called for backup, and additional officers arrived

      shortly thereafter. Officer Keehn then asked Tindall to step out of his vehicle.


[6]   After Tindall exited his vehicle, Officer Keehn completed a pat down of

      Tindall. Officer Keehn then instructed Tindall to stand at the rear of Tindall’s

      vehicle, in front of Officer Keehn’s vehicle, with the other officers. Officer

      Keehn conducted a protective sweep of the inside front of Tindall’s vehicle.

      Because the glovebox was locked, Officer Keehn took the keys out of the

      ignition and unlocked the glovebox. 3 There, Officer Keehn located a nine

      millimeter handgun with an extended magazine. Tindall did not have a license

      for the firearm. After finding the firearm in the glovebox, Officer Keehn

      noticed a holster on the front passenger seat.




      2
        There is some discrepancy in the record, however, as Officer Keehn’s probable cause affidavit states that he
      saw Tindall reach towards the glovebox area when he first approached the vehicle.
      3
       Notably, Officer Keehn turned off the vehicle in order to access the glovebox; however, Officer Keehn
      could not recall whether Tindall turned off the vehicle while leaning over toward the glovebox.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019                    Page 3 of 16
[7]   Tindall was charged with Count I, carrying a handgun without a license, a

      Level 5 felony 4, and Count II, driving while suspended, a Class A

      misdemeanor.


[8]   Prior to trial, Tindall moved to suppress evidence of the handgun found in his

      vehicle, citing violations of the Fourth Amendment to the United States

      Constitution and Article 1, Section 11 of the Indiana Constitution. At the

      motion to suppress hearing, Officer Keehn provided additional information

      regarding the traffic stop. 5 Specifically, Officer Keehn stated he asked Tindall if

      there were any weapons inside the vehicle, which is a routine question for

      traffic stops. Tindall responded, “not. . . that [I know] of.” Motion to Suppress

      Tr. Vol. II p. 11. Officer Keehn testified he called for backup due to Tindall’s

      statement regarding the gun, and additional reasons including “the time of

      night, the area, [and Tindall’s license] being suspended.” Id. at 13.

      Furthermore, Officer Keehn stated: “I did look up a brief criminal history.

      Those all factored into me asking for a backup to get him out of the vehicle.”

      Id. Once Tindall was out of the vehicle, officers advised Tindall he was




      4
       Tindall was initially charged with carrying a handgun without a license as a Class A misdemeanor;
      however, because Tindall had been convicted of felony possession of cocaine in the preceding fifteen years,
      Tindall’s charge was increased to a Level 5 felony pursuant to Indiana Code Section 35-47-2-1(e)(2)(B).
      Tindall and the sentencing order both state the conviction is “felon carrying a handgun”; however, we will
      continue to refer to Tindall’s conviction as “carrying a handgun without [a] license,” as the statute does. See
      Appellant’s Br. p. 5; see also Appellant’s App. Vol. II p. 11. Tindall was not convicted under “unlawful
      possession of firearm by serious violent felon” pursuant to Indiana Code Section 35-47-4-5.
      5
          This additional evidence was not presented to the jury.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019                     Page 4 of 16
       detained before beginning the pat down of Tindall and the protective sweep of

       the vehicle.


[9]    Following the motion to suppress hearing, the trial court denied the motion and

       stated:


                 The officers testified that [Tindall] made a furtive motion. It was
                 three o’clock in the morning. [Officer Keehn] may have allowed
                 [Tindall] to get back in the car just if – if it was just a suspension.
                 And [Officer Keehn] did notice the – he said that he indicated the
                 brief criminal history of [Tindall], although he didn’t tell me
                 what that was, and so I really – I’m not considering that.


       Id. at 32.


[10]   At the jury trial, Tindall’s counsel renewed his objection regarding the officer’s

       discovery of the firearm on the same basis as the motion to suppress. Officer

       Keehn testified at the jury trial that, had he not found the firearm, he likely

       would have instructed Tindall not to operate the vehicle, but would have

       returned the vehicle to Tindall, and allowed him to leave with only a warning.


[11]   The jury found Tindall guilty of both Count I and Count II. 6 Tindall now

       appeals.




       6
        The jury only considered Count I as a Class A misdemeanor. Tindall admitted that he was convicted of
       possession of cocaine in 2015, and accordingly, Count I was enhanced to a Level 5 felony.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019               Page 5 of 16
                                                    Analysis

[12]   Tindall argues that the officer’s warrantless search of the vehicle and,

       specifically, the locked glovebox violated his rights under the Fourth

       Amendment to the United States Constitution and Article 1, Section 11 of the

       Indiana Constitution. Because Tindall appeals from a completed jury trial, the

       issue is more appropriately framed as whether the trial court properly admitted

       the evidence at trial. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). “The

       general admission of evidence at trial is a matter we leave to the discretion of

       the trial court.” Id. at 259-60. “We review these determinations for abuse of

       that discretion and reverse only when admission is clearly against the logic and

       effect of the facts and circumstances and the error affects a party’s substantial

       rights.” Id. at 260. “‘When an appellant’s challenge to such a ruling is

       predicated on an argument that impugns the constitutionality of the search or

       seizure of evidence, it raises a question of law, and we consider that question de

       novo.’” Negash v. State, 113 N.E.3d 1281, 1288 (Ind. Ct. App. 2018) (quoting

       Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014)).


                                             A. Fourth Amendment

[13]   Tindall first argues that the officer’s warrantless search of the locked glovebox

       violated his rights under the Fourth Amendment to the United States

       Constitution. The Fourth Amendment to the United States Constitution

       protects citizens against unreasonable searches and seizures by prohibiting them

       without a warrant supported by probable cause. U.S. Const. amend. IV. “The

       fundamental purpose of the Fourth Amendment to the United States

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 6 of 16
       Constitution is to protect the legitimate expectations of privacy that citizens

       possess in their persons, their homes, and their belongings.” Taylor v. State, 842

       N.E.2d 327, 330 (Ind. 2006).


[14]   This protection has been “extended to the states through the Fourteenth

       Amendment.” Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). “As a deterrent

       mechanism, evidence obtained in violation of this rule is generally not

       admissible in a prosecution against the victim of the unlawful search or seizure

       absent evidence of a recognized exception.” Clark, 994 N.E.2d at 260. “When

       a search is conducted without a warrant, the State has the burden of proving

       that an exception to the warrant requirement existed at the time of the search.”

       Bradley, 54 N.E.3d at 999. “The ‘touchstone of the Fourth Amendment is

       reasonableness,’ and reasonableness is measured in objective terms by

       examining the totality of the circumstances.” Rush v. State, 881 N.E.2d 46, 50

       (Ind. Ct. App. 2008) (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417

       (1996)).


[15]   Officer Keehn stated he discovered the firearm while conducting a “protective

       sweep.” Tr. Vol. II p. 14. The protective sweep exception to the warrant

       requirement “applies in circumstances that ‘include risk of bodily harm or

       death, aiding a person in need of assistance, protecting private property, or

       actual or imminent destruction or removal of evidence before a search warrant

       may be obtained.’” Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008)

       (quoting Harless v. State, 577 N.E.2d 245, 248 (Ind. Ct. App. 1991)). More

       specifically, “an officer with a reasonable suspicion that a motorist is dangerous

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 7 of 16
       and may be able to gain immediate control of weapons may conduct a

       protective search of the passenger compartment of the vehicle without a

       warrant.” Parish v. State, 936 N.E.2d 346, 349 (Ind. Ct. App. 2010) (citing

       Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S. Ct. 3469 (1983)).


[16]   Tindall argues that the protective sweep was improper under the Fourth

       Amendment because officers had already detained Tindall, which “alleviat[ed]

       any Officer Safety concerns supporting the decision to search the vehicle[.]”

       Appellant’s Br. p. 13. Tindall also argues that it was reasonable to believe that

       Tindall was extracting his registration and other paperwork from the glovebox

       when Officer Keehn observed this furtive movement, citing Anderson v. State, 64

       N.E.3d 903 (Ind. Ct. App. 2016). In Anderson, Anderson was pulled over by an

       officer after the officer ran Anderson’s license plate and discovered that

       Anderson’s driving privileges were suspended and that Anderson had an

       outstanding warrant for strangulation. Anderson, 64 N.E.3d at 904. Once the

       officer determined Anderson was indeed the driver, the officer instructed

       Anderson to step out of the vehicle. Id. Anderson did so after removing his

       jacket, which seemed unusual to the officer. Id. The officer handcuffed

       Anderson, then returned to Anderson’s car and searched it before it was towed.

       Id. When the officer picked up Anderson’s jacket, he noticed it was heavy and

       found a loaded handgun in the pocket. Id. Anderson did not have a license to

       carry the handgun. Id.


[17]   A panel of our court concluded that the search was unlawful under the Fourth

       Amendment. The Anderson court concluded that “the search of a passenger

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 8 of 16
       compartment of a car, incident to the arrest of the car’s driver and sole

       occupant, was not justified when the driver ‘could not have accessed his car to

       retrieve weapons or evidence at the time of the search.’” Id. at 906 (citing

       Arizona v. Gant, 556 U.S. 332, 335, 129 S. Ct. 1710 (2009)).


[18]   The State argues here that Officer Keehn articulated many reasons for the

       protective sweep, including: (1) the late hour; (2) the location; (3) Tindall’s

       “suspicious response” to the inquiry about whether weapons were in the

       vehicle; (4) Tindall’s suspended driving status; and (5) Tindall’s movements

       toward the glovebox. Appellee’s Br. p. 12. The State argues the protective

       sweep was necessary because Officer Keehn wanted to “look[] for weapons that

       could harm [him] if [he] put [Tindall] back in the vehicle.” Id.


[19]   Based on the facts of this case, we agree with Tindall that the warrantless search

       of the glovebox was not justified. Tindall was out of the vehicle and standing

       with the other officers who had arrived on the scene when Officer Keehn

       searched Tindall’s vehicle. Officer Keehn had already conducted a pat down of

       Tindall and determined that Tindall did not have any weapons on his person.

       While the State contends that Officer Keehn needed to conduct a protective

       sweep because he planned to return the vehicle to Tindall, under this factual

       scenario, a protective sweep was not lawful. Officer Keehn testified that he was

       not going to allow Tindall to drive the vehicle due to Tindall’s suspended

       driver’s license. Based on these facts, a protective sweep of the locked glovebox

       was not permissible because the locked glovebox was not easily accessible, and

       Tindall could not have gained immediate control of the weapon.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 9 of 16
[20]   The State relies on Parish v. State, 936 N.E.2d 346 (Ind. Ct. App. 2010). In

       Parish, Parish, who was believed to be involved in a recent shooting, failed to

       use his turn signal while turning his car. Parish, 936 N.E.2d at 347-48. After

       recognizing Parish, the officer who initiated the traffic stop called for backup,

       approached the vehicle, and instructed Parish to step out of the vehicle. Id. at

       348. Parish, whom officers believed to be armed, did not initially comply, but

       he eventually exited the vehicle. Id. Officers then handcuffed Parish and patted

       him down. Id. Simultaneously, another officer searched “wherever [she] could

       reach” in Parish’s vehicle. Id. Officers tried to open the glovebox, which was

       locked. Id. “Immediately” and “without even thinking,” the officer pulled the

       key from the ignition and unlocked the glovebox. Id. There, officers found a

       firearm. Id. Subsequently, for some unknown reason, officers only confiscated

       the firearm, wrote Parish a citation for the traffic violation, and allowed Parish

       to drive away. Id.


[21]   A panel of our court concluded that the search of the glovebox did not violate

       the Fourth Amendment, because:


               At the time of the traffic stop, Parish was a suspect in several
               shootings, including a homicide, and the police were on high
               alert that Parish was armed. Indeed, a “gang unit” officer had
               warned other officers that Parish had threatened to kill the next
               police officer he encountered and was even taking drugs in
               preparation for a shootout with the police. In addition, when
               Officer Foster first approached Parish’s car and told him to step
               out of the vehicle, Parish did not immediately comply. He
               instead asked Officer Foster why she did not want to see his
               driver’s license and registration. Only when Officer Foster

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 10 of 16
               explained to Parish that she knew who he was and again told
               him to step out of the car did he slowly take off his seat belt and
               exit the car.


       Id. at 350. The panel found that a reasonably prudent person in the officer’s

       position would believe her safety was in danger, and the officer was “therefore

       justified in searching the passenger compartment of Parish’s car, limited to

       those areas in which a weapon might be placed or hidden.” Id.


[22]   The circumstances of this case are starkly different to the facts in Parish. Unlike

       Parish, Tindall was not a person officers knew to be armed and dangerous.

       Further, Parish did not want to comply with the officers’ instructions, whereas

       here, there is no evidence that Tindall did not comply with the officers’

       instructions. Moreover, Officer Keehn had an independent basis to arrest

       Tindall because Tindall was driving without a license.


[23]   As the State articulated at the oral argument, the protective sweep led to the

       arrest as the outcome of the traffic stop. After identifying the events that Officer

       Keehn articulated as constituting reasonable suspicion, Officer Keehn could

       have arrested Tindall for his driving without a license violation, impounded the

       vehicle, and performed an inventory search. Instead, Officer Keehn appeared

       to simply conduct a search under the purview of a protective sweep in order to

       discover evidence of criminal activity. The State may not now justify the

       warrantless search based on the alleged need for a protective sweep. See State v.

       Estep, 753 N.E.2d 22, 28 (Ind. Ct. App. 2001) (affirming the trial court’s finding

       that the protective sweep “exceeded the spirit of the limited grant to search”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 11 of 16
[24]   The facts of this case are also starkly different from other opinions of this court,

       or our Supreme Court, where a protective sweep was found to be reasonable.

       See Taylor v. State, 929 N.E.2d 912, 920 (Ind. Ct. App. 2010) (finding a

       protective sweep of a home valid when officers responded to a call that three

       juveniles had fired a shot and one of the boys exclaimed, “it wasn’t us with the

       gun,” indicating another person may be inside the home), trans. denied; see also

       Weddle v. State, 989 N.E.2d 371, 377 (Ind. Ct. App. 2013) (finding the protective

       sweep of the home permissible when officers believed more than one person

       was hiding in the back of the home, concluding that “police officers may search

       rooms that are not immediately adjacent to the area of arrest when there is

       reasonable suspicion that the rooms might contain a person who is hiding and

       may jeopardize officer safety”), trans. denied.


[25]   The contents of the locked glovebox were not immediately accessible to Tindall

       and, therefore, not within the bounds of a protective sweep. See Merchant v.

       State, 926 N.E.2d 1058, 1065 (Ind. Ct. App. 2010) (finding that, in a protective

       sweep as part of a search incident to arrest, the officers’ protective sweep of the

       passenger compartment was within the bounds of the Fourth Amendment

       because “Merchant was within reaching distance of the passenger compartment

       of the vehicle”), trans. denied. Accordingly, we find that the search was

       impermissible under the Fourth Amendment, and thus, the trial court abused its

       discretion in admitting the evidence found during the illegal search.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 12 of 16
                                            B. Indiana Constitution

[26]   Tindall also challenges the search as improper under Article 1, Section 11 of the

       Indiana Constitution. The language of Article 1, Section 11 tracks the Fourth

       Amendment; however, “Indiana has explicitly rejected the expectation of

       privacy as a test of the reasonableness of a search or seizure.” Litchfield v. State,

       824 N.E.2d 356, 359 (Ind. 2005). Instead, the legality of a search “turns on an

       evaluation of the reasonableness of the police conduct under the totality of the

       circumstances.” Id. Reasonableness is determined by balancing: (1) the degree

       of concern, suspicion, or knowledge that a violation has occurred; (2) the degree

       of intrusion imposed by the search; and (3) the extent of law enforcement

       needs. Id. at 361. In other words, “[a]lthough its text mirrors the federal

       Fourth Amendment, we interpret Article 1, Section 11 of our Indiana

       Constitution separately and independently.” State v. Crager, 113 N.E.3d 657,

       663 (Ind. Ct. App. 2018), trans. denied.


[27]   Tindall argues that, applying the Litchfield factors, the warrantless search was

       improper; we agree. First, the degree of concern, suspicion, or knowledge that

       a violation had occurred was low. It is reasonable to believe that Tindall was

       reaching for his registration information, even if Officer Keehn had not yet

       asked for this information. Further, Tindall’s response regarding whether

       weapons were in the vehicle was not necessarily objectively suspicious,

       considering that Tindall was not the sole owner of the vehicle. Officer Keehn

       testified that he was aware that Tindall was not the sole owner of the vehicle,



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 13 of 16
       and that Tindall’s mother was also listed on the vehicle’s registration

       information. This first factor weighs against the legality of the search.


[28]   The degree of intrusion was high. The glovebox was locked, and the keys were

       in the ignition. Officer Keehn had to turn off the vehicle in order to access the

       key to the glovebox and then unlock the glovebox before searching it. See Conn

       v. State, 89 N.E.3d 1093, 1098 (Ind. Ct. App. 2017) (“Our courts have

       consistently held that when Indiana citizens put mechanisms in place to keep

       others out, ignoring these obstructions constitutes highly intrusive conduct by

       law enforcement.”) (citing Carpenter v. State, 18 N.E.3d 998, 1002 (Ind. 2014)),

       trans. denied. Officer Keehn also turned off Tindall’s vehicle in order to access

       the keys to open the locked glovebox. Accordingly, the degree of intrusion was

       high, and this factor weighs against the legality of the search.


[29]   Finally, with regard to law enforcement needs, we believe the need at the time

       of the protective sweep was minimal. Tindall was outside the vehicle, had been

       patted down, and was standing with other officers at the time of the protective

       sweep. Tindall was not near the locked glovebox; nor did Tindall have any

       access to the locked glovebox at that time. Tindall would not have been able to

       quickly access the locked glovebox under these circumstances, and no longer

       posed any potential threat to officer safety. As noted above, if officers believed

       Tindall to still be a threat based on the contents of the vehicle, officers could

       have arrested Tindall prior to the search for driving without a license. Officers’

       failure to do so points to the conclusion that law enforcement’s need to search



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 14 of 16
       the locked glovebox was minimal, and this factor weighs against the legality of

       the search.


[30]   We understand that Officer Keehn had several factors to consider when he

       pulled Tindall over at 3:00 a.m. in a high crime area. We also understand

       Officer Keehn’s hesitation with regard to Tindall reaching towards the glovebox

       without being asked for his registration information. Still, on balance, the

       Litchfield factors weigh in favor of finding that the warrantless search was not

       justified. The record shows that, of the specific facts Officer Keehn pointed to

       in support of his decision to conduct a protective sweep, Officer Keehn was

       aware of at least three of the factors before returning to his patrol car. Officer

       Keehn also left Tindall in the car for the “[m]aybe three minutes” it took other

       officers to arrive, even after Officer Keehn had observed Tindall reaching

       towards the glovebox. Tr. Vol. III p. 60.


[31]   In other words, Officer Keehn decided to leave Tindall in his vehicle despite the

       factors Officer Keehn later used to justify the warrantless search of Tindall’s

       vehicle. Moreover, Tindall was the sole occupant of the vehicle and was not

       near the locked glovebox at the time of the search. Accordingly, the totality of

       the circumstances demonstrate that the search was impermissible under Article

       1, Section 11 of the Indiana Constitution, and thus, the trial court abused its

       discretion in admitting the evidence found during the illegal search.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 15 of 16
                                                  Conclusion

[32]   The warrantless search of Tindall’s locked glovebox was impermissible under

       the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.

       The trial court, therefore, abused its discretion in admitting evidence found

       during the impermissible search. Accordingly, we reverse and remand.


[33]   Reversed and remanded.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1487 | March 21, 2019   Page 16 of 16
