                                                                          FILED
                                                                      Jan 25 2019, 5:31 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                        Attorney General of Indiana

                                                           Jesse R. Drum
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Morgan K. Govan,                                           January 25, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-708
        v.
                                                           Appeal from the Allen Superior
                                                           Court
State of Indiana,
                                                           The Honorable John F. Surbeck,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           02D05-1609-F3-53



Barteau, Senior Judge.




Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019                           Page 1 of 23
                                              Statement of the Case
[1]   Morgan K. Govan appeals his conviction of possession of cocaine or narcotic
                                          1
      drug, a Level 4 felony; and the trial court’s determination that he is an habitual
                       2
      offender. Govan also appeals his sentence. We affirm.


                                                      Issues
[2]   Govan raises three issues, which we restate as:


                 I.        Whether the trial court erred in admitting into evidence
                           the heroin that officers found on Govan after his arrest.


                 II.       Whether the trial court abused its discretion during
                           sentencing.


                 III.      Whether Govan’s sentence is inappropriate in light of the
                           nature of the offenses and the character of the offender.


                                   Facts and Procedural History
[3]   On August 29, 2016, Detective Chris Crapser of the Fort Wayne Police

      Department was dispatched to a hospital to interview Stacey Cook. He noted

      that Cook had several serious injuries. Cook told the detective that Govan had

      driven her to his house at 2244 Chestnut Street in Fort Wayne, where he had

      tied her up and struck her repeatedly with his fists, his feet, and a hammer. She




      1
          Ind. Code § 35-48-4-6 (2014).
      2
          Ind. Code § 35-50-2-8 (2015).


      Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019              Page 2 of 23
      further told Detective Crapser that Govan had said that he was going to kill her.

      Cook explained that another woman had also been in the house. According to

      Cook, Govan had also beaten the other woman, but she escaped. Cook’s

      mother, Pamela Cook, gave Govan’s cellular phone number to the detective.

      Govan had attempted to contact Cook or Pamela through Facebook while

      Cook was still in the hospital.


[4]   Detective Crapser next learned the second victim’s name was Destinee Prater.

      A woman claiming to be Prater’s grandmother had called 911 on August 29,

      2016, to report that Prater was being held against her will at 2244 Chestnut

      Street. That afternoon, officers were dispatched to that address to investigate

      the report. The officers were told a woman might be restrained and injured at

      that location. They determined that one of the house’s windows was broken,

      apparently from the inside. The officers shouted into the window and knocked

      on the front door, but no one responded. They entered the residence and

      searched. No one was present, but the officers found a pool of what appeared

      to be blood in the basement, along with electrical cords that appeared to have

      been used to tie someone up.


[5]   Meanwhile, Detective Crapser had asked Detective Matthew Foote to assist

      him with the investigation. After talking with Detective Crapser about the case,

      Detective Foote worked with Detective David Wilkins to prepare a search

      warrant affidavit for real-time data on the location of Govan’s cellular phone.

      The detectives faxed the affidavit and related documents to Sprint, which was

      Govan’s cellular phone service provider, on August 29, 2016, at 8:27 p.m. The

      Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019     Page 3 of 23
      detectives asked Sprint for an “emergency or exigent ping,” or approximate fix

      on the current location of Govan’s phone. Tr. Vol. 2, p. 65. A Sprint employee

      reviewed the warrant and sent the requested information to Detective Foote.


[6]   Based on the cellular phone “pings” and other information identifying Govan’s

      truck, Detective Foote and several other officers found Govan on August 29,

      2016, at 10:15 p.m. at a motel in Fort Wayne. They approached Govan as he

      sat in his truck, ordered him out of the truck, and took him into custody.

      Detective Foote searched Govan after his arrest and found a clear plastic baggie

      in his pants pocket. The baggie contained a powdery substance. Field testing

      showed a positive result for the presence of heroin, a controlled substance.

      Subsequent testing revealed the heroin weighed 13.32 grams.


[7]   Later that evening, Detective Crapser questioned Prater at the hospital after

      talking with her by phone. She was also badly injured, showing signs of having

      been beaten.


[8]   On September 2, 2016, officers filed a search warrant affidavit with the trial

      court. The warrant was the same document that the detectives had submitted

      to Sprint on August 29, 2016. The court determined there was probable cause

      to believe that real-time tracking of Govan’s cellular phone would obtain

      information that was “relevant and material to an ongoing criminal

      investigation.” Tr. Ex. Vol., Trial Exhibits, Defendant’s Ex. C.


[9]   The State charged Govan with two counts of criminal confinement, both Level

      3 felonies, one for Cook and one for Prater; one count of possession of cocaine

      Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019      Page 4 of 23
       or narcotic drug, a Level 4 felony; one count of kidnapping, a Level 5 felony,

       for Cook; two counts of battery, both Level 5 felonies, one for Cook and

       another for Prater; and intimidation, a Level 6 felony, for Cook. The State

       further alleged that Govan was an habitual offender. Later, during plea

       agreement negotiations, the State added two counts of criminal confinement,
                                      3
       both Level 6 felonies, one for Cook and one for Prater.


[10]   Govan filed a motion to suppress evidence but later withdrew it. He then

       refiled the motion to suppress, along with a motion to dismiss. The trial court

       denied his motions after a hearing. Govan asked the court to certify its ruling

       for discretionary interlocutory review, but the court denied his request.


[11]   Next, Govan and the State negotiated a partial plea agreement. Govan agreed

       to plead guilty to two counts of confinement, both Level 6 felonies, for his acts

       involving Cook and Prater. The parties agreed Govan would receive a sentence

       of two years and 183 days on one count of confinement and two years on the

       other count, to be served consecutively. Govan explicitly retained his right to

       be tried on the charge of possession of cocaine or narcotic drug and the habitual

       offender enhancement. The State agreed to dismiss the other charges.


[12]   Govan waived his right to a jury trial on the possession charge and the

       sentencing enhancement. A bench trial was held, and the trial court




       3
           Ind. Code § 35-42-3-3 (2014).


       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019         Page 5 of 23
       determined Govan was guilty of possession of cocaine or narcotic drug as a

       Level 4 felony and was an habitual offender.


[13]   At sentencing, the court followed the parties’ partial plea agreement and

       imposed two years and 183 days on one count of confinement, and two years

       on the second count. The court further sentenced Govan to six years for the

       charge of possession of cocaine or narcotic drug, enhanced by twenty years for

       the habitual offender sentencing enhancement, for a total of twenty-six years.

       The court ordered Govan to serve the sentences for the three felony convictions

       consecutively, resulting in an aggregate sentence of thirty years and 183 days.

       This appeal followed.


                                     Discussion and Decision
                               I. Admission of Evidence – Heroin
[14]   Govan claims the trial court should not have admitted into evidence the heroin

       that Detective Foote found on him after his arrest. Govan frames the issue as

       whether the court should have granted his motion to suppress. Because the

       case proceeded to trial, his claim is more appropriately considered as a request

       to review the court’s admission of the evidence at trial. Guilmette v. State, 14

       N.E.3d 38, 40 (Ind. 2014).


[15]   The admission of evidence at trial is a matter left to the discretion of the court.

       Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). We review the court’s

       decision for abuse of that discretion and reverse only if admission is clearly

       against the logic and effect of the facts and circumstances, and the error affects a

       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019        Page 6 of 23
       party’s substantial rights. Id. We consider any conflicting evidence in favor of

       the court’s ruling, and we also consider any uncontested evidence favorable to

       the defendant. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans.

       denied. We employ a de novo standard when reviewing the court’s ultimate

       determinations of probable cause and other constitutional claims. Id.


[16]   Govan argues the trial court should not have admitted the heroin into evidence

       because the police violated his federal and state constitutional protections

       against unreasonable search and seizure by: (1) asking Govan’s cellular phone

       service provider to provide real-time location data for his phone; and (2)

       arresting Govan, allegedly without probable cause. We address each issue in

       turn.


                                  A. “Pinging” Govan’s Cellular Phone

[17]   Govan argues the police lacked sufficient grounds to ask his cellular phone

       service provider to provide “pings” that revealed the location of his cellular

       phone in real time. He further contends the police failed to comply with the

       requirements of the governing statute. Finally, Govan concludes these errors

       violated his state and federal constitutional rights. With respect to the Indiana

       Constitution, Govan fails to provide a separate, cogent analysis, citing only one

       case on this claim without elaboration. Appellant’s Brief, p. 28. We deem the

       Indiana constitutional claim waived on this point and focus on his federal

       constitutional claim. See Myers v. State, 839 N.E.2d 1154, 1158 (Ind. 2005)

       (choosing not to address Indiana constitutional claim; appellant failed to

       present an argument separate from his federal constitutional claim).
       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019       Page 7 of 23
[18]   The Fourth Amendment 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.


[19]   The Fourth Amendment protects against government intrusions into areas and

       items for which people have a reasonable “expectation of privacy.” Carpenter v.

       U.S., __ U.S. __, 138 S. Ct. 2206, 2213, 201 L. Ed. 2d 507 (2018). An official

       intrusion into such private areas generally qualifies as a search and requires a

       warrant supported by probable cause. Id.


[20]   In this case, Govan argues that he “enjoys a reasonable and legitimate

       expectation of privacy in the location data stored by his cellular telephone

       provider.” Appellant’s Br. p. 25. The State does not necessarily agree,

       correctly noting that the United States Supreme Court has never decided that

       issue. In Carpenter, the Supreme Court stated a defendant had a reasonable

       expectation of privacy in historical cell-site location records but explicitly

       declined to extend its ruling to “real-time” cellular phone location techniques.

       Id. at 2220. In addition, neither party points us to an Indiana Supreme Court

       decision on this point, and we have not located one. In any event, for purposes

       of this opinion we assume Govan had a reasonable expectation of privacy in his

       real-time cellular phone location data.



       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019         Page 8 of 23
[21]   The police did not obtain a court-issued search warrant before seeking Govan’s

       cellular phone location data, but that is not the end of the analysis. Govan

       concedes that, among other exceptions to the Fourth Amendment’s warrant

       requirement, exigent circumstances may “permit police officers to conduct an

       otherwise permissible search without first obtaining a warrant.” Kentucky v.

       King, 563 U.S. 452, 455, 131 S. Ct. 1849, 1853-54, 179 L. Ed. 2d 865 (2011).

       “One exigency obviating the requirement of a warrant is the need to assist

       persons who are seriously injured or threatened with such injury.” Brigham

       City, Utah v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650

       (2006). The Indiana Supreme Court has similarly stated exigent circumstances

       may include “threats to the lives and safety of officers and others and the

       imminent destruction of evidence.” Holder v. State, 847 N.E.2d 930, 937 (Ind.

       2006).


[22]   The General Assembly has codified a procedure for law enforcement agencies

       to obtain real-time cellular phone location data under exigent circumstances.

       Indiana Code section 35-33-5-12 (2014) provides:


                (a) A law enforcement officer or law enforcement agency may
                not use a real time tracking instrument that is capable of
                obtaining geolocation information concerning a cellular device
                connected to a cellular network unless:


                (1) the law enforcement officer or law enforcement agency has
                obtained an order issued by a court based upon a finding of
                probable cause to use the tracking instrument; or



       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019       Page 9 of 23
               (2) exigent circumstances exist that necessitate using the tracking
               instrument without first obtaining a court order.


               (b) If a law enforcement officer or law enforcement agency uses a
               real time tracking instrument described in subsection (a) based
               upon the existence of exigent circumstances, the law enforcement
               officer or law enforcement agency shall seek to obtain an order
               issued by a court based upon a finding of probable cause not later
               than seventy-two (72) hours after the initial use of the real time
               tracking instrument.


[23]   Govan does not claim that Indiana Code section 35-33-5-12 violates the Fourth

       Amendment by allowing officers to obtain real-time cellular phone location

       data without first obtaining a court-ordered warrant. He instead claims that

       under the circumstances of this case, exigent circumstances did not exist for

       purposes of both the Fourth Amendment and the statute.


[24]   On August 29, 2016, Detective Crapser interviewed Stacey Cook at a hospital.

       Cook told the detective that Govan had restrained her in his basement and beat

       her with his hands, feet, and a hammer. Govan had also threatened to kill her.

       In addition, Govan had restrained a second woman in his basement, and he

       beat and injured her until she managed to escape. Detective Crapser soon

       learned the second victim’s name was Destinee Prater. In the meantime,

       officers had entered Govan’s house on Chestnut Street and found blood in the

       basement. They also found cords that had apparently been used to bind people.


[25]   Detective Crapser asked Detective Foote to obtain current location data for

       Govan’s cellular phone. At that time, Detective Crapser believed both Cook


       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019      Page 10 of 23
       and Prater were still in danger of harm from Govan. Cook was in the hospital

       but not under guard, and Detective Crapser was unsure of Prater’s location.

       Detective Crapser relayed information to Foote, who worked with Detective

       Wilkins to prepare a “search warrant affidavit” to be submitted to Sprint and,

       later, the trial court. Tr. Ex. Vol., Trial Exhibits, Defendant’s Ex. B.


[26]   In the affidavit, Detective Wilkins stated Govan was suspected of restraining

       Cook and Prater in his basement and brutally beating them for forty-five

       minutes, resulting in severe injuries until Prater escaped. The affidavit further

       stated Cook’s mother, Pamela, had given Govan’s phone number to Crapser at

       the hospital. Pamela indicated she was frightened for her life and Cook’s life

       because Govan knew where they lived. Pamela further told Crapser that

       Govan had tried to contact her or Cook via Facebook after Cook had arrived at

       the hospital.


[27]   Detective Wilkins further stated in the affidavit that knowing the location of a

       suspect’s cell phone when violent crimes are involved “is often needed to

       safeguard the public and to prevent the intimidation of witnesses . . . .” Id. He

       faxed the search warrant affidavit to Sprint with a cover sheet describing the

       request as “exigent phone locate.” Tr. Ex. Vol., Trial Exhibits, Defendant’s Ex.

       A. He also enclosed a signed “Stored Communication, GPS/Ping Emergency

       Request Form,” on which he stated: “Person in possession of phone held 2

       women hostage. He beat one victim with a hammer and kicked and punched

       her. Threatened to kill family [and] he knows where her family lives.” Id. The

       form included the following certification: “I hereby certify on behalf of the

       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019        Page 11 of 23
       above-mentioned [law enforcement agency] that an emergency involving

       danger of death or serious physical injury to any person exists and requires

       disclosure without delay of communications related to the emergency.” Id.


[28]   At the suppression hearing, Detective Foote testified that exigent grounds

       existed because Govan was likely aware that one or both victims was at the

       hospital, and “[w]e often times have people show up at hospitals in [sic] looking

       for the victims.” Tr. Vol. 1, p. 110. When the detectives prepared the search

       warrant affidavit, they did not know Prater’s location, and Detective Foote was

       concerned for her safety. Detective Foote was also aware Govan had used a

       deadly weapon to attack Cook. Finally, Detective Foote noted that in these

       situations, Sprint makes an independent determination about whether the

       situation is exigent and does not merely rubber-stamp a police officer’s request.


[29]   Under these circumstances, the police had ample reason to believe that Govan

       had committed violent felonies and presented an ongoing threat to the lives and

       safety of Cook, Prater, and their families. They had further reason to believe

       that obtaining real-time data about the location of Govan’s cellular phone

       would assist them in finding him and furthering their investigation. These were

       sufficiently exigent circumstances under Indiana Code section 35-33-5-12(a)(2)




       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019     Page 12 of 23
       and the Fourth Amendment to justify obtaining real-time phone location
                                                                          4
       information without first seeking a court order.


[30]   As an additional claim of error, Govan notes that Indiana Code section 35-33-

       5-12(b) requires officers to file the search warrant affidavit with a trial court not

       later than seventy-two hours after they have obtained cellular phone location

       information under exigent circumstances. Govan claims, and the State

       concedes, that in this case the police failed to timely comply with subsection

       (b). The officers filed their search warrant affidavit one day late, on September

       2. Govan claims the State’s violation of the statute must result in the exclusion

       of the heroin from evidence.


[31]   We cannot condone the officers’ failure to comply with statutory mandates.

       Regardless, Indiana Code section 35-33-5-12 does not mandate the suppression

       or exclusion of evidence for the State’s noncompliance with its requirements.

       Further, it is unclear whether the statutory violation or the one-day delay

       violated Govan’s Fourth Amendment rights. Some constitutional errors do not

       require a new trial if the error was harmless beyond a reasonable doubt.

       Williams v. State, 715 N.E.2d 843, 847 (Ind. 1999) (quotation omitted).

       Moreover, Govan does not allege he was harmed by the one-day delay. The

       trial court determined that the affidavit provided probable cause to seek real-




       4
         A panel of this Court recently determined that, under the circumstances of a different case, there were
       sufficient exigent circumstances for the police to have obtained real-time location data for a suspect’s cellular
       phone without first obtaining a warrant. Johnson v. State, ___ N.E.3d ___, Cause No. 27A02-1712-CR-2958
       (Ind. Ct. App. Dec. 21, 2018).

       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019                                 Page 13 of 23
       time location date for Govan’s cellular phone. In addition, there is no

       indication that the delay hindered Govan’s ability to challenge the affidavit

       after charges were filed. We conclude the State’s one-day delay was harmless

       error that did not require the exclusion of the heroin from evidence.


                                         B. Probable Cause for Arrest

[32]   Govan claims Detective Foote lacked sufficient information to arrest him on

       the night of August 29, 2016, and the arrest violated his rights under the Fourth

       Amendment and article 1, section 11 of the Indiana Constitution.


[33]   Starting with the Fourth Amendment, a warrantless arrest is permissible under

       that constitutional provision when, at the time of the arrest, the arresting officer

       has probable cause to believe the defendant committed a felony. Armour v.

       State, 762 N.E.2d 208, 215 (Ind. Ct. App. 2002), trans. denied. “Probable cause

       exists where the facts and circumstances within the officers’ knowledge are

       sufficient in themselves to warrant a person of reasonable caution to believe that

       the person being arrested has committed or is in the process of committing an

       offense.” Heffner v. State, 530 N.E.2d 297, 300 (Ind. 1988). Information

       obtained by one officer may be relied upon by other law enforcement officials

       who are called upon to assist in the investigation and arrest of a suspect, if the

       officer who obtained the information possessed probable cause to make the

       arrest. Id. The amount of evidence needed to meet the probable cause

       requirement is determined on a case-by-case basis. Armour, 762 N.E.2d at 215.




       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019       Page 14 of 23
[34]   In this case, Detective Foote did not speak directly with Cook or Prater, but he

       spoke with Detective Crapser “several times throughout the evening” of August

       29, 2016. Tr. Vol. 2, p. 60. Detective Crapser told Detective Foote that Govan

       was a potential suspect in a “Battery Confinement” incident. Id. at 50. In

       addition, Detective Foote had helped to prepare the affidavit that the officers

       sent to Sprint on August 29, 2016, using information provided by Detective

       Crapser. The affidavit was admitted into evidence at trial and is evidence of the

       information that Detective Crapser shared with Detective Foote. In the

       affidavit, Detective Wilkins, with Detective Foote’s assistance, described in

       detail how Govan had restrained and beaten Cook and Prater.


[35]   Under these facts and circumstances, a person of reasonable caution in

       Detective Foote’s position, based on information provided by Detective

       Crapser, could have concluded that Govan had committed felony offenses of

       confinement and battery. Detective Foote justifiably relied on Detective

       Crapser’s information in making the arrest. See Heffner, 530 N.E.2d at 300

       (officer had probable cause to arrest Heffner; the officer received information

       from other officers stating that Heffner was a suspect in a murder).


[36]   Turning to article I, section 11 of the Indiana Constitution, it provides:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.

       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019      Page 15 of 23
[37]   We consider the legality of a search or seizure under that provision according to

       the totality of the circumstances. Richard v. State, 7 N.E.3d 347, 350 (Ind. Ct.

       App. 2014), trans. denied. We balance: (1) the degree of concern, suspicion, or

       knowledge that a violation has occurred, (2) the degree of intrusion that the

       method of the search or seizure imposes on the citizen’s ordinary activities, and

       (3) the extent of law enforcement needs. Id.


[38]   In this case, Detective Foote had a high degree of knowledge that a violation

       had occurred. He had spoken with Detective Crapser, and he used information

       provided by Detective Crapser to help draft the affidavit to Sprint requesting

       information on the then-current location of Govan’s cellular phone. The

       warrant described in detail Govan’s restraint of Cook and Prater and,

       additionally, his severe beating of them.


[39]   There is no doubt that the warrantless arrest intruded upon Govan’s ordinary

       activities. Indeed, there are few intrusions more severe than an arrest. In any

       event, arresting Govan without a warrant was crucial to law enforcement

       needs. Govan had threatened to kill Cook, and so long as he was free he posed

       a continuing threat to Cook and Prater’s well-being, as well as the safety of

       Cook’s family. Balancing the three factors, we conclude the warrantless arrest

       was reasonable under the Indiana Constitution.


[40]   Govan further argues that, even if his arrest was lawful, Detective Foote’s

       search of his person was unconstitutional. The Fourth Amendment permits a

       warrantless “search incident to a lawful arrest.” Arizona v. Gant, 556 U.S. 332,


       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019     Page 16 of 23
       338, 129 S. Ct. 1710, 1716, 173 L. Ed. 2d 485 (2009). This exception to the

       warrant requirement “derives from interests in officer safety and evidence

       preservation that are typically implicated in arrest situations.” Id. at 338, 129 S.

       Ct. at 1716. The scope of such a search must be commensurate with the

       purposes of protecting officers and “safeguarding any evidence of the offense of

       arrest that an arrestee might conceal or destroy.” Id. at 339, 129 S. Ct. at 1716.

       The Fourth Amendment does not require additional probable cause for a search

       incident to arrest. White v. State, 24 N.E.3d 535, 540 (Ind. Ct. App. 2015), trans.

       denied.


[41]   In this case, Detective Foote and other officers arrested Govan for suspected

       crimes including confinement and battery. Thus, his liberty had already been

       curtailed when the detective searched his person. Detective Foote found the

       heroin in one of Govan’s pants pockets. The search was limited to Govan’s

       person and fulfilled the purposes of ensuring officer safety and locating

       incriminating evidence. The search incident to arrest did not violate the Fourth

       Amendment. See Wilson v. State, 754 N.E.2d 950, 957 (Ind. Ct. App. 2001)

       (trial court did not err in admitting into evidence drugs found during search of

       defendant’s person during lawful arrest).


[42]   We reach the same result under the Indiana Constitution, considering the

       totality of the circumstances and the three-factor test set forth above. Once a

       lawful arrest has been made, no additional degree of suspicion is required for a

       search of an arrestee’s person. Garcia v. State, 47 N.E.3d 1196, 1200 (Ind.

       2016). Further, the search did not by itself hamper Govan’s activities. At the

       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019       Page 17 of 23
       time of the search, Govan was already under arrest, so his freedom of

       movement was already severely (and lawfully) curtailed. Finally, law

       enforcement needs were high, because the officers needed to ensure Govan did

       not have: (1) a weapon; (2) relevant evidence that could be destroyed; or (3)

       other contraband that could be brought into jail. Balancing the three factors,

       Detective Foote’s post-arrest search of Govan did not violate the Indiana

       Constitution. See id. at 1203 (officer’s discovery of bottle on the person of an

       arrestee, and officer’s opening of the bottle, did not violate article I, section 11).


[43]   In summary, Govan’s search and seizure claims must fail, and the trial court

       did not err in allowing the heroin into evidence during trial.


                                      II. Sentencing - Discretion
[44]   Govan argues the trial court erred while imposing the sentence for his drug

       possession conviction and habitual offender enhancement because the court

       failed to explain its reasons. During sentencing, the court must state its reasons

       for selecting the sentence “if the court finds aggravating circumstances or

       mitigating circumstances.” Ind. Code § 35-38-1-3 (1983). Similarly, “[a]fter a

       court has pronounced a sentence for a felony conviction, the court shall issue a

       statement of the court’s reasons for selecting the sentence that it imposes unless

       the court imposes the advisory sentence for the felony.” Ind. Code § 35-38-1-

       1.3 (2014). Nevertheless, a trial court “may impose any sentence that is . . .

       authorized by statute; and . . . permissible under the Constitution of the State of

       Indiana . . . regardless of the presence or absence of aggravating circumstances

       or mitigating circumstances.” Ind. Code § 35-38-1-7.1(d) (2015).
       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019         Page 18 of 23
[45]   Govan was found guilty of possession of cocaine or narcotic drug as a Level 4

       felony and was determined to be an habitual offender. At the time he

       committed his crimes, the minimum sentence for a Level 4 felony was two

       years, the maximum sentence was twelve years, and the advisory sentence was

       six years. Ind. Code section 35-50-2-5.5 (2014). In addition, if a person is

       determined to be an habitual offender, the court may add a fixed term of

       between six years and twenty years to a conviction for murder or a Level 1

       through Level 4 felony. Ind. Code § 35-50-2-8.


[46]   The trial court sentenced Govan to the advisory sentence of six years for the

       Level 4 felony but imposed the maximum possible habitual offender

       enhancement of twenty years. Pursuant to Indiana Code section 35-38-1-1.3,

       the court did not need to explain its reasons for imposing the six-year advisory

       sentence, but Govan argues the court should have explained its basis for the

       twenty-year sentencing enhancement.


[47]   We agree that the better practice would have been for the trial court to explain

       its basis for the twenty-year sentence enhancement. In any event, even if the

       trial court is found to have abused its discretion during sentencing, any error is

       harmless if the sentence imposed was not inappropriate. Mendoza v. State, 869

       N.E.2d 546, 556 (Ind. Ct. App. 2007), trans. denied. As we discuss below,

       Govan’s sentence was not inappropriate, and we decline to further address this

       issue.




       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019      Page 19 of 23
                              III. Sentencing - Inappropriateness
[48]   Govan claims the twenty-year sentencing enhancement should be reduced to

       six years. Article VII, section 6 of the Indiana Constitution authorizes this

       Court to review and revise sentences. This authority is implemented through

       Indiana Appellate Rule 7(B), which provides that we “may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, [we

       find] that the sentence is inappropriate in light of the nature of the offense and

       the character of the offender.”


[49]   As we conduct our review, we consider not only the aggravators and mitigators

       found by the trial court, but also any other factors appearing in the record.

       Walters v. State, 68 N.E.3d 1097, 1101 (Ind. Ct. App. 2017), trans. denied. It is

       the defendant’s burden to persuade us that the sentence imposed by the trial

       court is inappropriate. Wheeler v. State, 95 N.E.3d 149, 160 (Ind. Ct. App.

       2018). The principal role of such review is to attempt to leaven the outliers.

       Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018). We conduct our sentencing

       review under Appellate Rule 7(B) with “substantial deference” to the trial

       court’s sentencing decision. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014).


[50]   As discussed above, the trial court imposed the advisory six-year sentence upon

       Govan for Level 4 felony possession of cocaine or narcotic drug, enhanced by

       the maximum possible enhancement of twenty years for being an habitual

       offender. His sentence was well short of the possible maximum of thirty-two

       years. The court further ordered Govan to serve his twenty-six-year sentence


       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019       Page 20 of 23
       consecutively with his sentences for the two counts of confinement, for a total

       sentence of thirty and one-half years.


[51]   Turning to the nature of the offense of possession of cocaine or narcotic drug as

       a Level 4 felony, we note that the State must prove a defendant possessed at

       least ten grams but less than twenty-eight grams of a controlled substance. Ind.

       Code § 35-48-4-6. Govan possessed over thirteen grams of heroin, above the

       statutory minimum. We further note Detective Foote found the heroin on

       Govan while arresting him for confining Cook and Prater earlier that day, so

       his possession of heroin was a continuation of a long course of serious criminal

       misconduct.


[52]   As for Govan’s character, he was thirty-nine years old at sentencing. His

       habitual offender enhancement was based on prior convictions for dealing in

       cocaine (2004) and battery (2008). Govan continues to commit offenses

       involving controlled substances and violence despite opportunities to reform.

       He has other prior felony convictions for robbery, operating while intoxicated,

       and nonsupport of a child. Govan also accrued misdemeanor convictions for

       battery (four convictions), resisting law enforcement, operating while

       intoxicated, and operating while suspended. He was further determined to be

       an habitual offender in a prior case. Govan accrued new convictions every few

       years, except when he was in prison. He further admitted to using cocaine and

       methamphetamines daily prior to his arrest in this case. Govan is simply

       unwilling to conform to the requirements of the law and has rejected numerous

       opportunities to reform.

       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019      Page 21 of 23
[53]   In addition, Govan has not benefitted from alternatives to incarceration. He

       has been revoked from placements on parole and home detention. Considering

       the nature of the offenses and Govan’s extensive record of criminal misconduct,

       he has failed to persuade us that his sentence is an outlier. We conclude his

       sentence is not inappropriate. As a result, any abuse of the trial court’s

       sentencing discretion is harmless error.


[54]   On a related note, Govan briefly argues the twenty-year habitual offender

       sentencing enhancement is unconstitutionally disproportionate to his six-year

       sentence for possession of cocaine or narcotic drug, citing article I, section 16 of

       the Indiana Constitution. That provision states, in relevant part: “All penalties

       shall be proportioned to the nature of the offense.” Id. A review of the

       proportionality of a habitual offender enhancement has two components: an

       inquiry into the nature and gravity of the present felony; and an inquiry into the

       nature of the predicate felonies upon which the habitual offender enhancement

       is based. Manley v. State, 656 N.E.2d 277, 280 (Ind. Ct. App. 1995), trans.

       denied.


[55]   In this case, Govan could have received up to twelve years for his conviction for

       possession of cocaine or narcotic drug, a Level 4 felony. The present offense is

       thus grave in nature. Further, the habitual offender enhancement’s predicate

       felonies were dealing in cocaine, a Class B felony, and battery, a Class C felony,

       both serious offenses. It bears repeating that Govan continues to commit

       offenses involving controlled substances and violence despite numerous

       opportunities to reform. Based upon this record, we cannot conclude the

       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019       Page 22 of 23
       habitual offender sentencing enhancement was unconstitutionally

       disproportionate to the sentence for the present felony.


                                                  Conclusion
[56]   For the reasons stated above, we affirm the judgment of the trial court.


[57]   Affirmed.


[58]   Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-708 | January 25, 2019    Page 23 of 23
