MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Mar 13 2017, 10:11 am
this Memorandum Decision shall not be
                                                                                CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Terry McNary,                                            March 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A04-1607-CR-1733
        v.                                               Interlocutory Appeal from the
                                                         Vanderburgh Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1603-F3-1640



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017               Page 1 of 15
                                            Case Summary
[1]   In this interlocutory appeal, Terry McNary challenges the denial of his motion

      to suppress certain evidence from his trial on charges of level 3 felony

      methamphetamine possession, level 6 felony cocaine possession, and level 6

      felony narcotics possession. He specifically asserts that the challenged evidence

      was obtained pursuant to an unlawful search of his vehicle and certain

      containers found therein during a traffic stop. We affirm.


                              Facts and Procedural History
[2]   One evening in March 2016, Evansville Police Department Sergeant Stephen

      Kleeman was patrolling city streets for seatbelt enforcement and aggressive

      driving. He observed a vehicle with a broken taillight and watched as the driver

      turned directly in front of a vehicle on his right and made an immediate right

      turn into a movie theater parking lot. The sergeant activated his lights and

      initiated a traffic stop for aggressive driving.


[3]   When Sergeant Kleeman approached the vehicle, he noticed that there were

      four passengers in addition to the driver, McNary. When the sergeant asked for

      McNary’s driver’s license, he indicated that he did not have one. He gave the

      sergeant his name and birthdate, and the sergeant returned to his patrol vehicle

      to enter the information into his computer. The National Crime Information

      Center (“NCIC”) database indicated that McNary had an active warrant in

      Clay County, Indiana, for failure to appear on charges of possession of a

      handgun without a license and marijuana possession. The NCIC entry

      Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 2 of 15
      indicated that McNary was to be considered “armed and dangerous.” Tr. at 6-

      7. The sergeant also learned that McNary’s driver’s license had been suspended

      in Kentucky.


[4]   Sergeant Kleeman became concerned for his safety and called for backup.

      When backup officers arrived and were apprised of the situation, they removed

      McNary from his vehicle,1 handcuffed him, and placed him in Sergeant

      Kleeman’s patrol vehicle. Sergeant Kleeman informed McNary that he had

      discovered his active warrant in Clay County on weapons and drug charges and

      told him that he had notified law enforcement there concerning possible

      extradition. He told McNary that he would be held until they got a response

      and that if Clay County did not seek extradition, he would be released.

      According to the sergeant, he did not Mirandize McNary at that time, and the

      only conversation he had with McNary was “whether he was going to be going

      to jail for the NCIC hit.” Id. at 19-20.


[5]   Meanwhile, McNary’s adult female passenger (“Girlfriend”) remained in the

      front seat of his vehicle, and his three juvenile passengers remained in the back

      seat. Officer Jacklyn Smith kept watch over the passengers and found that the

      tinted windows and dark, misty weather conditions made it difficult to observe

      their movements. She opened the passenger door, and when she saw a backseat




      1
        We refer to the vehicle that McNary was driving as “his vehicle” for purposes of distinguishing it from the
      police vehicles present at the scene. The registered owner of the vehicle was the father of one of the juvenile
      passengers. On appeal, the State does not argue that McNary lacks standing to complain about the search of
      the vehicle.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017              Page 3 of 15
      passenger moving around or reaching for something, she directed the

      passengers to “keep their hands on their laps.” Id. at 22. She removed the

      passengers from the vehicle and immediately conducted a search of the areas of

      the vehicle within the driver’s “wingspan.” Id. at 22-23, 27. On the floorboard

      right behind the front passenger’s seat, she discovered a zippered pouch/coin-

      purse which, in her experience, resembled those sometimes used to store drugs.

      She opened the pouch and found a small tin containing what appeared to be

      narcotics (and later was determined to be methamphetamine, cocaine, and

      hydrocodone). Officer Smith approached Sergeant Kleeman and informed him

      that she had discovered the drugs. The sergeant told Officer Smith that he

      would ask McNary and Girlfriend if either one would claim the pouch of drugs,

      and if not, he would arrest them both. McNary apparently overheard the

      officers’ conversation and “stated that it was not her dope and that it was all

      his.” Id. at 23. Shortly thereafter, Clay County law enforcement responded

      that it did not wish to pursue extradition of McNary at that time.


[6]   The State charged McNary with level 3 felony methamphetamine possession,

      level 6 felony cocaine possession, and level 6 felony narcotics possession.

      Claiming that he had been subjected to an unlawful search and seizure,

      McNary filed a motion to suppress the evidence recovered from his vehicle. 2

      The trial court held a suppression hearing, and the parties submitted briefing



      2
        As part of his motion to suppress, McNary also challenged the admissibility of certain inculpatory
      statements that he made to officers at the scene. However, he does not argue this issue on appeal.
      Appellant’s App. at 11-12. As such, we limit our discussion to the search of his vehicle and its contents.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017              Page 4 of 15
      after the hearing. The trial court issued an order with findings of fact denying

      McNary’s motion.


[7]   Upon McNary’s request, the trial court certified the order for interlocutory

      appeal, and we accepted jurisdiction. Additional facts will be provided as

      necessary.


                                  Discussion and Decision
[8]   McNary maintains that the trial court erred in denying his motion to suppress

      evidence obtained during a warrantless search of his vehicle. Our standard of

      review for the denial of a motion to suppress evidence is similar to that which

      we apply to other sufficiency issues. Stark v. State, 960 N.E.2d 887, 888 (Ind.

      Ct. App. 2012), trans. denied. In determining whether substantial evidence of

      probative value exists to support the denial of the motion, we do not reweigh

      evidence but instead consider the conflicting evidence most favorable to the trial

      court’s ruling. Id. However, in contrast to our review of other sufficiency

      matters, we also consider any uncontested evidence favorable to the appellant.

      Id. at 888-89. We review de novo a ruling on the constitutionality of a search or

      seizure but give deference to a trial court’s factual determinations and will not

      overturn them unless they are clearly erroneous. Id. at 889. Because McNary

      alleges violations of both the Fourth Amendment to the U.S. Constitution and

      Article 1, Section 11 of the Indiana Constitution, we review his claims using the

      independent analyses of each. Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016).




      Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 5 of 15
       Section 1 – The search of McNary’s vehicle did not violate the
       Fourth Amendment’s prohibition against unreasonable search
                                and seizure.
[9]    McNary submits that the search of his vehicle and the search and seizure of the

       pouch violated his protections against unreasonable search and seizure found in

       the Fourth Amendment of the U.S. Constitution, which provides,

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


       Unless an established exception applies, law enforcement must obtain a warrant

       based on probable cause before executing a search and seizure. Stark, 960

       N.E.2d at 889. One such exception is a search incident to arrest. Id. In Chimel

       v. California, 395 U.S. 752, 763 (1969), the U.S. Supreme Court held that a

       search incident to arrest may include the arrestee’s person and the area “within

       his immediate control,” meaning the area within reach, “from within which he

       might gain possession of a weapon or destructible evidence.” Id. Where the

       arrestee is the occupant of an automobile, officers may, incident to a lawful

       arrest, “search the passenger compartment of that automobile” as well as any

       containers found therein. New York v. Belton, 453 U.S. 454, 460 (1981).


[10]   However, noting that Belton should not be read to give police officers

       “unbridled discretion to rummage at will amongst a person’s private effects,”

       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 6 of 15
       the U.S. Supreme Court took a narrower view in Arizona v. Gant, 556 U.S. 332,

       345 (2009). There, the Court considered circumstances involving an arrest for

       driving on a suspended license where the arrestee had been removed from his

       vehicle, handcuffed, and placed in a patrol vehicle prior to the search of his

       vehicle and concluded, “Police may search a vehicle incident to a recent

       occupant’s arrest only if the arrestee is within reaching distance of the passenger

       compartment at the time of the search or it is reasonable to believe the vehicle

       contains evidence of the offense of arrest.” Id. at 351. Noting that there were

       no passengers in Gant’s vehicle and that bystanders had likewise been arrested

       and placed in patrol vehicles, the Gant court reasoned that the typical

       justifications of officer safety and evidence preservation were absent, thus

       rendering the ensuing search of Gant’s vehicle unreasonable under the Fourth

       Amendment. Id. at 347-48.


[11]   In Stark, 960 N.E.2d at 891-92, another panel of this Court affirmed the denial

       of the defendant’s motion to suppress a handgun found inside a jacket that he

       had left inside his vehicle. There, a police officer patrolling a high crime area

       noticed a vehicle parked along the road with four occupants, no lights on, and

       no engine running. Id. at 888. When the officer approached and asked each

       occupant for identification, Stark, a backseat passenger, appeared to slide an

       object under his coat, which he held firmly in his lap. Id. The officer noticed

       that Stark appeared intoxicated and that there was an open plastic cup near his

       feet. Stark admitted that the cup contained alcohol, and the officer ordered him

       out of the vehicle. Id. Stark slid his jacket off his lap and left it inside the


       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 7 of 15
       vehicle. He was handcuffed and arrested for public intoxication and alcohol

       possession by a minor. Three other occupants remained in the vehicle, and the

       officer reached inside and retrieved Stark’s jacket, in which he discovered a

       loaded semi-automatic handgun for which Stark had no permit and which had

       been reported as stolen. Id. The State charged Stark with carrying a firearm

       without a license.


[12]   Stark appealed the trial court’s denial of his motion to suppress the handgun as

       the product of an unlawful search. The Stark court held that the search of the

       defendant’s jacket was permissible as a search incident to arrest under Gant. Id.

       As in Gant, police had removed the arrestee from his vehicle and handcuffed

       him. Id. at 888. During his arrest, Stark stood outside between the arresting

       officer and the vehicle. Id. The Stark court found Gant factually

       distinguishable, as there had been no occupants remaining in Gant’s vehicle. In

       contrast, the Stark court concluded that officer safety was implicated by an

       objective consideration of the presence of three unsecured occupants inside

       Stark’s vehicle, Stark’s suspicious behavior concerning his jacket, and the fact

       that the arrest occurred in a high-crime area. Id. at 891-92.


[13]   As a threshold matter, we address McNary’s argument that the exception for

       search incident to arrest does not apply because he was not under arrest at the

       time of the search. He predicates this argument on Sergeant Kleeman’s

       statement that he was either going to go to jail on the Clay County warrant or

       be released. “Arrest is the taking of a person into custody, that he may be held

       to answer for a crime.” Ind. Code § 35-33-1-5. This occurs when an officer

       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 8 of 15
       interrupts the accused’s freedom and restricts his liberty of movement. Merchant

       v. State, 926 N.E.2d 1058, 1064 (Ind. Ct. App. 2010), trans. denied. We evaluate

       whether a person is in custody based on objective circumstances, not upon the

       subjective views of officers. Crocker v. State, 989 N.E.2d 812, 818 (Ind. Ct. App.

       2013), trans. denied. “[E]ven when a police officer does not tell a defendant that

       he is under arrest before a search, that fact dos not invalidate a search incident

       to an arrest as long as there is probable cause to make an arrest.” Merchant, 926

       N.E.2d at 1064.


[14]   Here, McNary had been removed from the vehicle, handcuffed, and placed in

       custody in the back of the sergeant’s patrol vehicle pending a response from

       Clay County concerning extradition on his active warrant. He was not free to

       leave. Notwithstanding Sergeant Kleeman’s statement that McNary would

       either be going to jail on the warrant or released, the sergeant’s subjective

       considerations are irrelevant, and probable cause existed to arrest McNary for

       misdemeanor driving on a suspended license and cite him for aggressive driving

       regardless of the response from Clay County or the results of the ensuing

       search. McNary was under arrest.


[15]   Concerning the wingspan search incident to arrest, we find that officer safety

       was implicated not only by the NCIC warning that McNary was to be

       considered armed and dangerous but also by the presence and conduct of the

       unsecured passengers. Officer Smith testified that when she observed one of the

       backseat passengers reaching for something, she ordered all the passengers to

       keep their hands on their laps. She decided to remove them from the vehicle

       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 9 of 15
       just before she conducted her wingspan search. Even then, the passengers stood

       unsecured immediately outside the vehicle. Under these circumstances, we

       conclude that an objective officer would have been warranted in conducting a

       wingspan search of the vehicle incident to arrest.


[16]   As for Officer Smith’s decision to search inside the pouch, McNary observes

       that the container was too small to contain a firearm and therefore did not

       present an officer safety concern. He also submits that it was objectively

       unreasonable for Officer Smith to believe that the container held “evidence of

       the offense of arrest.” Gant, 556 U.S. at 351. In this vein, he claims that the

       offense of arrest was “failure to appear,” and therefore only such items as a

       dated docket entry or a transcript from the hearing for which he had failed to

       appear would qualify as evidence of the offense. We find this reasoning

       oversimplified and believe that an objective evaluation of reasonableness must

       include consideration of the underlying charges for which the defendant has

       failed to appear – here, weapons and drug offenses. In other words, law

       enforcement’s approach to a detainee with an active warrant for failure to

       appear on weapons or drug charges could reasonably be expected to differ from

       its approach to one whose warrant is for failure to appear on a misdemeanor

       traffic offense. That being said, nothing in the record indicates the date upon

       which McNary was arrested on the marijuana charge in Clay County relative to

       the date of the instant drug offenses. However, police must operate on the facts

       known at the time, and we believe that a reasonable officer in the same

       circumstances would have been warranted in checking inside the pouch. Based


       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 10 of 15
       on the foregoing, we conclude that the trial court properly denied McNary’s

       motion to suppress on Fourth Amendment grounds.


       Section 2 – The search of McNary’s vehicle did not violate the
        Indiana Constitution’s prohibition against unlawful search
                                and seizure.
[17]   McNary also maintains that the search and seizure was unlawful under Article

       1, Section 11 of the Indiana Constitution. While the text of Article 1, Section

       11 is identical to that of the Fourth Amendment, the analyses vary somewhat.

       Stark, 960 N.E.2d at 892. “Conformity of a search to the Indiana Constitution

       turns on an evaluation of the ‘reasonableness’ of the conduct of the law

       enforcement officers, not on the expectation of privacy commonly associated

       with Fourth Amendment analysis.” Id. We evaluate the reasonableness of

       such conduct under “the totality of the circumstances.” Litchfield v. State, 824

       N.E.2d 356, 361 (Ind. 2005). Although we recognize that there may be other

       relevant considerations under the circumstances of each case, we evaluate the

       reasonableness of a search or seizure under the Indiana Constitution by

       balancing (1) the degree of concern, suspicion, or knowledge that a violation

       has occurred; (2) the degree of intrusion the method of the search or seizure

       imposes on the citizen’s ordinary activities; and (3) the extent of law

       enforcement needs. Id.


[18]   First, the officers had a high degree of suspicion and knowledge that McNary

       had violated the law. Sergeant Kleeman observed his aggressive driving in

       making an immediate turn off the roadway after cutting off another driver.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 11 of 15
       McNary admitted that he was driving without a license, and computer records

       showed that his Kentucky license had been suspended. He also had an

       outstanding warrant on weapons and drug charges and was listed in the NCIC

       database as “armed and dangerous.” Sergeant Kleeman acted on his high

       degree of concern and knowledge by calling for backup. Officer Smith acted on

       the information that she was given concerning the danger and, after observing

       the passengers as best she could in the dark, misty weather, conducted a limited

       search of the vehicle commensurate with the concerns surrounding McNary.

       The degree of concern, suspicion, and knowledge weighs in favor of the State.


[19]   With respect to the degree of intrusion on McNary’s ordinary activities, Officer

       Smith testified that she merely conducted a wingspan search of the areas of the

       vehicle within McNary’s reach. By that time, McNary had been removed from

       the vehicle, handcuffed, and placed in a police vehicle because of the Clay

       County warrant and the information in the NCIC database. As such, his

       activities were already restricted based on the outstanding warrant. Because

       darkness, tinted windows, and weather conditions impaired Officer Smith’s

       ability to observe movements by the passengers remaining inside McNary’s

       vehicle, she simply ordered them to stand immediately outside the vehicle. She

       emphasized that she found the pouch within the parameters of her wingspan

       search, that she did not search the whole vehicle, and that the pouch was not

       hidden but was sitting on the floorboard immediately behind the front

       passenger’s seat near the center hump. By the time Sergeant Kleeman received

       a response from Clay County law enforcement concerning extradition of


       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 12 of 15
       McNary on the warrant, Officer Smith had completed her search, discovered

       the contraband, and reported her findings to the sergeant. This occurred within

       ten minutes’ time.


[20]   As for the degree of intrusion attendant to Officer Smith’s opening the small

       pouch that she obtained during the wingspan search, our supreme court

       recently held that a defendant’s rights were not violated when police opened a

       pill container obtained during a patdown search incident to a valid arrest.

       Garcia v. State, 47 N.E.3d 1196, 1205 (Ind. 2016). While we acknowledge that

       the pouch was obtained during a vehicle search rather than a patdown of

       McNary, we see no significant difference in the degree of intrusion, especially

       given the brief time that elapsed and the fact that the wingspan search had been

       completed before the officers received a response from Clay County concerning

       the active warrant. As such, the search did not lengthen the duration of

       McNary’s detention. Moreover, we are unpersuaded by McNary’s assertion

       that opening the pouch amounted to an unlawful intrusion because it was too

       small to contain a firearm. “A search incident to a valid arrest is lawful

       regardless of what it reveals.” Guilmette v. State, 14 N.E.3d 38, 42 (Ind. 2014)

       (quoting Farrie v. State, 255 Ind. 681, 683, 266 N.E.2d 212, 214 (1971)). Even

       so, we remind McNary that while officer safety concerns precipitated the

       wingspan search for possible weapons, the active warrant concerned both

       weapons and drug charges. The minimal degree of intrusion weighs in favor of

       the State.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 13 of 15
[21]   Finally, with respect to law enforcement needs, we observe that the most

       commonly recognized bases for conducting a search incident to arrest include

       “ensuring that the arrestee is unarmed, preventing the arrestee from bringing

       contraband into jail, and preventing the destruction of evidence.” Garcia, 47

       N.E.3d at 1202 (quoting Edmond v. State, 951 N.E.2d 585, 592 (Ind. Ct. App.

       2011)). Here, the need to ensure officer safety was high, as the NCIC database

       showed that McNary had an active warrant for failure to appear on weapons

       and drug charges in another county. Concern for officer safety was further

       heightened by the statement in the NCIC database that McNary was to be

       considered “armed and dangerous.” Officer Smith testified concerning the

       number of officers at the scene that it was an “officer safety issue with the

       handgun, we don’t take handguns lightly.” Tr. at 22. When asked about the

       wingspan search, she stated, “we were making sure that there was no other

       weapon in the car.” Id. at 23. Moreover, the need to prevent destruction or

       loss of evidence was high, since Girlfriend was a licensed driver and could have

       driven away. Officer Smith expressed concern because of conditions that

       impaired her ability to see what McNary’s four passengers were doing while

       still inside the vehicle. She testified that when she opened the passenger’s side

       door and observed movement and reaching by one of the passengers, she first

       warned the passengers to keep their hands on their laps. Her needs as a law

       enforcement officer involved not only addressing what the “armed and

       dangerous” McNary might have attempted to stash within his reach during the

       initial minutes of the stop but also what one of the passengers might have taken

       possession of or attempted to stash in the ensuing minutes between the original
       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 14 of 15
       stop and the wingspan search. The passengers remained inside the vehicle for

       several minutes and were removed just moments before the search. Even then,

       the passengers stood unsecured next to the vehicle. Law enforcement needs of

       officer safety and evidence preservation weigh in favor of the State.


[22]   In short, police acted lawfully under the totality of the circumstances pursuant

       to Article 1, Section 11. As such, we conclude that McNary was not denied his

       constitutional protections when police seized and searched the pouch

       containing illegal substances. Thus, the trial court did not err in denying

       McNary’s motion to suppress. Accordingly, we affirm.


[23]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1607-CR-1733 | March 13, 2017   Page 15 of 15
