ATTORNEYS FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Suzy St. John                                         Gregory F. Zoeller
Ruth A. Johnson                                       Attorney General of Indiana
Marion County Public Defender Agency
Indianapolis, Indiana                                 Tyler G. Banks
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana




                                             In the                                      FILED
                         Indiana Supreme Court                                      Nov 29 2016, 11:57 am

                                                                                         CLERK
                                                                                     Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court
                                       No. 49S05-1611-CR-626

EDUARDO CRUZ-SALAZAR,
                                                              Appellant (Defendant below),

                                                 v.

STATE OF INDIANA,
                                                              Appellee (Plaintiff below).


              Appeal from the Marion Superior Court, No. 49G14-1312-FD-81376
                   The Honorable Kelly Noel Kinkade, Judge Pro Tempore,
                              The Honorable Jose Salinas, Judge 1


     On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-1511-CR-1782



                                        November 29, 2016

Massa, Justice.




1
 Cruz-Salazar’s motion to suppress was heard and denied by Judge Jose Salinas. Judge Pro Tempore Kelly
Kinkade later presided over Cruz-Salazar’s bench trial, and convicted and sentenced him.
          Eduardo Cruz-Salazar appeals his conviction for Class A misdemeanor possession of
cocaine, claiming the warrantless search which led to the discovery of the drugs was improper
under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the
Indiana Constitution. In this companion decision, issued today with Osborne v. State, No. 29S02-
1608-CR-433, -- N.E.3d -- (Ind. Nov. 29. 2016), we find Cruz-Salazar’s search permissible, and
affirm.




                                  Facts and Procedural History


          In the early morning hours of December 29, 2013, Marion County police received a report
of a suspicious vehicle, a turquoise or blue pickup truck, which had been parked in front of a
residence for 30 minutes, while still running. Officer Ayler responded and found the car in the
condition it was reported: parked on the curb and running. Officer Ayler shined his spotlight on
the vehicle and observed the driver, Cruz-Salazar, who “appeared to be either sleeping or passed
out.” Tr. at 8. Officer Ayler approached the vehicle and tapped on the driver’s side window a
couple of times. Cruz-Salazar did not respond, so Officer Ayler “opened the door to check on his
welfare. . . . I didn’t know why he was asleep, if there was a medical problem. I didn’t know why
he was passed out in the vehicle.” Tr. at 8–9. Officer Ayler roused Cruz-Salazar by shaking him
a little, and asked if Cruz-Salazar was okay, and for his identification. Officer Ayler observed that
he had watery, bloodshot eyes, and slurred speech. He then asked Cruz-Salazar if he had been
drinking and he admitted he had. Officer Ayler had Cruz-Salazar exit the vehicle; he was unsteady
on his feet, and the portable breath test registered at 0.184. Officer Ayler tried to call someone to
pick Cruz-Salazar up, but no one answered at the number he provided, so Officer Ayler then placed
Cruz-Salazar under arrest for public intoxication “for his well being and safety.” Tr. at 11–12. A
pat-down search incident to arrest revealed cocaine, and Cruz-Salazar was charged with Class D
felony possession. Cruz-Salazar moved to suppress the evidence, claiming that as there was no
reasonable suspicion of criminal activity or probable cause, the police violated the Fourth
Amendment to the Federal Constitution and Article 1, Section 11 of the Indiana Constitution when
they opened his car door. The trial court denied the motion, and after a bench trial, convicted


                                                 2
Cruz-Salazar of Class A misdemeanor possession of cocaine, and sentenced him to 365 days
incarceration (suspended), and 180 days probation.


        Cruz-Salazar appealed, and our Court of Appeals affirmed the search and conviction,
finding the officer’s opening of Cruz-Salazar’s door constitutionally permissible as a reasonable
“community caretaking” function. Cruz-Salazar v. State, 61 N.E.3d 272, 277 (Ind. Ct. App. 2016).


        We now grant transfer, thereby vacating the Court of Appeals decision. 2 Ind. Appellate
Rule 58(A).




       Police’s Warrantless Search of Cruz-Salazar Was Constitutionally Permissible.


        In Osborne v. State, No. 29S02-1608-CR-433, -- N.E.3d -- (Ind. Nov. 29. 2016), also issued
today, we described in detail the relevant Fourth Amendment and Article 1, Section 11 concerns,
and thus we proceed directly to their application here. Police received a report of a stationary
vehicle that had been running for 30 minutes, in the early hours of a cold December morning. This
alone is sufficiently unusual to merit further investigation, as it could be an indicator of distress.
Police arrived on scene to find the situation as reported, and indeed worse: Cruz-Salazar was at
the wheel of the vehicle, and was not responsive when Officer Ayler both shined his flashlight
through the windows or when he tapped on the window. At this point, the officer had an
objectively reasonable basis to open the door and check on Cruz-Salazar’s well-being. See
Michigan v. Fisher, 558 U.S. 45, 49 (2009) (holding the Fourth Amendment permits warrantless
search and seizure if police had “an objectively reasonable basis for believing that medical




2
  Cruz-Salazar also appealed his conviction on the grounds that police did not have probable cause to arrest
him for public intoxication, and thus the search incident to arrest which yielded the cocaine was
impermissible. We agree with the Court of Appeals in their treatment of that issue, and summarily affirm
that portion of the decision. Ind. Appellate Rule 58(A)(2).



                                                     3
assistance was needed, or persons were in danger.”) Accordingly, we find the warrantless entry
into Cruz-Salazar’s vehicle permissible under the Fourth Amendment to the Federal Constitution
and Article 1, Section 11 of the Indiana Constitution.




                                           Conclusion


       For the foregoing reasons, we affirm Cruz-Salazar’s conviction for Class A misdemeanor
possession of cocaine.


Rush, C.J., and Rucker, David, and Slaughter, JJ., concur.




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