                                                                 FILED
                                                            Feb 03 2017, 8:25 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                             Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, L.L.P.                       Attorney General of Indiana
Huntington, Indiana                                       Ian McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Richelle Marie Whitenack,                                 February 3, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          35A04-1608-CR-1811
        v.                                                Appeal from the Huntington
                                                          Superior Court
State of Indiana,                                         The Hon. Jeffrey R. Heffelfinger,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          35D01-1511-F6-252



Bradford, Judge.




Court of Appeals of Indiana | Opinion 35A04-1608-CR-1811 | Febraury 3, 2017             Page 1 of 8
                                           Case Summary
[1]   On November 17, 2015, Gail Whitenack (“Gail”) searched her step-daughter

      Appellant-Defendant Richelle Marie Whitenack’s vehicle while it was in Gail’s

      driveway because Gail was concerned that Whitenack was using drugs. During

      her search, Gail found items that suggested that Whitenack was, in fact, using

      drugs. Gail called the police and told them what she had found. The police

      department subsequently issued a tip to its deputies which included a

      description of Whitenack’s vehicle and the suspected drug related items.


[2]   Later that same day, Whitenack was pulled over for speeding and crossing the

      center line twice. The deputy radioed his location and a description of the

      vehicle when he realized that the vehicle he had pulled over matched the

      vehicle in the tip. One or two minutes later, the department’s K9 officer arrived

      to the scene with his dog. The K9 officer and his dog walked around the

      vehicle while the deputy finished writing Whitenack’s ticket. The dog indicated

      the presence of drugs in the vehicle which prompted the deputy and K9 officer

      to search the vehicle. During their search, the deputies discovered a split-box of

      syringes, wrapping from a coffee package, and a spoon with burnt residue. The

      residue on the spoon was later tested by the Indiana State Police Department

      laboratory which identified the residue as heroin. On November 24, 2015, the

      State of Indiana (the “State”) filed charges against Whitenack for: Count 1,

      unlawful possession of a hypodermic syringe; Count 2, possession of

      paraphernalia; Count 3, driving left of the center lane; and Count 4, exceeding

      the posted speed limit. Whitenack was found guilty as charged following a

      Court of Appeals of Indiana | Opinion 35A04-1608-CR-1811 | Febraury 3, 2017   Page 2 of 8
      bench trial and was sentenced to one year executed, one year suspended and

      one-half year of probation for Count 1, sixty days executed for Count 2, and

      fines of $10.00 each for Counts 3 and 4. The sentences for Count 1 and 2 were

      ordered to be served concurrently.


[3]   On appeal, Whitenack challenges the trial court’s admission of evidence during

      her bench trial. Specifically, Whitenack raises the following restated issue:

      whether the trial court abused its discretion when it admitted evidence found in

      Whitenack’s vehicle during a valid traffic stop. Because the trial court did not

      abuse its discretion when it admitted evidence found by a K9 officer and his dog

      during a valid traffic stop, we affirm.



                             Facts and Procedural History
[4]   Around 7:00 am on November 17, 2015, Gail searched her step-daughter

      Whitenack’s vehicle. Whitenack occasionally stayed with Gail and

      Whitenack’s father. Gail was concerned because she had found syringes and a

      spoon in Whitenack’s duffle bag a month earlier while she was looking for hair

      products that she believed Whitenack had borrowed. Gail took photos of those

      items and turned them in to the police. The following day, Gail’s son found

      cotton balls with brown residue on them in Gail’s home which he took to the

      police as well.


[5]   After her search on November 17, 2015, Gail called police because she found a

      box of syringes, a spoon, and a small bag with some pills in the trunk of


      Court of Appeals of Indiana | Opinion 35A04-1608-CR-1811 | Febraury 3, 2017   Page 3 of 8
      Whitenack’s vehicle. The Huntington County Sheriff’s Department gave the

      deputies a description of Whitenack’s vehicle along with a tip regarding the

      suspected drug related items. Later that day, Whitenack was pulled over by

      Deputy Dave Jackson for going 61 mph in a 55 mph zone and driving left of the

      center lane twice. Deputy Jackson radioed dispatch with his location and the

      vehicle description because he recognized that the vehicle matched the

      description of the one from the tip he had received. Within a minute or two,

      the department’s K9 officer, Deputy Dave McVoy, arrived with his K9 partner.

      While Deputy Jackson was still writing Whitenack’s ticket, Deputy McVoy

      walked his dog around the vehicle. The dog indicated the presence of drugs

      inside of Whitenack’s vehicle. Deputies McVoy and Jackson then searched

      Whitenack’s vehicle while she stood outside. During their search, the deputies

      found a split-box of syringes, wrapping from a coffee package, and a spoon with

      burnt residue. The burnt residue on the spoon was later tested by the Indiana

      State Police laboratory which determined that the residue was heroin.


[6]   On November 24, 2015, the State of Indiana (the “State”) filed charges against

      Whitenack for: Count 1, unlawful possession of a hypodermic syringe; Count 2,

      possession of paraphernalia; Count 3, driving left of the center lane; and Count

      4, exceeding the posted speed limit. On July 7, 2016, following a bench trial,

      Whitenack was found guilty as charged. That same day, the trial court

      sentenced Whitenack to the following: one year executed, one year suspended,

      and one-half year on probation for Count 1; sixty days executed for Count 2;




      Court of Appeals of Indiana | Opinion 35A04-1608-CR-1811 | Febraury 3, 2017   Page 4 of 8
      and fines of $10.00 each for Count 3 and 4. The sentences in Counts 1 and 2

      were ordered to be served concurrently. This appeal follows.


                                    Discussion and Decision
[7]   Whitenack claims that the deputies’ search of her vehicle was unreasonable

      under Article I, Section 11 of the Indiana Constitution because the State had

      received a report with a description of her vehicle, its location, and that it

      contained contraband over eight hours before her vehicle was searched and the

      State made no attempt to secure a warrant prior to her being pulled over for

      speeding and crossing the center line. This appeal follows a completed trial.

      Therefore, the issue on appeal is properly framed as whether the trial court

      abused its discretion by admitting the challenged evidence at trial. Lindsey v.

      State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009). An abuse of discretion occurs

      when the trial court’s decision is against the logic and effect of the

      circumstances and facts before it. Weis v. State, 825 N.E.2d 896, 900 (Ind. Ct.

      App. 2005). “We will not reweigh the evidence, and we consider any

      conflicting evidence in favor of the trial court’s ruling.” Lindsey, 916 N.E.2d at

      238. We will also consider any uncontested evidence favorable to the

      defendant. Id. The legal conclusions of the trial court will be reviewed de novo.

      Id.


[8]   Whitenack concedes that she was pulled over on November 17, 2015, “for

      speeding and driving left of center.” Appellant’s Br. p. 11. Whitenack further

      concedes that “[b]ased on Gail’s original tip, a K9 officer was in the area to


      Court of Appeals of Indiana | Opinion 35A04-1608-CR-1811 | Febraury 3, 2017   Page 5 of 8
       conduct a free air sniff of the vehicle.” Appellant’s Br. p. 11. Therefore,

       Whitenack is not disputing the fact that the traffic stop and free air sniff were

       lawful and the subsequent search of her vehicle was reasonable.


[9]    Whitenack’s argument rests upon the belief that the deputies should have

       obtained a search warrant after Gail originally called in a tip about the

       contraband earlier that day. We know of no cases that suggest that a search

       which is constitutionally permissible at the time it is made is invalid and

       unreasonable under Article I, Section 11 of the Indiana Constitution if “the

       police [had] ample opportunity to obtain a search warrant prior to searching a

       vehicle.” Appellant’s Br. p. 12.


[10]   Article I, Section 11 reads:

               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.


       “We have recognized that the purpose of Article One, Section 11 is to protect

       from unreasonable police activity, those areas of life that Hoosiers regard as

       private.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001) (internal citation and

       quotations omitted). “In resolving challenges asserting this section, courts must

       consider the circumstances presented in each case to determine whether the

       police behavior was reasonable.” Id. (internal citation and quotations omitted).


       Court of Appeals of Indiana | Opinion 35A04-1608-CR-1811 | Febraury 3, 2017   Page 6 of 8
[11]   At the time that Whitenack was pulled over and the vehicle was subsequently

       searched, the deputies had ample probable cause to support their actions. The

       vehicle was originally pulled over due to Whitenack’s speeding and crossing the

       center line twice. The deputies subsequently searched the vehicle after the K9

       officer’s dog alerted them to the presence of drugs. The fact that there may or

       may not have been enough information to obtain a search warrant to search

       that same vehicle earlier that day has no impact on the legality of the

       subsequent search and seizure; officers do not have to obtain a warrant at the

       first practicable moment. See U.S. v. Thompson, 700 F.2d 944, 950 (5th Cir.

       1983); U.S. v. Garza-Hernandez, 623 F.2d 496, 501 (7th Cir. 1980).


[12]   When we review a trial court’s decision to determine if there was an abuse of

       discretion regarding the admission of evidence, “we may affirm the trial court’s

       decision to admit evidence seized as a result of a search based on any legal

       theory supported by the record.” Johnson v. State, 38 N.E.2d 658, 661 (Ind. Ct.

       App. 2015). Moreover, we have previously held that there is “nothing

       unreasonable in permitting an officer, who may have knowledge or suspicion of

       unrelated criminal activity by the motorist, to nevertheless respond to an

       observed traffic violation.” Mitchell, 745 N.E.2d at 787. Therefore, the

       evidence obtained from Whitenack’s vehicle by the deputies during the traffic

       stop was the product of a legal search and the trial court did not abuse its

       discretion when it admitted such evidence at trial. Based upon the above-stated

       conclusions and evidence in the record, we affirm the trial court’s decision to

       admit the evidence found during the traffic stop of Whitenack’s vehicle.


       Court of Appeals of Indiana | Opinion 35A04-1608-CR-1811 | Febraury 3, 2017   Page 7 of 8
[13]   We affirm the judgement of the trial court.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 35A04-1608-CR-1811 | Febraury 3, 2017   Page 8 of 8
