                                                                                    FILED
                                                                             Nov 14 2016, 9:04 am

                                                                                    CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Bernice A. N. Corley                                     Gregory F. Zoeller
      Marion County Public Defender Agency                     Attorney General of Indiana
      Appellate Panel Attorney
      Indianapolis, Indiana                                    George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      William McNeal,                                          November 14, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A05-1604-CR-838
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Shannon L.
      Appellee-Plaintiff                                       Logsdon, Judge Pro Tempore
                                                               Trial Court Cause No.
                                                               49G21-1509-F5-31039



      Crone, Judge.


                                             Case Summary
[1]   William McNeal appeals his conviction for level 5 felony possession of cocaine,

      following a bench trial. He contends that the trial court abused its discretion in

      admitting evidence that he claims was obtained in violation of his rights

      Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016                     Page 1 of 16
      pursuant to the Fourth Amendment to the United States Constitution and

      Article 1, Section 11 of the Indiana Constitution. Finding no federal or state

      constitutional violation, and therefore no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   On August 28, 2015, Indianapolis Metropolitan Police Department Officer

      Aaron Helton was on routine patrol near East 10th Street and Gray Road in

      Marion County, when he noticed a man lying face down on the sidewalk. A

      crowd was starting to form around the man. Officer Helton alerted dispatch

      that he was going to stop and perform a welfare check on the man. When

      Officer Helton got close to the man, who was later identified as “Kemo,” he

      observed that Kemo was sweating and he could not tell if Kemo was breathing.

      Tr. at 16. Officer Helton attempted to shake Kemo to rouse him, but Kemo

      was unresponsive. Officer Helton immediately called for medical personnel to

      come to the scene.


[3]   Around the same time that medics arrived, another man, later identified as

      McNeal, approached Officer Helton saying, “That’s my bro, let’s go, let’s go.”

      Id. at 14. Officer Helton observed that McNeal had an “[u]nsteady gait, like not

      really walking straight ….” Id. McNeal was sweating profusely, his eyes were

      “reddish, “glassy,” and “glazed over,” his speech was “kind of slurred,” and it

      appeared to Officer Helton like McNeal’s heart “was beating out of his chest.

      He just looked like he was in dire straits medically.” Id. at 14, 22, 31. Officer

      Helton asked McNeal who he was, and McNeal gave him his identification. As

      Kemo started to wake up, McNeal kept saying, “We got to go, let’s get out of
      Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 2 of 16
      here, let’s go.” Id. at 16. McNeal began speaking “gibberish” and things that

      “didn’t make sense,” and then he tripped and fell over Kemo. Id. at 16, 28-29.


[4]   Believing that McNeal was also in need of medical treatment, Officer Helton

      advised McNeal, “Why don’t you sit down, why don’t you stay seated, why

      don’t you sit down.” Id. at 17. McNeal refused, saying, “No, I got to go, let’s

      get out of here.” Id. Officer Helton stated, “No, man, you look like you need

      some medical attention, why don’t you sit down.” Id. As McNeal tried to get

      up, he fell back down again. Worried about McNeal’s safety and his medical

      condition, Officer Helton decided to handcuff McNeal because he did not

      believe that he would otherwise be able to “keep [McNeal] there” and seated

      until more medics could arrive. Indianapolis Metropolitan Police Department

      Officer Davey Williams arrived on the scene and observed that McNeal, who

      was sitting on the ground, was “kind of like leaning over” and having trouble

      remaining in an upright position. Id. at 42. Officer Williams used his legs to

      “prop [McNeal] up” so that he did not fall and hit his head on the sidewalk. Id.

      at 51.


[5]   A second group of medics arrived. After evaluating Kemo and McNeal, the

      medics determined that both of them were in “bad shape” and needed to be

      transported to the hospital. Id. at 18. Before McNeal was transported, Officer

      Helton ran a check on his identification and discovered that he had an

      outstanding arrest warrant. During a subsequent search incident to arrest,

      Officer Helton discovered three baggies of cocaine in McNeal’s front right pants

      pocket. McNeal was transported by ambulance to a hospital emergency room.

      Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 3 of 16
[6]   The State charged McNeal with level 5 felony possession of cocaine. McNeal

      filed a motion to suppress alleging that his detention by police was

      unconstitutional, and therefore all evidence subsequently obtained should be

      suppressed. The trial court denied the motion to suppress and held a bench trial

      on March 14, 2016. McNeal renewed his objection to the admission of the

      cocaine evidence during trial. At the conclusion of the trial, the court found

      McNeal guilty as charged. This appeal ensued.


                                     Discussion and Decision
[7]   McNeal asserts that the trial court abused its discretion in admitting the cocaine

      evidence at trial. “Our review of rulings on the admissibility of evidence is

      essentially the same whether the challenge is made by a pre-trial motion to

      suppress or by trial objection.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind.

      Ct. App. 2005). “We do not reweigh the evidence, and we consider conflicting

      evidence most favorable to the trial court’s ruling.” Id. We must also consider

      the uncontested evidence favorable to the defendant. Id. We will not disturb

      the trial court’s evidentiary ruling unless it is shown that the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before the court. Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). However,

      the constitutionality of a search and seizure is a question of law that we review

      de novo. Lewis v. State, 949 N.E.2d 1243, 1246 (Ind. 2011).




      Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 4 of 16
                Section 1 – Police did not violate McNeal’s Fourth
                                Amendment rights.
[8]   We begin by addressing McNeal’s contention that the cocaine evidence was

      obtained in violation of his Fourth Amendment rights. The Fourth

      Amendment states,

              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.


[9]   “The fundamental purpose of the Fourth Amendment ‘is to protect the

      legitimate expectations of privacy that citizens possess in their persons, their

      homes, and their belongings.’” Hines v. State, 981 N.E.2d 150, 153 (Ind. Ct.

      App. 2013) (quoting Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010)).

      This protection has been extended to the states through the Fourteenth

      Amendment. Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). In general, the

      Fourth Amendment prohibits searches and seizures conducted without a

      warrant that is supported by probable cause. Clark v. State, 994 N.E.2d 252, 260

      (Ind. 2013). As a deterrent mechanism, evidence obtained without a warrant is

      not admissible in a prosecution unless the search or seizure falls into one of the

      well-delineated exceptions to the warrant requirement. Id. “Where a search or

      seizure is conducted without a warrant, the State bears the burden to prove that

      an exception to the warrant requirement existed at the time of the search or


      Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 5 of 16
       seizure.” Brooks v. State, 934 N.E.2d 1234, 1240 (Ind. Ct. App. 2010), trans.

       denied (2011).


[10]   Moreover, encounters between law enforcement officers and citizens take a

       variety of forms, some of which do not implicate the protections of the Fourth

       Amendment and some of which do. Clark, 994 N.E.2d at 261. Consensual

       encounters in which a citizen voluntarily interacts with an officer do not compel

       Fourth Amendment analysis. Id. Nonconsensual encounters do, though, and

       typically are viewed in two levels of detention: a full arrest lasting longer than a

       short period of time, or a brief investigative stop. Id. The former requires

       probable cause to be permissible; the latter requires a lower standard of

       reasonable suspicion. Id. 1


[11]   We note that McNeal concedes that his initial encounter with Officer Helton

       was consensual and did not implicate the Fourth Amendment. However, he

       maintains that Officer Helton’s behavior converted what began as a consensual

       encounter into an investigative detention lacking in reasonable suspicion that he

       was engaged in criminal activity. Accordingly, he asserts that any evidence

       discovered subsequent to his unlawful detention should have been excluded as

       “fruit of the poisonous tree.” See Segura v. United States, 468 U.S. 796, 804

       (1984) (noting that the exclusionary rule encompasses both the “primary

       evidence obtained as a direct result of an illegal search or seizure” and any



       1
         Our supreme court has recognized that what begins as a consensual encounter can “evolve[] into an
       investigative stop.” Finger v. State, 799 N.E.2d 528, 533 (Ind. 2003).

       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016                    Page 6 of 16
       “evidence later discovered and found to be derivative of an illegality.”) This

       would include the cocaine evidence obtained during the search incident to

       arrest that followed Officer Helton’s discovery of what both parties agree was a

       valid pre-existing arrest warrant. See Williams v. State, 898 N.E.2d 400, 402

       (Ind. Ct. App. 2008) (observing that search was incident to lawful arrest when

       officer learned of active arrest warrant during routine traffic stop), trans. denied

       (2009).


[12]   The State does not dispute that McNeal’s encounter with Officer Helton indeed

       evolved from a consensual encounter into an investigative detention. However,

       the State maintains that there were sufficient facts available to Officer Helton to

       support a reasonable suspicion that McNeal was engaged in the crime of public

       intoxication, and therefore his warrantless detention was lawful and did not

       taint the subsequent search incident to arrest that yielded the cocaine. 2 We

       agree with the State, but we choose to first address what we believe is the more

       pertinent justification for Officer Helton’s detention of McNeal based upon the

       facts and circumstances presented, that is, Officer Helton’s reasonable exercise

       of the community caretaking function.




       2
         The State focuses its argument on the assertion that, at the time of the detention, Officer Helton had
       probable cause to arrest McNeal for public intoxication. We decline to address that argument because we
       conclude that Officer Helton’s conduct was more akin to an investigative detention that required the lower
       standard of reasonable suspicion.

       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016                     Page 7 of 16
            Section 1.1 – Officer Helton’s detention of McNeal was
          reasonable pursuant to the community caretaking function.
[13]   One exception to the warrant requirement is when police are exercising their

       “community caretaking function.” Cady v. Dombrowski, 413 U.S. 433, 441

       (1973). In Cady, the United States Supreme Court acknowledged the

       multifaceted nature of policing in articulating this now well-known exception to

       the warrant requirement. Id. The exception recognizes that “[t]he police are

       expected not only to enforce the criminal laws but also to aid those in distress,

       abate hazards, prevent potential hazards from materializing, and perform an

       infinite variety of other tasks calculated to enhance and maintain the safety of

       communities.” Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993). The community

       caretaking function has been described as “‘a catchall for the wide range of

       responsibilities that police officers must discharge from their criminal

       enforcement activities.’” Id. (quoting United States v. Rodriguez-Morales, 929 F.2d

       780, 785 (1st Cir. 1991), cert. denied (1992)). The community caretaking

       function is a narrow exception to the privacy protections of the Fourth

       Amendment so as to ensure that the exception “is not improperly used to

       justify, after the fact, warrantless investigative foray.” Colorado v. Bertine, 479

       U.S. 367, 381 (1987) (Marshall, J., dissenting).


[14]   Recently, other panels of this Court have noted that this exception to the

       warrant requirement has been applied, in Indiana, only to justify inventory

       searches of impounded vehicles. See Cruz-Salazar v. State, No. 49A05-1511-CR-

       1782, 2016 WL 3551529, at *3 (Ind. Ct. App. June 30, 2016), trans. pending;

       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 8 of 16
       Osbourne v. State, 54 N.E.3d 428, 434 (Ind. Ct. App. 2016), trans. granted.

       Observing that numerous other state courts have adopted the community

       caretaking function as an exception to the Fourth Amendment warrant

       requirement in various situations beyond inventory searches of vehicles, those

       panels each adopted, as do we, a three-pronged analysis for evaluating claims of

       police community caretaking functions as set out by the Wisconsin Supreme

       Court in State v. Kramer, 759 N.W.2d 598, 605 (Wis. 2009). Id.


[15]   Before reiterating and applying the Wisconsin analysis, we emphasize that

       although prior Indiana courts have either not had occasion or not been inclined

       to extend the community caretaking exception beyond inventory searches of

       impounded vehicles, and most recently have extended the community

       caretaking exception only to cases in which a vehicle is involved in some way,

       see id., we see no discernible rational basis for limiting the application of the

       community caretaking function in such a manner. We understand that vehicle

       impoundments fall under the community caretaking function because

       “[c]ommunity safety often requires police to impound vehicles because they are

       abandoned and obstruct traffic, create a nuisance, or invite thieves and

       vandals.” Wilford v. State, 50 N.E.3d 371, 375 (Ind. 2016). We also understand

       that vehicles themselves can be dangerous instrumentalities, and that the

       involvement of a vehicle in most scenarios will elevate the level of potential

       hazards that police are attempting to abate by exercising their community

       caretaking function. Nevertheless, it would be illogical to think that a police

       officer cannot aid a citizen in distress, abate hazards, or perform the “infinite


       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 9 of 16
       variety of other tasks calculated to enhance and maintain the safety of

       communities,” Fair, 627 N.E.2d at 431, simply because a vehicle is not

       involved. Accordingly, we reject McNeal’s suggestion that the community

       caretaking exception is inapplicable in the present case due to the absence of a

       vehicle. With this in mind, we turn to assess Officer Helton’s execution of the

       community caretaking function pursuant to the Wisconsin approach.


[16]   In assessing whether the community caretaking function justifies the

       warrantless seizure of a person, the trial court must determine: “(1) that a

       seizure within the meaning of the [F]ourth [A]mendment has occurred; (2) if so,

       whether the police conduct was bona fide community caretaker activity; and (3)

       if so, whether the public need and interest outweigh the intrusion upon the

       privacy of the individual.” Kramer, 759 N.W.2d at 605. During the second

       step—i.e., whether the police conduct was bona fide community caretaker

       activity—“a court considers whether police conduct is ‘totally divorced from

       the detection, investigation, or acquisition of evidence relating to the violation

       of a criminal statute.’” Id. at 606 (quoting Cady, 413 U.S. at 441). This

       determination is based on an examination of the totality of the circumstances as

       they existed at the time of the police officer’s conduct. Id. at 608. While a

       police officer’s subjective intent may be a factor to consider in the totality of the

       circumstances, when “an objectively reasonable basis for the community

       caretaker function is shown, that determination is not negated by the officer’s

       subjective law enforcement concerns.” Id. The third step—the balance of

       public needs against individual privacy interests—assesses whether the officer’s


       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 10 of 16
       exercise of his or her community caretaker function was reasonable. Id. at 610.

       “The stronger the public need and the more minimal the intrusion upon an

       individual’s liberty, the more likely the police conduct will be held to be

       reasonable.” Id. at 611. In balancing these interests, the court considers: (1) the

       degree of the public interest and the exigency of the situation; (2) the attendant

       circumstances surrounding the seizure, including time, location, and the degree

       of overt authority and force displayed; (3) whether an automobile is involved;

       and (4) the availability, feasibility, and effectiveness of alternatives to the type of

       intrusion actually accomplished. Id.


[17]   In the present case, there is no dispute that Officer Helton seized McNeal

       within the meaning of the Fourth Amendment when he handcuffed him and

       had him remain seated on the sidewalk while waiting for medics to arrive.

       Turning to the second prong, Officer Helton articulated an objectively

       reasonable basis for detaining McNeal that was wholly unrelated to any

       criminal investigative duties. Officer Helton testified that he detained McNeal

       out of concern for his safety. In addition to McNeal appearing to be in “dire

       straits medically,” Tr. at 14, he had already fallen on the sidewalk twice, one

       time falling over Kemo. The objective facts that existed at the time of the

       detention indicated that McNeal was endangering himself and others.

       Moreover, Officer Helton’s subjective belief matched the objectively reasonable

       basis for detaining McNeal. Officer Helton testified that he believed that

       McNeal was in need of medical assistance, and the officer denied that he was

       investigating McNeal for any criminal activity. Id. at 31. Based upon these


       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 11 of 16
       facts, we conclude that Officer Helton was engaged in a bona fide community

       caretaking function.


[18]   In determining whether Officer Helton’s conduct was reasonable under the

       third prong of the analysis, we balance the public interest or need that was

       furthered by Officer Helton’s conduct against the degree and nature of the

       restriction upon McNeal’s liberty interests. The public interest in assuring that

       police render aid to a citizen who appears to be in severe medical distress and in

       need of immediate care, and who voluntarily and literally stumbles upon the

       officer and engages his attention, is incredibly high. Officer Helton was already

       performing his community caretaking function in checking the welfare of

       Kemo, who was lying face down on a public sidewalk, when McNeal

       interrupted and interfered, bringing his own apparent medical distress to light.

       Officer Helton did not exercise any overt authority over McNeal until McNeal

       had already fallen twice, and the officer’s requests for McNeal to stay seated for

       his own safety, and the safety of others, went unheeded. No vehicle was

       involved here, so that factor is irrelevant. Regarding the availability, feasibility,

       and effectiveness of alternatives to the type of intrusion actually accomplished,

       the facts indicate that handcuffing McNeal until medics could arrive was the

       most feasible, effective, and least intrusive means for Officer Helton to secure

       McNeal’s safety and to prevent additional potential hazards from materializing.


[19]   After balancing the interests involved, we conclude that Officer Helton’s

       conduct was reasonable under the circumstances. Accordingly, because Officer

       Helton’s conduct was a reasonable exercise of the community caretaking

       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 12 of 16
       function, his detention of McNeal did not violate McNeal’s Fourth

       Amendment rights.


              Section 1.2 – Officer Helton had reasonable suspicion to
                                   detain McNeal.
[20]   Aside from the community caretaking function, the State maintains that Officer

       Helton’s detention of McNeal was supported by reasonable suspicion that

       McNeal had committed, or was about to commit, the crime of public

       intoxication. Indiana Code Section 7.5-5-1-3(a) provides in relevant part that it

       is a class B misdemeanor for a person to be in a public place in a state of

       intoxication caused by the person’s use of alcohol or a controlled substance, if

       the person: “(1) endangers the person’s life; (2) endangers the life of another

       person; (3) breaches the peace or is in imminent danger of breaching the peace;

       or (4) harasses, annoys, or alarms another person.” Moreover, it is well settled

       that

               an officer may conduct a brief investigatory stop of an individual
               when, based on a totality of the circumstances, the officer has a
               reasonable, articulable suspicion that criminal activity is afoot.
               The investigatory stop, also known as a Terry stop, is a lesser
               intrusion on the person than an arrest and may include a request
               to see identification and inquiry necessary to confirm or dispel
               the officer’s suspicions. Reasonable suspicion is determined on a
               case by case basis. The reasonable suspicion requirement is met
               where the facts known to the officer at the moment of the stop,
               together with the reasonable inferences from such facts, would
               cause an ordinarily prudent person to believe criminal activity
               has occurred or is about to occur.



       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 13 of 16
       J.B. v. State, 30 N.E.3d 51, 55 (Ind. Ct. App. 2015) (citations and quotation

       marks omitted).


[21]   Here, as Officer Helton was in the midst of conducting a welfare check on

       Kemo, McNeal voluntarily walked up and interrupted. Officer Helton

       observed that McNeal had an “[u]nsteady gait, like not really walking straight”

       and was sweating profusely, his eyes were “reddish, “glassy,” and “glazed

       over,” and his speech was “kind of slurred.” Tr. at 14, 22, 31. McNeal got very

       close to Officer Helton and was speaking “gibberish” and things that just

       “didn’t make sense.” Id at. 28-29. McNeal then tripped and fell over Kemo.

       After “trying to get back up,” he “fell down again,” and continually refused

       Officer Helton’s suggestions to just “sit down” so as not to hurt himself or

       someone else. Id. at 17. Based upon the facts available to Officer Helton at the

       time of the detention, an ordinarily prudent person in his position could

       reasonably infer that McNeal had committed, or was about to commit, the

       crime of public intoxication.


[22]   While McNeal points out that Officer Helton testified that he was concerned

       solely with McNeal’s medical condition and safety and that the officer

       specifically denied investigating McNeal for public intoxication, Officer

       Helton’s subjective beliefs and motivations are not relevant to our Fourth

       Amendment analysis. It is well settled that “[a]n action is ‘reasonable’ under

       the Fourth Amendment, regardless of the individual officer’s state of mind, as

       long as the circumstances, viewed objectively, justify [the] action. The officer’s



       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 14 of 16
       subjective motivation is irrelevant.” Brigham City, Utah v. Stuart, 547 U.S. 398,

       404 (2006) (citations and quotation marks omitted).


[23]   Under the facts and circumstances presented, viewed objectively, we conclude

       that the facts known to Officer Helton together with the reasonable inferences

       arising from such facts would cause an ordinarily prudent person to believe that

       criminal activity may be afoot, thus justifying a brief investigatory detention.

       The detention was not a violation of McNeal’s Fourth Amendment rights.


         Section 2 – Police did not violate McNeal’s rights under the
                            Indiana Constitution.
[24]   McNeal also asserts that Officer Helton’s conduct violated Article 1, Section 11

       of the Indiana Constitution. While the language of Article 1, Section 11 is

       virtually identical to its Fourth Amendment counterpart, our supreme court has

       “made an explicit point to interpret and apply Section 11 independently from

       federal Fourth Amendment jurisprudence.” Mitchell v. State, 745 N.E.2d 775,

       786 (Ind. 2001). Under Article 1, Section 11, the State must show that, in the

       totality of the circumstances of a detention without a warrant, the police

       behavior was reasonable. J.J. v. State, 58 N.E.3d 1002, 1005 (Ind. Ct. App.

       2016).


[25]   For the same reasons explained in the context of the Fourth Amendment, we

       hold that Officer Helton’s detention of McNeal did not violate the Indiana

       Constitution. Under the totality of the circumstances, whether based upon the

       community caretaking function or reasonable suspicion of criminal activity,


       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 15 of 16
       Officer Helton’s detention of McNeal was eminently reasonable. Accordingly,

       we cannot say that the cocaine evidence discovered subsequently was derivative

       of any illegality. Therefore, we conclude that the trial court did not abuse its

       discretion in admitting the evidence, and we affirm McNeal’s conviction.


[26]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1604-CR-838 | November 14, 2016   Page 16 of 16
