MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   May 22 2018, 9:28 am
regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew M. Kubacki                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Keyno W. Thomas,                                        May 22, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1708-CR-1853
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Amy Jones, Judge
Appellee-Plaintiff.                                     The Honorable David Hooper,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G08-1611-CM-43294



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018              Page 1 of 15
[1]   Keyno W. Thomas appeals his conviction for carrying a handgun without a

      license as a class A misdemeanor. Thomas raises one issue which we revise

      and restate as whether the trial court abused its discretion in admitting certain

      evidence. We affirm.


                                      Facts and Procedural History

[2]   At approximately 1:45 a.m. on November 4, 2016, Speedway Police Officer

      Robby Harris observed Thomas operating a vehicle that had a license plate light

      that was not illuminated. Officer Harris used his computer to check the

      registered owner’s driving status and discovered that Thomas was the registered

      owner and his license was suspended. Officer Harris turned on his lights in an

      attempt to initiate a traffic stop, and Thomas’s car traveled slowly for the

      equivalent of about another three or four blocks.


[3]   When Thomas did eventually stop, Officer Harris asked Thomas to exit the car

      and handcuffed him “due to the fact that [he] wasn’t sure what his intentions

      were being that it took so long to stop.” Transcript Volume II at 22. Officer

      Harris then patted Thomas down and did not find any weapons. He asked

      Thomas for his identification, and Thomas said it was in his wallet and that

      Officer Harris could retrieve it. Officer Harris retrieved Thomas’s

      identification, observed a gun permit, and asked Thomas if he had a gun on

      him. Thomas told Officer Harris that the gun was in the center console of the

      vehicle.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 2 of 15
[4]   Officer Harris and another officer were on the scene for a brief time attempting

      to locate Thomas’s apartment so that his wife could come and retrieve the

      vehicle, but were unable to do so, and impounded the vehicle. Officer Harris

      performed an inventory search within a few minutes after placing Thomas

      under arrest for driving while suspended. Officer Harris found a semi-

      automatic handgun loaded with sixteen rounds of ammunition in the center

      console. After determining that the permit had expired, Thomas said he had

      applied for a new permit, Officer Harris had dispatch check through their

      record system, and dispatch informed him that Thomas had been denied his

      request for a lifetime handgun permit.


[5]   On November 4, 2016, the State charged Thomas with carrying a handgun

      without a license and driving while suspended as class A misdemeanors. On

      February 22, 2017, Thomas filed a motion to suppress the evidence arguing, in

      part, that he was in custody and that any consent given to search his vehicle

      was invalid given the constraints imposed upon police by Miranda v. Arizona,

      384 U.S. 436, 86 S. Ct. 1602 (1966), and Pirtle v. State, 263 Ind. 16, 323 N.E.2d

      634 (1975).


[6]   On February 28, 2017, the court held a hearing. Officer Harris testified that,

      when he observed the gun permit, he thought he may have missed a gun on the

      pat-down and asked Thomas “if he had a gun with him . . . .” Transcript

      Volume II at 8. Officer Harris testified that it was the policy of the Speedway

      Police Department to tow vehicles if there was no licensed driver at the scene

      and that he had brought with him the Speedway Police Department Towing

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 3 of 15
      Policy, which the court admitted without objection.1 The following exchange

      then occurred:


              [Prosecutor]: And to bring to the Courts attention, removal and
              towing policy from private property under paragraph H that
              officers are entitled to remove or impound any vehicle found
              upon a street, highway or roadway under the following
              conditions. Per H, any vehicle that is left unattended to the
              removal of an arrested operator and –

              Q – So, Officer Harris, you followed the Speedway Towing
              Policy in this case?

              A Yes.


      Id. at 12. The court took the matter under advisement.


[7]   On April 25, 2017, the court entered an order denying Thomas’s motion to

      suppress. The order states in part:


              1. That the following issues are before the Court:

                       a. Whether or not questions regarding a handgun without
                       advising [Thomas] of Miranda and the answers obtained
                       were unlawful.

                       b. Whether or not the inventory search of [Thomas’s]
                       vehicle was unlawful.

                                                          *****




      1
        The State refers to the Speedway Police Department Towing Policy as “Sup. St. Ex. 1.” Appellee’s Brief at
      18. Thomas refers to the policy as State’s Exhibit 1 at one point as well. See Appellant’s Brief at 10. The
      record does not contain a copy of the policy.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018            Page 4 of 15
        6. [Thomas] argues that because he was placed in handcuffs, he
        was “in custody” for purposes of Federal and State
        Constitutional tests, and that any consent given to search a
        vehicle was invalid based upon: Miranda, Arizona v. Gant, 556
        U.S. 332 (2009), and Pirtle v. State, 323 N.E.2d 634 (Ind. 1975).

        7. Officer Harris did not issue Miranda prior to asking whether or
        not [Thomas] had a gun.

        8. Miranda warnings are based upon the Fifth Amendment of the
        United States Constitution and require a suspect to be informed
        of his right to the presence and advice of counsel during a
        custodial interrogation by law enforcement. Miranda requires
        that officers advise a person who has been “taken into custody or
        otherwise deprived of his freedom of action in any significant
        way” that he has the right to remain silent and that any statement
        he makes may be used as evidence against him. Miranda v.
        Arizona, 384 U.S. 436 (1966).

        9. The Miranda safeguards only apply when a person is subjected
        to a custodial interrogation. Wright v. State, 766 N.E.2d 1223,
        1229 (Ind. Ct. App. 2002).

        10. In this case, [Thomas] argues that because he was
        handcuffed, he was in custody for purposes of Miranda warnings.

        11. Case law allows for an officer to make a traffic stop, to
        detain a person upon reasonable suspicion of criminal activity,
        and to ask questions to determine identity and verify or disprove
        the officer’s suspicions. Meredith v. State, 906 N.E.2d 867, 873
        (Ind. 2009).

        12. The initial traffic stop in this case was due to a non-
        operational license plate light, followed by a review of the
        registered owner’s driving status that returned “suspended”.
        Therefore, the initial stop for the suspected criminal activity of
        driving with a suspended license was proper.



Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 5 of 15
        13. In the case of Crabtree v. State, 762 N.E.2d 241 (Ind. Ct. App.
        2002), whereby the defendant, Crabtree, failed to comply with an
        officer’s orders and was handcuffed as a result. Id. [a]t 246. The
        Court of Appeals determined that because the handcuffing
        coupled with reasonable suspicion, the officer’s interaction was
        found to be an investigatory stop that implicated Fourth
        Amendment protections, and the admission of the evidence
        seized pursuant to the stop was not in error because the officer
        had reasonable suspicion that criminal activity had occurred. Id.
        [a]t 247.

        14. In this case, Officer Harris, had reasonable suspicion to stop
        [Thomas] for investigatory purposes. Furthermore, because he
        disobeyed the officer’s orders to pull over immediately when the
        officer initiated the traffic stop and continued driving for
        approximately three (3) blocks in a slow manner before coming
        to a stop, the subsequent additional seizure of placing [Thomas]
        in handcuffs did not rise to the level of a formal arrest. Based
        upon [Thomas’s] behavior and suspected suspended driver’s
        license, the officer was justified in handcuffing [Thomas] for
        officer safety purposes.

        15. At the time Officer Harris retrieved and opened [Thomas’s]
        wallet, at his request, he was merely investigating a driver with a
        suspended license. When the officer noticed the gun permit, he
        inquired about weapons out of concern for his safety, not an
        attempt to elicit a response indicative of a commission of a crime.
        The presence of a physical gun permit led the officer to believe
        that on its face it was valid and any questions about a weapon
        would not produce a response of an admission of additional
        criminal activity.

        16. Per the Speedway Police Department’s Tow Policy, unless a
        licensed driver is available to drive the vehicle upon a driver’s
        arrest, the vehicle will be towed pursuant to policy. In this case
        there was no other person available to drive the vehicle
        subsequent to [Thomas’s] arrest. The gun which [Thomas]


Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 6 of 15
              admitted to having was located in the passenger compartment of
              the vehicle and inventoried due to the tow.

              17. Based on the testimony and evidence presented at the
              suppression hearing, the Court now DENIES the motion to
              suppress.

                      a. The motion to suppress the officer’s question regarding
                      a handgun and the statement made by [Thomas] to the
                      police officer regarding him having a handgun is
                      DENIED.

                      b. The motion to suppress the seizure of [Thomas’s] hand
                      gun located inside the passenger or compartment of the
                      vehicle as a result of the tow policy is DENIED.


      Appellant’s Appendix Volume II at 40-44 (underlining omitted and italics

      added).


[8]   On July, 24, 2017, the court held a bench trial. Officer Harris testified that he

      noticed the gun permit in Thomas’s wallet “which led me to my question for

      everyone’s safety, do you have a gun on you?” Transcript Volume II at 22.

      During Officer Harris’s testimony, Thomas’s counsel argued that Thomas was

      in custody for purposes of Miranda and Pirtle. The court denied any request for

      suppression. Officer Harris also testified that Thomas “told me when I asked

      him whether he had a gun on him that the gun was in the center console of the

      vehicle and that’s where it was.” Id. at 27. The court admitted the gun and

      ammunition into evidence over Thomas’s continuing objection with regard to

      the property and assertion that it would be fruit of the poisonous tree.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 7 of 15
[9]    The court found Thomas guilty as charged and sentenced him to 365 days with

       361 days suspended for each count and ordered that the sentences be served

       concurrent with each other and that the sentence for driving while suspended as

       a class A misdemeanor be served consecutive to his sentence under cause

       number 49G24-1612-F6-D4788.


                                                   Discussion

[10]   The issue is whether the trial court erred in admitting certain evidence.

       Although Thomas originally challenged the admission of the evidence through

       a motion to suppress, he now challenges the admission of the evidence at trial.

       Thus, the issue is appropriately framed as whether the trial court abused its

       discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80

       (Ind. Ct. App. 2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067

       (Ind. Ct. App. 2005).


[11]   “Because the trial court is best able to weigh the evidence and assess witness

       credibility, we review its rulings on admissibility for abuse of discretion and

       reverse only if a ruling is ‘clearly against the logic and effect of the facts and

       circumstances and the error affects a party’s substantial rights.’” Carpenter v.

       State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252,

       260 (Ind. 2013)). “[T]he ultimate determination of the constitutionality of a

       search or seizure is a question of law that we consider de novo.” Id. Even if the

       trial court’s decision was an abuse of discretion, we will not reverse if the

       admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.

       Ct. App. 1999), reh’g denied, trans. denied.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 8 of 15
[12]   In ruling on admissibility following the denial of a motion to suppress, the trial

       court considers the foundational evidence presented at trial. Carpenter, 18

       N.E.3d at 1001. If the foundational evidence at trial is not the same as that

       presented at the suppression hearing, the trial court must make its decision

       based upon trial evidence and may consider hearing evidence only if it does not

       conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).


[13]   Thomas cites the Fifth Amendment of the United States Constitution as

       providing a privilege against self-incrimination during a custodial interrogation.

       He argues that “[t]he questioning of an individual as to whether they have any

       firearms, who received a pat down for firearms or weapons, is in restraints and

       has been removed from the vehicle they were the sole occupant of, is beyond

       the scope of officer safety and requires that Miranda be read.” Appellant’s Brief

       at 9-10. He asserts that his answer to Officer Harris regarding whether any

       handguns were on the scene must be suppressed and that any evidence

       uncovered after that must be suppressed as fruit of the poisonous tree. He

       argues that the discovery of the firearm pursuant to the Speedway Police

       Department Tow Policy would be an attempt to use the inevitable discovery

       rule to permit the introduction of the handgun at trial and that Indiana has not

       adopted the inevitable discovery rule. He also asserts that the extensive search




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 9 of 15
       of his car does not fit within the search incident to lawful arrest as it was not

       needed to protect officer safety or to preserve evidence. 2


[14]   The State asserts that, as Thomas does not dispute, the initial traffic stop of

       Thomas’s vehicle was valid. It argues that Officer Harris’s question regarding

       where Thomas’s gun was located did not implicate Thomas’s rights under

       Miranda and asserts that none of Officer Harris’s acts transformed the encounter

       into a custodial interrogation. It points out that Officer Harris did not place

       Thomas under arrest or inform him that he was doing so, did not ask Thomas

       to sit inside his patrol vehicle, transport him anywhere or otherwise restrain his

       freedom of movement, and did not ask Thomas any prolonged or accusatory

       questions seeking to elicit evidence of criminal activity. The State contends that

       Officer Harris’s question of whether Thomas had a gun did not implicate

       Thomas’s Miranda rights because Thomas was never interrogated. It asserts

       that the question was solely driven by the officer’s concerns about safety and

       was not an attempt to elicit a response indicative of a commission of a crime.

       The State also asserts that even if Thomas was subject to custodial interrogation

       such that his statement about where the handgun was located must be




       2
         In his motion to suppress, Thomas mentioned Article 1, Section 11 of the Indiana Constitution and cited
       Pirtle. In his brief on appeal, Thomas does not cite Pirtle, mention Article 1, Section 11, provide an
       independent analysis of the Indiana Constitution, or explain how his statement to Officer Harris violated his
       rights under the Indiana Constitution or how the search was unconstitutional under the Indiana Constitution.
       Failure to make a cogent argument under the Indiana Constitution constitutes waiver of the issue on appeal.
       See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (holding that because the defendant presented no
       authority or independent analysis supporting a separate standard under the state constitution, any state
       constitutional claim is waived).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018            Page 10 of 15
       suppressed, the admission of his statement was harmless because the handgun

       was found independently of his statement. The State notes that Thomas does

       not contest that the handgun was found in the center console of his vehicle

       during a proper inventory search conducted in anticipation of the vehicle being

       towed.


[15]   We note that Thomas does not challenge the traffic stop, his placement in

       handcuffs, the patdown, or Officer Harris’s search of his wallet. Even assuming

       that Thomas was subject to custodial interrogation, we cannot say that reversal

       is warranted. Under the Fourth Amendment, “the inevitable discovery

       exception to the exclusionary rule permits the introduction of evidence that

       eventually would have been located had there been no error.” Shultz v. State,

       742 N.E.2d 961, 965 (Ind. Ct. App. 2001) (quotations and citations omitted),

       reh’g denied, trans. denied. The Indiana Supreme Court has held that the

       inventory search is an exception to the warrant requirement that “serves an

       administrative, not investigatory, purpose—because when police lawfully

       impound a vehicle, they must also perform an administrative inventory search

       to document the vehicle’s contents to preserve them for the owner and protect

       themselves against claims of lost or stolen property.” Wilford v. State, 50 N.E.3d

       371, 374 (Ind. 2016). “Consequently, proper impoundment is the ‘threshold

       question’ to valid inventory search.” Id. (quoting Fair v. State, 627 N.E.2d 427,

       431 (Ind. 1993)). As with any warrantless search or seizure, the State bears the

       burden of proving reasonableness. Id.


[16]   The Court held:

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 11 of 15
               Impoundment is reasonable if it is authorized either by statute or
               the police’s discretionary community-caretaking function. [Fair,
               627 N.E.2d at 431-432]. Impoundment pursuant to a statute is
               necessarily reasonable because the Legislature has deemed that
               citizens’ privacy interests in their cars yield to State interests in
               those circumstances, making police inventorying a necessary
               collateral administrative function. Discretionary impoundment,
               by contrast, is an exercise of the police community-caretaking
               function in order to protect the car and community from hazards.
               Discretionary impoundments, too, may be reasonable—but as we
               recognized in Fair, and more recently in Taylor [v. State, 842
               N.E.2d 327 (Ind. 2006)], they are vulnerable to constitutional
               reasonableness challenges because of their potential for misuse as
               pretext for warrantless investigative searches under the guise of
               inventory. See Fair, 627 N.E.2d at 435; Taylor, 842 N.E.2d at
               331-33. Unless the impoundment is proper, then, an inventory
               search is per se unreasonable and any contraband found during
               the search is inadmissible “poisoned fruit.”


       Id. at 375.


[17]   The State makes no claim that impoundment of Thomas’s vehicle was

       authorized by statute. Thus, we focus on the community-caretaking function.

       See Wilford, 50 N.E.3d at 375 (“Here, we must decide whether impounding

       Wilford’s vehicle was reasonable—and because we find no statute specifically

       authorizing this impoundment, we focus on the community-caretaking

       function.”) (footnote omitted). The Indiana Supreme Court has held:


               Community safety often requires police to impound vehicles
               because they are abandoned and obstruct traffic, create a
               nuisance, or invite thieves and vandals. See Fair, 627 N.E.2d at
               431-33. These impoundments fall under the police’s
               “community caretaking function”—a catchall term for “the wide

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 12 of 15
        range of responsibilities that police officers must discharge aside
        from their criminal enforcement activities.” Id. at 431 (quoting
        United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir.
        1991), cert. denied, 502 U.S. 1030, 112 S. Ct. 868, 116 L.Ed.2d
        774 (1992)). Indeed, besides enforcing criminal laws, police “aid
        those in distress, combat actual hazards, prevent potential
        hazards . . . and provide an infinite variety of services to preserve
        and protect community safety.” Rodriguez-Morales, 929 F.2d at
        784-85.

        We have said that “police may discharge their caretaking
        function whenever circumstances compel it,” Fair, 627 N.E.2d at
        432, but also that a decision to impound “must be ‘exercised
        according to standard criteria and on the basis of something other
        than suspicion of evidence of criminal activity.’” Id. (quoting
        Colorado v. Bertine, 479 U.S. 367, 375, 107 S. Ct. 738, 93 L.Ed.2d
        739 (1987)). Otherwise, community-caretaking impoundments
        could too readily be used “for a general rummaging in order to
        discover incriminating evidence” under the pretext of an
        administrative inventory. Id. at 435 (quoting Florida v. Wells, 495
        U.S. 1, 4, 110 S. Ct. 1632, 109 L.Ed.2d 1 (1990)).

        In view of that potential for pretext, Fair set forth a strict two-
        prong standard for proving that the decision to impound a
        person’s vehicle without a warrant was reasonable:

                (1) Consistent with objective standards of sound policing,
                an officer must believe the vehicle poses a threat of harm
                to the community or is itself imperiled; and

                (2) The officer’s decision to impound adhered to
                established departmental routine or regulation.

        Id. at 433. The State must satisfy both elements—so if it cannot
        meet one, we need not consider the other. Taylor, 842 N.E.2d at
        333.


Id. at 375-376.
Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 13 of 15
[18]   On appeal, Thomas makes no argument that Officer Harris did not believe,

       consistent with objective standards of sound policing, that his vehicle posed a

       threat of harm to the community or was itself imperiled. Nor does Thomas

       argue that Officer Harris’s decision to impound the vehicle did not adhere to

       established departmental routine or regulation. Rather, Thomas asserts that the

       fact the Speedway Police Department Tow Policy “would eventually uncover

       the firearm would be an attempt to use the inevitable discovery rule to permit

       the introduction of the handgun at trial.” Appellant’s Brief at 10. He also

       asserts:


               Indiana has not adopted the inevitable discovery rule and such an
               argument cannot permit the State of Indiana to meet its burden
               “[. . .] of proving the challenged evidence had an independent
               source or to establish the attenuation of the initial taint or the
               applicability of another exception to the general rule of
               exclusion.”


       Id. (quoting Herald v. State, 511 N.E.2d 5, 8 (Ind. Ct. App. 1987), reh’g denied,

       trans. denied).


[19]   We acknowledge that the inevitable discovery exception has not been adopted

       as a matter of Indiana constitutional law. See Ammons v. State, 770 N.E.2d 927,

       935 (Ind. Ct. App. 2002), trans. denied. However, as noted, Thomas does not

       mention Article 1, Section 11, provide an independent analysis of the Indiana

       Constitution, explain how his statement to Officer Harris violated his rights

       under the Indiana Constitution or how the search was unconstitutional under



       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 14 of 15
       the Indiana Constitution, and has waived any argument under the Indiana

       Constitution.


                                                   Conclusion

[20]   For the foregoing reasons, we affirm Thomas’s conviction for carrying a

       handgun without a license as a class A misdemeanor.


[21]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1853 | May 22, 2018   Page 15 of 15
