                                                                        FILED
                                                                   Mar 09 2018, 8:38 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Russell B. Cate                                           Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC                                 Attorney General of Indiana
Carmel, Indiana
                                                          Ian McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Carmen Nicolle Harbaugh,                                  March 9, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          29A04-1706-CR-1228
        v.                                                Appeal from the Hamilton
                                                          Superior Court
State of Indiana,                                         The Honorable Jonathan M.
Appellee-Plaintiff                                        Brown, Judge
                                                          Trial Court Cause No.
                                                          29D02-1507-F4-6405



May, Judge.




Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018                    Page 1 of 10
[1]   Carmen Nicolle Harbaugh appeals her convictions of Level 4 felony dealing in

      cocaine, 1 Level 4 felony dealing in methamphetamine, 2 Level 6 felony

      possession of cocaine, 3 Level 6 felony possession of methamphetamine, 4 Class

      B misdemeanor possession of marijuana, 5 and Class C misdemeanor possession

      of paraphernalia. 6 She argues the trial court abused its discretion when it

      admitted the evidence obtained as part of the search of her vehicle. She

      presents two issues for our review, one of which we find dispositive: whether

      the State presented sufficient evidence officers had probable cause to conduct a

      warrantless search of her vehicle. We affirm.



                               Facts and Procedural History                            7




[2]   On July 25, 2015, Westfield Police Captain John Lowes was conducting

      surveillance in plain clothes and in an unmarked police car. At approximately

      2:00 p.m., a black Chevy Blazer passed his location. Captain Lowes recognized

      the vehicle, which belonged to Harbaugh, and one of the occupants of the




      1
          Ind. Code § 35-48-4-1(c) (2014).
      2
          Ind. Code § 35-48-4-1.1(c) (2014).
      3
          Ind. Code § 35-48-4-6(a) (2014).
      4
          Ind. Code § 35-48-4-6.1(a) (2014).
      5
          Ind. Code § 35-48-4-11(a).
      6
          Ind. Code § 35-48-4-8.3(b).
      7
        We held oral argument on this matter on February 5, 2018, at Milan High School in Milan, Indiana. We
      thank the teachers and staff of Milan High School for their hospitality and counsel for their able
      presentations.

      Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018                    Page 2 of 10
      vehicle, Harbaugh, from prior encounters. He believed the driver of the vehicle

      to be Harbaugh’s boyfriend, Jacob Beach. Captain Lowes knew Beach’s

      driving privileges were suspended and Beach had an outstanding arrest warrant

      for a probation violation. Captain Lowes followed the Chevy Blazer and

      contacted Sergeant Robert Dine for back up.


[3]   Captain Lowes observed neither Harbaugh nor Beach was wearing a seatbelt.

      In addition, Captain Lowes saw the Blazer fail to stop at an intersection and the

      license plate on the vehicle was expired. He relayed this information to

      Sergeant Dine, who pulled the Blazer over in a fast food parking lot. Sergeant

      Dine approached the vehicle, confirmed Beach’s identity, and asked him to exit

      the vehicle. After a brief scuffle, Captain Lowes and Sergeant Dine arrested

      Beach.


[4]   While Captain Lowes and Sergeant Dine were arresting Beach, K9 Officer

      Song Kang arrived on the scene with his K9 partner, Gorky. Captain Lowes

      decided to impound the Blazer because its license plate was expired, and he

      asked Harbaugh to exit the vehicle. She did so and sat down at a nearby picnic

      table.


[5]   Officer Kang deployed Gorky “for a sniff of the vehicle[.]” (Tr. Vol. II at 23.)

      Gorky alerted on a zipped black bag in the middle of the back seat of the

      vehicle. Officer Kang opened the bag and found a small wooden box. Inside

      the wooden box, officers found plastic bags containing white powder and white

      crystalline substances, cash, Ziploc bags, and green plant material. Also in the


      Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 3 of 10
      black bag were digital scales and pills. Officer Kang found Harbaugh’s purse in

      the car. Inside the purse, he found several pills, some pills packaged for

      individual sale in small plastic bags, bags with a white powder residue, and a

      cell phone. Three compact mirrors with powder residue on them were also

      found inside the vehicle. Sergeant Dine place Harbaugh in handcuffs, and a

      female officer on the scene, Officer Angela Martin, conducted a search of

      Harbaugh’s person and discovered three pills, a small plastic bag containing a

      white crystalline substance, three small broken pieces of straw, and a broken

      portion of an ink pen. The officers placed Harbaugh under arrest.


[6]   On July 27, 2015, the State charged Harbaugh with Level 4 felony dealing in

      cocaine, Level 4 felony dealing in methamphetamine, Level 6 felony possession

      of cocaine, Level 6 felony possession of marijuana, Level 6 felony maintaining

      a common nuisance, 8 Class A misdemeanor possession of a controlled

      substance, 9 Class B misdemeanor possession of marijuana, and Class C

      misdemeanor possession of paraphernalia. On December 30, 2015, Harbaugh

      filed a motion to suppress. The trial court held a hearing on the motion to

      suppress on May 13, 2016, and denied the motion.


[7]   On April 17, 2017, the State moved to dismiss the Level 6 felony maintaining a

      common nuisance and Class B misdemeanor possession of a controlled




      8
          Ind. Code § 35-48-4-13(b)(1) (2014).
      9
          Ind. Code § 35-48-4-7(a).


      Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 4 of 10
       substance charges, and the trial court granted the request. Harbaugh’s jury trial

       began on April 18, 2017. The jury returned a guilty verdict on all remaining

       counts. On May 19, 2017, the trial court sentenced Harbaugh to an aggregate

       sentence of nine years with four years suspended.



                                  Discussion and Decision
[8]    The trial court admitted the evidence collected as part of the vehicle search.

       Harbaugh did not seek interlocutory review of the denial of her motion to

       suppress but instead appeals following trial. This issue is therefore

       “appropriately framed as whether the trial court abused its discretion by

       admitting the evidence at trial.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind.

       Ct. App. 2005).


[9]    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. Id. We do not reweigh the evidence, and we consider conflicting

       evidence most favorable to the trial court’s ruling. Id. However, we must also

       consider the uncontested evidence favorable to the defendant. Id.


[10]   Harbaugh argues the search of her vehicle violated her rights under the Fourth

       Amendment and Article 1, Section 11 of the Indiana Constitution because the

       interior search of the vehicle by Officer Kang’s K9 Gorky occurred “without

       probable cause, a warrant, or her consent.” (Br. of Appellant at 20.)




       Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 5 of 10
                                           Fourth Amendment
[11]   The Fourth Amendment to the United States Constitution and Article I,

       Section 11 of the Indiana Constitution protect an individual’s privacy and

       possessory interests by prohibiting unreasonable searches and seizures.

       Lundquist, 834 N.E.2d at 1067. Generally, to be lawful, a search must be

       conducted after police obtain a judicially issued search warrant. Id. When a

       search is conducted without a warrant, the State has the burden of proving an

       exception to the warrant requirement permits the admission of the evidence

       collected. Id.


[12]   The “automobile exception” to the warrant requirement allows police to search

       a vehicle without obtaining a warrant if they have probable cause to believe the

       vehicle contains evidence of a crime. State v. Hobbs, 933 N.E.2d 1281, 1285

       (Ind. 2010). Under this exception, “an operational vehicle is inherently mobile,

       whether or not a driver is behind the wheel or has ready access.” Id. at 1286. A

       dog sniff of the exterior of the vehicle indicating the presence of illicit

       substances provides probable cause for a warrantless search of the interior of the

       vehicle under the automobile exception. Id.


[13]   Harbaugh does not argue about whether her vehicle was inherently mobile.

       Instead, Harbaugh argues the State did not provide evidence Officer Kang’s K9

       partner alerted outside her vehicle prior to entering the vehicle and finding

       narcotics. Thus, she contends, the officers did not have probable cause to

       search the interior of her vehicle without a warrant.


       Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018      Page 6 of 10
[14]   During trial, Officer Kang testified he “deployed [Gorky] into the vehicle[.]”

       (Tr. Vol. III at 25.) However, Sergeant Dine testified, during the Motion to

       Suppress hearing, “the dog indicated on the vehicle.” (Tr. Vol. II at 23.) Our

       standard of review requires we consider the facts in the light most favorable to

       the State. See Lundquist, 834 N.E.2d at 1067 (appellate court considers facts in

       the light most favorable to the State). Thus, Gorky’s alert outside Harbaugh’s

       car created probable cause to search the vehicle under the automobile exception

       to the Fourth Amendment. See Hobbs, 933 N.E.2d at 1285 (exterior dog sniff

       resulting in alert for narcotics constitutes probable cause for interior search of

       vehicle under automobile exception to the Fourth Amendment).


[15]   We acknowledge that Harbaugh’s main contention on appeal is that Gorky

       never alerted outside the vehicle, only alerted once inside the vehicle, and the

       interior sniff of her vehicle which resulted in the discovery of contraband

       violated her constitutional rights under the Fourth Amendment and Article 1,

       Section 11 of the Indiana Constitution. Had there only been evidence that

       Gorky alerted inside the vehicle, see Tr. Vol. III at 25 (Officer Kang testified he

       “deployed [Gorky] into the vehicle”), this would have been an issue of first

       impression in Indiana. However, since the State also presented evidence Gorky

       alerted outside the vehicle, we need not address the legality of an interior dog

       sniff. See Lundquist, 834 N.E.2d at 1067 (appellate court cannot reweigh

       evidence or judge the credibility of witnesses).




       Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 7 of 10
                                          Article 1, Section 11
[16]   The language of Article 1, Section 11, the search and seizure provision of the

       Bill of Rights of the Indiana Constitution, is virtually identical to its Fourth

       Amendment counterpart. Article 1, Section 11 provides:


               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.


       Our Indiana Supreme Court has interpreted and applied Section 11

       independently from federal Fourth Amendment jurisprudence. Mitchell v. State,

       745 N.E.2d 775, 786 (Ind. 2001).


[17]   To determine whether a search violates Article 1, Section 11 of the Indiana

       Constitution, we must evaluate the “reasonableness of the police conduct under

       the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.

       2005). “The totality of the circumstances requires consideration of both the

       degree of intrusion into the subject’s ordinary activities and the basis upon

       which the officer selected the subject of the search or seizure.” Id. at 360. In

       Litchfield, our Indiana Supreme Court summarized this evaluation:


               In sum, although we recognize there may well be other relevant
               considerations under the circumstances, we have explained
               reasonableness of a search or seizure as turning on a balance of:
               1) the degree of concern, suspicion, or knowledge that a violation
               has occurred, 2) the degree of intrusion the method of the search

       Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 8 of 10
                or seizure imposes on the citizens’ ordinary activities, and 3) the
                extent of law enforcement needs.


       Id. at 361.


[18]   Here, Gorky’s indication to the presence of narcotics on the exterior of

       Harbaugh’s vehicle provided a “degree of concern, suspicion, or knowledge that

       a violation occurred.” See Hobbs, 933 N.E.2d at 1285 (exterior dog sniff

       resulting in alert for narcotics constitutes probable cause for interior search of

       vehicle under automobile exception to the Fourth Amendment). The interior

       search of Harbaugh’s vehicle likely imposed a degree of intrusion into her

       ordinary activities; however, law enforcement need was elevated because, while

       she could not do so legally because the license plates were expired, Harbaugh

       could have absconded with the vehicle as it was operable at the time and she

       had not yet been arrested. The totality of the circumstances leads us to

       conclude the officers’ search was reasonable. See Myers v. State, 839 N.E.2d

       1146, 1154 (Ind. 2005) (upholding warrantless automobile search under similar

       circumstances). 10



                                                  Conclusion



       10
          Harbaugh also argues the inventory search of her vehicle was improper for a variety of reasons including
       the use of Gorky in the search, the lack of inventory slip indicating the items in the car, and the opening of
       closed containers. While we will not address this issue as the probable cause issue is dispositive, we remind
       the Westfield Police Department of the importance of complying with published department policy when
       conducting an inventory search.

       Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018                           Page 9 of 10
[19]   Gorky’s alert to the presence of narcotics supplied probable cause for officers to

       engage in a warrantless search of Harbaugh’s car under the automobile

       exception of the Fourth Amendment. Similarly, based on the totality of the

       circumstances, the warrantless search did not run afoul of Article 1, Section 11

       of the Indiana Constitution. Therefore, the trial court did not abuse its

       discretion when it admitted evidence obtained as part of the warrantless search

       of Harbaugh’s vehicle. Accordingly, we affirm her convictions.


[20]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 29A04-1706-CR-1228 | March 9, 2018   Page 10 of 10
