MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                       Jul 17 2020, 10:40 am

court except for the purpose of establishing                                         CLERK
the defense of res judicata, collateral                                          Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald J. Frew                                            Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Tiffany A. McCoy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mortimer H. McClendon,                                    July 17, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2399
        v.                                                Appeal from the
                                                          Allen Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       David M. Zent, Judge
                                                          Trial Court Cause No.
                                                          02D05-1808-F4-64



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2399 | July 17, 2020                            Page 1 of 6
[1]   Mortimer H. McClendon (“McClendon”) was convicted of unlawful possession

      of a firearm by a serious violent felon,1 a Level 4 felony, and dealing in a

      synthetic drug or synthetic drug lookalike substance,2 a Level 6 felony, and was

      adjudicated as an habitual offender.3 On appeal, McClendon argues that a

      police detective violated his rights under the Fourth Amendment to the United

      States Constitution and Article I, section 11 of the Indiana Constitution when

      the detective conducted an inventory search of the car in which McClendon

      rode as a passenger, with the search uncovering a handgun and illegal drugs.

      We address the following threshold issue: whether McClendon has standing

      under the Fourth Amendment or Article I, section 11 to challenge the

      inventory search.


[2]   We affirm.


                                       Facts and Procedural History
[3]   In the early hours of August 13, 2018, Rodney Belcher (“Belcher”),

      McClendon’s friend, gave McClendon a ride in Belcher’s Nissan Maxima (“the

      Nissan”) to take McClendon to his girlfriend’s residence. Tr. Vol. 2 at 189-91.

      McClendon was carrying a bag when he entered the Nissan. Id. at 191.

      Belcher was the registered owner of the Nissan. Id. at 142. At approximately




      1
          See Ind. Code § 35-47-4-5(c).
      2
          See Ind. Code § 35-48-4-10.5 (repealed July 1, 2019).
      3
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2399 | July 17, 2020   Page 2 of 6
      2:41 a.m., Fort Wayne Police Department (“FWPD”) Detective Gavin Dambra

      (“Detective Dambra”) observed that the license plate light of the Nissan was

      not working. Id. at 139. Once McClendon and Belcher noticed that Detective

      Dambra was trailing them, McClendon grabbed his bag and was able to place it

      in the trunk of the Nissan through the “pass through,” which provided direct

      access to the trunk. Id. at 191, 197. Detective Dambra stopped the Nissan. Id.

      139-40.


[4]   Belcher was unable to provide insurance information on the Nissan, so

      Detective Dambra called for a tow truck to impound Belcher’s vehicle. Id. at

      142-44. Before the tow truck arrived, Detective Dambra conducted an

      “administrative” inventory search of the Nissan pursuant to FWPD procedures,

      uncovering the bag that McClendon had placed in the trunk. Id. at 144-47. The

      bag contained a semiautomatic 9-millimeter handgun; two large plastic bags

      that contained the synthetic drug “Spice”; a black scale; and a box of clear

      sandwich baggies, which collectively contained 377.11 grams of Fluoro ADB, a

      controlled substance. Id. at 148-49, 207; Tr. Vol. 3 at 7.


[5]   On August 16, 2018, the State charged McClendon with Count I: unlawful

      possession of a firearm by a serious violent felon; Count II: dealing in a

      synthetic drug or synthetic drug lookalike substance; Count III: possession of a

      synthetic drug or a synthetic drug lookalike substance; Count IV: invasion of

      privacy; and Count V: criminal mischief. Appellant’s App. Vol. II at 24-29, 30-

      33. On September 24, 2018, the State filed a notice of intention to seek a

      habitual offender enhancement. Id. at 6, 57-58.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2399 | July 17, 2020   Page 3 of 6
[6]   On March 29, 2019, McClendon filed a motion to suppress the evidence found

      inside of the Nissan, which the trial court denied the next day. Id. at 89-94. On

      June 7, 2019, McClendon filed a motion for certification of interlocutory order

      and for stay of proceedings pending appeal, which the trial court denied on

      June 25, 2019. Id. at 102-03. On July 26, 2019, the State filed a motion to

      dismiss counts III, IV, and V, which the trial court granted. Id. at 107-08. The

      two-day jury trial commenced on July 30, 2019. Tr. Vol. 2 at 2. Following the

      proceedings, on August 2, 2019, McClendon was convicted of unlawful

      possession of a firearm by a serious violent felon and dealing in a synthetic drug

      or synthetic drug lookalike substance; he was also adjudicated as an habitual

      offender. Appellant’s App. Vol. II at 15, 137-38, 166. On September 10, 2019,

      McClendon was sentenced to an aggregate term of eighteen years, with sixteen

      years executed. Id. at 164-67. McClendon now appeals.


                                     Discussion and Decision
[7]   McClendon contends that his rights under the Fourth Amendment to the

      United States Constitution and Article I, section 11 of the Indiana Constitution

      were violated by the inventory search of Belcher’s Nissan. A person’s Fourth

      Amendment rights against unreasonable search and seizure are personal.

      Minnesota v. Carter, 525 U.S. 83, 88 (1998). To raise a challenge under the

      Fourth Amendment, a defendant must have a legitimate expectation of privacy

      in the place that is searched, id., or show that government obtained information

      by physically intruding on a constitutionally protected area. United States v.

      Jones, 565 U.S. 400, 407 (2012).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2399 | July 17, 2020   Page 4 of 6
[8]    To raise a challenge under Article I, section 11, a defendant “must establish

       ownership, control, possession, or interest in the premises searched.” Barker v.

       State, 96 N.E.3d 638, 647 (Ind. Ct. App. 2018), trans. denied. “Many search and

       seizure issues are resolved in the same manner under both the Indiana and

       Federal Constitutions.” Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).

       “[F]ederal precedent addressing standing of a passenger asserting an interest in

       a searched vehicle is equally applicable under the Indiana Constitution.” Id. at

       598. Passengers in a car driven by the owner do not have standing to challenge

       a search of the car. Id.


[9]    Here, McClendon lacks standing under both the Fourth Amendment and

       Article I, section 11 to challenge the inventory search. Belcher owned the

       Nissan, and McClendon was a mere passenger. Tr. Vol. 2 at 142. McClendon

       concedes both facts. See Appellant’s Br. at 15. Therefore, McClendon lacked a

       legitimate expectation of privacy in the Nissan, and he failed to demonstrate

       that he had a possessory interest in the Nissan. See Carter, 525 U.S. at 88;

       Barker, 96 N.E.3d at 647. Similarly, McClendon has not even contended he

       had a possessory interest in the bag containing the handgun and illegal drugs.

       Accordingly, McClendon lacks standing to challenge the propriety of the

       inventory search under the Fourth Amendment and Article I, section 11. See

       Campos, 885 N.E.2d at 598.


[10]   Affirmed.


       Najam, J., and Brown, J., concur.


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