                                                                           FILED
                                                                       Sep 28 2018, 9:39 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana



                                        IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                    September 28, 2018
Appellant-Plaintiff,                                 Court of Appeals Case No.
                                                     18A-CR-92
       v.                                            Appeal from the Tippecanoe
                                                     Superior Court
Lawrence Lucas,                                      The Honorable Randy J. Williams,
Appellee-Defendant.                                  Judge
                                                     Trial Court Cause No.
                                                     79D01-1704-F4-20



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-92 | September 28, 2018                           Page 1 of 9
                              STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, State of Indiana (State), appeals the trial court’s suppression

      of evidence obtained after a search of the home and garage of Appellee-

      Defendant, Lawrence Lucas (Lucas).


[2]   We reverse and remand for further proceedings.


                                                 ISSUE
[3]   The State presents one issue, which we restate as: Whether the trial court’s

      grant of Lucas’ motion to suppress is contrary to law.


[4]   On the morning of May 11, 2016, Sergeant Matthew Gard (Sergeant Gard) of

      the Lafayette Police Department took a report from Bernard Brooks (Brooks)

      regarding an assault and theft. Brooks had been fighting with Lucas’ mother,

      Anita, the previous evening and had gone to Lucas’ home to sleep. Brooks fell

      asleep on Lucas’ floor, only to be awakened by Anita hitting him on the head

      with an aluminum baseball bat and by Lucas’ sister, Sharmeka, hitting him

      with her fists. Brooks was injured in the fracas and fled the home, leaving

      behind a jacket and a hat. Brooks also reported to Sergeant Gard that Anita

      and Sharmeka had taken his cell phone and $60 from his pocket.


[5]   Based on Brooks’ report, Sergeant Gard procured a search warrant for Lucas’

      home which provided for a search in relevant part as follows:



      Court of Appeals of Indiana | Opinion 18A-CR-92 | September 28, 2018       Page 2 of 9
             A yellow two story home with an attached two car garage with
             brick siding on the first level and yellow siding on the second
             floor, located at 3023 Yorktown Court, Lafayette, Indiana[,]


             and to diligently search for, seize and forensically examine:


             Clothing, [a] baseball bat, a cellular phone, U.S. currency, blood
             evidence or any evidence relating to an assault and/or theft
             occurring with said residence.


      (Appellant’s Appendix Vol. II, p. 42).


[6]   Upon executing the search warrant, Sergeant Gard found blood about the home

      and a bloody baseball bat which matched the description Brooks had given him

      in the kitchen. While searching, Sergeant Gard went through a door located in

      the living room and into the attached garage. A black vehicle was parked inside

      the garage. Next to the vehicle on the ground, Sergeant Gard found a bloodied

      jacket matching the description of Brooks’ jacket. Sergeant Gard looked inside

      the black vehicle and saw a large mound in the back seat which had been

      covered by a blanket. Sergeant Gard was concerned that objects could be

      concealed under the blanket, so he reached inside one of the vehicle’s partially-

      opened windows and moved the blanket, revealing a large paper bag containing

      what Sergeant Gard suspected through his training and experience was

      synthetic marijuana.


[7]   Based on the discovery of the suspected synthetic marijuana, as well as a safe,

      “shake” on the garage floor, and a large cardboard box in the garage which

      bore the label “California Herb Company,” Sergeant Gard stopped his search
      Court of Appeals of Indiana | Opinion 18A-CR-92 | September 28, 2018        Page 3 of 9
       and procured a second search warrant authorizing a search of the home and the

       black vehicle for evidence of narcotics activity. (Transcript Vol. II, p. 15). That

       search yielded additional evidence.


[8]    On April 20, 2017, the State filed an Information charging Lucas with one

       Count of unlawful possession of a firearm by a serious violent felon, a Level 4

       felony; one Count of dealing in a synthetic drug or synthetic drug lookalike

       substance, a Level 6 felony; one Count of possession of a synthetic drug or

       synthetic drug lookalike substance, a Class A misdemeanor; and one Count of

       maintaining a common nuisance, a Level 6 felony.


[9]    On October 16, 2017, Lucas filed a motion to suppress in which he argued that

       the evidence procured from the search exceeded the scope of the warrant

       because “there was only bare speculation by Officer Gard regarding what was

       under the blanket.” (Appellant’s App. Vol. II, p. 56). On November 27, 2017,

       the trial court held a hearing on Lucas’ motion. On December 20, 2017, the

       trial court entered its order granting Lucas’ motion to suppress, ruling in

       relevant part “that the officer’s entry into the vehicle and moving of the blanket

       exceeded the scope of the warrant and all evidence seized as a result of said

       action is suppressed.” (Appellant’s App. Vol. II, p. 62).


[10]   The State now appeals. Additional facts will be added as necessary.


                             DISCUSSION AND DECISION
[11]   We begin by noting that Lucas did not file a brief responding to the State’s

       appeal. As such, the State need only establish prima facie error to merit reversal
       Court of Appeals of Indiana | Opinion 18A-CR-92 | September 28, 2018      Page 4 of 9
       of the trial court’s ruling in Lucas’ favor. State v. Costas, 552 N.E.2d 459, 462

       (Ind. 1990). The State appeals following the trial court’s grant of a motion to

       suppress, which effectively terminated the prosecution of this case. Because the

       State appeals from a negative judgment, it bears the burden to show that the

       trial court’s ruling was contrary to law. State v. Brown, 70 N.E.3d 331, 335 (Ind.

       2017). When reviewing a trial court’s suppression ruling, we determine

       whether the record contains substantial evidence of probative value that

       supports the trial court’s decision. Id. “We evaluate the trial court’s findings of

       fact deferentially, neither reweighing the evidence nor reassessing the credibility

       of the witnesses.” Id. However, we review the trial court’s conclusions of law

       de novo. Id.


[12]   Lucas argued before the trial court that the search of the black vehicle exceeded

       the scope of the warrant because Sergeant Gard’s act of moving the blanket in

       the vehicle was an extension of the warrant to a place where none of the objects

       listed in the warrant could have been found. Lucas contended that Sergeant

       Gard could only speculate what was under the blanket, and, therefore, his act of

       moving the blanket was unreasonable. The State counters that the search

       warrant permitted a search of the garage and that, therefore, any containers,

       including the black vehicle located there, were also searchable under the

       parameters of the warrant.




       Court of Appeals of Indiana | Opinion 18A-CR-92 | September 28, 2018       Page 5 of 9
[13]   The Fourth Amendment to the United States Constitution1 requires that a

       search warrant describe with specificity the place to be searched and the items

       sought. Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). If a search exceeds the

       scope of the warrant, it is unconstitutional. Sidener v. State, 55 N.E.3d 380, 383

       (Ind. Ct. App. 2016). Our United States Supreme Court has provided guidance

       on the parameters of a warranted search:


                A lawful search of fixed premises generally extends to the entire
                area in which the object of the search may be found and is not
                limited by the possibility that separate acts of entry or opening
                may be required to complete the search. Thus, a warrant that
                authorizes an officer to search a home for illegal weapons also
                provides authority to open closets, chests, drawers, and
                containers in which the weapon might be found . . . . When a
                legitimate search is under way, and when its purpose and its
                limits have been precisely defined, nice distinctions between
                closets, drawers, and containers, in the case of a home, or
                between glove compartments, upholstered seats, trunks, and
                wrapped packages, in the case of a vehicle, must give way to the
                interest in the prompt and efficient completion of the task at
                hand.


       United States v. Ross, 456 U.S. 798, 820-21 (1982) (footnote omitted). It appears

       that our Indiana state courts have not decided the precise issue of whether the

       Fourth Amendment permits an officer who has procured a search warrant for a




       1
         We do not address whether the search at issue here was permitted under the Indiana Constitution, as Lucas
       did not develop a separate state constitutional analysis below, Lucas has not filed an appellate brief, the trial
       court did not specify the constitutional basis for its order granting Lucas’ motion to suppress, and, on appeal,
       the State does not proffer any separate state constitutional analysis. (Appellant’s Br. p. 14 n.1).

       Court of Appeals of Indiana | Opinion 18A-CR-92 | September 28, 2018                                 Page 6 of 9
       home and garage to also search any vehicles found on the premises. Although

       we are not bound by federal authority, we may look to it for guidance in the

       absence of state law. Stonger v. Sorrell, 776 N.E.2d 353, 355-56 (Ind. 2002).


[14]   The State draws our attention to United States v. Percival, 756 F.2d 600 (7th Cir.

       1985). While executing a search warrant for Percival’s home and attached

       garage, agents found a vehicle in the garage. Id. at 605. The agents unlocked

       the trunk and found a suitcase containing a large amount of illegal drugs. Id.

       Percival argued that the search of the vehicle located in his garage exceeded the

       scope of the search warrant and that a vehicle should not be viewed the same

       manner as other personal items found in a home because a vehicle has a lesser

       connection to the premises than other household items such as furniture or

       cabinets. Id. at 612.


[15]   In rejecting that argument, the Percival court noted that while a vehicle is less

       fixed than a closet or cabinet, it is “no less fixed than a suitcase or handbag

       found on the premises, both of which can readily be searched under Ross if

       capable of containing the object of the search.” Id. Observing the trend in

       other jurisdictions upholding such searches, the Percival court held that “a

       search warrant authorizing a search of particularly described premises may

       permit the search of vehicles owned or controlled by the owner of, and found

       on, the premises.” Id. Percival has subsequently enjoyed support in our federal

       circuit and district courts. See e.g., United State v. Evans, 92 F.3d 540, 543 (7th

       Cir. 1996) (search of trunk of vehicle in attached garage pursuant to warrant for

       house “with detached garage”), cert. denied 519 U.S. 1020 (1996); see also United
       Court of Appeals of Indiana | Opinion 18A-CR-92 | September 28, 2018         Page 7 of 9
       States v. Rivera, 738 F. Supp. 1208, 1218 (N.D. Ind. 1990) (search of truck in

       driveway pursuant to warrant for home’s premises).


[16]   We recognize that Hoosiers have a heightened expectation of privacy in their

       vehicles. See Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995) (“With respect to

       automobiles generally, it may safely be said that Hoosiers regard their

       automobiles as private and cannot easily abide their uninvited intrusion.”).

       However, we find the reasoning of Percival to be persuasive and hold that, under

       the Fourth Amendment, a search warrant authorizing a search of a particularly

       described premises permits the search of vehicles owned or controlled by the

       owner of, and found on, the premises.


[17]   Here, Sergeant Gard procured a search warrant for Lucas’ “two story home

       with an attached two car garage” to search for “[c]lothing, [a] baseball bat, a

       cellular phone, U.S. currency, blood evidence or any evidence relating to an

       assault and/or theft occurring with said residence.” (Appellant’s App. Vol. II,

       p. 42). When Sergeant Gard entered the garage, he had not yet located the cell

       phone or the $60 Brooks had reported stolen. Sergeant Gard was permitted to

       search the black vehicle and, in the process, to lift the blanket covering the large

       mound located in the back seat, because the vehicle and the mound were

       capable of containing those objects. Ross, 456 U.S. at 820-21; Percival, 756 F.2d

       at 612. The State has shown that the trial court’s ruling granting Lucas’ motion

       to suppress was contrary to law.




       Court of Appeals of Indiana | Opinion 18A-CR-92 | September 28, 2018       Page 8 of 9
                                          CONCLUSION
[18]   Concluding that the search of the vehicle in Lucas’ garage did not

       unconstitutionally exceed the scope of the search warrant, we reverse and

       remand for further proceedings consistent with this opinion.


[19]   Reversed and remanded.


[20]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-92 | September 28, 2018   Page 9 of 9
