                                                                              FILED
                                                                         May 09 2019, 9:08 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




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



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kenneth Davis,                                            May 9, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-2313
              v.                                                Appeal from the
                                                                Marion Superior Court
      State of Indiana,                                         The Honorable
      Appellee-Plaintiff                                        Ronnie Huerta, Magistrate
                                                                Trial Court Cause No.
                                                                49G19-1612-CM-46098



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Kenneth Davis was pulled over for a traffic violation. During the stop, the

      police officer suspected that the truck was stolen because Davis had a


      Court of Appeals of Indiana | Opinion 18A-CR-2313 | May 9, 2019                             Page 1 of 9
      suspended driver’s license and could not prove ownership of the truck. After

      the officer had Davis get out of the truck, he asked him if he had any weapons

      in the truck. Davis said yes. The officer then handcuffed Davis for officer

      safety and retrieved the gun from the truck. The officer later learned that the

      truck was not stolen but that Davis did not have a valid gun license. Davis was

      not arrested on the scene, but he was later charged with carrying a handgun

      without a license and driving while suspended. Davis was found guilty on both

      charges.


[2]   Davis now appeals, arguing that the search of his truck was unlawful and that

      the trial court therefore erred in admitting the officer’s testimony that he found

      a gun in the truck. We find that the limited search of the truck for the gun was

      lawful pursuant to Michigan v. Long, 463 U.S. 1032 (1983). That is, the officer

      reasonably believed that Davis was dangerous and might gain immediate

      control of the gun. We therefore affirm Davis’s conviction for carrying a

      handgun without a license. However, because both parties agree that the

      evidence is insufficient to prove that Davis committed driving while suspended,

      we reverse that conviction and remand the case to the trial court with

      instructions to issue an amended sentencing order.



                             Facts and Procedural History
[3]   Around 2:30 p.m. on November 1, 2016, Indianapolis Metropolitan Police

      Department Officer Christopher Morgan pulled over Davis for failing to signal.

      Officer Morgan approached Davis’s truck and asked for his driver’s license and

      Court of Appeals of Indiana | Opinion 18A-CR-2313 | May 9, 2019            Page 2 of 9
      registration. Davis gave Officer Morgan his driver’s license but said he “didn’t

      have any paperwork” for the truck because he was in the process of buying it.

      Tr. p. 9. Officer Morgan returned to his patrol car to run Davis’s driver’s

      license and “the vehicle’s information.” Id. Officer Morgan learned that

      Davis’s driver’s license was suspended and that “the truck belonged to

      somebody else.” Id. At this point, Officer Morgan became concerned that the

      truck “could be stolen.” Id.


[4]   Officer Morgan returned to the truck and asked Davis to step out because he

      “didn’t know whose vehicle it was” and “wanted to confirm whether it was

      stolen.” Id. at 13-14; see also id. at 11. Once Davis was outside the truck,

      Officer Morgan asked him “if he had any weapons in the” truck, and Davis said

      yes. Id. at 14. Officer Morgan “handcuffed [Davis] for officer safety” and took

      him to the rear of the truck. Id. Officer Morgan waited for other officers to

      arrive, at which point he “searched the truck for the gun.” Id. He found a

      handgun (which was not in a case) on the front seat under a pile of clothes. He

      also found a box of .40 caliber ammunition and a couple of magazines (one of

      which was for a different gun). According to Indiana Code section 35-47-2-

      1(a), “a person shall not carry a handgun in any vehicle or on or about the

      person’s body without being licensed.” But there are exceptions, including: a

      person may carry a handgun without being licensed if “the person carries the

      handgun in a vehicle that is owned, leased, rented, or otherwise legally

      controlled by the person, if the handgun is: (A) unloaded; (B) not readily

      accessible; and (C) secured in a case.” Ind. Code § 35-47-2-1(b)(3). Officer


      Court of Appeals of Indiana | Opinion 18A-CR-2313 | May 9, 2019            Page 3 of 9
      Morgan returned to Davis at the rear of the truck, gave him Miranda warnings,

      and asked him where he purchased the gun. Davis told him “ArmsList.” Tr. p.

      18. Officer Morgan then asked Davis if he knew the owner of the truck, and

      Davis said yes. After establishing that this person owned the truck, Officer

      Morgan called him, and he confirmed that Davis was buying the truck from

      him. Officer Morgan had the owner come pick up the truck to avoid towing

      fees. At some point, Officer Morgan learned that Davis’s gun license was

      “pending,” meaning it had not yet been issued. Id. Officer Morgan confiscated

      the gun. Davis was not arrested at the time and was allowed to leave.

      Appellant’s App. Vol. II p. 35.


[5]   Thereafter, the State charged Davis with Class A misdemeanor carrying a

      handgun without a license and Class A misdemeanor driving while suspended

      (elevated from a Class A infraction based on a prior judgment for the same

      violation). At the bench trial, the State called one witness, Officer Morgan.

      During Officer Morgan’s testimony, defense counsel moved to suppress

      evidence of the gun, arguing that Officer Morgan “had no reason to search th[e]

      truck” for officer safety because Davis was “in handcuffs at the back of the

      truck.” Tr. p. 15. At the conclusion of the evidence, the trial court asked the

      parties to submit authority on the legality of the search. Id. at 26. Both Davis

      and the State submitted authority, Appellant’s App. Vol. II pp. 27, 34, and the

      trial court reconvened two weeks later to announce its decision. Specifically,

      the trial court found Davis guilty of Class A misdemeanor carrying a handgun

      without a license. Tr. p. 36. The trial court did not discuss the charge of


      Court of Appeals of Indiana | Opinion 18A-CR-2313 | May 9, 2019           Page 4 of 9
      driving while suspended. The court, however, later issued a sentencing order

      reflecting that Davis was found guilty of Class A misdemeanor carrying a

      handgun without a license and driving while suspended as an infraction (as a

      lesser included of the Class A misdemeanor). Appellant’s App. Vol. II p. 9.


[6]   Davis now appeals.



                                  Discussion and Decision
[7]   Davis raises two issues on appeal, one of which the State concedes. That is,

      Davis argues that the evidence is insufficient to prove that he committed the

      infraction of driving while suspended because the State “did not produce any

      . . . evidence as to the status of [his] driver’s license.”1 Appellant’s Br. p. 10.

      The State concedes that it did not present such evidence. Accordingly, we

      reverse Davis’s conviction for driving while suspended and remand this case to

      the trial court with instructions to issue an amended sentencing order.


[8]   Davis next argues that the search of his truck was unlawful and that therefore

      the trial court erred in admitting Officer Morgan’s testimony that he found a

      handgun in the truck. “[S]earches conducted outside the judicial process,

      without prior approval by judge or magistrate, are per se unreasonable under




      1
       At trial, Davis objected to Officer Morgan’s testimony that his driver’s license was suspended on hearsay
      grounds because “the State hasn’t provided certified BMV records to show that” his driver’s license was
      suspended. Tr. p. 9. The trial court admitted Officer Morgan’s testimony, not for the truth of the matter
      asserted, but to show what steps he took during the stop. Id. at 10. The State never introduced BMV records
      showing that Davis’s driver’s license was suspended.

      Court of Appeals of Indiana | Opinion 18A-CR-2313 | May 9, 2019                                 Page 5 of 9
      the Fourth Amendment—subject only to a few specifically established and well-

      delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (footnotes

      omitted). Among the exceptions to the warrant requirement are officer-safety

      searches of cars pursuant to Michigan v. Long, 463 U.S. 1032 (1983). United

      States v. Vaccaro, 915 F.3d 431, 436 (7th Cir. 2019). Long holds:


              [T]he search of the passenger compartment of an automobile,
              limited to those areas in which a weapon may be placed or
              hidden, is permissible if the police officer possesses a reasonable
              belief based on “specific and articulable facts which, taken
              together with the rational inferences from those facts, reasonably
              warrant” the officers in believing that the suspect is dangerous
              and the suspect may gain immediate control of weapons.


      463 U.S. at 1049-50 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)) (emphasis

      added). “In applying this test, the key question is whether the search was

      reasonable.” Vaccaro, 915 F.3d at 436. Long searches are grounded in concerns

      for officer safety, so if that concern is not present, Long does not justify the

      search. Id.


[9]   Here, Long’s first prong, a reasonable belief that the suspect is dangerous, is

      satisfied. Although Officer Morgan initially pulled over Davis for a traffic

      violation, he learned during the stop that Davis’s driver’s license was suspended

      and that he could not show ownership of the truck. This caused Officer

      Morgan to suspect that the truck was stolen, which would be a Level 6 felony.

      See Ind. Code § 35-43-4-2(a)(1)(B)(ii). Officer Morgan then asked Davis if he

      had any weapons in the truck. When Davis said yes, Officer Morgan possessed


      Court of Appeals of Indiana | Opinion 18A-CR-2313 | May 9, 2019               Page 6 of 9
       a reasonable belief, based on specific and articulable facts, that Davis was

       dangerous.


[10]   Davis relies on Washington v. State, 922 N.E.2d 109 (Ind. Ct. App. 2010), but it

       is readily distinguishable from this case. In Washington, a police officer pulled

       over the defendant for a traffic violation. When the officer approached the car,

       he asked the defendant if there were any weapons inside, and the defendant

       said that he had a gun under his seat and that he had a license for it. The officer

       removed the defendant from the car, placed him in handcuffs, and had him sit

       on a nearby curb. When the officer went to retrieve the gun, he found a bag of

       marijuana. The State charged the defendant with Class A misdemeanor

       possession of marijuana. The defendant filed a motion to suppress the

       marijuana, which the trial court denied. On interlocutory appeal, we held that

       the search of the defendant’s car was not justified and that therefore the

       marijuana should have been suppressed. Id. at 113. We reasoned that at the

       time of the search, there was not an articulable basis of a legitimate concern for

       officer safety because the defendant “made no furtive movements, answered the

       officer’s questions, and showed no disrespect to the officer” and because the

       officer “had no information that any crime or violation of law had been or was

       about to be committed, except for the” traffic violation. Id. Here, however,

       Officer Morgan had reason to believe that he might have discovered a felony

       auto theft and therefore had cause to be concerned for his safety. Washington

       does not control this case.




       Court of Appeals of Indiana | Opinion 18A-CR-2313 | May 9, 2019              Page 7 of 9
[11]   The second prong of the Long inquiry requires the State to establish that Officer

       Morgan reasonably suspected that Davis could gain “immediate control” of the

       gun in the truck. Davis argues that he could not gain immediate control of the

       gun because he “was restrained in handcuffs at the rear” of the truck.

       Appellant’s Br. p. 16. If Davis had been placed under arrest, we might agree

       with him. See Arizona v. Gant, 556 U.S. 332, 335 (2009) (holding that officer-

       safety concerns did not justify a search incident to the arrest of a driver who

       had been handcuffed and locked in the back seat of a squad car); Vaccaro, 915

       F.3d at 437 (clarifying that Gant applies to searches incident to arrest, not Terry

       stops). But Davis was not placed under arrest. He was merely detained

       temporarily while Officer Morgan was waiting to hear back whether the truck

       was stolen. Because Davis was not arrested, it was possible that he would

       regain access to the truck. And in fact, Officer Morgan eventually learned that

       the truck was not stolen, Davis was not arrested on the scene, and when the

       owner arrived to pick up the truck, Davis’s girlfriend was with him. Tr. p. 18.

       Therefore, the search of the truck was lawful under Long, and the trial court did

       not err in admitting Officer Morgan’s testimony that he found a handgun in the

       truck. See Vaccaro, 915 F.3d at 438 (“By admitting that he would have been

       allowed to return to his car, Vaccaro conceded that he could have gained

       ‘immediate control of weapons’ inside the vehicle.”); see also Gant, 556 U.S. at

       352 (Scalia, J., concurring) (“In the no-arrest case, the possibility of access to




       Court of Appeals of Indiana | Opinion 18A-CR-2313 | May 9, 2019             Page 8 of 9
       weapons in the vehicle always exists, since the driver or passenger will be

       allowed to return to the vehicle when the interrogation is completed.”).2


[12]   Affirmed in part, reversed and remanded in part.


       Kirsch, J., and Altice, J., concur.




       2
         Davis also argues that the search violated Article 1, Section 11 of the Indiana Constitution. In its brief, the
       State claims that Davis waived this issue by failing to challenge the search under the Indiana Constitution in
       the trial court. Davis did not file a reply brief to respond to the State’s claim. Even if we found that this issue
       was not waived, Officer Morgan’s limited search of the truck for a gun that Davis admitted possessing in the
       midst of a felony auto-theft investigation was reasonable under the Indiana Constitution. See Litchfield v.
       State, 824 N.E.2d 356, 361 (Ind. 2005) (setting forth three-part reasonableness test for searches and seizures
       under the Indiana Constitution).

       Court of Appeals of Indiana | Opinion 18A-CR-2313 | May 9, 2019                                        Page 9 of 9
