                                                                      FILED
                                                                  Sep 09 2016, 8:59 am


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



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James R. Recker                                          Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Levi Runnells,                                           September 9, 2016

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         11A01-1601-CR-30
        v.                                               Appeal from the Clay Superior
                                                         Court

State of Indiana,                                        The Honorable Blaine Akers, Judge
                                                         Cause No. 11D01-1504-F6-263
Appellee-Plaintiff.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 11A01-1601-CR-30 | September 9, 2016     Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Levi Runnells (Runnells), appeals his conviction for

      theft, a Level 6 felony, Ind. Code § 35-43-4-2.


[2]   We affirm.


                                                    ISSUE

[3]   Runnells raises one issue on appeal, which we restate as: Whether the trial

      court abused its discretion in admitting certain evidence.


                           FACTS AND PROCEDURAL HISTORY

[4]   On April 1, 2015, Matthew Bault (Bault) was working as a manager at a CVS

      Pharmacy in Clay County, Indiana. During his shift, two men walked into the

      store: one of the men was wearing a black hooded sweatshirt, and the other,

      who was later identified as Runnells, had a Mohawk hairstyle. The hooded

      male wandered off in the store while Runnells asked where the razors and a

      type of pre-paid phone card were located. Because the men were acting

      suspiciously, after assisting Runnells, Bault went to the store’s office located

      about twenty feet above the ground floor. The office had large windows which

      seemed like mirrors to customers. Bault observed Runnells pick a pink electric

      razor and then walk to the sunglasses stand in another part of the store. At the

      second location, Runnells placed the razor inside his pants pockets. After

      seeing Runnells’ act of concealment, Bault called the police and gave a

      description of both men. While the police were on the way, the male wearing

      the hooded sweatshirt left the store after concealing a pair of sunglasses in his
      Court of Appeals of Indiana | Memorandum Opinion 11A01-1601-CR-30 | September 9, 2016   Page 2 of 9
      hooded sweatshirt. Runnells remained in the store to purchase several other

      items. The moment Runnells walked out of the store, the police had arrived

      and detained the male with the hooded sweatshirt. Captain Dennis Archer

      (Captain Archer) of the Brazil Police Department approached Runnells and

      informed him about the theft complaint. Runnells denied taking anything from

      the store and he presented to Captain Archer a bag containing the merchandise

      he had purchased from the store and a matching receipt. However, because of

      the theft complaint, Captain Archer conducted a pat-down search on Runnells’

      exterior clothing. In the process, an electric razor that had been tucked in

      Runnells’ pants fell on the ground, and a further search of Runnells’ pants

      pockets yielded a car phone charger and a cord. When the items were returned

      to the store, Bault confirmed that the razor, car charger and cord, had been

      stolen from the store. Runnells was apprehended and transported to the police

      station. After being Mirandarized, Runnells was interrogated about the theft.

      Runnells stated that he stole the items just “for the thrill of stealing stuff.”

      (Transcript p. 124).


[5]   On April 6, 2015, the State filed an Information, charging Runnells with theft, a

      Level 6 felony, I.C. § 35-43-4-2. On June 3, 2015, Runnells filed a motion to

      suppress the items recovered from his search and the statements he made during

      the search. A suppression hearing was held on June 17, 2015, and the parties

      thereafter submitted their findings of facts and conclusions of law. On August

      18, 2015, the trial court issued an Order denying Runnells’ motion. Two days

      later, on August 20, 2015, Runnells requested certification for interlocutory


      Court of Appeals of Indiana | Memorandum Opinion 11A01-1601-CR-30 | September 9, 2016   Page 3 of 9
      appeal but was denied. On August 24 through August 25, 2015, Runnells’ jury

      trial was conducted. At the close of the evidence, the jury found Runnells

      guilty as charged. On December 11, 2015, the trial court conducted Runnells’

      sentence hearing and subsequently sentenced Runnells to an executed sentence

      of two and one-half years in the Department of Correction.


[6]   Runnells now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[7]   Runnells claims that the trial court erred when it denied his motion to suppress

      the evidence seized during the warrantless pat-down search. However, because

      Runnells is appealing following a conviction, the issue is more appropriately

      framed as whether the trial court properly admitted the evidence at trial. A trial

      court has broad discretion in ruling on the admissibility of evidence. Fentress v.

      State, 863 N.E.2d 420, 422-23 (Ind. Ct. App. 2007).


[8]   According to Runnells, the admission of the items recovered during the pat-

      down search violated the Fourth Amendment to the United States Constitution

      and Article 1, Section 11 of the Indiana Constitution. 1 When reviewing a trial




      1
       Runnells briefly asserts that the search was improper under Article 1, Section 11 of the Indiana
      Constitution, “which is identical to the Fourth Amendment.” Stark v. State, 960 N.E.2d 887, 892 (Ind. Ct.
      App. 2012), trans. denied. However, a claim under the Indiana Constitution “turns on an evaluation of the

      Court of Appeals of Indiana | Memorandum Opinion 11A01-1601-CR-30 | September 9, 2016            Page 4 of 9
      court’s ruling on the admissibility of evidence obtained from an allegedly illegal

      search, we do not reweigh evidence and we will consider any conflicting

      evidence in a light most favorable to the trial court’s ruling. Reinhart v. State,

      930 N.E.2d 42, 45 (Ind. Ct. App. 2010). While we defer to the trial court’s

      factual determinations unless they are clearly erroneous, we review a ruling on

      the constitutionality of a search or seizure de novo. Id.


[9]   The Fourth Amendment to the United States Constitution guarantees “[t]he

      right of the people to be secure in their persons, houses, papers, and effects,

      against unreasonable searches and seizures.” U.S. CONST. amend. IV; Parker v.

      State, 697 N.E.2d 1265, 1267 (Ind. Ct. App. 1998). In fact, warrantless searches

      “are per se unreasonable under the Fourth Amendment, subject to a ‘few

      specifically established and well-delineated exceptions.’” Katz v. United States,

      389 U.S. 347, 357 (1967). “As a deterrent mechanism, evidence obtained in

      violation of this rule is generally not admissible in a prosecution against the

      victim of the unlawful search or seizure.” Clark v. State, 994 N.E.2d 252, 260

      (Ind. 2013) (citing Mapp v. Ohio, 367 U.S. 643, 649-55 (1961), reh’g denied). As a




      ‘reasonableness’ of the conduct of the law enforcement officers, not on the expectation of privacy commonly
      associated with Fourth Amendment analysis.” Id. Because Runnells has neither set forth the specific
      standard utilized in Article 1, Section 11 cases nor presented a cogent argument regarding the reasonableness
      of the law enforcement officers’ conduct, we find that he has waived his claim under the Indiana
      Constitution. See Ind. Appellate Rule 46(A)(8)(a).

      Court of Appeals of Indiana | Memorandum Opinion 11A01-1601-CR-30 | September 9, 2016             Page 5 of 9
       result, when a search or seizure is conducted in the absence of a warrant, the

       State bears the burden of proving that one of the well-delineated exceptions to

       the warrant requirement existed at the time of the search or seizure. Danner v.

       State, 931 N.E.2d 421, 428 (Ind. Ct. App. 2010), trans. denied.


[10]   The State argues that the search was lawful since it was a search incident to a

       lawful arrest. One exception to the requirement of a warrant is the search

       incident to arrest, which provides that a police officer may conduct a search of

       the arrestee’s person and the area within his or her control. Stevens v. State, 701

       N.E.2d 277, 280 (Ind. Ct. App. 1998) (citation omitted).


[11]   Notwithstanding the State’s claim, Runnells maintains that the search was

       unconstitutional since he was not arrested at the time of the search, and that the

       pat-down search should be analyzed under Terry v. Ohio, 392 U.S. 1 (1968). In

       support of his claim, Runnells references Captain Archer’s testimony stating

       that he was not under arrest at the time he was searched, nor did he believe that

       Runnells was armed or dangerous. With regard to Runnells’ claim that he was

       not under arrest at the time of the search, we note that a suspect is considered

       under arrest when a police officer “interrupts the freedom of the accused an[d]

       restricts his liberty of movement.” Sears v. State, 668 N.E.2d 662, 667 (Ind.

       1996). The fact that a police officer does not inform a defendant he is under

       arrest prior to a search does not invalidate the search incident to arrest

       exception as long as there is probable cause to make an arrest. Id. Moreover,

       we note that the critical issue is not when the arrest occurs but whether there

       was probable cause to arrest at the time of the search. It is well settled that as

       Court of Appeals of Indiana | Memorandum Opinion 11A01-1601-CR-30 | September 9, 2016   Page 6 of 9
       long as probable cause exists to make the arrest, the fact that a suspect was not

       formally placed under arrest at the time of the search incident thereto will not

       invalidate the search. Santana v. State, 679 N.E.2d 1355, 1360 (Ind. Ct. App.

       1997). Here, officers had probable cause to arrest Runnells prior to conducting

       the search on his person—Bault had reported a shoplifting event and given a

       description of Runnells. When Runnells exited the store, he was approached by

       Captain Archer in the CVS parking lot and notified of the theft complaint. At

       that point, Captain Archer ordered Runnells to place his hands on a car and

       was then searched. The search yielded stolen merchandise from the CVS store

       on Runnells’ person.


[12]   Turning to Runnells’ argument that the pat-down search should be analyzed

       under Terry, we find that the evidence was not seized based on Terry but rather

       as a search incident to a lawful arrest. It is well established that the search

       incident to arrest exception to the warrant requirement “‘derives from interests

       in officer safety and evidence preservation.’” Id. (quoting Arizona v. Grant, 556

       U.S. 332, 332 (2009)). This exception only permits “a search of the arrestee’s

       person and the area within his or her control.” VanPelt v. State, 760 N.E.2d 218,

       222 (Ind. Ct. App. 2001), trans. denied. The exception is justified by “the need

       to seize weapons and other things which might be used to assault an officer or

       effect an escape, as well as the need to prevent the destruction of evidence of the crime.”

       Id. (emphasis added).


[13]   In the instant case, Bault, the manager at the CVS store, observed Runnells

       walk to the razor section and pick up a pink electric razor and then walk to

       Court of Appeals of Indiana | Memorandum Opinion 11A01-1601-CR-30 | September 9, 2016   Page 7 of 9
       another part of the store where he concealed the razor in his pants. Bault called

       the police and relayed that information along with Runnells’ description—a

       “[g]uy with a Mohawk.” (Tr. p. 92). Once Runnells was outside, the officers,

       who had a description of Runnells and information concerning the theft, made

       contact. Captain Archer conveyed to Runnells the reason he was stopping

       Runnells and proceeded to conduct a pat-down of Runnells’ exterior clothing.

       During the search, a plastic package containing a razor, a USB car charger and

       an associated cord were recovered from Runnells’ person. Bault confirmed that

       all three items had been stolen from the store.


[14]   In sum, the evidence shows that Runnells matched the description given to the

       police and was found exiting the CVS store with unpaid merchandize. In light

       of this compelling evidence, we conclude that these facts and circumstances

       were such that a person of reasonable caution would have been warranted to

       believe that Runnells had committed the criminal act in question and thus

       provided probable cause for his arrest. See Underwood v. State, 644 N.E.2d 108,

       110 (Ind. 1994). Because the officers had probable cause to believe that

       Runnells had committed the crime of theft, their pat-down search was proper as

       a search incident to arrest. Therefore, the trial court acted within its discretion




       Court of Appeals of Indiana | Memorandum Opinion 11A01-1601-CR-30 | September 9, 2016   Page 8 of 9
       in admitting into evidence the items recovered from Runnells during the pat-

       down search. 2


                                                 CONCLUSION

[15]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in admitting the evidence that was seized from Runnells during the

       pat-down search.


[16]   Affirmed.


[17]   Bailey, J. and Barnes, J. concur




       2
         Runnells also argues that the admission of any evidence recovered was fruit of the poisonous tree. See
       Clark, 994 N.E.2d at 266. (as general rule, evidence obtained pursuant to unlawful seizure must be excluded
       under the fruit of the poisonous tree doctrine). Because Runnells’ detention was lawful, the fruit of the
       poisonous tree doctrine is inapplicable.

       Court of Appeals of Indiana | Memorandum Opinion 11A01-1601-CR-30 | September 9, 2016            Page 9 of 9
