MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Jun 30 2017, 9:05 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Curtis T. Hill
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Desmond Gary,                                            June 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1701-CR-35
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy M. Jones,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G08-1512-CM-44391



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017             Page 1 of 13
                                               Case Summary
[1]   Desmond Gary appeals his conviction, following a bench trial, for class A

      misdemeanor carrying a handgun without a license. He contends that the trial

      court abused its discretion when it admitted into evidence the handgun found

      during an inventory search of his vehicle. Gary argues that the inventory search

      was pretextual and unreasonable in violation of the Fourth Amendment to the

      United States Constitution. Finding no constitutional violation and thus no

      abuse of discretion, we affirm.


                                   Facts and Procedural History
[2]   On December 14, 2015, Indianapolis Metropolitan Police Department

      (“IMPD”) Officer Daniel Majors was on patrol when he observed a green

      Nissan vehicle traveling with only one working headlight and an improperly

      displayed license plate. Officer Majors initiated a traffic stop and ran a routine

      records and driver’s license check on Gary, the driver of the vehicle. The check

      indicated that Gary had an outstanding arrest warrant for child support and his

      driver’s license was suspended. Officer Majors called for backup, and Officer

      Alexandra Lowcher and another officer arrived on scene. Officer Majors then

      placed Gary under arrest. Because there was no valid driver on scene1 and the

      vehicle was illegally parked in a high crime area, Officer Majors decided to

      impound Gary’s vehicle. Tr. Vol. 2 at 6.



      1
       There was a juvenile passenger in the car with Gary. The juvenile was identified as his twelve-year-old
      niece and was subsequently released to her mother.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017              Page 2 of 13
[3]   Officer Lowcher conducted an inventory search of Gary’s vehicle in accordance

      with IMPD’s general order 7.3 on impounded vehicles. State’s Ex. 1. Officer

      Lowcher found a backpack with money that belonged to Gary, and there were

      other bags in the backseat as well as some clothing. The juvenile passenger that

      had been in the vehicle identified a few of the bags in the backseat, which were

      released to her. When Officer Lowcher searched the unlocked center console in

      the vehicle, she found a handgun.2 Gary spontaneously told the officers that he

      had forgotten that the gun was in the car. Officer Majors determined that Gary

      did not have a valid permit for the handgun.


[4]   The State charged Gary with class A misdemeanor carrying a handgun without

      a license. Gary filed a pretrial motion to suppress the handgun seized from his

      vehicle. The trial court held a suppression hearing and thereafter denied the

      motion to suppress. Following a bench trial on December 15, 2016, the trial

      court found Gary guilty as charged. The trial court sentenced him to 365 days’

      incarceration with 359 days suspended to nonreporting probation. This appeal

      ensued.


                                       Discussion and Decision
[5]   Gary contends that the trial court abused its discretion in admitting into

      evidence the handgun seized during the inventory search of his vehicle.



      2
        At the suppression hearing, Officer Lowcher stated that she found the gun in the glove compartment. Tr.
      Vol. 3 at 14. However, during trial, both Officer Majors and Officer Lowcher testified that the handgun was
      found in the center console. Tr. Vol. 2 at 8, 13. The police report also indicated that the gun was found in
      the center console. Appellant’s App. at 14.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017               Page 3 of 13
      Specifically, he claims that the search was pretextual and unreasonable in

      violation of the Fourth Amendment to the United States Constitution.3 We

      give trial courts broad discretion on whether to admit or exclude evidence.

      Blount v. State, 22 N.E.3d 559, 564 (Ind. 2013). An abuse of discretion occurs

      when the trial court’s ruling is, “clearly against the logic, facts, and

      circumstances presented. When reviewing the admissibility of evidence, we do

      not reweigh evidence, and we consider conflicting evidence most favorable to

      the trial court’s ruling.” Phillips v. State, 25 N.E.3d 1284, 1288 (Ind. Ct. App.

      2015). “The constitutionality of a search is a question of law, which we review

      de novo.” J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App. 2014).


             The search of Gary’s vehicle did not violate the Fourth
                                 Amendment.

                    Section 1 – The impoundment was reasonable.
[6]   Before addressing the validity of the inventory search of Gary’s vehicle, we

      must address the threshold question of the propriety of the impoundment. Our

      supreme court recently explained:

               Both the Fourth Amendment and Article 1, Section 11 protect
               “[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; IND. CONST. art. 1, § 11. Automobiles



      3
        Although Gary mentions the Indiana Constitution, he provides no separate or independent state
      constitutional analysis in his brief. Consequently, any state constitutional claim is waived. See Abel v. State,
      773 N.E.2d 276, 278 n.1 (Ind. 2002) (failure to present authority or independent analysis supporting separate
      standard under state constitution results in waiver of state constitutional claim).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017                  Page 4 of 13
        are among the “effects” protected by these provisions. Brown v.
        State, 653 N.E.2d 77, 79, 81 (Ind. 1995). Thus, when police
        impound a vehicle and inventory its contents, they effect a search
        and seizure, and both measures must be reasonable—that is,
        executed under a valid warrant or a recognized exception to the
        warrant requirement. [Taylor v. State, 842 N.E.2d 327, 330 (Ind.
        2006)].


        The inventory search is one such exception since it serves an
        administrative, not investigatory, purpose—because when police
        lawfully impound a vehicle, they must also perform an
        administrative inventory search to document the vehicle’s
        contents to preserve them for the owner and protect themselves
        against claims of lost or stolen property. Id. at 330-31.
        Consequently, proper impoundment is the “threshold question”
        to valid inventory search. [Fair v. State, 627 N.E.2d 427, 431 (Ind.
        1993)]. Nevertheless, as with any warrantless search or seizure,
        the State bears the burden of proving reasonableness, id. at 430,
        and that is where our analysis begins.


        Impoundment is reasonable if it is authorized either by statute or
        the police’s discretionary community-caretaking function. Id. at
        431-32. Impoundment pursuant to a statute is necessarily
        reasonable because the Legislature has deemed that citizens’
        privacy interests in their cars yield to State interests in those
        circumstances, making police inventorying a necessary collateral
        administrative function. Discretionary impoundment, by
        contrast, is an exercise of the police community-caretaking
        function in order to protect the car and community from hazards.
        Discretionary impoundments, too, may be reasonable—but as we
        recognized in Fair, and more recently in Taylor, they are
        vulnerable to constitutional reasonableness challenges because of
        their potential for misuse as pretext for warrantless investigative
        searches under the guise of inventory. See Fair, 627 N.E.2d at
        435; Taylor, 842 N.E.2d at 331-33.


Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017   Page 5 of 13
      Wilford v. State, 50 N.E.3d 371, 374-75 (Ind. 2016).


[7]   The Wilford court went on to reiterate that “police may discharge their

      caretaking function whenever circumstances compel it, but also that a decision

      to impound must be exercised according to standard criteria and on the basis of

      something other than suspicion of evidence of criminal activity.” Id. (citations

      and quotation marks omitted). Thus, Fair set forth a strict two-prong standard

      for establishing that the decision to impound a person’s vehicle without a

      warrant was reasonable:


              (1) Consistent with objective standards of sound policing, an
              officer must believe the vehicle poses a threat of harm to the
              community or is itself imperiled; and

              (2) The officer’s decision to impound adhered to established
              departmental routine or regulation.


      Id. at 326 (citing Fair, 627 N.E.2d at 433).


[8]   Here, Officer Majors testified that Gary’s vehicle was illegally parked in a no-

      parking zone on a public street in a high crime area and, thus, he believed that

      the vehicle both posed a threat to the community and was itself imperiled.

      Moreover, Officer Majors stated that his decision to impound Gary’s vehicle

      was pursuant to established IMPD routine and regulation. Specifically,

      according to IMPD’s departmental policy, general order 7.3, if “[a]ny vehicle

      the operator of which is unable to move such vehicle by reason of his

      incapacity from injury or arrest,” the vehicle can be considered a public

      nuisance and impounded. State’s Ex. 1 (emphasis added). Section 2 of the
      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017   Page 6 of 13
       general order also states that a vehicle may be towed and impounded if

       parked in no parking or other special parking restrictions, being operated by

       a suspended driver, or owned or operated by a person under custodial arrest

       for any charge. Id. The general order further provides that in assessing

       whether a particular vehicle constitutes a hazard or is itself in danger, an

       officer should consider the degree to which the property upon which the

       vehicle is located is under the control of the vehicle owner/operator and the

       length of time the officer believes the impounded car would be left

       unattended. Id.


[9]    Officer Majors testified that, following Gary’s arrest, no one showed up to

       claim or remove the illegally parked vehicle from the public street, and that the

       only person to arrive was the juvenile’s mother who was not the owner of the

       vehicle. Tr. Vol. 2 at 10. Thus, Officer Majors could reasonably infer that

       Gary’s vehicle would be left unattended for an extended period. Under the

       circumstances presented, Officer Majors’s decision to impound the vehicle was

       consistent with objective standards of sound policing and adhered to established

       departmental routine or regulation. Accordingly, we conclude that his decision

       to impound the vehicle was reasonable.


                  Section 2 – The inventory search was reasonable.
[10]   Having determined that Officer Majors’s decision to impound the vehicle was

       reasonable, we next address the subsequent inventory search.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017   Page 7 of 13
               [T]he lawful custody of an impounded vehicle does not of itself
               dispense with the constitutional requirement of reasonableness in
               regard to the searches conducted thereafter. Instead, to pass
               constitutional muster, the search itself must be conducted
               pursuant to standard police procedures. The rule that
               standardized criteria or established routine must exist as a
               precondition to a valid inventory search is designed to ensure
               that the inventory is not a pretext “for a general rummaging in
               order to discover incriminating evidence.” In order to perform
               this function, the procedures must be rationally designed to meet
               the objectives that justify the search in the first place, and must
               sufficiently limit the discretion of the officer in the field.
               Searches in conformity with such regulations are reasonable
               under the Fourth Amendment. Thus, to defeat a charge of
               pretext the State must establish the existence of sufficient
               regulations and that the search at issue was conducted in
               conformity with them.


       Weathers v. State, 61 N.E.3d 279, 286-87 (Ind. Ct. App. 2016) (quoting Fair, 627

       N.E.2d at 435) (citations omitted).


[11]   To meet its burden, the State must present more than a mere statement from an

       officer that the search was performed as a routine inventory. State v. Lucas, 859

       N.E.2d 1244, 1250 (Ind. Ct. App. 2007), trans. denied. “The circumstances of

       the intrusion must also indicate that the search was carried out under routine

       department procedures which are consistent with the protection of officers from

       potential danger and false claims of lost or stolen property as well as protection

       of those arrested.” Id.


[12]   Here, Officer Lowcher testified that she performed an inventory search of

       Gary’s vehicle at the scene and that she had been trained according to IMPD’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017   Page 8 of 13
       departmental policy regarding impounding vehicles and that she followed that

       policy. IMPD’s general order regarding inventory searches provides that

       “whenever an officer takes a vehicle into custody, an inventory search will be

       conducted prior to impoundment.” State’s Ex. 1. The vehicle inventory search

       “will consist of searching the passenger compartment of the vehicle” and, “if a

       key is available, or if unlocked, the glove compartment and trunk will also be

       searched.” Id. The general order further states that a “detailed listing” of any

       items of significant value will be made and will be listed in the “officer’s

       personal notebook, the tow slip, or in an incident report.” Id.


[13]   Officer Lowcher stated that she found a handgun in the unlocked center console

       of the vehicle, a backpack containing money, and some clothing. A few other

       items found in the car belonged to the juvenile and were released to her at the

       scene prior to the impoundment. Officer Lowcher admitted that she did not

       make a detailed listing of the items found in the vehicle in her personal

       notebook, but explained that she thought that such requirement “might be part

       of the newer version” of the departmental policy that was not in effect at the

       time of the stop. Tr. Vol. 3 at 15. She also stated that she believed that Officer

       Majors, who was at the scene but did not actually conduct the search, had at

       least listed the handgun and the backpack in an incident report. The record

       reveals that the police report prepared by Officer Majors did list the items of

       value found in the vehicle that belonged to Gary. Appellant’s App. at 14-15.


[14]   Gary complains that Officer Lowcher failed to submit a “proper and complete

       inventory sheet of all property” found in the vehicle as required by the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017   Page 9 of 13
       established policies. Appellant’s Br. at 7. However, we have held on more than

       one occasion that the mere failure to follow established police policy does not

       necessarily render the inventory search unreasonable. See Weathers, 61 N.E.3d

       at 288; Whitley v. State, 47 N.E.3d 640, 646 (Ind. Ct. App. 2015), trans. denied

       (2016). Indeed, even major deviations from established policy do not

       automatically require suppression if the inventory search fulfilled its

       administrative purposes and there are no other indications of pretext for an

       investigative purpose. Sams v. State, 71 N.E.3d 372, 378 (Ind. Ct. App. 2017)

       (citing Weathers and Whitley). In such cases, we look to the specific

       circumstances presented to determine whether the failure to follow the

       established police policy suggested a pretextual search. See, e.g.,Weathers, 61

       N.E.3d at 288-89; Whitley, 47 N.E.3d at 646.


[15]   For example, in Weathers, after determining that it was necessary to impound

       the defendant’s vehicle, the police officer involved asked the defendant whether

       there were any drugs or guns in the vehicle. 61 N.E.3d at 283. The defendant

       responded that there was a handgun inside the vehicle and told the officer

       where it was located. Id. The officer then looked inside the vehicle and

       observed the barrel of the handgun located in plain view between the driver’s

       seat and the center console just as the defendant had indicated. Id. The officer

       proceeded to conduct a warrantless inventory search and found nothing of

       value in the vehicle other than the handgun and the vehicle’s registration. Id.


[16]   The defendant argued on appeal that the search was unreasonable based upon

       the officer’s failure to follow that portion of the departmental policy requiring

       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017   Page 10 of 13
       him to complete a written inventory following his warrantless inventory search

       of a vehicle. Id. at 288. Under the facts presented, we disagreed. We noted

       that the officer’s failure to complete a written inventory had no bearing on the

       fact that the defendant did not contest that the handgun was recovered from the

       vehicle and that it was recovered from the exact location where he told the

       officer it was located. Id. Thus, we were unable to see how the defendant was

       prejudiced by the mere lack of a written inventory. Id. at 289. Moreover, we

       were unconvinced that the officer’s failure to complete a written inventory

       suggested that his rationale for conducting the warrantless inventory search was

       a pretext. Id. Therefore, we determined that the search was reasonable under

       the Fourth Amendment. Id.


[17]   Similarly, in Whitley, the defendant argued that an inventory search of his truck

       was unreasonable under the Fourth Amendment because the officers failed to

       complete a written inventory of the items found during the search in their

       personal notebooks as was required by department policy. 47 N.E.3d at 646.

       We acknowledged that the circumstances of the case presented more than a

       minor deviation from the applicable policy, as it was apparent that one of the

       officers ceased inventorying the remaining contents of the truck after finding the

       contraband. Id. at 648. Nevertheless, because no evidence suggested that the

       officer was looking for evidence of a crime when he began searching the truck

       at the other officer’s request, and because there was a photographic record

       made of the contents found in the truck, we concluded that the officers’ failure

       to list all items found in the truck in their personal notebooks as was required by


       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017   Page 11 of 13
       policy, did not, in itself, render the search pretextual. Id. Under the

       circumstances, we concluded that the search was reasonable under the Fourth

       Amendment. Id.


[18]   As in Weathers and Whitley, based on the facts presented, we think the inventory

       search of Gary’s vehicle was reasonable. Specifically, we are not convinced

       that Officer Lowcher’s failure to record all items found in her personal

       notebook prejudiced Gary or suggests that her rationale for completing the

       warrantless inventory search was pretextual. Officer Lowcher explained that

       she failed to list all items found in her personal notebook because she thought

       that she was not required to do so. She further explained that some items that

       were found were released to the juvenile at the scene, and that the other items

       of value belonging to Gary were properly listed in an incident report prepared

       by Officer Majors. Under the circumstances, the inventory search essentially

       fulfilled its administrative purpose and there are no other indications of pretext

       for an investigative purpose. We conclude that despite Officer Lowcher’s

       apparent failure to strictly follow all aspects of the relevant procedure, her

       inventory search of the vehicle was reasonable.


[19]   In sum, neither the impoundment nor the inventory search of the vehicle was

       unreasonable under the Fourth Amendment, and therefore the trial court did




       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017   Page 12 of 13
       not abuse its discretion in admitting the handgun found during the search. 4

       Gary’s conviction is affirmed.


[20]   Affirmed.


       Baker, J., and Barnes, J., concur.




       4
         We note that much of our caselaw regarding inventory searches somewhat conflates the federal and state
       constitutional analyses and thus, notwithstanding Gary’s waiver of his state constitutional claim, we
       conclude that both the impoundment and the inventory search were also reasonable under Article 1, Section
       11 of the Indiana Constitution. While Article 1, Section 11 involves independent analysis under the totality
       of the circumstances, see Wilford, 50 N.E.3d at 378, for the same reasons we outlined above, the
       impoundment and inventory search were reasonable under those circumstances.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-35 | June 30, 2017              Page 13 of 13
