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                       Jan 21 2015, 6:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                             GREGORY F. ZOELLER
Wieneke Law Office, LLC                           Attorney General of Indiana
Plainfield, Indiana
                                                  CHRISTINA D. PACE
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

BENJAMIN T. HAINES,                               )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 90A02-1408-CR-545
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE WELLS SUPERIOR COURT
                         The Honorable Everett E. Goshorn, Judge
                              Cause No. 90D01-1303-FD-36



                                       January 21, 2015


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                              STATEMENT OF THE CASE

       Benjamin T. Haines appeals his convictions for resisting law enforcement, as a

Class D felony; reckless driving, as a Class B misdemeanor; and criminal mischief, as a

Class B misdemeanor, following a jury trial. Haines presents three issues for our review,

which we revise and consolidate into one issue, namely, whether the trial court

committed fundamental error when it admitted certain evidence at trial.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On the night of March 17, 2013, Deputy Russell Mounsey of the Wells County

Sheriff’s Department parked his squad car at a church on State Road 218 to patrol for

traffic violations. At approximately 10:00 p.m., Mounsey’s radar clocked a vehicle

traveling east on State Road 218 at ninety-three miles per hour in a fifty-five mile-per-

hour zone. Mounsey could not identify the make and model of the vehicle when it passed

him, but, when he began his pursuit, he noticed that it had distinctive taillights that “made

[him] think of the newer Camaros or the newer Dodge Challengers.” Tr. at 24. Mounsey

activated the lights and siren on his car during the pursuit.

       Despite Mounsey reaching speeds of approximately one-hundred miles per hour,

the speeding vehicle expanded its distance from Mounsey, and Mounsey lost track of the

vehicle on East County Road 1000 South between the intersections of South County

Road 250 East and State Road 1, which are “about a mile and a quarter” apart. Id. at 29.

Around that time, however, Judith Herring observed a red vehicle rapidly approaching

her home, which is located on State Road 1 about a quarter of a mile away from where


                                              2
Mounsey lost track of the vehicle. Herring believed that the vehicle was headed for her

driveway, or through her yard, so she went to her window to look. When she did, she

could no longer see the vehicle.

       Also around this time on March 17, Jacob Sonnetag, a longtime friend of Haines,

received a late-night phone call from Haines, in which Haines explained to Sonnetag that

“he was coming home from Indianapolis[,] . . . was going kind of fast[,] . . . lost control

of the vehicle and went into a field[,] and needed some help.” Id. at 81. Haines told

Sonnetag that he was walking on State Road 1 and asked Sonnetag to pick him up.

Sonnetag agreed and picked Haines up on State Road 1. Sonnetag took Haines to Jeffrey

Moore’s apartment, and, while doing so, Haines explained to Sonnetag

       that[,] basically[,] because he didn’t need another speeding ticket because[,]
       if he got another speeding ticket[,] he would lose his license—that he had
       fled from the police. In doing so[,] his vehicle lost control[,] and it was in a
       field.

Tr. at 83. Haines stated that he had been driving a 2013 Camaro SS (“Camaro”).

       Moore was asleep when Haines arrived at his apartment. Haines woke Moore and

told him “that the car was stuck and he just needed help. [Haines] acted like somebody

else had [got the car stuck,] like he was upset that the car was stuck,” but Haines did not

say who had driven the vehicle. Id. at 94. Moore used his green Chevrolet Trailblazer

(“Trailblazer”) to take Haines to the Camaro, which was stuck beside a barn on Herring’s

property.   Moore attempted to remove the Camaro with his Trailblazer but, in the

process, got it stuck also. Moore then called for a ride, and the two of them rode to

Berne, where they both lived.



                                              3
       On the morning of March 18, Herring went to the same window where she had

seen the car approach her property and saw Moore’s Trailblazer protruding from the

north side of her barn. Herring called the Sheriff’s Department. Id. at 37. Deputy Randy

Steele of the Wells County Sheriff’s Department responded to Herring’s call. When he

arrived, he found the Trailblazer and the Camaro stuck behind the barn. From the tracks

left by the vehicles in Herring’s yard, the Trailblazer appeared to have arrived subsequent

to the Camaro, and the Trailblazer was positioned in such a way that looked as if it had

attempted to pull the Camaro from the soft ground.

       Only the Trailblazer was visible from Herring’s window, and she did not know

that the Camaro was also behind her barn until Steele told her so. But, when Herring

went outside to look at the Camaro, she recognized it as the same vehicle that she had

seen the night before. She advised Steele that, the night before, she saw a police car go

past her home shortly after “the Camaro had pulled into her driveway.” Tr. at 47.

Deputy Steele then ran the incident reports from March 17, discovered a report from

Deputy Mounsey regarding a vehicle that had failed to yield to him, and called Mounsey

to inform him that he believed he had found the vehicle that Mounsey had pursued.

       After receiving Steele’s call, Mounsey came to Herring’s home, and, when he

arrived, he recognized the Camaro’s taillights. The two deputies had a wrecker service

tow the two vehicles away from Herring’s property.           The next day, pursuant to

departmental policy, Mounsey conducted an inventory search of the Camaro and the

Trailblazer. Although the department does not always collect items for evidence during

inventory searches, Mounsey did so here in an attempt to determine the unknown identity


                                            4
of the Camaro’s driver.1 Among other things, Mounsey inventoried (1) a wallet, found

inside the Camaro’s driver’s-side door compartment, that contained cards, identification,

and tax refund checks belonging to Haines; (2) a Hertz rental-car agreement above the

visor; (3) $2,232 in cash, found in the center console; and (4) $1,012, found in a plastic

bag located under the Camaro’s front seat. Mounsey recorded all of the items onto an

inventory list, and the trial court later admitted the items into evidence without objection.

        The Wells Superior Court issued a warrant for Haines’ arrest, which Berne Police

Officer Jason Oswalt served at Haines’ home on March 28. While inside Haines’ home

to serve the warrant, Oswalt observed a Chevrolet key fob, which was located inside of a

jar of change. Oswalt found the key fob significant because Mounsey previously had

informed Oswalt that he could not find the fob for the Camaro. Consequently, Oswalt

took the key fob into evidence and provided it to Mounsey, who, in turn, used it at the

impound lot to open and start the Camaro. The trial court later admitted the key fob into

evidence without objection.

            The State charged Haines with resisting law enforcement, as a Class D felony;

reckless driving, as a Class B misdemeanor; and criminal mischief, as a Class B

misdemeanor. The State tried Haines by jury on June 10 and 11, 2014, after which he

was convicted as charged. After a sentencing hearing, the trial court sentenced Haines to

an aggregate, executed sentence of three years. This appeal ensued.




        1
            Initially, Mounsey collected only items believed to evince ownership of the Camaro.
Subsequently, however, it was determined that Haines had rented the Camaro from a rental company, and
it needed to be returned to the rental company. As a result, the department collected the remaining items
in the vehicle.
                                                   5
                                DISCUSSION AND DECISION

       Haines contends that the trial court erred when it admitted certain evidence, but he

concedes that he failed to object at trial to the admission of this evidence, which is a

prerequisite to preserving the issue for appellate review. Thus, to avoid waiver, Haines

argues under the fundamental error doctrine. As we explained in Leslie v. State, 978

N.E.2d 486, 491 (Ind. Ct. App. 2012) (citations and quotation marks omitted), trans.

denied:

       The fundamental error doctrine is extremely narrow. To qualify as
       fundamental error, an error must be so prejudicial to the rights of the
       defendant as to make a fair trial impossible. Further, the error must
       constitute a blatant violation of basic principles[;] the harm, or potential for
       harm[,] must be substantial[;] and the resulting error must deny the
       defendant fundamental due process.

       Specifically, Haines argues that the trial court should have admitted neither the

evidence seized from the Camaro nor the key fob because those items were collected

pursuit to unconstitutional searches in violation of the Fourth Amendment to the United

States Constitution and Article 1, Section 11 of the Indiana Constitution.2 Haines further

asserts that the trial court also should not have admitted the money found in the Camaro

because it was irrelevant and prejudicial. We address each argument in turn.

                                         Inventory Search

       Haines contends that the inventory search of the Camaro by Deputy Mounsey was

an invalid, pretextual search for criminal evidence. Further, Haines asserts that “the State

did not link the act of rummaging through the contents of the wallet to any need for


       2
          Because Haines provides no separate authority or argument that the search violated the Indiana
Constitution, his Article 1, Section 11 claims are deemed waived. Fair v. State, 627 N.E.2d 427, 430 n.1
(Ind. 1993) (citing St. John v. State, 523 N.E.2d 1353 (Ind. 1988)).
                                                   6
inventorying [the] contents of the car.” Appellant’s Br. at 9. Thus, he reasons, the

evidence seized from the vehicle that identified him as its driver was unconstitutionally

obtained. He argues, therefore, that it was fundamental error to admit this evidence and

its fruits because, without it, no evidence existed that tied him to the Camaro. We

disagree and hold that, under a fundamental error analysis, the search of the Camaro was

performed pursuant to a valid inventory search.

       As our supreme court explained in Taylor v. State, 842 N.E.2d 327, 330-31 (Ind.

2006) (citations omitted):

       The Fourth Amendment protects persons from unreasonable search and
       seizure and this protection has been extended to the states through the
       Fourteenth Amendment.          The fundamental purpose of the Fourth
       Amendment to the United States Constitution is to protect the legitimate
       expectations of privacy that citizens possess in their persons, their homes,
       and their belongings. For a search to be reasonable under the Fourth
       Amendment, a warrant is required unless an exception to the warrant
       requirement applies. The State bears the burden of proving that a
       warrantless search falls within an exception to the warrant requirement.

              A valid inventory search is a well-recognized exception to the
       warrant requirement. The underlying rationale for the inventory exception
       is three-fold: (1) protection of private property in police custody; (2)
       protection of police against claims of lost or stolen property; and (3)
       protection of police from possible danger.

Further:

       As in all Fourth Amendment jurisprudence, the test of constitutionality in
       inventory cases is reasonableness. . . . In determining the reasonableness of
       an inventory search, courts must examine all the facts and circumstances of
       a case. This examination typically encompasses two overlapping sets of
       circumstances. First, the propriety of the impoundment must be established
       because the need for the inventory arises from the impoundment. Second,
       the scope of the inventory must be evaluated. Where either is clearly
       unreasonable, the search will not be upheld. In borderline cases, however,
       the ultimate character of the search is often most clearly revealed when


                                            7
       both the necessitousness of the impoundment and the scrupulousness of the
       inventorying are viewed together.

Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993) (citations omitted).

       Haines does not dispute the reasonableness of the impoundment; he only disputes

the scope of the inventory search. In Fair, our supreme court stated:

       [T]o 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.

Id., 627 N.E.2d at 435. In analyzing the validity of an inventory search, the court in Fair

looked at (1) whether the search was conducted at the impound lot or at the scene of the

crime, (2) whether the officer who conducted the search was responsible for criminal

investigations or impounded property, (3) whether formal inventory sheets were

completed, and (4) whether the officer made note of the defendant’s personal affects or

focused only on contraband. See id., at 436.

       Here, Officer Mounsey testified that it was departmental policy to conduct

inventory searches of every impounded vehicle. He further testified that, while the

department does not always collect inventoried property as evidence, it collected some of

the property taken from the Camaro because that property provided evidence both of the

Camaro’s ownership and of its driver’s identity.          Further evidence regarding the


                                               8
department’s procedures was not adduced at trial, but Haines neither objected nor moved

to suppress the evidence based on inadequate procedures or a failure to comply with

otherwise valid procedures.

       Considering all of the facts and circumstances provided by the record, which

Haines could have developed further with an objection, we cannot say that the

department’s procedures or Deputy Mounsey’s inventory search was so unreasonable that

Haines was denied a fair trial. Although it appears that Mounsey was responsible for the

criminal investigation of Haines, he conducted the search of the Camaro at the impound

lot, completed a formal inventory sheet, and made note of all of Haines’ personal affects,

both inside and outside of Haines’ wallet. See Fair, 627 N.E.2d at 436. Thus, it was not

fundamental error to admit the inventoried property from the Camaro, including that

property found within Haines’ wallet, at Haines trial.

                                       Plain View

       Haines contends that the seizure of the key fob violated his Fourth Amendment

rights because the State’s proffered exception to the Fourth Amendment, the plain view

doctrine, does not apply. The plain view doctrine is a well-established exception to the

Fourth Amendment’s warrant requirement. Tuggle v. State, 9 N.E.3d 726, 733 (Ind. Ct.

App. 2014), trans. denied.

       The plain view doctrine justifies a warrantless seizure when 1) the officer
       did not violate the Fourth Amendment in arriving at the place from which
       the evidence could be plainly viewed; 2) the incriminating character of the
       evidence is immediately apparent; and 3) the officer has a lawful right of
       access to the object itself.

Id. at 734.


                                             9
        Haines argues only that the plain view doctrine does not apply because the

criminality of the key fob was not immediately apparent.3                   As we have previously

explained:

        The immediately apparent prong of the plain view doctrine requires that
        law enforcement officials have probable cause to believe the evidence will
        prove useful in solving a crime. This does not mean that the officer must
        know that the item is evidence of criminal behavior. Probable cause
        requires only that the information available to the officer would lead a
        person of reasonable caution to believe the items could be useful as
        evidence of a crime.         A practical, nontechnical probability that
        incriminating evidence is involved is all that is required. A lawful seizure
        must be based upon a nexus between the item seized and particular criminal
        behavior. The nexus must be one known to the officers at the time of the
        seizure and may not be based upon mere speculation.

State v. Figgures, 839 N.E.2d 772, 779 (Ind. Ct. App. 2005) (citations and quotation

marks omitted), trans. denied.

        The seizure of the key fob satisfies this test. Deputy Mounsey had informed

Officer Oswalt, who served the arrest warrant, that he had not found the key fob for the

Camaro, and the Camaro had several items inside of it that implicated Haines as the

speeding driver. Thus, a nexus existed between the key fob and the particular criminal

behavior—resisting law enforcement, reckless driving, and criminal mischief—and

Oswalt had probable cause to believe that the key fob would prove useful in solving a

crime. In other words, the information available to Oswalt would lead a person of

reasonable caution to believe that the key fob could be useful as evidence of a crime. The

        3
           Haines does not present an argument under the first or third prongs of the plain view doctrine.
However, we note that Officer Oswalt’s presence in Haines’ home did not violate the Fourth Amendment.
“An arrest warrant founded on probable cause gives the police ‘limited authority to enter a dwelling in
which the suspect lives when there is reason to believe the suspect is within.’” Duran v. State, 930
N.E.2d 10, 15 (Ind. 2010) (quoting Payton v. New York, 445 U.S. 573, 603 (1980)). Further, the object
itself was in plain view of where Oswalt served the arrest warrant, and, therefore, Oswalt also had a
lawful right to access the object itself.
                                                   10
trial court, therefore, did not commit fundamental error when it admitted evidence

regarding the key fob at Haines’ trial.

                                           Money

       Haines additionally argues that the admission of evidence regarding the money

found inside of the Camaro was fundamental error because, Fourth Amendment concerns

aside, the money was irrelevant to the crimes charged and “highly prejudicial” because

“[c]ash in large quantities is often associated with drug dealers.” Appellant’s Br. at 13.

The State responds that the money was relevant because it “made it more likely that [the

Camaro] was the same vehicle Deputy Mounsey had been chasing the night before. An

individual would not leave over $3000 in cash in his vehicle unless he was in a hurry to

exit the vehicle.” Appellee’s Br. at 18.

       Even if we assume that the money was irrelevant to Haines’ crimes and, therefore,

should not have been admitted at his trial, Haines was not denied fundamental due

process. In short, the evidence against Haines was overwhelming. As a result, we cannot

state that the trial court committed fundamental error when it admitted evidence of the

money.

       Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




                                            11
