                                                                          FILED
                                                                     Jun 30 2016, 9:06 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Suzy St. John                                            Gregory F. Zoeller
      Marion County Public Defender                            Attorney General of Indiana
      Indianapolis, Indiana
                                                               Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Eduardo Cruz-Salazar,                                    June 30, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A05-1511-CR-1782
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Kelly Noel
      Appellee-Plaintiff.                                      Kinkade, Judge Pro Tempore
                                                               Trial Court Cause No.
                                                               49G14-1312-FD-81376



      Najam, Judge.


                                       Statement of the Case
[1]   Eduardo Cruz-Salazar appeals his conviction for possession of cocaine, as a

      Class A misdemeanor, following a bench trial. He presents two issues for our

      review, which we consolidate and restate as whether the trial court abused its

      Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016                Page 1 of 13
      discretion when it admitted into evidence the cocaine a police officer found on

      his person after his arrest for public intoxication.


[2]   We affirm.


                                 Facts and Procedural History
[3]   At approximately 6:42 a.m. on December 29, 2014, Indianapolis Metropolitan

      Police Department Officer Mark Ayler responded to a report of a suspicious

      vehicle, described as a blue or turquoise truck, that had been parked on the

      street in front of a residence at 5831 Sunwood Drive in Indianapolis for

      approximately thirty minutes. Upon his arrival at that address, Officer Ayler

      saw a blue Chevy Silverado truck parked on the street. Officer Ayler “shined

      [a] spotlight on the vehicle to see if anyone was inside the vehicle[,]” and he

      saw a man, later identified as Cruz-Salazar, sitting in the driver’s seat. Tr. at 8.

      The man “appeared to be either sleeping or passed out.” Id. Officer Ayler

      “approached the vehicle, tapped on the window a couple of times[,]” but Cruz-

      Salazar did not respond. Id. Accordingly, Officer Ayler “opened the door to

      check on [Cruz-Salazar’s] welfare.” Id.


[4]   Once the door was open, Officer Ayler “shook [Cruz-Salazar] a little bit and

      made contact with him.” Id. at 9. Officer Ayler asked Cruz-Salazar for his

      identification, which he provided. Officer Ayler noticed that Cruz-Salazar “had

      bloodshot, watery eyes” and “slurred speech[.]” Id. at 9-10. Officer Ayler

      asked Cruz-Salazar whether he had been drinking, and he responded that he

      had been drinking “a little bit.” Id. at 10. Based on his training and experience,

      Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 2 of 13
      Officer Ayler concluded that Cruz-Salazar was intoxicated. Indeed, after

      Officer Ayler asked Cruz-Salazar to exit the truck, Cruz-Salazar was “unsteady

      on his feet.” Id. at 11. Officer Ayler asked Cruz-Salazar “how he [had gotten]

      there in the vehicle[,] and he stated [that] he did not remember.” Id. Officer

      Ayler administered a portable breath test, and Cruz-Salazar registered a BAC of

      .184.


[5]   “At that point, [Officer Ayler] tried to assist [Cruz-Salazar] in maybe calling

      someone to come and get him due to the [cold weather] and [because] he was

      very intoxicated[.]” Id. Cruz-Salazar gave Officer Ayler a phone number, but

      when Officer Ayler called that number, he got no answer. Officer Ayler then

      arrested Cruz-Salazar for public intoxication. During a search incident to that

      arrest, Officer Ayler found a “plastic baggie in his right front pant[s] pocket that

      contained a white powdery substance” that he suspected to be cocaine. Id. at

      12. Subsequent tests confirmed that the substance was cocaine.


[6]   The State charged Cruz-Salazar with possession of cocaine, as a Class D felony.

      Cruz-Salazar moved to suppress the evidence alleging that the search and

      seizure violated the Fourth Amendment to the United States Constitution and

      Article 1, Section 11 of the Indiana Constitution. The trial court denied that

      motion and, following a bench trial, found Cruz-Salazar guilty of possession of

      cocaine, as a Class A misdemeanor. The trial court entered judgment and

      sentenced Cruz-Salazar to 365 days, all suspended, and 180 days of probation.

      This appeal ensued.



      Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 3 of 13
                                     Discussion and Decision
                            Fourth Amendment and Article 1, Section 11

[7]   Cruz-Salazar contends that Officer Ayler violated his right to be free from an

      unreasonable search and seizure under the Fourth Amendment to the United

      States Constitution and Article 1, Section 11 of the Indiana Constitution. In

      particular, Cruz-Salazar maintains that Officer Ayler detained and questioned

      him without reasonable suspicion that he was engaged in or about to be

      engaged in criminal activity. The State contends that Officer Ayler’s conduct

      was reasonable because Cruz-Salazar had no legitimate privacy interest when

      he was “publicly observed unconscious in a running pickup truck on the side of

      the road at 6:30 a.m.” Appellee’s Br. at 11. The State also contends that

      Officer Ayler’s conduct was consistent with his community caretaking function

      and, as such, did not implicate Cruz-Salazar’s rights under either the federal or

      state constitution. We agree with the State that the community caretaking

      function exception applies here.


[8]   Cruz-Salazar is appealing from the trial court’s admission of the evidence

      following a completed trial. A trial court is afforded broad discretion in ruling

      on the admissibility of evidence, and we will reverse such a ruling only upon a

      showing of an abuse of discretion. Washington v. State, 784 N.E.2d 584, 587

      (Ind. Ct. App. 2003). An abuse of discretion involves a decision that is clearly

      against the logic and effect of the facts and circumstances before the court. Id.

      We will not reweigh the evidence, and we consider conflicting evidence in the



      Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 4 of 13
       light most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214,

       218 (Ind. Ct. App. 2005), trans. denied.


[9]    In Clark v. State, 994 N.E.2d 252, 260-62 (Ind. 2013), our supreme court set out

       the applicable law as follows:

               The Fourth Amendment to the U.S. Constitution protects
               persons from unreasonable search and seizure by prohibiting, as
               a general rule, searches and seizures conducted without a
               warrant supported by probable cause. U.S. Const. amend. IV;
               Berry v. State, 704 N.E.2d 462, 464-65 (Ind. 1998). 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 absent evidence of a recognized
               exception. Mapp v. Ohio, 367 U.S. 643, 649-55 (1961) (extending
               exclusionary rule to state court proceedings). It is the State’s
               burden to prove that one of these well-delineated exceptions is
               satisfied. Berry, 704 N.E.2d at 465.


[10]   In Osborne v. State, --- N.E.3d ---, 2016 WL2756467 *4 (Ind. Ct. App. May 12,

       2016), not yet certified, this court explained the community caretaking exception

       to the Fourth Amendment as follows:

               The concept of a “community caretaking function” was first
               articulated in Cady v. Dombrowski, 413 U.S. 433, 441, 443 (1973),
               where, following an accident, officers conducted a warrantless
               search of an impounded vehicle in an effort to locate a firearm
               that the driver was known to possess in order “to protect the
               public from the possibility that a revolver would fall into
               untrained or perhaps malicious hands.” There, the Supreme
               Court stated that due to




       Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 5 of 13
                the extensive regulation of motor vehicles and traffic,
                and also because of the frequency with which a
                vehicle can become disabled or involved in an
                accident on public highways, the extent of police-
                citizen contact involving automobiles will be
                substantially greater than police-citizen contact in a
                home or office. Some such contacts will occur
                because the officer may believe the operator has
                violated a criminal statute, but many more will not be
                of that nature. Local police officers, unlike federal
                officers, frequently investigate vehicle accidents in
                which there is no claim of criminal liability and
                engage in what, for want of a better term, may be
                described as community caretaking functions, totally
                divorced from the detection, investigation, or
                acquisition of evidence relating to the violation of a
                criminal statute.

        Id. at 441. As further described by our supreme court, the
        community caretaking function “is ‘a catchall for the wide range
        of responsibilities that police officers must discharge aside from
        their criminal enforcement activities.’” Fair v. State, 627 N.E.2d
        427, 431 (Ind. 1993) (quoting United States v. Rodriguez-Morales,
        929 F.2d 780, 785 (1st Cir.1991), cert. denied, 502 U.S. 1030
        (1992)). Thus, “[t]he police are expected not only to enforce the
        criminal laws but also to aid those in distress, abate hazards,
        prevent potential hazards from materializing, and perform an
        infinite variety of other tasks calculated to enhance and maintain
        the safety of communities.” Id.

        The community caretaking function “is a narrow exception to
        the privacy protections of the Fourth Amendment.” Killebrew[ v.
        State], 976 N.E.2d [775,] 782 [(Ind. Ct. App. 2012), trans. denied].
        In Indiana, it has been applied as an exception to the warrant
        requirement only in cases where the police must conduct an
        inventory search because they are impounding a vehicle. See,
        e.g., Woodford[ v. State], 752 N.E.2d [1278,] 1281[ (Ind. 2001)];
Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 6 of 13
               Jones v. State, 856 N.E.2d 758, 762-63 (Ind. Ct. App. 2006), trans.
               denied. In those cases, the State is required to “demonstrate that:
               ‘the belief that the vehicle posed some threat or harm to the
               community or was itself imperiled was consistent with objective
               standards of sound policing, and . . . the decision to combat that
               threat by impoundment was in keeping with established
               departmental routine or regulation.’” Ratliff v. State, 770 N.E.2d
               807, 809-10 (Ind. 2002) (ellipsis in original) (quoting Woodford,
               752 N.E.2d at 1281) (internal quotation marks omitted).


[11]   In Osborne, which, unlike prior Indiana decisions on this topic, did not involve

       the impoundment of a vehicle, we adopted a three-pronged analysis for

       evaluating claims of police community caretaker functions as set out by the

       Wisconsin Supreme Court in State v. Kramer, 759 N.W.2d 598, 605 (Wis. 2009).

       Under that analysis,

               a court must determine “(1) that a seizure within the meaning of
               the [F]ourth [A]mendment has occurred; (2) if so, whether the
               police conduct was bona fide community caretaker activity; and
               (3) if so, whether the public need and interest outweigh the
               intrusion upon the privacy of the individual.” Id. (quoting State v.
               Anderson, 417 N.W.2d 411, 414 (Wis. Ct. App. 1987)). During
               the second step—i.e., whether the police conduct was bona fide
               community caretaker activity—“a court considers whether police
               conduct is ‘totally divorced from the detection, investigation, or
               acquisition of evidence relating to the violation of a criminal
               statute.’” Id. at 606 (quoting Cady, 413 U.S. at 441). This
               determination is based on an examination of the totality of the
               circumstances as they existed at the time of the police officer’s
               conduct. Id. at 608. While a police officer’s subjective intent
               may be a factor to consider in the totality of the circumstances,
               when “an objectively reasonable basis for the community
               caretaker function is shown, that determination is not negated by
               the officer’s subjective law enforcement concerns.” Id. The third
       Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 7 of 13
               step—the balance of public needs against individual privacy
               interests—assesses whether the officer’s exercise of his/her
               community caretaker function was reasonable. Id. at 610. “The
               stronger the public need and the more minimal the intrusion
               upon an individual’s liberty, the more likely the police conduct
               will be held to be reasonable.” Id. at 611. Wisconsin courts
               consider the following factors in balancing these interests:

                       (1) the degree of the public interest and the exigency
                       of the situation; (2) the attendant circumstances
                       surrounding the seizure, including time, location, the
                       degree of overt authority and force displayed; (3)
                       whether an automobile is involved; and (4) the
                       availability, feasibility and effectiveness of
                       alternatives to the type of intrusion actually
                       accomplished.

               Id.


       Osborne, 2016 WL2756467 at *6-7. Applying this test, the Wisconsin Supreme

       Court determined that an officer properly acted within his community caretaker

       function when he stopped to offer assistance to a driver who was parked on the

       side of the road with his hazard lights flashing. Kramer, 759 N.W.2d at 601,

       612.


[12]   Here, we disagree with the State’s initial contention that no search or seizure

       within the meaning of the Fourth Amendment occurred. Cruz-Salazar, while

       parked in a public place, had some expectation of privacy while sleeping in his

       car. See Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005) (noting individual has

       a reduced expectation of privacy in an automobile for Fourth Amendment

       purposes). But we agree with the State that the community caretaking

       Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 8 of 13
       exception applies to Officer Ayler’s conduct in opening the door to Cruz-

       Salazar’s truck and shaking him to wake him up. Only after that point did

       Officer Ayler observe signs of intoxication. As we discuss below, Officer Ayler

       was justified in then investigating Cruz-Salazar’s intoxication.


[13]   Officer Ayler testified that he initially made contact with Cruz-Salazar out of

       concern for Cruz-Salazar’s well-being. In particular, Officer Ayler testified as

       follows: Cruz-Salazar “appeared to be either sleeping or passed out”; after

       Cruz-Salazar did not respond to knocks on the window, Officer Ayler opened

       the door “to check on his welfare”; and Officer Ayler “didn’t know why he was

       asleep [or] if there was a medical problem.” Tr. at 8-9. In light of the totality of

       the circumstances, Officer Ayler’s concern for Cruz-Salazar’s well-being and his

       opening the door of the vehicle to check on Cruz-Salazar’s well-being were

       reasonable, community caretaking activities. Indeed, in his reply brief, Cruz-

       Salazar acknowledges that Officer Ayler’s conduct “was a ‘community

       caretaker activity.’” Reply Br. at 7.


[14]   However, Cruz-Salazar contends that, under the third prong of the Kramer test,

       as adopted by this court in Osborne, the “public need and interest in discovering

       why Cruz-Salazar slept in his car did not outweigh the intrusion into Cruz-

       Salazar’s privacy.” Id. at 8. We cannot agree.


[15]   Again, with respect to the third prong, the Kramer court set out four additional

       factors in balancing the interests of the public and the police officer’s caretaking

       duties: (1) the degree of the public interest and the exigency of the situation; (2)


       Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 9 of 13
       the attendant circumstances surrounding the seizure, including time, location,

       the degree of overt authority and force displayed; (3) whether an automobile is

       involved; and (4) the availability, feasibility and effectiveness of alternatives to

       the type of intrusion actually accomplished. 759 N.W.2d at 611. Under the

       facts of the instant case, the public interest in checking on the welfare of

       someone who is not responsive to knocks on a window is high, as he could

       have been ill and in need of medical assistance, or he could have been

       intoxicated and about to drive off in the vehicle, which was running. Officer

       Ayler did not use any force with Cruz-Salazar and, in fact, unsuccessfully

       attempted to get him a ride home rather than arrest him. And Officer Ayler

       had no other means of making contact with Cruz-Salazar to check his welfare,

       as Cruz-Salazar was nonresponsive to his initial attempts at contact without

       opening the truck door.


[16]   We hold that Officer Ayler’s conduct did not violate Cruz-Salazar’s Fourth

       Amendment right to be free from unreasonable search and seizure. See, e.g.,

       Szabo v. State, 470 S.W.3d 696 (Ark. Ct. App. 2015) (holding officer’s conduct

       appropriate under community caretaking function and no Fourth Amendment

       violation where officer opened car door to wake defendant after observing him

       either “unconscious or sound asleep” in driver’s seat of running vehicle and did

       not respond to knocks on the window). For these same reasons, we hold that

       Officer Ayler’s conduct was reasonable under Article 1, Section 11 of the

       Indiana Constitution. See, e.g., Sowers v. State, 724 N.E.2d 588, 591-92 (Ind.

       2000).


       Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 10 of 13
                                         Probable Cause for Arrest

[17]   Cruz-Salazar also contends that, aside from opening his car door, Officer Ayler

       did not have probable cause to arrest him for public intoxication. Indiana Code

       Section 7.1-5-1-3(a) provides in relevant part that it is a Class B misdemeanor

       for a person to be in a public place in a state of intoxication caused by the

       person’s use of alcohol if the person: (1) endangers the person’s life; (2)

       endangers the life of another person; (3) breaches the peace or is in imminent

       danger of breaching the peace; or (4) harasses, annoys, or alarms another

       person. Cruz-Salazar maintains that there was no reason for Officer Ayler to

       believe that Cruz-Salazar’s conduct fell within one of those categories. The

       State, however, contends that the evidence shows that Officer Ayler “had

       probable cause that [Cruz-Salazar] had committed both public intoxication and

       operating a vehicle while intoxicated.” Appellee’s Br. at 19.


[18]   Probable cause for an arrest exists when the facts and circumstances known to

       the officer would warrant a reasonably prudent person to believe that the

       arrestee has committed the criminal act in question. Jellison v. State, 656 N.E.2d

       532, 534 (Ind. Ct. App. 1995). The level of proof necessary to establish

       probable cause is less than that necessary to establish guilt beyond a reasonable

       doubt. Id. Probable cause, in fact, requires only a fair probability of criminal

       activity, not a prima facie showing. Id. Finally, probable cause may be

       established by evidence that would not be admissible at trial. Id.


[19]   In Tin Thang v. State, 10 N.E.3d 1256, 1260 (Ind. 2014), our supreme court held

       that the evidence was sufficient to prove public intoxication where
       Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 11 of 13
               the undisputed evidence established the sudden presence of the
               defendant and his vehicle at a gas station, his intoxication, his
               possession of the car keys, and the absence of any other person,
               thus necessitating removal of the car by towing. From these
               facts, it is a reasonable inference that the defendant had arrived at
               the gas station by driving his automobile on the public streets
               while intoxicated, thereby endangering his or another person’s
               life.


[20]   Here, again, the State only had to show that there was a “fair probability” that

       Cruz-Salazar had operated his truck while intoxicated to establish probable

       cause to arrest him for public intoxication. Jellison, 656 N.E.2d at 534

       (emphasis added). And we agree with the State that the evidence supports a

       determination that there was a fair probability that Cruz-Salazar committed

       public intoxication by having just driven while intoxicated. Id. Cruz-Salazar

       concedes that he was in a public place in a state of intoxication. And the

       evidence shows that he had been sitting in the driver’s seat of a truck with the

       engine running for approximately thirty minutes before Officer Ayler arrived at

       the scene. Cruz-Salazar stated that he could not remember how he had gotten

       there, and his BAC was .184, more than twice the legal limit to operate a motor

       vehicle. Officer Ayler’s arrest of Cruz-Salazar was supported by probable

       cause, and the search of his person was a valid search incident to arrest. The

       trial court did not abuse its discretion when it admitted into evidence the

       cocaine Officer Ayler found in Cruz-Salazar’s pocket.


[21]   Affirmed.




       Court of Appeals of Indiana | Opinion 49A05-1511-CR-1782 | June 30, 2016   Page 12 of 13
Robb, J., and Crone, J., concur.




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