MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Sep 29 2017, 6:30 am

court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James R. Recker                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Pinkham,                                         September 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         53A05-1608-CR-1793
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Teresa D. Harper,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         53C09-1406-FC-611



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A05-1608-CR-1793 | September 29, 2017   Page 1 of 7
                                             Case Summary
[1]   Richard Pinkham appeals his conviction for Class C felony burglary and the

      finding that he is an habitual offender. We affirm.


                                                     Issue
[2]   The sole issue before us is whether Pinkham has standing to challenge the

      constitutionality of a vehicle search that yielded incriminating evidence where

      the vehicle owner was present and consented to the search.


                                                     Facts
[3]   On the morning of October 7, 2013, Pinkham and Jennifer Proctor drove to a

      Taco Bell restaurant in Bloomington. Pinkham got out of the car, and Proctor

      drove to a nearby location from which she monitored police scanner activity.

      Proctor and Pinkham communicated via two-way radios. Pinkham, carrying a

      black bag, forced his way into the restaurant using a crowbar. He forcibly

      opened the restaurant’s safe and cash register drawers and stole $1,382.


[4]   The police obtained surveillance video footage that showed a figure in dark

      clothes and gloves moving within the restaurant, as well as a small black vehicle

      with a rear spoiler outside the restaurant around the time of the robbery.

      Indiana State Police issued a bulletin regarding the burglary details.


[5]   Seven months later, in the pre-dawn hours of May 24, 2014, a burglar alarm

      was triggered at a Taco Bell location in Booneville. Detective Paul Kruse of the

      Warrick County Sheriff’s Department responded to the scene and observed pry

      Court of Appeals of Indiana | Memorandum Decision 53A05-1608-CR-1793 | September 29, 2017   Page 2 of 7
      markings consistent with use of a crowbar on the restaurant door. Detective

      Kruse saw a small black Mitsubishi Eclipse drive past the restaurant multiple

      times. Given the unusually early hour and the fact that it was Memorial Day,

      traffic should have been scarce. Detective Kruse became suspicious about the

      vehicle and its proximity to the Taco Bell. He followed the vehicle, which

      quickly pulled into a gas station. As Detective Kruse passed the vehicle, its

      driver immediately drove away from the gas station. Detective Kruse

      eventually resumed following the vehicle. The driver, Pinkham, committed a

      traffic infraction, disregarding signage instructing drivers to keep right except to

      pass, and Detective Kruse pulled over the vehicle. Proctor was seated in the

      passenger seat.


[6]   Detective Kruse observed that Pinkham was visibly nervous and breathing

      heavily. On request, Pinkham handed over his license, proof of insurance, and

      a vehicle registration in Proctor’s name. From his squad car, Detective Kruse

      checked Pinkham’s driving history, as well as for outstanding warrants and

      criminal history. Detective Kruse then returned to the vehicle and asked

      Pinkham to exit. He asked Pinkham if he was armed, and Pinkham advised

      that he had a knife. Detective Kruse instructed Pinkham to place his hands on

      the trunk of the vehicle and patted Pinkham down, removing the knife.


[7]   Detective Kruse asked why Pinkham was in Booneville. Pinkham responded

      that he had just arrived in town. Detective Kruse issued a citation, told

      Pinkham that he was free to go, and placed the citation and Pinkham and

      Proctor’s records on the rear of the vehicle.

      Court of Appeals of Indiana | Memorandum Decision 53A05-1608-CR-1793 | September 29, 2017   Page 3 of 7
[8]    Detective Kruse later testified that “[a]fter I told him that he was free to go, and

       it was clear he was making a move to do that, I asked him if it would be okay

       with him if I searched the car[.]” Tr. p. 47. Pinkham responded that he had no

       problem with the search but that Detective Kruse should ask the vehicle’s

       owner, Proctor. Kruse approached Proctor and asked her reasons for being in

       Booneville. Her account differed from Pinkham’s. Proctor, too, consented to

       the vehicle search.


[9]    Detective Kruse’s preliminary search yielded a crowbar and two-way radios.

       He decided to impound the vehicle and seek a search warrant. After obtaining

       the warrant, the police recovered from the vehicle a reciprocating saw, a small

       sledgehammer, another crowbar, black gloves, a black hat, a black ski mask, a

       camouflage-print sweatshirt, and a black bag containing pliers and extra blades

       for the saw.


[10]   The State charged Pinkham with two counts of class C felony burglary. The

       State also filed a notice of intent to seek an habitual offender enhancement. On

       September 8, 2015, Pinkham filed a motion to suppress, which the trial court

       denied. The trial court ordered the burglary counts severed for trial, and on

       May 31-June 2, 2016, Pinkham was tried by jury regarding the Bloomington

       burglary.1




       1
           The severed burglary count originating in Warrick County was later dismissed.

       Court of Appeals of Indiana | Memorandum Decision 53A05-1608-CR-1793 | September 29, 2017   Page 4 of 7
[11]   Detective Kruse testified that the presence of an out-of-town vehicle, in the

       immediate vicinity of a Taco Bell burglary, that matched the description of the

       suspect vehicle involved in an unsolved, morning robbery of another Taco Bell

       location had made him suspicious. He testified further that his suspicions were

       further raised by the early hour and the furtive and evasive actions taken by

       Pinkham before the traffic stop.


[12]   Proctor confessed and served as a primary State’s witness, testifying in detail

       regarding Pinkham’s planning and execution of the crimes. She testified further

       that before trial, Pinkham begged her to withdraw her confession, to refuse to

       testify, and to tamper with a witness.2


[13]       Pinkham was found guilty as charged and was found to be an habitual

       offender. The trial court sentenced him accordingly, and he now appeals.


                                                   Analysis
[14]   Pinkham argues on appeal that the trial court should have granted his motion to

       suppress the evidence obtained from the vehicle.3 The State counters that




       2
         The record includes letters and jailhouse recordings in which Pinkham begs Proctor to
       dissuade her daughter, Jordan Nikki Hodges, from testifying against him. Hodges, however,
       testified that when she was employed at a Taco Bell location, Pinkham asked about the “safe
       numbers” and security system. Tr. p. 95. Hodges also testified that she saw Pinkham and
       Proctor with a large sum of money, which Pinkham admitted “he got … from Taco Bell.” Id.
       Pinkham confessed to Hodges, admitting that he wore black clothing during the burglary and
       that he “cut through the safe.” Id. at 96.
       3
        Because Pinkham appeals following the conclusion of his trial, his appeal is, in fact, a request
       to review the trial court’s decision to admit the evidence recovered from the vehicle at trial,
       which is governed by an “abuse of discretion” standard of review. Carpenter v. State, 18

       Court of Appeals of Indiana | Memorandum Decision 53A05-1608-CR-1793 | September 29, 2017   Page 5 of 7
       Pinkham lacks standing to challenge the constitutionality of the vehicle search.

       We agree with the State.


[15]   Although Pinkham contends that the State violated his rights under Article 1,

       Section 11 of the Indiana Constitution, he has failed to develop a cogent

       argument on this issue or to provide adequate citation to authority cite to legal

       authority in support of his state constitutional claims. To this extent, his claims

       regarding state constitutional violations are waived. See Shane v. State, 716

       N.E.2d 391, 398 n.3 (Ind. 1999) (defendant waived argument on appeal by

       failing to develop a cogent argument). We will only address Pinkham’s Fourth

       Amendment claims.


[16]   To challenge the validity of a search under the Fourth Amendment, the United

       States Supreme Court has held that the test is whether the defendant can

       demonstrate a legitimate expectation of privacy in the area subject to the

       governmental intrusion. Whitley v. State, 47 N.E.3d 640, 644 (Ind. Ct. App.

       2015) (citing Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469 (1998)).

       Indeed, “a defendant aggrieved by an illegal search and seizure only through

       the introduction of damaging evidence secured by the search of a third person’s




       N.E.3d 998, 1001 (Ind. 2014) (citing Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014)). Because
       we find the issue of standing to be dispositive, we will not address the merits of his claim.

       Court of Appeals of Indiana | Memorandum Decision 53A05-1608-CR-1793 | September 29, 2017   Page 6 of 7
       premises has not had any of his Fourth Amendment rights infringed.” Sisk v.

       State, 785 N.E.2d 271, 274 (Ind. Ct. App. 2003).


[17]   A driver who is not the owner of the vehicle at issue in a vehicle search by

       police lacks standing if the owner is also in the vehicle. Campos v. State, 885

       N.E.2d 590, 598-99 (Ind. 2008); see also United States v. Jefferson, 925 F. 2d 1242,

       1249 (10th Cir. 1991); United States v. Lochan, 674 F. 2d 960, 965 (1st Cir. 1982)

       (although driver had been on a long trip and had vehicle registration, driver

       lacked standing because vehicle owner was also present).


[18]   Here, Proctor was in the car when Detective Kruse initiated the traffic stop; she

       freely and voluntarily consented to the vehicle search; and she served as a

       primary State’s witness at trial. Under the circumstances, Pinkham’s

       constitutional challenges to the vehicle search must fail for a lack of standing.


                                                 Conclusion
[19]   We conclude that Pinkham’s claims fail for lack of standing. We affirm his

       conviction and habitual offender finding.


[20]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A05-1608-CR-1793 | September 29, 2017   Page 7 of 7
