                                                                        Jan 19 2016, 8:35 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Suzy St. John                                              Gregory F. Zoeller
Marion County Public Defender                              Attorney General of Indiana
Indianapolis, Indiana
                                                           Chandra K. Hein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Chauncy Rhodes,                                            January 19, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1503-CR-173
        v.                                                 Appeal from the Marion County
                                                           Superior Court
State of Indiana,                                          The Honorable Jose Salinas, Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           49G14-1404-FD-20261



May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016                     Page 1 of 14
[1]   Chauncy Rhodes appeals his conviction of Class D felony possession of

      marijuana with a prior conviction of possession of marijuana. 1 As the trial

      court abused its discretion when it admitted evidence obtained from an

      inventory search of Rhodes’ vehicle, we reverse.


                                     Facts and Procedural History 2
[2]   On August 18, 2014, Officer Dustin Greathouse saw Rhodes driving over the

      speed limit. Officer Greathouse initiated a traffic stop, and Rhodes parked his

      vehicle in a nearby driveway. Rhodes initially told Officer Greathouse he

      pulled into the driveway because his cousin lived there; Rhodes later admitted

      he was trying to avoid Officer Greathouse because Rhodes was driving with a

      suspended license.


[3]   Officer Greathouse arrested Rhodes for driving with a suspended license and

      decided to tow the car. Before he towed the car, Officer Greathouse conducted

      an inventory search of the glove box, trunk, and passenger compartment. He

      found “numerous personal items,” (Tr. at 13), and “miscellaneous items,” (id.

      at 49), for which he did not create a record. Officer Greathouse also found a

      half-eaten pizza, a pizza delivery bag, and a jar of money. In the glove box,

      Officer Greathouse found a “red metal grinder,” (id. at 49), containing “a small




      1
          Ind. Code § 35-48-4-11(c) (2014).
      2
       We held oral argument on this matter on December 3, 2015, at New Prairie High School in Carlisle,
      Indiana. We thank the staff, faculty, and students for their hospitality and we commend counsel for the
      quality of their advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016                      Page 2 of 14
      amount of marijuana.” (Id.) At some point before the car was towed, someone

      from the house came outside to ask if everything was okay and to “make sure

      the car was not going to be left in the driveway.” (Id. at 11.)


[4]   Before his bench trial, Rhodes filed a motion to suppress the items found as part

      of the inventory search on the ground the search violated his rights under the

      Fourth Amendment of the United States Constitution and Article 1, Section 11

      of the Indiana Constitution. After a hearing, Rhodes’ motion was denied. He

      objected to the admission of the same evidence during trial, and his objection

      was overruled. The trial court found Rhodes guilty of Class A misdemeanor

      possession of marijuana and Class A misdemeanor driving while suspended. 3 It

      enhanced the marijuana possession conviction to a D felony based on Rhodes’

      prior conviction of marijuana possession after Rhodes stipulated to the prior

      conviction.


                                        Discussion and Decision
[5]   Rhodes did not seek interlocutory review of the denial of his motion to suppress

      but instead appeals following trial. This issue is therefore “appropriately

      framed as whether the trial court abused its discretion by admitting the evidence

      at trial.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Our

      review of rulings on the admissibility of evidence is essentially the same

      whether the challenge is made by a pre-trial motion to suppress or by trial




      3
          Rhodes does not appeal his conviction of Class A misdemeanor driving while suspended.


      Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016                  Page 3 of 14
      objection. Id. We do not reweigh the evidence, and we consider conflicting

      evidence most favorable to the trial court’s ruling. Id. However, we must also

      consider the uncontested evidence favorable to the defendant. Id.


[6]   The Fourth Amendment to the United States Constitution requires law

      enforcement officials to obtain a valid warrant before conducting searches or

      seizures. State v. Straub, 749 N.E.2d 593, 597 (Ind. Ct. App. 2001). However,

      “on occasion the public interest demands greater flexibility than is offered by

      the constitutional mandate” of a warrant. Rabadi v. State, 541 N.E.2d 271, 274

      (Ind. 1989). The exceptions to the warrant requirement are “few in number and

      carefully delineated.” United States v. United States Dist. Court for Eastern Dist. Of

      Mich., Southern Division, 407 U.S. 297, 313 (1972).


[7]   One exception to the warrant requirement is an inventory search of a properly

      impounded vehicle. Fair v. State, 627 N.E.2d 427, 430 (Ind. 1993). The

      purposes of an inventory search are: “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.” Gibson v. State, 733 N.E.2d 945, 956

      (Ind. Ct. App. 2000). The test of constitutionality for an inventory search is

      reasonableness. Id. Our Indiana Supreme Court laid out in Fair the test for

      reasonableness with regard to an inventory search:

              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

      Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016   Page 4 of 14
               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 both
               the necessitousness of the impoundment and the scrupulousness
               of the inventorying are viewed together.


      627 N.E.2d at 431.


[8]   The inventory search was unreasonable because the State did not prove the

      scope of the search complied with official police policy. 4 “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 and the protection of

      those arrested.” Friend v. State, 858 N.E.2d 646, 652 (Ind. Ct. App. 2006). 5


[9]   In Edwards v. State, 762 N.E.2d 128, 133 (Ind. Ct. App. 2002), aff’d on reh’g, 768

      N.E.2d 506 (Ind. Ct. App. 2002), the State’s evidence did not

               include the substance of any police department policy regarding
               inventory searches, or even indicate there is such a policy. To
               show that its actions come within the inventory exception, the
               State must do more than offer the bald allegation of law
               enforcement that the search was conducted as a routine




      4
        As we hold the inventory search invalid, we need not determine if the impoundment was improper. See
      Fair, 627 N.E.2d at 431 (“Whether either [the impoundment or inventory search] is clearly unreasonable, the
      search will not be upheld.) (emphasis added).
      5
       Rhodes correctly notes “inventory searches conducted at the impound lot by an officer assigned to such
      duties are preferred to searches conducted at the scene, without a warrant, by the arresting officer.” Edwards,
      762 N.E.2d at 134.

      Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016                         Page 5 of 14
               inventory. The trial court therefore had no evidentiary basis to
               evaluate whether the inventory search performed on Edwards’
               truck was in conformity with established local law enforcement
               policy.


[10]   Edwards relied on Stephens v. State, 735 N.E.2d 278 (Ind. Ct. App. 2000), as an

       example of sufficient evidence of police procedure. In Stephens, the State

       presented evidence in the form of

               the records detail[ing] who towed the car, indicat[ing] the
               detective responsible for the investigation, and describ[ing] the
               valid traffic hazard basis for the tow. The detective conducted
               the search in front of two witnesses, compiled an inventory of all
               the contents of the vehicle, created a property sheet, and placed
               the items into the property room of the sheriff’s department.


       Edwards, 762 N.E.2d at 134 (citing Stephens, 735 N.E.2d at 282). We noted the

       preference that inventory searches be completed by an officer at the impound

       lot who regularly performs those types of duties. Id.


[11]   Additionally, in Fair, our Indiana Supreme Court held:


               The fatal defect in this search is that the provisions of the
               Indianapolis Police Department’s inventory policy are not
               established in sufficient detail by the record. Officer Wager
               testified only that “we conduct an inventory search of the car to
               see what kind of items are in it. If there’s anything valuable that
               might need to be placed in the property room or otherwise noted
               as being in the car.” There was no testimony whatsoever that
               provided the particulars of the policy and, therefore, it is not
               possible for this Court to determine whether the seemingly
               suspicious circumstances which [sic] attended the search were in


       Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016    Page 6 of 14
               fact irregular. Without more, then, we can not [sic] conclude
               that the police department’s inventory search was reasonable.


       627 N.E.2d at 436 (citations to the record omitted).


[12]   Officer Greathouse testified he conducted an inventory search of Rhodes’

       vehicle “to make sure no valuables are left inside the vehicle before it’s

       towed[,]” and if valuable items are found, “we may take them and put them in

       the IMPD property room to be held for safekeeping.” (Tr. at 12.) However, the

       only items Officer Greathouse inventoried were those items that supported the

       marijuana possession charge.


[13]   Officer Greathouse’s testimony regarding police procedure can be distinguished

       from that of the officer in Faust v. State, 804 N.E.2d 1242 (Ind. Ct. App. 2004),

       trans. denied, and Wilford v. State, 31 N.E.3d 1023 (Ind. Ct. App. 2015), trans.

       pending, in which we held an officer’s testimony was sufficient to prove

       compliance with police procedure. In Faust, the officer’s testimony was

       sufficient because the officer read from the procedural manual as part of his

       testimony. 804 N.E.2d at 1245. In Wilford, we determined


               the testimony of the experienced law enforcement officers
               constituted more than ‘bald allegations’ that they conducted a
               routine inventory search; rather, their testimony described the
               purpose of the inventory, outlined the procedures used to
               conduct this particular inventory, and established that IMPD
               policy authorizes on-site inventory searches. Even absent
               introduction of the formal IMPD policy on inventory searches,
               we think this testimony was sufficient to show that the search



       Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016   Page 7 of 14
                was part of established and routine procedures that are consistent
                with the community caretaking function.


       31 N.E.3d at 1033.


[14]   As noted in the holding, the testimony in Wilford was significantly more

       detailed than the testimony offered by Officer Greathouse. In Wilford, the

       officer, a twenty-three year Indianapolis Police Department 6 veteran, testified

       regarding police inventory procedure:

                The first thing I do is I look under the front seat uh, I check the
                uh, center console, I go to the rear driver side, I check the
                compartment on the rear driver side. I go around the other side of
                the vehicle and I check the front passenger, I check the rear
                passenger area and then I check the trunk.


       Id. In contrast, Officer Greathouse testified regarding police inventory

       procedure, “For an impounded vehicle, we will search the passenger

       compartment area as well as the glove box if it’s unlocked and the trunk if it’s

       unlocked.” (Tr. at 12.) While Officer Greathouse’s testimony comports with

       what he did, it seems highly unlikely the Indianapolis Police Department

       inventory search procedure varied as greatly as the officers’ testimonies would

       suggest it did.




       6
         At the time of the facts in Wilford, the Indianapolis Police Department was called “IPD.” At the time of the
       facts herein, it was called “IMPD.”

       Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016                       Page 8 of 14
[15]   Officer Greathouse’s testimony was insufficient to prove the inventory search

       he performed of Rhodes’ vehicle complied with official police policy. Because

       the State did not present evidence of police procedure, the search violated

       Rhodes’ Fourth Amendment 7 protection from unreasonable search and seizure.

       Therefore, the trial court abused its discretion when it admitted the evidence

       found in Rhodes’ vehicle as part of the inventory search.


                                                    Conclusion
[16]   The State did not provide sufficient evidence of police procedure and Officer

       Greathouse’s compliance therewith. Therefore, the trial court abused its

       discretion when it admitted the marijuana found in Rhodes’ car. Accordingly,

       we reverse Rhodes’ conviction of Class D felony possession of marijuana with a

       prior conviction.


[17]   Reversed.


       Barnes, J., concurs with separate opinion.


       Crone, J., dissents with separate opinion.




       7
         As we hold the inventory search unreasonable under the Fourth Amendment, we need not independently
       decide whether it violates Article 1, Section 11 of the Indiana Constitution because the two analyses focus on
       the totality of the circumstances. See Taylor v. State, 842 N.E.2d 327, 334 (Ind. 2006) (holding that “the
       factors leading to our conclusion that impounding [the defendant's] car was not warranted by police
       administrative caretaking functions [under the Fourth Amendment analysis] support the conclusion that the
       requirements of the Indiana Constitution were violated as well”).

       Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016                        Page 9 of 14
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Chauncy Rhodes,                                            Court of Appeals Case No.
                                                                  49A02-1503-CR-173
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Barnes, Judge, concurring.


[18]   I fully concur with Judge May’s conclusion that the search here fell far short of

       the requirements for a constitutional inventory search.


[19]   I write to explicitly and directly address the concerns that may arise as a result

       of our decision. Indiana Code Section 35-33-5-5(a) specifically outlines what

       must be done with regard to “inventory” that is recovered during an inventory

       search. The statute provides, “All items of property seized by any law

       enforcement agency as a result of an arrest, search warrant, or warrantless

       search, shall be securely held by the law enforcement agency under the order of

       the court trying the cause, except as provided in this section.” Ind. Code § 35-

       33-5-5(a). I have voted to uphold inventory searches in cases such as Jones v.

       State, 856 N.E.2d 758 (Ind. Ct. App. 2006), and Whitley v. State, No. 49A02-

       1501-CR-50 (Ind. Ct. App. Dec. 7, 2015). I did so because there was at least


       Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016             Page 10 of 14
       some semblance of comportment with constitutional and statutory

       requirements, and I felt comfortable some effort had been made to comply.


[20]   There was no evidence of that happening here. No inventory, no listing of

       property, no taking of the car to an impoundment lot before searching, no

       securing of the property seized, no nothing. Following the outlined Indiana

       Code and constitutional requirements, as well as police department protocols

       regarding inventory searches, protects police officers from claims of theft, abuse

       of authority, evidence planting, and the like. There is no such protection when

       there is a lack of evidence as to protocols and the inventorying and securing of

       property. I am not suggesting that anything less than punctilious and

       exaggerated compliance will suffice, but there has to be more than was

       exhibited here. Thus, I fully concur with Judge May’s opinion.




       Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016   Page 11 of 14
                                                     IN THE
            COURT OF APPEALS OF INDIANA

       Chauncy Rhodes,                                              Court of Appeals Case No.
                                                                    49A02-1503-CR-173
       Appellant-Defendant,

                v.

       State of Indiana,
       Appellee-Plaintiff.




       Crone, Judge, dissenting.


[21]   I respectfully disagree with the majority’s conclusion that the scope of Officer

       Greathouse’s inventory search of Rhodes’s vehicle was unreasonable. I believe

       that the majority unduly emphasizes what the record does not show about

       IMPD’s inventory search procedure instead of what the record does show.


[22]   At the suppression hearing, the prosecutor asked the officer to give “a quick

       overview” on IMPD’s policy “on impounding and inventorying vehicles[.]”

       Tr. at 12. The following exchange occurred:

                A[.] Okay. For an impounded vehicle, we will search the
                passenger compartment area as well as the glove box if it’s
                unlocked and the trunk if it’s unlocked.[ 8]



       8
         Unlike the majority, I do not believe that this description of IMPD’s inventory search procedure differs
       significantly from that of the more detailed description in Wilford.

       Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016                       Page 12 of 14
               Q[.] Why do you do this?

               A[.] Just to make sure no valuables are left inside the vehicle
               before it’s towed.

               Q[.] Okay. If there are valuable items in the vehicle, what do
               you do with them?

               A[.] We’ll document what they are. If they’re very valuable
               items, we may take them and put them in the IMPD property
               room to be held for safe keeping.

               Q[.] Did you find any valuable items in this vehicle?

               A[.] No.


       Id. at 13. 9


[23]   Like the officers’ testimony in Wilford, Officer Greathouse’s testimony

       “described the purpose of the inventory, outlined the procedures used to

       conduct this particular inventory, and established that IMPD policy authorizes

       on-site inventory searches.” 31 N.E.3d at 1033. Thus, as in Wilford, “[e]ven

       absent introduction of the formal IMPD policy on inventory searches, [I] think

       this testimony was sufficient to show that the search was part of established and

       routine procedures that are consistent with the community caretaking

       function.” Id. Also, as in Wilford, “this record does not contain indicia of




       9
        Rhodes complains about Officer Greathouse’s failure to document the jar of money found in his vehicle,
       but there is no indication that it was of significant value.

       Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016                   Page 13 of 14
       pretext for ‘general rummaging’ through the car to find incriminating

       evidence[,]” in that Rhodes “was already under arrest for driving while

       suspended when Officer [Greathouse] decided to impound the car” and the

       officer “followed the described procedure when he conducted the search.” Id.


[24]   Moreover, I think that Officer Greathouse’s decision to impound Rhodes’s

       vehicle was reasonable under the circumstances, given that the car was parked

       in the “driveway of a private residence” and someone in the residence wanted

       “to make sure that the car was not going to be left in the driveway.” Tr. at 15,

       11. Therefore, I would uphold the search under both the state and federal

       constitutions and affirm Rhodes’s conviction for class D felony marijuana

       possession.




       Court of Appeals of Indiana | Opinion 49A02-1503-CR-173 | January 19, 2016   Page 14 of 14
