                                                                                        FILED
                                                                                    Oct 18 2018, 5:48 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Ellen M. O’Connor                                          Curtis T. Hill, Jr.
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Henry A. Flores, Jr.
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Anthony Ector,                                             October 18, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1710-CR-2422
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Shatrese M.
      Appellee-Plaintiff.                                        Flowers, Judge
                                                                 Trial Court Cause No.
                                                                 49G20-1604-F2-12806



      Najam, Judge.


                                        Statement of the Case
[1]   Anthony Ector appeals his convictions, following a jury trial, for dealing in

      cocaine, as a Level 2 felony; dealing in marijuana, as a Level 5 felony;

      possession of a narcotic drug, as a Level 5 felony; and for being a habitual

      Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018                           Page 1 of 14
      offender. Ector raises a single issue for our review, namely, whether the trial

      court erred under Article 1, Section 11 of the Indiana Constitution when it

      admitted evidence that had been seized pursuant to a warrantless search of a

      vehicle, which was parked in the driveway of a residence that officers had a

      warrant to search and in which residence the officers had found Ector along

      with substantial amounts of contraband.


[2]   We affirm.1


                                    Facts and Procedural History2
[3]   On April 1, 2016, Indianapolis Metropolitan Police Department (“IMPD”)

      officers executed a search warrant at a “trap house” in Indianapolis. A “trap

      house” is a house used “to sell narcotics,” and, “if anyone stays there, it’s[ ]on

      an infrequent basis” such that there are not “a lot of personal items there that

      could be traced back to an individual.” Tr. Vol. II at 17. Officers would not

      “expect somebody to live” in such a house. Id. Although no one was known to

      live in the house being searched, the house nonetheless had bars over the

      windows, barricaded doors, and security cameras around the exterior. The

      search warrant specifically permitted officers to seize any keys found inside the

      residence for the purposes of “aid[ing] in the identification of the individuals




      1
        We held oral argument in the Lincoln Amphitheatre in Lincoln State Park in Spencer County on
      September 10, 2018.
      2
        In Ector’s briefs on appeal, he provides citations to the record in support of his assertions of facts only at
      the end of paragraphs rather than at the end of sentences. This practice impedes our review as it provides
      lengthy citation ranges and does not clearly correlate a specific citation to a specific assertion.

      Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018                           Page 2 of 14
      involved in the trafficking of controlled substances at the residence . . . or which

      may provide evidence of the connection of such individuals to the

      residence . . . .” Ex. Vol. I at 59-60.3


[4]   Upon entering the residence, officers observed Ector standing near a staircase

      and holding an AK-47 assault rifle. A nearby officer “pointed [his rifle] at Mr.

      Ector, clicked off the safety, and advised him [to] please drop the gun.” Tr.

      Vol. III at 32. Ector threw his firearm toward a nearby couch and fled into

      another room. Officers pursued and apprehended him. Officers also detained

      two other individuals inside the residence: Kevin Rent and Charles Polk.


[5]   Inside the residence, officers seized the following items:


            • a Glock 22 handgun with an extended magazine;
            • three bags containing cocaine with an aggregate weight of 146.6 grams
              (about one-third of one pound);
            • a duffel bag and a trash bag containing marijuana with an aggregate
              weight of approximately 6,733 grams (just shy of fifteen pounds);
            • four scales, several small plastic baggies, and items with narcotics and
              heroin residue on them;
            • approximately $2,000 on Ector and Rent, mostly in twenty dollar bills;
            • a bottle of sleeping-aid pills used to cut heroin;
            • Polk’s resume;
            • a photograph of Ector and Polk together;
            • Rent’s debit card; and
            • keys found in the dining room.




      3
          Our pagination of the Exhibits Volume is based on the .pdf pagination.


      Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018   Page 3 of 14
[6]   Outside the residence were two vehicles parked in the driveway of the

      residence: a Chevrolet Trailblazer and a Toyota Camry. On his person, Rent

      had keys to the Trailblazer and also to the front door of the house. Officers

      contacted the Bureau of Motor Vehicles (“BMV”) to identify the owner of the

      vehicle based on the registration plate number. The BMV informed the officers

      that Rent owned the Trailblazer.


[7]   Officers asked the three men who owned the keys that had been found in the

      dining room, but no one claimed the keys. Officers discovered that the keys

      opened the Toyota Camry in the driveway. A check of the Camry’s registration

      plate number with the BMV revealed that it was registered to Anna Smith,

      Ector’s mother.4


[8]   One of the officers on the scene, Detective Jeremy Gates, had observed the

      Camry at the house on at least two prior occasions while he was conducting

      surveillance on the house prior to having obtained the warrant. When none of

      the three men claimed the Camry’s keys, Detective Gates concluded that the

      Camry was subject to forfeiture, opened the Camry, and conducted an

      inventory search of it.5 Inside, officers observed a “small bud” of marijuana on




      4
        It is not clear from the record on appeal when officers learned that Smith was Ector’s mother, but it appears
      to have been sometime after the search and seizure of the Camry.
      5
        Although the State later filed a complaint for forfeiture of the cash found on Ector, the State’s complaint
      did not seek to have the Camry forfeited.

      Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018                        Page 4 of 14
       “the floorboard right next to the front door.” Tr. Vol. III at 75. Officers then

       searched the vehicle and discovered the following:


           •    $4,500 in cash;
           •    financial documents addressed to Ector;
           •    a ledger; and
           •    a key underneath the back seat.

       In discovering the key inside the Camry, the searching officer had to “lift up”

       the back seat; no “tool[] or any sort of strength” was required to “pull [the seat]

       up.” Tr. Vol. II at 56. Officers then tried the key on the front door of the

       house. The key unlocked the front door.


[9]    Thereafter, the State filed numerous charges against Ector. Ector filed a motion

       to suppress the evidence seized from the Camry under Article 1, Section 11 of

       the Indiana Constitution, which the trial court denied. 6 At his ensuing jury

       trial, Ector renewed his Article 1, Section 11 objection to the admission of the

       evidence seized from the Camry,7 but the court overruled his objection.


[10]   Ector’s theory in defense of the charges was that he was a casual visitor at the

       residence, and, in effect, he was simply at the wrong place at the wrong time

       when the search warrant was executed. The jury rejected his defense and,




       6
         Ector’s written motion to suppress was based on both the Fourth Amendment to the United States
       Constitution and Article 1, Section 11 of the Indiana Constitution. Appellant’s App. Vol. II at 77. However,
       at the suppression hearing, he clarified that his motion was “under the Indiana Constitution.” Tr. Vol. II at
       96.
       7
         In his objection at trial, Ector expressly “concede[d] that [the search of the Camry was] permitted under the
       [F]ourth [A]mendment . . . .” Id. at 242.

       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018                       Page 5 of 14
       following the jury’s verdict, the trial court entered judgment of conviction

       against Ector for dealing in cocaine, as a Level 2 felony; dealing in marijuana,

       as a Level 5 felony; possession of a narcotic drug, as a Level 5 felony; and for

       being a habitual offender. The court then sentenced Ector to an aggregate term

       of thirty years in the Department of Correction. This appeal ensued.


                                         Discussion and Decision8
                               Standard of Review and Article 1, Section 11

[11]   Ector’s argument that the State violated his “Article 1, Section 11 rights” raises

       a “question[] of law we review de novo.”9 Redfield v. State, 78 N.E.3d 1104, 1106

       (Ind. Ct. App. 2017) (quotation marks omitted), trans. denied. “[A]s a general

       matter[,] determinations of reasonable suspicion and probable cause should be

       reviewed de novo on appeal,” while “findings of historical fact” underlying those

       determinations are reviewed “only for clear error.” Ornelas v. United States, 517

       U.S. 690, 699 (1996); see McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014)




       8
         Insofar as Ector suggests on appeal that his Fourth Amendment rights were also violated, he has not
       preserved that issue for our review. Similarly, in his brief on appeal Ector argues that the seizure of the key to
       the Camry from inside the residence was not within the scope of the warrant. Ector did not raise that
       argument in the trial court. See Tr. Vol. II at 242-49. Accordingly, we do not consider that purported issue.
       Finally, we also do not consider Ector’s standing under Article 1, Section 11. While Ector argues in his brief
       that he had standing to object to the admission of evidence seized from his mother’s Camry, the State does
       not argue otherwise in its brief on appeal.
       9
         Insofar as Ector suggests in his brief that he is appealing from the denial of his motion to suppress, Ector is
       incorrect. The evidence was presented to a jury, and Ector objected to the admission of the evidence at trial.
       “Thus, he is appealing from that admission, not from the prior denial of his motion to suppress.” Redfield v.
       State, 78 N.E.3d 1104, 1106 n.3 (Ind. Ct. App. 2017), trans. denied. Further, insofar as the parties’ briefs
       suggest that our review is for an abuse of discretion, which is “our typical standard of review for challenges to
       the admission of evidence,” id., the parties again are incorrect. “[T]he issues in this appeal are constitutional
       questions and, as such, we review them de novo.” Id.

       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018                          Page 6 of 14
       (applying that standard under Ind. Const. art. 1, § 11). “In other words, we

       review whether reasonable suspicion or probable cause exists under a standard

       similar to other sufficiency issues—whether, without reweighing the evidence,

       there is substantial evidence of probative value that supports the trial court’s

       decision.” Redfield, 78 N.E.3d at 1106 (quotation marks omitted).


[12]   Regarding Article 1, Section 11, our Supreme Court has explained as follows:


               In recent years, this Court has expressed that “[t]he legality of a
               governmental search under the Indiana Constitution turns on an
               evaluation of the reasonableness of the police conduct under the
               totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356,
               359 (Ind. 2005) (citing Moran [v. State], 644 N.E.2d [536, 539
               (Ind. 1994)]). To determine whether a residential entry violated
               Article 1, Section 11, we apply a “totality-of-the-circumstances
               test to evaluate the reasonableness of the officer’s actions.”
               Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010). A more elaborate
               explanation and methodology for evaluating such reasonableness
               is provided in Litchfield:


                        In sum, although we recognize there may well be other
                        relevant considerations under the circumstances, we have
                        explained reasonableness of a search or seizure as turning
                        on a balance of: 1) the degree of concern, suspicion, or
                        knowledge that a violation has occurred, 2) the degree of
                        intrusion the method of the search or seizure imposes on
                        the citizen’s ordinary activities, and 3) the extent of law
                        enforcement needs.


               824 N.E.2d at 361.


       Lacey v. State, 946 N.E.2d 548, 550 (Ind. 2011) (some citations omitted).


       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018    Page 7 of 14
[13]   Ector contends on appeal that his Article 1, Section 11 rights were violated in

       two respects. First, he argues that the State’s purported need to inventory the

       Camry was merely a pretext to engage in an unlawful evidentiary search.

       Second, he argues that, regardless of whether the inventory search was

       pretextual, the search was unconstitutional under the three Litchfield factors.

       We address each of Ector’s arguments in turn.


                                                 Inventory Search

[14]   The parties first dispute whether the seizure of the evidence from within the

       Camry was lawful under the inventory-search exception to the warrant

       requirement of Article 1, Section 11. “A valid inventory search is an exception

       to the warrant requirement.” Whitley v. State, 47 N.E.3d 640, 645, 649 (Ind. Ct.

       App. 2015), trans. denied. “Police are permitted to conduct a warrantless search

       of a lawfully impounded vehicle if the search is designed to produce an

       inventory of the vehicles contents.” Id. The rationale for an inventory search 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.” Id.


[15]   “[T]he test of constitutionality in inventory cases is reasonableness.” Id. at 645.

       As we have explained:


               In determining the reasonableness of an inventory search, we
               examine all the facts and circumstances of the case. We consider
               the propriety of the impoundment giving rise to the search and
               the scope of the inventory search itself. The search must be
               conducted pursuant to and in conformity with standard police
       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018   Page 8 of 14
               procedures. Evidence of established local policy and procedure is
               required “to ensure that the inventory is not a pretext for a
               general rummaging in order to discover incriminating evidence.”


       Id.


[16]   As such, “proper impoundment is the ‘threshold question’ to [a] valid inventory

       search.” Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). As our Supreme

       Court has further explained:


               Impoundment is reasonable if it is authorized either by statute or
               the police’s discretionary community-caretaking function.
               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 . . . they are vulnerable to constitutional reasonableness
               challenges because of their potential for misuse as pretext for
               warrantless investigative searches under the guise of inventory.
               Unless the impoundment is proper, then, an inventory search is
               per se unreasonable and any contraband found during the search
               is inadmissible “poisoned fruit.”


       Id. (citations omitted).


[17]   Ector first contends that the decision to impound the Camry was improper

       because the “decision was made to place a forfeiture hold on the Camry before

       the police had sufficient evidence” to do so. Appellant’s Br. at 20. Specifically,


       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018   Page 9 of 14
       he asserts that the State “needed to further investigate whether the car

       could . . . be forfeited” by “taking the house key from the car and inserting it

       into the lock.” Id. at 18, 20. In other words, Ector contends that the nexus

       required under Indiana Code Section 34-24-1-1(a)(1) (2018) was not established

       until after the key found in the car was shown to unlock the residence.


[18]   We cannot agree. The key discovered within the Camry had no bearing on the

       officers’ decision to impound the Camry, which decision had been made prior

       to opening the Camry, searching it, and finding the house key. Rather, the

       impoundment decision was based on the arrests of those at the residence, that

       the residence was not a manufacturing setting, and the reasonable likelihood

       that the Camry had been used in the transportation of contraband.


[19]   Indiana Code Section 34-24-1-1(a)(1) permits an officer to seize for purposes of

       forfeiture any vehicle that is “used . . . by the person . . . in possession of [it] to

       transport or in any manner facilitate the transportation of” a controlled

       substance. Such a seizure is permissible where, as here, “the seizure is incident

       to a lawful[ ]arrest.” I.C. § 34-24-1-2(a)(1)(A); see also Serrano v. State, 946

       N.E.2d 1139, 1142-43 (Ind. 2011) (“to sustain a forfeiture the State must

       demonstrate” a “nexus” between “the property sought” and “one of the

       enumerated offenses under the statute”). And IMPD policy likewise permits a

       vehicle to be towed and impounded if that vehicle was “operated by [a] person

       under custodial arrest for any charge.” Ex. Vol. I. at 29.




       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018   Page 10 of 14
[20]   There is no dispute that Ector, Rent, and Polk were under lawful arrest when

       officers decided to impound the Camry. And the decision to impound the

       Camry was reasonable in light of the facts before the officers at the scene. Their

       decision was supported by the substantial amounts of contraband and firearms

       found within what was otherwise an apparently abandoned trap house.

       Further, the Trailblazer, the only other vehicle at the residence, belonged to

       Rent, while the Camry was registered to a third party not present at the

       residence, whom officers later learned to be Ector’s mother. And Detective

       Gates had twice previously observed the Camry at the residence. In light of the

       facts before the officers, we agree with the State on appeal that “[t]he only

       reasonable conclusion is that the vehicles on the scene were used to transport,

       and/or facilitate the transport, the drugs to the trap house for purposes of

       dealing.” Appellee’s Br. at 17. Accordingly, the decision to impound the

       Camry was reasonable and, thus, constitutional.


[21]   Nonetheless, Ector also contends that the officers’ search of the Camry

       “violated IMPD policy” because it was “excessive in scope and unreasonable.”

       Appellant’s Br. at 20. In support of that position, Ector notes that IMPD’s

       policy on inventory searches states that such searches “should not be motivated

       by an officer’s desire to investigate and seize evidence of a criminal act,” and

       that the policy requires opening locked areas of the vehicle only “[i]f a key is

       available.” Ex. Vol. I at 32. Ector then asserts that the search here, which

       involved lifting up the back seat to reveal the house key, was excessive under

       IMPD’s policy.


       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018   Page 11 of 14
[22]   We cannot agree that the searching officer’s lifting of the back seat was

       excessive under IMPD’s policy. The policy language does not prohibit any

       such act, nor does the policy limit an inventory search to a visual search only.

       Further, the searching officer testified to the trial court at the suppression

       hearing that “it’s a common practice . . . to search the entire vehicle,” which

       included “underneath the rear seat . . . .” Tr. Vol. II at 55-56. Thus, the

       evidence is sufficient to support the trial court’s judgment on this issue.10 See

       Redfield, 78 N.E.3d at 1106.


                                          Article 1, Section 11 Factors

[23]   The parties also dispute whether the search of the Camry was lawful under the

       three Article 1, Section 11 factors noted above. Again, those factors are (1) the

       degree of concern, suspicion, or knowledge that a violation has occurred, (2) the

       degree of intrusion the method of the search or seizure imposes on the citizen’s

       ordinary activities, and (3) the extent of law enforcement needs. E.g., Litchfield,

       824 N.E.2d at 361.


[24]   In support of his position on this issue, Ector asserts that the degree of concern,

       suspicion, or knowledge that a violation had occurred “was low and the

       intrusion was great when the car was impounded and the house key was used to

       further the investigation into Anthony Ector’s role in the trap house . . . .”




       10
          We need not consider the State’s alternative argument on appeal that, because officers immediately
       observed marijuana on the floor of the car upon opening the car door, the officers had probable cause to
       conduct a warrantless search of the entire vehicle regardless of the language of the IMPD policy.

       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018                     Page 12 of 14
       Appellant’s Br. at 25 (citations to the record omitted). And while Ector then

       concedes that “the police had a clear need for evidence from the Camry,” he

       asserts that “it was unreasonable to perform a pretextual search lacking in

       probable cause in lieu of obtaining consent or a warrant.” Id.


[25]   We cannot agree with Ector’s assessment. Rather, we agree with the State that

       the Article 1, Section 11 factors weigh heavily in the State’s favor. As the State

       summarizes on appeal, the degree of suspicion here was high:


               [Ector] and his two co-defendants were found in a trap house
               with barred windows and video surveillance. When police
               entered the house, [Ector] was attempting to protect the 146
               grams of cocaine[] and almost 15 pounds of marijuana with a
               stolen AK-47. Det. Gates testified that[,] based on his training
               and experience, the “vehicles were utilized to transport, or were
               financed directly through the sales of[,] narcotics.” There were
               only two cars in the driveway and three individuals inside.
               Further, Det. Gates[] indicated that[,] while conducting
               surveillance on the house, he [had] observed the Camry at the
               trap house on multiple occasions.


       Appellee’s Br. at 24-25 (citations to the record omitted).


[26]   Further, any intrusion into Ector’s privacy in the search of his mother’s vehicle

       was minimal, and nothing about the manner or timing of the search intruded on

       Ector’s ordinary activities. And the needs of law enforcement also weigh in the

       State’s favor. Again, the officers were justified in taking the Camry into their

       custody for forfeiture, and, thus, they had an established need to inventory the




       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018   Page 13 of 14
       Camry pursuant to that forfeiture. In sum, the search of the Camry was

       reasonable under Article 1, Section 11.


[27]   Accordingly, we cannot say that the trial court’s admission of the evidence

       seized from the Camry violated Ector’s rights under Article 1, Section 11, and

       we affirm Ector’s convictions.


[28]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1710-CR-2422 | October 18, 2018   Page 14 of 14
