                                                                                      FILED
                                                                              Apr 08 2019, 10:15 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
A. David Hutson                                             Curtis T. Hill, Jr.
Hutson Law Office, LLC                                      Attorney General of Indiana
Jeffersonville, Indiana                                     Ian McLean
                                                            Supervising Deputy Attorney
                                                            General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

William Washburn,                                           April 8, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2073
        v.                                                  Appeal from the
                                                            Clark Circuit Court
State of Indiana,                                           The Honorable
Appellee-Plaintiff.                                         Bradley B. Jacobs, Judge
                                                            Trial Court Cause No.
                                                            10C02-1710-F4-91



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019                                Page 1 of 14
[1]   William Washburn (“Washburn”) appeals his convictions after a jury trial for

      possession of methamphetamine1 as a Level 5 felony and possession of a

      syringe2 as a Level 6 felony. On appeal, he raises the following restated issue:

      Whether the trial court abused its discretion by admitting into evidence items

      seized during the warrantless search of a locked safe found in Washburn’s car,

      when he alleges that search violated his rights under Article 1, Section 11 of the

      Indiana Constitution.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On or about September 20, 2017,3 Officer Tom O’Neil (“Officer O’Neil”) of the

      Jeffersonville Police Department was “involved in a narcotics investigation”

      that targeted Washburn. Tr. Vol. 1 at 12. Around 2:45 p.m., Officer O’Neil,

      who had participated in hundreds of narcotics investigations, was on patrol in

      Clark County, Indiana, when he saw Washburn’s “vehicle travel left of center

      and utilize the middle of the roadway for approximately two blocks.” Id. at

      168; Appellant’s App. Vol. 2 at 16, 20. After pulling over Washburn’s vehicle,

      Officer O’Neil exited his patrol car, approached Washburn, and requested




      1
          See Ind. Code § 35-48-4-6.1.
      2
          See Ind. Code § 16-42-19-18. .
      3
        While the State maintains that Washburn was stopped on September 27, 2017, the charging information
      sets forth the date as September 20, 2017. Appellant’s App. Vol. 2 at 14-17.

      Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019                           Page 2 of 14
      identification from Washburn and his passenger.4 Tr. Vol. 1 at 13. Officer

      O’Neil noted that Washburn “was nervous,” and “his whole posture was not

      consistent with the innocent motoring public.” Id. Washburn was “shaking to

      the point where he couldn’t even get his driver’s license out without issues. Um

      he wouldn’t make eye contact with me . . . breathing heavy . . . he kept reaching

      towards the backseat.” Id. at 171-72. Once he received Washburn’s

      identification, Officer O’Neil ran a routine warrant check. Id. at 13.


[4]   Officer O’Neil asked for backup and requested that a K-9 unit assist at the

      scene. The results of the warrant check revealed that an active warrant had

      been issued in Kentucky for Washburn’s arrest on an escape charge. Officer

      O’Neil placed Washburn under arrest, and because Washburn’s car was

      blocking traffic, Officer O’Neil summoned a wrecker to tow the vehicle.

      Around that same time, Sergeant Dan Lawhorn (“Sergeant Lawhorn”), the

      supervisor of the Jeffersonville Police Department’s Narcotics Unit, arrived as

      backup.


[5]   Clarksville Police Department Sergeant Tony Lehman (“Sergeant Lehman”),

      an officer who routinely used his trained K-9 to assist in narcotics

      investigations, arrived at the scene about four to six minutes after being called.

      Officer O’Neil informed Sergeant Lehman about the “criminal indicators,” and




      4
       A male passenger was in Washburn’s car when the car was stopped. Officer O’Neil testified that he
      obtained the passenger’s information and “made sure he was clear.” Tr. Vol. 1 at 182. The passenger
      “consented to . . . a check of his person. He didn’t have any [sic] illegal, no reason to detain him or arrest
      him. So he was released from the scene on foot.” Id.

      Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019                                    Page 3 of 14
      Officer O’Neil returned to speak with Washburn while Sergeant Lehman

      walked his K-9 around Washburn’s vehicle. Id. at 171. Soon thereafter, the K-

      9 jumped into Washburn’s car through an open window and indicated that

      narcotics were present in a backpack located in the back seat. Sergeant

      Lawhorn removed the backpack and found a small locked safe inside. Id. at

      172. Sergeant Lawhorn moved the safe away from the backpack, and the K-9

      sniffed the two items separately. This time, the K-9 did not alert on the

      backpack; instead, “it hit on the safe, it gave a positive alert for the odor of

      narcotics.” Id.


[6]   Upon seeing the safe, Washburn “became confrontational telling, [the officers

      they] couldn’t search it, [they] weren’t allowed to search it.” Id. at 15.

      Washburn refused to give the officers “the code or key to it.” Id. Nevertheless,

      the officers forced the safe “open with a pry bar at which time [Officer O’Neil]

      located . . . suspected methamphetamine and a firearm that was listed . . . as

      stolen.” Id. The officers also found a digital scale inside the safe. The drug-like

      substance found in the safe tested positive for methamphetamine. Officer

      O’Neil transported Washburn to jail.


[7]   The State charged Washburn with a six-count information: Count I, dealing in

      less than one gram of methamphetamine as a Level 4 felony; Count II,

      possession of less than five grams of methamphetamine as a Level 5 felony;

      Count III, unlawful possession of a syringe as a Level 6 felony; Count IV,

      possession of paraphernalia as a Class C misdemeanor; Count V, maintaining a

      common nuisance as a Level 6 felony; and Count VI, unlawful possession of a

      Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019            Page 4 of 14
      syringe enhanced by a prior conviction, a Level 5 felony. Appellant’s App. Vol. 2

      at 174. Prior to trial, Washburn filed a motion to suppress, alleging that

      evidence found by the police during the traffic stop was seized in violation of

      the Fourth Amendment to the United States Constitution and Article 1, Section

      11 of the Indiana Constitution. Following a hearing, held one day prior to the

      jury trial, the trial court denied Washburn’s motion on both state and federal

      constitutional grounds, concluding that the search was performed pursuant to

      the vehicle exception to the warrant requirement and that exception extended to

      the locked safe found inside the vehicle. Tr. Vol. 1 at 37. That same day,

      Washburn filed a “Motion in Limine Regarding Other Crimes, Wrongs, or

      Acts.” Appellant’s App. Vol. 2 at 70. During a hearing held just prior to the start

      of trial, the trial court granted the motion in limine and ordered that the State

      could not make any reference to the fact that Washburn was arrested on an

      outstanding warrant or that the handgun found in Washburn’s possession was

      stolen.


[8]   A jury trial was held on June 5 and June 6, 2018, and among the exhibits

      offered by the State were the following: Exhibit 2, the firearm; Exhibit 3, the

      digital scale; Exhibit 4, a large clear plastic bag, which had held Exhibits 5 and

      6; Exhibit 5, two small green plastic baggies that, together, contained less than

      one gram of methamphetamine; Exhibit 6, multiple empty green plastic

      baggies, similar to those in Exhibit 5, some of which contained trace amounts

      of methamphetamine; and Exhibit 7, a syringe. Tr. Vol. 1 at 176-77. Those

      exhibits were admitted over Washburn’s continuing objections. At the close of


      Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019         Page 5 of 14
      evidence, only three counts of the charging information were submitted to the

      jury.5 Id. at 231-37. Of those charges, the jury could not reach a verdict on

      Count I, the Level 4 dealing charge, but found Washburn guilty on Counts II

      and III, the Level 5 felony possession of methamphetamine charge and the

      Level 6 felony possession of a syringe charge, respectively. Appellant’s App. Vol.

      2 at 134-36. The trial court sentenced Washburn to concurrent, fully-executed

      terms of three years (Count II, possession of methamphetamine) and one year

      (Count III, possession of a syringe). Washburn now appeals his convictions.


                                       Discussion and Decision
[9]   Washburn is appealing after a completed trial; therefore, the issue is whether

      the trial court abused its discretion in admitting the challenged evidence. Clark

      v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). “Because the trial court is best able

      to weigh the evidence and assess witness credibility,” this Court will “only

      reverse ‘if a ruling is clearly against the logic and effect of the facts and

      circumstances and the error affects a party’s substantial rights.’” Hall v. State, 36

      N.E.3d 459, 466 (Ind. 2015) (quoting Carpenter v. State, 18 N.E.3d 998, 1001

      (Ind. 2014)); see also Conn v. State, 89 N.E.3d 1093, 1097 (Ind. Ct. App. 2017)

      (“When reviewing a trial court’s ruling on the admissibility of evidence

      resulting from an allegedly illegal search, we do not reweigh the evidence, and




      5
        Count VI, the Level 5 felony possession of a syringe enhancement, was dismissed on the State’s oral
      motion. Tr. Vol. 1 at 215-16; 241. It appears from the record that the remaining charges were dismissed prior
      to trial. Id. at 247-48.

      Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019                                Page 6 of 14
       we consider conflicting evidence most favorable to the trial court’s ruling”),

       trans. denied. The trial court’s resolution of questions of law is reviewed de

       novo. Pinner v. State, 74 N.E.3d 226, 229 (Ind. 2017). The trial court’s ruling

       will be sustained on any reasonable basis apparent in the record, whether or not

       relied on by the parties or the trial court. Jeter v. State, 888 N.E.2d 1257, 1267

       (Ind. 2008), cert. denied, 555 U.S. 1055 (2008).


[10]   Washburn contends that Exhibits 2 through 7 were improperly admitted over

       his continuing objection because that evidence was seized from the locked safe

       in violation of Article 1, Section 11 of the Indiana Constitution.6 Washburn

       does not question the officers’ use of a K-9 on the vehicle’s exterior, their

       removal and emptying of the backpack, or the use of the K-9 to detect the odor

       of illegal drugs inside the safe. Tr. Vol. 1 at 33-35. Washburn challenges only

       the use of a pry bar to open the locked safe found inside the backpack after the

       K-9 had isolated it as the source of the odor of illegal drugs. Appellant’s Br. at 9-

       14.


[11]   Article 1, Section 11 of the Indiana Constitution provides:


                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable search or seizure, shall
                not be violated; and no warrant shall issue, but upon probable



       6
         In his motion to suppress, and objection at trial to the admission of Exhibits 2, 3, 4, 5, 6, and 7, Washburn
       claimed that the police search violated his rights under both Article 1, Section 11 of the Indiana Constitution
       and the Fourth Amendment to the United States Constitution. While the trial court found that the police
       search did not violate either the Indiana Constitution or the United States Constitutions, on appeal
       Washburn challenges the trial court’s determination only as to the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019                                  Page 7 of 14
                 cause, supported by oath or affirmation, and particularly
                 describing the place to be searched, and the person or thing to be
                 seized.


       “Although its text mirrors the Fourth Amendment to the United States

       Constitution, we interpret Article 1, Section 11 of our Indiana Constitution

       separately and independently.” State v. Crager, 113 N.E.3d 657, 664 (Ind. Ct.

       App. 2018) (citing Robinson v. State, 5 N.E.3d 362, 368 (Ind. 2014)), trans.

       denied.


[12]   In Litchfield v. State, our Supreme Court explained the groundwork required to

       object under Article 1, Section 11. 824 N.E.2d 356 (Ind. 2005). The Supreme

       Court “explicitly rejected” the Fourth Amendment’s “expectation of privacy as

       a test of the reasonableness of a search or seizure,” emphasizing, “The legality

       of a governmental search under [Section 11 of] the Indiana Constitution turns

       on an evaluation of the reasonableness of the police conduct under the totality of

       the circumstances.” Id. at 359 (emphasis added). Our Supreme Court opined

       “that the totality of the circumstances requires consideration of both the degree

       of intrusion into the subject’s ordinary activities and the basis upon which the

       officer selected the subject of the search or seizure.” Id. at 360. “One factor

       that may render a search unreasonable is an arbitrary selection of the subject.”

       Id.


[13]   The Litchfield Court laid out a three-factor test for evaluating whether, under the

       totality of the specific circumstances of a case, police conduct was objectively

       reasonable. Id. at 361. The reasonableness of a search or seizure was deemed

       Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019              Page 8 of 14
       to turn 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.” Id. None of these factors is dispositive; they must be

       considered together, considering the facts of a search, in order to arrive at a

       conclusion about the reasonableness of police conduct. Id.


[14]   Washburn contends that the State proved no exigency or law enforcement need

       requiring the safe to be searched before a warrant could be obtained. Appellant’s

       Br. at 10. During the suppression hearing, the trial court, even as it found that

       the search of the safe was reasonable, agreed that a “warrant would have been

       the preferred method of getting access to the locked container.” Tr. Vol. 1 at 35.

       Those factors, however, do not impact our analysis. Our Supreme Court has

       made clear that an inquiry under Article 1, Section 11 applies to any search,

       regardless of whether a warrant was issued. Watkins v. State, 85 N.E.3d 597,

       600 (Ind. 2017) (holding that “a search warrant’s execution is axiomatically a

       ‘search,’ so it triggers Section 11’s protection”). Thus, the inquiry here is not

       whether officers faced “exigency” hindering them from obtaining a warrant for

       the safe, but whether on the totality of the facts their decision to use the pry bar

       was reasonable under Litchfield’s three factors. Id.


[15]   “In determining reasonableness under Section 11, we recognize that Indiana

       citizens are concerned not only with personal privacy but also with safety,

       security, and protection from crime.” Saffold v. State, 938 N.E.2d 837, 840 (Ind.

       Ct. App. 2010), trans. denied. Accordingly, when government intrusion is

       Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019          Page 9 of 14
       challenged under Section 11, reasonableness under the totality of circumstances

       also includes considerations of protecting citizens from crime.


[16]   Addressing Litchfield’s first factor, Washburn, citing to Eaton v. State, 889

       N.E.2d 297, 299 (Ind. 2008), contends that the degree of concern, suspicion, or

       knowledge that the police would “find contraband inside the safe” rose only to

       the level of a “fair probability.” 7 Appellant’s Br. at 11. Washburn understates

       the officers’ level of concern, suspicion, and knowledge that contraband would

       be found in the safe. Here, Officer O’Neil, who had participated in hundreds of

       narcotics investigations, was “involved in a narcotics investigation” that

       targeted Washburn. Tr. Vol. 1 at 12. Officer O’Neil observed Washburn

       commit a traffic infraction and pulled over his vehicle. Appellant’s App. Vol. 2 at

       16, 20. Washburn “was overly nervous,” and “his whole posture was not

       consistent with the innocent motoring public.” Tr. Vol. 1 at 13, 171. Washburn

       was “shaking to the point where he couldn’t even get his driver’s license out

       without issues,” and “he wouldn’t make eye contact” with Officer O’Neil. Id.




       7
         In his brief, Washburn states, “Probable cause means that there is a ‘fair probability’ that contraband will be
       found in a place. Appellant’s Br. at 11 (citing Eaton v. State, 889 N.E.2d 297, 299 (Ind. 2008)) (emphasis
       added). From this, Washburn concludes, “Thus, police had knowledge that there was a ‘fair probability’ that
       there was contraband in the safe.” Id. Washburn, however, misrepresents our Supreme Court’s analysis in
       Eaton. There, our Supreme Court said, “Probable cause exists when ‘there is a fair probability that
       contraband or evidence of a crime will be found in a particular place.’” Eaton, 889 N.E.2d at 299 (quoting
       U.S. v. Grubbs, 547 U.S. 90, 95 (2006)) (emphasis added). The Court continued, “Significantly, probable
       cause requires only a probability or substantial chance of criminal activity, not an actual showing of such
       activity.” Id. (internal quotation marks omitted). Our Supreme Court did not, as Washburn suggests, define
       probable cause as meaning a “fair probability”; instead, our Supreme Court concluded that even a “fair
       probability” of criminal activity may be sufficient to establish probable cause. Id.

       Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019                                  Page 10 of 14
       at 171-72. Washburn was breathing heavily, and “he kept reaching towards the

       backseat.” Id. at 172.


[17]   Officer O’Neil ran a routine warrant check of Washburn, and while awaiting

       the results, he heard over the police radio about “recent information of

       [Washburn] trafficking narcotics.” Id. at 14. Thus, Officer O’Neil requested

       backup as well as assistance from a K-9 unit. The warrant check revealed that

       an active warrant for Washburn’s arrest had been issued in Kentucky on a

       charge of escape. Officer O’Neil placed Washburn under arrest and summoned

       a wrecker to tow the vehicle. Sergeant Lehman arrived at the scene, and while

       walking his K-9 around Washburn’s vehicle, the dog alerted to a backpack in

       the back seat. Sergeant Lawhorn, who had arrived as backup, removed the

       backpack from the car and found a locked safe inside. When the K-9 sniffed the

       two items separately, the K-9 no longer alerted to the backpack; instead, it gave

       a positive alert for the odor of narcotics in the safe. Id. at 172. It is beyond

       question that the officers’ degree of concern, suspicion, or knowledge that drugs

       were inside the safe was extremely high and added to the reasonableness of the

       officers’ opening of the safe. Litchfield, 824 N.E.2d at 360-61.


[18]   Turning to the second Litchfield factor, Washburn contends that the degree of

       intrusion was high because officers used force to open the safe. Appellant’s Br. at

       12-13. Washburn cites the following cases, where Indiana courts found the

       degree of intrusion to be unreasonable under the Indiana Constitution.

       Washburn argues that opening the locked safe was akin to leaping over a fence

       and entering a private home, Carpenter, 18 N.E.3d at 1002; removing a padlock

       Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019          Page 11 of 14
           and lowering an entrance barrier in a driveway with no trespassing sign, Mundy

           v. State, 21 N.E.3d 114, 119-20 (Ind. Ct. App. 2014); unannounced entry into a

           closed and occupied pole barn, Trotter v. State, 933 N.E.2d 572, 581 (Ind. Ct.

           App. 2010) (dicta), abrogated on other grounds, Wright v. State, 108 N.E.3d 307,

           317 (Ind. 2018); and jumping over a locked gate barring entry into a private

           club, Conn, 89 N.E.3d at 1096. Appellant’s Br. at 12.


[19]       Washburn’s analysis, however, overlooks the fact that Litchfield’s second factor

           does not focus on entry onto real property but on “the degree of intrusion into

           the subject’s ordinary activities” and the “basis upon which the officer selected

           the subject of the search or seizure.” Litchfield, 824 N.E.2d at 360. Here,

           Washburn was the subject of a narcotics investigation, he was in a car and not a

           home, a K-9 officer arrived at the scene less than six minutes after Washburn

           was stopped, and the K-9 alerted to drugs in the safe only after Washburn had

           already been arrested on an outstanding Kentucky warrant. Tr. Vol. 1 at 14.

           The degree of intrusion into Washburn’s ordinary activities, if any, was very

           low.8 See Garcia v. State, 47 N.E.3d 1196, 1201 (Ind. 2016) (“The brief delay

           needed to conduct a pat-down search prior to Garcia being taken into custody




       8
        In support of his claim that there was a high degree of intrusion, Washburn emphasizes his “intent to keep
       people out” by locking the box. Appellant’s Br. at 12. Concerns for privacy interests are integral in an analysis
       under the Fourth Amendment; however, they do not control a fact-specific inquiry into overall reasonableness
       under Article 1, Section 11. See Litchfield, 824 N.E.2d at 359 (“Indiana has explicitly rejected the expectation of
       privacy as a test of the reasonableness of a search or seizure.”).

           Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019                                  Page 12 of 14
       would have had little to no additional impact on Garcia’s ordinary activities,

       given that he was already being placed under arrest”).


[20]   Regarding the third Litchfield element, during the suppression hearing, the State,

       addressing the trial court’s inquiry as to whether a search warrant was

       necessary, argued that in light of the “ready mobileness of a vehicle,” and

       Washburn’s arrest, there was a heightened need to immediately open the safe.

       Tr. Vol. 1 at 34. The State cited to Washburn’s passenger who “conceivably

       could have tampered” with the safe. Id.


[21]   Washburn argues that the State did not introduce any evidence to suggest that

       the safe or its contents were not secure or were in any danger of spoiling while a

       warrant was obtained. Appellant’s Br. at 13. Furthermore, there appeared to be

       no shortage of time to obtain a warrant. Id. Our Supreme Court has said,

       “When armed with probable cause, law enforcement officers are faced with a

       continuum of ostensibly reasonable activity, from doing nothing to search and

       seizure. Seeking a warrant is a means for them to reduce the risk that their

       proposed intrusive activity will fall outside that continuum, and that evidence

       will have to be suppressed in court.” Brown v. State, 653 N.E.2d 77, 80 (Ind.

       1995). Here, Washburn was under arrest, his passenger had been released at

       the scene, and his car was being towed. While we agree that the law

       enforcement needs were relatively low, balanced against the concern that drugs

       would be found in the safe and the minimal intrusion on Washburn’s ordinary

       activities, the weight favors a determination that the search was reasonable.

       Accordingly, we conclude that the search and seizure of evidence from the safe

       Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019         Page 13 of 14
       was permissible under Article 1, Section 11 of the Indiana Constitution. 9

       Randall v. State, 101 N.E.3d 831, 842 (Ind. Ct. App. 2018) (finding a seizure

       reasonable under the Indiana Constitution notwithstanding law enforcement

       needs being relatively low), trans. denied.


[22]   Affirmed.


       Riley, J., and Robb, J., concur.




       9
         Our court has reached a different conclusion when the search is a routine inventory search. See Brown v.
       State, 2019 WL 190527, at *4 (Ind. Ct. App. Jan. 15, 2019) (under Article 1, section 11, an inventory search
       does not allow law enforcement to open locked containers inside a vehicle “because an inventory search is an
       exception to the requirement for a search warrant, and the exception was created to protect private property,
       protect police from claims of missing property, and protect police from danger”); State v. Lucas, 859 N.E.2d
       1244, 1251 (Ind. Ct. App. 2007) (opening a locked metal box inside a vehicle, pursuant to an inventory
       search, was unreasonable under Article 1, Section 11), trans. denied. “The inventory search is the antithesis of
       a search under the automobile exception . . .; the inventory search is a mere listing of personal property,
       while other automobile searches are deliberate searches for evidence. Charles E. Moylan, Jr., The Inventory
       Search of an Automobile: A Willing Suspension of Disbelief, 5 U. BALT. L. REV. 203, 207 (1976). In other words,
       “unlike the automobile exceptions which are investigatory in nature and require probable cause, custodial
       searches are administrative in nature,” and do not require probable cause. Id. Therefore, the “warrant
       requirement is inapplicable” to an inventory search and the “reasonableness of the search is based on other
       criteria.” Id.

       Court of Appeals of Indiana | Opinion 18A-CR-2073 | April 8, 2019                                 Page 14 of 14
