MEMORANDUM DECISION                                                             FILED
                                                                           Nov 14 2017, 9:08 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                     Curtis T. Hill, Jr.
Elkhart, Indiana                                        Attorney General of Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Melvin Levy,                                            November 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A04-1705-CR-1206
        v.                                              Appeal from the Elkhart Superior
                                                        Court
State of Indiana,                                       The Honorable Stephen R.
Appellee-Plaintiff.                                     Bowers, Judge
                                                        Trial Court Cause No.
                                                        20D02-1508-F4-46



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017            Page 1 of 13
                                          Case Summary
[1]   Melvin Levy appeals his convictions for unlawful possession of a firearm by a

      serious violent felon and possession of marijuana. He argues that the search

      that led to the discovery of the gun and the marijuana violated the Fourth

      Amendment to the U.S. Constitution. We agree and reverse Levy’s

      convictions.



                            Facts and Procedural History
[2]   On the afternoon of August 21, 2015, Corporal Brandon Roundtree and

      Corporal Jason Gruber of the Elkhart Police Department were together in a

      squad car in Elkhart, “watching cars” at an intersection. Tr. p. 11. They saw

      an SUV with darkly tinted windows and, “being proactive,” decided to follow

      it. Id. at 12. The driver of the SUV, later identified as Levy, pulled up to a stop

      sign, activated his right-turn signal, and turned right. Corporal Roundtree

      immediately initiated a traffic stop because Levy did not signal for at least 200

      feet before the turn (as required by Indiana Code section 9-21-8-25). A video of

      the stop shows that Levy parked the SUV in front of some buildings on Indiana

      Avenue, in a parking lane separated from the driving lane by a solid white line.


[3]   When the officers approached Levy, he informed them that he did not have

      insurance. The officers decided to have the SUV impounded. While waiting

      for a tow truck, Corporal Roundtree searched the SUV, and he found a revolver

      under the driver’s seat. Because Levy did not have a license to carry a


      Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017   Page 2 of 13
      handgun, and none of the exceptions to the license requirement applied, see Ind.

      Code § 35-47-2-1, the officers placed him under arrest. Corporal Gruber then

      searched Levy and found two bags of marijuana.


[4]   After the arrest, the State determined that Levy had been convicted of dealing

      in cocaine in 2008 and charged him with unlawful possession of a firearm by a

      serious violent felon (dealing in cocaine being a “serious violent felony” under

      the controlling statute, see Ind. Code § 35-47-4-5), as well as possession of

      marijuana (elevated from a Class B misdemeanor to a Class A misdemeanor

      based on the same cocaine-dealing conviction). Levy filed a motion to suppress

      the gun and the marijuana, claiming that the searches of him and his SUV were

      done “without a warrant, consent by the Defendant or probable cause that a

      crime had been committed that would have justified a warrantless search of the

      person and property of the Defendant” and that the searches therefore violated

      the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.

      Appellant’s App. Vol. II pp. 66-67.


[5]   In its written response to Levy’s motion, the State asserted that no warrant was

      required for the search of the SUV because it was merely an “inventory

      search”—a term used to describe the process of documenting the contents of an

      automobile that has been or is going to be impounded. The State cited Wilford

      v. State, in which our Supreme Court explained that such warrantless searches

      are permissible as long as both the impoundment and the inventory are

      reasonable. 50 N.E.3d 371 (Ind. 2016). The State argued that the decision to

      impound Levy’s SUV was “lawful” because he did not have insurance and that

      Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017   Page 3 of 13
      the subsequent search was proper because “the Elkhart Police Department has a

      valid inventory policy, and the Officers followed their Department’s inventory

      polic[y][.]” Appellant’s App. Vol. II p. 54. The State also argued that Levy

      was lawfully arrested for carrying the gun without a license and that the

      marijuana was discovered as the result of a proper search incident to that arrest.


[6]   A bench trial and a hearing on Levy’s motion were scheduled to be held on the

      same morning, with the motion “to be heard prior to the Bench Trial.” Id. at

      63. By the scheduled day, however, the parties had agreed that the trial

      evidence would largely duplicate the evidence relevant to Levy’s motion and

      that therefore all the evidence should be heard at one time. They also agreed

      that the outcome of the trial would turn on the court’s ruling on the motion to

      suppress—if denied, Levy would be found guilty; if granted, Levy would be

      found not guilty.


[7]   The State’s first witness was Corporal Roundtree. When asked about the

      decision to impound the SUV, he initially testified, consistently with the State’s

      written response to Levy’s motion, that it was based on the fact that Levy “did

      not have insurance.” Tr. p. 24. In a subsequent exchange with the prosecutor,

      however, Corporal Roundtree addressed the location and manner in which the

      SUV was parked:


              Q:      So just to be clear uhm, a vehicle that does not have
                      insurance, can that be driven on an Indiana roadway?


              A:      No.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017   Page 4 of 13
              Q:      So in this case why did you decide to impound the vehicle?


              Q:      The vehicle was on – the vehicle was parked on a public
                      roadway. Even though it was in front of the One Stop
                      Shop uhm, you have to have permission from the owners
                      to keep that vehicle parked. Given the fact that it was on
                      roadway [sic] and the parking spot was short, we had no
                      other choice but to tow the vehicle.


      Id. at 35. Corporal Roundtree also testified that he is “trained on the EPD’s

      policies and procedures for impounded a vehicle [sic]” and that when he

      impounds a vehicle he does so “pursuant to an EPD policy[.]” Id. at 24.

      Neither Corporal Roundtree nor Corporal Gruber provided any additional

      testimony about an Elkhart Police Department policy on the impoundment of

      vehicles.


[8]   A month later, the trial court issued an order agreeing with the State that the

      warrantless search of Levy’s SUV was a valid inventory search. The court

      concluded that the decision to impound was proper, though not on the grounds

      stated by Corporal Roundtree (lack of insurance and inconvenience to nearby

      businesses). Instead, the court found that Levy parked his SUV “at a distance

      from the curb that created a potential hazard.” Appellant’s App. Vol. II p. 47.

      The court also concluded that the subsequent search of the SUV was

      reasonable. Accordingly, the court denied Levy’s motion to suppress and found

      him guilty as charged.


[9]   Levy now appeals.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017   Page 5 of 13
                                    Discussion and Decision
[10]   Levy contends that the search of his SUV was not a valid inventory search

       under the Fourth Amendment and that the trial court therefore erred by

       admitting the gun and the marijuana into evidence.1 Because the facts relevant

       to this issue are undisputed, we review the matter de novo. Kelly v. State, 997

       N.E.2d 1045, 1050 (Ind. 2013) (“The constitutionality of a search or seizure is a

       question of law, and we review it de novo.”).


[11]   Before considering Levy’s argument, we need to address the State’s claim that

       he waived the argument by failing to object when the State moved to introduce

       the gun and the marijuana into evidence. In making this claim, the State

       actually relies in part on Levy’s appellate attorney, who noted in her brief that

       “counsel for the Defendant did not object to any of the evidence submitted by

       the State, as required to do in order to properly preserve a suppression issue for

       appeal.” Appellant’s Br. p. 7 n.1. In fact, Levy’s appellate attorney goes so far

       as to suggest that Levy may have an ineffective-assistance-of-counsel claim

       against his trial attorney. See id. at 10 n.2.


[12]   We are troubled by this mutual mischaracterization of the record. In the trial

       court, it was abundantly clear to all involved—judge, prosecutor, defense




       1
         Levy also argues that using his 2008 cocaine-dealing conviction as the basis for the unlawful possession of a
       firearm by a serious violent felon conviction and as the basis for elevating the marijuana charge from a Class
       B misdemeanor to a Class A misdemeanor constitutes an impermissible “double enhancement.” Because we
       reverse his convictions on Fourth Amendment grounds, we need not reach that issue.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017          Page 6 of 13
       counsel—that Levy objected to the admission of the gun and the marijuana. In

       fact, Levy’s challenge to the impoundment and subsequent search was his only

       defense. This is why the parties agreed to a bench trial and then agreed that the

       trial should be held in conjunction with the suppression hearing. See Tr. p. 4

       (judge noting parties’ agreement that he “would hear all the evidence at one

       time and make a decision with respect to the Motion to Suppress Evidence”).

       Levy’s attorney confirmed the reason for the combined trial/hearing in the first

       line of his opening statement, when he said, “[W]hy we are here contesting this

       case – is not so much contesting elements of the underlying crime, but the

       actual stop and the search of the vehicle.” Id. at 6. In this sense, the entire

       proceeding served as one long objection by Levy. Because that was the shared

       understanding of the participants, there was no need for Levy to voice

       additional objections when the gun and the marijuana were introduced. We

       therefore turn to the merits of Levy’s argument.


[13]   The outcome of this appeal is controlled by our Supreme Court’s decision in

       Wilford, the impoundment case the State mentioned in its response to Levy’s

       motion to suppress. The Wilford Court began its analysis by alluding to three

       basic principles: (1) the Fourth Amendment prohibits “unreasonable” searches

       of private property, (2) a search, to be considered reasonable, generally must be

       authorized by a valid warrant, and (3) a warrantless search is reasonable only if

       it falls within a recognized exception to the warrant requirement. 50 N.E.3d at

       374. When the State seeks to rely on evidence obtained during a warrantless

       search, and the defendant objects, the State bears the burden of proving the


       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017   Page 7 of 13
       applicability of an exception. Id. One such exception, the Court explained, is

       the inventory search, “since it serves an administrative, not investigatory,

       purpose—because when police lawfully impound a vehicle, they must also

       perform an administrative inventory search to document the vehicle’s contents

       to preserve them for the owner and protect themselves against claims of lost or

       stolen property.” Id. As we noted earlier, for this exception to apply, the State

       must show that both the decision to impound and the search itself were

       reasonable. Id.


[14]   Here, Levy does not dispute the reasonableness of the search itself; he

       challenges only the initial decision to impound his SUV.2 In Wilford, the Court

       explained that law enforcement officers enjoy some measure of discretion in

       deciding whether to have a vehicle impounded “in order to protect the car and

       community from hazards” (as part of the so-called “community-caretaking

       function”) but that such decisions “are vulnerable to constitutional

       reasonableness challenges because of their potential for misuse as pretext for

       warrantless investigative searches under the guise of inventory.” Id. at 375.

       Given the potential for pretext, the State must satisfy the “strict two-prong

       standard” set forth in Fair v. State, 627 N.E.2d 427 (Ind. 1993), specifically, that

       (1) the impounding officer believed, consistent with objective standards of

       sound policing, that the vehicle posed a threat of harm to the community or



       2
        For this reason, the State’s reliance on Weathers v. State, 61 N.E.3d 279 (Ind. Ct. App. 2016), is misplaced.
       In that case, the defendant challenged the search but not the decision to impound. See id. at 285 (“Weathers
       does not . . . contest Deputy Andre’s decision to impound the vehicle.”).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017           Page 8 of 13
       was itself imperiled and (2) the officer’s decision to impound “adhered to

       established departmental routine or regulation.” Wilford, 50 N.E.3d at 375-76.

       If the State fails to satisfy either element, the impoundment and inventory

       search will be declared unreasonable, and any contraband found during the

       search is inadmissible “poisoned fruit.” Id. at 375.


[15]   Applying this standard to the facts before it, the Wilford Court skipped over the

       threat-of-harm prong of Fair and went straight to the impoundment-policy

       prong. When the officer in Wilford was asked why he decided to have a car

       impounded, he testified that it was damaged, that the driver was being arrested

       for driving with a suspended license, and that the driver was not the owner of

       the car. He then added, “[W]ith our procedures in that situation, we towed the

       vehicle.” Id. at 377. The State did not present any further evidence of the

       police department’s alleged impoundment policy. The Court held that while

       officer testimony regarding an impoundment policy can suffice when there is no

       evidence of a written policy, such testimony is adequate only if it “outlines the

       department’s standard impound procedure and specifically describes how the

       decision to impound adhered to departmental policy or procedure[.]” Id. at

       376-77. The Court concluded that an officer’s passing reference to “our

       procedures in that situation” does not satisfy that standard. The Court

       explained:


               On this record, we know literally nothing about the substance of
               the “procedures” the officer referenced, let alone how his actions
               adhered to those procedures. Without these “particulars,” then,
               we cannot evaluate whether this impoundment was a reasonable

       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017   Page 9 of 13
                exercise of the community-caretaking function and not merely
                pretext for an inventory search. In sum, absent more detail, [the
                officer’s] testimony provided inadequate evidence of established
                departmental routine or regulation, making impoundment
                unreasonable under Fair’s second prong and rendering the
                handgun found during the subsequent inventory search
                inadmissible “poisoned fruit.”


       Id. at 377-78.


[16]   Here, the trial court found that Levy’s SUV was parked “at a distance from the

       curb that created a potential hazard” and that impoundment was therefore

       proper. Notably, however, neither officer testified that the SUV was parked too

       far from the curb, and the video of the stop casts significant doubt on the trial

       court’s conclusion. In any event, even if we were to hold that the trial court got

       it right on Fair’s threat-of-harm prong, the court made no mention of the

       impoundment-policy prong, and the State’s evidence on that issue is woefully

       inadequate. The State did not present any evidence of a written policy.3

       Moreover, Corporal Roundtree testified only that he is “trained on the EPD’s

       policies and procedures for impounded a vehicle [sic]” and that he impounds

       vehicles “pursuant to an EPD policy[.]” Tr. p. 24. We see little difference

       between this testimony and the testimony found insufficient in Wilford.




       3
        The State introduced a copy of the Elkhart Police Department’s policy on the “Inventory of Impounded
       Vehicles,” see Ex. 4 p. 10, but that policy simply says that “lawfully impounded” vehicles must be inventoried
       and describes how inventories are to be conducted. The policy does not provide any guidance as to when
       impoundment is “lawful,” and the State makes no argument that it constitutes an “impoundment policy” for
       purposes of Fair and Wilford.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 10 of 13
       Corporal Roundtree neither outlined a standard impound procedure for his

       department nor specifically described how his decision to impound Levy’s SUV

       adhered to any such procedure.


[17]   In an attempt to explain the lack of evidence of an impoundment policy, the

       State notes that Levy did not specifically “raise an objection to the officer[s’]

       decision to impound the vehicle before or during the officer[s’] testimony.”

       Appellee’s Br. p. 9. The State asserts, “If Levy had raised an objection to the

       officer’s decision to impound, while the officer was testifying, it is possible that

       additional evidence could have been offered concerning the Elkhart Police

       Department policy the officer referred to regarding the decision to impound a

       vehicle[.]” Id. at n.1. We see two problems with the State’s position.


[18]   First, as with any exception to the warrant requirement, the burden was on the

       State to prove the applicability of the inventory-search exception. See Wilford,

       50 N.E.3d at 374. That includes the burden of showing that the decision to

       impound was reasonable. Id. The State took on this burden the moment it

       decided to rely on the inventory-search exception; no objection by Levy,

       beyond his motion to suppress, was necessary.

[19]   Second, the suggestion that the State did not think the reasonableness of the

       impoundment was at issue is belied by the record. The prosecutor spent the

       bulk of his closing argument trying to convince the judge that the decision to

       impound Levy’s SUV was reasonable. He spoke at length about Wilford, which

       deals solely with the reasonableness of impoundments. When the judge pressed


       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 11 of 13
       the prosecutor about the decision to impound the SUV—“Is there any evidence

       that this was anything other than a public street where anyone could park for

       whatever length of time they wanted?” Tr. p. 82—the prosecutor did not argue

       that Levy had waived any objection to the reasonableness of the impoundment,

       nor did the prosecutor ask the court for an opportunity to present additional

       evidence about an impoundment policy. Likewise, the prosecutor did not

       object when Levy’s attorney attacked the reasonableness of the impoundment

       during his closing argument. The prosecutor clearly believed that Levy was

       challenging the decision to impound, and he therefore had every incentive to

       present evidence about the purported impoundment policy.4


[20]   Levy’s failure to specifically object to the reasonableness of the impoundment

       did not relieve the State of its burden on that issue. And given the lack of

       evidence that the decision to impound adhered to established department

       routine or regulation, the subsequent inventory search was necessarily

       unreasonable under the Fourth Amendment.5 Therefore, the gun and the




       4
        The State also notes the following passage from the opening statement of Levy’s attorney: “What happens
       after the stop? Mr. Levy is very honest, he says, look I don’t have any insurance on this vehicle. We
       understand at that point the car uh, the car could have been impounded.” Tr. p. 7. While the State would
       have been justified in treating this language as a concession that the impoundment was reasonable, there is
       no indication that it actually did so. If the State truly believed that Levy had conceded the issue, surely it
       would have begun its closing argument by saying so. Instead, as just described, the State (and the judge)
       proceeded as if the reasonableness of the impoundment was still very much in dispute.
       5
        Levy argues that the search was also unreasonable under Article 1, Section 11 of the Indiana Constitution.
       We agree. See Wilford, 50 N.E.3d at 378 (“Our conclusion that this impoundment was unreasonable applies
       under the Indiana Constitution as well.”).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 12 of 13
       marijuana are inadmissible, and we must reverse Levy’s convictions.6 We

       remand this matter to the trial court, where, presumably, the State will dismiss

       the charges against Levy. See Tr. p. 97 (trial court explaining that “I think we’re

       all in agreement that if the Court grants the Motion to Suppress evidence the

       case is over.”).


[21]   Reversed and remanded.


       Mathias, J., and Crone, J., concur.




       6
        While the marijuana was not found during the search of the SUV, but rather during a search incident to
       arrest, that arrest was the direct result of the search of the SUV. As such, the marijuana is no more
       admissible than the gun. The State does not argue otherwise.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-CR-1206 | November 14, 2017 Page 13 of 13
