ATTORNEYS FOR APPELLANT                              ATTORNEYS FOR APPELLEE
Ruth Johnson                                         Gregory F. Zoeller
Suzy St. John                                        Attorney General of Indiana
Marion County Public Defender Agency
Indianapolis, Indiana                      Ellen H. Meilaender
                                           James B. Martin
                                           Deputy Attorneys General
                                           Indianapolis, Indiana
__________________________________________________________________________________

                                            In the
                        Indiana Supreme Court
                             _________________________________

                                     No. 49S02-1602-CR-110
                                                                                   Feb 26 2016, 1:06 pm

LAMONT WILFORD,
                                                              Appellant,

                                                V.

STATE OF INDIANA,
                                                       Appellee.
                             _________________________________

              Appeal from the Marion Superior Court, No. 49F07-1305-CM-035442
                         The Honorable Deborah Shook, Commissioner
                            _________________________________
       On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1408-CR-534
                             _________________________________

                                        February 26, 2016

Rush, Chief Justice.

       Both the Federal and State Constitutions protect Hoosiers’ private property from
unreasonable State intrusion. And so, every inquiry into a warrantless impoundment and inventory
search of a vehicle—like any other warrantless search or seizure—ultimately depends on whether
those measures were reasonable based on the surrounding facts.

       Here, police impounded Defendant’s car from a parking lot because he was arrested for
driving while suspended, the registered owner (his sister) was not present, and the car’s windshield
and bumper were damaged. Police then began to inventory the car and found a handgun inside,
resulting in Defendant being charged with, and ultimately convicted of, carrying a handgun without
a license.

        Although such discretionary impounds may be permissible as part of law enforcement’s
community-caretaking function, they require proof of, among other things, an established depart-
mental procedure that authorized the impoundment. Fair v. State, 627 N.E.2d 427, 433 (Ind. 1993).
Here, the State presented only the officer’s bare assertion that such a policy existed and that his
actions were consistent with the policy—but just as in Fair, there was no evidence of the particulars
of that policy. We therefore hold that the State failed to prove an established departmental procedure
as Fair requires, and thus failed to prove that the impoundment was reasonable. Consequently, the
search that followed was unreasonable and the handgun obtained pursuant to the invalid search
was inadmissible. We accordingly reverse Defendant’s handgun conviction.

                                       Facts and Procedural History

        While driving through northwest Indianapolis, Lamont Wilford, Jr. was pulled over by
Officer Eli Raisovich of the Indianapolis Metropolitan Police Department (“IMPD”) because the
vehicle exhibited “multiple equipment problems”—namely, a damaged rear end, a broken tail light,
and a cracked windshield. The car Wilford was driving belonged to his sister, who had lent it to
Wilford’s father, who had, in turn, lent it to him shortly before the traffic stop. Wilford pulled into
the parking lot of a Planet Fitness gym, stopped the car, and produced an Indiana identification card.

        Upon learning Wilford’s license was suspended, Officer Raisovich (who was accompanied
by a TV news film crew and on-air personality) radioed for backup, handcuffed Wilford, and placed
him in the rear of a police cruiser. The officer then decided to impound the car “because of the unsafe
condition of it and the fact that . . . Wilford was being arrested and he was not the owner of the
vehicle.” He further explained, “[W]ith our procedures in that situation, we towed the vehicle.” Prior
to towing, police searched the vehicle and found a handgun, which Wilford was not licensed to carry.
The record does not show whether police made any effort to contact Wilford’s sister to retrieve her
car, nor was any inventory sheet admitted into evidence.

        At a bench trial, the court admitted the handgun over Wilford’s objections and convicted him
of carrying a handgun without a license and driving while suspended with a prior suspension—both



                                                  2
as Class A misdemeanors. He was sentenced to 365 days, with 357 days suspended to probation, and
a $100.00 fine. The Court of Appeals affirmed, holding the impoundment and inventory search
satisfied Fair’s requirements because the damaged, unsafe car posed a threat to the community or
itself and the testimony from the impounding officer (a twenty-three-year IMPD veteran) sufficed
as evidence of departmental procedures. Wilford v. State, 31 N.E.3d 1023, 1031–32 (Ind. Ct. App.
2015). We now grant transfer, thus vacating the Court of Appeals opinion, Ind. Appellate Rule
58(A)(2), and reverse Wilford’s handgun conviction.

                                         Standard of Review

        Although Fourth Amendment and Article 1, Section 11 questions require independent
analyses, their answers turn on the same factor—reasonableness. The State bears the burden of
proving warrantless impoundments and inventory searches are reasonable under both the Fourth
Amendment and Article 1, Section 11. Fair, 627 N.E.2d at 431 (Fourth Amendment); Taylor v. State,
842 N.E.2d 327, 334 (Ind. 2006) (Article 1, Section 11). Our evaluation requires that “we examine
the evidence favorable to the trial court’s decision, with all disputes resolved in favor of the ruling,”
and also consider “any uncontested evidence favorable to the appellant.” Fair, 627 N.E.2d at 434.
And we will overturn the trial court’s factual findings only if they are clearly erroneous. Id. But the
ultimate determination of “reasonableness” is a constitutional legal question meriting independent
consideration by this Court. Id.

                                      Discussion and Decision

I. Vehicle Impoundment, Like Any Seizure of Property, Must Be Reasonable.

        Both the Fourth Amendment and Article 1, Section 11 protect “[t]he right of the people to
be secure in their persons, houses, papers, and effects” against unreasonable searches and seizures.
U.S. CONST. amend. IV; IND. CONST. art. 1, § 11. Automobiles are among the “effects” protected by
these provisions. Brown v. State, 653 N.E.2d 77, 79, 81 (Ind. 1995). Thus, when police impound a
vehicle and inventory its contents, they effect a search and seizure, and both measures must be
reasonable—that is, executed under a valid warrant or a recognized exception to the warrant
requirement. Taylor, 842 N.E.2d at 330.




                                                   3
        The inventory search is one such exception since it serves an administrative, not investi-
gatory, 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. at 330–31. Consequently, proper
impoundment is the “threshold question” to valid inventory search. Fair, 627 N.E.2d at 431.
Nevertheless, as with any warrantless search or seizure, the State bears the burden of proving
reasonableness, id. at 430, and that is where our analysis begins.

        Impoundment is reasonable if it is authorized either by statute or the police’s discretionary
community-caretaking function. Id. at 431–32. 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 admini-
strative 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 as we recognized in Fair, and more recently in Taylor,
they are vulnerable to constitutional reasonableness challenges because of their potential for misuse
as pretext for warrantless investigative searches under the guise of inventory. See Fair, 627 N.E.2d
at 435; Taylor, 842 N.E.2d at 331–33. Unless the impoundment is proper, then, an inventory search
is per se unreasonable and any contraband found during the search is inadmissible “poisoned fruit.”

        Here, we must decide whether impounding Wilford’s vehicle was reasonable—and because
we find no statute specifically authorizing this impoundment,1 we focus on the community-care-
taking function.

II. Impounding a Vehicle Under the Community-Caretaking Function Requires Proof of an
    Established Routine or Regulation Authorizing the Impound.

        Community safety often requires police to impound vehicles because they are abandoned
and obstruct traffic, create a nuisance, or invite thieves and vandals. See Fair, 627 N.E.2d at 431–33.

1
  The State argues in passing that this impound was authorized by Indiana Code section 9-21-7-1 (2010
Repl.), which prohibits operation of an unsafe vehicle. But the State’s reliance is misplaced, because that
statute does not confer any specific impoundment authority in case of violations. The State also argues that
impound was required under Indiana Code section 9-22-1-5 (Supp. 2013) because Wilford did not own the
car and could not “establish [his] right to possession of” it. We disagree, because nothing in the record
suggests that police ever doubted that Wilford’s possession was authorized.


                                                     4
These impoundments fall under the police’s “community caretaking function”—a catchall term for
“the wide range of responsibilities that police officers must discharge aside from their criminal
enforcement activities.” Id. at 431 (quoting United States v. Rodriguez-Morales, 929 F.2d 780, 785
(1st Cir. 1991), cert. denied, 502 U.S. 1030 (1992)). Indeed, besides enforcing criminal laws, police
“aid those in distress, combat actual hazards, prevent potential hazards . . . and provide an infinite
variety of services to preserve and protect community safety.” Rodriguez-Morales, 929 F.2d at 784–
85.

       We have said that “police may discharge their caretaking function whenever circumstances
compel it,” Fair, 627 N.E.2d at 432, but also that a decision to impound “must be ‘exercised
according to standard criteria and on the basis of something other than suspicion of evidence of
criminal activity.’” Id. (quoting Colorado v. Bertine, 479 U.S. 367, 375 (1987)). Otherwise,
community-caretaking impoundments could too readily be used “for a general rummaging in order
to discover incriminating evidence” under the pretext of an administrative inventory. Id. at 435
(quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).

       In view of that potential for pretext, Fair set forth a strict two-prong standard for proving that
the decision to impound a person’s vehicle without a warrant was reasonable:

       (1) Consistent with objective standards of sound policing, an officer must believe the
       vehicle poses a threat of harm to the community or is itself imperiled; and

       (2) The officer’s decision to impound adhered to established departmental routine or
       regulation.

Id. at 433. The State must satisfy both elements—so if it cannot meet one, we need not consider the
other. Taylor, 842 N.E.2d at 333. Here, we focus solely on Fair’s second prong, which we find dis-
positive: whether the State proved that Officer Raisovich’s decision to impound Wilford’s car was
consistent with an established IMPD policy or practice.

       We have held impoundments to be unreasonable under similar circumstances in Fair and its
progeny. In Fair, police arrested the defendant for public intoxication and decided to impound his
car, even though it was legally parked on private property and did not impede traffic. We held the
impoundment and subsequent inventory unreasonable because, in “the absence of evidence about
any departmental procedures,” we could not discern whether impoundment was a legitimate
discretionary impound under the community-caretaking function or mere pretext for an investigatory


                                                    5
search. Fair, 627 N.E.2d at 435. Likewise in Taylor, we applied Fair and held impoundment and
inventory unreasonable because the car was safely parked on private property, the property owner
did not request its removal, and the record suggested pretext. Taylor, 842 N.E.2d at 331–33. There
we said that “it is not true that every vehicle parked illegally must be impounded” if there is no
evidence it poses a safety hazard or nuisance. Id. at 331. And in Gibson v. State, police arrested the
defendant for a low-level offense and impounded a car “neatly parked in a relatively secure private
parking [lot], a convenience store.” 733 N.E.2d 945, 957 (Ind. Ct. App. 2000). Applying Fair, the
Court of Appeals held the impoundment and inventory unreasonable because “it [was] apparent from
the record” that impoundment was “nothing more than a pretext to search the vehicle for
contraband.” Gibson, 733 N.E.2d at 958. These cases illustrate Fair’s boundaries—that impound and
inventory are unreasonable unless the State can show those actions were “in keeping with established
departmental routine or regulation.” Fair, 627 N.E.2d at 433.

III. The Officer’s Generalized Reference to “Our Procedures” Failed to Prove the
     “Particulars” of Those Procedures as Fair Requires.

       Here, then, the question is how the State must prove such an “established departmental
routine or regulation.” Fair did not expressly state what evidence—written policies or officer
testimony—would prove established policy. The State contends Officer Raisovich’s testimony
alone satisfied its burden of proving that impoundment was pursuant to established departmental
procedure and therefore reasonable. While the State is correct that we do not require evidence of
written procedures, we do require more than conclusory testimony from officers. Specifically, Fair
rejected “an officer’s generalized assertion” as adequate evidence of established procedures because
such evidence could not eliminate pretextual impoundment and inventory. Id. at 435. But we see
no reason why, in lieu of a written policy, specific officer testimony cannot also demonstrate
established departmental routine or regulation.

       That conclusion is consistent with the vast majority of other jurisdictions that have con-
sidered the question. At least nineteen states do not require proof of a written departmental policy




                                                  6
for impoundment or inventorying, but rather will allow officer testimony to show established depart-
mental routine or regulation.2 Only Massachusetts specifically requires the prosecution to introduce
the written policy justifying a community-caretaking impoundment and inventory. Commonwealth
v. Bishop, 523 N.E.2d 779, 780 (Mass. 1988). This case law distills to a simple principle we
implicitly recognized in Fair and explicitly reiterate today—while written policies are not
necessary to show established departmental routine or regulation, “absent such [a] writing the
burden is on the department through the testimony of its officers to show that there is a
‘standardized impoundment procedure.’” 3 Wayne R. LaFave, Search & Seizure § 7.3(c), at 825–
26 (5th ed. 2012); see also Fair, 627 N.E.2d at 432–33.

        Officer testimony provides adequate evidence of departmental impound policy if it outlines
the department’s standard impound procedure and specifically describes how the decision to
impound adhered to departmental policy or procedure—as opposed to “an officer’s generalized
assertion” as Fair held insufficient. Here, Officer Raisovich’s testimony provided several reasons
why he decided to tow Wilford’s car, but he failed to specify how his decision conformed to an
established departmental impound policy:

        Q.      Tell me why this vehicle was being inventoried?

        A.      Uh, because it was being towed because of the unsafe condition of it and the
                fact that uh, that Mr., uh, uh, Wilford was being arrested and he was not the
                owner of the vehicle.

        ***

        Q.      Tell me, yeah, tell me again?

        A.      The condition of the vehicle. I don’t believe it was safe to operate on the
                street because there was uh, you know, danger from the rear window breaks

2
 See Ex parte Boyd, 542 So. 2d 1276, 1282 (Ala. 1989); Benson v. State, 30 S.W.3d 731, 733 (Ark. 2000);
People v. Shafrir, 107 Cal. Rptr. 3d 721, 728–29 (Cal. Ct. App. 2010); People v. Gee, 33 P.3d 1252, 1256–
57 (Colo. App. 2001); State v. Nelson, 555 A.2d 426, 434 (Conn. App. Ct. 1989); People v. Gipson, 786
N.E.2d 540, 546 (Ill. 2003); State v. Huisman, 544 N.W.2d 433, 437 (Iowa 1996); State v. Oram, 266 P.3d
1227, 1239 (Kan. Ct. App. 2011); State v. Bickford, 582 A.2d 250, 252 (Me. 1990); O’Connell v. State,
933 So. 2d 306 (Miss. Ct. App. 2005); State v. Filkin, 494 N.W.2d 544, 550 (Neb. 1993); In re Jeff M., 977
P.2d 352, 354 (N.M. Ct. App. 1999); People v. Walker, 980 N.E.2d 937, 940 (N.Y. 2012); State v. O’Neill,
29 N.E.3d 365, 375 (Ohio Ct. App. 2015); Wilson v. State, 871 P.2d 46, 50–51 (Okla. Crim. App. 1994);
Mayberry v. State, 830 S.W.2d 176, 181 (Tex. Crim. App. 1992); State v. Strickling, 844 P.2d 979, 989–
90 (Utah Ct. App. 1992); State v. Weide, 455 N.W.2d 899, 905 (Wis. 1990); Perry v. State, 927 P.2d 1158,
1165 (Wyo. 1996).


                                                    7
               and like I said being in a rear end collision uh, the totality of the thing, he
               didn’t own the vehicle uh, he was being placed under arrest. So uh, with our
               procedures in that situation, we towed the vehicle.

       Simply put, that passing reference to “our procedures in that situation” fails to “provide[]
the particulars of the policy” as Fair requires. 627 N.E.2d at 436. 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 exercise of the community-caretaking function and not merely
pretext for an inventory search. In sum, absent more detail, Officer Raisovich’s testimony provided
inadequate evidence of established departmental routine or regulation, making impoundment un-
reasonable under Fair’s second prong and rendering the handgun found during the subsequent
inventory search inadmissible “poisoned fruit.”

       Our conclusion that this impoundment was unreasonable applies under the Indiana Consti-
tution as well. Article 1, Section 11 involves independent analysis, requiring this Court to determine
whether impoundment and inventory are reasonable under the totality of the circumstances.
Taylor, 842 N.E.2d at 334. For the same reasons we outline above, we find the absence of established
departmental policies made impounding Wilford’s vehicle unreasonable under the totality of the
circumstances and renders the attendant inventory search invalid.

                                            Conclusion

       We reiterate our holding in Fair—impoundment under the community-caretaking function
is reasonable only pursuant to established police routine or regulations, and generalized assertions
about such a policy are inadequate to make that showing. Since the State failed to prove an
established police routine or regulation supporting impoundment under these circumstances, the
impoundment and subsequent inventory were unreasonable. We therefore reverse Wilford’s
conviction for carrying a handgun without a license.

Dickson, Rucker, David, Massa, JJ., concur.




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