MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                          09/18/2017, 10:14 am
this Memorandum Decision shall not be
                                                                                CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kyle D. Gobel                                            Curtis T. Hill, Jr.
Collier Gobel Homann, LLC                                Attorney General of Indiana
Crawfordsville, IN
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, IN



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Dale Guthrie,                                    September 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         54A04-1703-CR-515
        v.                                               Appeal from the Montgomery
                                                         Superior Court 1
State of Indiana,                                        The Honorable Heather Barajas,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         54D01-1601-F6-0004



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 54A04-1703-CR-515 | September 18, 2017            Page 1 of 7
                                          Case Summary
[1]   Richard Dale Guthrie appeals his convictions for Level 6 felony possession of a

      syringe and Class C misdemeanor possession of paraphernalia. Guthrie argues

      that he did not validly consent to a search that was a condition of him accepting

      a complimentary ride from a police officer after his SUV broke down on the

      side of the road early one December morning. In the alternative, he argues that

      even if he validly consented, the officer’s search exceeded the scope of his

      consent. Finding that Guthrie voluntarily consented to the search and that the

      officer was well within the scope of Guthrie’s consent when he found the

      contraband, we affirm.



                            Facts and Procedural History
[2]   Around 4:35 a.m. on December 26, 2015, Deputy Austin Thomen with the

      Montgomery County Sheriff’s Department was on patrol when he noticed a

      SUV parked on the side of U.S. 231. He pulled over and approached the SUV.

      Guthrie was in the driver’s seat, and Willard Dunn was in the passenger seat.

      Deputy Thomen asked the men for their identification cards and why they were

      stopped on the side of the road. The men told him that their SUV had “died”

      on their way back to Lafayette. Tr. Vol. II p. 5. Deputy Thomen returned to

      his patrol car to run a check, and both men came back with suspended driver’s

      licenses. Deputy Thomen called a tow truck since neither man could drive. He

      also requested assistance from the Crawfordsville Police Department to provide

      “complimentary” transportation for the men (Deputy Thomen generally

      Court of Appeals of Indiana | Memorandum Decision 54A04-1703-CR-515 | September 18, 2017   Page 2 of 7
      transported only one person at a time). Id. at 53. According to Deputy

      Thomen, law enforcement sometimes provides complimentary transportation

      when a motorist is stranded.


[3]   After making the calls, Deputy Thomen returned to the SUV to tell Guthrie that

      he would be issuing him a citation for driving while suspended and that officers

      from the Crawfordsville Police Department were coming so that they could give

      them a ride to a location of their choosing. The men said that they wanted a

      ride to a truck stop that was a mile down the road. When Lieutenant Hal

      Utterback with the Crawfordsville Police Department arrived on the scene,

      Deputy Thomen returned to his patrol car to begin writing the citation.

      Lieutenant Utterback, who chatted with Guthrie and Dunn to pass the time,

      started to note inconsistencies in their stories regarding where they had been

      and where they were going. As a result, he asked Officer Michael Plant, who

      had just started his shift, to come to their location with his K-9. Officer Plant

      arrived at 5:18 a.m. and had his K-9 “walk around” the SUV; the K-9 alerted.

      Id. at 23. The officers searched the SUV, but no contraband was found.

      Deputy Thomen, who in the meantime had paused writing the citation, finished

      the citation and handed it to Guthrie. He told Guthrie what it was for and

      when his court date was.


[4]   At this point, Deputy Thomen asked Guthrie and Dunn if they still wanted a

      ride to the truck stop or if they would rather stay with their disabled SUV or

      walk somewhere. Deputy Thomen told them that a condition of accepting a

      “courtesy” ride was that they had to consent to a search for “weapons or

      Court of Appeals of Indiana | Memorandum Decision 54A04-1703-CR-515 | September 18, 2017   Page 3 of 7
      anything illegal on their person.” Id. at 8, 18, 54, 55. According to Deputy

      Thomen, it was normal procedure to search a person before providing a

      complimentary ride because of “safety” concerns. Id. at 17. Both men

      consented to a search.


[5]   When Deputy Thomen began patting down Guthrie, he felt a hard object in his

      left front pants pocket. Guthrie allowed Deputy Thomen to remove the object.

      Id. at 18. The object was a large permanent marker about six inches long and

      one inch wide. Deputy Thomen noticed several pry marks on the non-cap end

      of the marker, which aroused his suspicions. He opened the cap of the marker

      and saw the orange cap to a syringe. Id. at 55. He then removed the bottom of

      the marker and saw a second syringe as well as the bowl part of a spoon (the

      rest of the spoon had been removed). Id. at 55-56; see also Ex. 4. The bowl

      contained burn marks and residue. Officer Thomen arrested Guthrie while

      Lieutenant Utterback gave Dunn a ride to the truck stop.


[6]   The State charged Guthrie with Level 6 felony possession of a syringe and Class

      C misdemeanor possession of paraphernalia (spoon). Guthrie filed a motion to

      suppress the syringes and the spoon, which the trial court denied after a

      hearing. A jury trial was then held, and the jury found him guilty as charged.


[7]   Guthrie now appeals.




      Court of Appeals of Indiana | Memorandum Decision 54A04-1703-CR-515 | September 18, 2017   Page 4 of 7
                                  Discussion and Decision
[8]    Guthrie contends that the trial court erred in admitting into evidence the

       syringes and the spoon. He first argues that his consent to the search was

       invalid. Under both the United States and Indiana Constitutions, it is

       axiomatic that a search requires a warrant unless certain narrow exceptions

       apply. State v. Cunningham, 26 N.E.3d 21, 25 (Ind. 2015). One such exception

       is consent. Id.


[9]    Under both constitutions, the State carries the burden of proving that the

       consent was voluntarily given. McIlquham v. State, 10 N.E.3d 506, 511 (Ind.

       2014). Voluntariness is a question of fact to be determined from all the

       circumstances. Id. We consider conflicting evidence most favorably to the trial

       court’s ruling as well as undisputed evidence favorable to the defendant.

       Cunningham, 26 N.E.3d at 25. A consent to search is valid except where

       procured by fraud, duress, fear, or intimidation or where it is merely a

       submission to the supremacy of the law. McIlquham, 10 N.E.3d at 511; see also

       Cunningham, 26 N.E.3d at 27 (explaining that consent to search is invalid when

       police imply that the subject has no option for refusing the search).


[10]   Here, after the search of the SUV revealed no contraband and Deputy Thomen

       handed Guthrie the citation for driving while suspended, he gave Guthrie and

       Dunn two options: (1) they could wait with their disabled SUV or walk

       somewhere or (2) they could accept a courtesy ride to the truck stop so long as

       they consented to a search for “weapons or anything illegal on their person.”


       Court of Appeals of Indiana | Memorandum Decision 54A04-1703-CR-515 | September 18, 2017   Page 5 of 7
       Both men wanted a ride and consented to the search. Guthrie testified at the

       motion-to-suppress hearing about his decision:


               I figured I was free to leave when I was asked if I needed a ride.
               Um my passenger consented right away and I said, I agreed
               along with, I didn’t really need [a ride] because I’m from here
               and he is not. So, I just went along with it because it was just a
               mile down the road.


       Tr. Vol. II p. 31 (emphasis added).


[11]   Contrary to Guthrie’s argument on appeal, he did not have “little choice but to

       consent to Deputy Thomen’s search.” Appellant’s Br. p. 14. Deputy Thomen

       expressly told Guthrie that he did not have to accept the courtesy ride. Guthrie

       could have waited with the SUV, as a tow truck had already been called. Or

       Guthrie could have walked to the truck stop, which, according to him, was

       “just a mile down the road.” Finally, Guthrie had a cell phone that he could

       have used to call someone. Tr. Vol. II p. 31. There is simply no evidence that

       Deputy Thomen used fraud, duress, fear, or intimidation in obtaining Guthrie’s

       consent to the search. As Guthrie himself testified, he was “free to leave.”

       Based on the totality of the circumstances, we conclude that Guthrie voluntarily

       consented to the search.


[12]   Guthrie next argues that even if he validly consented, the search exceeded the

       scope of his consent. A consensual search allows a suspect to limit or restrict a

       search as he chooses, and the scope of a consensual search is generally defined

       by the object of the search. McIlquham, 10 N.E.3d at 513. This principle limits


       Court of Appeals of Indiana | Memorandum Decision 54A04-1703-CR-515 | September 18, 2017   Page 6 of 7
       where police may look, not what they actually find. Id. For example, while

       consent to search for “guns, drugs, money, or illegal contraband” permits

       physically searching a cell phone because it is a container capable of hiding

       such items as drugs or money, viewing the phone’s data or programming

       exceeds the scope of such consent. Id. at 514.


[13]   Here, as even Guthrie concedes, the consent was for “weapons or anything

       illegal.” Appellant’s Br. pp. 7-8. When Deputy Thomen patted Guthrie down,

       he felt a hard object in his left front pants pocket. He then removed the object

       with Guthrie’s permission. The object was a marker six inches long and one

       inch wide. Because the marker was large enough to hide a weapon or drugs,

       Deputy Thomen acted well within the scope of Guthrie’s consent when he

       opened the cap. The trial court did not err in admitting into evidence the

       syringes and the spoon.


[14]   Affirmed.


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




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