      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                     FILED
      regarded as precedent or cited before any                                 Aug 26 2019, 7:02 am

      court except for the purpose of establishing                                   CLERK
                                                                                 Indiana Supreme Court
      the defense of res judicata, collateral                                       Court of Appeals
                                                                                      and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Darren Bedwell                                           Curtis T. Hill, Jr.
      Valerie K. Boots                                         Attorney General of Indiana
      Marion County Public Defender Agency
                                                               Matthew B. MacKenzie
      Appellate Division                                       Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Steven Lamont Cunningham,                                August 26, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2988
              v.                                               Appeal from the
                                                               Marion Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Jose D. Salinas, Judge
                                                               Trial Court Cause No.
                                                               49G14-1804-F6-12533



      Kirsch, Judge.


[1]   Steven Lamont Cunningham (“Cunningham”) brings this permissive

      interlocutory appeal of the denial of his motion to suppress, which had asked

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019                    Page 1 of 4
      the trial court to exclude from evidence pills that police seized from the car in

      which Cunningham was a passenger. Cunningham raises several issues

      regarding the seizure of the pills, but we find as dispositive the following issue

      raised by the State: whether Cunningham had standing to challenge the seizure

      of the pills.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On August 27, 2018, Officer Lane Cooper (“Officer Cooper”) of the

      Indianapolis Metropolitan Police Department pulled over a white Chevy Tahoe

      for speeding. Tr. Vol. II at 7-9. Derrick House (“Derrick”) was the driver of the

      vehicle, which was registered to Julia House (“Julia”), Derrick’s sister, and

      Cunningham was the front seat passenger. Id. at 10-12, 15. Officer Cooper

      obtained Derrick’s and Cunningham’s identification and discovered an open

      warrant for Cunningham’s arrest. Id at 9-10, 15. Officer Cooper re-approached

      the vehicle on the passenger side, asked Cunningham to step out of the vehicle,

      and arrested him. Id. at 15. When Cunningham stood up, Officer Cooper

      noticed six oblong pills on the passenger seat. Id. After walking Cunningham

      back to the police car, Officer Cooper returned to the vehicle and seized the

      pills, which were later determined to contain hydrocodone. Id. at 15-16;

      Appellant’s App. Vol. II at 9. Cunningham denied that the pills were his. Id. at

      16.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019   Page 2 of 4
[4]   On April 18, 2018, the State charged Cunningham with Level 6 felony

      possession of a narcotic drug.1 Appellant’s App. Vol. II at 10. On July 2, 2018,

      Cunningham filed a motion to suppress, and on August 27, 2018, the trial court

      heard the motion. Id. at 38-39; Tr. Vol. II at 1-29. In denying the motion, the

      trial court found that Cunningham had standing to challenge the seizure of the

      pills but ruled the seizure did not violate Cunningham’s rights. Tr. Vol. II at 28-

      29. Cunningham now appeals.


                                          Discussion and Decision
[5]   Cunningham first contends that Officer Cooper did not have probable cause to

      seize the pills and have them tested. Second, he argues that the seizure of the

      pills was not justified by the exception to the warrant requirement for searches

      incident to an arrest. Third, he claims that the seizure of the pills was not

      reasonable under the Indiana Constitution.


[6]   We do not reach these issues because we agree with the State that Cunningham

      has failed to demonstrate that he had standing to challenge the seizure of the

      pills. See Livingston v. State, 542 N.E.2d 192, 194 (Ind. 1989). Fourth

      Amendment rights are personal and may not be vicariously asserted. Rakas v.

      Illinois, 439 U.S. 128, 133-34 (1978); Allen v. State, 893 N.E.2d 1092, 1096 (Ind.

      Ct. App. 2008), trans. denied. A defendant must demonstrate a legitimate

      expectation of privacy in the item that is searched. Livingston, 542 N.E.2d at




      1
          See Ind. Code § 35-48-4-6(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019   Page 3 of 4
      194; Allen, 893 N.E.2d at 1096. A defendant “aggrieved by an illegal search

      and seizure only through the introduction of damaging evidence secured by the

      search of a third person’s premises has not had any of his Fourth Amendment

      rights infringed.” Rakas, 439 U.S. at 134. In reviewing whether an expectation

      of privacy exists, we look to whether a defendant has control over or ownership

      in the area to be searched. See Lee v. State, 545 N.E.2d 1085, 1091 (Ind. 1989).

      “Passengers in a car driven by the owner do not have standing to challenge a

      search of the car.” Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008) (citing

      Pollard v. State, 270 Ind. 599, 604, 388 N.E.2d 496, 502 (1979) (quoting Rakas,

      439 U.S. at 148)). “[F]ederal precedent addressing standing of a passenger

      asserting an interest in a searched vehicle is equally applicable under the

      Indiana Constitution.” Campos, 885 N.E.2d at 598.


[7]   Here, Cunningham lacked standing to challenge the search and seizure of the

      pills because he has failed to demonstrate that he had a legitimate expectation

      of privacy in the vehicle. See Livingston, 542 N.E.2d at 194. Cunningham did

      not have control or ownership of the vehicle because it belonged to a third

      person, Julia. See Rakas, 439 U.S. at 134; Lee, 545 N.E.2d at 1091. Thus, as a

      passenger in a car that belonged to another person, Cunningham lacked

      standing to challenge the seizure of the pills under both the United States and

      Indiana Constitutions. See Campos, 885 N.E.2d at 598.


[8]   Affirmed.


      Baker, J., and Crone, J., concur.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2988 | August 26, 2019   Page 4 of 4
