Pursuant to Ind. Appellate Rule 65(D), this                      Jun 19 2013, 7:09 am
Memorandum Decision shall not be
regarded as precedent or cited before any
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:

BRIAN J. MAY                                     GREGORY F. ZOELLER
South Bend, Indiana                              Attorney General of Indiana

                                                 BRIAN L. REITZ
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BERNARD L. STRICKLAND,                           )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 71A05-1301-CR-10
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                           The Honorable J. Jerome Frese, Judge
                             Cause No. 71D03-1108-FB-121



                                       June 19, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          In this case, the appellant-defendant Bernard L. Strickland appeals his convictions

for Burglary,1 a class C felony, Resisting Law Enforcement,2 a class A misdemeanor,

Possession of Paraphernalia,3 a class A misdemeanor, and for being a Habitual Offender.4

          Strickland argues that some stolen power tools that police officers found in a trash

can that Strickland had been hauling down the street were improperly admitted into

evidence. Notwithstanding this contention, we find that Strickland had abandoned the

trash can when he fled from the police officers. As a result, we conclude that the trial

court properly admitted the stolen tools into evidence, and we affirm Strickland’s

convictions.

                                            FACTS

          Sometime around 5:30 a.m. on July 26, 2011, Nidia Perez began making breakfast

at her St. Joseph County residence. Perez heard a noise in her garage, looked out her

kitchen window, and saw a man leaving the garage. As Perez screamed, her husband,

Justo Gonzalez, went outside and noticed that the garage had been pried open.

          Gonzalez determined that nearly $5000 worth of power tools had been stolen from

the garage, and he immediately called the police. South Bend Police Officer Jason Stone




1
    Ind. Code § 35-43-2-1.
2
    Ind. Code § 35-44-3-3.
3
    Ind. Code § 35-48-4-8.3(a).
4
    Ind. Code § 35-50-2-8.
                                               2
arrived at the residence and noticed that the garage door had been recently forced open

and that there were “dust outlines” where the tools had been stored. Tr. p. 145-46.

       Later that afternoon, at approximately 2:20 p.m., South Bend Police Officer David

Trout was dispatched to a residential area after receiving a report that a man wearing a

blue shirt was in the area pushing a trash can and stealing garments from nearby

clotheslines.   Approximately ten minutes later, Officer Trout drove to the area and

observed an individual, who was later identified as Strickland, matching the man’s

description. Officer Trout drove his police vehicle towards Strickland and watched him

push a trash can down a sidewalk. Strickland turned, saw the police car, picked up some

sticks and brush, and tossed them into the garbage can.

       Officer Trout exited his police car and approached Strickland. Strickland claimed

that he was helping a friend clean the yard. When Officer Trout asked Strickland for the

name of his friend, Strickland responded that he did not know. Officer Trout considered

Strickland’s behavior as “suspicious” and observed that his eyes were “darting . . .

around” and not looking at him. Tr. p. 19, 174. Strickland turned around, placed his

hands on his head, and Officer Trout began to pat him down for weapons. However,

Strickland ran from the scene as Officer Trout was patting down Strickland’s right leg.

       Just before Strickland fled, Officer Tim Taylor arrived on the scene and saw the

trash can about ten feet from Strickland and Officer Trout. Officer Taylor lifted the lid of

the trash can and noticed a bag, some brush, and tools underneath. When Officer Taylor

noticed Strickland running away, he joined in the foot pursuit.            Strickland was

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apprehended only a short distance away. The police officers searched Strickland and

found a crack cocaine pipe in his pocket.

         Officer Dominic Zultanski arrived on the scene, and the two other officers directed

him to the trash can. Officer Zultanski secured the trash can and had it transported to the

police station. Other police officers searched the trash can and found various power tools

at the bottom of it. One of the tools had “Justo” written on it. Tr. p. 227-32. After

Officer Zultanski read the police report that involved the burglary, he contacted Gonzalez

who identified the tools as his.

         On August 1, 2011, Strickland spoke with South Bend Police Officer Kelly Waite

after being read his Miranda5 rights. Strickland admitted that he was the individual who

was “walking . . . with the trash barrel.” Ex. 20.

         Prior to trial, Strickland filed a motion to suppress, alleging that the South Bend

police officers lacked the authority to stop and detain him and search the trash can.

Strickland claimed that the search of the trash can violated his right to be free from illegal

search and seizure. The trial court subsequently denied Strickland’s motion to suppress.

         Following a jury trial on September 27, 2012, Strickland was found guilty of

burglary, a class C felony, resisting law enforcement, a class A misdemeanor, and

possession of paraphernalia, a class A misdemeanor. Strickland was also found to be a

habitual offender.




5
    Miranda v. Arizona, 384 U.S. 436, 469 (1966).
                                                    4
       On December 11, 2012, the jury sentenced Strickland to eight years of

incarceration for burglary that was enhanced by four years on the habitual offender count

and two concurrent one-year terms for resisting law enforcement and possession of

paraphernalia. Thus, Strickland was sentenced to an aggregate term of twelve years of

incarceration in the Indiana Department of Correction (DOC). He now appeals.

                             DISCUSSION AND DECISION

       Strickland argues that the trial court erred in admitting the evidence that the police

officers seized from the trash can. Specifically, Strickland claims that the evidence

should have been excluded because the police officers unlawfully detained him, did not

see him commit a crime, and there was no basis “for the pat down search.” Appellant’s

Br. p. 7.

       In resolving this issue, we initially observe that the decision to admit or exclude

evidence is within the trial court’s sound discretion. Johnson v. State, 831 N.E.2d 163,

168-69 (Ind. Ct. App. 2005). We will reverse only upon a showing of manifest abuse of

discretion that results in the denial of a fair trial. Id. We do not reweigh the evidence and

will consider conflicting evidence in a light most favorable to the trial court’s ruling.

Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007).

       Although Strickland claims that the stolen power tools should not have been

admitted into evidence because Officer Trout allegedly improperly detained him,

performed an illegal pat down, and illegally searched the trash can, we note that

abandoned property is not subject to protection under the Fourth Amendment or Article I,

                                             5
Section 11 of the Indiana Constitution. Campbell v. State, 841 N.E.2d 624, 627, 630

(Ind. Ct. App. 2006).     Moreover, even if there may not be a reasonable suspicion to

justify a stop, abandoned property is admissible because it has not been seized. Id. at 51-

52; see also Miller v. State, 498 N.E.2d 53, 57 (Ind. Ct. App. 1986) (holding that it is

only when illegal police activity or the threat thereof actually leads to the relinquishment

of possession that the evidence must be suppressed).

       We also note that the question of abandonment is primarily an issue of intent.

State v. Machlah, 505 N.E.2d 873, 879 (Ind. Ct. App. 1987). Intent may be inferred from

words, acts, and other objective facts. Abandonment rests upon whether the defendant so

relinquished his interest in the property that he no longer retained a reasonable

expectation of privacy in it at the time of the search. Id.

       We have previously determined that a defendant’s voluntary act of throwing

something to the ground constitutes abandonment. Glenn v. State, 154 Ind. App. 474,

478, 290 N.E.2d 103, 106 (1972). When property has been abandoned, we need not

address the propriety of the stop of a defendant when it is demonstrated that the

defendant has abandoned the property that he sought to suppress. Wilson v. State, 825

N.E.2d 49, 50 (Ind. Ct. App. 2005).

       Also, by way of illustration, the evidence in California v. Hodari D., established

that the defendant, Hodari, fled the scene when a police officer approached. 499 U.S.

621, 626 (1991). Hodari dropped a quantity of cocaine when the officer was almost upon

him. It was determined that a Fourth Amendment violation did not occur in Hodari

                                              6
because “assuming the [officer’s] pursuit . . . constituted ‘a show of authority’ enjoining

Hodari to halt, since Hodari did not comply . . . he was not seized” until the officer

tackled him. Therefore, “the cocaine that he abandoned while he was running was . . .

not the fruit of a seizure.” Id. at 626.

       In this case, the evidence established that when Strickland was being patted down,

he was almost ten feet away from the trash can that he had been pushing. Tr. p. 19-20,

43, 174-75. And when Strickland ran from the scene, he left the trash can behind. Id. at

20, 24, 33, 175, 200. And neither Officer Trout nor Officer Taylor had any additional

contact with the trash can. Id. at 225-26. Rather, as noted above, it was Officer Zultanski

who subsequently arrived at the scene and had the trash can secured and transported to

the police station, where it was then searched. Id. at 225-27.

       In light of these circumstances, we cannot say that Strickland’s decision to

abandon the trash can was caused by improper police misconduct or by an illegal seizure.

As a result, we conclude that the trial court properly admitted the stolen power tools into

evidence.

       The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.




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