MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   May 29 2019, 11:03 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Anna Onaitis Holden                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Carla Shaw,                                             May 29, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1975
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Certo, Judge
Appellee-Plaintiff.                                     The Honorable David Hooper,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G12-1708-CM-32156



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019                Page 1 of 11
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Carla Shaw (Shaw), appeals her conviction for

      possession of marijuana, a Class B misdemeanor, Ind. Code § 35-48-4-11(a)(1).


[2]   We reverse.


                                                   ISSUE
[3]   Shaw presents one issue on appeal, which we restate as: Whether the trial court

      abused its discretion when it admitted evidence procured from a warrantless

      inventory search of her vehicle.


                      FACTS AND PROCEDURAL HISTORY
[4]   On August 29, 2017, just before midnight, Officer Michael Kasper (Officer

      Kasper) of the Indianapolis Metropolitan Police Department (IMPD) was on

      patrol in the east district of Indianapolis when he observed a car driven by Shaw

      fail to signal a turn from Sherman Drive onto 9th Street. Officer Kasper

      followed the vehicle as Shaw signaled and turned left onto Bradley Street,

      where Officer Kasper initiated a traffic stop. Shaw drove approximately 100

      feet, pulled over, and parked on the public street in what is considered by law

      enforcement to be a “high crime” area. (Trial Transcript Vol. II, p. 10). Officer

      Kasper requested back up and then approached Shaw’s vehicle. Shaw provided

      her name and date of birth. Shaw also volunteered that she did not have a valid

      driver’s license, a fact that Officer Kasper confirmed by checking with the

      Bureau of Motor Vehicle’s data base. Shaw had two passengers in the vehicle,

      neither of whom possessed a valid driver’s license.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019   Page 2 of 11
[5]   Officer Kasper decided to have Shaw’s vehicle towed because there was no one

      present with a valid driver’s license to take possession of the vehicle. Officer

      Kasper called for a tow truck. After Officer Katrina McEvilly (Officer

      McEvilly) arrived to assist, Officer Kasper removed Shaw and the two

      passengers from the vehicle. Officer Kasper detained Shaw but did not place

      her under arrest for driving without a valid license. Pursuant to the IMPD’s

      written policy on the towing and impounding of vehicles, General Order 7.3

      (GO 7.3), the vehicle was searched prior to being towed. Officer McEvilly

      found a bag of marijuana underneath the driver’s seat within reach of the

      backseat passenger. Officer Kasper also searched the vehicle and found a bag of

      marijuana between the front seat and the center console.


[6]   As the officers were finishing the inventory search, four of Shaw’s family

      members arrived. None of them had valid driver’s licenses, so the officers

      continued the process of preparing the vehicle to be towed. GO 7.3 provided

      that only items which had a value of $100 or more were to be inventoried prior

      to towing a vehicle. Because the only other item found in Shaw’s vehicle apart

      from the contraband was a bag of fast food, the officers did not prepare a list of

      property. Eventually, Shaw’s daughter arrived. Officer Kasper had discretion

      to decide whether to tow the vehicle, and he decided not to do so in light of

      Shaw’s and her passengers’ good behavior during the traffic stop. After

      verifying that she had a valid driver’s license, Officer Kasper released Shaw’s

      vehicle to Shaw’s daughter. Based on the contraband found during the

      inventory search, Officer Kasper arrested all the occupants of the vehicle.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019   Page 3 of 11
[7]   On August 30, 2017, the State filed an Information, charging Shaw with

      possession of marijuana, a Class B misdemeanor; driving while suspended, a

      Class A misdemeanor; and operating a motor vehicle without ever receiving a

      license, a Class A misdemeanor. On January 31, 2018, Shaw filed a motion to

      suppress any evidence obtained from the warrantless search of her vehicle. On

      March 5, 2018, the trial court held a hearing on Shaw’s motion, which it denied

      the same day, finding that the search was a valid inventory search. 1


[8]   On July 19, 2018, the trial court conducted Shaw’s bench trial. Shaw renewed

      her motion to suppress and further evidence was taken on the renewed motion.

      When the trial court asked if Shaw had parked her vehicle in line with other

      cars parked on the street, Officer Kasper responded, “Close to. It was at

      somewhat of an angle” and “[t]he front end closer to the curb than the back

      end.” (Trial Tr. Vol. II, p. 23). The State had GO 7.3 admitted into evidence.

      The trial court denied Shaw’s renewed motion to suppress.


[9]   At the conclusion of the evidence, the trial court found Shaw guilty as charged.

      Directly following Shaw’s bench trial, the trial court sentenced her to 180 days

      for possessing marijuana, one year for driving while suspended, and one year

      for operating a motor vehicle without ever receiving a license. The trial court

      suspended the entirety of the sentence to time served.




      1
        A copy of the trial court’s written order denying Shaw’s motion to suppress is not part of the record on
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019                      Page 4 of 11
[10]   Shaw now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[11]   Shaw challenges the admission of the evidence garnered from the inventory

       search as fruit of an unlawful search under the Fourth Amendment and Article

       I, Section 11, of our state constitution.


                                             I. Standard of Review

[12]   Trial courts have broad discretion to admit or exclude evidence. Blount v. State,

       22 N.E.3d 559, 564 (Ind. 2014). A trial court’s decision on the admissibility of

       evidence is reviewed for an abuse of discretion. Sams v. State, 71 N.E.3d 372,

       376 (Ind. Ct. App. 2017). We will reverse that decision only where it is clearly

       against the logic and effect of the facts and the error affects the defendant’s

       substantial rights. Id. When reviewing the admission at trial of evidence

       stemming from an inventory search, we do not reweigh evidence, and we

       consider conflicting evidence in the light most favorable to the trial court’s

       ruling. Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). We also consider any

       uncontroverted evidence favorable to the defendant. Id. “[T]he ultimate

       determination of ‘reasonableness’ is a constitutional legal question meriting

       independent consideration by this Court.” Id.


                                                  II. Fourth Amendment

[13]   The Fourth Amendment protects “[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. A search conducted without a search

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019   Page 5 of 11
       warrant is per se unreasonable unless it fits within one of a few “specifically

       established and well-delineated exceptions.” Mincey v. Arizona, 437 U.S. 385,

       390 (1978). When the State seeks to admit evidence garnered from a

       warrantless search, it bears the burden of showing the need for an exemption

       from the warrant requirement and that its conduct fell within the exception.

       Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006).


[14]   One well-defined exception to the warrant requirement is the inventory search.

       Illinois v. Lafayette, 462 U.S. 640, 642 (1983); Fair v. State, 627 N.E.2d 427, 431

       (Ind. 1993). An inventory search is an exception because it serves an

       administrative, not an investigatory, purpose—to document the contents of a

       vehicle to preserve the owner’s property and to protect the State against claims

       of stolen or lost property. South Dakota v. Opperman, 428 U.S. 364, 369 (1976).

       In order to establish the reasonableness of an inventory search, as a threshold

       issue the State must show the propriety of the impoundment itself because the

       need for the inventory arises from the impoundment. Fair, 627 N.E.2d at 431.

       If the impoundment is not specifically authorized by statute, to show that the

       impoundment of a vehicle was warranted, the State must demonstrate “(1) that

       the belief that the vehicle posed some threat or harm to the community or was

       itself imperiled was consistent with objective standards of sound policing, and

       (2) that the decision to combat that threat by impoundment was in keeping with

       established departmental routine or regulation.” Id. at 433 (citations omitted).

       When assessing whether a vehicle posed a hazard, courts look at two main

       factors, namely the degree to which the property where the vehicle was located


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019   Page 6 of 11
       was under the control of the defendant and the length of time the officer

       impounding the car perceived that the car would be unattended. Id. at 434.

       Ultimately, the inquiry is not whether impounding the vehicle was absolutely

       necessary; rather, courts must determine whether the decision to impound was

       reasonable in light of the applicable standard. Id. at 433.


[15]   If the impoundment itself was warranted, the State must also establish that the

       inventory search was conducted pursuant to standard police procedures.

       Sansbury v. State, 96 N.E.3d 587, 592 (Ind. Ct. App. 2017). An inventory search

       cannot be a pretext for a fishing expedition for incriminating evidence. Id. If

       either the propriety of the impoundment or the scope of the inventory is

       unreasonable, the search will not be upheld. Fair, 627 N.E.2d at 431.


[16]   Here, there was no evidence from which it could be inferred that Officer Kasper

       believed that Shaw’s vehicle was parked in a manner which posed a threat to

       the community or which placed the vehicle itself in peril. He never testified as

       such; rather, Officer Kasper testified that he decided to tow Shaw’s vehicle

       simply because there was no licensed driver available to take possession of it.

       The State did not attempt to show that Shaw parked her vehicle illegally, and

       the evidence at the suppression hearing was that, at most, the vehicle was

       slightly askew in relation to other parked cars on the same street. The fact that

       Shaw’s car was not parked illegally or creating a traffic hazard militates against

       the reasonableness of the impound. See Taylor, 842 N.E.2d at 331-32

       (concluding the impound was unreasonable in part because it was unclear that



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019   Page 7 of 11
       vehicle was parked illegally, and, in any event, vehicle was not a potential

       hazard to public safety).


[17]   In addition, although the car was parked in what was considered to be a high-

       crime area, other cars were parked on the same street that were unattended at

       that late hour. This was not a case where Shaw’s would have been the sole

       vehicle in a deserted area, rendering it more of a target. Contrary to the State’s

       assertions, unlike the circumstances in Abran v. State, 825 N.E.2d 384, 390 (Ind.

       Ct. App. 2005), trans. denied, where the truck at issue had items of value

       exposed in its bed, there was no evidence here that Shaw’s car was particularly

       susceptible to being stolen or vandalized. At the time he made the decision to

       impound, Officer Kasper had also decided that he would not arrest Shaw for

       driving without a valid license, and so there was no reason for him to believe

       that her car would be left unattended for a long period of time. See Fair, 627

       N.E.2d at 434.


[18]   The State argues that it was reasonable for Officer Kasper to impound the

       vehicle because, if he did not, Shaw or one of the unlicensed passengers would

       have been likely to drive it away once the traffic stop was completed. However,

       before deciding to impound the vehicle, Officer Kasper verified Shaw’s driving

       status by looking at her driver record, a copy of which was admitted at the

       suppression hearings. Those records indicated that Shaw’s home address was

       only blocks away from the site of the traffic stop. The fact that Shaw lived just

       a few blocks away would have been known to Officer Kasper when he made his

       impound decision, and we find that it was unreasonable for him to assume that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019   Page 8 of 11
       Shaw would attempt to drive home instead of walking home and arranging for

       someone else with a valid driver’s license to retrieve the vehicle. Thus, we

       cannot conclude that Officer Kasper’s decision to impound Shaw’s vehicle was

       reasonable because there was no evidence that Officer Kasper believed,

       consistent with standards of good policing, that the vehicle “posed some threat

       or harm to the community or was itself imperiled.” See Fair, 627 N.E.2d at 433.


[19]   We also conclude that Officer Kasper’s decision to impound Shaw’s vehicle

       was not consistent “with established departmental routine or regulation.” Id.

       GO 7.3 provided guidance on towing decisions in relevant part as follows:


               I. Authority to Tow


               A. Officers have the authority to tow and impound vehicles when
               authorized by city ordinance or state statute, or as part of the
               officers’ community caretaking function.


               B. Officers must be aware of the current on the [sic] city
               ordinances and state statutes that authorize the tow and
               impoundment of vehicles. Some applicable legal authority is
               provided in Section VII. below.


               C. Community Caretaking Function


               1. For a tow to be valid under this rationale, the following must
               be shown:


                       a. The vehicle poses some threat or harm to the
                       community, or is itself in danger; and


                       b. Impoundment of the vehicle is in accordance with
                       established department policy.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019   Page 9 of 11
               2. In assessing whether a particular vehicle constitutes a hazard
               or is itself in danger, officers should consider:


                       a. The degree to which the property upon which the
                       vehicle is situated is under the control of the vehicle
                       owner/operator; and


                       b. The length of time the officer reasonably believes the
                       impounded car would be left unattended.


               3. Not every vehicle illegally parked or left unattended can be
               towed under the authority of the community caretaking function;
               officers must be able to particularly describe why the vehicle is a potential
               harm to the community or is itself in danger.


               II. Vehicles Which May be Towed


               Assuming proper authority exists under Section I. above, the
               following vehicles may be towed and impounded:


               ****


               F. Being operated by an unlicensed or suspended driver[.]


       (State’s Exh. 3) (emphasis added). Thus, pursuant to GO 7.3, which largely

       tracts the language of Fair, an officer could only tow a vehicle operated by an

       unlicensed or suspended driver if that officer could particularly describe why the

       vehicle is a hazard to the community or is itself in danger, which we have

       already concluded that Officer Kasper did not, and could not, do in this case.


[20]   The inventory search conducted on Shaw’s vehicle was invalid under the

       Fourth Amendment, and, therefore, the trial court abused its discretion when it


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019       Page 10 of 11
       admitted evidence garnered from that search at trial. Because we conclude that

       the State did not meet its burden of proof on the threshold issue of whether

       Officer Kasper’s decision to impound was reasonable, we need not address the

       validity of the scope of the search. See Fair, 627 N.E. at 431. In addition,

       having concluded that the search of Shaw’s vehicle did not fall within the

       inventory search exception to the warrant requirement under the Fourth

       Amendment, we do not address Shaw’s state constitutional claim. See Berry v.

       State, 967 N.E.2d 87, 92 n.3 (Ind. Ct. App. 2012) (concluding that the search of

       his vehicle violated the Fourth Amendment and declining to address Berry’s

       state constitutional claim).


                                             CONCLUSION
[21]   Based on the foregoing, we conclude that the trial court abused its discretion

       when it admitted evidence that was procured from an invalid inventory search

       of Shaw’s vehicle.


[22]   Reversed.


[23]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1975 | May 29, 2019   Page 11 of 11
