                                                                                 FILED
                                                                            Jan 15 2019, 8:06 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Bryan L. Cook                                              Curtis T. Hill, Jr.
      Carmel, Indiana                                            Attorney General of Indiana

                                                                 Justin F. Roebel
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Randall Brown,                                             January 15, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-1
              v.                                                 Appeal from the Brown Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Judith Stewart,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 07C01-1604-F2-195



      May, Judge.


[1]   Randall Brown brings this interlocutory appeal from the trial court’s denial of

      his motion to suppress evidence. Brown asserts one issue for our review, which

      we restate as whether the trial court erred when it denied his motion to

      suppress. We affirm and remand for further proceedings.


      Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019                              Page 1 of 13
                             Facts and Procedural History
[2]   On April 27, 2016, officers executed a search warrant at Brown’s residence.

      The search warrant stated the location of the residence and authorized officers

      to


              search diligently, including all buildings, structures, vehicles,
              fenced-in areas, and any other enclosed area and/or closed
              container anywhere on the premises contained within in [sic] the
              curtilage of the described dwelling, for:


              Methamphetamine and any accompanying paraphernalia for
              using, ingesting or distributing methamphetamine; including but
              not limited to scales, pipes, packaging, and any indicia of using,
              possessing or dealing methamphetamine. Any US Currency that
              could be evidence of dealing methamphetamine including but not
              limited to five 100 dollar bills (serial numbers: LG74276189A,
              LF33086918C, LB73724153E, LD6621758SB, LD75008873B),
              twelve 20 dollar bills (serial numbers: JG69509816C,
              JG94949093B, GF02746549D, JL 68328040A, JK49558930B,
              MB33277468B, ML78678538H, EG72016894D, IK22554653A,
              JG55481073D, EA45478846F, JB34890837G), and two 5 dollar
              bills (serial numbers: 01200980A, MG68369631A). 1 Notes,
              records, ledgers, cell phones (including all electronically stored
              data stored within each cell phone and/or its memory cards,
              microchips or any data storage device contained within,
              including but not limited to: stored numbers called, stored calls
              received, address books, stored text messages, voice-mails,
              emails, internet addresses and/or any photo or digital images)



      1
       Franklin Police Department had conducted a controlled buy at an earlier time. The serial numbers of the
      money used in the buy were noted and then used here to support the contention Brown had distributed
      methamphetamine. (See Ex. Vol. at 6-7 (Sergeant Povinelli’s probable cause affidavit for search warrant
      wherein he reports the use of informants to purchase methamphetamine from Brown).)

      Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019                             Page 2 of 13
               and/or any indicia of possessing, producing, or distributing
               methamphetamine.


      (Ex. Vol. at 3 (footnote added).)


[3]   Brown arrived during the search and, pursuant to an arrest warrant, was taken

      into custody. Brown was handcuffed and placed in the back of a police car.

      Franklin Police Department Sergeant Anthony Povinelli read Brown his

      Miranda warning. 2 Brown indicated he understood and did not request an

      attorney. Brown told Sergeant Povinelli different locations in the house where

      contraband was located. As Brown revealed locations, officers would conduct

      a search. Each time, they found “personal use quantit[ies.]” (Tr. at 13.) Each

      time, before he revealed another location, Sergeant Povinelli read Brown his

      Miranda warning. Each time, Brown continued to give information.


[4]   Finally, Brown advised Sergeant Povinelli to look in the safe located in his

      bedroom and provided the combination for the safe. Within the safe, officers

      found “a large amount of – a hundred and twenty, plus or minus, grams of

      methamphetamine, Nine [sic] thousand cash, seven hundred and forty dollars

      of that cash belonged to the Franklin Police Department, verified through serial




      2
        Miranda v. Arizona, 384 U.S. 436 (1966) (when taking citizens into custody, officers must advise them of
      their right to remain silent, their right to counsel during questioning, their right to appointment of counsel if
      one cannot be afforded, and their right to assert those rights at any time).



      Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019                                     Page 3 of 13
      numbers, as well as a revolver firearm, and three rings with appraisals.” (Id. at

      14.)


[5]   On April 28, 2016, the State charged Brown with Level 2 felony dealing in

      methamphetamine, 3 Level 6 felony possession of methamphetamine, 4 and

      Level 6 felony maintaining a common nuisance. 5 On October 16, 2017, Brown

      filed a motion to suppress the evidence found in the safe, alleging violations of

      the Fourth Amendment of the United States Constitution and Article 1, section

      11 of the Indiana Constitution, along with violation of Article 1, section 13 of

      the Indiana Constitution for failing to provide Brown with a Pirtle advisement. 6

      Brown argued the warrant was overly broad because, although it included a

      reference to “closed container,” (Ex. Vol. at 3), the safe was a locked container

      and the officers should have obtained a second warrant to allow them to search

      inside or should have advised Brown of his Pirtle rights prior to opening the safe

      with the combination he provided.


[6]   The trial court conducted a hearing and denied the motion on November 28,

      2017. The trial court found the officers had a “valid search warrant for the

      defendant’s residence to search for methamphetamine, accompanying




      3
          Ind. Code § 35-48-4-1.1 (2014).
      4
          Ind. Code § 35-48-4-6.1 (2014).
      5
          Ind. Code § 35-48-4-13 (2014).
      6
       In Pirtle, our Indiana Supreme Court held a consent to search obtained from a citizen in custody is invalid
      under Article 1, section 13 of the Indiana Constitution unless that person is informed of his right to counsel
      before consenting to a search. Pirtle v. Indiana, 323 N.E.2d 634, 640 (Ind. 1975).

      Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019                                  Page 4 of 13
      paraphernalia and related items. The warrant extended to ‘all buildings,

      structures, vehicles, fenced-in areas, and any other enclosed area and/or closed

      container anywhere on the premises contained within [ ] the curtilage of the

      described dwelling.’” (Appealed Order at 1.) The trial court reasoned the “safe

      was a reasonable place where methamphetamine and related items could be

      kept, and the search warrant was sufficient to authorize the officers to search

      the locked safe.” (Id.) Further, the trial court concluded the “officers’ inquiry,

      and defendant’s willingness to provide the combination, does not convert the

      search based on a valid warrant to a search based on defendant’s consent. No

      Pirtle advisement was required.” (Id.)


[7]   Brown requested the denial of his motion to suppress be certified for

      interlocutory appeal, and the trial court granted that request. We accepted

      jurisdiction over this interlocutory appeal.



                                  Discussion and Decision
[8]   Brown appeals the trial court’s denial of his motion to suppress the evidence

      found in a safe in his house. Our standard of review for the denial of a motion

      to suppress evidence is similar to that of other sufficiency issues. Jackson v.

      State, 785 N.E.2d 615, 618 (Ind. Ct. App. 2003), reh’g denied, trans. denied. We

      determine whether there is substantial evidence of probative value to support

      denial of the motion. Id. We do not reweigh the evidence, and we consider

      conflicting evidence that is most favorable to the trial court’s ruling. Id. The

      review of a denial of a motion to suppress is different from other sufficiency

      Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019          Page 5 of 13
       matters in that we must also consider uncontested evidence that is favorable to

       the defendant. Id. We review de novo a ruling on the constitutionality of a

       search or seizure, but we give deference to a trial court’s determination of the

       facts, which will not be overturned unless clearly erroneous. Campos v. State,

       885 N.E.2d 590, 596 (Ind. 2008).


[9]    Brown contends the officers opened the safe “directly and proximately as a

       result of a Pirtle violation rather than on the authority of a warrant.” (Br. of

       Appellant at 8 (formatting revised).) In Pirtle, our Indiana Supreme Court held

       a consent to search obtained from a citizen in custody is invalid under Article 1,

       section 13 of the Indiana Constitution unless that person is informed of his right

       to counsel before consenting to a search. Pirtle v. Indiana, 323 N.E.2d 634, 640

       (Ind. 1975). When Pirtle advisements are required, the “person in custody must

       be informed of the right to consult with counsel about the possibility of

       consenting to a search before a valid consent can be given.” Jones v. State, 655

       N.E.2d 49, 54 (Ind. 1995), reh’g denied. Miranda warnings do not suffice. Id.

       Brown argues that because the officers used the combination he gave them to

       open the safe, he was entitled to a Pirtle advisement. We disagree.


[10]   First, as a factual matter, the record does not support the trial court’s finding

       that “officers asked the defendant, who was under arrest and in handcuffs, for

       the combination to the safe.” (Appealed Order at 1.) Sergeant Povinelli

       testified, Brown “advised [him] of a safe that was in [Brown’s] bedroom. And

       provided [him] with the combination to enter the safe.” (Tr. at 14.) We found

       no evidence, however, that officers “asked” for the information. As the record

       Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019           Page 6 of 13
       does not support the trial court’s finding that officers requested the combination

       from Brown, we cannot rely on that finding. See Perrine v. Marion Cty. Office of

       Child Servs., 866 N.E.2d 269, 277 (Ind. Ct. App. 2007) (when trial court’s

       findings are unsupported by the evidence, conclusions based thereon are

       rejected).


[11]   However, even assuming arguendo police asked Brown to provide the

       combination, we could not find merit in Brown’s assertion that


               police deliberately elected to gain access without resort to any
               claimed authority of the warrant, but instead relied on non-
               warrant means (i.e. consent) which thereby and decisively initiated
               this Pirtle violation.

       (Br. of Appellant at 12.) Indiana law requires officers conducting a search to

       provide citizens an opportunity to protect their property from destruction

       during the execution of a search warrant. Ind. Code § 35-33-5-7 (permitting

       police to “break open any outer or inner door or window in order to execute a

       search warrant, if the officer is not admitted following an announcement of the

       officer’s authority and purpose”). As police officers must request entry to the

       home and any locked rooms therein prior to breaking down doors, it seems

       only logical that police ought also request access to a locked container prior to

       breaking it open. As the officers conducting the search of Brown’s home were

       following an Indiana law intended to minimize destruction of citizen’s property

       during a search authorized by warrant, we cannot infer therefrom that those

       officers stopped relying on the authority of a warrant.



       Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019        Page 7 of 13
[12]   Furthermore, a Pirtle advisement cannot be necessary when police have a search

       warrant because the Pirtle doctrine was intended to help citizens in custody

       preserve the very same constitutional protections that are preserved by the

       search warrant requirement:


               The Pirtle court also noted the many protections of one’s right
               against unreasonable searches and seizures that are waived when
               one consents to a search requiring probable cause:


                        A search warrant may issue only upon probable cause
                        supported by an affidavit particularly describing the place
                        and property to be searched. Only a neutral magistrate
                        may issue the warrant. It must include enough
                        information to allow the magistrate himself to determine
                        whether there is probable cause for a search. The
                        information must be based on the officer’s personal
                        knowledge or on a credible tip from a reliable informer. A
                        person who consents to a search gives up all these protections and
                        subjects himself to a general search without probable cause.


               [Pirtle, 263 Ind.] at 26-27, 323 N.E.2d at 639 (emphasis added
               and citations omitted). “No one told [Pirtle] that if he refused
               consent, the officers would have to specify what they were looking
               for and their reasons for believing appellant had those items in order to
               get a search warrant.” Id. at 28, 323 N.E.2d at 640 (emphasis
               added). The Pirtle court expressed understandable concern that a
               person in custody without benefit of counsel might waive
               numerous constitutional protections by consenting to a general,
               unlimited search.


       Ackerman v. State, 774 N.E.2d 970, 980-81 (Ind. Ct. App. 2002), reh’g denied,

       trans. denied. However, those constitutional protections cannot be at risk when


       Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019                 Page 8 of 13
       police have already obtained a search warrant for the very location to which

       Brown asserts his consent was improper. Thus, the only question that remains

       is whether the search warrant obtained in this case provided police with

       authority to search Brown’s safe. 7


[13]   Police in this case had a warrant to search


                any . . . closed container anywhere on the premises [for]
                Methamphetamine and any accompanying paraphernalia, . . .
                US Currency that could be evidence of dealing
                methamphetamine including but not limited to [certain
                denominations with certain serial numbers,] [n]otes, records,
                ledgers, cell phones . . . and/or any indicia of possessing,
                producing, or distributing methamphetamine.


       (Appealed Order at 1.) Brown argues the search warrant’s inclusion of

       authority to search any “closed container” does not include authority to open

       the safe because it was locked, not just closed. Brown argues the police needed

       a second search warrant to open and search inside the locked safe.


[14]   In support of his argument that police needed a second search warrant, Brown

       points to inventory searches of cars, during which police may impound a

       vehicle but cannot search locked containers inside that vehicle without a

       warrant. He frames this argument as a difference between officers’ rights to

       seize versus officers’ rights to search. Brown is correct that under the Indiana




       7
        On appeal, Brown does not challenge the validity of the search warrant under Article 1, section 11, or the
       Fourth Amendment, and we accordingly presume the warrant’s constitutionality.

       Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019                                Page 9 of 13
       Constitution, Article 1, section 11, the needs of law enforcement do not allow a

       warrantless search of locked containers within the vehicle. State v. Lucas, 859

       N.E.2d 1244, 1251 (Ind. Ct. App. 2007), reh’g denied, trans. denied. We have so

       held because an inventory search is an exception to the requirement for a search

       warrant, and the exception was created to protect private property, protect

       police from claims of missing property, and protect police from danger. See,

       e.g., Gibson v. State, 733 N.E.2d 945, 956 (Ind. Ct. App. 2000) (denoting the

       rationale for inventory searches). Because of the decreased risk that items

       inside a locked container will be lost, police cannot intrude into the privacy of

       locked containers without obtaining a warrant supported by probable cause to

       search that container within a vehicle. 8


[15]   Here, though, officers already had a warrant to search Brown’s house for drugs

       and cash. Generally speaking, “[a] search warrant authorizing the search of

       defined premises also authorizes the search of containers found on that

       premises which reasonably might conceal items listed in the warrant.” Green v.

       State, 676 N.E.2d 755, 759 (Ind. Ct. App. 1996) (quoting United States v.

       Johnson, 709 F.2d 515, 516 (8th Cir. 1983)), trans. denied. Thus, the question




       8
         Aside from Brown’s reliance on Pirtle, he does not distinguish between the Federal and Indiana
       constitutional arguments. In support of his arguments, he commingles federal and Indiana cases. As Brown
       has not presented an argument based on a separate analysis of the Indiana Constitution, we need only
       address these claims using federal standards. See Haley v. State, 696 N.E.2d 98, 100 n.1 (Ind. Ct. App. 1998)
       (without a separate analysis, we analyze using federal standards), trans. denied; see also State v. Azania, 865
       N.E.2d 994, 998 n.4 (Ind. 2007) (where party cites Indiana Constitution but presents no separate argument
       based thereon, we resolve the federal claim and “express no opinion” about the state claim), clarified on reh’g
       875 N.E.2d 701 (Ind. 2007) (“clarifying which iteration of Indiana’s death penalty statute applies to a new
       sentencing phase”).

       Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019                                 Page 10 of 13
       before us is whether the first warrant’s authorization to open “containers”

       includes “locked containers.”


[16]   In Green, 676 N.E.2d 755, while investigating a charge of child exploitation,

       officers obtained a search warrant to search Green’s photography studio and

       apartment for “‘all film, photos, photographs, pictures, videos, movies,

       negatives, undeveloped film or any pictorial representation that depict or

       describe sexual conduct by a child’ . . . .” Id. at 756. In his studio, officers

       found a locked safe. Green would not open it and claimed it belonged to his

       parents. Green’s mother did not have the combination. Officers seized the safe

       and took it back to their station. Officers obtained a second warrant to search

       the safe. While they did not find any of the items listed in the search warrant,

       they found marijuana. The State charged Green with Class A misdemeanor

       possession of marijuana. When Green moved for the marijuana evidence to be

       suppressed, the trial court denied his motion.


[17]   On appeal, a panel of this court noted it could not find any Indiana cases

       “which specifically involved the execution of a search warrant which resulted in

       the removal and subsequent search of a safe which was not specifically listed in

       the warrant.” Id. at 758. Therefore, that panel looked to two federal cases as

       instructive: United States v. Wright, 704 F.2d 420 (8th Cir. 1983), and United

       States v. Johnson, 709 F.2d 515 (8th Cir. 1983). In both instances, the federal

       courts held the search of a safe, found pursuant to a valid search warrant that

       did not specifically list the safe as a place to be searched, was proper. Based

       thereon, the panel in Green held that, where the search warrant was valid and

       Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019          Page 11 of 13
       the items sought could reasonably have been found in a safe, the officer’s

       decision to get a “second warrant to search the safe was not necessary and was

       undoubtedly secured in an exercise of caution by police.” Green, 676 N.E.2d at

       759 (emphasis added). Thus, the panel held “the initial warrant to search

       Green’s apartment and photography studio authorized the search of the safe.”

       Id.


[18]   As such, we cannot agree with Brown’s unsupported assertion that a safe is not

       included in the search warrant’s specification that officers are allowed to look in

       “closed container[s.]” (Appealed Order at 1.) In Green, without including a

       specific reference to closed containers, we held the search of a safe was

       authorized because the items to be searched for could reasonably be found in a

       safe. Green, 676 N.E.2d at 759. Although the officers in Green obtained a

       second warrant specifically for the safe, they were not required to do so—their

       authorization to open the safe stemmed from the original warrant. Id.

       Therefore, in this case, with even more particularity noted in the search

       warrant, we hold the officers had authorization to search the safe. See id.


[19]   Because the officers had a valid warrant, they did not require Brown’s consent

       to open the safe. See Garcia-Torres, 949 N.E.2d at 1237 (Ind. 2011) (consent to

       search obviates need for search warrant, but “the Fourth Amendment is

       satisfied when police obtain a warrant”). The fact that Brown may have offered

       the combination in order to preserve his safe from destruction does not

       invalidate the lawful warrant. See United States v. Johnson, 709 F.2d 515, 516

       (8th Cir. 1983) (“Johnson refused to open the safe when it was first discovered

       Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019          Page 12 of 13
       by the officers. Because they were authorized to open it under the warrant at

       that time, they did not need a second warrant to complete the search of the safe

       at the police station later.”). We accordingly affirm the trial court’s denial of

       Brown’s motion to suppress the evidence found in his safe. See Green, 676

       N.E.2d at 759.



                                                 Conclusion
[20]   As the officers’ search warrant authorized opening the safe, Brown’s consent

       was not necessary to open the safe. Brown’s revelation to police of the

       combination to that safe could not invalidate the validity of the warrant or

       render the search one conducted only pursuant to his consent. Accordingly, the

       failure of officers to provide a Pritle advisement to Brown before he revealed the

       combination is irrelevant. Accordingly, the trial court did not abuse its

       discretion when it denied Brown’s motion to suppress the evidence found in the

       safe. We affirm and remand for further proceedings.


[21]   Affirmed and remanded.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1 | January 15, 2019         Page 13 of 13
