                                                                                FILED
                                                                            Dec 05 2019, 6:47 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Daniel Hageman                                            Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana                                     Caroline G. Templeton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Dennis Payne, Jr.,                                        December 5, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-394
              v.                                                Appeal from the
                                                                Marion Superior Court
      State of Indiana,                                         The Honorable
      Appellee-Plaintiff                                        Marc Rothenberg, Judge
                                                                Trial Court Cause No.
                                                                49G02-1710-F5-37833



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Following a May 2017 hit and run in Indianapolis that left a pedestrian dead,

      Dennis Payne Jr. was convicted of Level 5 felony failure to remain at the scene

      of an accident resulting in death and Level 6 felony obstruction of justice.

      Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019                           Page 1 of 16
      Payne now appeals, arguing that the police violated his Fourth Amendment

      rights when they seized his Toyota 4Runner—which matched the description of

      the SUV involved in the hit and run, had front-end damage consistent with a

      pedestrian strike, and was parked on a public street—without a warrant.

      Because Payne concedes that the police had probable cause to believe that his

      4Runner was involved in the hit and run and the automobile exception to the

      warrant requirement applies to cars parked on property that is open to the

      public, we find no Fourth Amendment violation.



                             Facts and Procedural History
[2]   Around 6:30 p.m. on May 19, 2017, Jairo Marquez-Nava called 911 to report a

      possibly impaired driver in a gray SUV heading south on Holt Road in

      Indianapolis. The driver was swerving and then appeared to be asleep at a

      stoplight. While Nava was on the phone with the 911 operator, the light turned

      green, and the driver rapidly accelerated. Nava gasped, “he just hit a lady!”

      Ex. 1. According to Nava, the SUV swerved off the road, struck a pedestrian

      walking in the grass, and continued onto the Sam Jones Expressway. The

      pedestrian, Karen Turner, was transported to Eskenazi Hospital, where she was

      pronounced dead.


[3]   Nava stayed on the phone with the 911 operator as he followed the SUV from

      the scene of the accident. Nava reported that the SUV stopped on the shoulder

      of the Sam Jones Expressway, where the driver got out and removed a broken

      piece—which Nava described as a one-foot shiny object—from the front

      Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019     Page 2 of 16
      passenger side of the SUV. Nava drove past the stopped SUV so that he did not

      look suspicious. When he looped back, the SUV was gone. Nava returned to

      the scene of the accident to speak with the police.


[4]   Indianapolis Metropolitan Police Department Detective Kelley Rhoda, who

      works with IMPD’s hit-and-run unit, spoke with Nava. According to Detective

      Rhoda, Nava told her the following:


              He said that a silver or gray SUV initially dispatched as a Toyota,
              and then he said Mitsubishi, struck a woman heading
              southbound on Holt, turned onto Sam Jones. He described a
              chubby white male, approximately 200 pounds, 5’11” with black
              hair wearing a black shirt.


      Tr. Vol. II p. 227. Detective Rhoda also learned that the SUV had “rear

      window stickers” and a “distinct tow hitch.” Id. at 242-43.


[5]   A few days later, Detective Rhoda reviewed video surveillance recorded around

      6:30 p.m. on May 19 from a business along the Sam Jones Expressway. The

      video showed “a silver SUV on Sam Jones heading westbound that pulled over

      on the shoulder . . . momentarily and then proceed[ed] to the exit.” Id. at 236.

      Detective Rhoda determined that the SUV was “a 2000 to 2002 Toyota

      4Runner.” Id. at 230.


[6]   Detective Rhoda then contacted the Indiana Bureau of Motor Vehicles “for a

      list of all 2000 to 2002 gray or silver Toyota 4Runners in Marion County.” Id.

      at 231. She inspected each of the registered 4Runners for damage consistent

      with striking a pedestrian. Finding none, she got the same information for

      Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019       Page 3 of 16
      Morgan County, which borders the southwest corner of Marion County

      (according to Detective Rhoda, the SUV was heading southwest after the hit

      and run, see Tr. Vol. III p. 11).


[7]   The BMV listed only one 2000 to 2002 silver or gray Toyota 4Runner registered

      in Morgan County. The registered owner of this 4Runner was Oklevueha

      Native American Church located at 7145 Bethany Park in Martinsville, which

      was the same address listed on Payne’s Indiana driver’s license.


[8]   On June 12, Detective Rhoda went to 7145 Bethany Park, which she described

      as a “residence.” Tr. Vol. II p. 238. She did not find a 4Runner there;

      however, a neighbor confirmed that a 4Runner was normally parked there and

      that the owner was affiliated with a Native American church in nearby

      Brooklyn. Detective Rhoda then drove to Brooklyn and stopped at the fire

      station to get the address of the church. The fire department gave Detective

      Rhoda the address, 106 South Church Street, and told her that “it looked like a

      house.” Id. at 239. When Detective Rhoda arrived at 106 South Church Street,

      she found a silver 2002 Toyota 4Runner parked on the street with damage to

      the front passenger side hood, grill, light, and bumper. See Exs. 25-27, 30. The

      4Runner also had a distinct tow hitch and stickers in the rear window. Ex. 29.

      Also at the address was a trailer, which displayed the name “Countertop Shop”

      and a phone number. Ex. 29. After calling for other members of IMPD’s hit-

      and-run team and a Morgan County deputy sheriff to respond to the scene,

      Detective Rhoda called the phone number and asked to speak with “Dennis or

      D.J. Payne.” Tr. Vol. II p. 245. The person who answered the phone

      Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019       Page 4 of 16
       responded to that name. Detective Rhoda asked the person “about the trailer in

       the yard because [she] didn’t want to tip him off to the fact that [they] were

       interested in [the 4Runner].” Tr. Vol. III p. 19. The person responded that he

       would come to the church. The person, however, never showed up. In the

       meantime, Douglas Heustis, IMPD’s Chief Crash Investigator, arrived at 106

       South Church Street. After viewing the front-end damage to the 4Runner, he

       believed that it was “consistent with a pedestrian crash or a pedestrian strike.”

       Id. at 50. After waiting about 45 minutes, Detective Rhoda had the 4Runner

       towed to IMPD’s tow lot in Indianapolis.


[9]    The next morning, June 13, Detective Rhoda applied for, and was granted, a

       warrant to search the 4Runner. Ex. 38. Detective Rhoda found “miscellaneous

       damaged car parts in the [back] of the vehicle,” including a headlight assembly

       and “a silver piece . . . [that] matche[d] the description of what Nava reported,

       approximately one foot shiny object that the driver appeared to remove from

       the front of the vehicle.” Tr. Vol. II pp. 249, 250. There was also “bagged

       clothing that matched the description that Nava gave, a black shirt, black

       pants.” Id. at 249. Near the driver’s seat, Detective Rhoda found a Menards

       receipt dated May 19 at 3:33 p.m., which was about three hours before the

       accident.


[10]   Detective Rhoda then went to Menards and asked to see video surveillance

       from May 19 around 3:30 p.m. The video showed “[a] person matching the

       description that Nava gave . . . purchasing two boards and a drink which

       matched the receipt.” Tr. Vol. III p. 5. Detective Rhoda asked an employee if

       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019       Page 5 of 16
       there was “any account information associated with the receipt[,] and [the

       employee] said [that] the purchaser was the Counter[top] Shop” and that “[t]he

       name associated with [that] account was Dennis Payne.” Id.


[11]   At some point, Detective Rhoda learned that two people named James Price

       and Samantha Giles had information about the hit and run, and she

       interviewed them, learning the following information.1 Id. Price, who is

       connected with Harvester’s Baptist Church in Haughville, received a phone call

       on May 19 around 6:45 p.m. (which was shortly after the hit and run) that

       someone was dumping something behind his church. Price had known Payne

       for about twenty-five years, and Payne helped care for the church buildings.

       After Price got the call, he went to the church to investigate. When Price

       arrived, Payne’s silver Toyota 4Runner was parked in its normal spot; however,

       it was parked “nose in” and “fairly close to the building.” Tr. Vol. II p. 168.

       According to Price, Payne normally backed his 4Runner into the spot. Price

       then saw Payne’s wife in a Kia. When Price approached the Kia to see what

       was going on, he saw Payne in the backseat. Payne’s wife told him that Payne

       was “sick” and “very dehydrated.” Id. at 169. Price told her to take him home.

       The 4Runner remained parked at the church for about the next ten days, which

       was unusual.




       1
        Detective Rhoda apparently learned about Price and Giles after she applied for the search warrant on June
       13, as there is no mention of Price or Giles in the search-warrant affidavit. See Ex. 38. No evidence was
       presented at trial as to why Detective Rhoda did not know about Price and Giles any sooner.

       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019                            Page 6 of 16
[12]   At the end of May, Giles, Price’s home health aide, saw a post on Facebook

       that the police were looking for an SUV involved in a hit and run. According

       to the Facebook photo, the SUV had stickers in the rear window. Giles and

       Price compared the photo on Facebook to Price’s 4Runner, which was still

       parked in the same spot at the church. Although Price wasn’t prepared to say

       that Payne’s 4Runner matched the photo on Facebook, he did note that the

       stickers on the rear window of the SUV in the photo looked similar to the

       stickers on the rear window of Payne’s 4Runner. Price recognized one of the

       stickers, a “First Nation Chickamauga” sticker, because he had one on his car.

       Id. at 173. Giles observed that there was front-end damage to the 4Runner

       (which wasn’t there before) and that the 4Runner was “extremely clean and

       sparkly” (it was normally “[d]usty”). Id. at 209. In addition, Giles noted that

       the stickers on Payne’s 4Runner matched the ones in the Facebook photo.

       Believing that Payne’s 4Runner was the SUV involved in the hit and run, Giles

       contacted the police. A few days later, a police officer came to the church to

       look at the 4Runner. Price was there at the time. After the officer left, Price

       called Payne and asked him what he had hit with his car. Payne responded,

       “Well, let’s just say I don’t know. Let’s just say I don’t know what I hit.” Id. at

       180-81. Price told Payne to get his SUV from the church, and it was gone the

       next day. Then, on June 12 (the day that Detective Rhoda went to Brooklyn),

       Payne called Price and said that the police and a tow truck were at Brooklyn

       and that they were going to tow his 4Runner. Id. at 182-83. Payne asked Price

       to get a key and take the 4Runner before it could be towed. Id. at 185-86.

       Price, however, said no.
       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019      Page 7 of 16
[13]   In October 2017, the State charged Payne with Level 5 felony failure to remain

       at the scene of an accident resulting in death and Level 6 felony obstruction of

       justice. Payne later filed a motion to suppress the evidence found in his

       4Runner and the information learned at Menards, arguing that his

       constitutional rights were violated when his 4Runner was seized without a

       warrant. The trial court denied Payne’s motion to suppress.


[14]   A jury trial was held in September 2018. At trial, in addition to the evidence

       discussed above, Nava identified the 4Runner found at the church in Brooklyn

       as the SUV that was involved in the hit and run. Evidence was also presented

       that at 6:28 p.m. on May 19, 2017, the phone number associated with Payne

       made a call using a cell-phone tower that was located less than one mile from

       the accident scene. Tr. Vol. III pp. 39-40.


[15]   Following the jury trial, Payne was found guilty as charged. The trial court

       sentenced him to five years, with four years executed (three years in the DOC

       and one year on home detention) and one year suspended to probation.


[16]   Payne now appeals. We held oral argument in this case in the Adams County

       courthouse on November 12, 2019.



                                  Discussion and Decision
[17]   Payne contends that his constitutional rights were violated when the police

       seized his 4Runner without a warrant. Payne relies on both the Fourth



       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019      Page 8 of 16
       Amendment to the United States Constitution and Article 1, Section 11 of the

       Indiana Constitution.


                                       I. Fourth Amendment
[18]   Payne argues that his Fourth Amendment rights were violated when the police

       seized his 4Runner without a warrant. The Fourth Amendment protects “[t]he

       right of people to be secure in their persons, houses, papers, and effects against

       unreasonable searches and seizures.” U.S. Const. amend. IV. While the

       Fourth Amendment generally prohibits warrantless searches and seizures, there

       are exceptions. The State argues that the automobile exception applies here.


[19]   Pursuant to the automobile exception, law-enforcement officers may seize and

       search automobiles without first obtaining a warrant so long as there is probable

       cause to do so. See Collins v. Virginia, 138 S. Ct. 1663 (2018); Chambers v.

       Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925). The

       rationale for the automobile exception is that automobiles are (1) readily mobile

       and (2) “subjected to pervasive and continuing governmental regulation and

       controls, including periodic inspection and licensing requirements.” Collins, 138

       S. Ct. at 1669-70 (quotation omitted). “In the context of warrantless seizures

       involving automobiles, there exists a strong governmental interest, recognized

       under the Fourth Amendment, to ferret out crime and conduct necessary

       investigations before the vehicle and its occupants may be ‘spirited away.’”

       State v. Brereton, 826 N.W.2d 369, 377-78 (Wisc. 2013) (quoting Florida v. White,

       526 U.S. 559, 565 (1999)), cert. denied. “Therefore, as long as officers have


       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019       Page 9 of 16
       probable cause to believe that the vehicle is, or contains, evidence of a crime,

       warrantless seizures of automobiles may be lawful, provided that they are

       conducted reasonably.” Id. at 378 (citing Chambers, 399 U.S. at 51-52).

       “Probable cause is not a high bar and is cleared when the totality of the

       circumstances establishes a fair probability—not proof or a prima facie

       showing—of criminal activity, contraband, or evidence of a crime.” Hodges v.

       State, 125 N.E.3d 578, 581-82 (Ind. 2019) (quotations omitted).


[20]   The State argues that the police properly seized Payne’s 4Runner pursuant to

       the automobile exception because they had probable cause to believe that it was

       evidence of the hit-and-run crime. Payne concedes that there was probable

       cause to believe that his 4Runner was involved in the hit and run; however, he

       claims that the automobile exception does not apply here because his 4Runner

       was parked in a “residential area.” Appellant’s Br. p. 17. As support for this

       claim, Payne relies on the Indiana Supreme Court’s opinion in State v. Hobbs,

       933 N.E.2d 1281 (Ind. 2010). In Hobbs, police officers, without a warrant and

       after a drug dog alerted, searched the defendant’s car, which was parked in the

       parking lot of a restaurant. On appeal, the defendant argued that the

       warrantless search of his car violated the Fourth Amendment. In addressing

       the automobile exception, our Supreme Court said:


               As the Supreme Court of the United States explained in
               [California v. Carney, 471 U.S. 386 (1985),] the exception applies
               to vehicles that are readily mobile and are found in a non-
               residential area. The clear implication is that an operable
               vehicle found in a residential area may not be searched under

       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019          Page 10 of 16
               this exception, but one located in a non-residential area . . . is
               subject to the exception.


       Hobbs, 933 N.E.2d at 1285-86 (citation omitted, emphasis added).


[21]   The State asserts that the Indiana Supreme Court “misread[]” Carney.

       Appellee’s Br. p. 17. In Carney, the United States Supreme Court addressed

       whether “law enforcement agents violated the Fourth Amendment when they

       conducted a warrantless search, based on probable cause, of a fully mobile

       ‘motor home’ located in a public place.” 471 U.S. at 387. In determining

       whether the motor home—which was parked in a parking lot in downtown San

       Diego—had ready mobility, the Court noted:


               When a vehicle is being used on the highways, or if it is readily
               capable of such use and is found stationary in a place not
               regularly used for residential purposes-temporary or otherwise-
               the two justifications for the vehicle exception come into play.


       Id. at 392-93. As the Seventh Circuit explained when addressing the same

       claim that Payne makes here:


               [The defendant] misconstrues the meaning of Carney. In that
               case, the Supreme Court was faced with the issue of whether a
               mobile home comes within the automobile exception, and the
               Court looked to the location where the vehicle was parked solely
               for the purpose of determining whether the mobile home was
               being used more like an automobile (so that it would come
               within the exception) or more like a residence (so that a
               heightened expectation of privacy would exist, necessitating
               either a warrant or the existence of exigent circumstances before
               a search properly could be carried out). Carney does not establish

       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019          Page 11 of 16
               a requirement that additional exigent circumstances be
               present merely because an automobile is parked at a residence.


       United States v. Reis, 906 F.2d 284, 290-91 (7th Cir. 1990); see also United States v.

       Brookins, 345 F.3d 231, 237 (4th Cir. 2003) (“[I]n [Carney], . . . the Supreme

       Court held that a mobile home, on the facts presented, was more characteristic

       of an automobile than a fixed residence. The Court did look to the nature of

       the location where the vehicle was discovered, but only to ascertain whether the

       vehicle itself was, in an ontological sense, in use as a ‘movable vessel’ or as a

       fixed residence.”). Carney does not stand for the proposition that “an operable

       vehicle found in a residential area may not be searched under th[e] [automobile]

       exception.” Hobbs, 933 N.E.2d at 1285-86.


[22]   In addition, the sentence in Hobbs cited by Payne is but one sentence that had

       no bearing on the ultimate decision reached by our Supreme Court. That is, in

       Hobbs, the defendant’s car was not parked in a residential area; rather, it was

       parked in the parking lot of a restaurant. As such, the Court held, “Because

       [the defendant’s] admittedly mobile vehicle was in the parking area of a

       restaurant, it was subject to the automobile exception and no warrant was

       required to search the vehicle if the officers had probable cause to believe it

       contained evidence of a crime.” Id. at 1286. In other words, the Court did not

       address the scenario presented here of a car parked on a public street in a

       residential area.


[23]   Moreover, the United States Supreme Court recently clarified in Collins that in

       order for the automobile exception to apply, a police officer must have “a
       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019         Page 12 of 16
       lawful right of access to [the] vehicle.” 138 S. Ct. at 1672. When a car is

       parked “within a home or its curtilage,” “[t]he automobile exception does not

       afford the necessary lawful right of access . . . because it does not justify an

       intrusion on a person’s separate and substantial Fourth Amendment interest in

       his home and curtilage.” Id. Thus, while the automobile exception does not

       apply when a car is parked on private residential property, it does apply when a

       car is parked on property that is open to the public, such as a city street or a

       business parking lot. See id. at 1673 n.3. At oral argument, defense counsel

       conceded that Payne’s 4Runner was not parked on private residential property.

       See Oral Arg. at 16:10.


[24]   Payne also relies on the Indiana Supreme Court’s opinion in Brown v. State, 653

       N.E.2d 77 (Ind. 1995). In Brown, the Court held that the automobile exception

       did not apply “[s]ince there were no exigent circumstances and [the

       defendant’s] automobile was located in a residential parking area.” Id. at 81

       (emphasis added). But given what we just said above and that the United States

       Supreme Court clarified after Brown that the automobile exception “has no

       separate exigency requirement,” Maryland v. Dyson, 527 U.S. 465 (1999), Brown

       does not support Payne’s claim. Accordingly, the police did not violate Payne’s

       Fourth Amendment rights when they seized his 4Runner without a warrant.


                                      II. Article 1, Section 11
[25]   Payne also argues that the warrantless seizure of his 4Runner violated Article 1,

       Section 11 of the Indiana Constitution. The State argues that Payne did not


       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019        Page 13 of 16
       raise this issue in the trial court, thereby waiving it for purposes of appeal. Even

       assuming that Payne has preserved this issue for our review, we find no Article

       1, Section 11 violation.


[26]   Article 1, Section 11 of the Indiana Constitution provides in relevant part, “The

       right of the people to be secure in their persons, houses, papers, and effects,

       against unreasonable search and seizure, shall not be violated.” Although

       this language largely tracks that of the Fourth Amendment, we interpret and

       apply it independently. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001). The

       reasonableness of a search or seizure under the Indiana Constitution “turns on

       an evaluation of the reasonableness of the police conduct under the totality of

       the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). Those

       circumstances may include a balance of: (1) the degree of concern, suspicion, or

       knowledge that a violation has occurred, (2) the degree of intrusion the method

       of the search or seizure imposes on the citizen’s ordinary activities, and (3) the

       extent of law-enforcement needs. Id. at 361.


[27]   Here, the police had a significant degree of concern, suspicion, or knowledge

       that Payne’s 4Runner was involved in the hit and run that left a pedestrian

       dead. That is, Detective Rhoda had a description of the SUV involved in the

       hit and run from witnesses, she watched surveillance video and identified the

       target vehicle as a 2000 to 2002 silver Toyota 4Runner, and Payne’s 4Runner

       had damage to the front hood, grill, headlight, and bumper that was consistent

       with a pedestrian strike. As for the degree of intrusion, after the police called

       Payne and he did not come to 106 South Church Street, the police had his

       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019      Page 14 of 16
4Runner towed to IMPD’s tow lot in Indianapolis. The following morning, the

police obtained a search warrant. While Payne was deprived of possession of

his 4Runner before the search warrant was obtained, it was less than twenty-

four hours. Finally, the extent of law-enforcement needs was high. That is, the

police were investigating a hit and run that left a pedestrian dead. The police

conducted a thorough investigation that led them to Payne’s 4Runner. When

the police found Payne’s 4Runner parked on a public street, it had front-end

damage that was consistent with a pedestrian strike. The police then called

Payne to have him come to the scene, but Payne never showed up. At this

point, it was reasonable for the police to believe that Payne would move or hide

his 4Runner (as he had previously done with his 4Runner at the church in

Haughville). The police then had the 4Runner towed to Indianapolis, applied

for a search warrant the following morning, and only searched it after obtaining

the warrant. Cf. Brown, 653 N.E.2d at 80 (concluding that the police violated

Article 1, Section 11 of the Indiana Constitution when they searched the

defendant’s car without a warrant). Under the totality of the circumstances, the

conduct of the police in seizing Payne’s 4Runner until a search warrant was

obtained was not unreasonable.2




2
 Payne argues that Buckley v. State, 886 N.E.2d 10 (Ind. Ct. App. 2008), controls this case. In Buckley, the
defendant was a suspect in a homicide. Two days after the murder—which provided “ample time for the
perpetrator to dispose of the murder weapon and other evidence of the crime”—the police, without a
warrant, seized the defendant’s car and then searched it, finding a handgun that was not connected to the
murder. Id. at 14-15. The defendant was convicted of carrying a handgun without a license and appealed,
arguing that the seizure and search violated Article 1, Section 11 of the Indiana Constitution. Concluding


Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019                              Page 15 of 16
[28]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       that the police did not act reasonably, we reversed the defendant’s conviction. This case is clearly
       distinguishable from Buckley. In Buckley, the police hoped to find evidence in the car that the defendant
       committed the murder. Here, however, Payne’s damaged 4Runner itself was evidence that Payne was the
       hit-and-run driver, and the police did not search the 4Runner until after getting a warrant.

       Court of Appeals of Indiana | Opinion 19A-CR-394 | December 5, 2019                            Page 16 of 16
